Ngaboyisonga and Minister for Immigration and Border Protection (Citizenship) - [2017] AATA 2417

Ngaboyisonga and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2417 (1 December 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1498
Re:Theoneste Ngaboyisonga
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mr D. J. Morris, Senior Member
Date:1 December 2017
Place:Melbourne

The reviewable decision that the Applicant does not satisfy section 21(2)(h) of the Australian Citizenship Act 2007 is affirmed.
........................................................................
D. J. Morris, Senior Member
CITIZENSHIP – Citizenship by conferral. Permanent resident – whether of good character – series of offences after arrival in Australia – domestic violence – suspended sentence – no recent offences – factors to take into account – decision affirmed
Legislation
Australian Citizenship Act 2007, Preamble, ss 21(2)(g), 21(2)(h)
Cases
Fakaufusi and Minister for Immigration and Border Protection [2017] AATA 1017
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 391
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Rangi Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Instructions (as at 3 March 2016)
REASONS FOR DECISION
Mr D. J. Morris, Member
1 December 2017

The Applicant, Mr Theoneste Ngaboyisonga, applied for Australian Citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (‘the Act’) on 29 March 2016.
On 28 February 2017, a delegate of the Minister for Immigration and Border Protection refused Mr Ngaboyisonga’s application because the delegate was not satisfied that the Applicant was of ‘good character’ under section 21(2)(h) of the Act on account of his past criminal conduct. Mr Ngaboyisonga had been charged and convicted of 12 criminal offences between 6 December 2011 and 28 July 2014 when he was residing in Darwin.
On 15 March 2017 Mr Ngaboyisonga lodged an application for review of the delegate’s decision by this Tribunal. In the decision record of the delegate dated 28 February 2017 the Applicant’s name is put as Mr Ngaboyisonga Theoneste but in his application to the Tribunal the Applicant states that Ngaboyisonga is his family name and Theoneste is his given name, so that form will be used in these reasons.
Background
The Tribunal had before it documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), relating to the Respondent’s consideration of Mr Ngaboyisonga’s application for Australian Citizenship by conferral.
The documents showed that the Applicant was born on 2 February 1974 in Rwanda. He arrived in Australia on 11 November 2010 on a Permanent Refugee Visa subclass 200 issued under the Migration Act 1958, a visa he currently holds.
The legislative framework for acquisition and conferral of Australian Citizenship is contained in the Act and regulations made under the Act. Specifically, subdivision B of that Act deals with Australian Citizenship by conferral. It was accepted by the Respondent that Mr Ngaboyisonga satisfied subsections (2)(a) and (b) of section 21 of the Act in that he was aged 18 or over at the time of his application and was a permanent resident.
It was also accepted by the Respondent that Mr Ngaboyisonga satisfied the other relevant criteria set out in section 21 which must be considered in applications for Australian Citizenship by conferral except for section 21(2)(g) which requires the Minister to be satisfied that a person is likely to reside, or to continue to reside, in Australia or maintain a close and continuing association with Australia if the application were to be approved and section 21(2)(h) which requires the Minister to be satisfied that the person is of good character at the time of the Minister’s decision on the application.
The Tribunal also noted the Australian Citizenship Instructions, which were included in the T-documents and which provide a guide to Departmental officers making decisions as delegates of the Minister. Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 concluded that decision-makers undertaking merits review should generally apply ministerial policy unless the policy was unlawful or there were cogent reasons to the contrary. The Tribunal is satisfied that there are no reasons not to apply the relevant policy and therefore takes account of the Instructions in this consideration.
The delegate did not make an assessment of Mr Ngaboyisonga under section 21(2)(g) because the delegate was not satisfied that he was of good character under section 21(2)(h).
The Tribunal had before it a Statement of Facts and Contentions of the Respondent dated 25 July 2017 which, at Part III, contended that the sole issue is whether the Tribunal is satisfied that the Applicant is of good character.
The Tribunal accepts this contention of the Respondent and considered this matter on the basis of whether Mr Ngaboyisonga is of good character. In making this assessment, the Tribunal notes that the assessment is a contemporary exercise. A person may not have been of good character at the time a delegate makes a decision in relation to the person but that assessment may change in the light of additional or new information. If the Tribunal is satisfied that the Applicant is of good character, the matter would be remitted to the Minister with a decision that the provisions of section 21(2)(h) are satisfied, so that the Minister can make an assessment under section 21(2)(g) and fulfil any other legislative requirements set down by the Act.
The hearing was held on 24 August 2017. The Applicant represented himself, gave evidence and was cross-examined. The Respondent was represented by Mr Angel Alexov, of counsel. The Applicant called a number of witnesses who gave evidence to the Tribunal and were cross-examined. Mr Ngaboyisonga also provided a number of written statements.
The Tribunal also received into evidence a volume of documents produced under summons from Northern Territory Police, and submitted to the Tribunal on 27 July 2017.
The Applicant’s opening submission
Mr Ngaboyisonga told the Tribunal about how he had to flee Rwanda to Tanzania and was forcibly repatriated to Rwanda and subjected to torture. He then fled to Kenya. He was granted a refugee visa and came to Australia with his wife and (then) three children. He said that he took some time to recover from the ordeals to which he had been subjected.
Initially, he and his wife settled in Darwin. While in Darwin he said he learned the fate of family members in Rwanda, some of whom had died. He told the Tribunal this led him to be depressed and to drink alcohol to cope.
He said he did not deny the offences he had committed when living in Darwin. He said he attempted strategies to try and come out of the situation he was in, including counselling. He and his wife decided that it would be desirable for them to move away from Darwin, because he said he needed to be separated from a group of acquaintances with whom he drank to excess. The family moved to Melbourne. Two more children have been born in Australia, making a total of five children.
Mr Ngaboyisonga said he had found friends in Melbourne who had helped him. He said he was thankful to Australia for taking him and his family in and wanted to be part of this country. Mr Ngaboyisonga said he takes “full responsibility for the crimes I committed. When I regained control over my life, I felt so bad. It affected my family. These things were not intended. The crimes happened because of the circumstances I was in. I thank God now that it is over and I have no plans to go back to that life.”
Mr Ngaboyisonga said that the Respondent had based the decision that he was not of good character on his conduct in his first three years in Australia and submitted that they did not consider the three years since he moved to Victoria where he has had no criminal record.
He said: The crimes were a result of the life I was leading and dependent on trauma. I didn’t know the laws. I have learned the laws and values of Australia. That’s when I found I was wrong and why I have changed.
He told the Tribunal that his wife and children are all Australian Citizens and the fact that he is not affects him mentally. He said that he hopes Australia is a forgiving country.
The Respondent’s opening submission
Mr Alexov drew the Tribunal’s attention to the list of offences of the Applicant (T- (T-documents, p 6-7). The offences were:
6 December 2011
Convicted of the offence of Engage in Conduct that contravenes DVO. Fined $100.
Convicted of the offence of Drive Medium Range Blood Alcohol Content. Disqualified from driving for six months. Fined $300.
18 December 2012
Convicted of the offence of Resist Police in Execution of Duty.
Convicted of the offence of Engage in Conduct that contravenes DVO. Fined $500.
5 April 2013
Convicted of the offence of Drive High Range Blood Alcohol Content. Disqualified from driving for 18 months. Alcohol interlock for 12 months.
Convicted of the offence of Do Not Stop After Accident. Fined $300.
Convicted of the offence of Drive With Due Care [sic]. Fined $400.
21 October 2013
Convicted of the offence of Aid, Abet – Hinder or Obstruct Police. Fined $100.
Convicted of the offence of Aggravated Assault. Sentenced to 6 weeks’ imprisonment for aggravated assault, suspended for 12 months.
28 July 2014
Convicted of Breach of Order Suspending Sentence (2 counts). Breach proven. Operative period extended for 6 months.
Convicted of offence of Engage in Conduct that Contravenes DVO. Sentenced to 2 weeks’ imprisonment, suspended for 2 years.
The Respondent submitted that the delegate of the Minister formed a view that Mr Ngaboyisonga was not of good character because of his criminal record: he had been convicted of aggravated assault, a crime of violence towards an adult and also harming a child which ought to be viewed seriously. The Respondent also submitted that Mr Ngaboyisonga’s response to a procedural fairness letter from the Department suggested that he had not accepted responsibility for participation in each offence. At T2, p 10, the delegate stated:
In a personal statutory declaration you have provided limited information about the details, circumstances and your involvement in committing each offence. Your written response illustrates that you have not accepted responsibility for your participation in each offence and, further, that you have distanced yourself entirely. You mentioned extenuating circumstances include [sic] your traumatic past and the difficulties you faced whilst trying to assimilate into Australian society. You also made reference to excessive drinking during this time. These extenuating factors may have led you to make poor choices, however it [sic] does not completely excuse those offences. You have failed to acknowledge your responsibility in your own actions and in this failed to respect Australia’s laws throughout this time.
The Respondent further argued that several of the character references Mr Ngaboyisonga submitted to attest to his character did not acknowledge the criminal offences that he had committed nor did they attest to a change in character after the convictions.
In this regard, the Australian Citizenship Instructions are relevant. The Instructions state, at part 10.6.5:
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of “good character”.
Evidence of Mr Fils Munyemana
Mr Ngaboyisonga called a number of witnesses, who had submitted written statements before the hearing, to give evidence. Mr Fils Munyemana provided a statement in which he said, after recording that Mr Ngaboyisonga had been a good friend to him and his family and they attended the same church:
He informed me about things that he went through when he was living in Darwin. Since, I knew him, he didn’t cause any problem in our community.
When asked what were the things Mr Ngaboyisonga informed Mr Munyemana about that occurred in Darwin, the witness said he told him: about drinking and driving and a misunderstanding between him and his wife, and an issue with [name of Applicant’s minor son].
Mr Munyemana said that the Applicant told him that he had not breached any domestic violence orders and then said that Mr Ngaboyisonga tried to go home and talk to his family on one occasion but “didn’t at the time know he was breaching” an order.
Mr Munyemana said he first met Mr Ngaboyisonga in April 2015 in Melbourne.
Evidence of Mr Jordan Kabongo
Mr Kabongo had provided a statement dated 20 June 2017 which was admitted into evidence in which he said he knew “some of his problems caused by [his] past situation.”
