Konur and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 950

Konur and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 950 (17 October 2016)

Division	GENERAL DIVISION
File Number(s)	2016/2313
Re	Korhan Konur
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member W Stefaniak RFD
Date	17 October 2016
Date of written reasons	28 November 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member W Stefaniak RFD

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – whether applicant of good character – applicant found not to be of good character for the purposes of citizenship legislation – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 s 21(2)(h), 24(1A)

CASES

Irving v Minister for State Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Re Sui v Minister for Immigration and Citizenship [2008] AATA 1062

Re Chum v the Minister for Immigration and Citizenship [2011] AATA 536

SECONDARY MATERIALS

Australian Citizenship Instructions

Citizenship Policy

WRITTEN REASONS FOR ORAL DECISION

Senior Member W Stefaniak RFD

28 November 2016

1. At the conclusion of the hearing of the above matter heard on 17 October 2016, the terms of the decision intended to be made and the reasons therefore were given orally. The Tribunal served both parties with a copy of the order outlining the decision that was made shortly after. On 28 October 2017 the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act1975, requested the Tribunal provide written reasons for its decision.

2. The oral reasons for decision have been transcribed by DTI Global, the Tribunal’s audio and transcription provider. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The transcript of the oral reasons is annexed below and furnished to the parties as the Tribunal’s written reasons.

I certify that the preceding 3 (three) paragraphs are a true copy of the reasons for the decision herein of Senior Member W Stefaniak RFD

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

Associate

Dated 28 November 2016

Date(s) of hearing	11 and 17 October 2016
Applicant	In person
Solicitors for the Respondent	Clayton Utz

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [12:03PM]

Mr Korhan Konur was born in Turkey in 1973.  He attended school there and after doing his 18 months compulsory military service he attempted to work in security with the Turkish government.  He went to university in Turkey.  He subsequently went to Malta and he married, from what the evidence seems to indicate, an Australian citizen who came to Australia.  Mr Konur didn’t immediately follow.  He stayed and did some further work. 

When he came to Australia, unfortunately, rather than being met by his partner at the airport, he was met by her parents which was at least decent of them to do that, who then put him up for three or four weeks, but indicated that she had moved.  So, unfortunately, he came to Australia and was confronted with a situation of very changed circumstances.  He ultimately went to Sydney because it was much easier getting work there.  He had, it seems, trained in security and he managed to get employment in Sydney and did very well.

He worked in security as a doorman and a bouncer, and ended up being promoted to head bouncer.  He, unfortunately, lost his job.  There apparently was a violent incident.  No charges were laid.  There were no injuries, according to the applicant, but as it wasn’t a very good look it was felt best by the firm who employed him and the night club he was at, that he had better leave there.  Unfortunately, as is often the way in some of these jobs, the hours are long, the pressures are great and there are some pretty awful temptations one can succumb to. 

Whilst doing the job which often entailed 60 hours a week, he fell in with some bad company and started using drugs whilst he was working.  He developed a habit in relation to cocaine and ice, and a downward spiral eventuated.  He committed a series of offences which I will go through, and these were committed largely to support his habit, to pay money for that.  In many instances he was under the influence of drugs at various times when he committed those offences.  He stated – and I will say more on this later – that it was a custodial sentence and basically his daughter that saved his life and helped turn him around. 

He arrived in Australia, as I said, in March 2001.  And his first convictions were of a traffic nature.  They were on 6 July 2004.  Drive on the road whilst his licence was suspended.  A $200 fine and 12 months disqualification.  And a mid-range PCA, $1000 fine with costs, six months disqualification.  It is unclear as to exactly what caused the licence suspension to start with but as the Australian States and Territories did at that stage have traffic infringement notices, perhaps one can expect that he exceeded the points and lost it for that reason.  Certainly that would accord with the fine and the 12 months disqualification. 

He next came under the attention of the authorities on 13 February 2006 in relation to a purported domestic violence offence against Ms ST, it would seem, who he was in a domestic relationship with, and their then one year old child.  On 15 December 2006 he was fined for use of an unregistered motor vehicle.  Then on 5 March 2007 he was fined for failing to appear in accordance with a bail undertaking.  The court system, it seemed at this stage, was not keeping up with the offences he was committing.  Certainly in the years 2006 and 2007 some very serious offences were committed.

On 6 November 2007 he was convicted in the Burwood Local Court for a number of offences.  Possess house-breaking implements.  Possess means of disguising his face with intent to commit an indictable offence.  Impersonate a police officer, wearing or possessing a police uniform.  Receiving property theft, a serious indictable offence, but to the value of less than $5000.  Goods in person or custody suspected of being stolen, namely a motor vehicle.  And possess controlled Australian travel documents not issued to himself.  The offence dates there were 20 July 2006.

The following offences were also taken into account.  He had been charged but he wasn’t convicted, and they were taken into account on a form 1.  Drive on a road whilst licence suspended.  Possess house-breaking implements, possess goods to the value of less than $2000. suspected of being stolen..  Goods suspect of being stolen,  Have goods in personal custody, suspected of being stolen, namely a motor vehicle.  They appear to have occurred on 9 July, 4 August and 15 September.  The first two being in 2007.  The latter being in 2006.  A two-year good behaviour bond was imposed there.

On 16 December 2007 the police applied for an ex parte provisional order for a domestic violence incident.  On 6 January 2008 there was a breach of an apprehended violence order for the period 2 January 2008 to 10 January 2008.  On 23 October 2008 he was convicted by the central local court of possessing and using a prohibited weapon without a permit.  Sentenced to one month imprisonment, commencing on 19 March 2008 for that one.  He was convicted on 26 March 2009 for aggravated robbery by the Sydney District Court, sentenced to six years and three months’ imprisonment.

On 3 December 2009 he was convicted in the Sydney District Court of taking and driving, a conveyance, without consent.  Imprisonment for 12 months.  That related to an offence in October 2006.  The prison sentence was to commence on 26 November 2009.  Also supply a prohibited drug more than the indictable quantity, not being cannabis.  Again, 12 months’ imprisonment.  A further charge of supply a prohibited drug, not cannabis, two years and six months commencing on 26 August 2009.  There were three counts to that offence

Demand property with menace with intent to steal, for offences that occurred between 5 and 15 October 2006.  Sentence to imprisonment for 18 months.  Further offences were taken into account.  A common assault, steal property in a dwelling house with menaces, occurring on 5 and 6 October 2006.  Dispose of property.  Proceeds of theft.  Supply a prohibited drug, two counts. 

On 2 September 2013 he was issued with a traffic infringement notice being in the wrong lane.  11 September 2013 infringement notice of exceeding the speed limit by more than 45 kilometres.  On 4 October 2015 a further traffic infringement notice for the offence of exceeding the speed limit on more than 45 kilometres.  On one of those offences his licence was restored to him on appeal. 

He applied for Australian citizenship on 28 September 2015.  On 12 November 2015 the Department of Immigration and Border Protection wrote to him to inform him they had information indicating he might not be of good character.  He was asked to comment.  He responded providing statements and documentations in November 2015.  On 20 April 2016 he applied for citizenship which was refused by a delegate of the minister, and the only ground put forward was that he did not satisfy the good character requirement.

Consequently, on 5 May 2016 he applied to this Tribunal for a review of that decision.  The sole issue before the Tribunal is whether this Tribunal can be satisfied that he is of good character for the purpose of section 21(2)(h) of the Australian Citizenship Act 2007.  Now, that doesn’t mean, as I think has been submitted by the respondent, that he is of bad character.  It is simply a good character requirement, and a good character requirement in accordance with the legislation.

In relation to any visa matters or citizenship matters, good character invariably goes back to what, if any, criminal record people applying for citizenship or visas or, indeed, opposing a visa cancellation, have.  The Minister contends that in the light of the applicant’s offending history, the Tribunal shouldn’t be satisfied that he is of good character for the purposes of section 21(2)(h) of the Act.  Accordingly, he is not entitled to citizenship. 

Subsection 24(1A) of the Act provides the Minister must not approve an application for citizenship unless the person is eligible to become an Australian citizen under subsections 21(2), (3), (4), (5), (6), (7) or (8) of the Act.  Subsection 21(2)(h) relevantly provides a person is eligible to become a citizen if the Minister, quote:

is satisfied the person is of good character at the time of the Minister’s decision on the application.

Which is what I have to now decide.  The term “good character” is not defined in the Act but in Irving v Minister for State Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J noted in paragraph 94 that:

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.

In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, the Tribunal there stated at paragraph 8 that:

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.

In Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, the Tribunal remarked there at paragraph 14:

When criminal offences have been committed by an applicant they will obviously be taken into account.  The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.

There is an applicable policy.  The respondent sets it out in the statement of facts and contentions.  Chapter 11 of the Citizenship Policy provides policy guidance to decision-makers in relation to making decisions of good character under the Act.  Where there is guidance given to decision-makers that is certainly something that the Tribunal has to look at and take into account because it’s there for that purpose.  The respondent contends the Tribunal should apply the Citizenship Policy in making its decision and quotes the case of Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, as authority. Page 145 of the Citizenship Policy provides that:

Good character refers to the enduring moral qualities of a person and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and other commitments made through the pledge should they be approved for citizenship.

It also provides that:

Enduring moral qualities encompass things like characteristics which have been demonstrated over a very long period of time, distinguishing right from wrong, behaving in an ethical manner, conforming to the rules and values of Australian society.

The decision-maker needs to 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 their migration and citizenship processes.  At page 147 of the policy it relevantly provides that an applicant’s good character would, amongst other things, respect and abide by laws in Australia and other countries, not be violent and not cause harm to other through their conduct, for example, recklessness exhibited by negligent or drink-driving, excessive speeding or driving without licence or insurance, and not be the subject of any verifiable information causing character doubts.

Page 156 of the policy provides that it’s best practice for decision-makers to incorporate the following steps when preparing a decision on good character.  Firstly to identify any offence or other reasons why the person may not be of good character.  Then summarise the nature of the offence incident, its seriousness, victims and other matter.  Identify any mitigating factors.  Summarise them.  Analyse any references and identify any weight given to each of them.

Essentially the question for decision-makers is whether any mitigating circumstances and/or explanation provided by the applicant outweighs the behaviour in question.  The assessment about whether an applicant is of good character requires the consideration of an aggregate of qualities.  The decision-maker should place more weight on significant offences.  Decision-makers can’t apply their own personal standards.  They have to do community standards.

Decision-makers are asking themselves, would a person of good character have behaved the way the applicant did.  What is there to demonstrate the applicant has upheld and obeyed the law.  Has the applicant behaved in accordance with Australia’s community standards.  And does the applicant share Australia’s democratic beliefs and respects its rights and liberties.  Other factors to be taken into account as such things like the nature and the seriousness of the offences, and any mitigating circumstances or explanations.  In relation to offences, paragraphs 10.5.2 of the policy, the Australian Citizenship Instructions, provides as follows:

Has the applicant committed any offences and, if so, did they admit that in their citizen application?  If the applicant has committed an offence, was it serious or was it minor?  Minor offences include traffic offences and offences that don’t lead to a conviction or a sentence.  Also, how many offences have been committed?  Was it a one-off or is there a pattern of criminal behaviour.  A pattern of behaviour even if for repeated minor offences shows a disregard for the law and indicates that the applicant may not uphold and obey the law if citizenship is conferred on them.

Paragraph 10.5.2 also lists the mitigating circumstances that decision-makers should consider in assessing whether an applicant may be of good character notwithstanding their offences or conduct.  Those include:

What’s the length of time between the date of the offence and the application for citizenship or the date of conviction and the application?  Has the applicant accepted responsibility, shown remorse for the conduct?  How has the applicant behaved since being released from prison or upon completion of any obligations to the court, such as a good behaviour bond? [That would include obviously parole.]

It’s important to see how the client behaves when they are free from the obligations of such a sentence or bond.  A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws. 

Has the applicant rehabilitated themselves?  Have they made a conscious effort to obey and uphold Australian laws?  For example, have they undertaken drug or alcohol counselling, anger management course, program or counselling for sex offenders, or any other program that addresses risk factors affecting their behaviour and relating to their offending.  Have they moved away from bad influences?  For example, disassociating themselves from peer groups. 

What was the applicant’s age at the time when the offence was committed?  Obviously for people who commit an offence at a young age the commission of the offence might be given less weight, depending on the crime, than if the person had matured.

Were there any extenuating circumstances relating to the offence?  For example, an offence committed under duress or under periods of psychological disturbance, including the involuntary effects of medication or temporary psychological conditions, but not including under the influence of recreational drugs, may be given less weight.  Any claims of mental illness should be supported by a psychiatrist’s report.

Is there evidence of length of employment, stable family life, community involvement?  These may be indicators of good character.  Applicants may wish to provide references from independent people like employers, attesting to the applicant’s character and whether they support the application for citizenship.  It’s open to decision-makers to contact individuals who have provided those references.

It goes on to say that obviously a reference which is a statutory declaration carries more weight than just a reference given on a piece of paper.  And obviously if witnesses turn up to a hearing, as they have in this case, and given evidence under oath, that clearly is the best form of evidence one can have because they can be cross-examined.

Now, the Minister contends basically that Mr Konur isn’t of good character having regard to his history and the frequency of that.  The Minister contends a grant of Australian citizenship is a privilege given to persons who demonstrate good character.  The Minister noted Re Fenn at paragraph 8.  That was cited in approval in several other cases including Re Sui v Minister for Immigration and Citizenship [2008] AATA 1062 where the Tribunal stated that:

The grant of Australian citizenship is a privilege not bestowed lightly.  That the applicant is making a concerted effort to turn his life around is a positive step, however it will take longer than five years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship.  The refusal to grant citizenship is not a secondary form of punishment.  That’s 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 the applicant 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.

The respondent goes on to say that the decision-maker should look at whether the applicant’s offence was serious or minor and whether there’s a pattern of criminal behaviour.  They contend that the applicant’s offending was serious and evidenced a pattern of criminal behaviour which weighs heavily against him for the purpose of the Act.  The respondent then went on to look at the seriousness of offending.  Now, there was a couple of instances there. 

