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

Kuol and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1923 (26 June 2020)
Division:General Division
File Number: 2018/7347
Re:Alor Kuol
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:26 June 2020
Place:Melbourne

The Tribunal affirms the Decision Under Review.
....................[sgd]....................................................
Member K. Parker
Catchwords
CITIZENSHIP – application for citizenship by conferral – extensive history of criminal offending – offending occurred while Applicant under influence of alcohol and/or cannabis – lengthy period of abstinence from consumption of alcohol and cannabis – lengthy period since commission of last offence – omission by Applicant to disclose criminal history on citizenship application form – whether Tribunal can be satisfied Applicant is of good character – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Secondary Materials
Citizenship Policy, issued 1 June 2016
REASONS FOR DECISION
Member K. Parker
26 June 2020

The Applicant, Mr Alor Kuol, was born in 1986 in Sudan in a city that now falls within South Sudan. At the age of 11, he fled with his family to a refugee camp in Kenya to escape the civil war and instability in his home country. He arrived in Australia as a holder of permanent (refugee) visa in October 2001 (at the age of 15) and has resided in Australia since this time. Between 6 September 2009 and 9 August 2010, Mr Kuol travelled to Sudan to visit family.[1]
[1] Refer Supplement T-Documents ST1/71.
In 2009 Mr Kuol was diagnosed with schizophrenia. More recently, he has also suffered from depression and agoraphobia. Until about 2011, Mr Kuol has also experienced serious difficulties with respect to excessive consumption of alcohol and use of cannabis. Mr Kuol gave evidence that he now abstains from using those substances. He receives psychotherapy and pharmacological treatment for his serious mental health conditions. He lives independently in supported accommodation and receives the Disability Support Pension (DSP). He has tried to look for work but largely, has been unsuccessful. He worked in a few jobs, but they did not work out.
On 23 January 2017, Mr Kuol applied to become an Australian citizen.
On 19 November 2018, a delegate of the Respondent refused Mr Kuol’s application (Decision Under Review) on the basis that he was not eligible to become an Australian citizen because the delegate was not satisfied that Mr Kuol was of “good character” as required by s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). In short, the delegate reached this conclusion due to a history of criminal offending by Mr Kuol and because she considered that insufficient time had passed since his last offence. The delegate also based her decision on the failure by Mr Kuol to disclose his history of criminal offending when prompted to do so on his citizenship application form.
Mr Kuol has applied to this Tribunal for review of the delegate’s decision. On his application for review, Mr Kuol stated his reasons for seeking a review which were described by him as follows:[2]
I have not committed any offences in the last seven years and I believe I am of good character. I can not change the past and what’s happened in my past will not happen again. I have lost a lot of opportunities to better my life due to my drinking and have many regrets for this loss.
The charges outlined in the letter of refusal for citizenship were all related to my alcohol use at the time but I am now sober and have been abstinent from all substances since 2011. I have been making a great effort to get my life back on track and would like the opportunity to make amends for my mistakes and give you reasons in person as to why I believe I am of good character.
[2] The Respondent lodged a set of documents with the Tribunal under s 37 of Administrative Appeals Tribunal Act 1975 (Cth) which will be referred to in these Reasons for Decision as the T-Documents. Refer T-Documents page 2.
This Tribunal conducted a hearing and has considered the evidence presented and submissions made by both parties. For the reasons set out below, this Tribunal affirms the Decision Under Review.
ISSUE
The issue in this application is whether Mr Kuol meets the eligibility requirement for conferral of Australian citizenship under subsection 21(2)(h) of the Act, that is, whether the Tribunal can be satisfied that Mr Kuol is “of good character”.
LEGISLATIVE FRAMEWORK
A person may apply for conferral of Australian citizenship under s 21 of the Act. Upon making such application, s 24(1) of the Act requires the Minister to approve or refuse the person becoming a citizen. Before the Minister approves the person becoming a citizen, the person must satisfy several eligibility requirements, including under s 21(2) of the Act. Section 21(2) comprises of a set of eligibility requirements listed in subsections (a) to (h).
As relevant to this application, subsection 21(2)(h) of the Act provides 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. The phrase “good character” is not defined by the Act.
CITIZENSHIP POLICY
On 1 June 2016, the then Department of Border Protection (now the Department of Home Affairs) (Department) issued policy guidance in the form of the Citizenship Policy,[3] in which Chapter 11 addresses the meaning of “good character” in a range of different contexts including in the context of interpreting subsection 21(2)(h) of the Act.
[3] Refer T-Documents T4.
Of relevance, Chapter 11 of the Policy states as follows:[4]
[4] Refer T-Documents T4/42-44.
Overview of chapter
…
It is not for departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis that an applicant is, or is not, of good character.
…
What is good character
‘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…
Character considerations under the Migration and Citizenship Act are not the same and it is possible that an applicant could have passed the migration character test but still not be of good character under the Act…
…
Definition of good character
The term ‘good character’ is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment 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 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… A person who has been convicted of serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be should be objective assessment to be a person of bad character.
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
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 good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can 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.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
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 from applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
A list of characteristics of “good character” are set out in Chapter 11 of the Citizenship Policy and of relevance, they include that an applicant of good character would:[5]
(a)respect and abide by the law in Australia and other countries;
(b)be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments or organisations, for example:
(i)providing false personal information…or other material deception during visa and citizenship applications;
(ii)concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;
(iii)giving false names and/or addresses to police;
(c)not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct.
[5] Refer T-Documents T4/45.
Chapter 11 also provides guidance in respect of “weighing up the character decision”, as follows:[6]
[6] Refer T-Documents T4/47 & 48.
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·Would a person of good character have behaved in the way the applicant did
·What is there to demonstrate that the applicant has upheld and obeyed the law
·Has the applicant behaved in accordance with Australia’s community standards
·Does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
…
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
If a person has committed a very significant offence (such as taking the life of another person, sexual assault, crimes against children, war crimes, crimes against humanity, genocide) the lasting/enduring period would be much longer, potentially over a period of many years. In such an assessment, the nature of the significant offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. Thus, it may be extremely difficult for a decision maker to be satisfied that a person is of good character after having committed such offences, even after the passage of many years.
Chapter 11 provides guidance in relation to quashed convictions as follows:[7]
Under the Crimes Act applicants are not required to disclose quashed convictions (that is, a conviction that has been set aside by a court) or pardoned convictions (that is, where the person has been given a free and absolute pardon because they were wrongly convicted). Where a decision maker does become aware of such convictions, they may not be taken into account.
[7] Refer T-Documents T4/51.
Chapter 11 provides guidance in relation to spent convictions as follows:[8]
A spent conviction is a conviction for which a person:
·has been granted a pardon for a reason other than that the person was wrongly convicted of the offence or
·was not sentenced to more than 30 months imprisonment, it is 10 years (5 years for juvenile offenders) since the date of conviction and the person has not re-offended during the 10 years (5 years for juvenile offenders) waiting period.
Applicants are required to disclose all spent convictions in their citizenship applications because such applicants are excluded from the operation of the spent conviction regime. This also applies to crimes committed in other countries that may be spent under foreign legislation.
MR KUOL’S HISTORY
[8] Ibid.
Early life
In Mr Kuol’s 2019 Statutory Declaration, he stated that he was born in a village in Abyei and lived there with his parents, three brothers and four sisters. He stated that he looked after sheep, calves and goats. Mr Kuol stated that he did not go to school very much in the village. He said he spoke Dinka and when the war was happening, they spoke Arabic in the school, so when he went there, he did not learn much. Mr Kuol was about ten or 12 years old when he left the village with his aunt, uncle, cousin and one of his sisters. The rest of his family remained in the village. Mr Kuol said that his sisters are all currently living in neighbouring countries, i.e. Uganda, Kenya and Egypt, and that his brothers and mother still live in Abyei. Mr Kuol said his father died in 2013. Mr Kuol said he speaks to his mother and siblings on the telephone.
After leaving his village, Mr Kuol stated he went to a refugee camp in Kenya. He said there was a school in the camp, but he could not go there because they spoke English, and not his language, Dinka. His uncle applied for Mr Kuol and himself to go to Australia for a better future.
Migration to Australia in 2001
As stated above Mr Kuol arrived in Hobart, Australia at the age of 15 in October 2001. He initially lived with his uncle and went to school. He said he did not speak English. He said he was placed in Year 10 and did his best to learn. Mr Kuol said that less than a year after they arrived, his uncle moved to Launceston. He stayed in Hobart because he wanted to stay with his new friends from school and stay living in his suburb. He said most of his friends were Australian and one was South Sudanese. He stated that he tried to keep going to school but his friends used to drink and smoke a lot of cannabis which they would do in his unit, because he lived by himself.
Mr Kuol claimed that when his friends first started to visit him in his unit, he did not drink or smoke with them. He said that no one in his family drank alcohol, except for his uncle who was in Sydney. A couple of months later, he joined his friends and tried drinking alcohol because he said it seemed like fun and he wanted to join in. He said this was at the end of 2002 or start of 2003 when he was about 16 years old. He said that he stopped going to school in 2003 and while he had some support learning English, he found it too hard.
Mr Kuol said that at first, he would hide his drinking as he did not want it to get back to his family but after a while, he stopped caring (as “it was not possible to hide being drunk”) and he drank all the time. He said that after a while, he started to smoke cannabis after first consuming it inside a cookie, which he said was by accident. Mr Kuol stated that smoking and drinking made him feel good and at the time, he did not think at all about how it might affect his behaviour. He said that it was about this time that he started to get into trouble with the police and that all his offending took place after he had been drinking and sometimes after smoking.
Mr Kuol said he has a son who was born in Hobart in 2005.
Hospital admissions due to psychotic episodes in late 2008
Mr Kuol said that he was admitted to the psychiatric unit of the Royal Hobart Hospital in early September 2008 after he experienced a psychotic episode. He said he could not remember how long he was admitted for because he was “really unwell”. He said they put him on antipsychotic medication called Risperidone. He said he felt well after he was released, and went to Melbourne to stay with his aunt and uncle. He said he stopped taking his medication and did not realise how important the medication was in keeping him well. He said he became sick again and was admitted to St Vincent’s Hospital towards the end of September 2008, and was then discharged in October 2008 on an early psychosis program due to a diagnosis of schizophrenia.
Departure from Australia in September 2009 to visit Sudan
In September 2009, Mr Kuol returned to Sudan for about 11 months. He said when he departed Australia, he was on remand and the judge had given Mr Kuol two months to return to Sudan. He said he saw his family in the village but spent a lot of time with his uncle in the North. He said his family could see that his “life was going nowhere in Australia” and they wanted him to stay longer and to “learn to be a better man” before returning. He said his ticket had expired and that it took him a while to raise enough money to buy another ticket. Mr Kuol said he ran out of medication and became unwell again. He stated he was out drinking and smoking whenever he could and was keeping it a secret from his family until they found out after he suffered a cut to his head.
Return to Australia in August 2010
Mr Kuol stated that when he returned to Australia in August 2010, he continued drinking, smoking and getting into trouble. He said he was not taking his medication. He said he did not feel sick when he was drinking and would drink until the sickness went away.
Mr Kuol was charged with serious criminal offences following an incident reported to have taken place on 20 October 2010, at a time when Mr Kuol was heavily intoxicated. Mr Kuol was remanded in custody for a period of one year and a few months. On 3 March 2016, Mr Kuol was ultimately acquitted of those charges following an appeal to the Court of Appeal of the Supreme Court of Victoria.[9] The Tribunal has not taken into account those charges in deciding this application.
[9] Refer Exhibit “A7”.
While Mr Kuol was in remand, he stated that he stopped drinking and smoking cannabis. He said this was the longest time he had spent in custody. He said for the initial three-week period he felt very unwell, missing the alcohol from his body. At this time, he said he started going to Alcoholics Anonymous where he learnt that if he did not take the first drink, that he would be okay and that this had stayed with him. He said he was placed back on his medication, i.e. Risperidone, which he said has since been changed to Olanzapine, which he now takes every day.
Mr Kuol stated that during this period, he was released on bail for a few months in 2012 and while he was released, he did not drink alcohol or use any drugs and continued to take his medication. He said he had time to reflect on his life while he was in prison and to think about how alcohol and drugs had affected him. Mr Kuol made the following statement in his 2019 Statutory Declaration:
[34]I wanted to make sure that I did not offend again. I wanted to change my life. Looking at what happened, what I did to people, and what I had been through it was not worth it. For the sake of a bit of fun I would end up in a police cell with charges. I realised that nothing came of hanging out with the friends I drank with and the fun I had by drinking except making me a bad person who hurt people. For that reason, I decided not to do it again.
Name change – September 2016

Mr Kuol’s name was previously Luka Belabek Omot. On 22 September 2016, a change of name registration was issued which had the effect of changing his name to Alor Kuol.[10]
[10] Refer Supplementary T-Documents ST1/76.
Citizenship application – January 2017
Mr Kuol signed his citizenship application form on 19 January 2017. Question 39(a) on the form posed the following question:
39Please answer the following questions for yourself and any children included in your application:
(a)Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (including all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
Mr Kuol ticked the box “No” in answer to this question.
At the base of Question 39, the following text appeared followed by a box which provided for written text to be inserted by the applicant:
If you answered ‘Yes’ to any of the questions at Question 39, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention.
This text box was left blank by Mr Kuol.
Part M of the citizenship application form called for Mr Kuol to make a declaration including that the information he had supplied in the form was “complete, truthful and correct in every detail”. A warning marked in bold print was issued at the commencement of the Part M declaration as follows:
WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.
History of criminal offending revealed by National Police History Check
When assessing the application, the relevant delegate undertook a National Police History Check in the name of Alor Kuol (and the alias Luka Belabek Omot). A report was issued on 22 March 2017 listing several convictions issued in Victoria and Tasmania between 28 February 2005 and 30 May 2011.[11] The offences included assaulting a police officer, driving while under the influence of alcohol, attempted robbery and multiple breaches of bail conditions over that period.
[11] Refer Supplementary T-Documents ST2/89.
Mr Kuol was given an opportunity to provide information to the relevant delegate in relation to his history of criminal offending. He prepared a statutory declaration which was provided to the Department in May 2017.[12] In this statutory declaration, Mr Kuol explained that he did not declare his criminal offences in his citizenship application because he was under the impression that he only needed to include any criminal offences that occurred within the previous two years. He said he misunderstood the question. He gave a detailed explanation in his 2017 Statutory Declaration explaining the circumstances of and why each offence occurred. He also made the following general statement:[13]
…I have made changes in my life to become a better and more productive person. I have abstained from alcohol for seven years and am continuing to seek help with dealing with my alcoholism. I am working with a job provider to obtain suitable employment as a landscaper, as that is my passion. I will be attending courses at Kangan University starting in June 2017 to obtain a Certificate II in Landscaping.
I apologise for not having submitted the correct documentation to you and found it difficult to apply without assistance. I am now working with several organisations such as The Salvation Army and Jesuit Social Services in improving my English and literacy skills. I have lived in Australia for over sixteen years and would very much like to become an Australian Citizen…
CHARACTER REFERENCES
[12] Refer Supplementary T-Documents ST3.
[13] Refer Supplementary T-Documents ST3/101.
Character reference provided by Victorian barrister
A character reference in respect of Mr Kuol dated 1 May 2017 was provided by Mr Stewart Bayles, a barrister in Foley’s List at Owen Dixon Chambers in Victoria.[14] Mr Bayles stated that he had previously represented Mr Kuol in legal proceedings. He said he was aware of Mr Kuol’s criminal history and his personal background. He said he was aware that Mr Kuol had suffered difficulties “as a result of his past traumatic experiences” and that “for a time, he engaged in excessive alcohol use”. Mr Bayles said it was his understanding that Mr Kuol’s criminal offences were all related to alcohol use.
[14] Refer Supplementary T-Documents ST3/102.
Mr Bayles said he had met a number of social workers with whom Mr Kuol was working with to deal with the issues affecting his life. He said that Mr Kuol had shown a commitment to receiving their help and assistance in improving his life in Australia. Mr Bayles stated that Mr Kuol had reported to him that he had been abstinent from alcohol for “a number of years now” and that this was consistent with his observations of Mr Kuol. Mr Bayles said Mr Kuol had demonstrated a willingness to gain paid employment and had participated in training and education programs to increase his prospects of doing so. Mr Bayles stated that Mr Kuol had always shown a respect of the Australian legal system and willingness to be bound by the laws of Australia. Mr Bayles said that in his opinion, Mr Kuol had faced a number of difficulties in his life before arriving in Australia and also in his early life in Australia as a refugee but in recent years, he had demonstrated a genuine motivation and commitment to improving his life and prospects and to become a positive contributing member of Australian society.
Mr Bayles also gave evidence at the hearing. He was asked about how Mr Kuol had handled the stress of the appeal process in respect of the criminal convictions of which he was ultimately acquitted. Mr Bayles said that Mr Kuol was certainly stressed, as anyone would be, but he was calm throughout that period and rational in his interactions. Mr Bayles said Mr Kuol would seek advice and receive it. He stated that Mr Kuol did not require an interpreter but that he would always use simple terms with him. Mr Bayles said he was aware of Mr Kuol’s prior convictions.
When asked, Mr Bayles said that he had only ever acted as defence counsel. When asked what other roles he had, Mr Bayles told the Tribunal that he was a member of Liberty Victoria, a civil rights organisation. He said he had been less active now but was a good participant in the first few years when he joined in 2012. He said he was also a member of the criminal bar association. Mr Bayles said he did not have a relationship with Mr Kuol, other than a professional relationship. When asked whether he thought Mr Kuol could comply with the obligations that come with being an Australian citizen considering his criminal history, Mr Bayles said that he did. He considered that people could change, that it had been close to ten years since Mr Kuol had previously offended and that he was in his late teens/early 20’s when Mr Kuol had committed the offences. He said that coming from a criminal law background, he saw a range of crimes and the role that circumstances have in the commission of criminal offences. Mr Bayles said that youth is one such circumstance.
Character reference by treating general practitioner
A further character reference dated 28 April 2017 was provided by Dr Brian Hsu from the clinic, Medical One Moonee Ponds. Dr Hsu stated that Mr Kuol had been seeing him as a patient over the previous 20 months. Dr Hsu reported that Mr Kuol had a history of schizophrenia and previous multiple criminal offences. Dr Hsu confirmed that Mr Kuol was on medication and was “very compliant and mentally stable”. Dr Hsu stated that Mr Kuol had been remorseful for his past offences. Dr Hsu stated that Mr Kuol did not drink or use any recreational drugs.
Character reference by Jesuit Community College
A teacher, Ms Astrida Pepe, from the Jesuit Community College in Collingwood, Victoria, provided a character reference for Mr Kuol dated 24 April 2017 stating that Mr Kuol was one of her students in 2014 for a Certificate in General Education for Adults (Introductory).[15] Ms Pepe reported that Mr Kuol had chosen, as a project, to learn the Australian Citizenship book because his goal was to become an Australian citizen. Ms Pepe described Mr Kuol as polite, co-operative and friendly and that he attended class regularly, “always arrived early” and “completed all class tasks with enthusiasm”.
[15] Refer Supplementary T-Documents ST3/105.
Ms Rebecca Halliday, Senior Dual Diagnosis Practitioner, Connexions program, Jesuit Social Services provided a letter dated 22 July 2019.[16] Ms Halliday also gave evidence at the hearing and described Mr Kuol as “honest and genuine” and “very resilient”.
[16] Refer Exhibit “A11”.
Character reference by The Salvation Army
A representative of Community Outreach Services of The Salvation Army, Ms Bertie Sanday, provided a personal reference for Mr Kuol dated 27 April 2017.[17] Ms Sanday confirmed that Mr Kuol had been a voluntary participant of The Young Adults Program and actively engaged with this program since May 2014. Ms Sanday said the program provided outreach support and transitional accommodation for persons between 18 and 35 who were homeless or at risk of becoming homeless, and that participants often had a range of complex issues causing their homelessness.
[17] Refer Supplementary T-Documents ST3/106 & 107.
Ms Sanday confirmed that since joining the program, Mr Kuol had managed to live a stable lifestyle in his property and that he attended regular appointments with their program, his job network provider and his general practitioner. Ms Sanday said Mr Kuol had been diagnosed with schizoaffective disorder and depression in 2008 and that he had received recent treatment which had helped him to progress to independent living. In her letter, Ms Sanday stated:
Mr Kuol now presents as a quiet single man who has made some significant changes in the past 5 years. He expresses his remorse for his actions and demonstrates that he wants to make positive change for himself and for his son who he maintains regular contact with. He has expressed that he would like his brother to move in with him as at times feels lonely and misses his family in Sudan. He has no other close relatives in Australia but has an 11 year old son in Tasmania who he visits. The last visit was during the Christmas Holidays in 2016.
