Getachew and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2023] AATA 4478
•4 September 2023
Getachew and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 4478 (4 September 2023)
Division: GENERAL DIVISION
File Number(s): 2022/6839
Re:Natnael Getachew
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:4 September 2023
Place:Sydney
The Reviewable Decision is affirmed.
..................................[SGD].....................................
Senior Member Dr Linda Kirk
CATCHWORDS
CITIZENSHIP – application for Australian citizenship – whether Tribunal is satisfied the Applicant is of ‘good character’ for the purposes of section 21(2)(h) – violent offences – false information discovered in context of citizenship application – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Taradel and Minister for Immigration, Local Government and Ethnic Affairs [2005] AATA 1255
SECONDARY MATERIALS
The Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
Citizenship Instruction 17 – Decision-making under the Citizenship Act
Revised Citizenship Procedural Instructions
REASONS FOR DECISION
Senior Member Dr Linda Kirk
4 September 2023
Mr Natnael Getachew (‘the Applicant’) is a citizen of Ethiopia who was born in 1996.[1] He arrived in Australia aged 12 years on 11 February 2009 as the holder of a Child Migrant (Subclass 101) visa (‘the visa’) which was granted on 9 October 2008.[2]
[1]Section 37 T-Documents, T1, 8.
[2]Ibid, T11, 109; T4, 69.
On 19 October 2021, the Applicant made an application for Australian Citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[3]
[3]Ibid, T4, 61-77.
On 21 June 2022, the Applicant was invited by the Department of Home Affairs (‘the Department’) to comment on adverse information relating to his application within 28 days.[4] The letter informed the Applicant that before he could be approved for Australian citizenship, the delegate must be satisfied that he is of good character under section 21(2)(h) of the Act. It noted that the Applicant’s failure to disclose his entire criminal history in his citizenship application and the offences listed in his National Police History Check Report dated 10 June 2022[5] would be taken into account.
[4]Ibid, T7, 94-98.
[5]Ibid, T7, 101-102.
On 7 July 2022, the Applicant provided to the Department his response to the invitation to comment letter.[6]
[6]Ibid, T8-T9, 104-107.
On 26 July 2022, the delegate refused the Applicant’s citizenship application (‘the Reviewable Decision’).[7] The delegate was not satisfied that the Applicant was of good character at the time of the decision as required by section 21(2)(h) of the Act.
[7]Ibid, T2, 12-19.
On 24 August 2022, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[8]
[8]Ibid, T1, 1-6.
The review application was heard in Sydney on 19 July 2023. The Applicant attended the Tribunal hearing in person and was self-represented.
The following documents were before the Tribunal:
·Respondent’s Statement of Facts, Issues and Contentions dated 5 May 2023 (‘RSFIC’);
·Section 37 T-documents (T1 – T11, pp. 1 – 109);
·Summons material (R1 – R15, pages 1 – 136);
·Character reference letter from Marissa Borromeo dated 27 June 2022;
·Character reference from Biruk Markus Bogale dated 28 March 2023;
·Email from Western Sydney University to the Applicant dated 2 February 2023; and
·Email from Western Sydney University to the Applicant dated 16 February 2023.
The Tribunal has reviewed the evidence before it and refers to the relevant materials below.
LEGISLATIVE FRAMEWORK
The ‘good character’ test
The issue before the Tribunal is whether it is satisfied that the Applicant is of ‘good character’ in accordance with section 21(2)(h) of the Act which provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
The Australian Citizenship Policy Statement (‘Policy Statement’)[9] and the Revised Citizenship Procedural Instructions (‘CPIs’)[10] guide decision-makers exercising powers and discharging functions under the Act.
[9]Australian Citizenship Policy Statement, issued 27 November 2020.
[10] Revised Citizenship Procedural Instructions, reissued 26 February 2021 – current version dated 14 August 2022.
Relevant to this review application is Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (‘CPI 15’). Paragraph 1 of CPI 15 states that decision makers ‘should not apply policy inflexibly and should consider the merits of each individual case’.
Paragraph 3.1 of CPI 15, under the heading ‘Procedural Instruction’, states:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.
Paragraph 3.3 of CPI 15 explains the meaning of ‘good character’ with reference to the judgment of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[11]
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
[11] Paragraph 4.3 citing Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432.
Paragraph 3.3 also provides guidance as to the meaning of the term ‘enduring moral qualities’:[12]
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
[12]Ibid.
It emphasises that in assessing good character it is necessary to view an applicant’s circumstances holistically:
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Paragraph 4 of CPI 15 provides the characteristics that are generally expected to be exhibited by a person of ‘good character’:
4. An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o other material deception during visa and citizenship applications;
o evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
o knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
o concealing criminal convictions;
o fraud against the Commonwealth such as tax fraud or Centrelink fraud;
o giving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
Paragraph 12 of CPI 15 sets out a framework for the consideration of any criminal offences:
12. Offences
12.1 Were offences disclosed if the applicant has a criminal record?
The current citizenship application, previous citizenship applications, visa applications and passenger card declarations may also be checked for an acknowledgement of criminal convictions.
Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. With convictions by overseas courts it may be necessary to take account of the independence of the judiciary in the particular country.
The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).
If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.
If the applicant has committed an offence, was it serious offence? For example:
·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death);
·war crimes, crimes against humanity, genocide;
·crimes against children;
·drug trafficking (including importation and supply);
·people smuggling;
·fraud (including identity fraud);
·harassment or stalking;
·terrorist activity;
·extortion;
·illegal pornography, including child pornography;
·breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
·offences incurring prison sentences of 12 months or more.
Cases involving a finding of not guilty by reason of mental impairment should be discussed with CICH prior to a decision being made.
Minor offences may include:
·shoplifting;
·some traffic offences that have been included in a criminal record. An ‘on the spot’ fine would usually have little weight in a character assessment, unless the applicant has a history of such fines. This disregard for the law may be relevant to the assessment of character;
·offences that lead to a finding of guilt but no conviction or sentence. In each Australian jurisdiction there are sentencing arrangements for summary offences (heard by a judge alone) where there is discretion not to record a conviction. A judge may take into account whether the offending is trivial, the antecedents of the offender, whether the chance of rehabilitation is high or it is otherwise appropriate to not record a conviction. Refer to CPI 33 – Prohibitions on approval.
Paragraph 12.2 of CPI 15 provides guidance to decision-makers in considering criminal convictions recorded against an applicant:
12.2 Assessing the relative seriousness of the offence
Consider the length of the sentence. Longer sentences carry more weight on a person’s character.
Are there any ongoing obligations such as a good behaviour bond?
Note: Subsection 24(6) of the Act prohibits citizenship being approved in such circumstances. Refer to CPI 33 – Prohibitions on approval.
Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information (parole reports may be on the s501 visa cancellation file, should such a file exist). In some cases, victim impact statements may be relevant.
It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, outlaw motorcycle gangs or youth gangs.
Consider whether there were victims of the offence?
If so, were the victims children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?
Is there a pattern of criminal behaviour?
A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.
Was the offence pre-meditated?
Sentencing remarks or court transcripts may provide insight into whether or not the judge was of the view that the offence was pre-meditated. That is, the person planned the offence. Pre-meditated offences would usually incur a heavier sentence, and therefore be given more weight in the assessment of character.
Paragraph 14 of CPI 15 provides a framework for decision-makers in weighing information:
14. Weighing information
In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:
·characterise the nature of any offence or behaviour
·is the offence serious or minor?
·did the offence harm other people?
·who were victims?
·is there a pattern of behaviour?
·was it a one off incident?
·were there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
·length of time since the offence was committed
·age at time of offence
·behaviour since completing prison sentence or obligations to court
·remorse regarding their offending behaviour
·community support (referee reports etc)
·changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
Paragraph 14.1 of CPI 15 outlines ‘mitigating factors’ relevant to the assessment of good character:
14.1 Mitigating Factors
Could the applicant be of good character despite the adverse information?
The discussion below expands on the points made above. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.
What is the length of time since the offence and conviction?
There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.
Has the applicant accepted responsibility and shown remorse for their conduct?
How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.
What was the applicant’s age at the time the offence was committed?
If the applicant committed the offence at a young age, the offence may be given less weight. The person may have matured and gained greater respect for upholding the law, and criminal offences from that period of life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences.
Were there any extenuating circumstances relating to the offence?
An offence committed as a result of duress or psychological disturbance (including disturbance caused by medications other than recreational drugs), may be given less weight. Any claims of mental illness should generally be supported by a report from a psychiatrist or psychologist. Decision-makers should discuss such cases with their supervisors and consult Citizenship Operations if necessary.
Is there any other evidence that the person is of good character?
Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.
Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.
It is open to decision-makers to contact individuals who have provided a referee report for the applicant.
Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose.
Paragraph 14.2 of CPI 15 guides decision-makers in weighing up the evidence:
14.2 Weighing up the evidence
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
·Would a person of good character behave the way the applicant did?
·What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
·Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
·Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
·Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
·Are there any other factors that are relevant to an assessment of the applicant’s character?
…
A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.
If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years. Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.
Paragraph 14.2 refers to Tribunal’s decision in Prasad and Minister for Immigration and Ethnic Affairs where it stated: [13]
[13]Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
ISSUE FOR DETERMINATION
The sole issue for determination by the Tribunal is whether the Applicant satisfies the ‘good character’ requirements of section 21(2)(h) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Migration to and life in Australia
The Applicant’s evidence is that his mother came to Australia when he was aged two years and he joined her here when he was aged 12. He lived with his mother, stepfather and nine siblings until he was aged 16. The Applicant’s stepfather did not want him to live at home, which led to arguments between him and his mother. The Applicant’s counsellor from Mission Australia, Ms Marissa Borromeo, came and spoke to the family.[14] The Applicant decided that it was better for him to leave home, and he moved to a refuge in Liverpool. He left that refuge because it was too far to travel to school in Canterbury, and he moved to another refuge in Bankstown close to his school.[15] He then started ‘couch-surfing’ because he could not afford to rent his own place.[16] He worked at KFC for a while to earn some money to pay rent.[17] At the age of 16, he applied to join the Defence force but was not accepted because his mother would not agree to sign the form giving him permission.[18]
[14] Transcript of proceedings, 19 July 2023, 20.
[15]Ibid.
[16]Ibid.
[17]Ibid, 26.
[18]Ibid, 24.
The Applicant left school during Year 12 when he was aged 17 or 18 years. He started a chemical engineering course at TAFE, but he did not finish the course.[19] In 2017, he enrolled at Macquarie University where he studied for about seven months. After the first Semester, he received a letter from the University requiring him to pay $3,000 in fees. He did not have the money to pay this amount, he could not get any financial help, and he was not eligible for HECS as he is not an Australian citizen. His ‘only option’ was to quit the course.[20]
[19]Ibid, 21.
[20]Ibid, 22.
After leaving University, the Applicant completed a number of certificates so that he could work in construction or in a warehouse so he could earn some money to pay his rent.[21] He worked in the freight warehouse of Qantas and in other warehouses doing pick-packing.[22] He applied again for the Defence force in 2019, but he was told that he was ineligible because the law had changed, and only Australian citizens were eligible to join.[23] He enrolled in a cyber security course at TAFE in 2021, but he did not complete it.[24] He re-applied for this course a month ago. The fees are $10,000 but he has applied for the fee-free course.[25] He does not know if he has been accepted into this course, even though it was due to begin the day after the hearing. He told the Tribunal that he planned to call TAFE after the hearing had concluded to find out whether he had been accepted.[26]
[21]Ibid, 22.
[22]Ibid, 26.
[23]Ibid, 24.
[24]Ibid, 23.
[25]Ibid, 23.
[26]Ibid, 25.
The Applicant said that he is currently renting his own place and is receiving Job Seeker payments. He recently had some casual work as an extra in a movie.[27]
[27]Ibid, 28.
Criminal offending in Australia
The Applicant’s National Police History Check Report dated 10 June 2022[28] records the following convictions:
[28]Section 37 T-Documents, T7, 101-102.
Court Court date Offence Court result Bidura Children’s Court 12 November
2014
Demand property in company with menaces w/i to steal-T1 12-month good behaviour bond under s 33(1)(b) of the Children’s (Criminal Proceedings) Act 1987 (NSW) Sutherland Local Court 22 January
2015
Stalk/intimidate intend fear physical etc harm (personal)-T2 18-month good behaviour bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) Sutherland Local Court 22 January
2015
Common assault-T2 18-month good behaviour bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) Sutherland Local Court 22 January
2015
Larceny-T2 12-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) Bankstown Local Court 29 April
2015
Travel or attempt to travel without valid ticket - adult $200 fine Bankstown Local Court 20 August
2015
Goods in personal custody suspected being stolen (not m/v) 6-month good behaviour bond under s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) Burwood Local Court 1 April
2016
Make/furnish a statement which is false/misleading $100 fine Burwood Local Court 1 April
2016
Goods suspected stolen given other not entitled (not m/v) 12-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) Burwood Local Court 1 April
2016
Behave in offensive manner in/near public place/school Conviction under s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) with no further penalty Burwood Local Court 1 April
2016
Assault police officer in execution of duty w/o abh- T2 12-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) Burwood Local Court 1 April
2016
Resist or hinder police officer in the execution of duty 12-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) Burwood Local Court 1 April
2016
Cross when pedestrian lights not green $100 fine Bankstown Local Court 25 March
2020
Shoplifting value
<=$2000-T2
$600 fine August 2014 offending
On 22 January 2015, the Applicant was convicted in the Sutherland Local Court of Stalk/Intimidate intend fear physical etc harm (personal)-T2 and Common assault-T2 and placed on bonds pursuant to section 9(1) of the Crimes (Sentencing and Procedure Act) 1999 (NSW) (‘section 9 bond’) that required him to be ‘of good behaviour’ for 18 months.[29] The Applicant was also convicted of Larceny-T2 and placed on a further 12-month section 9 bond.[30] He was directed to attend counselling at Mission Australia, the Barnados Streetwork Programme and Youth Off the Streets.[31]
[29]Summons material, R2 – R3, 6-9.
[30]Ibid, R4, 10-11.
[31] Section 37 T-Documents, T7, 102.
The facts underlying these convictions are recorded in a NSW Police Facts Sheet.[32] On 26 August 2014, the Applicant and his co-accused followed a woman as she exited Beverly Hills Railway Station at 11:07pm. The victim was so fearful of the Applicant and the co-accused that she stepped off the footpath onto King George’s Road (a main road consisting of three lanes with a 60km per hour speed limit) and tried to get the attention of passing motorists. The Applicant started running towards the victim, which caused her to fear for her physical safety, and he grabbed the victim’s wrist and said ‘look I’m black, you’re white. You don’t want to fuck me’. The victim screamed for help and a driver who was travelling along King George’s Road stopped and allowed the victim to get into her vehicle.[33]
[32]Summons material, R1, 2-5.
[33]Ibid, R1, at 3.