Mr Kabongo gave evidence at the hearing. He said he knew Mr Ngaboyisonga when they both lived in Darwin. He said at that time the Applicant was having problems with drinking and was stressed. He said he was aware that Mr Ngaboyisonga had attended court on a number of occasions and that he was subject to a Domestic Violence Order. He knew that one of the court matters related to a car accident and another related to an occasion when his young son refused to take medicine. Mr Kabongo said that in his view the Applicant was much changed since his relocation to Melbourne from Darwin.
Evidence of Ms Sarah Nyampinga
Ms Nyampinga had provided a statement dated 2 June 2017 which was admitted into evidence. She said she had known Mr Ngaboyisonga and his family for two years, having met at church. She said the Applicant had helped her with transport to work because she and her husband did not have a motor car.
Ms Nyampinga told the Tribunal she knew about the drink driving offence in Darwin and the matter involving Mr Ngaboyisonga’s child at the hospital when he was trying to give medication to his son and the child did not want to take it. She said she did not know that Mr Ngaboyisonga had gone to court over this incident, nor did she know that the Applicant had been on a Domestic Violence Order in Darwin.
Ms Nyampinga told the Tribunal about assistance the Applicant had given her learning to drive. She said he and his family visited her house, and she and her family visited his.
Evidence of Ms Amick Uwera
Ms Uwera gave evidence at the hearing that she had known Mr Ngaboyisonga for two years as he and his family had been neighbours in Melbourne. She said that the Applicant had never told her about his life when living in Darwin. She said she socialised with Mr Ngaboyisonga and his family and that he had assisted her by taking her to medical appointments.
Evidence of Ms Tabitha Nyirahabimana
Ms Nyirahabimana provided a statement dated 19 June 2017 which was taken into evidence and she gave evidence at the hearing. She told the Tribunal that she met him first at church where she is a leader in the Pentecostal community of Victoria. She said that Mr Ngaboyisonga was a regular member of the congregation and that he had visited her when she had been in hospital.
Ms Nyirahabimana said that Mr Ngaboyisonga had told her when he came to Australia he had significant trauma that caused him to drink to excess. She said she had given him spiritual counselling to help him with his over-drinking. She knew about the incident at the hospital with his son and felt that Mr Ngaboyisonga had been frustrated because the “African mentality” was that children obeyed their parents and her understanding is that he was trying to get his son to take medicine.
Evidence of Mr Jean-Pierre Byamungu
Mr Byamungu provided a statement dated 21 June 2017 which was taken into evidence. Part of that statement stated:
Theoneste has a good character and good behaviour. He is a good example in our Congolese community and even in the society. He told me about things about happened to him in N.T. (Darwin). The cases he had there. But now, he changed, he is even attending counselling session and he is working as a volunteer in working for the dole at 2&5 Inc garden in Geelong.
Mr Byamungu told the Tribunal he did not know much about the Applicant’s time in Darwin except that he knew Mr Ngaboyisonga had family problems. He said that he had not seen any “bad behaviour despite what happened in Darwin” and it was his view that the Applicant was a good man.
Evidence of Ms Sifa Ndianza
The Tribunal also heard evidence from the Applicant’s wife, Ms Sifa Ndianza. As Ms Ndianza had not provided a written statement before the hearing and as the hearing started late owing to transport difficulties the Applicant had, Mr Ngaboyisonga advised the Tribunal that he would not be calling her to give evidence. During cross-examination Mr Alexov put to the Applicant that if he did not call his wife, the Respondent would submit that Mr Ngaboyisonga was “afraid of what she might say”. The Applicant vehemently denied this and then proceeded to call her as a witness.
The Tribunal considers this was an undesirable exchange. The Tribunal takes into account that the assessment of character by a loving and supportive spouse may not always be entirely objective because of that very fact, but when that person has already been present during the cross-examination of her spouse (because the Tribunal had been told earlier in the hearing that she would not now be called to give evidence and the Respondent did not voice any objection at that time), this amplifies that factor. The Tribunal found that Ms Ndianza was somewhat unresponsive in her replies to some of the Respondent’s questions. The Tribunal does not place weight on Ms Ndianza’s evidence either in favour of her husband’s good character or against it.
Consideration
The term “good character” is not defined in the Act. The Respondent drew the Tribunal’s attention to the words of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at [431-432]:
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not 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.
Deputy President McDonald said in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 (‘Prasad’):
A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that despite the many good qualifies possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
In this consideration, many of the witnesses who provided statements and gave evidence had become acquainted with the Applicant since he and his family moved to Melbourne from Darwin. Some of them had some knowledge of the events in Darwin that had led to Mr Ngaboyisonga being convicted in court of a number of offences, but even those who did have such knowledge had only superficial or partial detail. The only witness with direct knowledge who could make a first-hand assessment of the change in Mr Ngaboyisonga’s conduct, apart from the Applicant’s wife, was Mr Kabango, and the Tribunal had some regard for his evidence, particularly so because he was not part of the ‘drinking’ coterie of acquaintances Mr Ngaboyisonga had in Darwin..