Namely, 20 July 2006 where the police stopped him, noticed he was acting suspiciously and found a number of items including items that the police considered could have been used to commit identity fraud at a highly organised level, causing potential financial loss to individuals and financial institution on a massive scale: see Burwood Local Court summons documents.  Those items included personal and sensitive information of 44 individuals, equipment which the police suspected could have been used to commit a robbery, and equipment for administration of prohibited drugs.  Whilst this ultimately led to minor convictions, the Minister contends that the police intervention appears to have prevented more serious crimes happening. 

On 28 March 2007 Mr Konur committed an aggravated robbery, and this resulted in his conviction and sentence to three years and six months’ imprisonment.  That sentence being imposed on 23 March 2009.  Now, that involved confronting and chasing the victim down the street.  The victim  was taking $250 out of an ATM.  There was a co-accused there.  But, unfortunately, Mr Konur followed him down the street into a convenience store and kicked down the door of the convenience store bathroom where the victim had sought refuge.

Upon breaking down the bathroom door he punched the victim in the face and took his money.  It has been alleged there that in searching the victim’s pockets he was asking him, “Where is the gear,” and taking the victim’s keys.  It appears that he thought the victim had been pointed out to him as being someone who had some drugs.  Then he then dragged the victim from the convenience store bathroom to the back office, and the victim managed to seek refuge elsewhere until police came.

So those were very serious offences, especially the one involving chasing the victim, punching him and taking goods from him there.  Unfortunately, Mr Konur’s serious offending then continued in the supply of illicit drugs, and there was further sentence of imprisonment imposed there.  Between September 2006 and mid-2007 the police intercepted calls relating to procurement and supply of illicit drugs by the applicant, and they related to, on 30 October 2006 he agreed to supply an ounce of Ice.  Between 2 and 3 November 2006 half an ounce of cocaine.  Between November and 11 December ‘06, another ounce of Ice.  Later in December, sourcing and supplying another ounce of Ice.  Finally on 22 and 26 February, supplying some Ice to an undercover police officer.

There was another offence on 6 October 2006 where Mr Konur went to the victim’s house, made threats to kill him, stole his car.  The victim was involved in the drug trade.  Took a wallet, keys and two mobile phones.  The victim took refuge.  The next day Mr Konur threatened to shoot him.  He demanded $25,000 which he said he was owed.  In fact, I think he later said he was owed a bit more than that.  He did sell a GPS system from the victim’s car, the mobile phones and the memory cards on 9 October, I believe for about $900, and these are all part of agreed facts.

There were some further instances involving, on 13 February 2006, domestic violence.  This was the incident where he picked up a camera and threw it and unfortunately hit his two year old daughter.  At that stage his partner at the time (and the mother of his daughter) had words with him and I think as a result of that he left, and their relationship for a while after that was intermittent.  He broke into her apartment, however, on 16 December and there was some allegations of slapping and punching the victim then, and threatening violence, including threatening to knife her.

On 6 January 2008 which is the last reported basic incident involving any violence he attended the victim’s house in breach of an AVO, abused her, took her car keys, mobile phones, $2000 in cash, and it’s alleged he had some knuckle-dusters in his possession in relation to that.  So that clearly isn’t a very good record and I have read that out from the statement of facts and contentions.  Since then there has been a couple of traffic matters.  which, I will come to.  That was something the respondent made a lot of.  But the only offending since then, I note, has been traffic offences, and I will come to those and what Mr Konur has said about that shortly.

The Minister contends that between 2004 and 2009 Mr Konur committed a number of offences which escalated in seriousness.  A total of 15 offences.  Eight of these offences were punished by sentences of imprisonment.  And they submitted that following incarceration he continued to break the law, including three infringement notices between 2013 and 2015.  And as such, the Minister contended his offending countered against him being of good character.

The Minister conceded that there is certainly a period of time since Mr Konur has been free of obligations, but said it was not that lengthy.  The period of time was from 25 May 2012 until the present or until the time of this decision.  The Minister did note that the time he was free of obligations and the time of offending was the lesser.  I suppose that would mean that the offending started in 2004 and his obligations to the court finished on 25 May 2012, and it is now 2016. 

The Minister acknowledged that Mr Konur had provided statements for himself highlighting his positive relationship with his daughter.  Statements from his probation and parole officer and three other referees that speak to his good character.  As well as certificates of the various courses he completed including a drug and alcohol program.  The Minister contended, however, those factors need to be considered in the light of the matters that I’ve already dealt with, and I’m not going to go over again, and concluded that because of that it was too early.

Now, further to the matters which have been before the Tribunal, the respondent also tendered a series of incident reports from the police, evidence from the applicant, to suggest that on day 1, as soon as he is released on 25 November 2012, the next day the police are on his door just checking to make sure that he’s doing the right thing.  Since then he has been stopped on a large number of occasions.  The police in some of those occasions – and I think there’s probably close to about 40 or so – have indicated that they searched his car. 

There were some suspicions as to where he had been, the places he was stopped, the fact that he had two mobile phones on a couple of occasions, I believe.  However, none of the searches of the car revealed any drugs at all.  So whilst there were some suspicions there, nothing led to any further charges being laid.  I make two points about that.  Firstly, I will commend the New South Wales Police for their diligence in ensuring that they followed up on someone who certainly had some problems before, and ensuring that he was not breaking the laws or if he was they were able to apprehend him pretty quickly.

They have not been able to charge him with anything which means either that he is either very smart, very lucky, or both; or, indeed, he is clean.  And on that, I suppose, given that nothing has come about and in light of the other statements I would need to effectively objectively give him the benefit of the doubt there.  It is a very thorough series of police operations and police contact which to date has not netted any evidence of any criminal behaviour.  Of course we have the traffic matters.  So that has to be looked at in his favour in terms of when one adds to that the character references and his own evidence.

He certainly is entitled to any benefit of the doubt there but I commend the police for their thoroughness and I think that certainly helps in matters such as this.  Were he not to be as rehabilitated as he states, surely I think he would have been found with some drugs and charged accordingly, or surely he in a four-year period would most likely have committed some further criminal act and been brought to the attention of the authorities for that.  That he hasn’t is indeed commendable.

Now, the applicant gave evidence.  He started by telling the Tribunal how he came to Australia.  That after 14 months in jail there was a turning point.  He woke up shaking and sweating and he stated “That night I believe the drugs left my body.”  Since he has left prison he has applied for a large number of jobs, and I will come to that shortly.  He stated in relation to his offences that after he got into substance abuse, he admitted them, they were all his fault.  They were committed to support his habit. 

Some, for example the incident in March 2007, occurred after he hadn’t had any sleep for several days.  That is the effect Ice does have on people.  He stated, as I said earlier, the custodial sentence and his daughter saved his life.  He became sober.  He did state that after that revealing experience that night, some nine years ago, he resolved never to be part of anything bad again, and resolved to turn his life around.  All the offences had occurred in that earlier period of time.

He stated in terms of some of the offences – and he was asked a series of questions in cross-examination in relation to those offences – that, for example, and this did concern me a little bit, that he could have defended half of them but didn’t.  I mean, that’s something you often hear.  Also in relation to the assault and rob on the fellow who ran into the convenience store, that he wasn’t actually robbing him.  He certainly assaulted him but he was surprised when the fellow gave him some money.  I note, however, it was clear he was on Ice at the time. 

I do note, although there were occasions when he tended to try to explain away some of these offences, he came back to the reality that he was on drugs, he was wrong, he was guilty, he clearly shouldn’t have done it and at the end of the day he accepted full responsibility for it.  Despite some reservations I had initially in relation to some of his trying to explain some of them away, he always came back to the reality that what he had done was wrong, that it must have caused great concern to others, he was letting himself and his family down and it was something he needed to put behind him.

It is interesting in these types of cases, and a common human trait to try to downplay one’s wrongdoing.  It is always far better, I think, if someone just openly admits that they got it wrong and did the wrong thing without trying to explain it away.  Sometimes it is far better just immediately opening up and saying 100 per cent I’m wrong, I make no excuses for it, and leave it at that.  But effectively he – the thrust of what he was saying was indeed just that, that he accepted that what he did was wrong.

He stated, as I said, he has made a lot of job applications since he got out.  284.  That was of last week.  There might have been some more since, and that the last 15 months in custody he did a number of courses.  He enrolled in a University of South Queensland course for a Bachelor of Arts.  He did one year out of three.  He stated in prison it wasn’t easy, and that he did stand up for himself.  He’s a very powerfully built man.  He has been a bouncer.  I would imagine in a difficult environment like that, that certainly at least seemed to work for him but he certainly got into no trouble in prison.

He did TAFE courses.  He has a Certificate III and a Diploma in IT and Networking, a Diploma of Business and some further qualifications which I will read out shortly.  He is certainly commended to utilising the last 15 months in prison doing those courses, and continuing it upon his release.  He has further stated that he really wanted citizenship to enable him to access the schemes, the HECS schemes especially, whereby one can do a university degree and can apply for HECS and get it, and that way go to university to better himself and provide for his family, and especially his daughter, and the community.

Unfortunately, I think the scheme changed in 2013.  He may well have been able to do it earlier but he couldn’t after that.  And so that is a big reason for citizenship.  He also has some significant concerns in relation to his father especially, who has or had prostate cancer.  He seems to have survived that but clearly there are some issues there which greatly concern him.  He is concerned that if he leaves Australia he may not be able to get back in.  I commend the representative of the respondent for making the inquiries that she did and assuring him that his visa remains in force until 2019.  That enables him to come and go from Australia as he wishes. 

I suspect the problem arose from the fact that there was some offences he may not have declared because he simply didn’t remember them all, and that might have caused a problem.  I suppose all that means is one has to ensure that they do have a list of everything on hand to provide it if that question is asked, and if someone wants to see everything there.  But it is quite clear to me from what the respondent has said, who checked with the department, that the visa entitles him to come and leave Australia. 

The only way that he could possibly get into any trouble would be if he went back to Turkey and committed something very serious there, like got himself locked up or suddenly he had a brain snap and decided to run off and join ISIL, or indeed should he commit further offences in Australia and get locked up.  Clearly he is hardly mindful of doing any of that.  He has said as much as I accept what he says there. 

It is also relevant in this matter, and the documents which were provided by him, that the Department of Immigration gave him notice of a decision on 24 February 2011 not to cancel his visa under section 501 of the Migration Act 1958.  They took into account all of the considerations and they had all his records and looked at all the terms of imprisonment there in front of them.  After taking into account all relevant considerations, I quote:

A delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion.  Your current class BS subclass 801 (spouse visa) will continue to provide you with permission to remain in Australia.  However, the delegate decided that you are to be given a formal warning.

Then it goes on to say a number of other things.  It does stress to answer questions correctly about criminal convictions and things, coming into Australia.  He acknowledges the notice of the decision.  He says:

I understand I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future, and if this happens my past conduct and previous relevant information can be reconsidered.

He signed that on 4 May 2011.  However, as was indicated by the representative for the respondent, providing he keeps his nose clean in Australia and doesn’t do anything ridiculous overseas, then clearly he can come and go here as he wishes.  As I said earlier, perhaps that part of the transcript might be something, Mr Konur, that you take with you if you have need to go back to Turkey.  And that hopefully will alleviate the obvious fears but I can understand why you had them, which you expressed during the hearing of this matter.  But clearly, as far as the Department is concerned, you can come and go as you wish. 

[redacted for administrative reasons]

Now, apart from that obviously your other main concern is simply to ensure you can get HECS, get your qualifications because it’s very difficult getting a State government job.  Sometimes they actually require citizenship to get a job.  I should note a number of other jobs don’t but certainly quite often you need to be an Australian citizen for some of the public service jobs.  You mentioned also in relation to travelling more than 45 kilometres an hour on one occasion it seems, and that might have been when you crossed the lane.  No, that was at the airport when you crossed the lane. 

On one occasion you were on a bike and you actually drifted off to sleep.  Well, that certainly is dangerous and I do make that point.  On the other occasion I note that you stated you felt and thought the speed limit was 110.  It had been 110 and they changed it to 80.  I simply note in relation to that, if it’s 45 kilometres over the speed limit you’re still 15 kilometres over on my mathematics, so you’re still breaking the speed limit.

Those are issues of concern and I note that.  I don’t put them any higher than that at this point in time, although obviously it is desirable to not break any laws because even breaking a traffic law can actually, as the respondent quite correctly points out, show a disregard for Australian laws, which is one of the criteria.  At the end of the day whether they are not criminal laws but they are still laws and obviously there is a danger to others especially when high speed is involved, as well as a danger to yourself.

I note also the respondent has indicated that your visa expires in 2019, and they have absolutely no problem at this stage with a renewal.  So I make that point as well.  That obviously is something that again, if need be, should be put on the record, and I so do.  I think the representative for the respondent very adequately went through all the likely scenarios there and indicated if you keep your nose clean you don’t get into any further trouble, you just don’t have anything to worry about with such things like re-entering the country or renewal of a visa.

I will make a further suggestion at the end of this case noting that date of 2012.  I’ve already made comments about how you indicated you felt you might have defended some of these but didn’t, so I’m not going to go over that again.  But I do then note that you indicated that you had a number of character witnesses supporting your case.  Now, they are several and I will deal with the character witnesses including the ones you actually called to start with, and then the ones in your application.

Your first character witness is a pretty simple one.  23 May 2006.  Dick Williams, chiropractor, who said you had been seeing him for some spinal problems.  You are always reliable.  Always attend appointments.  You always pay him.  You’re compliant with any advice.  You respond well to treatment.  You always show gratitude for his services:

I enjoy having Korhan as a patient and found him to be pleasant to deal with.

He then supplied the letter from immigration and also your acknowledgment. 

The next character witness who gave evidence was Ken Foley of Matraville. On 6 May 2016 Ken Foley wrote that he had known you for nearly three years:

I first met Korhan when I was moving a washing machine out of the building he was living in.  He asked if I needed a hand and I gratefully accepted.  I had seen him when I was either entering or exiting the building and we exchanged pleasantries for a while.  Names were never exchanged until that day when Korhan could see that I was struggling to move the washing machine.  We have talked since then whenever our paths cross.  He doesn’t live at the  Waterloo address, but he knows two of the neighbours who do, and both of those residents have talked about Korhan as being a helpful neighbour, assisting them with moving heavy items, even offering to give them a lift to the shopping centre and to attend medical appointments.  While I understand that Korhan has spent time in jail, I have got to say I was surprised.  He explained with some reservations what he did wrong.  Why he did what he did.  I gather this was stupidly a result of drug and alcohol abuse or both. 

He visits Mr Konur’s building twice a week to see the neighbours and sometimes Mr Konur if he’s home:

I’ve never heard or seen Korhan under the influence of any substance.  He maintains a spotless apartment.  He is a very quiet neighbour within the complex.  I know from time to time he has his daughter staying with him.  His face and eyes light up with excitement when she’s with him.  They clearly have a mutual love and respect for each other beyond father and daughter.  Kind of best friends.  Korhan, in short, is a decent and caring fellow and in my opinion is someone who you would want to know and have in your life.  He has become a good and close friend of mine.  I sincerely believe that Korhan possesses absolutely no risk at all to his friend, his daughter, ex-de facto or the community.  I hope for Korhan’s sake that he is successful in obtaining Australian citizenship.  I know how desperately he wants it, talks about it and how much this would mean to him.  Citizenship would, I believe, also help him continue learning through TAFE or university, including living in a safe country and stability guaranteed.  His dreams and goals are basic and, in my opinion, humble.  Work hard, study, provide a good future for his daughter and continue to be a good, honest, law-abiding citizen who genuinely wants to make a difference for himself and the broader community.  I’m happy to support him and I’m happy to speak to whoever wants to speak to him.

A further letter in support was on 5 May 2016, and this was from Ms ST, who is with us again today.  She had known him for 13 years post his conviction and subsequently through the incarceration:

He is the father of our daughter who we both co-parent in a very amicable arrangement.  While we maintain separate residences we are closely linked and bonded through our daughter, her upbringing and development.  Korhan has, previous to his convictions, held positions in Nero Security and was working within the Sydney CBD and surrounds.

That’s how they met.  She states:

He is a very caring personality and engages with people he is in contact with.  He has a very supportive, nurturing and generous nature that mutual friends would agree with, characteristics that I find personally very endearing.  Clearly there was a short period of time due to external pressures when he was engaged and mixed with individuals that served to be less than desirable in his dealings and social surroundings.  A network of individuals who he has never again taken up any social network.  However, this previous association resulted in numerous charges, many of which you will know were in fact dismissed.  These charges largely related to…

Well, she goes on about them.  Referring to his not demonstrating any tendency to go back to his previous offending.  She says:

This is something I have been acutely aware of since his release from corrective services, simply because we have a daughter to raise who deserves not to be exposed to any illegal activities.  His past his very serious and sensitive to my daughter’s surroundings, her school network and peers.  I can assure you that I would never release my daughter for overnight absences from me if I felt for one moment he would repeat an offence the same or similar to that of which he was incarcerated a while ago.  He is a changed man and worthy of being associated with us.  He is very hands-on with my daughter, who is his daughter, playing an active role in her upbringing, assists in activities when I’m absent for work purposes, including overnight stays with us on occasions, including his share of financial responsibilities where possible.  It is for these reasons mentioned I genuinely believe that changes in himself, his education, his commitment to his daughter and his stability within the community are more than reasonable grounds to support his good character in my assessment and support for him in his application to become an Australian citizen.

Again she wishes to be contacted.  Not only that, she turned up and gave evidence before the Tribunal as well.  She stated before the Tribunal that she met him when she was working in the same area where he was a bouncer.  She fell pregnant and she had their daughter in 2004.  No idea of what he was involved in, although often he wouldn’t turn up and things when he was meant to.  But she found out when he had to go to court, and also once she received a phone call from a woman who said she was his girlfriend and she wasn’t remotely impressed. 

That lead in fact to one of the domestic violence incidents in a rage, and that was the camera incident.  She kicked him out.  She kicked out the friends he had with him, and after that she saw him for a period of time on a random basis.  At that stage she had no idea what he was doing but she suspected he had big issues with drugs at the time.  She actually at court saw, I think it might have been the same girlfriend, and there was an incident where she was hit by the girlfriend with the handbag. 

She gave evidence about that and how she wanted to take out an AVO but that didn’t eventuate before the court.  I don’t think Mr Konur was terribly interested in assisting then.  So there were some issues there.  She was very frank about those.  She indicated she started seeing him in jail.  Initially it was once a month.  Then it ended up, when he clearly was making significant progress in rehabilitating himself, to once a week.  She stated:

After a while in jail, over time he became caring and loving again, and he apologised.

She noted that he wasn’t as agitated and stressed, and when he came out she felt that he had become and was back to the person she first knew when she first met him.  His parents came out on his release, and stayed with her for some three weeks.  He in fact stayed for some six months.  Whilst she isn’t actually living with him she will see him on a weekly basis.  She has stayed with him at Waterloo and he is a very good father, and her daughter frequently stays there.

Now, as well as that, Ms Turk gave evidence as well.  I’m not sure if I got a statement from Mrs Turk but at any rate she is an educator at TAFE.  She has known him only for three months but she does see him for three hours every Thursday, and she was particularly impressed with him.  She does IT, welfare and community services, manage and promote diversity.  Her classes involve open discussions, how to compose himself in the capacity of community services.  She has been an educator for some 30 years. 

He has expressed to her, and she accepts his willingness to want to make a difference.  He has a past he is ashamed of.  He has humiliated himself and his family.  He has told her this.  She said he stood out.  He was like, quote, “A giraffe standing among sheep.”  He’s resilient.  He plans well.  He encourages and identifies with the need to overcome hurdles.  She said a lot of her clients collapse, can be negative, involved in a lot of self-pity.  He keeps rising above that.  She says he helps others he comes across, that she sees.  Everyone has pasts.

She is aware he has served time.  She didn’t go into any of the great details there but has taken him to see, because she was so impressed with him, the local member for Fairfield, Mr Guy Zangari, who she stated was highly impressed with him as well and wanted him to be involved, as she did, with mentoring people, which is what the applicant himself wants to do, and especially young people perhaps in prison who have issues not dissimilar with him so he can discourage them and discourage other people from going down that path.

Indeed, when I quizzed her in relation to, well, maybe she could help him look for jobs, as could Guy Zangari, that Guy Zangari, the member, was actually keen for him to do some work with him.  I would assume voluntary work but certainly that’s a wonderful way when you start doing that sort of work, of getting into paid employment, which I commended to the applicant at the time, commended to Ms Turk, and I commend to the applicant again in terms of getting back into the community.  Someone like a local member certainly would know a lot of other people, as indeed one would think would Ms Turk.  So not only did she give a good reference there, there were some obvious job potential opportunities there, starting off with voluntary work, which I commend to him.

The next witness in the bundle he gave, was Sebastian Fisher.  He also gave evidence.  Sebastian Fisher, on 27 April this year provided a letter of support, saying he was a neighbour of Mr Konur for the last three and a half years.  He has come to know him well, almost from his first day of arrival:

Korhan and I became very good friends over this period of time.  He is the perfect neighbour, keeping an eye on my apartment during my times away.  He is liked by other tenants and has often been seen helping tenants move furniture in and out of our buildings.  I am amazed at how many residents in our street in Waterloo who actually know him or know of him. 

