Joskun and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 802
•9 April 2021
Joskun and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 802 (9 April 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2609
Re:Amren Joskun
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:9 April 2021
Place:Sydney
The decision under review is set aside and the matter remitted to the Respondent with a direction that the Applicant satisfies the requirements of paragraph 21(2)(h) of the Act.
.
..........................[sgd]............................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of a citizenship application – whether the applicant is of good character – criminal conduct – traffic offences – drug offences – failure to disclose offences – mitigating factors – significant amount of time passed since offences – satisfied the applicant is of good character – decision set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 24 and 52
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Bowdler and Minister for Immigration and Border Protection [2018] AATA 347
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Dinkha v Minister for Home Affairs [2018] AATA 3037
Do and Minister for Immigration and Border Protection [2016] AATA 390
Elias v Commissioner of Taxation [2002] FCA 845
Ferreira and Minister for Home Affairs [2018] AATA 2599
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kostopolous and Minister for Home Affairs [2018] AATA 3859
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Mohammed v Minister for Immigration and Border Protection [2018] AATA 687
Ngo v The Queen [2017] WASCA 3
Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020
The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876
Zheng and Minister for Immigration and Citizenship [2011] AATA 304SECONDARY MATERIALS
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Chris Puplick AM, Senior Member
9 April 2021
Mr Amren Joskun[1] (‘the Applicant’) is a citizen of the Republic of Turkey. He applied for Australian citizenship by conferral, under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’). His application was refused by a delegate of the Minister (‘the Respondent’) on the basis that the delegate was not satisfied that the Applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act (‘the decision’).
[1] The Applicant changed his name from Imre Coskun to Amren Joskun by deed poll on 12 November 2002: Tribunal Documents at [147].
The Applicant has applied for a review of the decision in this Tribunal.
The application for citizenship was made on 2 July 2019 and it was refused on 29 April 2020. The application for review of the decision was made on 5 May 2020 and the hearing was conducted on 19 March 2021. The hearing took place using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols. The Applicant was represented by his Migration Agent and assisted by a Turkish interpreter.
THE LEGISLATIVE SCHEME
Applications for citizenship by conferral
The Act provides that a person may make an application to the Minister for citizenship by conferral.[2] The Minister must either approve or refuse the application.[3]
[2] The Act, s 21(1).
[3] Ibid, s 24(1).
An applicant must meet certain qualifications as specified in the Act[4] and, if they do, they must then undertake and pass the Citizenship Test[5] (unless they are exempted from so doing).[6] Once that is complete, a qualified applicant must make the Pledge of Commitment[7] (unless they are exempted from so doing) before their citizenship is finally granted.
[4] Ibid, s 21(2).
[5] Ibid, s 23A.
[6] Ibid, ss 21(3)(d), (4)-(8).
[7] Ibid, s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[8] None of which is relevant in this present application.
[8] Ibid, ss 24(4)-(6).
In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
Each of the criteria must be met by an applicant, and the usual practice of the Department is to consider the criteria in the order in which they appear in the Act. In this case, the Respondent found that criteria 21(2)(a), (b), (c) and (g) had been met but that 21(2)(h) had not.[9] The former criteria refer to matters of age and residency whereas criteria 21(2)(h) refers to a matter of character (see below). The criteria at (d) to (f) refer to the citizenship test requirements.
[9] Tribunal Documents at [15]-[23].
The Citizenship Policy Statement and the CPIs
In deciding whether or not an applicant satisfies the criteria in subsection 21(2), a decision-maker must have regard to the Act, the Australian Citizenship Policy Statement (‘Citizenship Policy Statement’) and the Citizenship Procedural Instructions (‘CPIs’).
The CPIs (which are part of the Citizenship Policy Statement) came into effect as of 27 November 2020, replacing the previous Citizenship Policy document. Relevant to this matter, Chapter 7 of the CPIs deals with matters of citizenship by conferral.[10] Chapter 15 of the CPIs (‘CPI 15’) deals with the assessment of issues of good character which is the central issue in this matter.
[10] The previous Citizenship Policy was in place at the time of the decision, but the Tribunal must proceed in accordance with the superseding Australian Citizenship Policy and the CPIs.
The Tribunal notes that the Citizenship Policy Statement and CPIs has been published by the government as a guide to decision-makers in the interpretation of, and exercise of powers under, the Act. The role of such policy is as an indicative guide only and I am not strictly bound to apply it. Although I am not bound to apply it, it is government policy and I should consider it if it is consistent with the Act and unless there are cogent reasons not to do so.[11]
[11] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 640.
In addition, the Tribunal, standing as it does in the shoes of the original decision-maker but making a de novo assessment of the evidence,[12] may take into account any other relevant factors, including where appropriate any relevant factors or evidence which have arisen since the original decision was made and may not have been available to the original decision-maker.
[12] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
Further, in 1985, the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[13]
[13] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 376.
Similarly, in Gbojueh the Federal Court noted:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[14]
[14] Gbojueh v Minister for Immigration and Border Protection[2014] FCA 883 at [39].
In Elias, this principle was expressed as:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.[15]
[15] Elias v Commissioner of Taxation[2002] FCA 845 at [34].
In relation to the former citizenship policies, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[16] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[17]
[16] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement. The current set of Instructions are a different form of advice to decision-makers.
[17] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
More recently this matter was addressed by Besanko J as follows:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case. Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory. The important matter is compliance with the terms of the relevant statute.[18]
[18] MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17] (footnotes and citations omitted).
GOOD CHARACTER
Paragraph 21(2)(h) of the Act requires that a person be “of good character at the time of the Minister’s decision on the application.” As mentioned, the Minister's delegate found that the Applicant was not of good character and this was the sole identified basis for the refusal of his citizenship application.
The term “good character” is, unhelpfully, not defined in the Act and so the Tribunal must rely on the law developed by the Courts and guidance in the Citizenship Policy Statement and the CPIs (particularly CPI 15).
As to the definition of good character, CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs, where the Court stated:
“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.”[19]
[19] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94.
The Tribunal has further found that evidence of what a person says, does or what they are heard to say or seen to do should be taken as indication of their acceptance of the values and norms to which they are expected to adhere and be loyal to.[20]
[20] Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
An elegant encapsulation of what the authorities have identified as the hallmarks of “good character” was given by O’Bryan J in BOY19 as follows:
“The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.”[21]
[21] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574. Citations in original omitted.
CPI 15 itself goes on to outline what the characteristics of good character might amount to. These are set out, at some length, as expecting that applicants would (inter alia):
·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:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;
oevading 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;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving 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.
In relation to assessing the character of an applicant with a criminal record, CPI 15 provides further guidance, explaining that relevant considerations include:
·whether the offences were disclosed;
·whether the offending was serious, with 'drug trafficking (including importation and supply)' listed as an example of a serious offence;
·whether the offending was a one-off or there is a pattern of criminal behaviour, with a pattern of behaviour, even a pattern of repeated minor offences over an extended period, showing a disregard for the law, which may support a finding that the applicant is not of good character; and
·whether the offending was pre-meditated, with pre-meditated offences to be given more weight in the assessment of character.
CPI 15 elaborates, by attaching to the phrase “enduring moral qualities”, further qualifications, namely:
·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.
The Applicant’s personal narrative
The Applicant is 59 years of age. He arrived in Australia in February 1988 and has made several trips outside the country since then. In 1991 he was granted a permanent (subclass BF-155) visa.
According to his psychiatrist (Dr M A Chaudhary), he had an initial marriage which was not successful and then a long-term relationship which ended with the death of his partner from cancer.[22] He has since remarried. He has a daughter from his first marriage and great-grandchildren on this side of the family. He has two stepsons from his second marriage, both of whom have some history of mental illness and one of whom has been in long-term institutional care. He has a stepson from his current marriage who is also in need of medical assistance. The Applicant himself has a history of mental illness, substance abuse and several suicide attempts. At some stage he suffered a workplace injury, from which he continues to suffer some pain[23] and has been on the Disability Support Pension since 2009.