Ms Sanday explained that they were aware of Mr Kuol’s criminal background but had accepted him into the program because he showed signs that he had made progress and wanted to continue to improve himself and refrain from being involved in the high-risk lifestyle in which he had become involved. She said he had always presented himself as quiet and respectful and she had not witnessed him intoxicated or substance affected, nor felt at risk of harm in his presence.
A further letter by dated 21 May 2019 from Ms Wendii Trieu, who was Mr Kuol’s case manager (since July 2018) at Community Outreach Services, was provided to the Tribunal.[18] Ms Trieu stated in her letter that Mr Kuol had been diagnosed with schizophrenia in 2009 and at the time of the offences listed in the notification of refusal, it was noted on file records that Mr Kuol was not compliant with his medication which had precipitated the antisocial behaviour. Ms Trieu described Mr Kuol as a polite and reliable individual who had consistently presented to his scheduled weekly appointment on time, that he was well-mannered, and that he conducted himself in a professional and appropriate manner during all interactions with her and within the community. Ms Trieu said that Mr Kuol had shown a willingness to engage with support services and he was “actively working towards his goals of obtaining employment to build a more financially secure future”.
[18] Refer Exhibit “A2”.
The Tribunal also notes the statutory declaration provided by Mr James Meade who took over from Ms Trieu as Mr Kuol’s case manager.[19] Mr Meade gave evidence at the hearing. He said he met with Mr Kuol a couple of times per week for different periods, but on average about two hours. Mr Meade said he had observed Mr Kuol to be “very dependable, always polite” and “focused on moving forward with his life”. He said he had never observed him to be “under the influence”. When asked whether Mr Kuol had spoken to Mr Meade about his criminal offending, Mr Meade said that Mr Kuol had said he was very ashamed of what he had done. Mr Meade acknowledged Mr Kuol’s gambling addiction and said he was working on it. When asked whether he knew if Mr Kuol could read, Mr Meade said he had seen him read things at the solicitor’s office.
[19] Refer Exhibit “A12”.
Mr Meade said he was aware that Mr Kuol’s friend Peter had stayed with him in Melbourne and that Mr Kuol had stayed with him in Tasmania for four months, during which time Peter had been drinking about two or three bottles of wine a night. When asked whether this was cause for concern, Mr Meade answered, “No, I believe drinking is not on [Mr Kuol’s] radar”.
Character reference by employment services consultants
An employment consultant, Ashleigh Dougherty, of WCN JobCo., a disability employment services provider in Moonee Ponds, Victoria, provided a statutory declaration made on 18 April 2017.[20] Ms Dougherty stated that she had known Mr Kuol for about four months and saw him about once a week. She said she had assisted Mr Kuol to prepare for undertaking a course in horticulture. She said she was aware of his offences and had assisted him prepare his statutory declaration referred to in paragraph [35] above. Ms Dougherty stated:
…Alor is a dedicated and hard working individual. He comes into my office with a friendly and optimistic demeanour. I appreciate his eagerness to enrol in a course that will ultimately lead him to a career. He is no longer drinking and because I meet with him so frequently, I can attest to his positive mental state. He always looks presentable and he is very organised.
[20] Refer Supplementary T-Documents ST3/108.
A further employment consultant, Mr Vlad Rajcic, from Job Prospects in Moonee Ponds, Victoria, provided a character reference for Mr Kuol dated 24 September 2019.[21] Mr Rajcic said Mr Kuol had been attending regular appointments on a voluntary basis and had been linked with the service for about ten weeks. He said that Mr Kuol had attended his scheduled appointments, had submitted job applications, and completed other vocational tasks. Mr Rajcic said he considered that Mr Kuol was “very genuine” in “bettering himself”.
[21] Refer Exhibit “A1”.
COATS assessment in 2015 – low risk of re-offending
A community support organisation, asco, arranged for a community offenders’ advice and treatment service (COATS) assessment to be undertaken of Mr Kuol (then known as Luka Omot) and the resulting COATS assessment report was issued on 17 September 2015.[22]
[22] Refer Exhibit “A6”.
The assessor noted Mr Kuol’s history of criminal offending described to have arisen in the context of Mr Kuol developing problematic alcohol and cannabis use from strong peer relationships. This was described by the assessor as the “likely consequence of a desire for assimilation and acceptance”. The assessor noted as follows:[23]
From 2011 however, Mr Omot reports to have made significant progress addressing both his psychiatric and substance use issues; he reports abstinence from all substances and stable mental health/psychiatric treatment since that time…
While on-going risk factors in the form of susceptibility to negative peer influences, it appears that he has appropriate supports in place to deal with these matters. No medical concerns were noted.
[23] Refer Exhibit “A6” on page 3.
The assessor’s treatment recommendations did not include any further drug treatment. The assessor suggested that he may benefit from regular urinalysis to monitor his progress and to identify any lapse in a timely manner. Mr Kuol was rated as low risk of re-offending due to the absence of substance use in the previous 12 months.
Mr Kuol’s evidence at the hearing
At the hearing, Mr Kuol was asked whether he had witnessed violence in the refugee camp in Kenya when he lived there. He said that there were problems on the way there, and at the camp, but there were no guns and he was not involved. He said he was not hurt but he witnessed others being hurt.
Mr Kuol confirmed that he had been living for the last four years in transitional housing provided by The Salvation Army. He said he spent his time currently either in the library or watching television in his home. He said he was looking at starting a course but explained that writing was hard for him. He said his family were in South Sudan except for an uncle, aunt and cousin in Melbourne (whom he said he spoke to on the telephone and sometimes went to their place), and another uncle who was now living in Sydney and whom he had not seen since 2005. He said he had a half-brother in Melbourne of a similar age to himself. Mr Kuol said he last saw his half-brother in about 2016 and he does not talk to him.
Mr Kuol told the Tribunal at the hearing that he applied for Australian citizenship because lots of good things come with that, namely, “security” and “the treatment by the people”. He said he understood that being a citizen meant that you belonged to the community and that you have obligations to obey the law and not to do things like he had done in the past, by “living the Australian way of life”. Mr Kuol said that he was not proud of what he had done in the past and that he could not change the past, but that it would not happen again.
Mr Kuol gave evidence at the hearing that when he arrived in Melbourne in 2006/2007 that he had a car accident and he was drunk. He said he hit a pole and there were three people in the back and one in the front. He said one person was hurt from the airbag. He said they left before the police arrived, so they were not charged. He said they came back the following day to collect the car. During cross-examination, Mr Kuol was asked whether he understood that it was wrong for him to have run away, so as not to get in trouble. He responded to the following effect, “We were too drunk, and we were driving. I was getting into trouble a lot so I knew it would be a problem”.
Mr Kuol was asked about the drink driving charges referred to in the Tasmania Police records, specifically, on 16 July 2006 with a blood alcohol reading of 0.078 and 22 July 2006 with a blood alcohol reading of 0.208. He said he was probably going to the bottle shop. His licence was cancelled. Mr Kuol said he had been to court to get his licence back. He said he had completed a drink driving awareness course. He said he had applied to get his licence back so he could get back to work and that he wanted to buy a car. Mr Kuol said that was not going to be an issue because if he started drinking, it would be “like going back to zero” for him. He said he stopped drinking because he was getting into trouble with the Police and that it was “not normal” to be drinking all the time. When asked about his offending behaviour, Mr Kuol accepted that he was unwell. He said that when he looked back, he felt bad but there was nothing he could do to change it.
Mr Kuol was asked how he managed to resist drinking when his friend had visited him from Tasmania and stayed with him four months. Mr Kuol said that that it did not worry him and that he did not drink or smoke any longer.
During cross-examination, Mr Kuol was asked about several of his criminal convictions and invited to make a comment about them. They are referred to below in chronological order.
August 2003 – common assault
Mr Kuol was asked about the conviction, following a guilty plea, of “common assault” arising from an incident that took place on 2 August 2003 involving an altercation in Hobart between Mr Kuol and two of his friends, with three other men. An allegation was made that Mr Kuol and one of his friends had kicked one of the other men, who was on the ground at the time, around his head and body.[24] Mr Kuol told the Tribunal that he had remembered that: “they started fighting with some people, I was trying to separate them”. He accepted that he had been drinking. Mr Kuol denied that he pushed the man to the ground or that he kicked him in the head, or that he had kicked another one of the men. Mr Kuol said, “That is the problem with being drunk, they put everything on you”. He said he went to school with those men and that his friends knew them. Mr Kuol said he pled guilty to the charges because he said he did not know how to fight it. He said that legal aid was representing him at the time.
[24] Refer Further Supplementary T-Documents at page 90.
October 2003 – common assault and destroying property

