GJRL and Minister for Immigration and Border Protection

Case [2015] AATA 76

[2015] AATA 76 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/2445

Re

GJRL

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal

John Handley, Senior Member
Date 13 February 2015  
Place Melbourne

The decision under review is set aside and in substitution it is decided that the applicant is eligible to become an Australian citizen.

......[sgd]..................................................................

John Handley, Senior Member

CITIZENSHIP – application for citizenship by conferral – finding that applicant was not of good character – applicant arrived in Australia aged 5 and now 35 years – offended on multiple occasions and annually between 1995 and 2003 and again in 2007 – offending first occurred as a teenager – section 501 notice in 2004 was not contested – applicant lawfully returned to Australia in 2005 – subsequently married, became a father, obtained secure employment with substantial salary – strong supportive family network – forensic psychologist found the applicant at low risk of recidivism – decision set aside

Legislation

Australian Citizenship Act 2007 section 21(2)(h)

Cases

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552
Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372
Sui and Minister for Immigration Citizenship [2008] AATA 1062

Secondary Materials

Australian Citizenship Instructions (1 July 2014)

REASONS FOR DECISION

John Handley, Senior Member

13 February 2015

  1. The applicant arrived in Australia with his parents from Tonga on 9 February 1985 when he was five years of age. Save for about 12 months when he was eight or nine years of age and 14 months between 2004 and 2005, the applicant has lived in Australia. He was granted permanent residency on 13 November 2009. He applied for citizenship by conferral on 19 November 2012. A delegate of the Minister refused the application on 23 May 2014. This application was initiated to review that decision.

  2. The delegate decided, pursuant to the provisions of s 21(2)(h) (reproduced below) of the Australian Citizenship Act 2007 (the Act) that she was not satisfied the applicant was of good character.

    (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.

  3. In short, it was contended that the applicant has a significant criminal history which demonstrated that he is not of good character at the date of review.

  4. At this stage it is appropriate to draw attention to a number of issues that arose during and at the conclusion of the hearing and which can conveniently be addressed by reference to a decision of the Tribunal in Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372 (Zheng) (and other authorities discussed later). By regard to…

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AGLC
GJRL and Minister for Immigration and Border Protection [2015] AATA 76
Case
[2015] AATA 76
Decision Date

CaseChat Overview and Summary

In the case of GJRL and Minister for Immigration and Border Protection, the applicant sought conferral of Australian citizenship. The primary legal issue before the court was whether the applicant was a person of good character at the date of the review, as required by the legislation. The court considered the applicant's past criminal record and his efforts to improve his circumstances, including his employment, education, and family responsibilities. The court also considered the enduring moral qualities of the applicant, as defined by relevant case law and the Australian Citizenship Instructions.

The court determined that the applicant had demonstrated good enduring moral qualities through his stable employment, education, and family responsibilities. The court found that the applicant had turned his life around and was now a valuable member of the Australian community. The court also noted that the applicant had taken responsibility for his past mistakes and had made significant efforts to improve his character. The court concluded that the applicant was a person of good character and was therefore eligible for conferral of Australian citizenship.

The court's decision was based on a comprehensive analysis of the applicant's circumstances and character. The court considered the applicant's past criminal record, but also took into account his efforts to improve his life and become a responsible member of the community. The court's decision highlights the importance of considering an applicant's potential for rehabilitation and personal growth when determining their eligibility for citizenship. The court's decision also emphasizes the significance of the applicant's enduring moral qualities and their ability to uphold the values and obligations of Australian citizenship.