[22] Report of Dr Chaudhary, Tribunal Documents at [169]-[172]
[23] Tribunal Documents at [169]-[170].
The Applicant’s offending history
The Applicant has a lengthy record of offending against the law with matters ranging from relatively minor (although repeated) traffic infringements to significant drug offences resulting in a series of fines and eventually a prison sentence of 14 months of which 6 months were to be served whereupon a 2 year good behaviour bond came into effect.
Traffic offences
The Applicant is recorded as having been issued 7 traffic infringement notices in the period 17 May 2002 to 23 May 2016. Of these, the only one where details are available to the Tribunal related to the Applicant not wearing a seat belt while being conveyed as a passenger. None of these appear to relate to matters such as excessive speeding or dangerous driving.[24]
[24] Summonsed Material at [63]-[68].
There are two offences related to Prescribed Concentration of Alcohol (‘PCA’). The first was a “low range” offence in July 1993 and the other a “mid-range” offence in March 2010. Both resulted in the imposition of fines and disqualification from driving for a prescribed period.[25]
[25] Tribunal Documents at [160]; Summonsed Material at [46], [61].
There is no evidence of any PCA offences in the last 11 years or of any traffic infringement offences in the last 5 years.
Drug related offences
The Applicant has been before the Courts on four occasions arising from drug-related offences. The first three each arose from police searches of the Applicant’s motor vehicle which, for a variety of reasons, had attracted the attention of the police.
·In April 2005, there was an offence of possess prohibited drug and custody of a knife in a public place. The Applicant was fined $100 and $10 respectively for these offences.[26] The drug in question appears to have been “speed” although the police report gives no indication of the quantity involved. The knife was either a “small 8-centimetre pocket knife” found in the glove compartment of the Applicant’s car or an old “rusted blade attached to a handle” found in the boot, which the Applicant claims was used for fishing.
·In July 2005, the Applicant was found to be in possession of 2 grams of amphetamine and “a small (unspecified) amount of cannabis” which were for his own use. He was charged with offences of “self-administration/attempted self-administration [of a] prohibited drug” and “possess prohibited drug” for which he was fined $300 and $100 respectively.[27]
·In November 2005, the Applicant’s car was stopped by the police and searched. It appears that the Applicant was living in his car at the time. The police search revealed an unspecified amount of cannabis and a “white powder” which does not appear to have been formally identified. The Applicant was charged with “possess prohibited drug” and eventually fined $400.[28]
·The final offence, which took place in February 2008, is of a much more serious nature. The Applicant was involved in transporting a “marketable quantity” of controlled drugs from Sydney to Melbourne. It appears that the Applicant’s involvement in these circumstances, based on the submitted copy of the Crown Pleadings[29] and the evidence at the Tribunal hearing, stem from back in 1999 when the Applicant moved to live in Griffith (NSW). While there, working as a gardener, he met a certain Mr Demir, through whom he was introduced to Pasquale Barbaro. At the time, the Applicant had no knowledge of Barbaro or his involvement in the drug trade. The Applicant moved back to Sydney and, in January 2008, was contacted by Demir who offered him $25,000 to transport some bags from Sydney to Melbourne. The Applicant says that at the time both he and his then wife were suffering from serious ill health and needed money. It is evident that Barbaro did not have much regard for the Applicant to whom he refers, when instructing Demir to contact him, as “the ugly one with no teeth”[30] or else “the other fucking ugly cunt there”.[31]
[26] Summonsed Material at [44], [66]; Tribunal Documents at [160].
[27] Summonsed Material at [45], [65]; Tribunal Documents at [160].
[28] Summonsed Material at [45], [64]; Tribunal Documents at [160].
[29] Summonsed Material at [13]-[36].
[30] Ibid at [17].
[31] Ibid at [20].
In relation to the final offence, it was arranged that the Applicant would convey several sports bags from Sydney to Melbourne in his own vehicle. The bags were collected by the Applicant and on the evening of 4/5 February 2008 he and a passenger (apparently his wife) drove to Melbourne and handed the bags over to Barbaro and his associates.
The Applicant, who apparently received some money for this activity, then commenced to drive back to Sydney on 6 February 2008 but was intercepted by the police. His vehicle was searched and “a large quantity of $100 and $50 bills” (totalling $119,950)[32] were found concealed in the car. The Applicant was arrested “for being in possession of the money”.[33]
[32] Summonsed Material at [34].
[33] Summonsed Material at [33].
The content of the bags was some 240,000 – 270,000 Ecstasy (MDMA[34]) tablets and the Applicant denies that he actually knew of the precise contents of the bags, although obviously he knew that it was some sort of illicit/illegal substance.
[34] 3,4-methylenedioxymethamphetamine.
The Applicant was apparently bailed[35] and subsequently arrested on 23 April 2009 whereupon he was extradited to Melbourne to stand trial.[36] He was charged with one count of “trafficking a marketable quantity of a controlled drug”. He appeared in the Victorian County Court on 30 April 2012, where he appeared before His Honour Judge Montgomery. He pleaded guilty and was sentenced to a term of imprisonment of 14 months, to be released after serving 6 months on a recognisance of $250 to be of good behaviour for a further two years. A period of 8 days of prior detention was taken to be time served.
[35] No bail breaches are recorded – Summonsed Material at [49].
[36] Summonsed Material at [45].
The Tribunal does not have the sentencing remarks available to it, but an Australian Federal Police report states: “In sentencing, His Honour highlighted Joskun’s guilty plea, remorse shown by making admissions during the record of interview, lack of any relevant prior convictions and good prospects of rehabilitation.”[37] The Tribunal specifically asked the Respondent’s representative at the hearing if the Respondent was prepared to adopt this as a correct report of the sentencing remarks and that was agreed.
[37] Ibid at [11].
The seriousness of offending
This Tribunal has made it clear that it regards driving offences, especially those arising from the consumption of alcohol as serious matters. In Bowdler[38] I stated:
[38] Bowdler and Minister for Immigration and Border Protection [2018] AATA 347. Citations omitted.
- This Tribunal has, in recent decisions, demonstrated an increasing awareness of the disastrous impact on the Australian community of a rising road toll. Road safety is a matter of legitimate concern to all responsible citizens and to this Tribunal.
- In Wang and Minister for Immigration and Border Protection the Tribunal remarked that the Applicant had:
“...continued to disregard the laws whose purpose it is to protect users of the road. Those laws go to the essential safety of the community.”
- In Safar and Minister for Immigration and Border Protection, the Tribunal (quoting with approval, the above passage from Wang) stated:
[28]Even though each of Mr Safar’s offences may not be within the meaning of “serious offence” under 10.5.2 of the Instructions, the pattern of behaviour and the number and kinds of his offences raise serious concerns. To my mind driving a motor vehicle while under the influence of alcohol is a serious matter. I would say the same about driving a motor vehicle at high speed while holding a provisional licence, driving at 112 km per hour in a 60 km per hour zone for example. One only has to consider the heavy road toll as reported in the media to understand the significant risk such behaviour poses to members of the Australian community.”
- In assessing claims for citizenship it is not improper, in my view, for the Tribunal to take into account whether or not an applicant for citizenship has, by his past behaviour, demonstrated that he has and may very well continue to act in a fashion which puts at risk the lives and wellbeing of other Australians.
- In Da Wei Zheng and Minister for Immigration and Citizenship, Deputy President Forgie reflected on aspects of the character test when she said that one aspect of the test was a requirement to uphold and obey the laws of Australia which might be:
“measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character.”
The Respondent pressed upon the Tribunal that the offences of PCA should be taken as being serious offences which weigh heavily against the Applicant.[39]
[39] Respondent’s SFIC at [25]-[28].
In this instance the Tribunal is not inclined to do so. The traffic infringements appear to be of a minor nature, and except for the seat-belt offence in 2016, all took place before 2009. The two PCA offences, serious as they might be, took place 28 and 11 years ago, respectively, since which time the Applicant has apparently ceased drinking and certainly has not presented with any further matters before the Courts. None of the offences resulted in anything other than a fine or a short-term driver licence suspension.
The drug offences are more problematic. Drug offences are inherently serious, especially where large quantities are being trafficked for sale. In Vu[40] I stated:
[40] Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876.
(62) In Ngo v The Queen,[41] the Court of Appeal of the Supreme Court of Western Australia stated that the victim of trafficking or attempted trafficking in illicit drugs was the Australian community generally and that:
[41] [2017] WASCA 3 at [63].
[t]he illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.
(63) The decisions of this Tribunal in recording its abhorrence of the drug trade are too numerous to list but are best summarised in the remarks of Senior Member Cameron in SCJD as follows:
The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.[42][42] SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020, [80]-[83].
The first three of the Applicant’s offences took place within a relatively limited period of time from April to November 2005, some 15-16 years ago. None of them was at the higher end range of drug offences. All appear to have been related to personal use, there was no trafficking element involved, and the quantities (where stated) were low. None attracted a fine of more than $400.
There is evidence from a Consultant Psychiatrist (Dr M A Chaudhary) dating from 2007 indicating that the Applicant has suffered from depression since 1995, which was the date of his divorce from his first wife, they having separated in 1993. From this report, it may be gleaned that the Applicant had been admitted to a hospital in Melbourne towards the end of 2005 or early 2006 as a result of his serious use of a cocktail of drugs including ice, ecstasy and cocaine.[43]
[43] Tribunal Documents at [169].
It was the Applicant’s evidence that after this event he ceased using drugs or alcohol up until the time of his drug trafficking offence.[44]
[44] Applicant’s Statutory Declaration (dated 24 April 2020), Tribunal Documents at [163].
Dr Chaudhary’s report refers to the Applicant having attempted to commit suicide on a number of occasions (once apparently in Parliament House, Canberra[45]) leading to periods of hospitalisation and that these incidents of suicidal ideation relate back to the 2008 offence.[46]
[45] Report of Dr Chaudhary dated 7 December 2011, Tribunal Documents at [171].
[46] Applicant’s Material Tab [2] report dated 2 September 2020.
Throughout this time the Applicant was dealing with his then wife’s ill health (cancer) which led to her death in 2011; the pressures arising from the permanent institutionalisation of his stepson in a psychiatric hospital; and difficulties with his younger stepson who has a history of substance abuse and lived with him until the death of his (the Applicant’s) wife in 2011.
The Tribunal thus finds that the Applicant’s explanation of his involvement in the drug trafficking offence could, as he claims, have been motivated by a need for financial support on his part, facilitated by his earlier contacts with the likes of Demir and Barbaro from his time living in Griffith.
Explanations do not amount to excuses, but they assist the Tribunal in making judgements about the “enduring moral qualities” which the Respondent urges as a fundamental element in the assessment of what constitutes good character.
In this instance, the Tribunal, in line with the remarks of the Sentencing Judge, weighs in the balance the circumstances of the offence, the degree of remorse and prospects of rehabilitation of the Applicant and finds they are not fatal to a positive consideration of his application.
The Tribunal recognises that CPI 15 weighs against the Applicant to the extent that offences were not disclosed, and that drug trafficking is a serious offence, although the offence appears to have been primarily opportunistic rather than premeditated.
CPI 15 also directs the Tribunal’s attention to various factors to consider in “assessing the relative seriousness of offences” and assesses them in the context of this matter.[47] These include:
(i)Length of sentence: the only relevant sentence (14 months with 6 to be served) is relatively short;
(ii)Ongoing obligations: there are none;
(iii)Sentencing remarks: they are generally favourable to the Applicant;
(iv)Offences subject to specific government initiatives: there are none;
(v)Victims of the offence: none is identifiable.
[47] Tribunal Documents at [109].
CPI 15 establishes what is describes as “mitigating factors” as follows, drawn from the Respondent’s SFIC:
(a) the length of time between the offence and conviction, noting that there can be a long delay between offence and conviction, but each case should be assessed on its merits, directing a decision-maker to:
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.
(b) whether the applicant has accepted responsibility and shown remorse for their conduct;
(c) whether the applicant has made an effort to rehabilitate, including whether they have made a conscious effort to uphold and obey Australian laws by undertaking drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other program that addresses risk factors relating to their offending; and
(d) the applicant's age at the time the offence was committed, noting that if the applicant committed the offence at a young age, the offence may be given less weight.
In relation to each of these the Applicant would be entitled to some credit (other than item (d)).
The failure to disclose
An absolutely central element of the Respondent’s case against the Applicant is that, in completing his formal application for citizenship, the Applicant deliberately sought to mislead the Department about his prior criminal record. The “character declaration” section of the application form reads:
Has the applicant been convicted of, or been found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ offences)?
In response to this the Applicant declared:
Yes. In 2008 was found guilty of drug trafficking, sentenced for 6 months jail and 2 years suspended sentence.[48]
[48] Tribunal Documents at [133].
The Applicant then went on to detail that he had been in the Fulham Correctional Centre for 6 months in 2012.[49]
[49] Ibid at [134].
Clearly the Applicant failed to do the following:
(i)State that his 2008 sentence was, in total, for 14 months of which 6 were mandatory to serve;
(ii)Declare the three drug offences in 2005 which went to court, led to convictions and resulted in fines being imposed;
(iii)Declare the 2 PCA offences which went to court, led to convictions and resulted in fines being imposed.
The Applicant’s evidence was that, in the first instance, he did not himself complete the Application form but was assisted by a member of his family (who was prepared to give evidence to that effect) and he did not understand the question to require him to provide all those additional details.
Unfortunately for the Applicant, it does not matter who might have completed a form on his behalf. He alone is responsible for ensuring the accuracy of documents submitted to the Australian Government, especially in matters as sensitive as applications for citizenship. His obligation was one of complete and full disclosure.
The Tribunal places somewhat less weight on the description of the 2008 sentence. It is accurate but incomplete. To that extent, it is misleading, but the Tribunal does not take it as any sort of attempt to deny the fact of a conviction for an offence, properly described and the length of the sentence actually served.
The Tribunal has always placed considerable emphasis upon the need for applicants for citizenship to be honest in their dealings as far as the provision of accurate information is concerned.
In Nguyen[50] I concluded, when affirming a denial of citizenship, in the following terms:
[50] Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.
(82) Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
(83) Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
(84) Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
I do not say, in this instance, that the third party was deceitful (as was the case in the matter cited) but the point is one about personal responsibility.
In Taradel, the Tribunal noted:
“I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly. But I must also look to any prejudice to the applicant and others arising from the cancellation of his citizenship.”[51]
[51] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
Similarly, in Mohammed the Tribunal said:
I believe that this principle also adheres when an eligible non-citizen is applying for Australian citizenship. There is a reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.[52]
[52] Mohammed v Minister for Immigration and Border Protection [2018] AATA 687 at [39].
Although the Applicant was not completely forthcoming in his citizenship application, the Tribunal does not believe that he was attempting to be deliberately misleading or deceptive or to be fundamentally dishonest.
Good standing, fame or repute
Lee J’s dictum in Irving requires consideration of the good standing, fame or repute of a person when weighing matters of good character and their balancing against enduring moral qualities.
There is substantial evidence before the Tribunal from a variety of sources which attest to the good standing of the Applicant in the Turkish, Azerbaijani and Cypriot communities. Several of these are in the form of simple letters attesting to the Applicant’s good character and his work in the local communities. They speak to his general helpfulness and his commitment to his family. They generally describe him as a “gentle” man, caring and family oriented.[53]
[53] Applicant’s Material at Tabs [3]-[11]. Tribunal Documents at [165]-[195].
There is no reason to disbelieve or discredit any of these testimonials. Although only a limited number reflect upon the Applicant’s past offending behaviour, to the extent they do they emphasise his remorse and rehabilitation. The statement of Mr Mehmet Ali Uluc is particularly on point in this regard,[54] as is that from the Turkish Welfare Association.[55]
[54] Tribunal Documents at [194].
[55] Ibid at [195].
The evidence from the psychologist (Bestegul Tungandame) and psychiatrist (Dr Chaudhary) reports indicate steps undertaken by the Applicant to engage in courses of therapy and counselling, although in many instances these have not been followed-up on a long-term basis to date. However, the Applicant in his evidence spoke of the beneficial nature of these interventions and the coping techniques (such as meditation) which he learned from them.
There is evidence of the stability of the Applicant’s home life now. He has married again (to Mammadova Telli in 2013) and provides care to a new stepson who suffers with multiple sclerosis.[56] This appears to be in addition to keeping in contact with his other stepson who is a long-term patient in Cumberland Hospital. He is close to his daughter (from the first marriage) and plays a role as a supportive great-grandfather.
[56] Statutory Declaration of Mammadova Telli (20 November 2020), Applicant’s Material at Tab [10].
The Applicant’s wife and other family members are Australian citizens and the Tribunal understands his desire to join them in attaining that status. From his answers to the Tribunal’s direct questions, the Tribunal is persuaded that he has both a good understanding of and genuine reasons for seeking citizenship status.
The second chance syndrome
In the matter of Kostopolous I said:
Neither the Australian community, nor this Tribunal, is unsympathetic to the idea of giving people a second chance.
At the end of the day, Australia is after all, a nation built upon the principle of a second chance. The Tribunal cannot think of a principle so uniquely Australian. Indeed, it is fundamental to what can properly be described as our national character: the idea that, except in the most extreme of circumstances, everyone is entitled to a second chance. Such a principle was the very raison d’etre for the despatch of the First Fleet on 13 May 1787 and those which followed them[57].
[57] Kostopolous and Minister for Home Affairs [2018] AATA 3859 at [63]-[64].
In a context only marginally different from the case now before it, this Tribunal stated:
Neither the Australian community, nor this Tribunal, is averse to giving people a second chance. However, those second chances are not automatically available; they have to be earned. Persistent disregard of warnings[58] about the need for compliance with mandated programmes and wilful failure to take rehabilitative opportunities offered must be regarded as fatal to applications such as this. Persistent refusals to accept life-lines when offered cannot be ignored.[59]
[58] See this Tribunal’s comments in Ferreira and Minister for Home Affairs [2018] AATA 2599 at [89]-[91].
[59] Dinkha v Minister for Home Affairs [2018] AATA 3037 at [113].
Deputy President McCabe in Do reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations … As I begin my deliberations, I assume the Australian community would be fair-minded and mature … The community would certainly not be vengeful … after all: we are a nation built on second chances.[60]
[60] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
In Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, in “recognition [of] his life changes”[61] since he had been first convicted. The Deputy President noted that the efforts of the applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[61] The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
The Tribunal has considered the evidence before it, weighed the gravity of the Applicant’s offences; considered a range of mitigating circumstances, including the time elapsed since the committing of offences; noted the changes which the Applicant has made in his life; recognised the submissions from qualified mental health practitioners and members of the community and had the opportunity to assess the Applicant directly in his appearance and presentation before the Tribunal.
It is persuaded that this is a “second chance” case.
Conclusion
The Tribunal notes that the Respondent has agreed that the Applicant satisfies the requirements of paragraphs 21(2)(a), (b), (c) and (g) of the Act. Paragraphs 21(2)(d), (e) and (f) relate to sitting for and passing of the Citizenship Test and they remain to be addressed. This determination relates only to paragraph 21(2)(h) and, for the reasons given, the Tribunal is satisfied that the Applicant is a person of good character.
This determination opens the gate for the Applicant to address the hurdles of the Citizenship Test, and if he passes that test, he will be eligible to make the Pledge of Commitment and thus complete his passage to Australian citizenship.
DECISION
The decision under review is set aside and the matter remitted to the Respondent with a direction that the Applicant satisfies the requirements of paragraph 21(2)(h) of the Act.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
............................[sgd]...............................
Associate
Dated: 9 April 2021
Date of hearing: 19 March 2021 Representative for the Applicant: Mr Y Kyselov Solicitor for the Respondent: Ms K Ervin, Clayton Utz
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