Mr Kuol was asked about the conviction, following a guilty plea, of “common assault” and two counts of “destroying property” arising from an incident on 25 October 2003. The incident involved entry by Mr Kuol and one of his friends into a person’s apartment by kicking in the door (destroying the door lock in the process) and then kicking the person in the chest reportedly sending him backwards. It was alleged that Mr Kuol and his friend kicked and hit the person around the head and chest. Mr Kuol said he pled guilty, but this was not how it happened. He said:
The people around me, I get in trouble for someone else’s trouble. Being drunk means I can’t explain myself. I was trying to stop [name of friend omitted], he was punching him.
It was also alleged that Mr Kuol smashed two sets of car brake lights when he left the premises via the car park. Mr Kuol said he did not remember doing so. He said he could not remember much about this incident.
July 2004 – allegations of violent altercation with two women
The Tribunal notes the following police report in respect of an incident involving two women and Mr Kuol, alleged to have occurred at 10.45pm on 17 July 2004 in Hobart:[25]
On above time and date the victims knocked on [Mr Kuol’s] door to ask then to turn the music down. All parties had a verbal disagreement at which time [Mr Kuol] slapped the [first] victim [name omitted] in the face. [Mr Kuol] then dragged the [second] victim [name omitted] by the hair and they fell against the wall. [Mr Kuol] then dragged the [first victim] into the flat and pushed her face into his crutch. The victim struggled and [Mr Kuol] punched her in the face 3-4 times. [Mr Kuol] let the victim go and he kicked her in the backside nad(sic) punched her to the lowere(sic) back as she left the flat. Police attended and OC spray was deployed as [Mr Kuol] assaulted several Constables. [Mr Kuol] took part in a video recorded interview on 29/7/04 and denied all offences. He was advised he would receive a summons at a later date.
[25] Refer Further Supplementary T-Documents at page 74.
When Mr Kuol was asked at the hearing whether he remembered anything about this incident, he said, “No”. When asked whether he pled guilty, Mr Kuol said, “I don’t know, there were so many charges”. Mr Kuol said he remembered them telling him to turn the music down, but did not remember the fighting. He accepted that it could have happened. Mr Kuol said he was drunk at the time of this incident.
Subsequently, during cross-examination, Mr Kuol denied that he had slapped one of the women, pulled her hair and pushed her to the ground. He also denied that he had pushed her into his crotch. He said every story had two sides and that they had made this up. Mr Kuol had previously described the women as “troublemakers”. During cross-examination, the advocate for the Minister asked Mr Kuol whether he thought that it was appropriate to “slap troublemakers”. Mr Kuol responded by saying, “No. If they were men, they would have been in a very serious fight”.
February 2005 – trespass to property
Mr Kuol was asked what he had remembered about the conviction arising from an incident on 28 February 2005 where Mr Kuol was alleged to have jumped onto an unknown person’s motorcycle which was strapped on the back of a utility vehicle while it was being transported. Mr Kuol admitted to jumping on the motorcycle while the owner, a man, was still driving the vehicle and that the owner stopped the vehicle and called the police. Mr Kuol said there was no altercation with the driver. Mr Kuol stated he was drunk at the time.
September 2005 – failing to leave licensed premises when required by a police officer
Mr Kuol was asked about the conviction for the offence (committed on 24 September 2005)[26] of “failing to leave a licenced premise when required by a police officer”. He said he had no memory of this incident and that he was drunk.
[26] Refer Further Supplementary T-Documents page 78.
March 2006 – assault of police officer
Mr Kuol was asked about the conviction, following a guilty plea, for an offence (committed on 18 March 2006) of “assault a police officer”. This took place after a disturbance caused by him when arguing with people at a mobile phone store in Hobart. Mr Kuol was reported to have been placed in the back seat of a police vehicle after the disturbance and to have struck a police officer with a wine bottle. The police officer reportedly suffered a broken nose, lacerations to his face and psychological injury.
Mr Kuol told the Tribunal he was walking down the street and his mobile phone was broken, so he went into the mobile phone store to talk to people about his phone. He admitted having a wine bottle which he said he put down on the table and to “messing with the phones on display”. He gave evidence at the hearing that he did not take the phone on display. He said because he was “talking too loud or the alcohol on the table”, they asked him to leave. He said this upset him and that he was drunk. He said the police became involved as they were walking past the shop at the time. It was reported that someone at the store called the police.
Mr Kuol said the police officer walked him to the police car and told him he was under arrest. The report alleges that he was asked a number of times to remove the wine bottle as he was asked not to drink in the police car. It was reported that when the police asked Mr Kuol for the wine bottle, Mr Kuol leant forward and hit the officer in the face with the bottle. Mr Kuol denied striking the police officer. Mr Kuol said while he was in the back seat, there was a police officer in the front seat who tried to grab the wine bottle that Mr Kuol was trying to put into his mouth. He said there was a struggle between them, Mr Kuol let go of the wine bottle and it hit the police officer’s face. Mr Kuol said he had no reason to hit the police officer and that he was trying to keep the wine bottle.
Mr Kuol said he felt bad about what had happened and that it would not have happened if he was not drunk. Mr Kuol was asked whether he had since contacted the police officer who was struck to apologise for what had happened. He said, “that is what I should do, I wasn’t in the right state of mind”. Mr Kuol was asked what he had done about his drinking after this incident. He told the Tribunal, “nothing, I continued”.
July 2009 – incident with man in the street leading to convictions of attempting to commit an indictable offence and armed robbery
Mr Kuol was asked about an alleged incident at 1:00am on 31 July 2009 leading to convictions, following guilty pleas, of attempting to commit an indictable offence and armed robbery, involving an approach to a man in the street by Mr Kuol and one other person. It was alleged that Mr Kuol and his companion had asked the man in the street for a cigarette. It was provided. It was alleged that the man was then hit on the hand by Mr Kuol, which caused the man to drop some coins. The man started to run away, and it was alleged that Mr Kuol chased the man with an umbrella. No admissions were reportedly made by Mr Kuol at the time of arrest.
At the hearing, Mr Kuol denied hitting this man. He said that he was talking to this man and he started running. In Mr Kuol’s 2017 Statutory Declaration, he stated that he was intoxicated at the time and started running after the man. He also stated that, “I was arrested under the suspicion that I was trying to steal the cigarette and because I was confused and not sure why I was being arrested, I didn’t answer the police’s questions correctly”. When Mr Kuol was asked at the hearing why he ran after the man, he said he thought the man was running away from something else. He said he was calling to the man “wanting to know why he was running”. During cross-examination, Mr Kuol confirmed that he was carrying an umbrella.
Mr Kuol said that they did not mean to harm him. He said he was drinking a lot at this time. He acknowledged that the man would have been scared. Mr Kuol said he felt “bad for my behaviour”. He stated he was unwell and “not thinking right”. He said he thought he was “normal” and he had bad thoughts, was not aware of where he was, and was having a mental breakdown.
Other convictions for breach of bail conditions and probation etc
Mr Kuol was asked to comment about his other convictions for breach of probation etc. He confirmed that he was battling alcoholism and was drinking and smoking at the time. He said that now thinks about the importance of not breaking court orders and the law.
Current circumstances
Mr Kuol gave evidence at the hearing that he had not drunk alcohol since the end of 2010 or start of 2011. He said he smoked cigarettes every day, but he was planning to give them up. When asked whether he was still gambling, he said that he sometimes played the pokies and bought lotto tickets. He said that he would use the winnings to send overseas or to put back into the machines.
Mr Kuol said that some of his old friends had passed away. He said that he still spoke to some of his friends he used to drink with by telephone and they did not know where he lived. When asked how many friends he had, Mr Kuol answered “two or three”. When asked whether this included his friend from Tasmania, Mr Kuol said that he talked to him and that this friend also visited Mr Kuol sometimes. He indicated this friend was in addition to the two or three friends he had mentioned. When Mr Kuol was asked if he knew the difference between right and wrong, he said he did not then, but that does so now.
Mr Kuol accepted that he had caused harm to people and that he did not mean to do so. He did not accept that he had beaten up any person. He described the incident with the wine bottle and the police officer as a “mistake” and that he had “let go of the bottle”. This was at odds with a statement Mr Kuol had made in his 2019 Statutory Declaration when he said he did many bad things and he had hurt people. Mr Kuol said, “everything that happened that I pled guilty to, it was because I made a mistake”. Mr Kuol was asked again to say which conduct giving rise to the convictions he accepted that he had engaged in, to which he responded to the effect of, “Assaulting the police office, the other things are the bad people around me”.
