Okafor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 4347
•14 December 2022
Okafor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 4347 (14 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/6740
Re:Kingsley Okafor
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Dr Linda Kirk
Date:14 December 2022
Place:Sydney
The decision under review dated 13 September 2021 is affirmed.
.................................[SGD].......................................
Senior Member Dr Linda Kirk
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – citizenship application refused – Australian Citizenship Policy Statement – Citizenship Procedural Instruction 15 – whether the Applicant is a person of good character – whether the Applicant has enduring moral qualities – whether conviction can be considered spent – decision affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Crimes Act 1914 (Cth)
Criminal Records Act 1991 (NSW)Migration Act 1958 (Cth)
Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Belhake and Minister for Home Affairs (Citizenship) [2019] AATA 4472
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
KKHS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 204
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Obele and Minister for Immigration and Citizenship [2010] AATA 58
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sharma and Minister for Immigration and Border Protection [2015] AATA 608Umer and Minister for Immigration and Border Protection [2018] AATA 1630
Secondary Materials
Australian Citizenship [Policy Statement] (27 November 2020)
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)
REASONS FOR DECISION
Senior Member Dr Linda Kirk
14 December 2022
INTRODUCTION
Mr Kingsley Okafor (‘the Applicant’) is a citizen of Nigeria who was born in 1973. He first arrived in Australia on 28 October 2002 as the holder of a Class BN Subclass 136 (Skilled-Independent) visa (‘the visa’).[1]
[1] Section 37 T-Documents, T2, 15.
On 17 November 2009, the Applicant’s visa was cancelled under s 501 of the Migration Act 1958 (Cth) (‘the Migration Act’) by a delegate of the Minister (‘the Respondent’) on the basis of his convictions for the offences of Import prohibited import (cocaine) (two counts) and Attempt possess prohibited import (cocaine) (one count), for which he was sentenced to 10 years imprisonment, with a non-parole period of six and a half years. On 19 January 2010, the decision was set aside by the Administrative Appeals Tribunal (‘Tribunal’) on review,[2] and the Respondent’s application to the Federal Court on a question of law was unsuccessful.[3]
[2] Obele and Minister for Immigration and Citizenship [2010] AATA 58.
[3] Minister for Immigration and Citizenship v Obele [2010] FCA 1445.
On 24 January 2011 and 26 May 2016 respectively, the Applicant was granted a Resident Return (Subclass 155) Visa (‘Resident Return Visa’). He remains the holder of a more recently granted Resident Return Visa.[4]
[4] Section 37 T-Documents, T2, 15.
On 19 September 2013, the Applicant made an application for Australian Citizenship (‘the first citizenship application’) under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’). The first citizenship application was refused by the delegate on 3 December 2013 on character grounds.[5] This decision was affirmed by the Tribunal on review on 24 March 2015.
[5] Ibid.
On 2 July 2019, the Applicant made another application for Australian Citizenship (‘the second citizenship application’).[6]
[6] Section 37 T-Documents, T6.
On 11 August 2021, the Department wrote to the Applicant inviting him to comment on adverse information; namely, the offences listed in his Check Results Report dated 11 August 2021.[7] The Department also invited the Applicant’s comment as to why he had failed to disclose his offences on his incoming passenger card when entering Australia on 25 April 2021.[8]
[7] Section 37 T-Documents, T10, 152-153.
[8] Section 37 T-Documents, T10.
The Applicant responded to the invitation to comment on several occasions, outlining why he considered the second citizenship application should not be refused.[9]
[9] Section 37 T-Documents, T11, T12, T13.
On 13 September 2021, the delegate refused the Applicant's second citizenship application on the basis that he failed to satisfy the good character requirement in paragraph 21(2)(h) of the Act.[10]
[10] Section 37 T-Documents, T2.
On 18 September 2021, the Applicant applied to the Tribunal for review of the delegate’s decision.[11]
[11] Section 37 T-Documents, T1.
The review was heard in Sydney on 7 July 2022. The Applicant attended the Tribunal hearing in person and was self-represented. He gave oral evidence and was cross-examined. The Applicant was assisted by an interpreter in the Igbo language.
The following documents were before the Tribunal:
·Respondent’s Statement of Facts, Issues and Contentions dated 21 April 2022 (‘RSFIC’);
·Section 37 T-documents (T1-14, pages 1-200);
·Supplementary T-documents (ST1-ST4, pages 1-259);
·Applicant’s submission with attachments dated 26 April 2022; and
·Applicant’s statement dated 10 May 2022.
LEGISLATIVE FRAMEWORK
The ‘good character’ test
The issue before the Tribunal is whether it is satisfied that the Applicant is of ‘good character’ in accordance with paragraph 21(2)(h) of the Act which provides:
(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.
The term ‘good character’ is not defined in the Act. The Full Court of the Federal Court has found the term is to be interpreted broadly:[12]
… Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…
[12] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, [60].
