Mana and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 639

Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639 (26 August 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3217
Re	Albert MANA
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Mr P W Taylor SC, Senior Member
Date	26 August 2016
Place	Sydney

The 2 June 2015 decision under review is affirmed.

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

Mr P W Taylor SC, Senior Member

Catchwords

CITIZENSHIP - application for Australian citizenship - conviction for offences - whether applicant of ‘good character’ – offences found by Minister’s delegate to be “at the high range of seriousness” – offending linked to excessive alcohol consumption – insufficient time passed to demonstrate applicant is currently of good character – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth), ss 3, 21(2)(h), (3)(f), (4)(f), (6)(d), (7)(d), 22(1), (6), (9), (11), 22B, 24(2), (6), 26–28(1), 50

Crimes Act 1914 (Cth), ss 85ZL-M, 85ZV-W, 85ZZH(d), 85ZZL

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9-12

Criminal Records Act 1991 (NSW), ss 4, 5, 7, 8, 12-14

Migration Act 1958 (Cth), s 501(6)(2)

Cases

Baharestan and Minister for Immigration and Citizenship [2011] AATA 420

Bates and Minister for Immigration and Multicultural Affairs [2007] AATA 29

Dandan and Minister for Immigration and Citizenship [2010] AATA 539

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Gany and Minister for Immigration and Citizenship [2010] AATA 966

Hasib and Minister for Immigration and Border Protection [2015] AATA 82

Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87

Steele and Minister for Immigration and Multicultural Affairs [1997] AATA 405

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

Secondary Materials

Australian Citizenship Instructions

Citizenship Policy

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

26 August 2016

1. Mr Mana is a 46 year old Rwandan citizen.  He left Rwanda in about 1990, and spent 10 years studying in China.  During that time he obtained a Masters Degree in Theoretical Physics from Beijing Normal University.  In 2000 various academics at that university provided references commending his acceptance as a PhD candidate.  In July 2001 he arrived in Australia.  By mid October 2002 he had obtained, and still holds, a permanent visa.  In November 2002 he successfully applied for admission to the PhD program in Mathematics at Macquarie University. 

2. In September 2002, just before obtaining his permanent visa and being accepted into the Macquarie University PhD program, Mr Mana was convicted of common assault, and placed on a 12 month good behaviour bond.  Subsequently, between September 2004 and March 2009, he committed a total of 23 other offences, and incurred 21 additional convictions.  Those offences included offensive behaviour, common assault, and assaulting and resisting police officers in the execution of their duty.  Two of these later kinds of convictions resulted in him serving a custodial sentence - from July to September 2006.  A brief indication of the date and nature of his offences, the date of his convictions (or in some cases the date of his sentencing), and the sanctions his offences have attracted, is set out in the Schedule to these reasons.

3. In February 2015, almost six years after his last conviction, Mr Mana lodged a valid application for Australian citizenship.  Section 21 of the Australian Citizenship Act 2007 (Cth) (“ACA 2007”) sets out some inflexible, time related restrictions on the grant of citizenship, various categories of citizenship eligibility criteria, and a general discretion.  So far as the time related restrictions are concerned, the Minister must refuse to approve any application by a person who (i) is the subject of pending criminal proceedings, (ii) is either serving a custodial sentence, or is at liberty on parole, licence or subject to conditions, (iii) within the last two years, has served a prison sentence of at least 12 months, or (iv) within the last 10 years has served a second such sentence, for an offence they committed after their earlier release from prison:  see ACA 2007 ss 3 & 24(6).

4. The various alternative categories of citizenship eligibility criteria in ACA 2007 require that all adult citizenship applicants, with one (presently irrelevant) exception, satisfy the Minister of (amongst other things) their good character at the time of the decision:  see ACA 2007 s 21(2)(h), (3)(f), (4)(f), (6)(d), (7)(d).  But, even in the case of an otherwise permissible and eligible applicant, the Minister retains a general discretion to refuse to approve any person becoming an Australian citizen:  ACA 2007 s 24(2).  Finally, an approved adult applicant (with some presently material exceptions) will be required to make the pledge of commitment to Australia set out in ACA 2007 Schedule 1, and will become an Australian citizen only once they have made that pledge:  see ACA 2007 ss 26 - 28(1).

   The June 2015 citizenship refusal

5. The Ministerial delegate’s 2 June 2015 decision refused Mr Mana’s application - because of dissatisfaction that he was then of good character.  One reason for that dissatisfaction, and one which the delegate regarded as having considerable weight, was Mr Mana’s history of criminal offences and convictions.  Indeed, the delegate thought that Mr Mana’s offences were “at the high range of seriousness”.  The stated reason for that view was that he had been “sentenced to multiple S9 good behaviour bonds”.  (This was a reference to the statutory discretion for a New South Wales court to impose a good behaviour bond as an alternative to a period of imprisonment:  see the Crimes (Sentencing Procedure) Act 1999 (NSW) s 9.) The delegate considered that Mr Mana had “a pattern of committing violent crimes” and had “demonstrated disregard for authority on numerous occasions”.

6. Another significant reason for the delegate’s dissatisfaction about Mr Mana’s good character was that he had not disclosed his convictions in his completed February 2015 citizenship application.  The delegate pointed out that deliberate mis-statements, or withholding of information, constituted an offence under ACA 2007 - see s 50.  Mr Mana had given the answer “no” to the appropriate question (Question 31(a)) in his citizenship application form.)  The delegate thought the answer was intentionally false, and regarded it as another matter of “considerable weight” in reaching his lack of satisfaction that Mr Mana was of good character. 

7. Ultimately, after reviewing what he described as “strong character references” supporting Mr Mana’s application, the delegate added that

   “… the main factor taken into consideration in my determination that you failed to satisfy the character requirement was the recidivist behaviour of offences involving violence over a period of six and a half years.  As a consequence, it would be an expectation to demonstrate that you are of good character for an equivalent period of time.”

   Spent convictions

8. That latter part of the delegate’s reasoning suggests that Mr Mana’s past offending, rather than any non-disclosure in his application, provides the determinative factual foundation for any assessment of satisfaction about his character.  My own reasoning, after considering the contents of the application form, the various relevant legislative provisions relating to “spent” convictions, and Mr Mana’s explanation, has led me to the same view.  The non-disclosure is not a material consideration in determining the present review proceedings and Mr Mana’s citizenship application.

9. Various statutory provisions obviate general disclosure requirements where convictions have become “spent”.  (The concept of a “spent” conviction includes matters where offences were proved, but where no conviction was formally recorded):  The provisions principally relevant to the present matter are contained in the Criminal Records Act 1991 (NSW) (in ss 4, 5, 7, 8 and 12-14) and the Crimes Act 1914 (Cth) (in ss 85ZL-M and 85ZV-W). These various provisions conditionally (i) preclude disclosure obligations relating to “spent” convictions, (ii) permit a person to claim lawfully that they had not been charged with, or convicted of, any related offence, and (iii) preclude regard being had to the circumstances underlying the “spent” conviction. The typical criteria for characterisation of convictions as “spent” are to the following effect:

   (a)the offence resulted in no conviction being recorded, or the person was released on a bond imposed as a conditional alternative to imprisonment, and the bond period has ended (NSW offences).

   (b)the individual was not sentenced to imprisonment for more than a specific period (30 months in the case of Commonwealth offences - 6 months in the case of NSW offences).

   (c)it has been 10 years from the date of the person’s conviction as an adult offender, and the person has not re-offended.

   (d)a statutory or regulatory exclusion does not apply.

10. These typical provisions governing “spent” convictions raise a question as to whether Mr Mana’s 9 August 2006 conviction had been “spent” by the time of his February 2015 application.  Nevertheless, the 9 December 2013 National Police Certificate that accompanied his application stated that he had no recorded “disclosable court outcomes”.  Both the content of that certificate, and the typical effect of the general “spent” conviction provisions, could contribute to an understanding that (i) Mr Mana’s various convictions were indeed properly characterised as “spent”, and (ii) “spent” convictions are not required to be disclosed for any purpose.

11. Contrary to any such possible understanding, the typical “spent” convictions non-disclosure protections in the Commonwealth Crimes Act 1914 are subject to various exclusions, some of which are specifically related to other Commonwealth laws.  One of those exclusions applies to disclosure, and consideration, of matters for the purposes of citizenship related decisions under ACA 2007:  see Crimes Act 1914 s 85ZZH(d). The consequence of this exclusion is that, as a matter of law, neither the specific legislative provisions relating to “spent” convictions, nor the contents of the 9 December 2013 National Police certificate, provided Mr Mana with a justification for the non-disclosure of his various offences and convictions, in his February 2015 citizenship application.

    The Question 31(a) “no” answer

12. This absence of an apparent justification for non-disclosure was the basis of the Minister’s additional reason for dissatisfaction about Mr Mana’s contemporary good character.  It arose from the combined effect of the statutory provisions and the content of Mr Mana’s response to the apparently specific questions posed in the application form.

13. Question 31 in the 2014 version of the standard citizenship application form set out 10 separate questions.  After each question there was a space with “tick” boxes for alternative “Yes” or “No” answers.  The last part of Question 31 required an applicant to “give all relevant details” in the case of any “Yes” answer to the specific questions.  The following part of the form, clause 32, contained six separate statements of consent, and an acknowledgment, that an applicant had to make.  Finally, Part L of the form, in clause 44, drew attention to the offence provision in ACA 2007 s 50 and contained another 11 specific statements or acknowledgements.  These relevant parts of Questions 31, clause 32 and Part L, were in the following terms:-

    31(a) Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any “spent” convictions)?

    …[emphasis added]

    If you answered “Yes” to any of the questions at Question 31, 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 dates of any period of imprisonment or other detention.

    32 Consent

    ● I consent to my personal information being provided to the National Police Checking Service (NPCS) for the purpose of the NPCS conducting a National Police check in relation to me as part of my application for Australian citizenship.

    ● I understand that this is for the purposes of assessing whether I am of good character and whether the Offences provision, as defined in section 24(6) of the Australian Citizenship Act 2007, applies to me.

    ● I understand that more than one police check may be requested by the department, including a further check that may be undertaken if I am not approved as an Australian citizen and I request an appeal of the decision.

    ● I acknowledge that I have read the National Police Checking Service - General Information and understand the spent convictions legislation.

    ● I understand that spent convictions of specific offences (10 years from the date of conviction for adults, or 5 years from the date of conviction for juvenile offenders) will be disclosed to the department by Australian police agencies for the purposes outlined above.

    See for information about good character, the Offences provision, spent convictions and National Police Checking Service - General Information.

    …

    44 Please read the following carefully before signing

    Complete this declaration if you are the main applicant and are aged 18 years or over

    …

    ● I declare that the information I have supplied in this form is complete, truthful and correct in every detail.

    …

14. As the delegate noted, Mr Mana marked the answer “No”, to all ten of the separate components of Question 31.  Even though those “No” answers obviated the need for any further response, he also added the 9 December 2013 National Police Certificate as an attachment to his application.  Mr Mana then signed the application, at the end of both clauses 32 and 44 - thereby giving the various consents and acknowledgements for which they provided.

15. Despite the non-disclosure in the February 2015 application, by mid April 2015 the Minister had undertaken the police checking contemplated by the last statement of “understanding” in clause 32 in the standard citizenship application form.  That enquiry resulted in the Minister obtaining the details of Mr Mana’s various offences and convictions.  The delegate, in a letter of 21 April 2015, then invited Mr Mana to address his apparent non-disclosure.  Mr Mana’s brief responsive explanation, in his letter of 4 May 2015, was in the following terms:

    First of all, I wish to say that it was completely due to a misunderstanding of the question 31(a) of my form 1300t Application for Australian Citizenship that the answer I gave to this question was “NO”.  I thought I had to use the information given by the National Police Certificate. Otherwise, if I had a good understanding of the problem at the time of completing the form 1300t, I would have said “YES” as the latter answer is the correct one for my actual case.  I did not have any intention at all of making a false statement.

16. Mr Mana was cross examined about the circumstances of his non-disclosure.  He explained that in March 2014 he had made his first citizenship application.  It was rejected as invalid, because it did not include relevant documents.  A friend, who is likely to have been the retired barrister who provided a character commendation for Mr Mana and said he had assisted him with his citizenship application, told him that he had to obtain a National Police Certificate.  After the certificate arrived, the “friend” told Mr Mana that it contained nothing that had to be disclosed.  Against this background, Mr Mana repeated the earlier explanation in his May 2015 letter - that he had misunderstood the question, and the information it required him to provide.

17. A literal reading of the application form questions, with their apparent specificity, makes it difficult to accept Mr Mana’s explanation at face value.  This is all the more so because of the explicit references to the departmental website, with its claim to contain relevant information about “spent” convictions.  There is also the acknowledgment in the application form that the applicant “understands” the spent conviction legislation.  However, Mr Mana was not pressed about any of these matters.  There was nothing to suggest that he had in fact resorted to the “general information” said to be located in the “website” information.  There was nothing to establish what understanding that information would reasonably have conveyed to him.  Nor was there any attempt to establish what Mr Mana did in fact understand at the time of his application, about the meaning and effect of the “spent convictions legislation”.  Finally, no challenge was made (nor in my view could any have been sensibly made) to his evidence that he had been assisted (as I have said, likely by the retired barrister) in making his application.

18. The spent conviction provisions, in Part VIIC of the Commonwealth Crimes Act 1914 ss 85ZL-85ZZL, can be reduced to clear propositions by careful and discriminating reading. But the difficulty of the task is not to be underestimated. I alluded earlier, in paragraph 10, to the doubtful accuracy of the December 2013 National Police Certificate. That doubt underscores the difficulty on arriving at a demonstrably accurate understanding of the provisions. Furthermore Mr Mana’s English language skills, whilst good, were not sufficient to allow him to complete the application process without assistance. That assistance included advice that he ought to submit a National Police Certificate, and that it did not contain any disclosable offences. When those matters are taken into account, I am satisfied that the non-disclosure in Mr Mana’s written application does not itself provide a reason to withhold satisfaction that he is of good character. The preferable conclusion about that matter is better informed by consideration of other matters and, in particular, the history and circumstances of Mr Mana’s offences.

    Mr Mana’s offences

19. The circumstances of the preponderance of Mr Mana’s many offences are generally detailed in New South Wales Police “Fact Sheets” or, in a few instances, narrative statements from police officers.  (The evidence provided in these proceedings did not include the circumstances of the offences that resulted in Mr Mana’s convictions in September 2002 and 30 November 2007.  However the details in the Schedule show that those offences, like many of his other offences, were dealt with by way of good behaviour bonds.  I therefore regard it as reasonable to assume that they involved circumstances broadly comparable to those disclosed in relation to the other matters.)

20. A consistent feature of almost all of Mr Mana’s offences has been his intoxicated state when they occurred.  Indeed, the only one of Mr Mana’s offence convictions that appears to involve circumstances when he was not significantly affected by alcohol consumption, relates to his February 2006 arrest.  This involved a report to police that he had indecently assaulted a passer-by near a suburban railway station.  When the police arrived at the scene they found Mr Mana seated at a table talking with a friend.  They immediately arrested him.  The details in the police “Fact Sheet” contain nothing to indicate that this arrest was preceded by any prior enquiry, explanation or warning.  Assuming the accuracy, and completeness, of the events described in the “Fact Sheet” it is perhaps unsurprising that Mr Mana pushed the arresting policeman’s hand away and demanded an explanation.  None is recorded in the events detailed in the “Fact Sheet”.  Mr Mana continued to resist restraint, even after he had been brought to the ground and handcuffed.  When formally interviewed a short time later, Mr Mana denied having had any contact with the alleged assault victim who had complained to the police.  (It is significant, consistent with that denial, and necessary, to note that at the end of a contested hearing, in June 2006, the indecent assault charge brought against Mr Mana was dismissed.)

1. A common feature of the circumstances involved in Mr Mana’s other offences is that he was often reported to have been too intoxicated either to be interviewed by the arresting police officers, or even to give them his personal details.  That point is sufficiently made by providing a brief outline of the circumstances of each of his alcohol related offences - as those circumstances are outlined in the relevant “Fact Sheets”:-

   (e)1 October 2004:- Mr Mana had been drinking at the Epping Hotel.  He became sufficiently intoxicated that he was asked to leave.  Thereafter he created a scene outside the hotel, yelling loudly and reportedly trying to stop buses by jumping out in front of them.  When police arrived, after being summoned by the hotel security staff, they found Mr Mana heavily intoxicated and verbally abusing a nearby shopkeeper.  Mr Mana was so intoxicated that he was unable to be interviewed by the police.  He urinated in public, and again in the police station dock.  It was the latter of these actions that attracted the property damage charge of which he was convicted.

   (f)12 November 2004:- Late one Friday evening a security guard stopped a heavily intoxicated Mr Mana from entering a construction site at Kings Cross.  Mr Mana then returned to his bag, smashed open a large bottle of beer and yelled and gestured towards the security guard.  A passer-by attracted patrolling police.  Mr Mana refused to comply with their directions to put the smashed bottle down.  The police then arrested him and took him to the Kings Cross police station.  There he was uncooperative, too intoxicated to be interviewed, and unable even to supply his personal details.  He urinated in the police cells. 

   (g)1 December 2004:- A passing motorist stopped and assisted a heavily intoxicated Mr Mana off the road and to the nearby house where he was boarding.  Concerned for his safety, she also alerted the police.  When the police arrived, some time later, Mr Mana became aggressive towards a man with whom he was boarding (perhaps under the mistaken impression that he had summoned the police).  Both the man and the police made various efforts to appease and calm Mr Mana down.  These attempts were partly successful, and the police left.  But a short while later he became agitated again and punched the man on the side of the face, splitting his lip.  When the police returned to the house, Mr Mana appeared (at least initially) to be holding a knife.  He yelled out a threat to kill the other man.   Within a few minutes it became obvious that he was in fact unarmed (although a knife was later found nearby).  He was then arrested and taken to the Hornsby police station.  Again he was reported to have been too intoxicated to be interviewed. 

   (h)27 December 2004:- In a heavily intoxicated state, Mr Mana became disruptive and abusive near a restaurant at Eastwood.  After he publicly urinated in a nearby garden, the restaurant manager summoned the police.  Mr Mana was taken to Ryde police station.  Again he was described as having been too drunk to be interviewed. 

   (i)20 August 2005:- Very late on the night of Saturday 20 August 2005 police and fire brigade officers attended in response to a reported fire in the boarding house premises where Mr Mana was living.  The police observed him to be “well affected by alcohol”.  He repeatedly demanded that a fire brigade officer “get out of my home”.  When the police intervened he made the same demand of them.  Eventually, two police officers made him get out of the way of the fire brigade officers, and pushed him back through an open doorway.  When he attempted to return, one of the police officers pushed him away, and he responded by hitting the police officer on the left arm.  The officer then pointed his left arm at Mr Mana and warned him to leave, or he would be arrested.  Mr Mana then hit the officer’s left arm again.  That action resulted in him being arrested and taken to the Newtown police station.  In relation to this incident, a reasonably contemporaneous explanation by Mr Mana, noted in a Probation and Parole officer’s 29 September 2005 report, was to the effect that Mr Mana was confused at the time of the incident, and didn’t know that the “plainclothes detectives were in fact police”.

   (j)29 July 2006:- In February 2006 Mr Mana had been arrested in relation to the charges to which I referred in paragraph 20 above.  Following his arrest he was granted conditional bail.  Those conditions included abstinence from alcohol.  His non-compliance with that condition led to his June 2006 arrest (to which I refer in paragraph 22(a) below).  Despite both the bail conditions, and his June 2006 arrest, Mr Mana attracted the attention of a police patrol in the early evening of 29 July 2006.  In an intoxicated state he harassed passers-by on King Street, Newtown.  When the police approached him he was reported to have smelt strongly of alcohol and refused to supply his personal details.  He hit one of the police officers on the arm, touched another on the shoulder and hand and, after being arrested for that conduct, he spat in that officer’s face.

   (k)3 March 2008:- Late on a Monday evening, passers-by alerted police to a disturbance in a nearby restaurant at Hurstville.  A police officer encountered Mr Mana in the street outside the restaurant, smelling strongly of alcohol and unsteady on his feet.  Mr Mana, refused to identify himself and after some coarse language directed at the police officer, he was arrested.  He then protested loudly that he was “going home”.  When the police officer grabbed his arm to restrain him, he attempted to shake his arm free, and grabbed the officer’s shirt.  He continued to resist the officer’s restraint, until he was taken to the ground and handcuffed.

   (l)8 July 2008:- In July 2008 Mr Mana had been living at a property in Banksia.  One Tuesday night another resident summoned the police when Mr Mana punched his fist through a front window.  When the police arrived they found Mr Mana lying in a driveway, missing one shoe, and with blood over both his hands.  Again Mr Mana was reported to have been too intoxicated to be either formally warned or interviewed.

2. Mr Mana’s other convictions were also alcohol related, although perhaps not to the same extent as most of his offences.  A short summary suffices to provide an understanding of the circumstances involved in each of these three matters, at least according to the relevant police “Fact Sheets”:-

   (a)16 June 2006:-  Mr Mana’s bail conditions relating to the February 2006 indecent assault charge (see paragraph 20 above) required him to report to regularly to the Bass Hill police station.  On 16 June 2006 he reported instead at the Newtown police station.  A check of his bail conditions revealed an additional “no alcohol” condition.  Because Mr Mana smelled of alcohol he was breathalysed, and then arrested.  Then, whilst be was being escorted to an interview room in the custody section of the police station, he turned and spat in the face of one of the police officers following him.  Although those details in the narrative in the police “Fact Sheet” do not expressly link Mr Mana’s behaviour to intoxication, there is such a link elsewhere in the document.  The entry in the “Antecedent” section of the “Fact Sheet” reads “Unable to speak to accused.  Accused intoxicated.”

   (b)28 July 2008:- Mr Mana created a disturbance at a take-away salad bar in George Street, Sydney.  The disturbance involved abusing customers, and attempting to hit one of them.  When police arrived, they arrested Mr Mana for breach of the “good behaviour” bail condition that had been imposed as a result of his arrest earlier in the month.

   (c)8 December 2008:- By October 2008 Mr Mana had been convicted, but not yet sentenced, on the 8 July 2008 damage charge.  His bail was subject to a condition that he not be intoxicated in public.  A Probation and Parole Service Report of 3 December 2008 recorded, with explicit scepticism, Mr Mana’s claim that he had decided to abstain from drinking.  That scepticism was justified by events a few days later.  In the early evening of 8 December 2008 police attended Kinselas Hotel in Surry Hills, in response to reports of a brawl.  At the hotel the police found Mr Mana “moderately affected” by alcohol.  (He had slurred speech, bloodshot eyes and was unsteady on his feet.)  Following a check that revealed Mr Mana’s bail conditions, he was arrested and taken to the Surry Hills police station.  On arrival there he became agitated and waved his arms pointing at the police officers.  One of the police officers then gripped both of his arms, reportedly in an attempt to calm him.  Mr Mana responded by twice butting his head into that officer. 

3. This review of Mr Mana’s offence history demonstrates that, with one significant exception (relating to his February 2006 arrest), his offences have been associated with excessive alcohol consumption.  (Even though there are no specific details of his three 28 November 2006 offences, the drug and alcohol counselling condition included in the good behaviour bonds he entered into following his 30 November 2007 convictions justify an assumption that excessive alcohol consumption was also likely to have been a significant factor in those offences.)  It is also the case that, despite their number and nature, his offences have not resulted in any significant physical harm.  (Acknowledging the lack of detailed information about his November 2006 offences, the available evidence indicates that the only actual injury that Mr Mara ever inflicted was the “split lip” assault in December 2004.)  Indeed, since the late 2004 incidents, the various assault offences of which Mr Mana has been convicted are more accurately described as involving aggressive or offensive conduct rather than the infliction of significant physical hurt.

   Disputed details of the offences

4. I have taken the details of Mr Mana’s various offences from the police “Fact Sheets” that were relied on in the various proceedings against him.  In his cross examination in the present proceedings Mr Mana disputed aspects of those details.  For example, his explanation for possession of a knife during the 1 December 2004 incident was that he had been interrupted whilst cutting up food preparing a meal.  In relation to the 8 July 2008 incident he disputed that he had intentionally broken the window, and claimed that it was already cracked and broke by accident.  In relation to the 28 July 2008 incident, he denied having punched anyone.  He denied ever spitting at, or head butting, police officers, as variously alleged in relation to the incidents in June and July 2006 and December 2008.

5. Even if it was open to this Tribunal to proceed on a factual basis that contradicted the essential aspects of Mr Mana’s previous convictions, nothing in his evidence in the present proceedings has satisfied me that his recollections should be preferred to the much more contemporaneous accounts underlying his convictions.  In some cases his version is a recollection voiced 12 years after the events, and the mere passage of time provides a reason to question the reliability of his version of events.  In addition, a fundamental reason for my dissatisfaction about the reliability of Mr Mana’s asserted recollection is the circumstance that he was intoxicated, often severely, at the time of almost all of his offences.  Often he was so intoxicated that he was unable either to give his personal details or be interviewed.  In those combined circumstances I am not satisfied that Mr Mana is a reliable historian in relation to the circumstances of his various offences.

   Other Conduct since 2009

6. The Schedule to these reasons show that Mr Mana committed his last recorded offence on 8 December 2008.  It follows that the six and a half year period to which the delegate’s reasoning referred (see paragraph 7 above) had very nearly ended by the date of the 2 June 2015 refusal decision.  But in these proceedings the Minister contended that period was not one throughout which Mr Mana had demonstrated “good character”.  Despite the absence of any recorded convictions since March 2009, and the “strong character references” described in the delegate’s reasoning, the Minister pointed to various police reports, from September 2009 to October 2015, of events involving Mr Mana.  According to the Minister’s submission, these matters provide reasons, additional to his past offending, why contemporary satisfaction of Mr Mana’s good character is not appropriate.

7. These additional matters are described in a series of incident reports, extracted from the NSW Police Force “Computerised Operational Policing System” (COPS), that were produced to the Tribunal on 7 October 2015.  In the more than six year period after December 2008 that the reports span, there are 26 separate incidents.  In calendar year 2009 there were 7 incidents.  There were 5 in 2010, 4 in 2011, 3 in 2012, 5 in 2013 and 2 in early 2014.  There were no relevant reports after February 2014.  Four of the incident reports (those dated 28 September 2009, 21 June 2010, 7 June 2011 and 22 October 2013) do not disclose any evidence of violent, intoxicated or illegal behaviour.  Consequently they have no present materiality.  The 22 other incident reports typically describe Mr Mana as being intoxicated in public, often severely intoxicated and apparently aggressive, causing annoyance to passers-by and / or restaurant patrons.  Four of these instances of Mr Mana’s reported intoxication, involve some degree of actual violence (punching, pushing and spitting) but none of them resulted in any proven offence or conviction.  Those four incidents involved the circumstances summarised below.  (In the summary I have included the essence of the details in the COPS reports.  I have then added the substance of the explanations Mr Mana gave in the course of his cross examination.)

   (a)13 April 2010:- Mr Mana was reported to have arrived home intoxicated.  During the course of an ensuing verbal argument with someone else at the premises he reportedly punched that person in the face.  However, the punch did not result in any injury and the person did not want the police to take any action about the incident.  When he was cross examined about this matter Mr Mana said the other person was one of his house mates, with whom he had been having a few drinks.  He denied hitting the man and claimed to have been “amazed” when the police arrived and knocked on his door. 

   (b)30 January 2012:- The COPS entry records a complaint that, in a heavily intoxicated state near the Hamilton railway station, Mr Mana had yelled “I kill you” at two women and had hit one of them.  A witness alerted a nearby hotel, whose manager came and detained Mr Mana, before police arrived.  The COPS report indicates that the alleged victims could not be found, and that the police took no action over the incident - other than to escort Mr Mana to where he lived.  Again, in his evidence in these proceedings, Mr Mana denied the incident, in so far as it involved him yelling at, or hitting, any women.

   (c)10 October 2012:-  The COPS report of this incident is that Mr Mana, again in a state of significant intoxication, walked up to a man in the street, pushed him in the back and invited him to fight.  The police report also indicates that when the police arrived at the scene some time later, Mr Mana was still well intoxicated, and “wanted to fight anyone near him”.  The police took no action, other than to take Mr Mana home.  Mr Mana also disputed the details of this incident.  He said the other man was a hotel security guard, and had threatened to punch him.  He had run away and had not pushed or hit anyone. 

   (d)1 September 2013:- The COPS version of this incident involved Mr Mana being refused service at a hotel.  The hotelier asserted that the refusal was because of Mr Mana’s intoxication.  Mr Mana complained that it was because of his race.  Angry disputation followed and, according to the COPS details, involved Mr Mana pushing the man in the chest and then spitting on him.  Although police attended the scene, the hotelier refused to attend court and the police took no action over the matter.  Mr Mana’s explanation in these proceedings agreed that he had been refused a drink, but he said he had left the premises and denied having assaulted anyone.

8. The Minister’s position, in the light of the history revealed by the COPS incident reports, involved two propositions.  The first was that Mr Mana had been untruthful in his recollection and explanation of those incidents, and particularly in his denial of the specific instances of violence attributed to him in those reports.  The second was to emphasise that, whatever view one took of the precise details of individual incidents, the totality of the reports justified the conclusion that Mr Mana’s drunken, disruptive and aggressive behaviour had continued for much longer (5 years - from December 2008 to February 2014) than was apparent from his actual offence history.

9. I do not regard the Minister’s criticism of Mr Mana’s honesty as justified.  It is readily apparent from the various COPS entries that Mr Mana was frequently severely intoxicated, and often agitated and aggressive, at the time of the various incidents.  The hotel incident of 1 September 2013 also conveys the impression that, at least on occasions, he perceived the situation to involve some degree of racial intolerance or apprehension unjustifiably directed at him.  Whether or not that perception was justified cannot now be determined, from the limited available evidence, with any degree of assurance.  But the combination of intoxication and evident agitation, together with the overtone of perceived racial prejudice, provide fertile grounds for a person such as Mr Mana to have flawed exculpatory recollections of contentious events.  For those reasons, I am not satisfied that his evidence about these various incidents should be regarded as dishonest.  By the same token, and for essentially the same reasons, I very much doubt, and do not accept, the reliability of his exculpatory evidence in relation to the incidents referred to in paragraphs 27(a), 27(b) and 27(d) above.  I think it is more likely that those incidents occurred broadly as recorded in the COPS reports.  (On the other hand, I make no positive finding in relation to the complaints of assault in the January 2012 incident.  I make no positive finding because of the absence of direct complaint and material detail, in the record of that incident.)

   Mr Mana’s chronic alcohol abuse

10. There is ample evidence to substantiate both the significance of Mr Mana’s alcohol abuse and his historical inability to address it effectively.  Drug and alcohol rehabilitation conditions were imposed as conditions of his good behaviour bonds in October 2004, September 2005 November 2007, December 2008 and March 2009.  Prior to March 2009 (and apparently even afterwards, having regard to the incidents referred to in paragraph 27 above) his compliance with those conditions was minimal.

11. A few months after his second offence, in December 2004 Mr Mana’s PhD supervisors, Professor Corbett and Mr William Chen, provided reference letters in which they expressed grave concern about the impact of his alcohol related behaviour on his academic performance, and on his quality of life.  But both men also spoke highly of Mr Mana’s academic and personal qualities.  As a result of their support, and interventions, Mr Mana attended some counselling sessions at the Macquarie University Counselling service.  And although Mr Mana’s November and December 2004 offences involved breaches of his (October 2004) good behaviour bond conditions, it seems likely that the support and insight offered by Professor Corbett and Mr Chen, as well as his own apparent steps towards rehabilitation, contributed to the continuation of his bond terms, and mere monetary sanctions (imposed in late January 2005) for their previous breach.

1. In early 2005 Mr Mana did indeed attend at the Ryde Drug & Alcohol Service, and expressed an intention to abstain from alcohol.  But he attended only two sessions (in February 2005) and thereafter, in apparent breach of his bond conditions, moved out of the area and made no further contact until September 2005, ie shortly after his August 2005 offences.  When he re-presented at the Ryde Service in September 2005 he acknowledged his inability to abstain completely from alcohol, and requested assistance in establishing a controlled drinking program.  He claimed an intention to continue with counselling until he was confident he could control his drinking over an extended period of time.  But a contemporaneous Probation and Parole Service report commented that Mr Mana appeared to have only a “rudimentary appreciation of his alcohol dependency problem”.  That view appears to have been shared by Professor Corbett.  He provided a further reference in September 2005, in connection with Mr Mana’s sentencing for his August 2005 offences.  In that reference he reported that Mr Mana had failed to follow through with the counselling arrangements that had been put in place in December 2004, and appeared to have an alcohol addiction.  Professor Corbett expressed the opinion that Mr Mana’s “history and his present loneliness have played a considerable part in bringing on his bouts of drunkenness”.  Against that background, of a more complete understanding of Mr Mana’s personal circumstances, Professor Corbett’s view was that, with professional help, Mr Mana’s socially unacceptable behaviour could be controlled, but Mr Mana needed to be forced to accept proper treatment, because he had been unable to pursue such a course of action voluntarily.

2. After Mr Mana’s February 2006 arrest he continued to enjoy Professor Corbett’s support.  In a March 2006 reference letter Professor Corbett alluded to Mr Mana’s personal difficulties.  Some of these difficulties were linguistic (English is Mr Mana’s fourth of fifth language).  Some difficulties were cultural.  (Mr Mana did not come to Australia until he was almost 30, and his 10 year experience of university life in Beijing was significantly more collegiate and supportive than the non-residential norm in Australian universities.)  Some of his difficulties were familial and psychological.  (Mr Mana’s father and two siblings had been killed in the Rwandan genocide, which occurred while Mr Mana was studying for his undergraduate degree in Beijing.  Another brother was a refugee in the Congo.  Mr Mana was concerned for welfare of his mother, and another sibling, who still lived in Rwanda). 

3. The evidence shows that Mr Mana did not effectively pursue any such help throughout most of 2005 and 2006.  Part of the reason for his failure was that, sometime after September 2005, the Probation and Parole Service ended its supervision role (because of a lack of resources).  A more significant reason appears to have been that Mr Mana did not appreciate the extent of the problem he had with alcohol and underestimated both his need for support, and the utility of the kind of professional assistance that had been urged upon him.  That appearance comes from a Probation and Parole Service report of 7 August 2006.  This was a pre-sentence report, relating to Mr Mana’s February, June and July 2006 offences.  After interviewing Mr Mana, and discussion with Professor Corbett, the report author described Mr Mana as having a number of deficiencies.  He was “ambivalent about his alcohol use”, had a naively unrealistic view of the unlikelihood re-offending, lacked understanding of his own responsibility for the circumstances of his offences involving interaction with the police, and was “unlikely to benefit from supervision” by the Parole Service.  It was, no doubt, this discouraging assessment that led to Mr Mana’s custodial sentences (August 2006) for those offences.

4. The offence for which Mr Mana was arrested in November 2006 suggests he served little more, if any, than the two month non-parole period of his August 2006 sentences.  Following the November 2006 arrest, he did return to the Ryde Drug & Alcohol Service.  A September 2007 report stated that he had resumed counselling in December 2006, had apparently been attending monthly counselling sessions and claimed to have remained sober throughout that period.  This situation, which presented a rather more positive picture than that in the Probation and Parole Service report of August 2006, was supported by a further reference Professor Corbett provided in late November 2007.  No doubt it contributed to the good behaviour bonds (rather than the imposition of a further custodial sentence) relating to the offences for which Mr Mana was sentenced on 30 November 2007.

5. Mr Mana’s March and July 2008 offences triggered both a Probation and Parole Service recommendation, and a subsequent application, that he be dealt with for breach of his 20 November 2007 good behaviour bond.  However the Probation and Parole Service report also disclosed that Mr Mana had been responding satisfactorily to supervision and had been attending drug and alcohol counselling.  It was probably because of that apparently significant development that, on 14 January 2009, the Magistrate decided to take no action on Mr Mana’s bond breaches. 

6. When Mr Mana was sentenced in March 2009, for his 8 December 2008 offence, the Magistrate took into account three further reports or references.  In one of them, Professor Corbett reported that he thought Mr Mana was getting a better understanding of his alcohol addiction, “but not enough to prevent lapses which occur when he feels lonely and isolated culturally and socially”.  A second report was from a drug and alcohol counsellor at the Parramatta Correctional Complex.  It recommended that Mr Mana would benefit from a residential rehabilitation program, and included documents confirming his acceptance into a program starting on 2 March 2009.  The third report was from the NSW Probation and Parole Service.  In marked contrast to that of 7 August 2006, the report recorded Mr Mana’s agreement that alcohol abuse was the main trigger for his re-offending, and remarked that he “showed a good insight into this connection”.  The report endorsed the recommendation that he was likely to benefit from the proposed residential rehabilitation course, and continued supervision.

7. As a consequence of the reports referred to in the previous paragraph, on 9 March 2009 Mr Mana entered into a two year good behaviour bond.  One of the conditions of the bond was that he immediately travel to, and undertake, the proposed residential rehabilitation course.  He complied with that condition, and successfully completed the course in June 2009.

   Personal circumstances since June 2009

8. Mr Mana says that after he completed the residential rehabilitation course in mid 2009 he reduced the amount of alcohol that he drank.  The significance of that claim is rather reduced by knowledge of the details summarised in paragraph 27 above.  Nevertheless, the dates and events contained in the Schedule to these reasons show that Mr Mana has not been convicted of any offences since March 2009.  Neither has he been dealt with for any breach of his March 2009 bond conditions. 

9. Mr Mana moved to the Newcastle area some time in in 2009 or 2010.  There he has established some new friendships and a connection with the local Burundi community.  He also became involved with the Mayfield Baptist Community Centre and the Penola House Refugee Centre.  (He maintained a good relationship with the Refugee Centre until the latter part of 2015, when some financial disagreement caused a falling out). 

10. In about March 2014 Mr Mana started a 500 hour, five unit Certificate III course to improve his spoken and written English.  He says that in April 2014 he stopped drinking - 2014 - an assertion that is at least consistent with the absence of any later COPS reports involving incidents where his conduct has attracted police attention.  In July 2014 Mr Mana successfully completed the Certificate III course.  Later, in November 2014 he undertook two further Certificate III English courses.  Sr Brown’s May 2015 commendation letter explained that his motivation for undertaking these courses was partly to improve the presentation of his PhD thesis (a project which he hopes to be able to complete) and partly to assist in gaining employment and facilitating social interaction.  Since completing his English courses he has returned to doing his own private research work. 

11. Three of the people associated with the Penola House Refugee Centre (Sister Brown RSJ, a retired Newcastle barrister - Mr Michael Walsh, and a former leader of the Burundi community - Mr Louis Ndagijimana) all attested to the fact that, during the period they have known him (almost six years in the case of Sr Brown) Mr Mana has displayed good behaviour and character.  In their respective opinions Mr Mana was a suitable person to be granted citizenship.  A similar commendation came from Ms Mary Bower, the manager of the Baptist Community Centre.  In a commendation dated 22 September 2015 she described Mr Mana as always courteous, polite and caring.

12. Professor Corbett has only had occasional contact with Mr Mana since his move to Newcastle.  Nevertheless, Professor Corbett has remained steadfast in his support, and even attended the hearing with Mr Mana.  Professor Corbett’s support is a result of his initial close association with Mr Mana (from 2002 to 2006) and his awareness of the many and various pressures to which Mr Mana has been subject over the years.  Those pressures include some racist attitudes and behaviour.  Professor Corbett remarked, in his May 2015 commendation letter, on the positive change in Mr Mana’s circumstances and behaviour since he completed the rehabilitation course in 2009 and later moved to Newcastle.  Predictably, given his longstanding and informed support for Mr Mana, Professor Corbett had “no hesitation” in expressing his view that Mr Mana was a person of good character.  He said Mr Mana had been very honourable with him and he had difficulty in thinking of Mr Mana in any way other than as a person of good character.

13. Mr Oisin Friel, the drug and alcohol counsellor Mr Mana had periodically consulted between 2005 and 2008, was of essentially the same view.  In an 8 July 2015 reference he expressed the view that Mr Mana’s past offences were “out of character” and were due to the complex nature of the multiple stressors Mr Mana faced.  It is reasonably apparent from Mr Friel’s professional status, and his generally expressed view, that he regarded Mr Mana’s alcohol abuse as the operative trigger for his offending. 

    Mr Mana’s explanation for his offences

14. The obvious and recurrent past association between Mr Mana’s alcohol abuse, and his offending prompts enquiry for an explanation.  In his 4 May 2015 letter to the Department Mr Mana sought to explain his history of offending in Australia as having its real underlying reasons in the background of his personal circumstances.  Those background circumstances included;-

    (a)the Rwandan war and genocide, which had caused the death of many of his family members, and some close friends;

    (b)the pressures of his need to support, including financially support, surviving family members (his mother and sister in Rwanda, and his younger brother who was a refugee in the Congo); and

    (c)the pressures of his own life in Australia, where he had few friends, spoke imperfect English and experienced a cultural environment substantially different from that of his upbringing.  Mr Mana described his life in Australia between 2001 and March 2009 as like “living in a black hole of problems, stress and pressure”.

15. Mr Mana sought to underscore the significance of his personal difficulties with evidence from his general practitioner, and from a psychologist he has been consulting since some time around October 2015.  Dr Cook, Mr Mana’s general practitioner opined (in a short letter dated 24 February 2016) that Mr Mana suffered from post-traumatic stress disorder as a result of atrocities he witnessed during the Rwandan war.  The psychologist, Ms Goold similarly wrote (in a note dated 5 November 2015) that Mr Mana was experiencing difficulties “as a direct result of his PTSD” - which she attributed to his experience of being “traumatised by war … in 1994”. 

16. These specific views of Dr Cook and Ms Goold are of little independent weight.  This is because they appear to be based on a flawed history.  According to the history recorded in the 9 August 2006 Probation and Parole Service report, Mr Mana left Rwanda in 1990, to take up a scholarship in Beijing.  This was four years before the traumatic events of 1994.  There is no evidence that he ever returned to Rwanda.  Professor Corbett’s 19 March 2006 letter reports that Mr Mana was actually in China at the time of 1994 killings.  Consequently, the stated factual basis for the post-traumatic stress disorder diagnosis offered by Dr Cook and Ms Goold appears to be inaccurate. 

17. On the other hand, the thrust of the written evidence from the two clinicians is consistent with the general views of Professor Corbett.  Professor Corbett’s various commendation letters (from December 2004 to May 2015) have consistently alluded to a combination of stressors that affected Mr Mana - (i) his family separation, against the particular background of the 1994 Rwandan genocide while he was studying in China, (ii) his difficulty in adapting to life in Australia and the comparatively greater demands it made of him (compared to his experience in Beijing) in living independently, (iii) a comparative lack of facility in English, and (iv) elements of racism, because of his colour.  Professor Corbett’s views command respect, because of their inherent insightfulness, and his long association with Mr Mana.  They are echoed in the 3 December 2008 Probation and Parole Service report, which noted that Mr Mana’s issues with alcohol appeared to be associated with loneliness, depression and isolation as a result of living away from his family. 

    Character as moral quality

18. Both the delegate’s June 2015 decision, and the Minister’s submissions, emphasised the concept of “good character” as related to a person’s “enduring moral qualities”.  This conceptual association derived from the judgment of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. That case addressed the term “good character” in the context of s 501(6)(2) of the Migration Act 1958 (Cth). In that context “character” referred to a person’s actual moral qualities, rather than to their reputation: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425 (per Davies J) and 431-432 (per Lee J). Despite the different context of that legislative provision, the same association between “good character” and “enduring moral qualities” has been adopted in the departmental policy guidelines relating to character assessment for the purpose of citizenship applications under ACA 2007: see the Australian Citizenship Instructions Chapter ¶10.1.2 (2014 version) & the Citizenship Policy (effective from 1 June 2016) Chapter 11, page 145.  The policy guidelines eschew the idea that character assessment is a mere “check list” procedure.  They emphasise that “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”: the Australian Citizenship Instructions Chapter ¶10.1.1; the Citizenship Policy Chapter 11, page 145.  Notwithstanding the disavowal of a “check list” the policy guidelines describe the concept of “enduring moral qualities” as involving consideration of

    (a)the characteristics an applicant has demonstrated “over a very long period of time”;

    (b)the applicant’s ability to distinguish right from wrong (although this does not involve any religious connotations); and

    (c)the applicant’s “ethical behaviour” and their conformity to the rules and values of Australian society:  see Australian Citizenship Instructions Chapter ¶10.3.1; the Citizenship Policy Chapter 11, page 145.

19. The guidelines go on to characterise a grant of citizenship as “a privilege not bestowed lightly”:  citing Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]. They also refer to the Preamble to ACA 2007, with its reference to “full and formal membership of the community” and the corresponding “rights” and “obligations” of citizenship - namely, loyalty to Australia, belief in its democratic systems of government, respect for, and conformity with “the laws of Australia”: see Australian Citizenship Instructions Chapter ¶10.3.2; the Citizenship Policy Chapter 11, page 145.  The guidelines also acknowledge, that the values associated with good character “are not values that can be assessed in the abstract … they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do”:  see Australian Citizenship Instructions Chapter ¶10.3.2; the Citizenship Policy Chapter 11, page 146 - both citing Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].

20. As both the generality of the guidelines, and their express disavowal of a “check list” approach suggest, there are no precise parameters to permit definitive distinction between “good” and “bad” character:  Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 428A per Davies J. Nevertheless, the guidelines do describe a number of specific characteristics of “good character”: These illustrative characteristics, somewhat repetitively iterated in the guidelines themselves, can be more succinctly summarised as involving:-

    (a)general respect for and obedience to the law;

    (b)honesty, particularly in their dealings with government agencies, and most particularly in relation to taxation, immigration and financial assistance from public funds;

    (c)avoidance of conduct that is harmful to others, carries relevant risk of harm to others, or indicates an unwillingness to accept regulatory restrictions and requirements intended to contribute to the best interests of the members of the community; and

    (d)non-association with others involved in illegal or anti-social behaviour:  see Australian Citizenship Instructions Chapter ¶10.3.4; the Citizenship Policy Chapter 11, page 147.

21. Where a citizenship applicant has a history of offending, careful regard must be had to the nature, circumstances and “pattern” (ie the number, frequency and recency) of the offences.  On the one hand it is appropriate, indeed necessary, to distinguish between offending that merits description as “minor”, or is not properly to be characterised as “serious”.  (The guidelines illustrate that characterisation as potentially appropriate to offences such as shoplifting, traffic violations, offences which attracted less than a 12 month sentence, or offences which either led to no formal conviction or no sentence:  see Australian Citizenship Instructions Chapter ¶10.5.2.)  On the other hand, the guidelines contain a caution against too glib a disregard of minor offences.  That caution, expressed with a somewhat contradictory mix of dogmatism and diffidence, is that “a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them”:  Australian Citizenship Instructions Chapter ¶10.5.2.

22. The diffidence inherent in that last cited passage from the Australian Citizenship Instructions highlights the reality that character findings made in a forensic setting are rarely informed by expert psychological assessment but are instead primarily matters of impressionistic inference derived from evidence of a person’s actual conduct:  Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425C; Steele and Minister for Immigration and Multicultural Affairs [1997] AATA 405 . But the practical difficulty of a forensic character assessment based wholly on evidence of actual objective conduct, makes it inevitable that evidence of a person’s reputation, in the sense of the repute with which they are regarded by friends, colleagues and associates, will often be admissible not only as a permissible, but also as a potentially reliable, basis for an inference about the nature of their character: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425 (per Davies J). The appropriateness of the inference in any particular case will necessarily depend on satisfaction that the repute is based on accurate awareness of, and a sound capacity to evaluate, the person’s conduct and particularly the conduct that has been impugned: see Australian Citizenship Instructions Chapter ¶10.6.5.

1. Whatever the source of the information on which it is based, the assessment of a person’s character involves a conclusion about the person’s relevant qualities and capacities:  Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431G; Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 at [37]. It is not merely an opinion about the quality of their conduct in relation to particular acts or omissions: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. Consequently, past conduct deficiencies do not preclude a finding of current good character, and may not even materially inform an assessment of a person’s current character and fitness. Past conduct will not materially inform a character assessment if it is isolated and aberrant, in terms of the person’s intrinsic qualities and likely behaviour: see eg Baharestan and Minister for Immigration and Citizenship [2011] AATA 420 (single offence was an 18 year old manslaughter conviction). On the other hand, because the assessment of character is concerned with intrinsic qualities and capacities, it is not confined to consideration of a person’s usual or prevalent behaviour. Episodic, and even isolated, episodes of misconduct may, depending on their particular circumstances, provide telling objective evidence that a person is not of “good character”: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195.

2. However, the guidelines implicitly, and properly, reject the notion that “intrinsic character” is fixed in time.  The question to be determined is whether the person has satisfied the Minister of their “good character” at the time of the relevant decision - (in the present circumstances the date of this Tribunal’s decision):  see ACA 2007 s 21(2)(h) & Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [3]-[10]. Consequently the length of time that has passed since the last instance of an applicant’s impugned conduct is, as the delegate’s reasoning in the June 2015 refusal decision indicated, a relevant consideration. I remarked earlier on the suggestion in the guidelines that good character involves characteristics that “have been demonstrated over a very long period of time”: see paragraph 49(a) above. Elsewhere the references are to a “lasting” or “enduring” period of time: Australian Citizenship Instructions Chapter ¶10.5.4; Citizenship Policy Chapter 11, page 150.  In other places the guidelines refer, with less apparent emphasis, to the desirability that “a significant amount of time”, or a “reasonable amount of time”, has elapsed before satisfaction of an applicant’s contemporary good character is appropriate:  Australian Citizenship Instructions Chapter ¶10.5.2 - “Mitigating factors”.  

3. The guidelines suggest that in most cases the required period “will go back prior to any visa application”:  Australian Citizenship Instructions Chapter ¶10.5.4; Citizenship Policy Chapter 11, page 150.  This suggestion appears to allude to the various “residence” requirements in ACA 2007 ss 22 - 22B.  The typical “general residence requirement” is a period of 4 years.  Various “special residence” periods are 2 years.  In other instances the Minister has a limited discretion to treat certain permanent visa holders as having satisfied the relevant residence requirement:   ACA 2007 ss 22(1), 22(6), 22(9) & 22(11).  It would seem to follow (although the guidelines refrain from explicitly requiring) that the “good character” period regarded as appropriate for “most cases” will be at least the typical 4 year “general residence” requirement period.  But in other cases, where the citizenship applicant has committed “a serious offence” the required good character period would be “much longer, potentially over a period of many years”:  Australian Citizenship Instructions Chapter ¶10.5.4; Citizenship Policy Chapter 11, page 150.  Factors that will influence subjective views about the significance of the actual period that has passed will include the applicant’s age at the time of the most recent offence and particularly whether the offence was contributed to by no longer present circumstances or stressors - such as psychological or physical illness:  see Australian Citizenship Instructions Chapter ¶10.5.2 - “Mitigating factors”.  It will also include impressions about the seriousness of the particular offences:  Gany and Minister for Immigration and Citizenship [2010] AATA 966 at [33]; and additional evidence providing positive endorsement of the applicant’s “post-offending” rehabilitation, good behaviour, and good repute: see Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [42]; Hasib and Minister for Immigration and Border Protection [2015] AATA 82 at [41]-[51]. Ultimately, and despite the generalities that can be drawn from the guidelines, a decision about what period of good behaviour appropriately conduces to satisfaction about contemporary good character “cannot be reduced to an arbitrary formula”: see Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [44].

4. Finally, although a finding of satisfaction about character is ultimately the result of an impressionistic evaluation of a range of considerations, it is not a matter of merely subjective preference in the weighing of those considerations.  This point is inherent in the guidelines’ emphasis on the applicant’s lawful conduct, and the obligations of citizenship.  But the guidelines attempt to add some degree of emphasis exhorting the citizenship decision maker to apply “community standards” rather than “their own personal standards”.  Both the Australian Citizenship Instructions (at Chapter ¶10.5.4) and the Citizenship Policy (at Chapter 11, page 149) suggest that in applying this instruction decision makers should be enquiring (i) whether a person of good character would have engaged in the applicant’s conduct, (ii) about the extent of the applicant’s lawful conduct, (iii) about the extent of the applicant’s compliance with Australian community standards, and (iv) about the extent that the applicant shares and respects Australian democratic beliefs.

   The Minister’s Submissions

5. The Minister’s submissions emphasised the proposition that Australian citizenship is a “privilege”.  Linked to that emphasis, the references in the guidelines to “community standards”, and the related enquiry about whether a person of good character would have engaged in the applicant’s conduct, assumed particular importance in the Minister’s submissions.  Those submissions went so far as to contend that, in answering that question, and for the purpose of determinative conclusions about “good character” it was “irrelevant to consider the reasons why a person might have had a past behavioural shortcoming”.  However, that particular submission was then contradicted (and correctly contradicted) by the further submission that in assessing character, the decision maker must take into account any relevant extenuating circumstances for an applicant’s past conduct.

6. The proposition that an applicant’s contemporary character is either determinatively, or even meaningfully, informed by a hypothetical enquiry about what a person of good character would have done in the past is somewhat misleading and unlikely to be helpful.  It is misleading in two ways.  First it encourages primary emphasis being placed on past events, rather than on the citizenship applicant’s actual character “at the time of the Minister’s decision on the application”:  see ACA 2007 s 21(2)(h).  Second, it creates the construct of an entirely hypothetical person, and invites speculation about their likely past conduct, potentially free of the influences, pressures, motives and intentions of the individual citizenship applicant at the time of the conduct in question.  The postulated enquiry is unhelpful because the contentious conduct will typically have involved criminality.  It is almost axiomatic that a person of “good character” would not have committed a criminal offence.

7. The more informative, and relevant primary enquiry, is about the actual objective content of the citizenship applicant’s past behaviour.  A necessary consequential enquiry is about the citizenship applicant’s personal circumstances at the time of that conduct.  The Minister’s submissions, as had the delegate in his reasoning, characterised Mr Mana’s many offences as either “serious” or at least, not properly described as “relatively minor”.  The delegate’s reasoning for describing the offences as serious was that they had resulted in Mr Mana being required to enter into various good behaviour bonds.  (In paragraph 5 above I referred to this part of the delegate’s reasoning.)

8. I am unable to agree with the proposition that, with the exception of the June and July 2006 offences for which he served a short custodial sentence, Mr Mana’s past offences properly merit characterisation as “serious” for the purpose of contemporary assessment of his character.  The delegate’s expressed reasoning process, which cited the fact that Mr Mana had typically been required to enter into good behaviour bonds, was flawed.  At least as it was expressed, it tended to convey an inadequate understanding of the relevant New South Wales sentencing laws (specifically the Crimes (Sentencing Procedure) Act 1999 ss 9-12). It also tended to misapply the guidelines themselves, which at least suggest that offences which do not result in a formal sentencing procedure should not ordinarily be characterised as serious. Furthermore, whilst it is true to say that the various statutory offences with which Mr Mana was charged (and convicted) were potentially punishable by substantial sentences, the striking part of Mr Mana’s actual offence record is that he was formally sentenced only in relation to the offences that resulted in his 2006 imprisonment, and in relation to his March 2008 offence. The contrast between the potential, and the actual, penalties involved in Mr Mana’s various offences is shown in the various “Penalty” columns in the accompanying Schedule to these reasons.

9. I do not accept the Minister’s complaint that Mr Mana’s mild equivocation or dispute about some aspects of the details recounted in either the pre 2009 police “Fact Sheets”, or the post September 2009 COPS incident reports, indicates any contemporary lack of insight or remorse for his past offending.  That proposition is not readily reconcilable with either his abstinence from alcohol since April 2014 or the absence of any evidence of adverse behaviour since February 2014.  On the other hand, the Minister’s submissions are correct to point to the long period (apparently from late 2002 to early 2014) over which Mr Mana has episodically engaged in aggressive behaviour, typically associated with excessive alcohol consumption.  He has clearly had a long standing past inability to discipline his drinking to avoid such incidents.  That inability has been sustained despite the encouragement and support proffered to him by the University in his early years in Australia.  It appears to have continued despite the bond and parole conditions imposed on him in relation to his various convictions.  It appears also to have continued after he completed his 2009 residential rehabilitation course, and after he moved to Newcastle and established his friendships and associations there. 

10. I accept that Mr Mana has had to endure difficult and demanding circumstances during his period of Australian residence.  He is a man of very considerable intellectual ability.  His frustrations (if that is anywhere close to the right word) are understandable.  He lives in his third country of residence, without the secure status of citizenship.  He has no family or close relatives nearby.  His remaining family members live in circumstances of difficulty in the post 1994 Rwanda.  He has not been able (thus far in any event) to fulfil his academic ambitions.  His subjective experiences involve at least some perceptions of racial intolerance.  This background awareness of Mr Mana’s personal circumstances demand lively attention to the possibility that his past offending is more probative of aberrant behaviour, in response to the many stressors of his existence, than it is probative of a lack of good character.

11. Mr Mana’s final submissions made this point.  He said that nothing in the detail of his past offences proved that he was not a person of good character, particularly when regard was had to the fact that his offences were almost always related to periods or instances of alcohol abuse.  If this was the correct way of addressing the “good character” question posed by ACA 2007 s 21(2)(h) I am not sure that I would accept Mr Mana’s submission.  The various requirements in the policy guidelines describing “good character” as involving respect for “the rules and values of Australian society”, adherence to “community standards” and avoidance of behaviour with the potential to cause harm to others (see the Australian Citizenship Instructions (at Chapter ¶10.3.1 & 10.3.4) and the Citizenship Policy (at Chapter 11, pages 145 & 147)) seem to point against a conclusion that Mr Mana was a person of good character - at least up until the time of his last recorded incident of public intoxication in February 2014.  The question of character remains one for objective assessment.  The existence of personal factors in an applicant’s background, including factors that may tend to explain the reasons for a person’s offending do not justify departure from a dispassionate and objective assessment of character:  Steele and Minister of Immigration and Multicultural Affairs [1997] AATA 405 (29 year old with personality disorder and disadvantaged early childhood – approximately 90 convictions over a 13 year period - generally minor offences - outstanding warrants issued two months before the review hearing - not of good character). And whilst the existence of personal pressures and disadvantages may assist in characterising behaviour as aberrant, rather than as being materially suggestive of a lack of good character, they are less likely to do so where they involve an entrenched pattern of substance abuse, and associated criminality: Bates and Minister for Immigration and Multicultural Affairs [2007] AATA 29 at [15]-[27].

12. In any event, the correct question posed by ACA 2007 s 21(2)(h) is simply that of actual satisfaction of contemporary “good character”.  That criterion does not pose a binary choice between two mutually exclusive characterisations - “good character” or “bad character”.  It is the more nuanced enquiry as to whether the available evidence about Mr Mana - both his past and contemporary conduct - conduce to positive satisfaction of his good character at this time. 

13. My answer to that question is “no”.  I am impressed by Mr Mana’s intellectual ability and, more recently (post 2009 and more importantly, post April 2014) his perseverance in attempting to address his difficulties with alcohol.  I also accept that his claim to have stopped drinking in April 2014 is probably true, and accounts for the appearance that he has not come to adverse police attention at all in the period since then.  I accept also the various character commendations to which I refer, and which consistently speak of his underlying decency, honesty and civility.  But “good character” whilst it certainly includes those essential moral qualities, involves more than subjective adherence to those core values.  It requires an ability, and a sustained ability, to adhere to them amidst the stresses and pressures of community life.  As the Tribunal (Deputy President Wright) said in Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [13]:-

    ‘Good character' within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community...

14. In the present case, over a period of many years, despite the support of his university colleagues (in the early years after 2002) and his various encounters with the courts in the period from late 2004 to 2008, Mr Mana was for a long time unable to live in the community with demonstrable ability to comply with its laws and values.  Despite his apparent resolve and good behaviour since February 2014, the fact is that only a little more than two years has elapsed.  That period is too short, and the various character commendations too lacking in awareness of the full extent of Mr Mana’s past behaviour (by which I mean the specific details of both his various offences, and the post 2009 COPS events) to lead me to the view that it is now correct, or preferable, to reach a positive satisfaction that he is currently of good character.  Such a conclusion might however be justified, in the not too distant future, if he successfully maintains his current apparent resolve, and continues to merit the informed endorsement of good standing members of the Australian community. 

    Decision

15. The 2 June 2015 decision under review is affirmed.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member.

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

Associate

Dated 26 August 2016

Date of hearing	7 March 2016
Date final submissions received	22 March 2016
Applicant	In person
Solicitors for the Respondent	Sparke Helmore

Schedule to Decision