Mr Kuol was asked why he had not revealed to Dr Cattapan his criminal history. He said that he thought the letter from immigration would show the records. When asked whether Mr Kuol had provided her with this, he said, “No, I gave it to Salvation Army, maybe my doctor”. He was asked why he had shared with Dr Cattapan details of his early criminal history and he said, “It didn’t come up, and she didn’t ask me”.
When asked why Mr Kuol had not disclosed his gambling to the Tribunal, Mr Kuol said it was not something he was proud of. He said it was a problem that he was battling with and was trying to get rid of. He said he was gambling once a week. When asked how long he stayed at the pokies, he said it depended on whether he was winning or losing. When asked whether he considered it to be a problem, he answered “Yes”. He said he had made an appointment to go and see someone about it but decided not to go because he was seeing Dr Cattapan.
Mr Kuol said he spoke to his mother in South Sudan about once a fortnight by telephone.
Mr Kuol said he did not agree with Dr Cattapan’s opinion about his job prospects and told the Tribunal that it would be nice for him to do something. He agreed that he might be able to do some work involving physical labour.
Mr Kuol said that he was changed for the better and what had happened in the past, was in the past. He said he wanted to change his life to be in a better position. He recognised that alcohol had caused a lot of damage to himself and to other people.
Mr Kuol was questioned about a visit he had by a friend named “Peter” after he returned from a trip to Tasmania in January 2017 to visit his son. Mr Kuol said that he had stayed at Peter’s place while he was in Tasmania. He said that Peter was drinking when he stayed with him. Mr Kuol states that he did not drink when Peter stayed with him. Mr Kuol said that when Peter stayed with him in Melbourne after this trip, Peter would drink about two or three bottles of wine per night and would get drunk, but he knew how to control himself. Mr Kuol maintained that he did not drink while Peter stayed with him.
Mr Kuol was asked by the Tribunal about the apparent inconsistency between the above evidence and what Mr Kuol had said in paragraph [49] of his 2019 Statutory Declaration as follows:
I am very careful not to hang out with my friends who drink a lot. I don’t have anyone at my house who drinks. I stay in touch with some old friends from Hobart sometimes on the phone, which is better.
Mr Kuol said he was referring to people he used to drink with that caused trouble.
Reports by Mr Kuol’s treating psychiatrist and clinical psychologist
Dr Susira Galpayagedon – treating psychiatrist
Mr Kuol tendered a letter dated 29 July 2015 by Dr Susira Galpayagedon, consultant psychiatrist at North Western Mental Health, Waratah Clinic, addressed to Mr Kuol’s treating general practitioner.[27] In this letter, Dr Galpayagedon confirmed a diagnosis for Mr Kuol since 2009 of the psychiatric condition of schizophrenia, for which he has had two inpatient admissions. Dr Galpayagedon stated that when Mr Kuol was unwell that he displayed several psychotic symptoms including “thought broad case, referential, persecutory, religious and grandiose delusions”. She also stated that it had been reported that he had been aggressive in the past when psychotic, and that he had last experienced a psychotic episode in 2011 when he was incarcerated and was not taking his medication.
[27] Refer Exhibit “A9”.
Dr Galpayagedon stated in her letter as follows:
He has done exceptionally well over last four years in stabilizing his mental state with very good compliance with his current antipsychotics (Abilify 30 mg and Olanzapine 10mg daily). Fortunately he has not experienced any major side effects with the medications. He has a past history of alcohol and cannabis use and has abstained from them for last five years. He has had some fleeting suicidal throughs recently but no plans or intent…
Dr Galpayagedon stated that Mr Kuol displayed “reasonable insight into his illness” and that he was able to recognise his past symptoms as part of a mental illness. She said that he had acknowledged the benefits of antipsychotic medication to keep his psychosis in check. This letter revealed that Mr Kuol had sought advice about “coming off antipsychotic medications as he has been symptom free for four years”. Dr Galpayagedon recommended that he remain on the medications and seek further review in the future “once his circumstances are more stable for a potential reduction in antipsychotics”. She said she believed that Mr Kuol would take their (being herself and Mr Kuol’s general practitioner) recommendations into consideration and would stay on current antipsychotics without any change.
Dr Oriella Cattapan – treating clinical psychologist
Mr Kuol tendered a report dated 6 August 2019 by his treating clinical psychologist, Dr Oriella Cattapan.[28] Dr Cattapan stated she first saw Mr Kuol in November 2015 and had seen him on a monthly basis except for an 18-month period between February 2016 and August 2017. Dr Cattapan described Mr Kuol presenting as a “warm and gentle young man” who was keen to engage in treatment.
[28] Refer Exhibit “A8”.
Dr Cattapan noted Mr Kuol’s diagnosis of schizophrenia in 2009 by Dr Galpayagedon, and that he had been admitted for this condition on two occasions; the last time when he was incarcerated in 2011. Dr Cattapan said that Mr Kuol was observed to be compliant with his medication while she had been treating him and that he had good insight into his mental health difficulties. She said Mr Kuol was very clear that he had to remain medicated to stay well.
Dr Cattapan stated that Mr Kuol struggled with issues of anxiety and agoraphobia but had responded well to strategies to help him cope with those difficulties. Dr Cattapan stated that Mr Kuol had shown a great deal of discipline and determination to keep himself psychologically well and this had included ceasing alcohol and drug usage. Dr Cattapan stated that Mr Kuol had stopped seeing friends that he would have used drugs or alcohol with in the past and moved from the area. Dr Cattapan made the following observation in her report:
It is well known that if a person is serious about changing their AOD habits disconnecting from previous drug using friendships is essential. Unfortunately, this change in friendship status has left Mr Kuol isolated and has contributed to the social anxiety and agoraphobia. This issue is currently being considered during the treatment. He maintains a very strong professional network including his GP, the Salvation Army and myself. Mr Kuol has never presented as substance affected during the course of the psychological treatment.
At the hearing, the Tribunal called for Dr Cattapan’s clinical notes and other reports she had prepared in respect of Mr Kuol and they were produced to the Tribunal.
The Tribunal notes Dr Cattapan’s letter addressed to Centrelink dated 11 October 2017 in relation to Mr Kuol’s application for the DSP.[29] In this letter, Dr Cattapan described Mr Kuol’s mental health issues and provided details of the symptoms he had experienced. It was reported that in 2008 (at the age of 22), Mr Kuol experienced a psychotic episode where he believed he was a radio and that people could read his thoughts. He was living in Hobart at this time and was admitted to the Royal Hobart Hospital. It was reported that Mr Kuol subsequently moved to Melbourne to be closer to his brother and uncle but that he was still decompensated and was admitted to St Vincent’s Hospital. At this time, Mr Kuol was reportedly becoming paranoid. He feared snakes and thought that people were turning into snakes. Dr Cattapan said Mr Kuol had experienced further psychotic episodes and was supported in the community by the local Crisis Assessment Team.
[29] Refer Exhibit “THD2” - THD stands for Tribunal Hearing Document, i.e. it was not tendered by either party but called for by the Tribunal during the hearing.
Dr Cattapan stated that Mr Kuol’s mental health had been up and down since 20015 and he had experienced fewer psychotic symptoms, but more agoraphobic type symptoms and his mood was low. She considered that he met the criteria for a depressive disorder and agoraphobia. She reports that he rarely visited friends but would talk to them on the telephone.
The Tribunal notes a further letter by Dr Cattapan dated 3 July 2018 to the Victorian Civil and Administrative Tribunal in support of an application to rescind a State Trustee Order.[30] In this letter, Dr Cattapan stated that of recent times, Mr Kuol had struggled with a gambling addiction. She said that several psychological strategies had been trialled with Mr Kuol which ultimately led to him making the decision to have his income managed by the State Trustees. Dr Cattapan described in the letter that while Mr Kuol had appreciated the support of the State Trustee, he felt constrained by the weekly income allowance that was provided to him under that arrangement and wished for it be increased.
[30] Refer Exhibit “THD1”.
The Tribunal notes in a further letter dated 5 June 2019 by Dr Cattapan to the Administrative Appeals Tribunal (provided in relation to Mr Kuol’s application for the DSP), that she reported the following in respect of the functional impact of Mr Kuol’s medical conditions on his “self-care and independent living”:[31]
Mr Kuol does not know now to prioritise or even understand money – he will gamble his money on the pokies believing that he will make money to be able to send to his family in South Sudan. Despite repeated losses he has not learnt that this is not a means to making money. In 2018 the State Trustees intervened to manage his money. He requires regular food parcels from the Salvation Army.
[31] Refer Exhibit “THD3”.

In this letter, Dr Cattapan also notes that Mr Kuol had told her that he had friends, but he did not see them because they were still drinking. She said Mr Kuol was determined not to drink because of the impact on his mental health and because he did not want to get into trouble with the law. She said Mr Kuol’s only regular social contact was with his 13-year-old son who he spoke to by telephone about once a month. Dr Cattapan registered her concern about Mr Kuol’s isolation and stated that he would only travel to familiar areas and only in the morning when there were less people about. Dr Cattapan opined that Mr Kuol was a “very compromised person” who required “much more support than others” and that he was “unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness”.
The Tribunal notes that Dr Cattapan’s clinical note dated 3 July 2019 included a handwritten reference to Mr Kuol reporting that he was “not good @ the moment”, was “feeling bored”, and had returned to “gambling”.[32]
[32] Refer Exhibit “THD6”.
Dr Cattapan gave evidence at the hearing. She said she had been practising as a psychologist for 25 years. She confirmed that she had first seen Mr Kuol in 2015 and then there was a gap of 18 months in treating him and he returned to see her in 2017. She said the referral from his general practitioner at that time described the “area of concern” as agoraphobia and social anxiety. Dr Cattapan said she had seen Mr Kuol a total of 23 times since 2017. She said there had been some improvement, but it had been a difficult time for him and he had been worried about his citizenship and “doing the right thing”.
Dr Cattapan was asked how Mr Kuol’s mental state had been. She said he was “mostly stable” and was “focussed on any early warning signs”. She said he had a good understanding of those warning signs and he knew to go to his general practitioner or an emergency department if he got worse. When asked what she meant by “mostly stable”, Dr Cattapan stated Mr Kuol was stable all the time and remained socially isolated. Dr Cattapan said he had not mentioned travelling to Tasmania for four months. She said he had a son there.
Dr Cattapan told the Tribunal she considered Mr Kuol to be “gentle and warm”, “easy to work with”, “compliant”, “insightful” and that she was happy to continue seeing him. She said he was “respectful and thoughtful” with her and that he asked questions when he needed to. She said she had some knowledge of his past criminal offending. When asked whether Mr Kuol had acknowledged to her that he had been aggressive, Dr Cattapan told the Tribunal that she understood that Mr Kuol had been smoking heavily and he did not know what was happening to him. She said Mr Kuol thought people were eating other people and he could see people turning into snakes. She said she was aware he was taken to hospital. She said Mr Kuol had told her that he did not want to be violent, but he was scared.
Dr Cattapan was asked about her previous references to Mr Kuol’s gambling in her correspondence. Dr Cattapan said that in about 2014, Mr Kuol had played the pokies and won $1,500 and sent the money to South Sudan. She said he developed an idea that he could make money for his mother. She said that the gambling had not been an issue since he started receiving the DSP.
Dr Cattapan said she maintained the view that Mr Kuol would face difficulties in the workplace with the challenge of dealing with people and the comments they might make, even though his symptoms had settled. She said that he might be able to work full time or part time in a “really supportive environment” where they understood his issues and he would need breaks to process. She said she had been trying to encourage him to pursue work at a place in Brunswick where they made furniture.
Dr Cattapan said in her opinion Mr Kuol would no longer meet the criteria for depression but that he would for agoraphobia. She said she was able to be confident about Mr Kuol because his strong attachments with the community, his general practitioner, with herself and his case worker, indicative that he had formed secure early attachments. She said Mr Kuol’s mental state had improved once he had started to receive the DSP and was able to send money to his mother. She thought that, “there had been some solid adults in his life”.
When taken to her clinical notes, Dr Cattapan confirmed that Mr Kuol had returned to gambling because he was “bored”, but that he was still paying his bills and she had talked to him about doing some work instead.
During cross-examination, the advocate for the Minister provided Dr Cattapan with a summary of Mr Kuol’s earlier criminal history. Dr Cattapan was largely unaware of the details that were provided to her. Upon those details being revealed to her during questions, she became increasingly more concerned and inclined to think that the nature of those offences might change the views she had expressed in her letters and report. She expressed disappointment that he had not told her about those things and said that she should have asked for more detail. She said she suspected Mr Kuol was ashamed of that history and also that English was not his first language. She later accepted that his English was good.
In re-examination, Dr Cattapan said that knowing about his early criminal offending did not change how she had described in her report how Mr Kuol had presented to her. She said that people can change and learn from past mistakes. She said she would have preferred to have known though. When asked whether she was aware if Mr Kuol was attending Alcoholics Anonymous, Dr Cattapan said that if he was, then he had not spoken about it, and that she thought this was probably not necessary. Dr Cattapan said that alcohol was not his primary issue and that it was his mental health.
MR KUOL’S CONTENTIONS
Failure to disclose criminal history
In terms of Mr Kuol’s failure to declare his criminal history on the citizenship application form, he stated as follows:[33]
I do not have a good education and my English is ok. I completed the application for Australian citizenship form by myself.
Not declaring my criminal record on the form was a genuine mistake due to a misunderstanding. I was not attempting to be deceitful. I now understand that I need to be very careful with official forms or documents and get advice if I don’t understand. There are people I can ask for help.
[33] Refer paragraphs [52] and [53] of Mr Kuol’s 2019 Statutory Declaration.
In his 2019 Statutory Declaration, Mr Kuol sought to explain that he knew many other Sudanese who had applied for Australian citizenship. Mr Kuol said he had been told by many of them (although he could not remember precisely who had told him), that once it had been two years since a person had been released from prison, they could apply to become an Australian citizen. Mr Kuol said he completed the citizenship application form himself. He said his English was okay now, but if something was complicated, he could misunderstand it. Mr Kuol stated:
I was reading the front page of the form and I remember it said something about your criminal history. I misunderstood and assumed this was the part about how I have been out of prison for two years and not gotten into any trouble the past two years, so I said no.
I knew that the government would have my record, it’s not that I thought I could hide something from the government and they would not know about my history. I know that everything is on computers and connected…
The Department’s Form 1300t entitled “Application for Australian citizenship, General eligibility” with a “design date” of “07/16” was tendered as evidence at the hearing.[34] This form includes a section (on page 4) describing circumstances when an application cannot be approved. This section specifically deals with criminal offences and states as follows:
If you are 16 years of age or over, the Department will request a National Police check from the National Police Checking Service (NPCS).
If any of the following circumstances apply to you, your application for Australian citizenship cannot be approved:
…
When it is less than 2 years since you were released from prison after serving a prison sentence of 12 months or more, or 10 years if you are a repeat offender.
[34] Refer Exhibit “A4”.
Form 1300t also provides the following information to prospective applicants about the good character requirements:
Good character
If you are 18 years of age or over, you will also need to be assessed under the good character requirements.
Convictions
You must tell the Department about any convictions you may have had in Australia or overseas.
A conviction is a criminal charge leading to a guilty verdict in a court of law resulting in imprisonment or a fine or good behaviour bond. A traffic infringement, such as an on-the-spot speeding or parking fine is not considered a conviction.
If any of the above apply to you at the time you lodge your application please call the Citizenship Information Line.
Spent convictions
You must declare spent convictions in your application.
The spent conviction law allows people with minor convictions to disregard those convictions after a certain period of time. A conviction may be considered spent if:
It is 10 years since the date of conviction (or 5 years for juvenile offenders), and
The person was not sentenced to imprisonment for more than 30 months, and
The person has not re-offended during the 10 years (or 5 years for juveniles) period, and
A statutory or prescribed exclusion does not apply.
The Department is allowed to ask you for this information for the purpose of assessing your application.
Please refer to and read the information regarding spent convictions available from the website >
At the hearing, Mr Kuol was asked about his failure to disclose his criminal history of offending on the citizenship application form. He said he did not know why he did not put it on the form. He refuted a suggestion put to him that he had intentionally lied. He said there was no reason for him to lie because he “knew they would find out”. The Tribunal asked Mr Kuol why he did not disclose the criminal offences if he considered the Department would run a search anyway. Mr Kuol responded to the following effect, “Me writing down info that was really long – it was an easy way out”. The Tribunal agreed there was a lot of detail in the forms and asked Mr Kuol why he did not simply answer “Yes” and refer the Department to his criminal record. Mr Kuol said, “I just did it”.
General overtures
In Mr Kuol’s statutory declaration made on 2 August 2019, he acknowledged that for a period in his past he had done many “bad things and hurt people” and was “very sorry” about his behaviour.[35] He stated he now realised that he could not drink or smoke cannabis and that he had successfully stopped. He stated he had insight into how important his medication was and he took it every day. He referred to the community support to which he has regular access and that he seeks treatment from a psychologist once a month.
[35] Refer Exhibit “A3”
In Mr Kuol’s 2019 Statutory Declaration, he stated as follows:[36]
I feel that I belong in Australia. I love this country and am very grateful for all Australia has done for me. I want to officially be a part of the community that I love and feel is my home, which is why I feel so strongly about becoming an Australian citizen.
[36] Refer paragraph [54] of Mr Kuol’s 2019 Statutory Declaration.
Mr Kuol contended that his likelihood of reoffending was low given:[37]
(a)his young age at the time of previous offending and subsequent demonstrated remorse, shame and insight into his offending;
(b)he has identified and accepted the causal effect of his alcohol and drug abuse in his offending;
(c)he has a very good understanding of the consequential effect of failing to take medication for his diagnosed mental health condition;
(d)his continual commitment to obtaining psychological treatment and he has addressed (while in prison and after his release), the issues that led to offending;
(e)his prolonged abstinence from drugs and alcohol and compliance with his medication; and
(f)he has not re-offended since 2010 and has been “living stably in the community” and “shown a genuine desire to engage regularly with various programs and support services and to obtain employment”.
Rehabilitation initiatives undertaken by Mr Kuol
[37] Refer paragraph [42] of the Applicant’s Statement of Facts, Issues and Contentions dated 7 August 2019 (Mr Kuol’s SFIC).
Counselling and AA meetings
At the hearing, Mr Kuol confirmed he was released from custody on 19 December 2013 as established by records held by Corrections Victoria.[38] Mr Kuol confirmed that he had attended between 10 and 20 Alcoholics Anonymous sessions and had counselling. He said that he was told by the counsellors that there was nothing more they could do for him, being the reason why he no longer attends counselling. He said the counsellors were aware of his criminal record and that he had been sent to them by the courts.
[38] Refer Supplementary T-Documents page 113.
Mr Kuol said he had been seeing Dr Cattapan and that he spoke to her in English.
Attempts at employment
Mr Kuol confirmed that he was also sent to the Jesuit Social Services and attended employment programs about “once a week”. He told the Tribunal that he went there to improve his English and that they had found him a job in 2014, but it was “far away” and he “didn’t get along with some people”. He said that someone did the wrong thing and they blamed it on him. This job lasted for two months and his employment was terminated. He said he also worked as a kitchen hand in a restaurant between October and December 2018, but work would finish at 1:00am or 2:00am and this was too hard for him. Mr Kuol said he had worked for “Room to Improve” for three or four months on a full-time basis, which involved taking stuff away from hoarders. He said that without a driver’s licence it was hard for him to get to places. He said he would meet his work colleagues at the nearest station. He said he resigned from this position. He said he did not have a letter of reference because he did not give them notice of his resignation.
Mr Kuol said he did not have a computer at home, but he was going to get one soon. He stated he had access to the internet on his phone and had Wi-Fi at home.
Further education and training
Mr Kuol said he completed an English course in about 2014 to improve his English and Maths, which went for about one year and that he received a certificate.
Mr Kuol stated that he did not end up doing a horticulture course. He said he went once a week to the library to read newspapers and books. He said he would borrow a book if he was interested in it. He said the newspaper and books were in English.
Mr Kuol said he watched television everyday and that normally, he fell asleep watching it. He stated he watched comedy shows and action movies and that they were in English.
During cross-examination, Mr Kuol agreed that:
(a)he had been in Australia for 15 years before making his citizenship application;
(b)he had completed his schooling in Australia;
(c)he had English-speaking friends at school who spoke English;
(d)his doctors, support workers and past employers spoke English; and
(e)he had passed the citizenship test written and answered in English.
The Tribunal observed Mr Kuol when he was giving evidence at the hearing. He did so without the assistance of an interpreter. He had a reasonably good command of the English language.
CONSIDERATION
The Tribunal considers that there are many positive indicators that Mr Kuol is a person of an inherently good character including the following:
(a)when Mr Kuol is not under the influence of alcohol or cannabis or suffering from the symptoms of his very serious psychiatric condition of schizophrenia, the reports from the people who either provided character references or who gave evidence at the hearing consistently spoke of Mr Kuol’s gentle and respectful nature. They also spoke of Mr Kuol’s commitment to want to better himself and to remain as a law-abiding citizen;
(b)consistent with this (but subject to the observation of the Tribunal as set out in paragraphs [131] and [132] below), at the hearing Mr Kuol showed genuine remorse and shame for the harm that he has caused to others when he has committed a range of violent offences in the past;
(c)Mr Kuol has remained concern for the welfare of his mother, despite having been separated from her during childhood due to the civil unrest in his home country, and continues to be concerned about ways in which he can financially provide for her; and
(d)Mr Kuol had shown great resolve in abstaining from drinking or taking drugs and abstaining from any further criminal offending over the last ten years, despite having limited supports around him and considering his life circumstances and the impact of his medical conditions on him.
However, in deciding whether Mr Kuol is of “good character”, the Tribunal must take into consideration the following important things:
(a)Mr Kuol’s extensive history over many years of criminal offending (putting aside those convictions of which he was acquitted in 2016 which the Tribunal has not taken into account), including serious crimes of violence including against women[39] (and men) and police officers;
(b)Mr Kuol was convicted of drink driving charges meaning that he had put the general public at risk on the roads on more than one occasion;
(c)Mr Kuol has exercised extremely poor judgment when fleeing from the scene of a serious car accident (as the driver of the vehicle and intoxicated at the time) out of fear that he would get into trouble with the police;
(d)many instances of non-compliance by Mr Kuol with court orders and bail conditions showed an established pattern of disrespect for the Australian legal system over those early years when he committed various criminal offences;
(e)Mr Kuol has continued to exhibit signs of engaging in addictive behaviour, acknowledging at the hearing (which was not disclosed prior) that he had a problem with gambling that with the help of Dr Cattapan he was still trying to address;
(f)Mr Kuol has continued to socialise (and occasionally spends time in his presence, including for extended overnight stays) with a friend, “Peter”, who continues to have a serious drinking problem and who may present as a temptation to Mr Kuol to re-engage in drinking alcohol; and
(g)Mr Kuol positively stated on the citizenship application form (by ticking the “No” box) that he had not been convicted of a criminal offence, when in fact, that was not correct because he had a criminal record with over 20 listed convictions when he made that statement.
[39] Refer paragraph [64] of these Reasons for Decision.
In general, the Tribunal found Mr Kuol to be an honest and open witness at the hearing demonstrated in part by his answers to some questions at the hearing which did not serve his interests. The Tribunal found Mr Kuol, generally, to be a credible witness and this demonstrated Mr Kuol’s respect for the processes of the Tribunal. That said, the Tribunal could not accept Mr Kuol’s evidence as to why he had not disclosed the criminal convictions on the citizenship application form. While it may not have been an overtly deliberate step by Mr Kuol to try to mislead the Department, the Tribunal considers that Mr Kuol was hoping for the best when he answered “No” to the question about whether he had any criminal convictions, and that his application might pass through the assessment process without his past criminal history being brought to light in the decision-making process. The Tribunal does not accept Mr Kuol’s evidence that he misunderstood the question as being qualified as applying only to convictions that were issued in the previous two years. The Tribunal finds that Mr Kuol has a good basic understanding of written and spoken English as demonstrated at the Tribunal and by the evidence referred to in paragraphs [122] to [126]. There was no “two year” qualification forming any part of the question prompting Mr Kuol to list his past convictions. The word “any” in the question must have been clear to Mr Kuol that it meant any convictions, whenever they were issued. The Tribunal finds that Mr Kuol understood the question being asked of him at the time he answered “No”. The Tribunal is satisfied on the balance of probability that when Mr Kuol gave his answer, he knew it was incorrect. Mr Kuol’s justification for why he answered incorrectly, also seemed to change from when he first made his statutory declarations to when he responded to questions about this omission during the hearing. The Tribunal does not accept those justifications and it was wrong of Mr Kuol to have provided this false information on the form. Even if the Tribunal is found to be wrong about this, it considers that the other matters listed in paragraph [128(a) to (f)] cause the Tribunal not to be satisfied that Mr Kuol is of “good character”. Further explanation of the Tribunal’s reasons for reaching this conclusion is provided below.

The Tribunal commends Mr Kuol for his significant achievement in seeking and complying with the treatment and support he has received in relation to his psychiatric conditions of schizophrenia and more recently, agoraphobia. Mr Kuol is also to be commended for his significant achievement in having successfully abstained from alcohol and substance misuse over of the last ten years. However, the Tribunal does not accept that Mr Kuol’s risk of reoffending is low.
While Mr Kuol showed some acknowledgement and genuine remorse for his criminal offending, when giving evidence at the hearing there remained a theme in Mr Kuol’s responses of blaming others for what had happened or for creating memories of those events lessening the culpability of Mr Kuol, even though he openly admitted to not being able to remember some of those events due to his extreme state of intoxication at the time.
The Tribunal is not convinced that Mr Kuol has accepted, in full, due responsibility for his past actions and that not enough work has been done by Mr Kuol with Dr Cattapan and others to address that very significant early criminal history. This must commence by Mr Kuol acknowledging the central role he played in the commission of those offences for which he was convicted, and Mr Kuol does not seem to be there yet in this regard.
Dr Cattapan was taken by surprise when provided with the full history of Mr Kuol’s past offences at the hearing. This was a further indication that Mr Kuol has sought to bury, as best he can, his criminal history. His justification is that he is ashamed of his past and this is understandable. But in the context of his sessions with Dr Cattapan, if it was not a priority for Mr Kuol to raise and fully address that previous history of criminal offending with her in those sessions, and the role that he played in those events, the Tribunal cannot be confident that Mr Kuol has been appropriately reflective in a substantial way about regretting his past actions.
The Tribunal is also concerned about Mr Kuol’s remaining personal relationship with “Peter”, given that he has stayed with him in recent times (and vice versa) and that “Peter” continues to drink every day in excess and to drink in Mr Kuol’s presence. The Tribunal considers that this presents a significant temptation to Mr Kuol, albeit limited to the times when those visits occur and despite Mr Kuol’s assurances that it did not worry him. Taken in conjunction with Mr Kuol still exhibiting addictive behaviour himself in the form of his more recent gambling problem, Tribunal considers there is a risk that Mr Kuol may be tempted in Peter’s presence to relapse into drinking or smoking cannabis once more, especially if things do not improve for Mr Kuol in his quest for work. This is accentuated by Mr Kuol remaining unemployed and his description to Dr Cattapan (as indicated in her clinical notes) that he felt “bored”. The Tribunal does not consider the risk of Mr Kuol relapsing into drinking and smoking cannabis to be high given the success he has had in abstaining over the last ten years. However, the Tribunal does not accept that that risk is low. The Tribunal finds that Mr Kuol’s risk of reoffending remains present at a significant level.
While the Tribunal encourages and hopes that Mr Kuol remains on the good path that he is on presently, and has been on since committing his last offence, the Tribunal cannot be confident, at this stage at least, that Mr Kuol has reached a point where the Tribunal can be satisfied that he has enduring moral qualities or is likely to uphold and obey the laws of Australia and other commitments made through the pledge should he become a citizen. As such, the Tribunal is not satisfied that Mr Kuol is of “good character”. The Tribunal considers that Mr Kuol may wish to consider re-applying for citizenship at a time when more time has been allowed to pass, and when Mr Kuol can show further improvement in his life, such as being able to show that Mr Kuol has:
(a)established new friendships in his life with persons who do not suffer from alcohol or drug misuse problems;
(b)secured a meaningful occupation (be it part time or full time), through continued study or volunteer or paid work, to help fill his days; and
(c)revisited and substantively addressed his history of criminal offending with Dr Cattapan (or other treating psychologists) and addressed other current addictive behaviours.
CONCLUSION
For the reasons stated above, the Tribunal concludes that Mr Kuol does not meet the eligibility requirement under subsection 21(2)(h) of the Act because the Tribunal is not satisfied, presently, that Mr Kuol is of “good character”.
Accordingly, the Tribunal affirms the Decision Under Review.

I certify that the preceding 137 (one hundred and thirty seven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

...................[sgd].....................................................
Associate
Dated: 26 June 2020

Date of hearing: 25 & 26 September 2019

Date final closing submissions received: 8 November 2019

Counsel for the Applicant:

Ms Greg Hughan

Solicitors for the Applicant:

Refugee Legal

Advocate for the Respondent:

Mr Keith Sypott

Solicitors for the Respondent:

Australian Government Solicitor

[2020] AATA 1923

26 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Date of hearing:	25 & 26 September 2019
Date final closing submissions received:	8 November 2019
Counsel for the Applicant:	Ms Greg Hughan
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor