Nyamande and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 4319

Nyamande and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4319 (22 November 2021)
Division:GENERAL DIVISION
File Number: 2021/1303
Re:Peter Nyamande
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:22 November 2021
Place:Perth

The decision of a delegate of the Minister dated 22 February 2021 to refuse the Applicant’s application for conferral of Australian citizenship on the basis that the Applicant did not meet the requirement set out at s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – refusal of a delegate of the Minister to approve the Applicant becoming an Australian citizen – delegate not satisfied that the Applicant was of good character (Citizenship Act s 21(2)(h)) – Applicant is a citizen of Zimbabwe – Applicant has multiple drink driving and traffic offences – effluxion of time since offending – Tribunal not satisfied of Applicant’s good character – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24(1A)
CASES
Ahmed and Minister for Immigration and Border Protection [2018] AATA 4458
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3438
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Marron-Fanning and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 377
Zaya and Minister for Immigration and Border Protection [2017] AATA 366
SECONDARY MATERIALS
Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 15 Assessing character under the Citizenship Act (2021)
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) ch 13
REASONS FOR DECISION
Deputy President Boyle
22 November 2021
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (Minister) dated 22 February 2021. The delegate refused the Applicant’s application for conferral of Australian citizenship on the basis that the Applicant did not meet the “good character” requirement set out at s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (Act).
BACKGROUND
The Applicant is a citizen of Zimbabwe who first arrived in Australia on 14 July 2006 as the holder of a Temporary Work (Skilled) visa (subclass 457). He currently holds a permanent visa.
On 3 August 2020 the Applicant lodged an application for conferral of Australia citizenship.[1]
[1] R1, T13.
The application form for conferral of Australia citizenship asked:
Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?[2]
[2] R1, T13/208.
The Applicant answered that question “No”.
The Applicant has the following convictions:[3]
·22 May 2007 – Excess 0.08% – $600 fine; MDL disqualified 5 months.
·22 May 2007 – Excess 0.08% – $400 fine; MDL disqualified 3 months.
·26 June 2007 – Excess 0.08% – $700 fine; MDL cancelled and disqualified 5 months – prescribed.
·19 September 2007 – Excess 0.05% (Attempt to Drive) – $200 fine.
·19 September 2007 – Fail to stop at stop sign or line – $200 fine.
·19 September 2007 – No driver’s licence (disqualified from holding or obtaining) – $400 fine; MDL disqualified 9 months; previously prescribed – Concurrent.
·13 September 2016 – Drove under the influence of alcohol – $2,500 fine; MDL disqualified 30 months – Concurrent.
[3] R1, T20/282–3.
By letter dated 18 December 2020,[4] the Department of Home Affairs gave the Applicant the opportunity to comment on his criminal record, a copy of which was enclosed with the letter from the Department.
[4] R1, T20/274–83.
In response the Applicant provided four statutory declarations: one declared by himself on 28 December 2020,[5] one declared by a childhood friend on 27 December 2020,[6] one declared by a friend from the Applicant’s church on 28 December 2020,[7] and one declared by the Applicant’s neighbour on 28 December 2020.[8]
[5] R1, T21/284–5.
[6] R1, T21/286–7.
[7] R1. T21/288.
[8] R1, T21/289.
On 22 February 2021, the delegate refused the application.
By application lodged with the Tribunal on 3 March 2021, the Applicant applied to the Tribunal for review of the delegate’s decision.
THE ISSUE
The issue for determination is whether the Applicant meets the good character requirement in s 21(2)(h) of the Act.
THE HEARING AND EVIDENCE
The application was heard on 2 August 2021. The Applicant represented himself and the Minister was represented by Mr A Gerrard of Australian Government Solicitor.
The Applicant was the only witness to give evidence at the hearing. As noted at [8] above, the Applicant had provided a number of witness statements attesting to his good character. These were included in the T documents.
While the Applicant did not provide a formal Statement of Facts, Issues and Contentions, he provided an email on 30 May 2021 which set out his submissions.[9] He also provided:
(a)Rio Tinto travel confirmation printout showing the Applicant’s flights to and from West Angeles from April to July 2021 (A2);
(b)letter from his employer ConsMin dated 11 March 2021 (A3);
(c)letter from ConsMin workshop team leader Paul Gangemi dated 11 March 2021 (A4);
(d)ConsMin payslip (A5);
(e)Birth certificate of the Applicant’s son registered 11 April 1996 (A6);
(f)Certificate of Australian Citizenship of the Applicant’s son dated 8 May 2014 (A7); and
(g)Invitation to Zimbabwe Association of Western Australia Heroes Family Fun Day (handed up at the hearing) (A8).
[9] A1.
In addition to the documents provided by the Applicant, I also had before me a copy of the T documents filed in accordance with the Administrative Appeals Tribunal Act 1975 (Cth) s 37 (R1) and the Minister’s Statement of Facts, Issues and Contentions (R2) (Minister’s SFIC). The T documents included the statutory declarations referred to in [8] above.
At the hearing an issue as to the blood alcohol content requirements for driving under the influence arose. As a result, I made orders at the conclusion of the hearing that by 3 August 2021, the Minister provide written submissions on that issue and that the Applicant have leave to file any reply within seven days of receipt of the Minister’s submissions. The Minister filed his submissions on 3 August 2021 and the Applicant filed his submissions on 7 August 2021.
LEGISLATIVE FRAMEWORK
Section 21(2)(h) of the Act provides:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) ...
(h) is of good character at the time of the Minister's decision on the application.
Section 24(1A) of the Act provides:
(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)…
