Lakoh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 1921
•26 June 2020
Lakoh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1921 (26 June 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1407
Re:Abass Lakoh
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr Rob Reitano, Member
Date:26 June 2020
Place:Sydney
The decision under review is set aside and remitted to the Respondent for determination with a direction that absent any material change to the circumstances considered in this review concerning Mr Lakoh’s character, the delegate should be satisfied that the Applicant is of good character and meets the eligibility requirement in ss.21(2)(h) of the Australian Citizenship Act 2007 (Cth).
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Mr Rob Reitano, Member
CATCHWORDS
CITIZENSHIP – eligibility – where application for Australian citizenship refused – driving offences – whether applicant is of good character – considerations to be taken into account when assessing good character – whether applicant has demonstrated the “enduring moral qualities” associated with “good character” over a sufficient period of time – applicant found to be of good character – decision under review set aside and remitted to the Respondent for determination
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(2)
CASES
Belkahe v Minister for immigration and Citizenship [2019] AATA 4472
Dandan v Minister for Immigration and Citizenship [2010] AATA 539
Gany v Minister for Immigration and Citizenship [2010] AATA 966
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660
Mana v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639
SECONDARY MATERIALS
Citizenship Policy
REASONS FOR DECISION
Mr Rob Reitano, Member
26 June 2020
On 6 March 2019, a delegate of the Minister for Home Affairs wrote to Abass Lakoh (Mr Lakoh) telling him that it had been decided to refuse to approve his application for citizenship because the delegate was not satisfied that Mr Lakoh was ‘of good character at the time of the Minister's decision on the application’. A determination that a person is of good character at the time of the Minister’s decision on the application is one of the eligibility requirements for citizenship by conferral found in ss. 21(2) of the Australian Citizenship Act 2007 (Act).
The delegate did not assess all the eligibility requirements under the Act, but so far as he or she did the only criteria that he was not satisfied about concerned whether Mr Lakoh was of good character at the time that the application was being determined. This decision is confined to a consideration of whether Mr Lakoh is of good character as those words are used in ss.21(2)(h) of the Act.
Mr Lakoh has asked the Tribunal to review the delegate’s decision. I have decided to set aside the delegate’s decision about Mr Lakoh’s character and have remitted the application to the delegate for further consideration with a direction that, if the circumstances which I have considered in this review have not materially change at the time that the application is determined, then the delegate should find that Mr Lakoh is of good character. I set out the reasons for that decision.
FACTS
Mr Lakoh was born in the Republic of Sierra Leone in May 1990. On 3 April 2008, he came to Australia on a subclass XB-202 Visa that was issued to him on 7 February 2008. On 26 September he was granted a subclass 155 Resident Return Visa. On 4 January 2017 he made an application for Australian Citizenship.
The delegate was not satisfied about Mr Lakoh’s good character because of his criminal history and his driving record. That history consists of the following offences and penalties:
(a)one offence concerning his use of an unregistered registrable Class A motor vehicle for which he was convicted and fined $500.
(b)one offence of driving while his licence was suspended for which he was convicted and received a 12-month good behaviour bond, 2 years disqualification from driving and fined $400.
(c)one offence of proceeding at a pace (apparently running) that may cause injury or damage for which he was convicted and was not otherwise penalised.
(d)one offence of offensive language in or near a public place/school for which he was convicted and was not otherwise penalised.
(e)one offence of behaving in an offensive manner in/near a public place/school for which he was convicted and fined $100.
(f)one offence of causing/permitting use of an unregistered vehicle registration suspended for which he was convicted and was not otherwise penalised.
(g)one offence of using a vehicle in breach of a major defect notice for he was convicted and fined $100.
(h)one offence of removing/defacing a vehicle defect label with no authority for which he was convicted and fined $100.
(i)one offence of driving with a mid-range proscribed content of alcohol for which he was convicted, disqualified from driving for six months and fined a $750.
(j)one offence of driving across dividing lines to do a U-turn in a motor vehicle for which he was convicted and fined $250.
(k)one offence of not stopping at a stop line at a red light in a motor vehicle for which he was convicted and fined $500.
(l)one offence of not giving left change of direction signal with lights for which he was convicted and fined $100.
(m)one offence of driving a motor vehicle while licence suspended – second offence for which he was convicted, placed on a bond to be of good behaviour for two years and disqualified from driving for two years. It is not clear from the evidence whether Mr Lakoh received a fine for the offence even though the Minister appears to have proceeded on the basis that he did not[1]. I will proceed on that basis as well because the evidence is not capable of demonstrating in a satisfactory way that a fine was in fact imposed.
[1] Exhibit 1 T3 page 13 but cf. attachment A to the Ministers Statement of Facts Matters and Contentions.
All except the last of the offences were dealt with at Blacktown Local Court on 21 October 2010, that is, nearly ten years ago. Mr Lakoh said in his evidence that he did not commit all the offences on a single occasion or even at about the same time. Despite Mr Lakoh’s evidence, bearing in mind the time that has passed since October 2010, it is reasonable to presume that they did in fact all occur within a reasonably close time to one another, perhaps within the six or so months before 21 October 2010.
Added to his criminal history, Mr Lakoh received five traffic infringement notices in the period 4 November 2008 to 8 September 2009: one for the offence of speeding between 10 and 20 kilometres per hour over the speed limit; two for failing at different times to comply with the conditions of his learners permit by not being accompanied by a licenced driver; and two for failing to comply with the conditions of his learners permit by not displaying his learner plates.
Also, on 13 January 2015, he received infringement notices for two traffic offences: one of failing to comply with the conditions of his learners permit by not being accompanied by a licenced driver and one of not displaying his learner plates. As a result, he had his licence suspended. It would seem, piecing together the chronology, that it was after that suspension was the occasion when he drove again that gave rise to his second offence for driving whilst suspended which I have referred to earlier.
At some stage during last year, after 4 August 2019, he received another infringement notice for an offence that did not appear on his driving record, but which he referred to in his evidence, which was for not complying with the conditions of his provisional licence by displaying probationary driving or ‘P’ plates.
The Minister also referred to the contents of a police report of an incident on 9 March 2018 involving Mr Lakoh. That report contained the following:
[The applicant] and PN2 have began [sic] trying to negotiate the price from $1500 to $1250. The victim has gotten upset with the customers before asking them to leave several times if they were not going to pay for the services. After a short argument where all parties yelled obscenities at each other, the victim has ushered both [the applicant] and PN2 out of the building and into the car park. [The applicant] and PN2 were still having a yelling match with the victim causing [the applicant] and the victim to get in each others faces. The victim has then had enough and called police…[the applicant] and PN2 agreed to pay the full price for the services before leaving the location and ending the civil dispute. Police left the location with nil further involvement….
Mr Lakoh gave evidence in the hearing before me, and I have no hesitation in accepting his evidence as truthful. He answered questions in a forthright and considered manner. He was not reluctant at all to confront his past wrongdoing.
His evidence dealt with his arrival from Sierra Leone in 2008 and the fact that for 12 months after he arrived in Australia, he remained unemployed. He said that was a difficult time for him as he was young, and I infer, because of the social dislocation that would necessarily have accompanied him, having moved from a developing country to Australia.
Since May 2009, Mr Lakoh has been employed as a Carer for Anglicare at the Donald Coburn Centre at Castle Hill. The Donald Coburn Centre is a Residential Aged Care facility caring for elderly people. I gained the impression from the material and from his evidence that Mr Lakoh was enormously proud of his position at Anglicare and committed to his work and his chosen vocation. On 22 March 2020, he completed a course described as ‘Infection Control Training – Covid 19’. He is at present, given his occupation, and where he works, no doubt a critical part of the front-line health effort being mounted against the new coronavirus. He also worked at one time as a Pastoral Care Volunteer at Blacktown Hospital for about six months after completing some training in pastoral care.
Mr Lakoh expressed remorse for his driving record both in his written statement and in his oral evidence. I accept that his sense of remorse was genuine. In short, when he said he was ashamed about what he had done, I believed him. He was ashamed of what his driving record said about him. He accepted responsibility for what he had done and the offences he had committed. Even though he tried to explain how his driving record had come about, by reference to his arrival in a new country, the stresses and tensions of life without emotional support from friends and family and his lack of knowledge of road safety laws, he did not use that explanation to excuse his wrongdoing.
In the view I take his statement that he was suffering from depression at the time, in 2010, is not necessarily something that requires medical evidence. Even if he had not formally been diagnosed by a medical practitioner or like qualified person with a depressive disorder, it is not an enormous leap in logic to understand why a person relocating from one country, in particular a developing country, to another country, would have issues of that nature whether diagnosed or not. That is, his evidence may be accepted on the basis that he was very much ‘down in the dumps’ in ordinary parlance.
I also accept his evidence about his lack of access to, and difficulty with, public transport as being a factor which led to, at least, some of his offending. I do not consider that he was at all diminishing his own responsibility when he outlined his problems with public transport; rather he was providing a context for his wrongdoing which on his own evidence, was inexcusable and a matter that brought shame to him. He said, and I accept, that on the occasions he was pulled over he had been driving to and from work, and this was so in relation to the 2015 offence when he was driving whilst his licence was suspended. His ‘need’ to use his vehicle to get to work is consistent with the view I formed about his pride in his work: his work and his vocation were important to him.
In August 2015, he completed the Traffic Offenders Intervention Programme. In July 2019, he undertook the Traffic Offenders Rehabilitation Programme. He said that he now understands how important it is to obey traffic laws especially as a result of doing those courses. He said in his statement dated 30 July 2019 that he was a changed person over the last few years and had not in that time committed any further offences. He had by then obtained his provisional drivers’ licence. It was after then that he committed the offence for driving whilst not displaying his probationary or ‘P’ plates.
Mr Lakoh tendered several references. Some of the authors were available for cross-examination. Mansur Mansuri, the Secretary of the Afghan Community Support Association of NSW Inc, provided a reference about Mr Lakoh’s regular volunteer contributions to that Association and referred to Mr Lakoh as ‘an excellent example for youth in our community.’ Although Mr Mansuri said he had seen Mr Lakoh’s police record, it was not clear what he had seen. He was not cross examined.
There were other references from people who worked or otherwise knew Mr Lakoh. It is fair to say so far as Mr Lakoh’s personal and work life were concerned, driving record apart, those who knew him held him in high regard. Mr Lakoh was described variously as ‘caring’, ‘loving’, ‘responsible’, ‘respectful’ ‘honest’ and ‘law abiding’; ‘one of the role models in our workplace.’ The referees for the main part were unaware of the detail of Mr Lakoh’s criminal and traffic offence history. The evidence was therefore only of limited value albeit, but I rather gathered that not much of what occurred ten and five years ago would have diminished the view they had of Mr Lakoh’s character in 2020.
As for those who attested to Mr Lakoh being a ‘safe driver’, the evidence was both unpersuasive, because their experience of him driving seemed very limited or not of any significance, because so far as ‘bad driving’ was concerned, those offences occurred nearly a decade ago. In simple terms, much of it was based on limited or uncertain experience about them having been in a motor vehicle with him. It is also in some respects a distraction to identify the question as one that truly relates to Mr Lakoh’s driving ability. This is a matter to which I will return later.
I should add for completeness that there is, quite properly, no suggestion that Mr Lakoh at any time sought to conceal or otherwise mislead anyone about his criminal record or the other traffic offences he committed. There is also no suggestion that anything other than his driving record and the one instance referred to in the police incident report of 9 March 2018, adversely reflect on Mr Lakoh’s character.
ISSUE
The issue is whether the Tribunal can be satisfied that Mr Lakoh is ‘of good character’ as that expression is to be understood in ss.21(2)(h) of the Act. There is a second issue which is more formal in nature and concerns the time at which the determination of Mr Lakoh’s character should be made. I will deal with each issue separately.
GOOD CHARACTER
The question as to what constitutes good character is, as this case illustrates, often a difficult one involving an evaluative judgment about social values and norms which are often ripe for disagreement.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs[2] (Irving), Davies J, in addressing the question of good character observed that ‘the drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment’ and that ‘there are no precise parameters which distinguish "good character" from "bad character"’.[3] Fairly viewed, there will often be no right or wrong answers. This is so even accepting that the decision to be made is not one that turns upon an individual decision maker’s own subjective belief, but one that is made having regard to community standards. There will be in many cases, especially where the questions concerned involve matters of impression and judgment rather than of objectively ascertained fact, and where there is or may be a divergence of views about what the community standard might be, much to disagree about when it comes to questions of character, good or bad.
[2] [1996] FCA 1660.
[3] at [23].
The Citizenship Policy does not define the term ‘good character’. Rather, it directs the inquiry to a consideration of the characteristics a person has demonstrated over a long period of time; the capacity to distinguish right from wrong, behaving in an ethical manner and conforming to the rules and values of Australian society. The Citizenship Policy does not involve a narrow or one-dimensional insight into, or assessment of, character; rather it involves what is described as a holistic approach which is, perhaps, reflective of the fact that ‘character’ is multi-dimensional, complex and very often itself dependent upon impression. It is important, as I have observed earlier and as the Citizenship Policy directs, to approach the question of character not from the personal subjective expectations of the decision maker, but from the perspective of ‘community standards’.
The Citizenship Policy itself specifically identifies a series of indicators of ‘good character’, which broadly speaking, may be summarised as involving obedience to the law, honesty, the avoidance of conduct that harms others and the absence of associations with those who engage in illegal or anti-social behaviour.[4] Specifically, these include the particular requirements ‘in terms’ that an applicant ‘respect and abide by the law in Australia and other countries’ and ‘not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)’. But sight should not be lost of the fact that although these latter considerations might in a particular case, like this one, be important, factors such as honesty and the lack of immoral or undesirable associations weigh as much in the mix as others when it comes to assessing the existence or absence of ‘enduring moral qualities’.
[4] See the discussion in Mana v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639 at [51].
The Citizenship Policy appropriately points out that ‘[e]ssentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question’. Necessarily that involves weighing the seriousness of ‘behaviours’ that are inimical to good character against the strength of any facts or circumstances that moderate or even exculpate the behaviours identified.
The Citizenship Policy requires that the consideration of an applicant’s character have regard to the characteristic that the applicant has demonstrated over a ‘lasting or enduring period of time’, and rationally points out that what is a ‘lasting and enduring period of time’ depends on the merits on each case’ but will usually extend back from the date of any relevant application.[5] It follows that there can be no hard and fast rule about what period of time might be regarded as ‘lasting or enduring’.
[5] Citizenship Policy at p 150.
In Mana,[6] it was said that the existence of ‘good character’ cannot be reduced to ‘an arbitrary formula’, because a range of contributing factors such as the applicant’s age at the time of any offending conduct, any contributing stressors that accompanied the conduct, be they physical or psychological, and subjective views or impressions formed about any offending conduct and the circumstances that may, or may not have, mitigated the seriousness of it.[7] The observation is undoubtedly correct, although in a given case there may be other significant factors that weigh in the mix, such as the length and breadth of any demonstrable remorse that an applicant has shown for that conduct or things that have happened subsequently that put the conduct in a different light. In short, whilst past performance might be regarded as one very important indicator of future conduct, the generality of that proposition should not stand in the way of a proper ‘holistic’ weighing of all the circumstances in determining what period of time might need to have passed in order to assess whether or not an applicant has demonstrated, in the particular circumstances of a given case, ‘enduring’ moral qualities such that demonstrate good character at the time their application is determined.
[6] Mana v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639 (Mana),
[7] at [56].
So, for example, in Dandan,[8] a criminal record extending over ten years involving larceny, stealing and drug related offences where at the time of the decision, the last offence was 43 months earlier, did not preclude a finding of ‘good character’ because Mr Dandan had exhibited ‘good behaviour over a reasonable period’ which was something just short of four years. Yet, in Mana,[9] a period of 2 years since the applicant had come to attention for alcohol related behaviour that did not result in any charges being laid or offences being recorded, was not considered long enough even though the applicant’s last criminal offence in a long history of criminal offences related to alcohol consumption, was almost six years before his application was determined. In Gany,[10] a period of 4 years since the commission of serious alcohol related driving offences was not considered to be sufficient to demonstrate good character, having regard to the fact that it had been less than 12 months since Mr Gany was released from his parole obligation. And then in Martin,[11] where a period of just over 12 months had elapsed since the applicant’s most recent traffic offences, involving speeding and disobeying a traffic signal, in an offence record that went back more than ten years and contained 39 offences, was considered sufficient to demonstrate good character especially as the last alcohol related offence was 13 years earlier. In Belkahe,[12] the passage of three years since the commission of a serious domestic violence offence was not considered to be sufficient to demonstrate good character and enable an assessment about enduring moral qualities because of the serious nature of the offence (no doubt amongst other things because it involved actual physical harm), where Mr Belkahe had given inconsistent explanations for the offence and had demonstrated a reluctance to accept responsibility for the offence.
[8] Dandan v Minister for Immigration and Citizenship [2010] AATA 539.
[9] Supra.
[10] Gany v Minister for Immigration and Citizenship [2010] AATA 966.
[11] Martin v Minister for Immigration and Citizenship [2017] AATA 1093.
[12] Belkahe v Minister for immigration and Citizenship [2019] AATA 4472.
These cases, and others, demonstrate that enduring moral qualities are not determined by the application of some mechanical arithmetic calculation relevant to the time at which some past wrongful conduct was committed and the period that had elapsed since then. The approach is one that involves the impressionistic evaluation of all facts and circumstances, very often including as but one factor the length of time that has elapsed since the record accumulated or when the last offence was committed. It is all circumstances, not just time, that informs the determination of whether an applicant has now a character that can be fairly described as both lasting and moral.
The main issue here is what should be made of Mr Lakoh’s character considering his offences and driving record. There are several conclusions that can be drawn from some aspects of it. First, it is stating the obvious that substantially all the offences occurred more than ten years ago. Second, when most offences were committed, Mr Lakoh was relatively young, about twenty years of age. Third, when most of the offences occurred, Mr Lakoh had been in Australia for only a few years. Fourth, as I have found earlier, that at that time he had a lack of personal and emotional support from family and friends; arriving in a new country carries with it a lack of any stable or established social network. Fifth, many of the offences committed in 2010, as well as the traffic offences before then, both in their description and having regard to the penalties imposed, appear to be a far cry from offences involving a high level of seriousness or moral delinquency: the most serious of them is the mid-range PCA offence which carried with it a minimum six month suspension from driving (which Mr Lakoh received) and a $750 fine. Sixth, the driving offences which involved going through a red light, crossing divide lines, failing to indicate when turning and the speeding infringement (noting that Mr Lakoh has only one such infringement or offence to what is one of the more common traffic offences resulting in serious injuries and death), all have the character familiar with a new driver who has not learnt the skill of driving well at all. They probably do not reflect much on character at all. They reflect more on driving ability than anything else. Seventh, none of the offences appear (at least on the face of things) to involve actual harm, although I accept many of them could potentially have resulted in harm to others. Lastly, it is unfair to describe the record as being one that is ‘over a nine year period’ at least in so far as that description suggests a regular recurrent commission of offences: there is one period of offences in about 2010 and what in reality is one relatively serious offence in 2015.
In these circumstances, but especially having regard to their place in the long ago past, the offences in 2010 and before do not adversely reflect upon Mr Lakoh’s character at the time any decision is to be made about his application for citizenship ten years later. They rather reflect historic behaviour associated with the silly things that young people often do which, in the context of his new arrival from a developing country, are not at all good indicators of Mr Lakoh’s character today. I reject the suggestion that Mr Lakoh’s offences in or before 2010 are evidence of lasting bad character, or even of bad character at all.
The more difficult question arises from Mr Lakoh’s second conviction for driving whilst disqualified for which he was disqualified from driving for 2 years from 4 August 2015. That offence has relevance because it might be seen to demonstrate that Mr Lakoh does not respect the authority of Australian law having been penalised for the very same offence some years earlier and not having learnt his lesson.
For the Minister, it was submitted that because Mr Lakoh had lodged his application for citizenship in January 2017, when he was still suspended from driving, not a sufficient period of time had passed to determine whether or not Mr Lakoh has exhibited or established a sufficient period of good behaviour to warrant a finding of good character. Apart from the fact that the Minister, and in this case the Tribunal standing in the Minister’s shoes, is directed by s.21(2)(h) to consider the question of good character at the time that ‘the application is determined’, and not when it was lodged, the submission has some force. I am not, however, persuaded that it provides a basis for concluding that the Tribunal cannot be satisfied that Mr Lakoh is not of good character.
I have referred earlier to the Citizenship Policy and to decisions of this Tribunal that reflect the orthodoxy that ‘enduring’ moral qualities require demonstration of the requisite attributes of character over time. The conduct giving rise to the offence occurred almost five years ago. It was dealt with, so it would seem, very leniently by the District Court with Mr Lakoh receiving neither a fine nor a term of imprisonment where the maximum penalty that could have been imposed involved both a fine and a maximum period of 12 months imprisonment. Although there was some reliance on Mr Lakoh being on a good behaviour bond until August 2017, I do not think that detracts at all from the proposition that he has not offended in any material respect since his conviction in August 2015. In any event, he has not been convicted of any offence since his bond was discharged in August 2017, almost three years ago. He genuinely expressed remorse for his offences in his evidence which I have accepted as being genuine and his otherwise good character in terms of honesty and community service persuade me that he is a person who the wider community would judge as being of good character, as being someone who exhibits enduring moral qualities.
So far as his 2019 offence of driving without displaying his probationary driver plates is concerned, the infringement might be said to be careless, but I do not consider it can be regarded as reflecting adversely on Mr Lakoh’s character.
I reject the suggestion that anything in the police report of 9 March 2018 is sufficient to say anything one way or the other about Mr Lakoh’s character. The fact that the police were called, and the police recorded a version of the event, is not, in the view I take, sufficient to say anything about Mr Lakoh’s character. In any event, I do not think the words in the police report can be sensibly read as reflecting upon Mr Lakoh’s character. People of good character often lose their temper, raise their voices, and say things they later regret. The fact that the police chose to take no further action about the matter reflects the view I take about the matter: it was a passing civil dispute that quickly resolved itself.
I am satisfied, based on the material before the Tribunal, that Mr Lakoh is of good character as that phrase is used in ss.21(2)(h) of the Act.
THE TIME AT WHICH GOOD CHARACTER IS RELEVANT
The question then arises as to what the fate of the application for review should be as the issue in ss.21(2)(h) requires that the Minister, or his delegate, to be satisfied that a person is of good character ‘at the time that the application is determined’. As the other eligibility requirements in ss.21(2) of the Act have not been determined yet, the Tribunal is not determining the application. It is unknown when the application will be determined.
In those circumstances, it seems the appropriate course is to remit the matter to the delegate with a direction that the delegate should be satisfied that Mr Lakoh is of good character for the purpose of ss.21(2)(h) of the Act so long as at the time she or he determines the application there is no material change in circumstances concerning Mr Lakoh’s character between the date of this decision and the delegate’s determination.
CONCLUSION
I set aside the decision under review and instead decide that Mr Lakoh is of good character. I remit the matter to the delegate to consider the other eligibility requirements under ss.21(2) of the Act to determine Mr Lakoh’s application for citizenship. I direct that absent any material change to the circumstances considered in this review concerning Mr Lakoh’s character, the delegate should be satisfied that the Applicant is of good character and meets the eligibility requirement in ss.21(2)(h) of the Australian Citizenship Act 2007 (Cth).
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 26 June 2020
Date(s) of hearing: 21 April 2020 Solicitors for the Applicant: Mr B Nazer Solicitors for the Respondent: Ms K Gawidziel
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