Kuk and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 2905

Kuk and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2905 (9 September 2022)

Division:GENERAL DIVISION

File Number(s):      2020/5287

Re:Trevor Kuk

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member A Poljak

Date:9 September 2022

Place:Sydney

The decision under review is affirmed.

..................................[SGD]......................................

Senior Member A Poljak

Catchwords

CITIZENSHIP – resumption of citizenship – where the applicant ceased being an Australian citizen – whether applicant is a person of good character at the time of decision – relevant law and policy considered – relevant material considered – decision under review affirmed.

Legislation

Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

Fenn and 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 and 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

9 September 2022

1. Trevor Kuk, the applicant, was born in Australia and upon his birth he became an Australian citizen because of subsection10(1) of the Australian Citizenship Act 1948 (Cth) (the 1948 Act). He was an Australian citizen until 1999, when his mother acquired citizenship of the United States of America. The applicant ceased to be an Australian citizen pursuant to section 23 of the 1948 Act.

2. The applicant has been convicted of several violent offences in the United States of America, being assault on a police officer, shooting at an occupied aircraft, second degree robbery, second degree burglary, evasion and possessing an assault weapon. As a result of those convictions, the applicant has been sentenced to a total term of imprisonment for 45 years and 8 months.

3. On 11 October 2018, the applicant lodged an application to resume Australian citizenship. In his application, in respond to the question 'Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any 'spent' convictions)?', the applicant answered 'yes' and declared the following information:

   1) Assault on police officer w/ assault weapon (2)

   2) Shooting at an occupied aircraft

   3) 2nd degree robbery

   4) '' '' burglary

   5) Evading

   6) Possession of assault weapon

   No previous imprisonment

   Sentence – 45 years 8 months

4. On 24 June 2020, the applicant’s citizenship application was refused. The delegate found that the applicant did not satisfy the good character requirements of paragraph 29(3)(b) of the Australian Citizenship Act 2007 (Cth) (the Act) due to his criminal offences and term of imprisonment. This is the decision under review in these proceedings.

   Good character and Consideration

5. 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 (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).

6. The role of the Policy and 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 and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

7. 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 while the latter is a review [of] subjective public opinion…

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

9. In Fenn and 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 year’s time when he can demonstrate a longer period of positive contribution to the Australian community.

   (emphasis added)

10. 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 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. 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.

11. At hearing, the applicant and his mother, Sandra Kuk, appeared and give oral evidence. They have also provided written statements in support of the application.

12. The applicant expressed his remorse for his actions and claims that his actions were stupid and uncharacteristic, but he was “high on meth”. The applicant also mentioned his abusive childhood and mental health issues. He expressed his desire to regain his Australian citizenship and said he “will respect the Australian way of life and obey the laws of Australia”.

13. Sandra Kuk spoke passionately about her son and the desire to have his Australian citizenship reinstated. She expressed how the applicant was not a “bad person” and was no longer taking drugs and was focusing on completing study and programs while incarcerated. Ms Kuk said the applicant was trying to better himself and build up coping skills. She hopes the applicant could transfer to an Australian prison should his Australian citizenship be granted.

14. The applicant has provided numerous letters of support for his application including a bundle of support from his clemency petition, letters from correctional officers, a letter from Pastor Edwards dated 25 April 2021 and a letter from De Hong dated 1 August 2018 noting the applicant’s involvement in the mindfulness mediation program. It is plain from a number of letters of support that the applicant has had issues with his mental health and substance abuse.

15. In the letters from correctional officers, it is noted that the applicant successfully completed a cognitive behavioural treatment curriculum entitled “Criminal and Addictive Thinking: Mapping a life of Recovery and Freedom for Chemically Dependent Criminal Offenders”. The letters also describe, inter alia, the applicant’s pro-social behaviour and state that he is well mannered and obedient and note his positive attitude and contribution to completing vocational courses and programs.

16. I note that the applicant has completed a narcotics and alcoholics anonymous course in the Kern Valley State Prison. As well as a Restorative Justice Sixteen-Week Class from Healing Dialogue and Action from the California State Prison. The applicant has also completed 12 sessions of Creating a Healing Society, Self-help Program. The applicant has also provided numerous training certificates, an Education Progress Report for VOC painting, and a transcript from the University of California, Irvine for an undergraduate social ecology course.

17. While I applaud the applicant’s efforts to complete appropriate courses and programs, his positive behaviour while in custody and his past involvement in a non-profit organisation, the applicant's convictions mean that he has failed to abide by the law in the United States of America. This is contrary to the behaviour expected in CPI 15, which states that an applicant who is a person of good character would be expected to respect and abide by the law in Australia and other countries.

18. In assessing the relative seriousness of an offence, the length of the sentence should be considered. Given the lengthy sentence of imprisonment imposed of 45 years and 8 months, as such I view the applicant's offences as very serious. Accordingly, I am unable to be positively satisfied at this time that the applicant is of good character for the purposes of resuming Australian citizenship.

    Decision

19. The decision under review is affirmed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

...............................[SGD].........................................

Associate

Dated: 9 September 2022

Date(s) of hearing:	4 August 2021 & 11 March 2022
Advocate for the Applicant:	Ms S Kuk
Solicitor for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers