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

[2020] AATA 2387

Jacquett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2387 (21 July 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4013

Re:Lee Raymond Jacquett

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:21 July 2020

Place:Sydney

The decision under review is affirmed.

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

Mr Rob Reitano, Member

CATCHWORDS

CITIZENSHIP – Australian citizenship by conferral – refusal of citizenship application – Australian Citizenship Act – whether applicant satisfies requirements under section 21(2) – whether applicant of good character at the time of the decision – apprehended violence order – failure to disclose contravention – Citizenship Policy – meaning of ‘good character’– decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21(2)(h)

CASES

Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660

Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639

Singh and Minister for Immigration and Border Protection [2019] AATA 1406

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Mr Rob Reitano, Member

21 July 2020

1. Lee Raymond Jacquett (Mr Jacquett) has applied to become an Australian citizen under the Australian Citizenship Act 2007 (Cth) (Act). A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) rejected his application because the delegate could not be satisfied that Mr Jacquett was of good character at the time that the application was determined, which is a requirement under ss.21(2)(h) of the Act that Mr Jacquett must satisfy in order to become an Australian citizen.

2. Mr Jacquett seeks a review of that decision because he says that the delegate should have been satisfied that he is of good character.

3. I have decided to affirm the delegate’s decision although for different reasons to those of the delegate because the delegate did not have the same information that I have. These are my reasons for that decision.

   FACTS

4. Mr Jacquett was born in 1977 in Mexborough, South Yorkshire, England. He is a citizen of the United Kingdom. He came to Australia on 7 March 2005 and was granted a permanent visa on 16 July 2009. He has lived in Australia since then.

5. Mr Jacquett made his Application for Australian Citizenship by completing and lodging the relevant form that he signed on 13 June 2017 and filed a week later (Application). The Application contained a declaration, which was the second in a series of acknowledgments or declarations in a series of eleven bullet points. The declaration was at the end of the Application and said:

   ‘I declare that the information I have supplied in this form is complete, truthful and correct in every detail’.

6. Immediately after the acknowledgements there appeared Mr Jacquett’s signature. By his signature, he was attesting to the fact that what he had written in the Application was complete, truthful and correct in every detail. As things turned out it was not.

7. In the Application Mr Jacquett disclosed three criminal convictions for offences that occurred in England before he came to Australia. They were an offence against public order in 1998, damage to property in 2001 and affray in 2004. For those offences he received penalties by way of conviction for each offence and 100 hundred hours community service for the first offence, and 150-pound fines for the second and third offences. Mr Jacquett did not disclose any other criminal offences in the Application.

8. In an undated document prepared for the Tribunal hearing Mr Jacquett gave an outline of the circumstances of each offence and referred to a further offence at about the same time that involved similar kinds of conduct. The first arose because of a scuffle outside a pub one night after which an all-in brawl ensued in which Mr Jacquett involved himself. The second arose after Mr Jacquett had been ‘service refused’ because he was intoxicated so that in anger he struck and damaged a car wing mirror as he left. The third involved Mr Jacquett ‘defending’ himself when he was ‘attacked’ by another man, after which he left and ran away. Nothing about those offences seems all that remarkable, it is only necessary to observe that they were things that happened a long time ago and probably would not, as I have later found, impact on an assessment of Mr Jacquett’s character today. There was not the slightest suggestion in any of the evidence or other information before the Tribunal that those kinds of things informed a present-day assessment of Mr Jacquett’s character. Nor was it significant that one of the offences had been left off the Application. As with the other matters it happened a long time ago, it was of the same nature as those other offences and was likely to have been easily forgotten.

9. What did not find its way into the Application was that on 22 September 2011 Mr Jacquett was convicted of an offence of contravening a prohibition/restriction in an apprehended violence order (contravention) and fined $750. Mr Jacquett explained in the undated document that he prepared for the Tribunal the circumstances that gave rise to the apprehended violence order, concerning as it did a strained domestic relationship involving his partner being violent towards him (but not him being violent to her) and the contravention. Mr Jacquett after explaining the circumstances leading up to the making of the apprehended violence order referred to the circumstances of his contravening in the following terms:

   On one particular occasion of breaching a condition that set at court, I made a phone call to her. I was stuck at work and was unable to collect my son from day care. Being disappointed with me that I could not collect him, she contacted the police to report me for making contact.

10. The police records that were produced to the Tribunal do not accord with Mr Jacquett’s account other than the fact that the apprehended violence order had its origins in a strained domestic relationship and that on 18 February 2010, before the apprehended violence order was issued or contravened, Mr Jacquett had thrown ‘a green pepper about the size of a tennis ball’ at his partner. The police records tell rather of a history of apparent non-compliance with the apprehended violence order over the two years since it was first made on 19 February 2010. The various alleged contraventions involved attendances at his partner’s house, and the sending of offensive text messages and other communication by email about matters that were in contravention of the terms of the order. I do not consider any of those matters to be of any relevance to the issues that I am required to deal with, because the Application did not ask about them and there seems to be no reason to disclose them. They were not the subject of criminal charges and they were not explored in evidence before the Tribunal. The police records very much are based on say so, hearsay, and by and large tell only one side of the story. I have not taken any of those matters into account.

11. More relevantly though are matters that occurred in the immediate lead up to 22 September 2011 when Mr Jacquett was convicted and fined for the contravention. In the days before 22 September 2011 Mr Jacquett sent a series of text messages to his then partner which were in their terms very offensive. One of them read ‘I’ve been doing some work for a guy in the city who does Botox if your (sic) interested I can get you a good deal…let me know he’ll sort you out’. Another read ‘I struggle with his mother being a pissed-up coke tramp’. (The reference to ‘his’ was a reference to his and his partner’s child, the reference to ‘mother’ was a reference to his partner). Another read ‘I know you were fucking around I got told while we were together…what you scared of’. There were some other text messages as well. The apprehended violence order only permitted communication in relation to transfer of the child. The text messages were not about that. It was for that which Mr Jacquett was charged, pleaded guilty, convicted and fined $750.

12. Mr Jacquett frankly admitted to the Tribunal that he had sent the text messages that I have quoted and the others to his then partner. He said that he was ‘not proud of those text messages’. His statement to that effect was genuine. He also said, and I accept as truthful, that ‘no-one knows about those text messages’ and ‘it’s embarrassing; I don’t want to tell anyone about those text messages’. He described his conduct in sending the text messages as ‘pathetic’. The last statement was made with reference to questions about what he had told the people who had written testimonials for him, but it probably, as I refer to below, went further. I was impressed with his evidence about these matters because it appeared genuine and had an air of truth and reason about it. One can well understand why Mr Jacquett was not proud of the text messages, why he was embarrassed and why he did not tell anyone about them. Even though it would have been reasonably difficult for him to deny the text messages themselves I accept that he was not proud of them or, indeed, much of what occurred over the period 2009 to 2011. I accept that he was in fact remorseful for the contravention. I reject the submission that suggests he was not. His being embarrassed or ashamed about the text messages, as he said he was, is not at all inconsistent with remorse.

13. Mr Jacquett said that the explanation he gave for the contravention in the material filed with the Tribunal was from ‘his point of view’ or ‘how he saw things’. He referred to the fact that he considered that his partner had reported the contravention effectively as an act of retribution for him having told her that he was on one occasion around that time unable to collect his young son from childcare as had been planned. Even if that is so it does not satisfactorily explain that what he wrote was not ‘complete, truthful and correct’. That is, he was unable to explain why he had not put the full story before the Tribunal. In fact, so far as the Application was concerned, he did not put any of the ‘story’, let alone the ‘full story’ in it. Mr Jacquett explained albeit belatedly, that the reason he had not included the contravention in the Application was because he had filled out two forms and one of them had not included that offence. He claimed, it seems, that he filed the wrong form.

14. I do not accept Mr Jacquett’s explanations for omitting the contravention from the Application or the detail of it from the material filed with the Tribunal. Although ultimately it may not matter a great deal, I find that Mr Jacquett did not include reference to the contravention in the Application because he was in fact ashamed and embarrassed about it. For much the same reason he was not frank in the material he provided to the Tribunal. Again, even if he gave a version of events from ‘his point of view’ he did not tell the Tribunal those parts of the story that he was ashamed of and embarrassed about. In any event it his omission of information about the contravention from the Application and the full and complete circumstances in which it occurred from the material filed with the Tribunal which lead inexorably to the finding that Mr Jacquett did not provide full and complete information in the Application and was less than fully frank in the material he provided to the Tribunal.

15. Mr Jacquett brought evidence both of a character nature and about some matters relevant to the circumstances that prevailed at the time of his relationship breakdown. None of that evidence went to the issue that concerns Mr Jacquett’s failure to disclose the offence he committed on 22 September 2011 in the Application or the full details of it in the document he filed in the matter before me.

16. I should not leave the background of the matter without observing that the history of the relationship between Mr Jacquett and his partner leading up to the contravention on 22 September 2011 was a long way from a happy time for anyone, no doubt including Mr Jacquett. The symptoms all too often associated with relationship breakdown involving young children were all on display at the time. The circumstances are probably ones that most people who are involved would prefer to forget.

    ISSUES

17. The issue is whether the Tribunal can be satisfied that Mr Jacquett is ‘of good character’ as that expression is to be understood in ss.21(2)(h) of the Act.

18. There are three specific issues that need to be considered: first, whether Mr Jacquett’s failure to disclose in the Application his criminal offence in Australia in September 2011 stands in the way of the Tribunal being satisfied that he is of good character; second, whether his failure to disclose those matters fully and frankly to the Tribunal means that the Tribunal cannot be satisfied about his good character; and thirdly, whether the circumstances that took place in 2011 themselves are a reason to find that Mr Jacquett is not of good character.

    GOOD CHARACTER

19. I am required to be satisfied, positively persuaded, that Mr Jacquett is of good character. The question as to what constitutes good character involves an evaluative judgment about social values and norms. It calls for an assessment of what community attitudes and community expectations are or might be. The assessment is value laden, and should not reflect the decision maker’s values, but rather those of the community more generally.

20. In Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660 (Irving) Davies J observed that ‘the drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant is of "good character" requires the exercise of a value judgment’ and that ‘there are no precise parameters which distinguish "good character" from "bad character"’.[1] Fairly viewed there will often be no right or wrong answers. This is so even accepting that the decision to be made is not one that turns upon an individual decision maker’s own subjective belief, but one that is made having regard to community standards. There will be many cases where the issue is a fine judgment call and where there is or may be different views about what the community standard might be. There is much to disagree about when it comes to questions of character and questions of good or bad.

    [1] at [23].

21. The Citizenship Policy does not define the term ‘good character’. It does though direct attention to a consideration of the characteristics a person has demonstrated over a long period of time, the capacity to distinguish right from wrong, and behaving in an ethical manner and conforming to the rules and values of Australian society. The Citizenship Policy explicitly invites an answer to the question ‘would a person of good character have behaved the way the applicant did?’. It is necessary of course to consider all the circumstances of any wrongdoing and any mitigating factors in order to determine how, or whether, the conduct reflects on character.

22. The Citizenship Policy identifies a series of indicators of ‘good character’ which involve obedience to the law, honesty, the avoidance of conduct that harms others and the absence of associations with those who engage in illegal or anti-social behaviour.[2] In this matter it is clearly the question of ‘honesty’ that is in issue, although something needs to be said about the criminal offending even though it is not at the heart of the matter.

    [2] See the discussion in Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639 at [51].

23. It should not be thought that one single matter will necessarily be determinative of the matter of character, but in some cases, like this one, the matter may be so at the heart of ‘enduring moral qualities’ that it irresistibly counts against a satisfaction about good character. In simple terms honesty is an attribute that the community generally would expect to be ever present in a person of good character. A person of good character would not be dishonest.

24. The reference to ‘long period of time’ arises because the Citizenship Policy refers to an expectation that the applicant has demonstrated good character over a ‘lasting or enduring period of time’. Character is something that is to be demonstrated over time and while the particular circumstances of each case will be important usually the examination will extend back, at least for some period, from the date of any application, or more accurately from the date that the satisfaction about character needs to be made, in this case the date upon which the application is determined.[3] Character is not frozen in time. Nor is it quickly proven.

    [3] Citizenship Policy: Chapter 11 at p 150.

25. In dealing with each of the issues here one aspect of good character expressly identified in the Citizenship Policy is ‘honesty’. It would come as no surprise in contemporary Australian society that honesty is one of the hallmarks that the community attributes to people of good character. There are very many decisions of the Tribunal that have dealt with the issue of frankness and candour as being, although but one factor, as I have said a very important factor that attaches itself to good character.[4] In many cases that frankness and candour has been considered in the context of applications for visas or citizenship or more generally in dealing with government officials and departments. Those cases speak uniformly and in one direction only: people of good character are frank and honest in all of their dealings.

    [4] See, for example, Beyan and Minister for Immigration and Border Protection [2015] AATA 256; Singh and Minister for Immigration and Border Protection [2019] AATA 1406 and the cases referred to at [119].

26. In the view I take it does not generally matter where the failing emerges from so long as it is not trifling or insignificant and long long ago in time; it is difficult to conceive of a circumstance in which a demonstrable and recent lack of candour about a matter of significance could not adversely affect an assessment of good character. Both an Application for Citizenship and a proceeding before the Tribunal are significant matters; the former all the more so because it expressly required information about things adverse to an applicant, criminal convictions, and contains a declaration that the information being provided is ‘complete, truthful and correct in every detail’. In simple terms the form itself brings home to an applicant the importance of what is being provided, if for some reason that had managed to escape their attention.

27. I have found earlier that Mr Jacquett omitted from the Application reference to the contravention. I have not accepted Mr Jacquett’s explanations for the omission of the contravention from the Application. I also do not accept Mr Jacquett’s explanation for why he omitted to include a full and complete explanation for that offence in the material he filed with the Tribunal. In relation to both the Application and the material filed with the Tribunal Mr Jacquett did not demonstrate candour and frankness in relation to those matters. They were matters of considerable importance. Although I have found that the explanation for those omissions lay in Mr Jacquett’s shame and embarrassment about the contravention that is not a matter in the view I take, that can be considered as exculpatory or in that in some way operates to excuse or mitigate the seriousness of Mr Jacquett’s failure to frankly and fully disclose the circumstances of the contravention. A person of good character would have disclosed everything about what happened surrounding the contravention and would not have limited the information provided to the Tribunal to their own view of what happened.

1. Mr Jacquett’s omission from the Application was recent, the Application having been filed in June 2017. His omission from the document filed with the Tribunal explaining his offences, including the contravention, was even more recent, coming about in November 2019 when he filed it with the Tribunal. The recency of both matters mean that they impact both adversely and significantly on any satisfaction that Mr Jacquett is of good character.

2. I should add for completeness that if I were only considering Mr Jacquett’s record of criminal offending I would have been satisfied that he was of good character. It is not necessary to detail my reasons for that conclusion given my finding about the things Mr Jacquett did not disclose in the Application and to the Tribunal.

3. I should say two things. First, his offences in England are very many years ago and the sentences involved reflect that they were not considered to be serious offences at the time. Second, the contravention was a serious offence involving as it did disobedience to a Court order and very offensive behaviour directed to his former partner. Despite that it too occurred many years ago and it too was subject to a lenient sentence reflecting that the Court did not consider that the matter was at the high end of seriousness. But more significantly as I have found Mr Jacquett is so obviously very remorseful about what he did, being both genuinely contrite and ashamed of his conduct. Further, his description of his behaviour as ‘pathetic’ demonstrates his real insight into his wrongdoing.

4. It follows that I reject completely the Minister’s submission that the circumstances of the omission from the Application, or the material provided to the Tribunal are indicative that Mr Jacquett might commit the same offence again.

   CONCLUSION

5. I am unable to be satisfied that Mr Jacquett is of good character because of his failure to disclose in the Application his criminal conviction on 22 September 2011 for contravening a prohibition/restriction in an apprehended violence order for which he was fined $750, and because of his failure to fully and frankly disclose that offence and the circumstances in which it was committed to the Tribunal.

6. I affirm the delegate’s decision to reject Mr Jacquett’s Application for Citizenship filed on 20 June 2017.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 21 July 2020

Date(s) of hearing:	25 June 2020
Applicant:	In person
Solicitors for the Respondent:	Mr M Gao, Australian Government Solicitor