Nimpis and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 64
•9 February 2016
Nimpis and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 64 (9 February 2016)
Division
GENERAL DIVISION
File Number
2015/1873
Re
Christos Nimpis
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 9 February 2016 Place Adelaide The decision under review is affirmed.
......................[Sgd]..................................................
Senior Member R W Dunne
CATCHWORDS
CITIZENSHIP – application for Australian Citizenship – good character – application refused on character grounds – criminal record – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Instructions (Cth) issued 1 July 2014
REASONS FOR DECISION
Senior Member R W Dunne
9 February 2016
INTRODUCTION
Mr Nimpis (“applicant”) applied for Australian citizenship by conferral on 25 November 2014.
A delegate of the Minister refused the application on 1 April 2015. This was on the basis that the applicant did not meet the requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“Act”), which requires that the Minister must be satisfied that the applicant is a person of good character at the time of the decision on the application.
The applicant has applied to this Tribunal for a review of the delegate’s decision.
At the hearing, the applicant was self-represented and was assisted by an interpreter. Ms V Greenslade (from the office of the Australian Government Solicitor) appeared on behalf of the respondent Minister. I received into evidence the T documents[1] and the supplementary documents[2] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
[1] Exhibit R1.
[2] Exhibit R2.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the applicant is eligible to become an Australian citizen pursuant to s 21(2) of the Act. The respondent accepts that the applicant satisfies the criteria set out in s 21(2)(a) to (g) inclusive. The only issue in dispute before the Tribunal is whether the applicant is a person of “good character”, pursuant to s 21(2)(h) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen. Section 21(2)(h) relevantly reads:
“Application and eligibility for citizenship
…
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
…”
Section 24 of the Act provides, in part:
“Minister’s decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
…”
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions (“Instructions”) have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”. The Instructions reflect Government policy and are not binding on the Tribunal. However, the Tribunal should have regard to the Instructions unless there is good reason not to do so.[3]
[3] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Paragraph 10.1.2 of the Instructions provides, in part:
“‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.”
This reflects what Lee J in the Full Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs,[4] when he said:
“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.” (citations of authorities omitted).
[4] (1996) 68 FCR 422 at 431-432.
After referring to the judgement of the Court in Irving (supra), paragraph 10.3.1 of the Instructions provides, in part:
“In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
§ characteristics which have been demonstrated over a very long period of time
§ distinguishing right from wrong
§ behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.”
Paragraph 10.5.2 of the Instructions sets out factors that indicate why a person might not be of good character. Those factors include the following:
“Offences
·Has the applicant committed any offences and if so, did they admit that in their citizenship application? …
·If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
ocrimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death).
odrug trafficking (including importation and supply).
o…
· Minor offences include:
o…
otraffic offences which have been included in a criminal record.
ooffences which do not lead to a conviction or a sentence.
How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?
· 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.
Paragraph 10.5.2 of the Instructions also sets out mitigating factors that may be taken into account by the decision-maker in determining whether a person might be of good character in any event. Those factors include the following:
·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application?
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond? …
·Has the applicant rehabilitated themselves? …
· …
·Were there any extenuating circumstances relating to the offence?
·Is there evidence of length of employment, stable family life and/or community involvement or references from independent people attesting to the applicant’s character?
·…”
Paragraph 10.5.4 of the Instructions relates to weighing up the various qualities involved in the good character decision. Paragraph 10.5.4 reads, in part:
“Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.”
CRIMINAL HISTORY
The offender history details of the applicant provided by South Australia Police are as follows:
COURT DATE OFFENCE OUTCOME RESULT Elizabeth MC 1/11/05 Drive unregistered
Drive uninsured
Convicted Fined $50 Elizabeth MC 9/5/07 Producing Cannabis Without conviction Bond $300 to be of good behaviour for 12 months Elizabeth MC 5/9/13 Cultivate Cannabis plant artificially enhanced cultivation
Possess prescribed equipment
Convicted Fined $500
As to the conviction on 1 November 2005, the applicant said that the vehicle was a trailer he used from a friend and did not know it was unregistered. As to the conviction on 5 September 2013, the applicant said that he was growing cannabis for his personal use. He had chronic back pain from a work injury and people had told him that cannabis would help him with pain management.
The summary of offences and disqualifications recorded in the Register of Drivers’ Licenses by the Registrar of Motor Vehicles in the period from 1 January 1985 to 8 June 2013 is as follows:
Date Offence Demerit Points Details (if known) 10/02/87 Exceed speed limit 3 15-29km/h 11/04/87 Exceed speed limit 3 15-29km/h 30/06/87 Exceed speed limit 3 15-29km/h 15/02/88 Exceed speed limit 1 Less than 15 km/h 07/02/91 Exceed speed limit 3 15-29km/h 01/09/91 Exceed speed limit 3 15-29km/h 03/01/92 Fail to keep left 2 22/12/02 Driver fail to wear seatbelt 3 13/12/98 Driver fail to wear seatbelt 3 21/06/98 Driver fail to wear seatbelt 3 20/08/2000 Exceed default speed in built up area 3 15-29 km/h 16/11/2001 Exceed default speed in built up area 3 15-29 km/h 14/01/2002 Exceed default speed in built up area 3 15-29 km/h 09/05/2004 Exceed default speed in built up area 1 Up to 14 Kph 12/06/2006 Exceed signed speed 3 15-29 Kph 05/11/2008 Driver fail to wear seatbelt 3 12/02/2009 Exceed default speed in built up area 1 Up to 14 Kph 18/10/2011 Driver fail to wear seatbelt 3 08/06/2013 Exceed speed limit 3 By 10kpm or more but less than 20kph. GENERAL CONDUCT
When the applicant lodged his application for Australian citizenship, at question 31 of “Part F-Good Character and Criminal Offences” of his application, it appears he indicated that he had been convicted or found guilty of “any offence” by placing a cross in the relevant “yes” box. However, he did not provide any further details or what he did provide was unclear. According to the delegate’s decision, the applicant attended an Australian Citizenship appointment and test, where he decided to change his answer and he selected “no” to question 31. A letter was sent to his address and he was invited to comment on the result of the criminal history clearance.
BACKGROUND AND EVIDENCE
The applicant was born in Greece in June 1960. He was granted a permanent Australian visa, within the meaning of the Migration Act 1998 (Cth), on 30 March 1984. In his application he described his occupation as “labourer”. Included with the application material to this Tribunal, was a written statement from the applicant, together with witness statements from friends (Mary Kalkanis and Simeon Sissis).
The applicant gave evidence about his offender history in the Magistrates Court, particularly why he had been involved in cultivating and using cannabis. He chose to say little about his driving offences.
CONSIDERATION
Is the applicant eligible to become an Australian citizen pursuant to section 21(2)(h) of the Act?
The question in this case is whether the applicant is of good character at the time the Tribunal makes its decision. As Ms Greenslade said, the term “good character” is not defined in the Act. The words should be taken to be used in their ordinary sense, namely, a reference to the “enduring moral qualities of a person, and not 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, while 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. In this context, “moral” does not have a religious connotation.
The phrase “enduring moral qualities” encompasses the following concepts:
a)characteristics which have been demonstrated over a very long period of time;
b)distinguishing right from wrong; and
c)behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. There, behaviour is a manifestation of their essential characteristics.
In Zheng v Minister for Immigration and Citizenship,[5] Deputy President Forgie found the Preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character.
[5] [2011] AATA 304.
The Preamble to the Act sets out the meaning of Australian citizenship:
“… Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.”
After considering the text of the Preamble, DP Forgie[6] stated:
“In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, 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.”
[6] [2011] AATA 304 at [120].
Paragraph 10.5.2 of the Instructions sets out factors that are taken into account in determining whether a person might not be of good character. These factors include any offences that might be committed and, if so, whether the applicant admits the offences in their citizenship application. The offences include those that are minor such as traffic offences included in a criminal record. If there are minor offences committed, how many are involved? Is there only a one-off offence or is there a pattern of criminal behaviour? The Instructions make it clear 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.”
The Instructions note that the character assessment is informed by the applicant’s character during their time in Australia, and it identifies relevant factors to which consideration should be given by decision makers. Relevant in this case is whether the applicant admitted any offences in his citizenship application. It appears that initially Mr Nimpis didn’t, but when he attended an Australian Citizenship appointment and test he decided to change his answer to question 31. In relation to the seriousness of offences, were they a one-off occurrence and has the applicant shown remorse for his conduct? Moreover, what is the length of time since the September 2013 conviction and his application for citizenship?
Of more importance is the applicant’s lengthy traffic history, which comprises 19 traffic offences from 1987 to 2013. Ms Greenslade submitted that this history is significant, having regard also to the repeated charges for cultivating and possession of cannabis in 2007 and 2013. Although the applicant’s recorded criminal history does not include any convictions for which a custodial sentence was imposed, it nevertheless represents a pattern of criminal offending that commenced in 1987 and continued periodically over the next 26 years, culminating in his most recent driving offence on 8 June 2013. In my opinion, this pattern of behaviour, as stated in paragraph 10.5.2 of the Instructions, “shows a disregard for the law and indicates that the applicant may not ‘uphold and obey’ the law if citizenship is conferred upon [him]”.
The question is whether, having regard to the evidence before me, I can be satisfied that, since his last driving offence in 2013, the applicant has been rehabilitated and has reformed such that I can be satisfied that he is now a person “of good character”. In his oral evidence the applicant asserted that he is remorseful for his offending and is a “good person”. However, he has not provided any objective evidence of any positive action taken by him in order to rehabilitate himself, such as counselling. Furthermore, I have serious reservations regarding whether the applicant has fully accepted responsibility for his driving offences. He appeared somewhat indifferent to having committed the offences, as though driving this way was a way of life. It shows a continuing disregard for the laws of Australia and it is contrary to the spirit of the applicant’s plea for citizenship which entails a notion that he should uphold Australia’s laws and values.
The applicant has, however, provided character references. Having considered these, I am of the opinion that relatively little weight should be attached to them because:
(a)each of them was provided by a friend and neither of them can be regarded as truly objective; and
(b)their contents are general and superficial and neither of them indicates that the author has a substantial knowledge of the circumstances of the applicant’s significant criminal history.
Having regard to:
(a)the abovementioned evidence regarding the applicant’s recorded driving history extending over 26 years, demonstrating that he was not a person of good character in that period; and
(b)the absence of any persuasive evidence supporting the proposition that the applicant, since his last driving offence on 8 June 2013, has been rehabilitated and has reformed and re-established his good character,
I am not satisfied that the applicant is presently a person “of good character” within the meaning, and for the purposes, of s 21(2)(h) of the Act.
CONCLUSION
Because the Tribunal is not satisfied that the applicant “is of good character” within the meaning of s 21(2)(h) of the Act, the applicant is not “eligible to become an Australian citizen” under s 21(2) of the Act. It is common ground that subsections (3), (4), (5), (6), (7) and (8) of s 21 of the Act are inapplicable in this case.
Pursuant to s 24(1A) of the Act, therefore, the applicant’s application for Australian citizenship under s 21 of the Act must not be approved.
DECISION
For the above reasons, the decision under review is affirmed.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne ......................[Sgd]..................................................
Administrative Assistant
Dated 9 February 2016
Date(s) of hearing 10 November 2015 Applicant In person Advocate for the Respondent Ms V Greenslade Solicitors for the Respondent Australian Government Solicitor
1
2
0