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
The Australian Citizenship Policy Statement (‘Policy Statement’)[13] and the Revised Citizenship Procedural Instructions (‘CPIs’)[14] guide decision-makers exercising powers and discharging functions under the Act.
[13] Issued 27 November 2020.
[14] Reissued 26 February 2021 – current version dated 14 August 2022.
The role of the Policy Statement and CPIs is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply policy as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry:[15]
Policy is not law. A statement of policy is not a prescription of binding criteria.
[15] (1985) 8 ALD 366 at [21].
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[16]
[16] (1979) 2 ALD 634 at [645] per Brennan J.
Relevant to this review application is Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (‘CPI 15’). Paragraph 1 of CPI 15 states that decision makers ‘should not apply policy inflexibly and should consider the merits of each individual case’.
Paragraph 3.1 of CPI 15, under the heading ‘Procedural Instruction’, states:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
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.
The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.
Paragraph 3.3 of CPI 15 explains the meaning of ‘good character’ with reference to the judgment of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[17]
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.
[17] Paragraph 4.3 citing Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432.
Paragraph 3.3 provides guidance as to the meaning of the term ‘enduring moral qualities’:[18]
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
[18] Paragraph 4.3.
It also emphasises that in assessing good character it is necessary to view the applicant’s circumstances holistically:
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Paragraph 4 of CPI 15 provides the characteristics that are generally expected to be exhibited by a person of good character:
4. An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·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, or other organisations, for example
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o other material deception during visa and citizenship applications;
o evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
o knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
o concealing criminal convictions;
o fraud against the Commonwealth such as tax fraud or Centrelink fraud;
o giving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other 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.
Paragraph 5 of CPI 15 relevantly provides that a decision not to cancel a visa on character grounds does not bind a decision-maker considering a citizenship application:
A decision by the Minister or a delegate not to refuse to grant a visa on character grounds, or a decision not to cancel a visa on character grounds, does not bind a citizenship decision-maker. The citizenship decision-maker should obtain the applicant’s migration and visa cancellation files and give fresh consideration of the character issues.
Paragraph 12 of CPI 15 sets out a framework for the consideration of any criminal offences:
12. Offences
12.1 Were offences disclosed if the applicant has a criminal record?
The current citizenship application, previous citizenship applications, visa applications and passenger card declarations may also be checked for an acknowledgement of criminal convictions.
Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. With convictions by overseas courts it may be necessary to take account of the independence of the judiciary in the particular country.
The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).
If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.
If the applicant has committed an offence, was it serious offence? For example:
·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death);
·war crimes, crimes against humanity, genocide;
·crimes against children;
·drug trafficking (including importation and supply);
·people smuggling;
·fraud (including identity fraud);
·harassment or stalking;
·terrorist activity;
·extortion;
·illegal pornography, including child pornography;
·breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
·offences incurring prison sentences of 12 months or more.
Cases involving a finding of not guilty by reason of mental impairment should be discussed with CICH prior to a decision being made.
Minor offences may include:
·shoplifting;
·some traffic offences that have been included in a criminal record. An ‘on the spot’ fine would usually have little weight in a character assessment, unless the applicant has a history of such fines. This disregard for the law may be relevant to the assessment of character;
·offences that lead to a finding of guilt but no conviction or sentence. In each Australian jurisdiction there are sentencing arrangements for summary offences (heard by a judge alone) where there is discretion not to record a conviction. A judge may take into account whether the offending is trivial, the antecedents of the offender, whether the chance of rehabilitation is high or it is otherwise appropriate to not record a conviction. Refer to CPI 33 – Prohibitions on approval.
Paragraph 12.2 of CPI 15 provides guidance to decision-makers in considering criminal convictions recorded against an applicant:
12.2 Assessing the relative seriousness of the offence
Consider the length of the sentence. Longer sentences carry more weight on a person’s character.
Are there any ongoing obligations such as a good behaviour bond?
Note: Subsection 24(6) of the Act prohibits citizenship being approved in such circumstances. Refer to CPI 33 – Prohibitions on approval.
Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information (parole reports may be on the s501 visa cancellation file, should such a file exist). In some cases, victim impact statements may be relevant.
It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, outlaw motorcycle gangs or youth gangs.
Consider whether there were victims of the offence?
If so, were the victims children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?
Is there a pattern of criminal behaviour?
A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.
Was the offence pre-meditated?
Sentencing remarks or court transcripts may provide insight into whether or not the judge was of the view that the offence was pre-meditated. That is, the person planned the offence. Pre-meditated offences would usually incur a heavier sentence, and therefore be given more weight in the assessment of character.
Paragraph 14 of CPI 15 provides a framework for decision-makers in weighing information:
14. Weighing information
In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:
·characterise the nature of any offence or behaviour
·is the offence serious or minor?
·did the offence harm other people?
·who were victims?