Whilst he has shown signs of being social, he seldom invites friends or guests to his apartment, preferring to live his home life with his daughter on the occasions she stays with him.  It’s very clear to anyone that his cultural heritage of family is paramount in his union with his daughter.  He takes it upon himself to find out about her schooling activities, both inside the education system and her external activities, often asking me why we do what we do, how do we teach our children in the Australian education system.  Almost a student in his keenness to learn, himself. 

He has demonstrated an interest in three areas of study, IT, business management, and now wishes to undertake further studies.  He is keen to explore human resource management and also community affairs studies.  This comes from his apprehension, I believe, and understanding the struggles and the processes of establishing roots in Australia as a migrant himself.

I believe community studies would be a well matched marriage, thus allowing him to serve the community as he so clearly makes his intentions of achieving this.  However, this is not possible currently due to his non-citizen status prohibiting him from undertaking further studies.  His disappointment is further exacerbated by the dozens upon dozens of positions he cannot apply for, primarily Australian government positions, because he’s not a citizen.

Many discussions have been surrounding these issues and the frustration he endures due to this limitation imposed on him.  I’m aware of his past and the time he served in prison.  I don’t think that a day passes where he has not reflected on this, and how severely sorry he is for his actions and the time lost with his daughter. 

Korhan expresses his desire more often than I care to remember of his dream of studying, engaging in community activities, preferably in a paid position, to give back at the same time.  His determination to make a go of it I find inspiring, myself, heartfelt and sincere.  I truly hope that Korhan is able to successfully settle in Australia, not just as a permanent resident but as an Australian citizen. 

I acknowledge in the eyes of the law he has done wrong.  He has at the same time made massive inroads and effort to correct his wrongdoing.  He continues to do so in every sense of the word, attempting to break the chains of his past apart.  I am most pleased if I could act as a verbal referee to support him in his endeavours to become an Australian citizen.

Again, he turned up and gave sworn evidence in support of the applicant.  He further stated that apart from that that he lives underneath Mr Konur.  He does caring, himself, of a man who has dementia in Marrickville, but Monday to Friday he would see Mr Konur for half an hour to an hour, often having a cup of tea or Turkish coffee.  He also texts him or speaks to him by phone two or three times a day.  He has to pass his apartment any time he goes in or out, that is Mr Konur.  One of the neighbours is elderly;  Mr Konur always helps him with lifting.

He will help him too with $2 or $5 here and there.  He says he has got a very good bond with his daughter, and he further states that on occasions that about four times a year there’s a gentleman from Melbourne who, from a fashion company, comes and stays overnight.  One night on about four occasions here, and that really is about the only other person that he does see who comes in from outside.  He went on to say too the area they live in has a very high crime rate.  There’s a proliferation of druggies and alcoholics.  He says he is a very good watch dog. 

He has made it clear he doesn’t really want anyone coming into his apartment.  He is a very private person.  Mr Sebastian Fisher also indicated that were he wanting to be involved in a life of crime, it’s the ideal area to do it because there’s just so many druggies who have a habit who need people to sell drugs to them to continue their habit.  He stated that he is an eager beaver in terms of his study.  He has known him to do three diplomas.  He in fact helped him with a PowerPoint presentation for community services.

His big problems are his criminal record and he is unable to get citizenship.  He said he could have reoffended many times for the reasons I gave above.  He says he was actually assaulted two months ago by an Ice addict, and he was very circumspect.  He did take the person’s stick away and he simply just walked off and ignored him.  He has never gone back to drugs, and he thought he could make a lot of money if he did, as I’ve said.  He was very supportive of him getting citizenship.

There’s a further letter from Wilfred M Lax, clinical psychologist, adjunct supervisor, Macquarie University, dated 20 May 2016, stating that he has been a clinical psychologist since 1985.  Mr Konur has been a client of his since May of last year.  The GP referred him there for anxiety.  He goes through his history.  He’s well aware of his history and how he has studied IT and business, struggling to find work with his criminal record.  In 2013 the laws that allowed him to study changed and as he is a non-citizen he is no longer able to fund his studies.  He states at paragraph 10 of his letter:

Mr Konur has rehabilitated himself and no longer uses drugs or engages with criminals.  He spends his time trying to improve his life.  The crimes he committed were a consequences of his own drug habit, and in which regard he is as much a victim as the perpetrator.  We are hopeful that if citizenship is granted he will be able to continue to rehabilitate himself and resume his proper place in society.  I can vouch for his personality and progress.  He has always attended his appointments, worked hard to improve himself and is desperate to better himself and make a proper life for himself and his daughter.  Please don’t hesitate to contact me if need be.

As well as that, in the documentation provided by the applicant, the T docs provided by the respondent contain a couple of further references there.  There’s a three-page reference from page 37 through to 39 from Deborah Campbell-Allen, psychologist at TAFE.  She is aware also of his record.  Honest about it from our first meeting.  She has seen the full transcript of his offences and the penalties associated.  She has known him since he was released from jail in May 2011.  He couldn’t pursue the University of Queensland offer because of financial hardship.  He was disappointed and distressed about that.

She has had an ongoing connection with him for the past five years while he continued his education via TAFE study.  He has sought counselling and guidance from her for both educational and personal matters.  She is very aware of the complexities and personal and educational challenges that he has to forge a new direction for his life and future for himself and his young daughter.  She feels he is a very bright person. 

He has clearly demonstrated he is capable of higher level academic studies.  He has completed successfully two degrees at TAFE.  He could be offered a place at university without a problem.  He could apply for a prior recognition of learning for the diplomas.  He wants to make a positive contribution to our community, to earn his income through hard work in a socially acceptable manner.  He never wants to resort to crime again.  He has done everything he can via TAFE studies to move ahead.

There’s a number of personal, emotional, physical and psychological challenges which have faced him since leaving jail.  He has faced those challenges as they’ve arisen.  Never lost sight or given up his goal to be educated.  When he has been feeling vulnerable he has sought appropriate counselling to help support him through difficult times.  He has had to be self-reliant as other than his ex-partner and young daughter he has no immediate close family members in Australia. 

He has presented as serious in his education and career goals.  He has been reliable and punctual in attendance of appointments and has always been polite, courteous, respectful, very appreciative of any assistance he has received.  I hope that his serious efforts over the last four years to forge a positive way of life to educate himself towards a career with a goal of being employed and providing for himself and his dependent child are taken into account in considering his application for Australian citizenship.  If granted citizenship, Korhan would also be able to move into the final stages of his education.

There are two quick letters from William Quan.  8 May 2015 and on 5 May 2015 from David Chemke.  William Quan is from the Salvation Army Employment Plus.  David Chemke is from Management and Frontline Management TAFE New South Wales.  William Quan from the Salvation Army states that the applicant has been a client of his for four years. 

He has completed two vocational diplomas.  He has consistently participated and contributed to the on-site vocational/non-vocational programs.  He has excellent attendance records and adheres to the pathway plan. 

He is aware of his history:

He has shown himself to be a positive and constructive client who shows initiative and completes the task he is given.

David Chemke from TAFE similarly indicates he has known him for the period of the course commencing in January 2014 for a year.  He is aware of his history.

He fitted into the classroom environment well.  He has shown a good attitude to his studies as well as to his teachers and colleagues.

The final reference is from a Simon Downing, and I think this is a particularly good reference for the applicant.  It is a good reference because it is from a probation and parole officer.  He states:

I am writing to support Mr Konur’s application for Australian citizenship.  I have known Mr Konur from when I was working as a probation and parole officer.  I have known him as a community corrections officer with the Department of Corrective Services.  I have retired from that role in 2013 and hence do not have access to the Department records.  I supervised him from the time of his release to parole, until the time that his parole expired, 25 November 2012.

I retain a good working memory of my dealings with him.  Mr Konur kept appointments made for him including drug tests which were all negative.  He was respectful in his dealings with me and other officers who worked with him.  From recall, the matters for which he was sentenced to imprisonment occurred within a relatively brief episode of criminal activity fuelled by drug intoxication.

My perusal of Mr Konur’s custodial record indicated that he had served his term of imprisonment without custodial charges and with evidence of his pursuing further education needed for his rehabilitation.  On his release he lived with his then-partner, Ms ST, and mother of their child, N, in her flat in Surry Hills.  The de facto relationship broke down some time after his release but it was evidence then, as it is now, that Mr Konur retained a respectful relationship with MS ST and maintained his parenting role with N, which he does today. 

I have maintained occasional contact with him.  In my view, Mr Konur has shown he is worthy of being granted Australian citizenship on the basis of:  (1), significant family and community ties in Australia, as evidenced by his attitude and conduct in relationship to his daughter and former partner;  (2), evidence that he has overcome the criminogenic factors such as drug use and dependency that fuelled his antisocial behaviour;  (3), the times I have seen him he has shown no evidence of the numerous signs of intoxication or dependency. 

So no evidence of any intoxication or dependency.  Excellent English language skills written and spoken.  Work ethic.  Commitment to education.  He has resided in Australia since March 2000.  He appears to have been a law-abiding permanent resident since release from custody.  In conclusion, I think that the great country we have the privilege of living in will be enhanced by Mr Konur being admitted as a citizen.  Our country was built originally on the concept of prisoner rehabilitation and I think the extension of this will be a benefit both to our country as well as the interests of Mr Konur, himself.  Please contact me if need be.

So a very good reference there.  We come, therefore, to the conclusion and I have already to some extent gone into the legislative background.  The case of Re Chum v the Minister for Immigration and Citizenship [2011] AATA 536 sums up very succinctly the fundamental background relevant to this case. And fundamentally it is:

Section 21(2) of the Australian Citizenship Act provides:

(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.

Chapter 10 of the Australian Citizenship Instructions sets out the policy guidelines which are to be applied by delegates of the respondent in assessing applications …  The Tribunal is required have regard to the policy set out in the Instructions, unless there are cogent reasons why it should not (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

The relevant paragraphs of the Instructions provide:

…

The term “good character” is not defined in the Act.  Decision makers must therefore be guided by the ordinary use of the words in making assessments... It is the responsibility of the applicant to show they are of good character.

...

An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. However, general conduct and associations may also be relevant.

...

Assessing good character involves:

-establishing whether or not an applicant has a criminal record, and the nature of that record, if any

…

-considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicant’s behaviour.

The Instructions list a number of factors that decision-makers should have regard to where a person has a criminal record. They include:

-the seriousness of any offences against ordinary community standards.

…

-whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond

…

-whether an offence was a one-off occurrence that can now be considered “out of character”, or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character.  Where the offence was not out of character, consider whether the applicant has been rehabilitated ...

…

-whether there were any extenuating circumstances relating to the offence.  For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist.  The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

…

-the applicant’s age at the time the offence(s) were committed.

A person’s behaviour as evidenced by a criminal record is relevant to the assessment of character.  Appropriate weight must be given to a person’s behaviour immediately prior to the making of a decision.

A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

As in this case, the only issue in Chum was whether the applicant there was of good character.  Mr Chum had come to Australia in 1995 from Cambodia.  He became a permanent resident in 2006.  He had been here in fulltime employment.  He has been an asbestos remover.  Unfortunately, he was convicted on 18 July 2007 in the Dandenong Magistrates Court for recklessly causing injury related to threatening someone with a machete.  He lodged an appeal and the County Court in Victoria on 27 March 2008 dismissed the appeal, convicted and sentenced him to three months’ imprisonment, wholly suspended for two years, plus a fine of $2000.

So the good behaviour bond expired on 27 March 2010.  Mr Chum made his application in 2011 seeking citizenship.  The effect of the decision in Chum was that this really should not be considered until two years had expired from the date of expiry of the good behaviour bond.  In other words, at least two years after that good behaviour bond, which was for a two-year period, expired, given that that was the one and only criminal conviction that was relevant there.  Specifically, in paragraph 19 the Tribunal stated, quoting Steele v the Minister for Immigration:

The Tribunal stated that character is to be judged objectively against ordinary community standards of moral behaviour.

In Irving, Davies J at page 425 stated:

...the term “good character” is not precise in its denotation.  In one sense, it refers to the mental and moral qualities which an individual has.  In another sense, it refers to the individual’s reputation or repute... But criminal convictions or the absence of them and character references are likely to be an important source of primary information.  If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant.

The same meaning should be given to good character as in section 501 of the Migration Act 1958.  That’s also referred to at paragraph 20. Specifically and finally in paragraph 23, in applying the Instructions and the findings, the Tribunal in Chum’s case was satisfied that:

…the conviction involving a weapon and resulting in a term of imprisonment of three months, although wholly suspended, represents a serious breach of the law –

which reflected adversely.  In 25:

The respondent submitted that a period of at least the length of the suspension period was appropriate before the character provision was met.

In other words, as I said, two years after the bond of good behaviour expired.  Finally, the Tribunal in Chum said:

In all the circumstances the Tribunal is not persuaded that a period less than the period of suspension is sufficient for Mr Chum to establish a pattern of good behaviour or a change in character.

For these reasons the Tribunal finds, on balance, that Mr Chum has not demonstrated that at the time of the Tribunal’s decision he was of good character. Consequently, he does not satisfy section 21(2)(h) of the Act.

As indicated to Mr Chum by the respondent’s representative at the hearing, he is entitled to make a fresh application for citizenship and may consider doing so when sufficient time has lapsed since the expiry of the period of suspension.

So clearly what we have there is one offence and a key time period after the bond expired that was seen as reasonable.  I note in the circumstances here a number of factors.  I note that Mr Konur first became known back in 2004.  The serious period of offending seems to be between 2006 and January 2008, and it was very serious indeed.  The total period in terms of when he was under attention for committing offences or in jail or supervision was from 2004 through to 25 November 2012, a period of some eight years. 

In 2015 he applies for citizenship and we all know the reasons why.  First and foremost it is a bad record.  I cannot attempt to gild the lily there, and nor really does Mr Konur.  He accepts it.  He is to be commended for accepting it and he is to be commended for the steps he has taken.  He has made great progress. 

I know the Minister has made much, through its representatives, of him re-offending in relation to traffic.  Yes, driving 45 kilometres over the speed limit does show a disregard for the law and it is something that clearly is a real problem and cannot be dismissed.  He has, however, not reoffended in any criminal sense.  He has had ample opportunity to do so in accordance with where he lives and the various witness statements.  He has not and that is clearly a credit to him.

He has shown a good attitude towards rehabilitation, and his conduct since release has been very much on the positive side and far outweighs any of the bad.  The bad being perhaps, well, if one can glean anything from the police surveillance which I think if anything probably also shows that he is clean, so I discount that, as I’ve already said.  In fact, that probably helps him because of the diligence shown by the police.  Of course the traffic matters are indeed something that can’t be discounted and show a problem. 

But when one weighs up all that up against the excellent progress he has made, I think they pale into insignificance.  He has some good witnesses.  Some people who are going to stand by him, who I encourage to assist him in getting work experience and jobs.  Some of his fears in relation to not getting citizenship I think are unfounded, as I’ve already indicated, in terms of just the nature of his visa and the fact that he is able to come and go from Australia as he pleases.

The third factor is, however, that Australian citizenship is not something that is lightly given.  This isn’t, unfortunately, a situation of a man who has shown great rehabilitation from relatively minor offences or, indeed, maybe just one serious offence.  There have been some very serious offences committed.  Clearly when one looks at Chum and indications in some of the other cases too, it is my view that not sufficient time has passed as yet. 

It is a very high bar for someone to get Australian citizenship.  It is not just courts or Tribunals that do it.  It is the general community expectations of a citizen.  It is not to be used as a secondary punishment.  Far from it.  But it is something that clearly has to be won and, unfortunately, the authorities seem to indicate that that isn’t quite the case yet. 

I indicated earlier during the course of the hearing that there are a number of examples in the law where one has to wait a period of time.  For a security guard licence, for example, in New South Wales, if someone commits an assault, common assault, that will preclude them for 10 years, and there is nothing that can be done about that because that is the statutory timeframe.  In other State and Territories, such as the ACT, a Tribunal has a discretion and I have utilised that, myself, on occasions sitting as a president in ACAT.

Again, one has regard to what other States do but even there, there is an expectation that a certain period of time needs to elapse, with a discretion of course that may not be as long as States which do have a set period.  In this instance there is no set period but there is clearly an indication that for a series of significant offences a relatively lengthy period of time would be necessary.

I note, and I said earlier, that one looks at when he started committing offences to when he was released from any obligation is about an eight-year period.  That, to me, would seem to be a relatively reasonable yardstick.  There is another timeframe factor which I would also mention as another potential yardstick.  It is interesting exhibit A1, which I think the Tribunal had virtually all the other documentation.

Exhibit A1 which was admitted into evidence last week was from the applicant to basically show an advice he got from Rubicon Migration Australia, Amanda Kirkpatrick, that she confirmed the advice that in the meantime overseas travel would best be avoided, but in particular travel to Turkey, which was how we got to the point of what status his actual visa conferred on him and whether there was a problem. 

I have already gone into the fact that there does not appear to be a problem there, and the various undertakings given by the respondent, but this letter was the context in which he was anxious in relation to that.  I note the letter also did indicate that:

I refer to our recent conversations and email communication and confirm that you are withdrawing your review application to the AAT.

She sent back documents to him which we have a copy of.

I confirm your intention to make another citizenship application in the next few years, and note that the barrister who provided verbal advice suggested a full psychological assessment as the prospects of reoffending would also be helpful in addition to support letters.

Then she goes on about travel.  I note, and I think it was in evidence or mentioned during the course of evidence, that one of the main reasons for that was the additional traffic matters.  I would also indicate very much it probably or it may have been smart advice on the basis of the extensive previous criminal history. 

But I now state that whilst he was clearly aiming to bring back his application later, Mr Konur, I’m glad you did it now.  It has given me the opportunity, and a somewhat lengthy decision, to put on the record the great steps you have made at rehabilitation.  The regard you are held in, in the circles you mix with.  The opportunity you have had to go back to a life of crime which you have consistently appeared to have refused to do.  The respect and love you show for your daughter.  The respect and I would imagine there’s still a fair bit of love between you and Ms ST there, and the great steps that you are taking.

Unfortunately, it is just too early for the reasons I have given, for you to get citizenship.  I would think over the next few years if you continue on the path you’re going and slow down a bit if you’re driving cars so you don’t get any traffic infringement notices, it would be impossible for anyone not to grant you citizenship if you keep going the way you are going.  I think a period of probably extending out to about 2020 would be ideal.

Although I commend to you and I commend to the Department, the respondent, as well, that if the Department says your visa is to be renewed in 2019, I think it would be very sensible having a chat about six months before that happens, to the Department.  I will now refer to them as the respondent.  You might find that the respondent, given that that’s about another three years down the track, might be very amenable at that stage to rather than just reviewing your visa, granting you citizenship.  But I think something in that timeframe is logical.  For me it is just too early. 

Whilst I’m highly impressed with what you’ve done, I just think you need a bit more time to make sure of it, just to convince everyone and looking at the guidelines, tick all the boxes in the guidelines which you are substantially along the way of doing, that the rehabilitation is complete.  Four years, given your record and the period of time it’s over and the seriousness, isn’t quite enough, even though what you have done is highly impressive to date.  I encourage you to continue to do that. 

I encourage too, you to follow up on Mr Zangari and , Mr Fisher.  I would especially encourage you to see the politician, Mr Zangari. If Mr Zangari is fair dinkum in wanting to put you on in some sort of voluntary capacity, he would know lots of people.  If you work well there, all sorts of paid employment opportunities will probably come up.  Similarly with Ms Turk and Mr Fisher.  They’re both in a system whereby you not only can start off by doing voluntary work but such work could then well lead to paid work.

There are a number of instances where people have spent time in prison, have managed through those sorts of contacts to get themselves into paid employment.  Unless it is a Commonwealth government job or a State government job initially, in many jobs, other jobs, you don’t have to be a citizen.  But getting into any employment, one, it brings in money, but secondly it’s just a further string to your bow to show that you have further rehabilitated. 

I have every confidence that you are going to continue to not re-offend.  Just watch the traffic matters because that is part of the criteria, albeit not nearly as serious as any criminal offences.  But I think the future can be very, very positive for you.  You have shown an excellent attitude just to the people you meet, to your daughter, to your ex-partner and just to everyone in general.  Keep up the good work.  I think you will find the time will pass very quickly.  I would hope to see you in paid employment in the near future, but there’s a lot you can even do in a voluntary capacity before that. 

I don’t know if I will ever see you again but I would very much like to hear at some stage that you have been made a citizen of this country.  I think if you can continue the efforts you’ve made for the next few years and you get citizenship, Australia will have acquired a good citizen.  Keep up the good work.  Don’t regress.  Don’t let anyone down and I think you will make it.  You’ve got some great support too.  Those are very, very impressive references.  And, Ms ST, you’ve stuck by him very, very well.  Your daughter clearly loves you very much.  Do it for her, do it for yourself and I’m sure you can.  But, unfortunately, I am sorry I can’t give it to you today.  It’s just not enough time.  I wanted to say all that personally to you.  Thank you.

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