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

[2024] AATA 357

Leo and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 357 (7 March 2024)

Division:                  GENERAL DIVISION

File Number:          2023/0205

Re:David Leo

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:7 March 2024

Place:Sydney

The reviewable decision dated 11 January 2023 is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – citizenship application refused – whether the Applicant is a person of good character – meaning of good character – enduring moral qualities – criminal history – migration history – Tribunal not satisfied as to good character of Applicant – reviewable decision affirmed

LEGISLATION
Australian Citizenship Act 2007 (Cth)

CASES
BOY19 v Minister for immigration and Border Protection [2019] FCA 574
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Australian Government, CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

7 March 2024

INTRODUCTION

1. The issue in this case is whether I am satisfied that Mr David Leo (the Applicant) is a person of good character when I make the decision, pursuant to section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. The application for citizenship by conferral was lodged on 24 January 2022.  The decision refusing the application was made on 11 January 2023 by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) who was not satisfied that the Applicant was a person of good character when the decision was made (the reviewable decision). The Applicant has lodged previous applications on 18 December 2018 which was refused on 5 February 2019, and 28 July 2021 which was refused 15 November 2021.

3. The reasons the Respondent maintains the position that the Applicant is not a person of good character are his criminal record and periods of being an unlawful non-citizen in Australia:

   (i)On 22 October 2019, the Applicant was convicted of Dealing with the proceeds of crime $100,000 or more for which he was sentenced to 18 months’ imprisonment to be served by way of an Intensive Correction Order (ICO) expiring on 21 April 2021 subject to an additional condition of 378 hours of community service work.

   (ii)On 5 February 2016, he pleaded guilty to supply a prohibited drug (methamphetamine) and was sentenced to imprisonment for 8 months fully suspended upon the Applicant entering into a good behaviour bond for eight months.  No conviction was entered.

   (iii)He has two unexplained periods when he was an unlawful non-citizen in Australia – from 21 November 2011 to 26 March 2013 and 23 September 2015 to 2 October 2015.  CPI 15 provides that generally a person who is of good character would not practise deception or fraud in dealings with the Australian Government, including by living unlawfully in the community after their visa has ceased.

   (iv)The material the Applicant provided does not sufficiently address those concerns.

The Applicant’s life in Australia  

1. The Applicant arrived in Australia in December 2010 from Papua New Guinea as the holder of a 600 visitor visa. It expired after three months. He applied for a protection visa. His first period of being an unlawful non-citizen in Australia was from 22 November 2011 until 26 March 2013. 

2. In about April 2011, he began a relationship with a woman who had a twin boy and girl who were born in 2004. They began to live together and had two children born in September 2012 and December 2013. The relationship was volatile. The Applicant has been paying child support for them.  He has had no contact with those two children since 25 March 2016, for reasons set out below.

3. The Applicant applied for a visa in 2012 after their son was born, based on his relationship with his then partner. He had no work rights and no money. His partner was not working and was receiving Centrelink benefits. They were suffering financial hardship. He needed about $5,000 to apply for a visa. There was a delay before the visa was granted.

4. His second period of being an unlawful non-citizen from 23 September 2015 to 2 October 2015 was brief.

5. It is not clear what happened in relation to his migration status during this period. 

6. On 3 August 2015, the Department of Immigration and Border Protection sent him an invitation to comment on adverse information. The Department did not accept his claimed identity and nationality. It set out its reasoning and invited him to comment.

7. In these proceedings, the Respondent withdrew a claim in paragraph 30 of its Statement of Facts, Issues and Contentions (dated 13 October 2023) asserting it appeared that the Applicant had provided false or misleading information about his country of citizenship and nature of his relationship. This issue was therefore not considered.

8. On 5 August 2015, the Applicant submitted a Withdrawal of a Partner 801 visa application ‘for personal reasons’. 

9. He lodged an application dated 7 August 2015 which is stamped ‘received’ 22 September 2015. There is another application which was stamped “received” on both 22 September 2015 and 13 October 2015. It is probably the same application. The Department issued a receipt for $6,900 on 23 September 2015.

10. On 19 October 2015, the Department wrote to the Applicant to acknowledge receipt of a valid partner visa application (820/801). Consequently, on the same day a request was made within the Department for a Bridging Visa E.

11. A migration agent made a submission to the Department on 8 February 2016. The Applicant’s representative submitted at the hearing that that there seemed to be an issue whether the Applicant could lodge an application on-shore or off-shore and whether it was necessary to have a substantive visa rather than a bridging visa. 

12. It is not clear to me what the difficulty was that resulted in the brief period of unlawfulness in 2015. However, it is clear that the Applicant was trying to address his migration status from before August 2015. 

13. On 25 March 2016, police issued a provisional Apprehended Violence Order (for 28 days)  against the Applicant’s then partner (the defendant) and charged her with two common assault offences. The Applicant was the protected person. A final order was made on 4 April 2016 for two years. The violence was physical and verbal and continued after the Applicant left the home on three occasions to allow his partner to calm down. One aspect of the argument was the Applicant’s attempt to persuade his partner to work from home to ease the financial pressure on him. He reported the matter to the police station. After the police had visited the home, the Applicant left the house for the night. When he returned after work the next day, the Applicant’s partner had left the home with the children and had changed the locks.

14. After that, the Applicant said he was heartbroken. His partner had withdrawn her sponsorship. He was suffering financial hardship. The children were no longer with him.  He did not know what to do. It was during this period that he met on-line the woman who apparently arranged the deposit of the funds into his account in March 2018 which resulted in his 2019 conviction. He was looking for love. He believed that she was in South Africa.  He said that he sent her $22,000 to come to Australia which he borrowed from friends.  He asked her to return the money. It was then the funds were paid into his account.

15. He provided no records of his payments to the woman or of his claimed borrowings.

16. The Applicant was granted a permanent residence visa on 30 October 2017. 

17. He met his current wife on 5 November 2017 and married a few months later. They have two children who were born in 2019 and 2020. He said that she is very strict and supportive of the family. His life has really changed since meeting her. His social life has really improved.

18. The Agreed Statement of Facts for the proceeds of crime offence was dated 13 September 2019. The Applicant was the holder of a bank account into which an accounts payable clerk at a printing company deposited two amounts totalling $158,565 on 2 and 6 March 2018, in response to two emails purporting to be from the company’s Chief Executive Officer. Thereafter, the Applicant dealt with the funds in various ways, including card and bank withdrawals and transferring funds to his company’s bank account. By the end of 7 March 2018, he had withdrawn or transferred at least $146,000 of the funds from his personal account.

19. The AFP found that there had been no other payments from the printing company and no other deposits of more than $2,000 into that account. Before the first deposit on 2 March 2018, the balance of the Applicant’s bank account was $180.

20. During a telephone conversation with an investigator from the bank, the Applicant said that the funds were for ‘their’ business which he conceded at the hearing was untrue. He also conceded that some of his answers to questions from the Australian Federal Police during an interview at his home on 26 July 2018 were not truthful.

21. In his 18 December 2018 citizenship application, the Applicant disclosed that he was awaiting legal action. He had reported a case to police when he was scammed on a dating site by a lady he fell in love with and he spent over $22,000 from his delivery business and asked for it to be repaid.

22. This was not a true account of his circumstances. He had been charged on 26 July 2018 and released on conditional bail for the proceeds of crime offence. He was the accused in a pending criminal action.

23. On 28 May 2019, the County Court of Victoria ordered the following property to be forfeited by the Applicant to the Commonwealth: funds standing in the bank account of the Applicant’s company and a motor vehicle valued at $11,200 to $13,200. 

24. The order shows that a restraining order under the Proceeds of Crime Act 2002 (Cth) had been in force for at least six months, that is at least from the end of November 2018.

25. Therefore, the Applicant knew that he had a pending criminal charge against him and the property referred to in the court order was subject to a restraining order when he applied for citizenship on 18 December 2018.

26. The Applicant failed to disclose the 2016 offence to which he had pleaded guilty in the 2018 citizenship application. The declaration in the application did require that he disclose that he had been found guilty of the offence. However, questions to the Applicant during cross-examination about not disclosing this ‘conviction’ in his 2018 citizenship application were misconceived. 

27. A pre-sentence report from Corrective Services NSW Community Corrections dated 6 September 2019 assessed the Applicant as being at low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R) and to be suitable to undertake community service work. This report was prepared for the hearing of the proceeds of crime offence on 22 October 2019.

28. In his affidavit dated 13 September 2019, the Applicant stated that he was under enormous financial pressure at the time of the offence and he knew that there was no excuse for committing the offence. He felt like a fool for placing  such trust in a person he hardly knew. The County Court of Victoria had ordered him to repay the money. He was committed to doing so.

29. In his citizenship application dated 24 January 2022, the Applicant disclosed his 2019 conviction and an offence Possession of methamphetamine in car and sentenced to good behaviour bond under s 12. He attached a copy of sentencing remarks dated 5 February 2016 that show that he pleaded guilty to supply a prohibited drug (methamphetamine) and was sentenced to a good behaviour bond for 8 months. The sentencing remarks for this offence demonstrate that the judge took into account that the Applicant had spent two months and five days in custody and found that the supply of methamphetamine was of low range seriousness and that the Applicant had much to contribute to the community.

30. In response to an invitation to comment on adverse information sent by the Department on 21 October 2022, the Applicant wrote on 30 November 2022 that he was not aware of the nature of the proceeds of crime funds and was very stupid to deal with the funds recklessly ‘in my suspicion that the funds may have come from a nongenuine source’. He claimed to have been gainfully employed in Australia for over seven years and paid taxes.

The hearing

1. During cross-examination in the Tribunal, the Applicant denied knowing that the funds were not ‘genuine’. He did believe that he would receive a payment for sending money to China.

2. The Applicant was cross-examined about a number of New South Wales police records which did not result in either pleas of guilty or convictions. I do not consider those matters further. He was also questioned about nine traffic infringement notices. The last one was 20 June 2016 for disobeying a ‘no truck’ sign.

3. The Applicant did not rely on the report of Mr Chafic Awit, psychologist, who did not wish to give oral evidence and ‘withdrew’ his report dated 14 September 2023 because he had found that there was new material that he had not taken into account. 

4. Mr Nicholas Cherrie, treating psychologist, wrote a letter dated 15 November 2022, when he had seen the Applicant twice with a third session booked. The Applicant had been referred to Mr Cherrie by his lawyer. The Applicant was seeing him to learn techniques and strategies to improve his mental health. Mr Cherrie provided no diagnosis or information about why the Applicant’s mental health needed improvement. He reported that the Applicant maintained that he was not aware of the nature of the funds which were the subject of the 2019 conviction but acknowledged a lack of due caution on his part. In Mr Cherrie’s opinion, if the Applicant continued his current trajectory with ongoing support, he would not return to previous behaviours.  Mr Cherrie’s oral evidence was to the same effect.  He had seen the Applicant for four sessions, the last on 13 January 2023.

5. The Applicant has expressed regret for his past actions and his commitment to demonstrating ‘a life of change’. He expressed his gratitude for the support and guidance Mr Cherrie had given him. He claims that participating in Cognitive Behavioural Therapy courses and learning how to practise self-discipline daily had been transformative and set out in detail the benefits he had experienced. He did not have an accurate recollection of his immigration history during the periods he was an unlawful non-citizen in Australia and apologised for any oversights in that respect. 

6. He claims to be fully committed to improve and contribute positively to the Australian community. He has an Advanced Diploma Certificate in Cognitive Behavioural Therapy awarded on 22 November 2022 and a Certificate in ‘Learn How to Practice Self-Discipline on a Daily Basis’ dated 14 November 2022.

7. The Applicant has been employed at various times as a truck driver and a care worker since he arrived in Australia. He registered a removals company on 8 November 2013. He provided various business records for the company for the period 28 to 30 January 2015 and recipient tax invoices from 18 June 2017 to 17 June 2018 and from 5 to 9 November 2018.  He provided a Notice of assessment for the year ended 30 June 2021 and tax returns for 2016-17, 2018-19, 2019-20 and 2021/22.  The evidence shows that he has worked more regularly since 2016. A consequence of his 2019 conviction is that he cannot work as a disability worker.

8. He provided a number of character references from friends, a neighbour, the President of the Afro Australia Music and Movie Awards and a chaplain who has known him for 12 years.  Two of them also gave oral evidence at the hearing. They all speak well of him.

   What does ‘good character’ mean?

9. The Act does not define ‘good character’. The term, as used in the Act, has been considered in numerous court and Tribunal decisions.

10. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Lee J said at [431-432]:

    Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. A person who has been convicted of a 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 shown by objective assessment to be a person of bad character.

11. I must reach an affirmative belief that the Applicant is a person of good character.[1] 

    [1] O’Bryan J in BOY19 v Minister for immigration and Border Protection [2019] FCA 574 at [55].

12. A useful summary of what the phrase ‘enduring moral qualities’ encompasses is set out in Citizenship Procedural Instructions (CPI) 15:

    ·Characteristics which have endured over a long period of time;

    ·Distinguishing right from wrong; and

    ·Behaving in an ethical manner, conforming to the rules and values of Australian society.

13. CPI 15 also sets out guidance for considering whether an offence of which a person has been convicted is serious. A criminal offence does not automatically mean that a person is not of good character. A ‘full assessment’ of the Applicant’s character should be undertaken.

    CONCLUSION

14. The circumstances of the Applicant’s 2019 conviction are troubling.  The Applicant received extraordinarily large deposits into his account when compared to his ordinary income and account balances. He proceeded to withdraw, spend, and transfer those funds primarily for his own benefit, according to the detailed Agreed Facts document. He transferred two amounts totalling approximately $9,000 to accounts in Nigeria and one amount of $35,032 to an account in China, but that amount was returned to his company account, minus transaction fees and charges.

15. He failed to answer questions from a bank investigator and the AFP honestly.

16. Those actions are not the actions of a person of good character.  

17. The sentence to 18 months’ imprisonment to be served by way of an Intensive Correction Order (ICO) expiring on 21 April 2021, shows that the court regarded the offence as serious.

18. The terms of the Applicant’s disclosure of the pending legal action in his 2018 citizenship application were disingenuous.

19. In summary, the Applicant’s explanation for his first period of being an unlawful non-citizen in Australia from 21 November 2011 to 26 March 2013 was that he could not afford to apply for a partner visa and a delay after he applied.  He had no work rights.  He, his wife and two and then three children from 2012, were living off her Centrelink payments.

20. While his explanation may be understandable, it is not the conduct of a person of good character.

21. The Applicant demonstrated over a period of eight years enduring characteristics of failing to distinguish between right and wrong and disregarding Australian law.  The ICO ended on 21 April 2021. I have taken into account the evidence of Mr Cherrie and the Applicant’s expressions or remorse and the measures he claims to have taken for self-improvement. Given his previous history, insufficient time has elapsed for me to be satisfied that the Applicant is a person of good character. 

22. I am not satisfied that the Applicant is a person of good character pursuant to section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

    DECISION

1. The reviewable decision dated 11 January 2023 is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision here in of Mrs J C Kelly, Senior Member

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

Associate

Dated: 7 March 2024

Date of hearing:	22 January 2024
Solicitor for the Applicant:	Mr C Ukaegbu, Spiritus Law Group
Solicitors for the Respondent:	Ms M Kelly, Sparke Helmore