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

Case [2023] AATA 3486

Kuster and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3486 (26 October 2023)

Division:GENERAL DIVISION

File Number:          2022/10292

Re:Gus Kuster

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:26 October 2023

Place:Brisbane

Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision dated 15 December 2022 made by a delegate of the Respondent to refuse the Applicant Australian citizenship is affirmed.

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

Senior Member Theodore Tavoularis

Catchwords

CITIZENSHIP– decision to refuse Australian citizenship by descent – where Applicant is found to be not of good character – where the Applicant has a lengthy criminal offending history in Australia –  where the Applicant arrived in Australia from Papua New Guinea (PNG) as a child – where PNG authorities unable to locate any record of Applicant being a PNG citizen – consideration of relevant sections of PNG constitution- Tribunal finding Applicant is likely to be a citizen of PNG - Tribunal finding Applicant is not a person of good character- decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

Cases

Grass v Minister for Immigration and Border Protection (2015) FCAFC 231 FCR 128
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Hands v Minister for Immigration & Border Protection (2018) 267 FCR 628

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1999) 139 ALR 84
Kuster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1462
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45

Secondary Materials

Constitution of the Independent State of Papua New Guinea 1975 (Papua New Guinea)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member Theodore Tavoularis

26 October 2023

INTRODUCTION

  1. Mr Gus Kuster (‘the Applicant’) was born in Lorengau on Manus Island in Papua New Guinea (‘PNG’) on 31 October 1978. His Birth Certificate appears in the material.[1] On  


    15 December 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) refused the Applicant’s application for Australian citizenship by descent.

    [1] T1, 51.

  2. The basis of the refusal resulted from a finding that pursuant to s 17(1) of the Australian Citizenship Act 2007 (Cth) (‘the Act’), the Applicant was not eligible to become an Australian citizen because he did not meet the ‘good character’ eligibility criterion stipulated in  


    s 16(2)(c) of the Act.

    MANIFESTATION OF PRESENT CIRCUMSTANCES

  3. The Applicant’s mother, Ms Agnes Kuster was born in PNG on 3 September 1952. The material confirms that at the time of the Applicant’s birth in October 1978, she was a citizen of PNG.[2] She married the Applicant’s father on 27 July 1981.[3]The Applicant’s father is  


    Mr Richard Halden Leonard Kuster who was born in PNG…

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Details
AGLC
Kuster and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3486
Case
[2023] AATA 3486
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal concerned an application for Australian citizenship by descent, brought by an applicant whose mother is a citizen of Papua New Guinea (PNG). The Minister for Immigration, Citizenship and Multicultural Affairs had refused the application on the grounds that the applicant was not of good character, due to a lengthy criminal history in Australia. The applicant arrived in Australia from PNG as a child, and PNG authorities were unable to locate any record of him being a PNG citizen.

The Tribunal was required to determine two primary issues: firstly, whether the applicant was likely to be a citizen of PNG, and secondly, whether the applicant was a person of good character. The applicant’s mother provided evidence that her family originated from Manus Island, PNG, and that both she and the applicant were born on Manus Island after PNG gained independence in 1975. She also confirmed her ongoing PNG citizenship, evidenced by her PNG passport.

The Tribunal found that the applicant was likely a citizen of PNG, based on the evidence of his birth in PNG and his mother's confirmed PNG citizenship. However, the Tribunal concluded that the applicant was not a person of good character. This conclusion was based on the applicant's own evidence, which revealed a pattern of offending, including violent offences, often linked to drug abuse. Despite the applicant's claims of attempting to do good things and being in a difficult place, he could not satisfactorily explain the duality of his behaviour. The Tribunal noted that the applicant's claims of being drug-free for significant periods had occurred while he was institutionalised or in immigration detention, and his capacity to resist relapse in the unsupervised community remained untested. Consequently, the Tribunal affirmed the decision to refuse the grant of Australian citizenship.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant’s mother has provided both written and oral evidence to the instant proceeding. During her evidence-in-chief, she confirmed that she understood the content of her written statement made on 20 March 2023[21] and that she otherwise recalled her statement was provided for the purposes of the Applicant’s application for Australian citizenship.[22] [21] A17.[22] Transcript, p 77, lines 8 – 12. During her cross-examination, she confirmed: ·her family was from Manus Island, PNG;·her father was born on Manus Island; ·her grandparents (i.e the parents of her father) were born on Manus Island; ·her mother is from Manus Island; ·her other grandparents (i.e. the parents of her mother) were born on Manus Island;·she recalled the birth of her son, the Applicant, and that he was born on Manus Island in 1978; ·she could recall that PNG gained independence in 1975; ·the Applicant was born after PNG gained independence; and ·she married the Applicant’s father on 27 July 1981 and that this marriage occurred after PNG gained independence and after the Applicant was born.[23][23] Ibid, lines 25-46; p 78, lines 1 -9. The Applicant’s mother confirmed that she made application for a passport to the PNG authorities in 1981. She particularly recalled that her children were included on her passport because, at that time, they were under 18 years of age. She also recalled that she came to Australia in 1983 with her children and she sought permanent residence in this country at that time. She was able to recall that she applied for permanent residence prior to coming to Australia because she knew she needed to establish a right to permanent residence in order to come here.[24][24] Ibid, p 78, lines 11-41. The following exchange ensued between the Applicant’s mother and the Respondent’s representative: ‘MR ETUEATI: And you – at that time when you applied, you were a citizen of Papua New Guinea?MS KUSTER ---Yes.MR ETUEATI: And were you a citizen of Papua New Guinea, as far as you know, from 1975, from independence?MS KUSTER: ---Yes.MR ETUEATI: Were you a citizen of Papua New Guinea when Gus was born in 1978?MS KUSTER: ---Yes. MR ETUEATI: Are you a citizen of Papua New Guinea now?MS KUSTER: ---Yes.MR ETUEATI: Are you a citizen of Australia? Have you ever applied for Australian citizenship?MS KUSTER: ---No, not yet. MR ETUEATI: All right. So you’re still, in your understanding, a citizen of Papua New Guinea?MS KUSTER---Yes.’[25][25] Transcript, p 78, lines 43-47; p 79, lines 1-10. Since arriving here in 1983, the Applicant’s mother has returned to PNG ‘maybe three times when my [the Applicant’s mother] father pass [sic] away; and then my sister pass [sic] away. I think three times…’[26] She confirmed that she obtained a new PNG passport on 17 April 2019 and that it is due to expire on 17 April 2024.[27] She confirmed that her current passport contains the words ‘Citizen of Papua New Guinea’ on it.[28] She was then taken to her immediately preceding passport which was issued to her on 29 December 2005 and which expired on 29 December 2010 and she confirmed that this passport also had the words ‘Citizen of Papua New Guinea’ on it as well.[29] She otherwise confirmed that she held a PNG passport from 2005 until 2010 and that she applied for a new PNG passport in 2019.[26] Ibid, p 79, lines 14-15.[27] Ibid, lines 36, 46.[28] Ibid, p 80, lines 1-5.[29] Ibid, p 80, lines 9 – 16.

Decision

Reasons for decision

The Applicant’s evidence appeared confused and muddled in this regard. He accepted that he did do the good things for his friends and family referred to in the evidence, yet was not able to explain why he had a parallel life committing offences. He unsatisfactorily explained this conundrum on the basis that he ‘…was not in a good place…’ and that ‘Its hard to say what happens in the next day where I have made the wrong decision.’:MR ETUEATI: So not withstanding that you were doing some positive things with your friends and your family, you were still committing offences including violent offences, weren’t you?APPLICANT---Yes.MR ETUEATI: You can see, can’t you, that – well, one of the things that the tribunal might have to determine is whether or not you’re currently a good character. And one thing - - -?APPLICANT---Can I just say something? I think that – in those times, throughout my life, even when I was on the drugs, I was still doing some good things. And they’re the good things I think you can see with some people that have written stuff. Even though I was not in a good place, but I was trying my best. It’s hard to say what happens in the next day where I have made the wrong decision. But at the same time, I’ve been under the influence the whole time.MR ETUEATI: Well, you haven’t though. You’ve not been under the influence for, for example, five years?APPLICANT: ---Yes, I understand, but most of the time I was before these times. I’ve been institutionalised. I’ve been in and out of jail the whole time since I was young, and you’ve got that in front of you.[120][My emphasis][120] Transcript, p 28, lines 19-36. Later in the cross-examination the Applicant referred to being drug-free since 2017, which is the time he went to prison. He referred to not having taken drugs in either prison or immigration detention and told the Hearing that in those sorts of institutions ‘There’s drugs everywhere, but I choose [sic] not to take it….’[121] The Applicant then was taken back to the five-year period commencing in about 2005 where he was drug-free but when he was presented with a difficulty in life he relapsed into illicit drug abuse as a means of addressing that difficulty:‘MR ETUEATI: Just like back in 2005 where you went for five years, didn’t take it, then something happened which upset you and you went back to drugs and back to offending?APPLICANT: ---I can’t tell you what’s going to happen tomorrow.MR ETUEATI: No, you can’t?APPLICANT: ---All I can do is be the person that I am now, you know, so. Like, I believe that I’ve done enough to know my stop points and not to fall back into those ‘read the danger’ signs, and especially, like, like I said, I’m not young anymore. I’ve only – I’m nearly halfway there. I’ve been to the place where I know that it’s enough.’[122][My emphasis][121] Ibid, p 29, line 5.[122] Ibid, lines 8-16. Another important point that emerged from the Applicant’s evidence resulted from his earlier evidence that he had not taken illicit drugs in either prison or immigration detention and that his capacity to resist the temptation of returning to illicit substance abuse has not been tested in the non-supervised environment of the general community. He did not appear to deny that reality: ‘MR ETEUATI: Thank you. What’s being suggested is that you have been through periods before, long periods, where you haven’t taken drugs. Then you’ve had a difficulty, and you’ve been outside of – not in jail, not in prison, when you were outside of prison, then you decided to go back to drugs and back to criminal offending. That’s correct, isn’t it?APPLICANT: ---Yes.MR ETUEATI: What I’m suggesting is, this time, again, there’s been a period of time around the same time as the period before, five or six years, where you haven’t offended. But what I’m putting to you is, so far, you haven’t been out free in the community where there’s very little chance that you’re going to be – well, much less of a chance you’re going to be found out in the community where you’re free than in circumstances where you’re being closely supervised in either jail or immigration detention. What I’m suggesting to you is that the chances of you going back to drugs are untested in society, and that you may well go back to drugs once you’re released – if you are released from detention or jail. Do you have anything to say to that?APPLICANT: ---Well, now you’re saying it like that it’s different. Before you were confusing me a bit, but sorry I didn’t understand it.’[123][123] Transcript, p 30, lines 29-46.

Ratio Decidendi

Legal Principle Established

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