Ngechu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 2977

Ngechu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2977 (13 September 2022)

Division:GENERAL DIVISION

File Number:          2021/1924

Re:Christine Julie Muthoni Ngechu

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:13 September 2022

Place:Sydney

The Tribunal sets aside the reviewable decision and remits the matter to the Respondent for further processing with a finding that the applicant is a person of good character.

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

Emeritus Professor P A Fairall, Senior Member

Catchwords

CITIZENSHIP – application for citizenship by conferral – refusal – good character requirement – social security offences – traffic offence – prescribed content alcohol (PCA) – effluxion of time – failure to disclose – decision under review set aside and remitted

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 24

Crimes Act 1914 (Cth) s 21B

Criminal Code Act 1995 (Cth) ss 135.1, 136.1

Cases

Alemu and Minister for Home Affairs (Citizenship) [2019] AATA 3352

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Hadri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 41

HZCP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 202

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

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

Secondary Materials

Citizenship Procedural Instruction (CPI) 15 – Assessing Good Character under the Citizenship Act 2007

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

13 September 2022

INTRODUCTION

1. On 5 September 2019, Mrs Christine Ngechu (the applicant) applied for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).[1] On 9 March 2021 a departmental delegate refused her application, finding that she did not, by reason of her criminal record, satisfy the good character requirement in paragraph 21(2)(h) of the Citizenship Act.[2]

   [1] T4/109.

   [2] T2/19; 25-28.

2. On 30 March 2021, she applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s adverse decision. The matter was heard by video-conference on 14 February 2022 and 28 June 2022.

   BACKGROUND

3. The applicant was born in Kenya in 1974 and came to Australia in 1996 on a student visa.[3] She completed two years of a commerce degree but discontinued her studies when she fell pregnant. Her two children were born in Australia, a daughter in 1998, and a son in 2005. Her son has special needs, and has an approved plan under the National Disability Insurance Scheme (NDIS). The applicant separated from the father of her children in around 2008 and before her son was diagnosed with autism. Her separation led to extreme financial hardship and the repossession of her family home.

   [3] T10/152.

4. In 2019 she married an Australian citizen, and in April 2020 her new husband suffered a stroke. She took time off work to care for him.[4] He needs ongoing care and treatment.[5] 

   [4] Letters dated 22 April 2020, 22 May 2020.

   [5] Discharge summaries dated 28 March 2022, 16 April 2020.

   CRIMINAL RECORD

5. Her criminal record includes two traffic offences and two social security fraud offences.

   The traffic offences

6. On 16 March 2016 she was fined $425 for “Disobey traffic lights – camera detected”. She was issued a traffic infringement notice and paid the fine and did not go to court. According to the citizenship application form, there was no need to declare this offence.

7. On Sunday 28 April 2019, at approximately midday, she was pulled over for a random breath test. She had a blood alcohol reading of 0.088 (mid-range PCA). Her licence was automatically suspended. On 2 July 2019, she pleaded guilty before the magistrate and was found guilty of driving with a prescribed content of alcohol (middle range). She was released without conviction, subject to an 18 month conditional release order (CRO), requiring her to be of good behaviour (concluding on 1 January 2021).

8. The Statement of Facts tendered by the police state as follows:

   [W]hilst under caution, the accused stated she had been drinking at a friend’s house in Guildford as a celebration of her upcoming wedding. She stated that she started drinking at midday on Saturday 27th April but that she didn't know when her last drink was. The accused told police that she had consumed "A couple of glasses” of self-poured white wine and “some shots of Tequila I think”. At the time of the offence the sealed road surface was dry and it was a fine day. There was a moderate amount of traffic and the accused was the sole occupant.

9. I note that she was first granted a provisional driving licence in August 2005.

   The fraud offences

10. In April 2008, Mrs Ngechu applied for the parenting payment (single), which is a mean-tested social security benefit. Recipients are required to provide accurate financial information about their income, and to inform Centrelink of any change in their financial circumstances.

11. In her Centrelink application dated 3 April 2008, she stated that she was not working over the period 7 April 2008 – 20 June 2008 (7 fortnights).[6] On the form, she was required to supply her ‘Current Employer Details,’ the defendant stated that she was ‘not currently working’.[7] In fact, she earned $20,799.00 over that period. She was overpaid $3,828.74. This attracted a charge under section 136.1 of the Criminal Code Act 1995 (Cth) (the Code) (knowingly making a false or misleading statement in an application), described in the Statement of Facts as Sequence 1.[8] 

    [6] SM1/1.

    [7] SM1/2.

    [8] SM1/2.

12. The second offence relates to the period 14 July 2008 and 9 August 2010 (55 fortnights).[9] Mrs Ngechu earned $194,159.27 gross during this period, but declared only $25,217.96. She failed over this period to update Centrelink as to her financial income on the Interactive Voice Response (IVR) system. This failure attracted a charge under section 135.1 of the Code (acting with the intention of dishonestly obtaining a dishonest gain from a Commonwealth entity). This is referred to as Sequence 2.[10] The overpayment amount was $23,955.75. The total overpayment for the two sequences was $27,784.49.[11]  The relevant debt was confirmed by Centrelink on 4 October 2010.[12]

    [9] SM1/1.

    [10] SM1/3.

    [11] SM1/4.

    [12] SM1/4.

13. On 19 December, she pleaded guilty in the Mount Druitt Local Court to both counts. She was summarily convicted and sentenced to 9 months’ imprisonment, expiring on 18 September 2014. The sentence was suspended subject to her entering into a recognizance of $500 to be of good behaviour for 2 years.

14. The Court also made a reparations order under section 21B of the Crimes Act 1914 (Cth) in the amount of $20,741.57.[13] There is a File Note dated 28 June 2013 made by a NSW Corrective Services officer relating to the amount of monies outstanding and her criminal record overall. The Director of Public Prosecutions provided information that she had no criminal record, and that she had repaid some $9,000, reducing her debt from the original overpayment of $27,784.49 to $18,915.90, an amount lower that the reparation amount made by the Court ($20, 741.57).[14] Curiously, neither the pre-sentence report dated 17 July 2013,[15] nor the Police Statement of Facts,[16] refer to any repayment.

    [13] T2/25.

    [14] SM3/14.

    [15] SM1/5-7.

    [16] SM1/1-4.

15. This above information is derived from the record of convictions and the Police Statement of Facts. She was not legally represented at the Tribunal hearing.

    THE APPLICANT’S EVIDENCE

16. The applicant gave evidence and was cross-examined by the Respondent’s solicitor.

    The traffic convictions

17. With regard to the PCA offence, she told the Tribunal that she attended a pre-wedding celebration (she called it a “hen’s night”) on the previous evening for her pending nuptials. She consumed wine and tequila. She accepted that her blood alcohol limit was still in excess of the allowable limit at midday the following day. She said that she believed that she was not under an obligation to disclose or provide information about the offence, because no conviction was recorded.

    The fraud convictions

18. She said that she was first employed by the Commonwealth Bank in 2002 as a casual and then moved into a full-time position. She moved back to part time work to look after her children. She could not remember exactly how much she was earning in 2008.  She said that when she lodged her parenting claim on 3 April 2008 she was only employed part time.

19. She said that she did not agree with the Police Facts “completely”. She had seen them for the first time only just before the Tribunal hearing. She said that she pleaded guilty to these offences because the earnings were in her name. She said that at the time of her claim she was going through a separation and she had care of two young children, one of whom had special needs.

20. She thought that she had provided the correct income based on her bank earnings.  She had a vague recollection of phoning Centrelink to report income. She was unable to recollect any specific interactions with Centrelink. She said that she could not remember this far back and did not mean to be deceptive.

21. She said that the offences “happened” because a family member used her documents to get work. When pressed, she said that the family member was her mother. She said that her mother used her tax file number to get a job as a cleaner at a nursing home. She said that when she found out she just “submitted to it” because she did not know what to do. Her mother came from Kenya in 2006 and stayed with her until she left Australia in 2012. She said that her mother was struggling back in Kenya, and unable to contribute anything. She provided her mother’s name and date of birth to the Tribunal. She no longer had regular contact with her.

22. She said that she told the author of the pre-sentence report in 2013 about her mother’s involvement. She had also written an email to the Court, and had spoken to the Australian Tax Office (ATO). She was told there were different handwritings on the TFN documentation. She had not submitted any corroborating material or any statement from her mother because she understood that she could not dispute the convictions.

23. When asked whether it was stressful being charged with these offences, she said that at one point she contemplated suicide. In response to a question she said that she was angry with her mother and that she had lost everything because of it. She said that she was repaying the debt from her social security benefits. She refused to be defined by these offences and believed that she was a person of good character.

    THE GOOD CHARACTER REQUIREMENT

24. In Irving v Minister for Immigration, Local Government and Ethic Affairs (1996) 68 FCR 422, the Full Federal Court considered a challenge to the Minister’s decision to refuse to issue a visa on character grounds. The following passage from Lee J’s judgment has been widely quoted.

    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 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.[17]

    [17] (1996) 68 FCR at 431-432.

25. The Citizenship Processing Instructions (CPI) state that, as a general proposition, a person who is of good character would respect and abide by the law, be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, pay debts to the Commonwealth); not practise deception or fraud in dealings with the Australian Government, for example, concealing criminal convictions; or committing fraud against the Commonwealth such as tax fraud or Centrelink fraud. In some of these areas the applicant has been less than perfect.

26. The CPI underline that decision-makers must be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’; and that a person who may not have been of good character can become a person of good character, and that in most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.[18]

    [18] T3/89; CPI 15, 3.1.

27. The CPI emphasise that in each case the decision-maker is required to make an individualised assessment, and the existence of a criminal record is not of itself fatal to a claim of good character. In making a full assessment the decision-maker should consider information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    POSITIVE MATERIAL

28. When this matter came before the Tribunal on 14 February 2022, I adjourned the hearing to provide the applicant (who was unrepresented) with an opportunity to provide information relating to her domestic circumstances. In focussing on her criminal record alone, I considered that the Tribunal had insufficient material to make a full assessment of her character.  

29. The applicant provided some further background information to the Tribunal in anticipation of the resumed hearing on 28 June 2022. It is apparent that her time is consumed looking after her husband and her son. She has experienced some significant health issues. In September 2021 she suffered a serious reaction to vaccination, leaving her body damaged with skin lesions. As a result she is socially isolated. I also note the statutory declaration dated 22 March 2022 provided by one of her daughter’s friends who said that she had known her for about 15 years and wrote about her caring nature and commitment as a mother.

30. The respondent contended that this material should be given limited weight and was for the most part not relevant to the issue before the Tribunal. I note however that the CPI specifically refers to raising children as a relevant factor and there is little doubt that the applicant performs an absolutely vital role in caring for her two children and her husband. Her dedication and commitment are marks of good character.

    CONSIDERATION

31. The applicant says that her mother used her TFN to obtain employment. There is no evidence to support this claim, apart from her oral evidence to the Tribunal. If her mother did use her identity to work, it is probable that the applicant knew about it. She was a well-educated sophisticated young woman. It is hard to accept that she did not know what was going on. Her statement that she just submitted to it because she did not know what to do has a ring of truth. This was a time of acute stress for the applicant. In 2008, she suffered a relationship breakdown. She was experiencing extreme financial hardship. She was trying to cope with her pre-teen daughter and autistic son. These factors combined to derail what had been, until that time, a successful migrant story and a promising career in banking. Her tertiary studies were well underway and she had completed a substantial part of a commerce degree.

32. The Respondent also provided a supplementary submission relating to the extent to which the Tribunal is empowered to go behind a conviction, citing the case of HZCP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 202 (HZCP). The applicant told both the officer completing the pre-sentence report and this Tribunal that she may have provided incorrect information to Centrelink. There is no basis for calling into question any of the sentencing facts, or the convictions made pursuant to her guilty pleas. The Tribunal must proceed on the basis that the applicant was properly convicted of these offences. There is insufficient evidence before the Tribunal to corroborate any claim of wrongful conviction. The decision in HZCP therefore is inapplicable in this case.

33. The Respondent says that the sentences of imprisonment (albeit suspended) indicate the seriousness of the offending. The pre-sentence report notes that the fact that she was caring for an autistic child meant that she was not an appropriate subject of a Community Sentence Order (CSO), and this may have influenced the court in favour of a suspended period of imprisonment. 

34. The traffic offences are also significant. However, they are the only traffic offences over 17 years of driving in Australia. In relation to the PCA offence, I note that medical records provided by the applicant show that she may have been on a range of medications at the time of the offence. However, there is no medical evidence before the Tribunal as to the likely effect of such factors on the rate of metabolism of alcohol in her body.

35. Except for the PCA matter, she appears to have been of good behaviour (in the sense of having no cognate convictions) since at least 2010. One troubling factor is that her application for Australian citizenship occurred some 4 months after she committed the PCA offence on 28 April 2019. She was, at the time of her citizenship application, subject to the 18 month conditional release order (CRO), requiring her to be of good behaviour. It would be unusual to find a person to be of good character if they are subject to ongoing court supervision. I note that the CRO is no longer in force, the relevant period having concluded on 1 January 2021.

36. The task for the Tribunal is to determine whether the applicant is of good character at the time of the Minister’s decision on the application, which for present purposes is the time of the Tribunal’s decision: see BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [3] per O’Bryan J; VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [32] per Banks-Smith J. In confirming that the relevant time for consideration of the applicant’s character is the time of the Tribunal’s decision, Banks-Smith J noted:

    I also note that the term 'good character' is not defined in the Citizenship Act, which indicates that Parliament intended the term to be used in a broad way and allows the decision-maker to consider a range of events and conduct connected with the applicant: Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128 at [60] (Perram, Yates and Mortimer JJ); and BOY19 at [46]‑[53]. A construction of s 21(2)(h) that does not limit the use of subsequent relevant information is consistent with that intention.

37. Finally, there is the matter of non-disclosure. The application for Australian citizenship by conferral contains a standard criminal record question that all applicants must answer, namely, whether they have been convicted of, or found guilty of, any offences overseas or in Australia. Applicants are asked to include all traffic offences which went to court, including offences declared in their permanent residence application, and any spent convictions.[19] It is important that applicants answer this question correctly and truthfully, because if they do not, their lack of candour may support a finding that they are not of good character, and a person cannot become an Australian citizen without a finding that they are of good character.

    [19] T4/109, 118.

1. She answered the criminal record question in the negative, stating that she had no such convictions. She told the Tribunal that she honestly believed that she was not required to disclose these offences. She believed, as a layperson might, that if no conviction was recorded, then one did not have to include it. She now understands that this is not the law.

2. As to the Criminal Code offences, they happened so long ago and she thought they did not need to be disclosed. She said that she relied on the advice of an acquaintance who claimed some knowledge of immigration law. His advice was that she did not need to disclose the offences because they happened more than 5 years ago. This is of course incorrect. She was undoubtedly naïve and foolish to rely on this casual advice.

   CONCLUSION

3. The Tribunal is required to form a judgment as to whether her dishonest behaviour some 12-14 years ago coupled with the PCA charge and her failure to disclose these offences are, taken together, sufficiently serious to preclude a finding of good character for the purpose of paragraph 21(2)(h) of the Citizenship Act.

4. The PCA offence is undoubtedly serious, as drink driving offences necessarily are, but there is no revealed pattern of irresponsible driving in her record. Apart from the brief period of suspension caused by the PCA offence, she has held a licence since August 2005, when she was granted a provisional driving licence.

5. The conduct involved in the fraud offences occurred than a decade ago. In assessing her character, the date of the conduct that constitutes the offence is important and serves as an anchor point. I am satisfied that this behaviour occurred when the applicant was most vulnerable, and is not an enduring stain on her character. I agree with the applicant that she should not be defined by this offending.

6. As to her lack of candour, I accept that she honestly if mistakenly believed that she did not need to disclose these offences. I am satisfied that some leniency is called for.[20] I am persuaded to do so for the reasons outlined in the next paragraph.

   [20] Alemu and Minister for Home Affairs (Citizenship) [2019] AATA 3352; Hadri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 41.

7. Good character refers to a person’s ‘enduring moral qualities’. A person of good character is neither perfect nor exemplary. Australian society is not funded on such idealistic notions. This is a compassionate society that accepts that people may fail but yet be regarded as of good character. Judgment is nuanced. People can remove the blemish of past failures. This is part of our history. Redemption and forgiveness are powerful motifs in the story of Australia.

8. The care of children is a basic value that underpins our self of sense. The applicant contributes significantly to society by the care that she provides for her children and her husband. She has done so for many years, despite physical and emotional hardships, and the challenges presented by a special needs child. Despite the travails of 2008-2010, and her failures during that period, I am satisfied that, at the present time, she is a person of good character. Her wrongful conduct more than a decade ago should now be forgiven.

   DECISION

9. I find that the applicant is a person of good character and remit the matter to the Respondent for further processing.

I certify that the preceding 46 (forty - six) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 13 September 2022

Date(s) of hearing:	14 February 2022, 28 June 2022
Applicant:	In person
Solicitors for the Respondent:	Mr Kyu-Won Kim, Clayton Utz