During cross-examination, the Applicant agreed that this offending was ‘very serious’ and that the victim would have been ‘terrified’.[34] He confirmed that he was affected by alcohol at the time. He explained to the Tribunal that he and his co-accused were not following the victim. He asked her what the time was before they got on the train at Wolli Creek. They boarded the train and they got off at the same station. She thought they were following her, but they were not. He told the Tribunal that he does not remember saying to the victim the words recorded in the Police Facts Sheet.[35]
[34]Transcript of proceedings, 19 July 2023, 7.
[35]Ibid.
Later in the evening on 26 August 2014, the Applicant and his co-accused walked across the road towards the Beverly Hills Cinema, where the Applicant called a female employee a “bitch” and a “slut” and threatened to wait for her to finish work to ‘rearrange [her] face’ and ‘cut her’ so that she ‘looks different tomorrow’.[36] When the victim moved behind the candy bar and picked up the phone to call the police, the Applicant attempted to reach around and grab her hair. The Applicant told the Tribunal that he was intoxicated at the time, and although he visited the cinema on this evening, he ‘never said’ those words to the victim, as he would ‘never even think about that kind of thing.’[37]
[36]Summons material, R1, 4.
[37]Transcript of proceedings, 19 July 2023, 8.
March 2015 offending
On 19 March 2015 (whilst still subject to the section 9 bonds),[38] the Applicant was involved in another incident at Bankstown Railway Station. According to the Police Facts Sheet,[39] the police observed the Applicant at about 11:00pm ‘having a verbal altercation’ with two other males. When the police approached him, he appeared to be ‘slightly intoxicated’ and was ‘argumentative’ with the police. When asked to do so, he was unable to produce a valid train ticket and when he was searched by police, they found the jacket he was wearing still had a store security tag attached to it. When questioned by police, the Applicant said he could not recall where or when he got the jacket. The Applicant told the Tribunal that the jacket was not his, and he had not stolen it. His friend had given him the jacket to wear because it was cold, and he did not know the tag was still on it. He said he does not remember being ‘aggressive’ towards the police.[40]
[38]Summons material, R6, 15.
[39] Ibid, R5, 12-14.
[40]Transcript of proceedings, 19 July 2023, 10.
On 20 August 2015, the Applicant was found guilty of the offence of Goods in personal custody suspected being stolen without proceeding to conviction, and he was directed to enter into a further bond pursuant to section 10(1)(b) of the Crimes (Sentencing and Procedure Act) 1999 (NSW) (‘section 10 bond’) that required him to be ‘of good behaviour’ for six months.[41]
[41]Summons material, R8, 19-20.
November 2015 offending
According to a Police Facts Sheet, on 23 November 2015, the Applicant was involved in an incident where he was stopped by police who were concerned for his safety after they observed him crossing the road nearby to the Canterbury Hotel in ‘a reckless and dangerous manner’.[42] The Applicant threatened the police, saying ‘I’m going to kill you let’s fight I can take you on’, repeatedly disobeyed their directions, and pushed a police officer on the chest, which caused the police officer to feel immediate pain and lose his balance. The Applicant was arrested but he was not interviewed because he was ‘moderately intoxicated’ and continued to be ‘verbally aggressive’.[43]
[42] Summons material, R9, 21-24.
[43]Ibid, 24.
The Applicant told the Tribunal that on this occasion he had been drinking with friends in the park and when he was waiting for the train to go home, two officers came onto the platform and arrested him.[44] He pleaded guilty to the offences on the advice of his legal aid lawyer.[45] The Applicant was convicted by Burwood Local Court on 1 April 2016 of Resist or hinder police officer in the execution of duty and Assault police officer in execution of duty w/o abh-T2 and sentenced to further section 9 bonds.[46]
[44]Transcript of proceedings, 19 July 2023, 12.
[45]Ibid, 13.
[46]Section 37 T-Documents, T7, 102.
September 2019 offending
On 25 March 2020, the Applicant was convicted of Shoplifting value <=$2000-T2.[47] The NSW Police Facts Sheet records that on 3 September 2019, he stole a bottle of wine and a gift bag from Dan Murphy’s before returning to the store and then attempting to steal a bottle of whisky.[48] The Applicant confirmed in his oral evidence that he stole a $5 bottle of wine. During cross-examination, he agreed it is not acceptable to steal.[49] He said he does not know what he was thinking at this time.[50]
[47]Ibid.
[48]Summons material, R13, 35-36.
[49] Transcript of proceedings, 19 July 2023, 13.
[50]Ibid, 14.
Anti-social behaviour
New South Wales Police incident reports[51] record that on 21 January 2016, the Applicant was cautioned for urinating in a public place.[52] He also refused to abide by transport regulations over a lengthy period, with the most recent transport incident occurring on 1 June 2021.[53]
[51]Summons material, R15, 40- 136.
[52]Ibid, R10, 27.
[53]Ibid, R15, 44-45 48, 50-54, 56-60, 63, 66-68, 72.
A New South Wales Police incident report records that at about 11:30pm on 10 November 2022, the Applicant was involved in an incident at a hotel in the Sydney CBD when he was asked to leave because he was ‘well intoxicated’.[54] The Applicant was ‘aggressive and argumentative’, swore at a hotel security guard and resisted attempts to remove him from the premises. The police attended the scene, and the Applicant was ‘moved on’ from the area.[55] The Applicant told the Tribunal that he was not aggressive towards the security guard, and he did not swear at him or push a table towards him. He said that the security guard was aggressive towards him.[56] He claims he was asked to leave because he had been drinking wine that he had not purchased at the hotel which he had poured into a water bottle that was in his bag.[57] He told the Tribunal that he was not asked to leave the hotel because he was intoxicated.[58] He said he thought he was permitted to take his own alcohol into the hotel.[59]
[54]Ibid, R15, 40.
[55]Ibid, R15, 40-41.
[56] Transcript of proceedings, 19 July 2023, 16.
[57]Ibid, 20.
[58]Ibid, 19.
[59]Ibid, 20.
Dishonesty in dealings with the Government
As part of his application for citizenship, the Applicant was asked: ‘Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia?’ In response to this question, the Applicant declared “No”.[60]
[60]Section 37 T-Documents, T4, 70.
During cross-examination, the Applicant was asked why he answered ‘No’ to this question. He said he ‘made a mistake’.[61] He did not agree that he said ‘No’ to the question to improve the prospects of him being granted citizenship.[62]
[61] Transcript of proceedings, 19 July 2023, 5.
[62]Ibid, 6.
Rehabilitation and remorse
In his Statutory Declaration dated 5 July 2022, the Applicant stated: [63]
[63]Section 37 T-Documents, T9, 106-107.
I have committed several offences breaking the law in Australia and I have repented my actions and behaviour.
As I matured I have made conscious effort to stay away from troublesome behaviour and focus on activities like job seeking, studying, looking after my mental health by playing sport like soccer and enjoying the company (sic) my friends by visiting each other and having the mindset of becoming a better personal (sic) every day and committed to uphold and obey the laws of Australia by living the life according to high moral standards.
In his oral evidence, the Applicant told the Tribunal he has ‘matured’[64] and wants to be a ‘better person’ and not commit crimes.[65]
[64] Transcript of proceedings, 19 July 2023, 33.
[65]Ibid, 27.
During cross-examination, the Applicant agreed that alcohol has been a factor in his offending behaviour.[66] He told the Tribunal that he has not consumed alcohol for two months and he has engaged in Mission Australia alcohol programs for young people.[67] He said that he is ‘not an addicted person’ and he does not crave alcohol. When he goes out now with his friends, he will have ‘one or two standard drinks.’[68] He knows that alcohol has made him engage in bad behaviour in the past. He was young and was hanging around with his friends who were drinking.[69]
[66]Ibid, 18.
[67]Ibid, 19.
[68]Ibid.
[69]Ibid.
The Applicant was asked what he believes has been the impact of his offending on his victims. He said that he does not want to offend anymore.
Community involvement
The Applicant told the Tribunal he wants to be a ‘good person’ in his community and ‘help out the community in any way’ he can.[70] Recently, he has become involved in organising social activities for teenagers in the Ethiopian and Eritrean community and helping them out when they have problems.[71]
[70]Ibid, 27.
[71]Ibid, 29.
From 2014 to 2019, the Applicant played soccer for his community and was involved in the SC Milan Academy.[72] He participated in annual tournaments and, for the past two years, he has been involved in the annual NSW African soccer tournament in Sydney. He played for the Cameroon team and was sponsored by the Western Sydney Wanderers.[73] He continues to train on a weekly basis.[74]
[72]Ibid.
[73]Ibid, 30.
[74]Ibid.
Plans to study
The Applicant told the Tribunal that he wants to be granted Australian citizenship so that he can undertake further study. He plans to enrol in a Bachelor of Cyber Security at Western Sydney University and, when he graduates, he wants to get a job in the information technology field.[75]
[75]Ibid, 27.
Grant of Australian citizenship
During his oral evidence at the hearing, the Applicant agreed that being granted Australian citizenship is a privilege.[76] He said he understands that ‘Australians are expected to treat each other with dignity and respect regardless of their race, country of origin, age, gender, ethnicity, culture, wealth, or religion.’[77] He knows that committing offences is ‘no good’ and that he needs to change himself, become ‘good’ to his community and ‘stay away from bad behaviours’.[78]
Character evidence
Marissa Borromeo, Adolescent and Family Counsellor, Mission Australia
Ms Borromeo provided a character reference for the Applicant dated 27 June 2022. She is employed as an Adolescent and Family Counsellor with Canterbury Bankstown Youth Service, Mission Australia. She has known the Applicant in this capacity since he was about 12 years old, and she has carried out counselling and case management for the Applicant and his mother. She observed the Applicant at the Belmore Youth Resource Centre where he participated in drop-in activities and was a very active member of a Young Men's Support Group. She found the Applicant to be ‘always extremely polite, very pleasant and a joy to be with and [he] got on very well with other young people who attended the Youth Centre. [His] behaviour towards all the workers and other young people was always appropriate and respectful and was never out of line or inappropriate.’ Whereas she is aware that the Applicant has ‘been involved in offences in the past’, she can attest that he ‘has managed to tum his life around and avoid getting into trouble with the law by engaging in his passion for playing soccer and enjoying time with his good friends.’ She is aware that he has ‘engaged in several TAFE courses like Cyber Security and Disability Services Course and is waiting to be accepted in a Software Development Course.’
Biruk Markus Bogale, Secretary of Ethiopian and Eritrean Youth Association
[76]Ibid, 28.
[77]Ibid.
[78]Ibid.
Mr Bogale provided a character reference dated 28 March 2023. He met the Applicant 15 years ago at their local Ethiopian Orthodox Church and community soccer team. He states that the Applicant ‘is a very generous, kind, and well-mannered person who treats everyone with love and respect.’ Having spent ‘a good amount of time’ with the Applicant, he has come ‘to realise how caring, hardworking, and thoughtful he is overall.’ He confirmed that the Applicant has ‘been heavily involved in the Ethiopian and Eritrean Youth Association in NSW [and] he has been volunteering and taking part in every event that [they] have been hosting.’ The Applicant also ‘attends the local Ethiopian soccer team which he has been part of for more than 10 years and is also a dedicated member.’ Mr Bogale states that he is ‘happy to let you know how honest, dependable, peaceful, and conscientious [the Applicant] is with everyone he meets’ and that it is a ‘great honor (sic) for [him] to know [the Applicant] and he considers it ‘a privilege to be his friend.’
CONSIDERATION AND REASONS
The sole issue for determination by the Tribunal is whether the Applicant satisfies the requirements of section 21(2)(h) of the Act which requires it to decide whether he is of ‘good character’.
The meaning of ‘good character’
The term ‘good character’ is not defined in the Act. The Full Court of the Federal Court has found the term is to be interpreted broadly:[79]
… Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…
[79]Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, [60].
There have been numerous Federal Court decisions on the meaning of ‘good character’ and the application of the good character test. The classic exposition of the meaning of this term is found in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (‘Irving’).[80] Lee J stated:[81]
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
[80](1996) 68 FCR 422.
[81]Ibid, [431]-[432].
The question of whether a person is or is not of ‘good character’ is primarily an issue of fact.[82] As Davies J remarked in Irving:[83]
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
[82] Irving v Minister for Immigration Local Government and Ethnic Affairs at [424] per Davies J (with whom Nicholson J concurred).
[83]Ibid, [427]-[428].
In Minister for Immigration and Ethnic Affairs v Baker, the Full Federal Court stated:[84]
The words “good character” in this section should, as Lee J pointed out in Irving (at 431-432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.
[84](1997) 73 FCR 187 at [197].
In Fenn and Minister for Immigration and Multicultural Affairs,[85] Deputy President Breen discussed the character requirement for citizenship:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home … The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
[85][2000] AATA 931 at [8].
In determining whether it is satisfied that an applicant for citizenship is of ‘good character’, the Tribunal is “entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act”.[86]
[86]Drake v Minister for Immigration and Ethnic Affairs(1979) 46 FLR 409 at [420] per Bowen CJ and Deane J.
Paragraph 14.2 of CPI 15 refers to the decision in Prasad and Minister for Immigration and Ethnic Affairs,[87] in which the Tribunal explained:
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
Is the Applicant of ‘good character’?
[87][1994] AATA 326 at [7].
Criminal offending
Based on the evidence before it, the Tribunal finds for the reasons which follow, that given the seriousness of the offences for which the Applicant has been convicted, which include threatened and actual acts of violence, and the relative recency and frequency of his offending, it is not satisfied that he has the ‘enduring moral qualities’ characteristic of ‘good character’.
The Applicant’s criminal history includes convictions for 16 offences in the five-year period from 12 November 2014 to 25 March 2020. Paragraph 4 of CPI 15 outlines particular categories of offences which, by their nature, are considered to be more serious. Specifically, it recognises that an applicant of good character would not be violent, and not cause harm to others through their conduct. The Applicant has been convicted of several violence-related offences, including Common Assault and Assault, and his criminal behaviour has involved real or threatened harm to other people, including Stalk/intimidate intend fear physical etc harm (personal) -T2. The Tribunal finds that the Applicant’s criminal behaviour is contrary to Australian societal values and that his offending is serious.
Paragraph 12.2 of CPI 15 recognises that a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that an applicant for citizenship may not ‘uphold and obey’ the law if citizenship is conferred on them. The Applicant’s repeated offending from August 2014 to September 2019 displays a pattern of behaviour involving violent and aggressive behaviour, including against women and police officers, and theft of property. Given the relative recency, seriousness and frequency of the Applicant’s offending, the Tribunal cannot be satisfied that he will uphold and obey the laws of Australia should his application for citizenship be approved.
Dishonesty in dealings with Government
In Taradel and Minister for Immigration, Local Government and Ethnic Affairs,[88] the Tribunal observed:
[88][2005] AATA 1255 at [23].
Dishonesty in dealings with the department is a very serious matter ... [because] the integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history ... When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.
Paragraph 4 of CPI 15 recognises that a person of good character would not practise deception or fraud in their dealings with the Australian Government, for example they would not intentionally provide false personal information or other material deception during visa and citizenship applications or conceal criminal convictions.
