He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2023] AATA 3420

He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 3420 (10 October 2023)

Division:GENERAL DIVISION

File Number(s):      2022/9686

Re:Scott Chien-Guo He

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

­RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:10 October 2023

Place:Sydney

The decision under review is set aside and remitted with a direction that the applicant is of good character, satisfying paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

.

............................[SGD]............................................

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether the applicant is a person of good character under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – where the applicant possessed prohibited drug - where the applicant supplied prohibited drug – consideration of relevant material, law and policy – decision under review set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)

CASES

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

10 October 2023

1. Scott Chien-Guo He, the applicant, is a citizen of Taiwan. He first arrived in Australia on 2 January 2016 on a Holiday Maker (Subclass 417) visa.

2. On 15 April 2020, the applicant was found guilty by the Downing Centre Local Court of New South Wales of 2 counts of possess prohibited drug, and one count of supply prohibited drug < = small quantity - T2 (offending conduct). The applicant was sentenced to a conditional release order without conviction for 6 months for the offence possess prohibited drug commencing 15 April 2020 and concluding 14 October 2020. For the offence of supply prohibited drug <= small quantity - T2, the applicant was sentenced to a conditional release order without conviction for 18 months commencing 15 April 2020 and concluding 14 October 2021. The applicant was ordered to continue to attend psychological counselling for as long as advised by his healthcare professional and to abstain from illicit drugs.

3. On 27 October 2021, the applicant lodged an application for Australian citizenship by conferral. He was provided an opportunity to comment on adverse information, being the offences as detailed above.

4. On 27 October 2022, the applicant’s citizenship application was refused as the delegate of the Respondent was not satisfied that the applicant is of good character, and therefore found that the applicant did not meet the requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). This is the decision under review in these proceedings.

   Good character

5. The issue for the Tribunal's determination in this matter is whether the Tribunal can be satisfied that the applicant is of good character, pursuant to paragraph 21(2)(h) of the Act.

6. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement] (the Policy).

7. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

8. As to the definition of good character, Justice Davies of the Full Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [424-425], [427- 428]:

   The question whether a person is or is not of “good character” is primarily an issue
   of fact. …

   It should also be observed that the term “good character” is not precise in its
   denotation. In one sense, it refers to the mental and moral qualities which an
   individual has. In another sense, it refers to the individual’s reputation or repute …
   Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention needs to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. …

   …

   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 readily be recognised, in a particular case view 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.

9. Justice Lee observed at [431-432]:

   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 while the latter is a review of subjective public opinion…

10. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated 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 and overseas. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

11. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    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. (Emphasis added)

12. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. 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 several 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.

    Mitigating Factors and Consideration

13. The applicant's offending is serious, as it involves drug offending including both possession and supply (small quantity), which poses a risk to the Australian community. For the offending conduct, the applicant was found guilty, and he was sentenced to a conditional release order without conviction. The applicant was also ordered to attend psychological counselling and to abstain from illicit drugs.

14. The applicant’s offending conduct is described in the New South Wales Police Facts Sheet, as follows:

    'Police located 3 x capsules of MDMA, 3 x containers of 'G' and a further 2 x MDMA capsules wrapped in cling wrap, separately to the others which were seized by Police…the accused later took part in an electronically recorded interview where he made admissions to being in possession of the 3 x MDMA capsules and 3 x containers of 'G' for himself, however had intentions of supplying the further 2 x MDMA capsules to a friend.'

15. In sentencing remarks, Magistrate Trad in the Downing Centre Local Court, on 15 April 2020, noted '…the supply charge, even though it is a small amount, is very serious.' In relation to supply, he noted, 'When I say supply, it is because you were intending to give it to a friend. Whether or not you see yourself as a drug dealer, as such, it is not the issue. The issue is that, through you, somebody else will have access to illegal drugs, and that is dangerous. At the end of the day, it is not the most serious example of supply, but supply will always be considered serious because of the very danger it puts other people in and the risk that it poses to the community. [Emphasis added].

16. I do agree with the respondent’s concession at hearing that the applicant’s offending conduct was at the “lower end” of the scale of seriousness given the quantities involved and that the applicant had no other criminal record.

17. It is accepted that the applicant has made some efforts to rehabilitate and has expressed remorse for his offending. The applicant has expressed regret and remorse for his actions in two statutory declarations dated 8 September 2022 and 12 May 2023. He also expressed responsibility, remorse and insight into his offending when giving oral evidence at hearing.

18. The applicant has provided a report by Ms Delphine Bostock, Forensic Psychologist, dated 2 December 2022. Ms Bostock reported that the applicant had accepted full responsibility and had expressed remorse for his offending. Ms Bostock noted that the applicant 'acknowledged that what he did was wrong and that he was carried away with the atmosphere and his peers. The Applicant stated that recreational drug use was normalised amongst his peers.' Ms Bostock considered that the applicant had 'demonstrated insight into his offending and has made appropriate changes in his life to avoid any future violations of the law' and assessed that the applicant presented a 'very low risk of reoffending' based on the Level of Service/Case Management Inventory assessment.

19. Ms Bostock does mention in her report that the applicant described some occasional recreational drug use in his past. The significance of this admission to previous drug use has limited weight given that the applicant has not been charged or convicted of any other drug related offences, other than those described in the applicant’s offending conduct. The applicant reported he had not used drugs since his arrest.

20. The applicant has provided evidence of his charitable donations to DrugArm, which focuses on the challenges of drug dependency, including physical withdrawal since March 2020.

21. The applicant attended on the SMART recovery program on 06 March 2020, 29 March 2020, 07 April 2020, 10 April 2020, and 12 April 2020. The program is in the form of support sessions and ‘is a person‐centred and strengths-based approach to supporting self‐management, empowerment and enduring behaviour change.’ The meeting structure includes:
    
    

    1. Building and Maintain motivation
    2. Learning to cope with urges and cravings
    3. Problem Solving
    4. Finding Lifestyle Balance

22. The applicant submits that he learned a lot from the sessions he attended with the SMART recovery program, including learning about the underlying reason for offending, recognising drug use was not right and learning ways to move forward. The five sessions of attendance were deemed sufficient by the applicant as he has no drug addiction or dependence issues.

23. I do note that the Conditional Release Order to which the applicant was subject to was in place until October 2021. A relatively limited period of time has lapsed, since the applicant has been free of his obligation to the Court, however, considering the applicant’s steps towards rehabilitation, I am convinced that sufficient time has elapsed since his offending conduct.

24. The applicant has extensive ties to the community, with friends and colleagues providing character references. I also note that the applicant intends on marrying his de facto partner, Benjamin Tan.

25. Mr Tan has provided a number of character references for the applicant and appeared at hearing to give oral evidence. He confirmed that he was aware of the applicant's conviction and gave evidence that he strongly believed the applicant’s offending conduct was out of character for the applicant. Mr Tan’s evidence highlighted the applicant's efforts to be a productive member of the community, including his charity work with DrugArm, and his career in real estate. Mr Tan confirmed at hearing that the applicant has expressed remorse and had sought counselling to assist with his mental health. He also confirmed that the applicant had cut off all contact with his previous social circle who were involved in the offending conduct.

26. Jarred Baker, the applicant’s mentor and friend of three years has provided a character reference and gave evidence orally at hearing. He referred to the applicant's offending and indicated, among other things, that the applicant's offending was out of character and that the applicant has reflected on the situation and has expressed remorse. He described the applicant as “fit and healthy” and that he had “pulled back” from social events that may be conducive to drug use. Mr Baker was very positive about the applicant’s character and future, describing him as kind, generous and motivated.

27. Other character references included are from the applicant’s friends, Antonious Surjanegara, Nicholas Tomkinson, Hao-Yuan Teng, Heng-Chia Chang, Dr Kevin Oreo and Steven Gaspardis, all of whom speak positively of the applicant, consider that the applicant's offending was out of character and note that the applicant has expressed remorse for his offending.

28. Since his offending conduct, the applicant has successfully completed a Diploma of Financial Planning and has attained a Certificate IV in Real Estate Practice. He has embarked on a very promising career with Location Property Group and has provided various positive online reviews in relation to the applicant's role.

29. Leda Ahmadzai, Senior Property Manager at Location Property Group, has provided a positive character reference for the applicant and appeared at hearing to give oral evidence. She referred to the applicant's offending and indicated, among other things, that the applicant was a valued asset to the Location Property Group Team, noting that the applicant has worked for this company for two years. She stated, “[the applicant] is loved by all the team, he is very polite, proactive and dedicated to his job and completes all tasks on time. [the applicant] has plans to further develop his real estate career. During the employment, he has completed a Real Estate licence course and is now a licensed agent. [the applicant] is a hard-working person and he is planning to go into Property Sales in the near future.”

30. The applicant has contributed positively to the Australian community through his work, the payment of income taxes, and through his positive relationships.

    Decision

31. The decision under review is set aside and remitted with a direction that the applicant is of good character, satisfying paragraph 21(2)(h) of the Act.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..................................[SGD]....................................

Associate

Dated: 10 October 2023

Date(s) of hearing:	19 September 2023
Solicitor for the Applicant:	Ms A Wan, Brightstone Legal Pty Ltd
Solicitor for the Respondent:	Mr O Morris, Clayton Utz