The Tribunal also took particular note of the assessment by Ms Nyirahabimana. She impressed the Tribunal as a witness of truth and the fact that she had provided some spiritual counselling to Mr Ngaboyisonga in her role as a church leader gave her a somewhat better insight into his background alcohol problems compared to his current behaviour and conduct. I find that her evidence weighs in favour of the Applicant being of good character.
The Tribunal considers that Mr Ngaboyisonga recognised that his drinking pattern in the Northern Territory was a problem and, on his own evidence, took deliberate steps to move away from a particular peer group that he realised did not assist him in dealing with that particular issue. The fact that he chose to move with his family to Melbourne for a ‘new start’ showed a real commitment to seriously tackling a particular behavioural challenge. However, many of the people who provided witness statements and gave evidence know only half of the story; they can fairly attest to their knowledge of Mr Ngaboyisonga in their interactions with him in Victoria (some of them for around two years) but not in the broader context of his previous unlawful behaviour in the Northern Territory.
The Tribunal noted the Respondent’s concession that the fact that Mr Ngaboyisonga had not committed any offences since his move to Victoria was positive evidence, as was the evidence by the Applicant and a number of witnesses that he had significantly reduced his consumption of alcohol to only occasional social drinking. I also note evidence put forward of a number of community-minded activities that Mr Ngaboyisonga had undertaken since moving south, including helping neighbours and friends attend work and other appointments and teaching one neighbour to drive.
I must also consider the Applicant’s evidence about some of his offences. He readily accepted that when he was involved in a minor car accident and absconded the scene, he quickly realised this was a mistake and returned with his wife to the site and reported to police. In his evidence Mr Ngaboyisonga disputed certain elements of an incident relating to when he took his son to the Royal Darwin Hospital. When counsel for the Respondent suggested to him that he was shifting his evidence at the hearing because he would not accept the contemporary evidence of what he did, the Applicant replied: “When things happened, I didn’t realise it was ‘big’. Then I realised it was serious. I am not here to deny any of this. I am here to ask forgiveness. I did things to break the cycle.”
Mr Ngaboyisonga accepted that he had breached a Domestic Violence Order, that he was drunk in the presence of his wife (in contravention of an order) and that he had physically assaulted her at that time. I note that among the documents the Applicant submitted to the Department in relation to his application was a letter from Dr Avdo Makas of Corio Medical Centre dated 9 February 2017 which stated that he had seen Mr Ngaboyisonga on three occasions for medical consultations in 2015 and 2016 and stated:
During consultations he did appear as a nice man and I did not notice any inappropriate behaviour nor reaction. I did not notice anything that may go against his application for Australian citizenship. I am not able to comment on his reputation in the community, he denies any previous / current offences.
(Emphasis added.)
The Respondent drew the Tribunal’s attention to a statutory declaration by a son of the Applicant, made when the son was aged 12. The Tribunal gave little weight to this document and considers that placing any reliance on such evidence from a minor is to be deprecated, especially so when other evidence about the same matter is available. The Applicant when questioned about this statutory declaration said that the court found there was no substantial evidence that he had done what his son had alleged and that the court records would provide clarification. The Tribunal did not have the court records.
The Respondent referred in submissions to an incident alleged to have occurred in March 2011 but where the charge was withdrawn, and which was also referred to in the T- documents. In this regard I respectfully agree with the approach of Deputy President Forgie in Fakaufusi and Minister for Immigration and Border Protection [2017] AATA 1017 where she said, at [44]:
In addition to the charges laid against MrFakaufusi that have led to the convictions I have recorded above, I note that the T documents include others that have been struck out or withdrawn and reference was made to them in the submissions lodged on behalf of the Minister. I have not referred to them in these reasons and have not had regard to them for they carry no evidentiary weight in their own right. They are not convictions which do have evidentiary weight and to which regard must be had within certain constraints.
I also agree with DP Forgie’s later expansion on the value of such evidence, at paragraphs [45] to [53] of that decision. The Tribunal places no weight whatsoever on these unproven matters in relation to the assessment of Mr Ngaboyisonga; they are not relevant or particularly useful in assessing good character.
Adopting the approach in Prasad, the Tribunal assessed the aggregate of Mr Ngaboyisonga’s qualities. It does seem that he learned from his series of offences in the Northern Territory and took steps to remove himself from that scene, and that his recent conduct has not seen any continuation of that unlawful behaviour. The Tribunal acknowledges that the circumstances of the Applicant coming to Australia were inherently traumatic and accepts his evidence that he received devastating news when in Darwin about the fate of certain family members back in Rwanda. However while this may partly explain why he tended to drink to excess at that time, it does not excuse the offences committed. In particular, the Tribunal takes a very dim view of domestic violence. It is a matter of fact that after a spate of offences from late 2011 to mid-2014, including several relating to breaches of Domestic Violence Orders, the court in Darwin imposed a sentence of imprisonment on Mr Ngaboyisonga of two weeks, wholly suspended for two years, a suspension that ended at the end of July 2016.
I take into account the proximity of the end of this suspension in deciding that I am not satisfied that Mr Ngaboyisonga satisfied the good character requirements of subsection 21(2)(h) of the Act when he made his application as he was still subject to a suspended sentence imposed by a Court after a number of preceding offences were taken into account by the Court. Furthermore, I am not satisfied that, owing to this proximity, he satisfies subsection 21(2)(h) at this time. In my mind there needs to be a greater passage of time between the end of Mr Ngaboyisonga’s suspended sentence to show evidence of, in the words taken from the Preamble to the Act, “upholding and obeying the laws of Australia” before I would be satisfied that the requirements of subsection 21(2)(h) are met. While the Applicant asked the Tribunal for forgiveness and cavilled only at some of the detail rather than the substance of the unlawful conduct, the fact that it was evident that many of those called to attest to his character were unaware of the crimes he committed suggests to me that the gravity of that conduct is still not sufficiently apparent to Mr Ngaboyisonga.
In coming to this conclusion, I want to emphasise that Australia is a welcoming country. The vibrancies of our society have thrived on those within it who have chosen to settle here, joining those who were born here. I believe that Mr Ngaboyisonga has demonstrated that he has many positive qualities, especially since moving to Victoria, and that in time he will be able to make a substantial contribution to our national community.
Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 391 made the point that:
“refusal did not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again…”
I have no reason to believe that, provided some more time has passed and Mr Ngaboyisonga can demonstrate a longer period of positive contribution to the national community with no recurrence of unlawful conduct, a fresh application for Australian citizenship by the Applicant may not be successfully made.
DECISION
The reviewable decision that the Applicant does not satisfy section 21(2)(h) of the Australian Citizenship Act 2007 is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris, Senior Member

[sgd]........................................................................
Associate
Dated: 1 December 2017

Date of hearing: 24 August 2017

Applicant: In person

Counsel for the Respondent: Mr Angel Alexov

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	24 August 2017
Applicant:	In person
Counsel for the Respondent:	Mr Angel Alexov
Solicitors for the Respondent:	Australian Government Solicitor