The Applicant provided false information in his citizenship application by failing to disclose that he has been convicted of numerous criminal offences. The Tribunal does not accept his oral evidence that he made a ‘mistake’ when he answered ‘No’ to the question in the application form which asked whether he had been convicted of, or found guilty of, any offences overseas or in Australia. The Applicant completed schooling to Year 11, he has studied at University, and he is fluent in English. The Tribunal finds that he would have understood the question and made a conscious decision not to disclose his criminal convictions. The Tribunal finds that the Applicant’s deceptive behaviour indicates that he does not have characteristics expected of a person of good character, specifically providing truthful information and making full and honest disclosures of criminal convictions when requested to do so in their dealings with government.
Mitigating factors
Acceptance of responsibility and remorse for conduct
Paragraph 14.1 of CPI 15 recognises the relevance of an applicant for citizenship accepting responsibility and showing remorse for their conduct to an assessment of ‘good character’.
The evidence before the Tribunal is that the Applicant has not taken responsibility for his criminal offending, and he continues to deny that he acted in the manner recorded in the Police Facts Sheets relevant to his offending. In relation to his criminal behaviour towards two women in August 2014 that resulted in the January 2015 convictions, he denies that he stalked one victim and used verbally abusive and threatening language towards both victims, notwithstanding that he was convicted of Stalk/Intimidate intend fear physical etc harm (personal)-T2 and Common assault-T2He similarly denies that he pushed a police officer in November 2015, despite him being convicted of Assault police officer in the execution of duty w/o abh – T2 in April 2016. He also denies verbally abusing a security guard in November 2022, contrary to the record in the NSW Police incident report.
The Applicant’s downplaying of his criminal behaviour and his apparent inability or unwillingness to appreciate that his violent and threatening actions and offensive language directed towards women, police officers and security staff are unacceptable, and not consistent with the behaviour of a person who treats women and people with authority with respect, indicates that he is not a person who takes responsibility for his actions. The Tribunal cannot therefore be satisfied that the Applicant’s attitude towards his offending indicates that he possesses the ‘enduring moral qualities’ characteristic of a person of ‘good character’.
The Applicant has not expressed remorse for his criminal offending. In his Statutory Declaration dated 5 July 2022, the Applicant states that he ‘repents’ his offending, but he did not elaborate on this general statement. In his oral evidence, he did not indicate any remorse for his criminal behaviour and, as outlined above, he either denied that he acted violently or aggressively or was abusive towards his victims or, in the case of his conviction for Shoplifting in March 2020, he simply stated that he did not know what he was thinking.
There is no evidence to indicate the Applicant has any insight into the impact of his actions on his victims or the broader community. When he was asked during cross-examination about his appreciation of the impact on his victims of his offending, he did not provide a response other than to say that he does not intend to re-offend.
On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant has taken responsibility for his offending nor that he appreciates that his criminal behaviour would have likely caused psychological if not physical harm to his victims, particularly the women whom he threatened and verbally abused in August 2014. Accordingly, the Tribunal finds that the Applicant does not exhibit the characteristics expected of a person of good character.
Length of time elapsed since the offences were committed
Paragraph 14.1 of CPI 15 recognises that in the case of a serious offence, a significant amount of time may have to pass before the Tribunal could be satisfied that the person is of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.[89]
[89] Part 14.1 CPI 15.
Although it has been nearly than three and a half years since the Applicant’s last recorded conviction, there is no ‘rule of thumb’ for establishing how much time must pass for a person to demonstrate that they are now of good character.[90] The Respondent contends that three years is not a sufficient period for the Applicant to establish he is of good character, particularly given the serious nature of his offending in 2014 and 2015, and the anti-social behaviour he demonstrated at the city hotel as recently as November 2022.[91]
[90]CPI 15, T3, 52.
[91] RSFIC, 10.
The Tribunal does not consider that sufficient time has elapsed for it to be satisfied that the violent offences the Applicant committed in 2014 and 2015 were out of character for him. In making this finding, the Tribunal has had regard to the seriousness of the Applicant’s criminal conduct. The Tribunal notes that paragraph 14.1 of CPI 15 provides that in determining the period of the enduring/lasting moral qualities of an applicant, the nature of the offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. In Assafiri and Minister for Immigration and Border Protection, Senior Member Toohey stated that the passage of a period of time since the applicant’s offending is not itself demonstrative of their ‘enduring moral qualities’:[92]
[92][2014] AATA 35 at [67].
Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
Relevant to a determination of whether a sufficient period of time has elapsed since the Applicant’s most recent offending is his refusal to take responsibility for his violent offences and his inability or unwillingness to appreciate their impact on his victims, specifically the two women and the police officer. That the Applicant has not yet taken responsibility for his offending nor appreciated its effect on his victims indicates that more time is necessary for him to accept that his behaviour was criminal, consistently with what would be appreciated by a person of good character.
The Tribunal cannot be satisfied that the Applicant is a person of good character after the passage of only four years since his most recent offending. The serious nature of the Applicant’s criminal behaviour, coupled with his reluctance to accept responsibility for his actions, are such that the Tribunal finds that the passage of time is insufficient for it to be satisfied that the Applicant has demonstrated the ‘enduring moral qualities’ associated with ‘good character’.
Age at the time of the offences
Paragraph 14 of CPI 15 recognises that if an applicant offended at a young age, the offence may be given less weight, but this will depend on the nature of the offending and any subsequent offences.[93] The Applicant was convicted of his first offence in November 2014 when he was a minor. He continued to offend for the next five years as an adult until September 2019 when he was aged 23 and he committed the offence of Shoplifting for which he was convicted in March 2020. The Applicant’s age at the time of his most recent offending demonstrates that him growing older has not enhanced his maturity or respect for authority, nor tempered his propensity to offend. Accordingly, the Tribunal cannot be satisfied that the Applicant has exhibited the ‘enduring moral qualities’ associated with ‘good character’.
[93] Part 14.1 CPI15.
Behaviour since completing obligations to the court
Paragraph 14 of CPI 15 recognises the relevance of an applicant’s behaviour since completing any obligations to the court relevant to their convictions. Although the Applicant has not been convicted of any further offences since March 2020, he has continued to engage in anti-social conduct attracting the attention of police. Only nine months ago in November 2022, the Applicant was ‘moved on’ by police from the city hotel where he had reportedly been aggressive towards a security guard. This very recent anti-social behaviour indicates that the Applicant has not yet developed the characteristics of a person of good character.
Changes in the Applicant’s life
Paragraph 14 of CPI 15 encourages decision-makers to have regard to any positive changes in the life of an applicant for citizenship since their offending. The Applicant claims that he has “matured” and is now focused on study, sport and finding employment. He provided an email dated 16 February 2023 which offers him the opportunity to enroll in a Diploma in Information and Communications Technology Extended – ICT at Western Sydney University. In his oral evidence, he confirmed that he has not commenced this course or any other course of study. Whereas the Applicant has recently applied for a cyber security course at TAFE, he has not taken steps to find out whether he had been accepted into it, despite the fact the course commenced the day following the hearing.
The Applicant has had some paid employment since his most recent convictions, but he has not obtained ongoing work or obtained any further qualifications. In recent years the Applicant has been involved with the activities of the Ethiopian and Eritrean community and he has played soccer and participated in sports tournaments. The Applicant’s efforts to find employment, undertake further study and his positive engagement with his community indicate that he is taking steps to engage in activities that will assist him to develop the characteristics of a person of good character.
The Applicant’s evidence is that he has reduced his alcohol consumption in the past couple of months and he acknowledges that alcohol was a contributor to his criminal offending. The Tribunal finds that whereas the Applicant’s recent reduction in his alcohol intake is a positive development, the period of time that this has occurred is too limited for the Tribunal to be satisfied that he has made a permanent change to his drinking habits.
Other evidence demonstrating ‘good character’
The Applicant provided character references from Ms Borromeo and Mr Bogale to support his claim that he is a person of good character. Ms Borromeo’s observations that the Applicant is ‘always extremely polite, very pleasant and a joy to be with’ related to a period when he was engaged in serious criminal offending, and therefore is difficult for the Tribunal to accept.. Her understanding that the Applicant has ‘engaged in several TAFE courses like Cyber Security and Disability Services Course and is waiting to be accepted in a Software Development Course’ is not accurate. Mr Bogale’s observation that the Applicant is ‘honest, dependable, peaceful, and conscientious … with everyone he meets’ is difficult to reconcile with him having been convicted of Larceny and Shoplifting, and him providing false information in his citizenship application. Accordingly, the Tribunal has placed limited weight on this evidence in assessing whether the Applicant has demonstrated the ‘enduring moral qualities’ associated with ‘good character’.
CONCLUSION
The grant of Australian citizenship is a privilege not bestowed lightly.[94] In determining whether the Applicant is of good character for the purposes of section 21(2)(h) of the Act, the Tribunal is required to reach an ‘affirmative belief’ that the Applicant is a person of good character.[95]
[94]Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
[95]BOY19 v Minister for Immigration and Border Protection [2019] FCA 574; (2019) 165 ALD 39 at [55].
There is insufficient evidence before the Tribunal for it to reach an affirmative belief that the Applicant is of good character. Despite almost four years having passed since the Applicant’s most recent offending, his offences have been serious, and some have involved actual or threatened violence against women and police officers.
There are some mitigating factors weighing in the Applicant’s favour including his attempts to find a suitable course of study, him obtaining some paid employment, his voluntary involvement with youth activities organised by his community, his participation in sporting events and tournaments, and the reduction in his alcohol intake, but these are outweighed by the seriousness of his offending.
Having considered the Applicant’s circumstances and weighing the available evidence, the Tribunal is unable to make a positive finding of ‘good character’ in relation to the Applicant. Accordingly, the Tribunal finds that the Applicant does not satisfy section 21(2)(h) of the Act.
This conclusion does not preclude the Applicant from making another application for citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he does meet the ‘good character’ requirement for the grant of Australian citizenship.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
.................................[SGD].......................................
Associate
Dated: 4 September 2023
Date(s) of hearing:
19 July 2023
Applicant:
Self-represented
Solicitors for the Respondent:
A. Zinn, Mills Oakley Lawyers
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