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

[2021] AATA 522

Kim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 522 (12 March 2021)

Division:GENERAL DIVISION

File Number(s):       2019/7697

Re:Justin Changhyun Kim  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:12 March 2021

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – refusal of a Citizenship application – whether the applicant is of good character at the time of the Minister’s decision – criminal conduct – driving offences – assault occasioning actual bodily harm – mitigating factors – significant amount of time passed – not satisfied the applicant is of good character – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21, 24 and 52

CASES

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Policy Statement

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

REASONS FOR DECISION

Senior Member A Poljak

1. Mr Justin Changhyun Kim, the applicant, is a citizen of South Korea. He first entered Australia on 1 October 1992. The applicant currently holds a Five-Year Resident Return (subclass 155) visa granted on 3 June 2014. On 24 June 2018, the applicant lodged an application for Australian Citizenship by conferral (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”).

2. On 25 September 2019, the applicant was invited to comment on adverse information before the Minister (“invitation to comment”). Namely, the applicant’s criminal and driving record which showed that between 2003 and 2012, the applicant was convicted of a number of driving offences, the majority of which were convictions for driving under the influence of alcohol. The applicant was also convicted of assault occasioning actual bodily harm in 2007 after he physically assaulted his then wife. The applicant did not respond to this invitation to comment.

3. On 11 November 2019, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be 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”). The delegate considered numerous driving convictions, which were recorded in 2003, 2010 and 2012, and significantly, the conviction in 2007 of assault occasioning actual bodily harm. This is the decision under review in these proceedings.

4. The issue for the Tribunal to determine in these proceedings is whether it is satisfied that the applicant is of good character in accordance with paragraph 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

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

6. Subsection 24(1) of that Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

7. The Act relevantly provides, at paragraph 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application.’

   DEFINITION OF ‘GOOD CHARACTER’

8. The term ‘good character’ is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (“the CPI 15”) and the Australian Citizenship Policy Statement, which came into force as of 27 November 2020 (“the Policy”).

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

10. As to the definition of good character, the CPI 15 cites the decision of the Full Federal Court 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 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…

11. The CPI 15 states the phrase ‘enduring moral qualities’ which encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

12. The CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevantly, a person of good character would, inter alia: respect and abide by the law in Australia; not be violent, 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).

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

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

    [emphasis added]

14. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The Tribunal must exercise any statutory discretion bearing in mind the facts of any particular case. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    THE APPLICANT’S CRIMINAL CONDUCT AND DRIVING RECORD

15. The applicant has offences recorded on his driving history from 1992 to 2016. In 2003, he was caught driving with a high range concentration of alcohol; driving with a middle range concentration of alcohol; and driving whilst disqualified. The applicant was issued with a habitual offender warning letter in 2004. In 2010, the applicant was convicted of driving with a high range concentration of alcohol; for which he was disqualified from driving for 30 months and subject to a good behaviour bond for 18 months. In 2012, the applicant was again convicted of driving with a high range concentration of alcohol and driving whilst disqualified; for which he was disqualified for two years, subject to a three-year good behaviour bond and sentenced to 200 hours of community service. He was issued with a habitual offender warning letter in 2012. Most recently, the applicant was caught exceeding the speed limit in 2016, for which he received a fine of $112 and double demerit points.

16. On 15 May 2007, the applicant was convicted of assault occasioning actual bodily harm for hitting his ex-wife. The Hornsby Local Court did not impose a sentence, instead the applicant was released upon entering a good behaviour bond for two years. The Facts Sheet from New South Wales Police, dated 1 May 2007, which was before the Hornsby Local Court in 2007, records the details of the assault as follows:

    On Sunday the 29th April 2007 about 1.00am the victim was at home sitting on the lounge. One of her daughters was asleep on the lounge beside the victims lap. The accused arrived home and entered the lounge room, the victim states she immediately knew the accused was affected by alcohol, and in an agitated state. The accused walked up to the victim and attempted to discuss certain issues relating to their relationship, He became upset at this conversation and punched the victim to the left side area causing immediate pain and discomfort for the victim. The victim has lent over her daughter and the accused has kicked at the victim with his heel to the back of her neck.

    …

    The victim in fear stood, grabbed her house keys and fled the house. She entered her vehicle locking the doors behind her. The accused followed the victim out of the house, he commenced to bang on the vehicle.

    The victim drove out of the drive to a nearby phone box. She called her parents her came to her assistance, as she fled her house in her P.J's [sic] and no shoes.

    A short time later the victim attended the Eastwood Police Station with her parents where she outlioned [sic] the above version. The victim appeared very upset and when she coughed or sneezed appeared to have obvious discomfort to her left rib area.

    On Tuesday the 1st May 2007 the victim met with police, advising them she had attended Westmead Hospital on the Sunday morning, in regards to the injury to her ribs. She was informed of having x-rays that there was a small crack to one of her ribs as a result of the punch.

    MITIGATING FACTORS

17. In a statement dated 15 November 2019, the applicant said he regretted his earlier decisions and is trying not to make mistakes and be a law-abiding citizen. He said that after his brother died in 2003, his life was turned upside down and he turned to alcohol to cope with stressful situations. The applicant said in 2007, his wife requested a divorce. The applicant learned that his fourth child was not his biological child and was his closest friend's biological child. The applicant became angry and reported the friend to the Australian Border Force because he did not have a valid visa and the friend was deported back to South Korea. This caused his wife to become angry and resulted in the applicant physically assaulting her while under the influence of alcohol. The applicant and his then wife subsequently divorced. The applicant apologised for his actions. He has since remarried and said he is rebuilding his life.

18. At hearing, the applicant reiterated his written evidence and advised that regarding the 2007 assault charge, he acted out of character. He described how hurt he was by his then wife’s infidelity and losing a child he thought was his biological child. The applicant described how betrayed he felt by his best friend. He said that he had consumed a lot of alcohol which fuelled his anger and contributed to his offending conduct. The applicant expressed remorse and described how he had turned his life around, had a new wife, was happy and doing well in his job as a Korean travel guide.

19. The applicant has provided six character references in the form of unsigned statements from long term friends and his nephew. The statements from the applicant and his referees state that the applicant has expressed remorse for his offending and that his offence was out of character, and that he is a good person. In oral evidence, the applicant’s nephew reiterated his support for the applicant and described him as a very supportive uncle and said that the applicant’s conduct in the past towards his ex-wife was out of character.

    CONSIDERATION

20. The assault offence is viewed very seriously. The severity is exacerbated since it occurred in the presence of a child, and due to the physical harm caused to the victim. The assault offence weighs heavily against the applicant being considered a person of good character. I do acknowledge that a significant period of time, nearly 14 years, that has passed since the offending conduct occurred and the fact that there is no evidence of similar behaviour since. This is a mitigating factor. The applicant’s evidence as to the reasons which contributed to the offence would have been understandably distressing for him. However, domestic violence in any form is not acceptable in the Australian community.

21. The applicant’s driving record and convictions are also viewed very seriously. The applicant was charged and convicted of driving with a high concentration of alcohol and driving whilst disqualified in 2003, 2010 and 2012. The applicant’s last good behaviour bond would have ceased some time in 2015. The applicant’s most recent event on his traffic record is from 2016. Despite the applicant’s last convictions being in 2012, I am not convinced that enough time has passed to establish a pattern of good behaviour. This is because of the repeated nature of the offending conduct and the fact that the driving convictions were for the very serious offence of driving with a high concentration of alcohol and driving whilst disqualified. Driving while under the influence of alcohol puts the Australian community at very high risk of harm and driving whilst disqualified shows a blatant disregard for Australian laws. These offences weigh heavily against the applicant being considered a person of good character.

22. I acknowledge that the applicant has tried to turn his life around. He is now re-married and more settled. He is a successful Korean tour guide and contributes to the Australian community by promoting Australia to Korean tourists.

23. The applicant claims to have ceased smoking and drinking alcohol, which is significant given that one of the main contributors to his offending conduct appears to be his excessive consumption of alcohol. However, there is no objective evidence before me, from a medical professional or otherwise, to support the applicant’s claim that he has rehabilitated, namely, how he has overcome his excessive drinking, any treatment he has received, and how he now deals with issues or stressors in his life as they arise.

24. I give limited weight to the written character references provided by the applicant as they failed to acknowledge the applicant's criminal record.

    DECISION

25. In considering all the relevant circumstances and weighing the available evidence before me, I am not persuaded to make a positive finding of good character for the applicant at this time. It follows that he does not satisfy paragraph 21(2)(h) of the Act.

26. The applicant can make a fresh application for Australian citizenship in the future.

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 12 March 2021

Date(s) of hearing:	28 August 2020
Applicant:	In person
Solicitors for the Respondent:	Ms S Prasad, MinterEllison