The Department has, from time to time, issued documents setting out, amongst other things, the executive policies relating to, and procedures to be followed in applications for citizenship.[10] The primary executive policy document is the Citizenship Policy.[11]
[10] For a discussion on the different documents falling into these categories see Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3438 at [20]–[32].
[11] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016).
Chapter 11 of the Policy deals with character as that term is used in the Act, and, more particularly, what is meant by “good character”. The overview of ch 11 describes its purpose as follows:
... Good character is not defined in the Act. The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define for administrative purposes, the meaning of ‘good character’
It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issue of character until they are ‘satisfied’, on a reasonable basis that the applicant is, or is not, of good character.[12]
[12] Policy ch 11, 144.
The Policy provides:
What is good character
‘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.
...
The term ‘good character’ is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) [1996] FCA 663; 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 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 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.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
...
Characteristics of good character
Drawing from the definition outlined in Definition of good character, an applicant of good character would:
§respect and abide by the law in Australia and other countries
§be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
§be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
§providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications…
§concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship…
§not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)[13] …
[13] Policy 145–7.
CONSIDERATION
As the Policy notes, the term “good character” is not defined in the Act. I must have regard to the ordinary meaning of the words in assessing good character: Irving v Minister for Immigration, Local Government and Ethnic Affairs[14] at [94].
[14] (1996) 139 ALR 84.
Justice O’Bryan in BOY19 v Minister for Immigration and Border Protection,[15] having reviewed relevant authorities, summarised at [51] the relevant considerations as follows:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.
[15] [2019] FCA 574.
In Kakar v Minister for Immigration and Multicultural Affairs[16] Deputy President Wright stated at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
[16] [2002] AATA 132.
The Minister also referred in his submissions to ch 15 of the Revised Citizenship Procedural Instructions[17] which notes that the seriousness of the offence, patterns of behaviour, the length of time since the offences, the expression of remorse, the age at the time of offending and the personal circumstances of the applicant at the time of the offence and time of the decision are all relevant matters which may be considered in determining if an applicant if of good character.
[17] Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 15 Assessing character under the Citizenship Act (2021).
There is no formula for determining whether sufficient time has passed following an offence: Assafiri v Minister for Immigration and Border Protection.[18] Each case is entirely dependent on the facts and circumstances of the offending and the actions taken by an applicant since that time.
[18] [2014] AATA 35.
Over a relatively short period of some five months in 2007, the Applicant was convicted of six offences involving motor vehicles, including four for driving with excess blood alcohol levels. In 2016 he was again convicted of driving with an excess blood alcohol level (see [6] above).
The Tribunal has consistently regarded driving offences, and particularly those involving alcohol, as serious: Marron-Fanning and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[19] Ahmed and Minister for Immigration and Border Protection;[20] Zaya and Minister for Immigration and Border Protection;[21] Apire and Minister for Immigration and Border Protection.[22]
[19] [2021] AATA 377.
[20] [2018] AATA 4458.
[21] [2017] AATA 366.
[22] [2014] AATA 193.
In Apire the Tribunal noted at [16]:
Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection at [7] – laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values.
The above passage was cited with approval by Deputy President Kendall in Zaya and Minister for Immigration and Border Protection[23] at [54] as follows:
… There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.
[23] [2017] AATA 366.
More recently, Senior Member Illingworth in Marron-Fanning at [124], referring to Deputy President Kendall’s above remarks in Zaya, said that he:
… respectfully agrees with and adopts the Deputy President’s remarks. Driving a motor vehicle whilst under the influence of alcohol or with a PCA exceeding the statutory limit is not offending which can be trivialised. Too often members of the community are devastated by the consequences of injury or loss of life occasioned by those who drive motor vehicles in such circumstances.
The Minister accepts that the most recent offence occurred nearly five years ago and the remaining offences over 13 years ago. The Minister contends, however, that the effluxion of time since the most recent offence should not be given significant weight in circumstances where the Applicant has repeated the very same offences despite a significant period without any further offences.
The Minister further contends that while the Applicant has said that he has taken steps to ensure that he is not in the same situation (for example, by only drinking when there is a designated driver and using taxi services otherwise), the evidence shows that these measures did not prevent the Applicant from reoffending. The Minister submits that the evidence shows that on 25 July 2016, the Applicant used an Uber to return to his home, however, this was two months prior to the Applicant’s 2016 drink driving conviction. It is apparent that the changes the Applicant has made are not such that he can be considered to only have a low risk of engaging in the same behaviour again.

The Applicant addressed that claim in his submissions.[24] He said that he thought that the driving offence for which he was convicted in September 2016 “could have” occurred before his using the Uber in July 2016. I accept that that may well have been the case.
[24] A1.
The Minister acknowledges that the Applicant has expressed remorse for his actions. However, according to the Minister, the expression and genuineness of that remorse has only been realised in retrospect and in light of the Applicant now appreciating the significance and consequences of his actions. Furthermore, it is of concern, according to the Minister, that the Applicant failed to declare his convictions on his application for citizenship and that this casts a shadow over his expressions of remorse and his character in general.
The Applicant’s evidence at the hearing was that he has been involved with his church and the Zimbabwe Association of Western Australia. That is obviously a positive indicator, however, as the Minister points out, that involvement was present at the time that the Applicant committed the drink driving and other driving offences. The Applicant has, in the Minister’s view, not made any substantial changes in his behaviour which have prevented him from re-offending (as opposed to minimising his risk of re-offending) and, that as a result, the Tribunal cannot be satisfied that the Applicant is, at this point in time, of good character. The Minister submits that a longer period is required to ascertain whether the Applicant’s convictions have had a salutary effect.
The Applicant contends that his age at the time of his offending and “his change of character because a lot [has] happened in [his] life” since then should be considered.[25] He points to his increased family responsibilities, looking after his grandchildren and taking his daughter to and from school. I do take those factors into account.
[25] A1.
The other matter that is raised by the Minister going to the Applicant’s character, is his failure to disclose the multiple driving convictions in his application for citizenship (see [4] and [5] above). The Applicant’s evidence at the hearing was that he thought that the question required disclosure of only criminal offences. He provided a similar explanation to the Department in December 2020.[26] I have difficulty accepting that. The question specifically refers to traffic offences, although it does, confusingly, refer to “traffic offences which went to court”. The qualification of “which went to court” makes what would otherwise be a clear question, unclear and potentially confusing. Surely the relevant issue is the seriousness of the traffic offence, not whether it “went to court” (whatever that means). Looking at the Applicant’s Criminal Intelligence Commission Check Results Report[27] one cannot tell whether a charge that resulted in a conviction “went to court”. While the conviction date and court are noted on the record, it is my understanding that that would also record when a plea of guilty is filled in and posted into the court. Is that a charge “which went to court”? It could also be considered that all convictions “go to court” as it is only courts that can convict.
[26] R1, T21/284.
[27] R1, T20/282–3.
In the end, however, the Applicant’s explanation was not that he was confused by the ambiguity created by the words “which went to court”, but rather that he thought that he only had to disclose criminal convictions. He has not, in my view, been fully truthful in his dealings with the government, by providing false personal information or concealing relevant convictions which could lead to the refusal of citizenship contrary to the test for good character under the Policy (see [20] above).
I acknowledge the support that the Applicant has from those who have provided supporting statements as to his character, his work ethic, reliability and his positive contribution to the community (see [8] above). I also accept that the Applicant’s offending has been limited to traffic offences over a relatively short period in 2007 and a further similar offence in 2016, some five years ago.
However, I accept the Minister’s contention that at this time I cannot be satisfied that the Applicant is of good character. The Applicant was not young when he committed the multiple offences in 2007 and I do not accept as an excuse that these offences were the result of his not understanding cultural differences between Zimbabwe and Australia. Perhaps one instance of drink driving in that period could be so excused, but not four, and it certainly does not excuse the further drink driving offence in 2016. That conduct, in my view, demonstrates a lack of respect for the law and other members of the community.
I do not consider that sufficient time has passed since the Applicant’s offending and his failure to disclose his traffic convictions in his application for citizenship for me to be satisfied that he is of good character at this time for the purpose of s 21(2)(h) of the Act. The Applicant’s personal circumstances have not changed to such a degree that I could be so satisfied. In finding this, I am also mindful of Deputy President Breen’s statement in Fenn v Minister for Immigration and Multicultural Affairs[28] cited in the Policy quoted at [21] above, in particular that:
The refusal does not deprive [the Applicant] of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
[28] [2000] AATA 931.
DECISION
The decision of a delegate of the Minister dated 22 February 2021 to refuse the Applicant’s application for conferral of Australian citizenship on the basis that the Applicant did not meet the requirement set out at s 21(2)(h) is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 22 November 2021

Date of hearing: 2 August 2021

Applicant: In person

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	2 August 2021
Applicant:	In person
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor