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

[2022] AATA 3383

Jok and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 3383 (17 October 2022)

Division:GENERAL DIVISION

File Number(s):      2021/1911

Re:Juma Jok

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mr S Evans, Member 

Date:17 October 2022

Place:Sydney

For the reasons stated below, the reviewable decision dated 1 March 2022 is set aside and the matter is remitted to the Respondent for reconsideration with a direction that the Applicant is a person of good character who satisfies paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth)

...............................[Sgd].........................................

Mr S Evans, Member

Catchwords

CITIZENSHIP — Application for Australian citizenship by conferral — Good character requirement — Whether the Applicant is of good character under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) — Where the Applicant had been convicted of criminal offences — Where the Applicant failed to disclose criminal conviction in application — Where the offences occurred a substantial period of time in the past — Decision set aside and remitted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Secondary Materials

Australian Citizenship Policy Statement

Revised Citizenship Procedural Instructions 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

17 October 2022

Introduction

1. Juma Jok (the Applicant) is a 34 year old citizen of Sudan who first arrived in Australia on 21 September 2004[1] as the holder of a Global Special Humanitarian (Subclass 202) visa.[2] On 5 November 2019 he lodged an application for Australian citizenship by conferral.[3]

   [1] T5/126

   [2] T2/12

   [3] T2/12

2. On 27 January 2021 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) wrote to the Applicant inviting him to comment on adverse information contained in the results of his National Police History Check Report. The Applicant did not respond to the invitation or provide any comments.[4]

   [4] Respondent’s Statement of Facts, Issues and Contentions, [15], see also T20/194-201

3. On 1 March 2021 a delegate of the Respondent refused his application having found that he was not of ‘good character’, which is one of the requirements for Australian citizenship.[5] The Applicant contends that he meets the character requirements for conferral of Australian citizenship and seeks review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal).[6] 

   [5] T2/8-9

   [6] T1/4

4. For the reasons that follow, the decision of the delegate will be set aside.

   Legislative and policy framework 

5. Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (the Act) provides that a person may make an application to the Minister to become an Australian citizen. 

6. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen. 

   Determining questions of character

8. The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

   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.[7]

   [7] (1996) 68 FCR 422, 431 – 432.

9. The Department’s official guides to decision makers include both the Australian Citizenship Policy Statement (the Policy Statement), which details the overarching legislative requirements for becoming an Australian citizen, and the Revised Citizenship Procedural Instructions (the Instructions). The Policy Statement provides context to the Instructions. The Instructions provide guidance for decision makers, including the Tribunal. CPI 15 - Assessing Good Character under the Citizenship Act provides guidance when determining whether an applicant is of good character.

10. Informed by the discussion in Irving, subsection 3.3 of the Instructions state 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 their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.[8]

    [8] ST1/56

11. The Instructions specifically call for decision makers to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[9] A person’s enduring moral qualities encompass:

    ·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.[10]

    [9] CPI 15, section 14, see ST1/70.

    [10] CPI 15, section 3.3, see ST1/56

12. It is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so. The Tribunal is guided by the considerations outlined above when determining whether the Applicant meets the good character requirement for Australian citizenship.   

    Issue

13. The issue to be determined by the Tribunal is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Act.

    Evidence

    The Applicant’s offending and other conduct

14. The Applicant’s criminal history consists of four convictions relating to two incidents, the first occurring on 4 October 2005 (the first offence) when he was 17 years of age, and a second on 14 August 2016 (the second offence) when he was 28 years old.

    The first offence

15. The details of the first offence are set out in a police facts sheet dated 5 October 2005. In summary, on 4 October 2005 the Applicant was in the company of a large group of seven to ten people. Police officers were concerned the group may be threatening to residents and shoppers in the CBD and ‘that a violent act was going to occur’.[11] Police officers stopped one of the members of the group who was carrying a piece of wood.[12] Police attempted to restrain the person and the Applicant left the scene and returned with a one-foot piece of wood. The police facts state it appeared that one of the group was going to assault a police officer who was restraining one of the group. When another member of the group intervened before that occurred he was ‘set upon’ by the Applicant, who struck him 5 or 6 times to the head. The Applicant was wrestled to the ground and capsicum sprayed because he was resisting. He was then arrested. [13]  

    [11] Respondent’s Tender Bundle, R2/6

    [12] Respondent’s Tender Bundle, R2/6

    [13] Respondent’s Tender Bundle, R2/7

16. The Applicant appeared in Lidcombe Children’s Court where he was convicted of Resist officer in execution of duty – T2, Assault occasioning actual bodily harm – T2 and Have custody of offensive implement in a public place and sentenced to a six-month good behaviour bond for each offence.[14]

    [14] T19/193

    The second offence

17. On 14 August 2016 the Applicant was involved in an incident inside a bar in Canberra. The Australian Federal Police (AFP) Statement of Facts sets out the details of the offending. The Applicant was with a friend who refused to follow directions from crowd controllers to leave the premises. The Applicant took hold of his friend in an attempt to remove him but his friend would not leave the bar. The crowd controllers were required to use force to remove both the Applicant and his friend from the premises.[15]

    [15] Respondent’s Tender Bundle, R8/23

18. Shortly after, it is recorded that a melee erupted during which several people began fighting with crowd controllers out front of the bar, including the Applicant who is reported to have thrown several punches towards a crowd controller.

19. Police arrived during the melee and observed the Applicant in a ‘fighting stance’. He was taken into custody by police. After observing CCTV footage of the incident police attempted to contact the Applicant so that he may participate in an interview.[16] Unable to reach him, the Applicant was charged with Affray – T1 and convicted in the Australian Capital Territory Magistrates Court and sentenced to a 6 month good behaviour bond.[17]

    [16] Respondent’s Tender Bundle, R8/23

    [17] Respondent’s Tender Bundle R9/26

    Other conduct   

20. The Applicant’s driving record includes a number of offences for which he has received infringement notices. These include Driver use mobile phone while not permitted recorded in June 2016[18] and Use vehicle not comply with standard: tyres in August 2016[19] and Use vehicle not comply with standard brake lights in September 2016.[20] 

    [18] Respondent’s Tender Bundle R11/33

    [19] Respondent’s Tender Bundle R11/33

    [20] Respondent’s Tender Bundle R11/32

21. When he submitted his application for citizenship the Applicant failed to disclose his criminal convictions and traffic offences in his application for citizenship. Question 39(a) of the application states ‘[h]ave you been convicted of, or found guilty of, ANY offences overseas or in Australia…?’ to which the Applicant answered ‘no’.[21] 

    [21] T4/122

    The Applicant’s evidence

22. The Applicant was questioned about his offending and gave evidence that he was under the influence of alcohol during the first offence. He said he was 17 years of age and claimed ‘I was not thinking’ at the time.[22]

    [22] Transcript of proceedings dated 1 July 2022, 4

23. In relation to the second offence the Applicant gave evidence that he was the designated driver on the evening in question and was ‘not drunk’. He conceded pleading guilty to the second offence but claims to have done so because he had by that time moved from Canberra to Sydney and did not wish to travel back to Canberra to appear in court.[23] The representative of the Respondent sought to clarify the Applicant’s account of the second incident during cross-examination:

    Respondent’s representative:  Okay.  But in your view, you weren’t guilty, is that what you’re saying, or - - -?

    Applicant: In my view, the assault 2005, I can say I was wrong because I was under influence of liquid, which is alcohol, and I can say I was wrong in that one.  But 10 years later (indistinct) Canberra, I wasn’t drunk anyway, so I know what I was doing like just defending myself, that’s all.[24]

    [23] Transcript of proceedings dated 1 July 2022, 7

    [24] Transcript of proceedings dated 1 July 2022, 7

24. When taken to the AFP Statement of Facts document[25] detailing the circumstances of the offending, the Applicant claimed not to have been aware of the document. The Applicant’s recollection was that one of his friends was involved in a fight at the bar, and he was holding his friend to make sure he did not fall down the stairs. Both he and his friend fell to the ground at which time one of the crowd controllers began punching him whilst on the ground.[26]

    [25] Respondent’s Tender Bundle, R8/22-25

    [26] Transcript of proceedings dated 1 July 2022, 16

25. Whilst he accepted the conviction as recorded, it was the Applicant’s evidence that he is not a violent person and argued this should be accepted as he has no convictions for being violent since he was 17. He acknowledged that the second offence does not appear to support his argument, but he attributed the offending to being ‘in the wrong place at the wrong time’, rather than him seeking to be involved in or instigating violence.[27]

    [27] Transcript of proceedings dated 1 July 2022, 7

26. When asked why he was not drinking alcohol on the occasion of the second offence, the Applicant told me he stopped consuming alcohol in 2013 following a liver infection.[28] 

    [28] Transcript of proceedings dated 1 July 2022, 18-19

27. Regarding his traffic offences the Applicant was asked about the circumstances that led to his drivers licence being suspended. He explained that he was driving a truck at 65km/h when a temporary speed restriction was in place which he had forgotten about. He received a $1400 fine and 6 demerit points. His license was suspended and he was unable to work as a truck driver for three months, during which time he did temporary work.[29] 

    [29] Transcript of proceedings dated 1 July 2022, 15-16

28. The Applicant has two children and claims his responsibilities as a parent have changed him. In retrospect he observed his offending behaviour was ‘dumb and stupid’ as he was wasting time when he was young and ‘just hang[ing] around, with no job, nothing, not even studying’.[30]

    [30] Transcript of proceedings dated 1 July 2022, 14

29. His daughter lives with her mother in Melbourne and his son lives with his grandmother. His son’s mother is currently being held in immigration detention. The Applicant gave evidence that he pays child support through a private arrangement with his son’s grandmother.[31] He provides $200 each fortnight to support his son in addition to paying for clothes, shoes and ‘anything he needs’ for school and in addition to activities when they spend time together.[32]

    [31] Transcript of proceedings dated 1 July 2022, 17

    [32] Transcript of proceedings dated 1 July 2022, 18

30. The Applicant has lived with his mother since 2015 and provides care for her. He told the Tribunal that caring for her was ‘simple’ and involved shopping, mowing the lawn and cleaning the house. Thought the Applicant and his mother attend different churches, he also drives her to church.[33] 

    [33] Transcript of proceedings dated 1 July 2022, 15

31. When asked why he applied for citizenship, the Applicant’s explained that a series of conversations with his brother and phone calls from his cousins overseas led him to question his mother about his father, who he was led to believe was dead. His mother confirmed that contrary to his long-held understanding, his father was in fact living in South Sudan. He explained that his mother’s generation can be ‘heartless’ owing to having experienced hardships including war or slavery. It was the Applicant’s desire to visit his father and reconnect with his sisters who are residing in Egypt that prompted his application for citizenship.[34]

    [34] Transcript of proceedings dated 1 July 2022, 22-23

32. When questioned about his failure to declare his convictions in his application, the Applicant explained that he answered ‘no’ to the question asking if he had any criminal convictions because he ‘did not have the evidence’. He indicated that he understood if he answered ‘yes’ he would be expected to obtain information relating to the convictions himself. As he did not have information relating to his convictions, he decided it was best to answer ‘no’. He also told the Tribunal that he thought the question related to any offending that may have taken place outside of Australia.[35]

    [35] Transcript of proceedings dated 1 July 2022, 18

    Application to the Tribunal and references

33. On 27 January 2021 the Respondent’s Department wrote to the Applicant inviting him to comment on adverse information contained in the results of his National Police History Check Report. The Applicant did not respond to the invitation or provide any comments.

34. Following the rejection of his application by a delegate of the Respondent, the Applicant sought review of the decision at the Tribunal. Where asked ‘why do you think the decision is wrong?’ the Applicant wrote that he did not ‘have the court information or how [sic] to get the court information’.[36]

    [36] T1/5

35. The Applicant failed to comply with the Tribunal’s direction of 20 October 2021 and did not attend a directions hearing which was adjourned until 20 January 2022. The Applicant participated in the rescheduled directions hearing and was required to provide the Tribunal and the Respondent a statement from each lay witness that he proposed to call at the hearing and all reports, records and other documents on which he intended to rely at the hearing by 4 February 2022.

36. The Applicant subsequently provided an undated reference letter from Gary Reznikov and the same letter signed by three other individuals including Dr Darios Adrinao who writes ‘I have known Juma Jok as a patient’. 

37. The reference letter states that the Applicant is of ‘sound character and honest and reliable’. It also confirms that the Applicant’s colleagues provide positive feedback about him and ‘enjoy his company as he is always positive and funny to be around’. 

    Consideration

38. The Respondent contends that the Applicant is not of good character on account of his violent offending and failing to declare his offending in his citizenship application. The Respondent argues the applicant has demonstrated neither regret nor remorse in relation to his offending, nor given any other reason why he should be considered of good character.

39. I found the Applicant to be a credible witness who did his best to assist the Tribunal and provide honest answers when questioned during the hearing – even where they did not reflect well on him.

40. During cross-examination, he told the Tribunal that he did not have a good memory, particularly in relation to numbers and dates:

    For me, sometimes I don’t know how to train myself, like I get confused in the middle so sometimes I say words I am not supposed to say, like which is – when I start explaining myself, I get nervous sometimes, yes, so sometimes I say things I am not supposed to say.[37]

    [37] Transcript of proceedings dated 1 July 2022, 23

41. The Applicant’s nervousness was evident during the hearing and he experienced difficulty recalling other facts and details relating to his application. When asked he conceded he struggled with instructions and sending email which was why he asked his friend Butros to help him complete his application.[38] The Applicant also claimed to work from 5am through to 8pm, and the long hours leave him little time to check and respond to email.[39]

    [38] Transcript of proceedings dated 1 July 2022, 11

    [39] Transcript of proceedings dated 1 July 2022, 11

42. The Applicant’s evidence indicated that it was for these reasons he failed to respond to emails from the Department and Tribunal throughout the application and appeal processes - notably the natural justice letter inviting him to comment on his offending and an invitation to attend the second directions hearing.[40]

    [40] Transcript of proceedings dated 1 July 2022, 10

43. Based on the evidence, I am satisfied that the Applicant’s failure to respond to the Department and Tribunal was due to him finding the application process confusing. His difficulty managing his administrative obligations was exacerbated by his onerous working hours.

44. Regardless of the challenges the Applicant faced, I accept the Respondent’s submission that the character reference he provided lacks any context or useful information which may assist the Tribunal in establishing if he is a of good character.

1. When presented with his criminal offending the Applicant did not seek to downplay his offending but was able to provide meaningful context to the offending and relevant information as to his circumstances.

2. The Applicant did not dispute his failure to declare his convictions in his application for citizenship. It is apparent from his evidence and the reason he provided for applying to the Tribunal that he was of the understanding that he would be required to source any records relating to his convictions. He did not know if these records existed or if they did, how to access them. Instead, he chose the expedient alternative of ticking the box marked ‘no’. Whilst I do not consider it was an attempt to mislead, his failure to be open and honest on his application is serious and counts against a finding of good character.

3. In considering the Applicant’s offending, I acknowledge his most serious offence occurred when he was just 17 years of age and had only been living in Australia for approximately a year. His age at the time of the offence, that it occurred in 2005 and the insight he has into the circumstances of the offending are mitigating factors.

4. In relation to the second offence the Applicant recalls being arrested in a chaotic situation in which he was not drunk but his friends were. He claims not have hit anyone or been hit himself, but he was involved in a ‘melee’, and was arrested and capsicum sprayed. His account of not having been involved in physical violence is inconsistent with the AFP Statement of Facts, which states the Applicant took a ‘fighting stance’ and threw several punches towards a crowd controller. Nonetheless, I accept that the Applicant did not play an active role in instigating the violence. 

5. In considering the Applicant’s overall circumstances it is apparent that he has faced significant challenges throughout his life. He arrived in Australia in 2004 aged 16. His most serious offending occurred shortly after in 2005. 

6. It was only when asked about his experience of arriving in Australia that the Applicant told the Tribunal he found it difficult to understand the rules and the culture when he first arrived in Australia. He explained he did not understand ‘things’, he did not know what was right and he had problems communicating in English.[41] The Applicant also told me he arrived in Australia with his mother and two cousins, one of whom committed suicide shortly after his arrival.[42] 

   [41] Transcript of proceedings dated 1 July 2022, 21

   [42] Transcript of proceedings dated 1 July 2022, 20-21

7. This information was not volunteered by the Applicant but elicited through questioning by the Tribunal. It was not presented by way of excuse or mitigation for his behaviour. However, having heard and accepted his evidence, I find it provides a more complete understanding of his character.   

   CONCLUSION

8. Looking holistically at the evidence I am satisfied that the Applicant is prepared to acknowledge his mistakes. His actions over time indicate he is committed to making a contribution through working, caring for his mother and supporting his son who does not live with him. He was open about his challenges regarding his memory and did not seek to deny or deflect either his offending or the shortcomings in the process of applying for citizenship.

9. Five years has passed since the Applicant’s offending, which was relatively minor as reflected in the sentence imposed upon him. His only other conviction dates back to when he was 17 years old. His evidence demonstrates he has learnt from his experiences, and sought to better himself and make the best of his life rather than dwell on his past traumas or current challenges. The process he has taken to apply for citizenship and seek review of the delegates decision demonstrates an admirable level of self-reliance and perseverance.

10. In considering the sum of the Applicant’s behaviour over time, I am satisfied that he currently meets the requirements of paragraph 21(2)(h).  

    Decision

11. The reviewable decision dated 1 March 2021 is set aside and the matter is remitted to the Respondent for reconsideration with a direction that the Applicant is a person of good character who satisfies paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated: 17 October 2022

Date(s) of hearing:	1 July 2022
Applicant:	In person
Solicitors for the Respondent:	Edwin Taylor