Nikaghanri and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 259
•6 March 2025
Nikaghanri and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 259 (6 March 2025)
Applicant/s: Tuoyo Clement Nikaghanri
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/3482
Tribunal:General Member Gallagher
Place:Perth
Date:6 March 2025
Date of written reasons: 13 March 2025
Decision:The Tribunal affirms the decision under review.
..............................................[SGD]..........................
General Member Gallagher
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –Australian Citizenship Act 2007 s 24(2)(h) – whether Tribunal satisfied Applicant was of good character – citizen of Nigeria – Applicant separated from wife– false information provided to the Department – false information provided to the Tribunal – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 24(2)(h)
Statement of Reasons
An oral decision was issued at the conclusion of the hearing held in the Perth Registry on 6 March 2025 with a note that written reasons would be provided in a reasonable time. These are those written reasons.
Application for Review
The Applicant seeks review of the decision of the Delegate of the Respondent dated 31 May 2024[1] (the Reviewable Decision) to refuse the Applicant’s application for citizenship by conferral under section 24 of the Australia Citizenship Act 2007 (Cth) (the Act).
[1] R2, T22.
The basis for this refusal was that the Delegate was not satisfied that the Applicant was of good character as required under section 21(2)(h) of the Act.
The Application for Review was made on 31 May 2024[2] in accordance with section 52(1)(b) which allows applications to be made to the Administrative Review Tribunal (the Tribunal) under section 24 of the Act.
[2] R2, T2.
The background of this matter is set out comprehensively in the Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at paragraphs [4] – [17], and is sufficient for the purposes of the decision. Similarly, the legislative and policy framework is set out sufficiently and comprehensively in the RSFIC at paragraphs [20] – [30].[3]
[3] R1, pages 1 – 4; and pages 5 – 7.
The issue for review by the Tribunal is whether the Tribunal is satisfied as to the Applicant’s good character for the purposes of section 21(2)(h). This issue is discrete.
The Hearing and Evidence
The hearing was held on 6 March 2025 and was conducted by video. The Applicant was self-represented and appeared by Microsoft Teams. The Respondent was represented by Mr Samuel Woods of Sparke Helmore, who also appeared by Microsoft Teams.
The Applicant gave oral evidence and was cross-examined.
The following materials were tendered as exhibits by the Applicant:
(a)Statement of Attainment "Operate a Personal Computer" dated 9 September 2008 filed 31 July 2024 (Exhibit A1);
(b)Statement of Attainment "Follow Workplace Safety Procedures" dated 10 July 2008 (Exhibit A2);
(c)Statement of Attainment "Course in Safety Awareness Training" dated 4 May 2009 (Exhibit A3);
(d)Completion Certificate "Think First Cognitive Skills" dated 15 December 2010 (Exhibit A4);
(e)Statement of Academic Record dated 22 July 2010 (Exhibit A5);
(f)Statement of Attainment "Apply First Aid" dated 13 July 2008 (Exhibit A6);
(g)Statement of Academic Record dated 14 July 2011 (Exhibit A7);
(h)Certificate "AMA Apply First Aid" dated 12 June 2011 (Exhibit A8);
(i)Notice of amended assessment - year ended 30 June 2017 (Exhibit A9);
(j)Letter from Adam Smith, undated (Exhibit A10);
(k)Letter from Alesha Thompson dated 28 July 2024 (Exhibit A11);
(l)Letter from Allan Bliss dated 31 July 2024 (Exhibit A12);
(m)Letter from Avinesh Kumar dated 24 May 2024 (Exhibit A13);
(n)Letter from Mohamed Ali Abbas dated 9 July 2024 (Exhibit A14);
(o)Letter from John Heath dated 12 August 2024 (Exhibit A15);
(p)Letter from Amit Londhe dated 4 July 2024 (Exhibit A16);
(q)Statutory Declaration of Applicant with Annexures A and B dated 16 August 2024 (Exhibit A17);
(r)Cover email and photographs dated 19 August 2024 (Exhibit A18);
(s)Email from Applicant dated 6 September 2024 (Exhibit A19);
(t)Email from the Applicant dated 7 October 2024 titled '2024/3842 Subject. Response to Statement of Facts Issues and Contentions” (Exhibit A20);
(u)Email from the Applicant dated 7 October 2024 titled 'Index Tender Bundle' (Exhibit A21);
(v)Photo of Forrestfield United Football Club (Exhibit A22);
(w)Gift Card and Photo from Under 15s Football Team (Exhibit A23);
(x)Email from Australian Red Cross Lifeblood dated 27 February 2025 (Exhibit A24).
The following materials were tendered as exhibits by the Respondent:
(a)Statement of Facts, Issues & Contentions filed 2 October 2024 (Exhibit R1);
(b)T-Documents T1 - T27, comprised of pages 1 - 93 filed on 28 June 2024 (Exhibit R2);
(c)Tender Bundle TB1 - TB17, comprised of pages 1 - 259 filed 23 September 2024 (Exhibit R3).
The Tribunal is satisfied that all evidence was before it and both parties were given the opportunity to address all the evidence orally and in writing.
The Tribunal heard evidence from the Applicant that:
(a)He had made a ‘stupid mistake’ 17 years ago that affected him in ways he cannot even express.
(b)He has learnt from his mistakes. In the past, he was naïve and didn’t think before acting.
(c)All that he can do now is change his ways, which he has done.
(d)The Applicant stressed on numerous occasions that he is a father of four children and wants to be a good example to them.
(e)He is asking the Tribunal not to judge him on his past and give him a chance for his future.
The Applicant told the Tribunal that the false information provided on his application for citizenship was a very honest mistake, and the Applicant stressed that he was in his twenties when he made those mistakes.
Initially, the Applicant told the Tribunal that apart from his 2009 convictions, he had never been to court. Later during cross-examination, the Applicant confirmed that he was mistaken and had been to court since that time for traffic offending.
During cross-examination, the Applicant gave evidence that:
(a)He was not currently working and had last worked in 2023 in logistics.
(b)He had divorced his wife two years ago.
(c)He had enrolled in Curtin University in 2012, where he did not graduate and did not complete any units.
When asked about income streams, the Applicant initially advised that he did day trading, but later confirmed he was receiving Job Seeker on Centrelink and has been educating himself on day trading on and off for two years.
The Applicant also said:
(a)He has not seen any of his children for two years, and does not have day to day care of them.
(b)There are Family Court orders in place and a Family Court case coming up.
(c)The Applicant was in court in February of this year and self-represented in those matters.
When directed back to income, the Applicant indicated he does not ‘know what he is doing yet’ and that he is not making any money on day trading yet. The Applicant said that Government support is insufficient, and he is receiving inconsistent support from friends, living from week to week and just ‘surviving.’
The Applicant confirmed that his blood donation was the first donation he had ever given.
When taken to matters regarding offending, the Applicant accepted that he was convicted in 2009[4] regarding conduct relating to 2006 – 2008, found guilty by jury trial and had no issues with his conviction.
[4] R2, T14.
The Applicant accepted that he had held several passports and posed as several individuals related to this offending and communicated with victims posing as those several individuals.
The Applicant accepted that this offending involved dishonesty and a number of victims and that he’d served his term of imprisonment until February 2014.
The Respondent directed the Applicant to a number of documents in R2 relating to his having been formally warned but not ultimately decision not to cancel his Resident Return visa.
It was also established through questioning that the Applicant did in fact refer to his previous convictions when applying for that visa.
When asked about his family situation, the Applicant first indicated he had just gotten divorced recently, and that his relationship issues had started earlier this year. He explained that his wife and children went on holiday to Malaysia and never came back. The Applicant said they have not been back to Australia for 2 years.
The Applicant indicated that last year, his wife lodged the first documents in Florida, and indicated that when his family left in November 2022 they had gone to Japan, Malaysia and America.
When taken to R2, T15, page 114 paragraph [2], in reference to the Applicant’s family responsibilities and when it was put to the Applicant that is children were not in Australia and what that meant for their relationship, the Applicant explained that he sent money to his children every week. The Applicant disagreed that his support was isolated to financial support. The Applicant accepted that he did not visit his family, but would talk to them and everything was fine until last year when his relationship ended in either June or July, when calls stopped coming from his wife and his wife advised she did not want to be in the marriage any longer.
When it was put to the Applicant that his statement surrounding his family was not entirely accurate, the Applicant disagreed that his statement did not reflect the full scope of the family situation at the time.
The Tribunal struggled to reconcile some of the dates that were put forward by the Applicant when he was taken to a number of additional matters such as the time when the paperwork came in relation to his divorce, in the face of the evidence that the Applicant has given that his wife ‘wants it back now,’ ‘it’ being the marriage.
When taken to R3, pages 45 – 50, containing statements talking about the love and support the Applicant’s wife gave to him, the Applicant gave evidence that the makers of those statements knew that his wife and family weren’t in town but weren’t aware of relationship troubles he and his wife were having at the time.
For example, when the Applicant was asked why the international family court proceedings would be continuing if his wife intended to come back to him, and when the proposition was put that there are some contrasts in this evidence in this regard he gave evidence that his wife called him to say she had been diagnosed with cancer in Florida, and determined this came after 2023 after a number of questions.
The Applicant advised his wife sold his house without him knowing, and after a series of questions, this sale was determined to be in December 2023, which the Applicant become aware of in January 2024.
The Applicant advised his wife has a sister in Florida.
When the family situation was put to the Applicant - by way of summary, that the Applicant’s wife and family did not return to Australia, they live in Florida and that the Applicant maintained his relationship with his wife and children until July 2024 and divorce had been finalised – and he was given numerous opportunities to think of the date of his divorce, the Applicant indicated he was not sure when his divorce with his wife was finalised. The Applicant gave evidence that as recently as yesterday, his wife wanted to come back to him.
When the Respondent put to the Applicant that the dates and time frames surrounding this were inaccurate, difficult to reconcile, and do not provide full insight into these matters at the date he provided them, the Applicant maintained that everything he said is the truth.
When the matter of credibility was discussed between the Applicant and Respondent, including that an element of the matter is in relation to the Applicant’s honesty, and that there must be a question of credibility and honestly of answers given in the past, the Applicant accepted that his ‘credibility is not good because of his past.’
When asked about employment plans beyond day trading aspirations, the Applicant said he had been offered many mining jobs although he had received no formal job offers.
When asked about rehabilitation, the Applicant said that in prison he did forklift training and first aid, but as for specific rehabilitation targeted to offending, the Applicant pointed to ‘Think First’ and was a cleaner in prison.
The Applicant said that he has not participated in further rehabilitation since his prison term because he is ‘fine,’ although he indicated that he has mental health issues currently and is seeing a psychologist[5] for depressive symptoms. The Applicant said that engaging with this type of rehabilitation has helped him a lot recently although he has not accessed Reach Out or Headspace as recommended by his psychologist and that as recently as yesterday his general practitioner advised he should contact MindSpot GP, with whom he has not engaged as of yet.
[5] A16.
The Applicant stressed in closing that he had no criminal record prior to coming to Australia, believes people are trying to judge him based on his past, and stressed once more that he has changed as a father and a person and has been giving back to the community and understands being a citizen is a privilege.
The Respondent provided detailed written submissions in the RFIC paragraphs [31] – [40] and beyond in the conclusion at [41] – [43].[6]
[6] R1, pages 7 – 11.
The Respondent indicated that the Minister continues to rely on those written submissions and additionally at hearing.
There are two discrete issues for the Tribunal to consider:
(a)The Applicant’s historic convictions; and
(b)The Applicant’s dishonesty in his dealings with the Department.
To re-iterate the Respondent’s submissions – and noting them with agreement:
(a)The Applicant continued to offend after the 2009 offending with minor driving offences that the Minister considers weighs against a finding of good character;
(b)The Applicant’s was dishonest with the Department;
(c)The Applicant knowingly provided false information on his citizenship application;
(d)The Tribunal should reject the Applicant’s explanation of how this false information became apparent, and it does so.
The provision of false information is a serious matter and the Tribunal agrees with the Respondent’s submission that this was not a mere mistake as the Applicant previously declared his offences in his visa application.
Based on the history of the Applicant’s dishonest conduct, and importantly his failure to explain this reasonably was very apparent orally at the hearing, the Tribunal agrees with the Respondent that there is commonality between the dishonesty to the Department and the answers to the Tribunal today and this should and does weigh very heavily against the Applicant.
The Tribunal agrees with the submission of the Respondent that the Applicant’s evidence in support, for example the contributions regarding soccer coaching and other aspects that he has provided be given minimal weight.
The character references provided show limited understanding of the Applicant’s offending and in particular the Applicant’s family situation apparent from the oral evidence given before the Tribunal.
In the Tribunal’s view, this is relevant given the Applicant’s submissions regarding the important of his family and how his relationship with his family goes to his character.
There is little evidence before the Tribunal of rehabilitation in relation to the Applicant’s offending. There is evidence about courses such as First Aid, but the Tribunal does not say that these are targeted toward the offending which has gone to the Applicant’s character assessment.
The Tribunal notes that engagement in courses of this nature has not continued beyond his release.
It is the Applicant’s contention that he is a new man. The Tribunal is not saying that this is not the case but is saying that the matter before it looks at his character today and not in the future.
The Tribunal makes the additional points that of the character witnesses, none make specific reference to the circumstances which resulted in the finding that the Applicant was not of a good character so while the Tribunal does note that there are two letters that reference the Applicant not being of good character[7] it does not go to the extent that the Tribunal says it needs to in referring to offending to show understanding of circumstances.
[7] See A12 and A14.
None of the referees were made available to give evidence at the hearing and the Applicant’s wife did not provide a statement or otherwise make herself available. The evidence remains untested in that regard, and so limited weight can be given to these references for that reason.
For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character under section 21(2)(h) of the Act, and as the Tribunal mentioned earlier that is the sole issue that is before it, and being so the Reviewable Decision is affirmed.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
................[SGD]..........................................
Associate
Dated: 13 March 2025
Date of hearing: 6 March 2025 Applicant’s Representative: Self-represented Respondent’s Representative: Mr Samuel Woods, Sparke Helmore
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