Katambwe and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 989
•5 December 2016
Katambwe and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 989 (5 December 2016)
Division
GENERAL DIVISION
File Number
2016/1773
Re
Yasini Katambwe
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr Gordon Hughes, Member
Date 5 December 2016 Place Melbourne The decision under review is affirmed.
[sgd]........................................................................
Dr Gordon Hughes, Member
CITIZENSHIP - application for citizenship by conferral - requirement that decision maker be satisfied that the person is of "good character" - application of citizenship policy - requirement for a penal clearance certificate - where applicant unable to provide a penal clearance certificate from Tanzania for a period of 2 years - decision affirmed
LEGISLATION
Australian Citizenship Act 2007 section 21(2)(h)
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
SECONDARY MATERIALS
Australian Citizenship Policy (Department of Immigration and Border Protection, 2016)
REASONS FOR DECISION
Dr Gordon Hughes, Member
5 December 2016
BACKGROUND
The Applicant was seeking a review of a decision by a Delegate of the Respondent to refuse the grant of Australian citizenship under section 21 of the Australian Citizenship Act 2007 (the Act).
The application had been refused on the basis that the Applicant did not satisfy the "good character" test as required by section 21(2)(h) of the Act.
LEGISLATION
Section 21(2)(h) of the Act provides:
General Eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h)is of good character at the time of the Minister's decision on the Application.
CONSIDERATION
The Applicant is a male born in Burundi in 1969. He was granted a permanent residence visa on 23 May 2005. He resided in Tanzania between 23 May 2005 and 25 February 2008, and first arrived in Australia on 2 April 2008. He lodged an application for Australian citizenship by conferral on 19 March 2014.
The Delegate refused to grant that Applicant Australian citizenship on 31 March 2016 based on the Applicant's inability to satisfy the character requirements of section 21(2) of the Act.
The specific issue in question was that the Applicant had not provided an overseas penal clearance certificate confirming the absence of any criminal convictions in Tanzania, meaning that in accordance with the Citizenship Policy, it was not possible to determine that he was of "good character" for the purposes of section 21(2) of the Act.
As contended by the Respondent, the sole issue for determination by the Tribunal was whether that Applicant satisfied the good character requirement referred to in section 21(2)(h) of the Act. In all other respects, the Applicant satisfied the requirements for the grant of citizenship.
The Responded cited Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432:
…unless the terms of the Act and regulations require some other meaning to 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 a 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.
Viewed in this context, a person's criminal record, or lack of criminal record, is fundamental to an assessment of their character.
Consistent with this premise, Chapter 11 of the Citizenship Policy (which replaced the Australian Citizenship Instructions from 1 June 2016) provides guidance on the framework for making "good character" decisions. It provides:
Overseas Penal Certificates - Conferral
For the consideration of good character, applicants who have spent 12 months or more outside Australia and more than 90 days in any one country since becoming a permanent resident, need to provide overseas penal certificates from each country (other than Australia) in which they spent more than 90 days.
Where a decision maker has a concern regarding the travel and/or character or an applicant, an overseas penal certificate can be requested even if the person has not spent more than 90 days in any one country since becoming a permanent resident. …
The Citizenship Policy recognises that there may be circumstances where a decision maker is waiting for relevant information and can postpone making a decision, subject to the delay being reasonable.
Evidence was provided on behalf of the Respondent that on several occasions, it had requested the Applicant to provide a Tanzanian penal clearance certificate or evidence of lodgement of his applicant or evidence that the relevant authorities were currently processing the application. Over two years have elapsed since the Applicant was first asked to provide a Tanzanian certificate.
Specifically, the Department had written to the Applicant on 28 April 2014 and 26 May 2014 requesting a copy of a certificate.
On 4 July 2014, the Applicant provided a receipt for an overseas registered post envelope, dated 5 June 2014, as evidence that he had mailed an application to Tanzania, but there was no evidence as to the content of that envelope.
The Department subsequently wrote to the Applicant on 26 May 2015, 19 January 2016 and 18 February 2016, requesting further evidence regarding his application for a penal certificate. This was not provided.
The Respondent contended that any further delay would be unreasonable and that in the circumstances, there was no cogent reason for departing from the Citizenship Policy that an applicant for Australian citizenship should be required to provide an overseas penal clearance certificate.
Accordingly the Respondent contended that the Applicant was unable to satisfy the Tribunal that he was of "good character".
The Applicant told the Tribunal that he had tried to comply with the requirement to provide a certificate. He had sent fingerprints to the authorities in Tanzania but received no response. He had tried to make contact with the Tanzanian embassy in Perth with no success.
Evidence from the Respondent was to the effect that applications of this nature to Tanzania are generally processed within a month.
The Applicant told the Tribunal that he thought the Australian government should provide him with more assistance, given that it had previously granted him permanent residence and had presumably satisfied itself at the time that he was of good character.
The Applicant presented before the Tribunal as a reasonable individual, and the Tribunal had no basis for suspecting that he is not of good character. This is not the same, however, as being satisfied that he is in fact of good character.
Ultimately, the Tribunal cannot be satisfied that the Applicant is of "good character" in the absence of evidence as to whether he was guilty of any criminal offences whilst in Tanzania. There was no evidence presented to the Tribunal that the Applicant was guilty of any such activity, but equally no evidence that he was not. In the circumstances, the Tribunal cannot conclude that, for the purposes of section 21(2)(h) of the Act, the Applicant is of "good character".
A considerable amount of time has elapsed since the Applicant was first requested to obtain a penal clearance certificate. There is limited evidence that the process is in train, and no evidence that any communication from the Tanzanian authorities is imminent. It would, in the Tribunal's view, be inappropriate to postpone making a decision in order to consider any potential response.
DECISION
For the reasons set out above, the decision under review is affirmed.
1. I certify that the preceding 24 (twenty–four) paragraphs are a true copy of the reasons for the decision herein of Dr Gordon Hughes, Member
[sgd]........................................................................
Associate
Dated 5 December 2016
Date of hearing 4 November 2016 Applicant In Person Advocate for the Respondent Kylie McInnes Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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