The final orders of the court were that the application for conferral of Australian citizenship be granted. The court found that the applicant was a person of good character and was therefore eligible for citizenship. The court also noted the applicant's significant personal achievements and his commitment to becoming a responsible member of the Australian community. The court's decision provides important guidance for future applicants seeking citizenship and highlights the importance of considering an applicant's potential for rehabilitation and personal growth when determining their eligibility for citizenship.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is worth also recording at this stage that the applicant’s circumstances have been well known to the Department of Immigration and Border Protection for many years, either by applications initiated by the Minister from time to time or applications initiated by the applicant, namely:·at or about the time that the sentence following the convictions of December 2003 ended, the applicant was served with a notice pursuant to s 501 of the Migration Act1958 (the Migration Act) and he was taken into immigration detention. Although documents in relation to that event are not within the T-documents, it would appear that a delegate of the Minister decided the applicant did not pass the character test because he had a substantial criminal record (s 501(6) and (7)). The applicant did not challenge that decision and voluntarily left Australia and returned to Tonga.·In April 2004 the applicant’s fiancée lodged a Prospective Marriage Visa application, the intention being to permit him to return and lawfully stay in Australia. He was then sponsored by her (she later became his wife). That application was refused. An application to review that decision was lodged and heard in this Tribunal on 14 April 2005. The applicant gave evidence by telephone from Tonga. On 10 June 2005 Deputy President Wright decided that the decision under review should be set aside. The Minister did not challenge that decision and the applicant returned to Australia on 10 September 2005.·On 16 February 2009, the applicant was advised that the Minister was considering cancellation of his visa and issuing a notice pursuant to s 501 of the Migration Act. His past convictions, including the sentence in March 2008, were noted (T40, page 323). The applicant was invited to respond, which he did on 25 March 2009. On 29 October 2009, a representative of the Minister advised that she would not pursue that application (T40, pages 316-317). ·Two weeks later, on 13 November 2009, the applicant was granted permanent residency.EvidenceThe Applicant A number of statements and letters which had been completed by the applicant were received into evidence. Amongst them was a statement he completed on 28 February 2004 whilst he was in immigration detention (Exhibit A3). Most of the information contained within it was analysed during cross-examination however it is relevant at this stage to briefly summarise it as follows:(a)Shortly after arriving in Melbourne from Tonga, the applicant was enrolled in a local primary school. At the end of year three, he returned to Tonga with his mother where he stayed for about 12 months. He returned to Australia and completed primary school and then enrolled in a local high school. He played Australian rules football in a suburban league and was part of a premiership team in his second year. His secondary education was progressing well until during year eight when he arrived home one day and observed his mother in a very distressed state. He learnt that his father had been apprehended by immigration officers and was placed in detention. The applicant now understands that his father had overstayed his visa.(b)The applicant’s mother moved him and his brothers into a relative’s home in another suburb and from that time the applicant became rebellious, in the absence of a father figure. He ran away from home, mixed with poor company and commenced offending.(c)When his father eventually returned to Australia, the applicant resumed secondary education and progressed to complete year 11. At about that time the applicant was playing competitive rugby in a school’s competition, he was selected as a member of an under 16 Victorian team that played interstate and was selected to tour Great Britain in the following year but declined because his family was unable to meet the costs of accommodation and air fare.(d)At the completion of year 11 the applicant declined an offer of a carpentry apprenticeship and chose to work in premises where his mother was also employed. Unfortunately, work slowed and he was engaged only for two days each week. He resumed his association with others and resumed offending. He obtained work as a concreter which he enjoyed but was retrenched 12 months later. At about that time he met his fiancée. He later commenced living with her in premises also occupied by her mother and sister.(e)His fiancée was aware of his offending and his consumption of drugs. She counselled him and asked him to think about turning (himself) into the police in relation to offences he had committed. The applicant recorded he was then depressed and fearful of doing so and decided to shoplift, knowing that he would be caught. He was charged with a number of offences and convicted on 1 December 2003. He served three months imprisonment and entered into immigration detention at the expiration of his sentence.

Decision

Reasons for decision

Ms Matthews concluded at page 8 of her report:In the writer’s view the overwhelming aspects of [the applicant’s] presentation is that he impresses as having worked hard to become a stable husband and father, a good employee, to gain an education and qualifications, and that he sought to be a man of good character. Further it is the writer’s view that his capacity to persist with these goals over a seven year period has been a significant personal achievement of which he can be proud of.Conclusion and Reasons for Decision The applicant has applied for conferral of citizenship. Many previous decisions of this Tribunal and the Federal Court referred to conferred citizenship being a privilege and a responsibility. I agree. In this application the issue to be determined is whether the applicant is a person of good character at the date of the review. To make that finding requires more than an examination of whether the applicant, if he were to be a citizen, would conduct himself responsibly and honour the privilege of membership of the Australian community. The Act in its preamble expresses the intention of Parliament that persons conferred with citizenship become members of the Australian community who holds a common bond involving reciprocal rights and obligations. That involves an undertaking to accept the obligations of pledging loyalty to Australia and its people, sharing democratic beliefs, respecting rights and liberties and upholding and obeying Australian law. Those obligations are without controversy because they of course meet the expectations of persons who are Australian citizens. But the expectation of whether the applicant will honour the undertaking as the preamble anticipates, will depend on whether he is now a person of good character. In the absence of the words good character being defined by the legislation, I am influenced by and adopt the findings in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. Davies J at page 425 said the words good character refers to the mental and moral qualities which an individual has. Lee J at page 431-432 said those words referred to the enduring moral qualities of a person and not the good standing, fame or repute of that person in the community. The Australian Citizenship Instructions (ACIs) at 10.3.1 record that the phrase enduring moral qualities encompass·characteristics which have been demonstrated over a very long period of time·distinguishing right from wrong·behaving in an ethical manner, conforming to the rules and values of Australian Society. The ACIs, also at 10.3.1 record: The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics. This broad definition means that 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 … and throughout… their citizenship processes.

Ratio Decidendi

Legal Principle Established

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