·is there a pattern of behaviour?
·was it a one off incident?
·were there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
·length of time since the offence was committed
·age at time of offence
·behaviour since completing prison sentence or obligations to court
·remorse regarding their offending behaviour
·community support (referee reports etc)
·changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
Paragraph 14.1 of CPI 15 outlines ‘mitigating factors’ relevant to the assessment of good character:
14.1 Mitigating Factors
Could the applicant be of good character despite the adverse information?
The discussion below expands on the points made above. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.
What is the length of time since the offence and conviction?
There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.
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?
There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.
What was the applicant’s age at the time the offence was committed?
If the applicant committed the offence at a young age, the offence may be given less weight. The person may have matured and gained greater respect for upholding the law, and criminal offences from that period of life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences.
Were there any extenuating circumstances relating to the offence?
An offence committed as a result of duress or psychological disturbance (including disturbance caused by medications other than recreational drugs), may be given less weight. Any claims of mental illness should generally be supported by a report from a psychiatrist or psychologist. Decision-makers should discuss such cases with their supervisors and consult Citizenship Operations if necessary.
Is there any other evidence that the person is of good character?
Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.
Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.
It is open to decision-makers to contact individuals who have provided a referee report for the applicant.
Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose.
Paragraph 14.2 of CPI 15 guides decision-makers in weighing up the evidence:
14.2 Weighing up the evidence
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
·Would a person of good character behave the way the applicant did?
·What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
·Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
·Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
·Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
·Are there any other factors that are relevant to an assessment of the applicant’s character?
…
A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.
If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years. Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.
Paragraph 14.2 refers to Tribunal’s decision in Prasad and Minister for Immigration and Ethnic Affairs where it stated: [19]
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
[19] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
ISSUES FOR DETERMINATION
The sole issue for determination by the Tribunal is whether the Applicant satisfies the ‘good character’ requirements of paragraph 21(2)(h) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant was born in Nigeria in 1973. He first arrived in Australia on 28 October 2002 as the holder of a Class BN Subclass 136 (Skilled-Independent) visa with his first wife, who was the primary visa applicant.
Marriages and children
The Applicant told the Tribunal that his marriage with his first wife ended in around 2009.[20] He married his second wife, SC, in May 2013.[21] The Applicant and SC divorced in 2020.[22] The couple have two children, born in 2013 and 2016.[23] The children live with SC in Sydney.[24] He sends money to SC for the children on a weekly basis.[25] He speaks to his children on the phone, and prior to COVID he was seeing them every two weeks in accordance with the custody agreement.[26] He last met up with the children three weeks prior to the hearing.[27]
[20] Transcript, 10.
[21] Transcript, 11.
[22] Ibid.
[23] Transcript, 12.
[24] Transcript, 13.
[25] Transcript, 15, 61.
[26] Transcript, 62.
[27] Transcript, 64.
The Applicant told the Tribunal that he has another child, a son who was born in January 2022. He visited Nigeria in 2021 and married a woman who was pregnant with their son when he departed Nigeria in April of the same year.[28] He explained that they are not yet formally married, but they have completed the traditional rights for the marriage.[29] He had planned to return to Nigeria in August 2022.[30]
[28] Transcript, 63.
[29] Transcript, 64.
[30] Ibid.
Importation of cocaine convictions
On 14 August 2003, the Applicant was arrested and charged in relation to importation of cocaine. He subsequently pleaded guilty to two counts of Import prohibited import (cocaine) and one count of Attempt possess prohibited import (cocaine). The three packages involved in the offences contained, respectively, 684.6 grams, 335.9 grams and 233.1 grams of pure cocaine. The maximum penalty for each offence under the Customs Act 1901 (Cth) is a fine not exceeding $500,000 or imprisonment for 25 years or both. On 25 June 2004, the Applicant was sentenced to a total term of 10 years imprisonment, with a non-parole period of six and a half years expiring on 13 February 2010.[31]
[31] Section 37 T-Documents, T10, 152-153.
Domestic violence offences
In June 2017, the Applicant was convicted of the following offences:[32]
[32] Ibid.
Source Court Date Offence Result NSW Penrith Local Court 01/06/2017 Destroy or damage property
<=\2000 (DV)-T2
Fine: $1,000 NSW Penrith Local Court 01/06/2017 Stalk/intimidate intend fear physical etc harm (domestic)-T2 Bond s 9: 12 months
During cross-examination, the Applicant confirmed that these offences involved his second wife, SC.[33] He told the Tribunal that at the time of these offences he was living with SC and their two children. He described the events that led to him being charged.[34] He and his wife were watching a debate on television between the two Presidential candidates, Hilary Clinton and Donald Trump. He and SC had a discussion about the debate and had a ‘battle of the sexes’,[35] which they both wanted to win.[36] The Applicant denied that any property damage occurred.[37] He confirmed that the police came to the house and said that ‘[t]he police is always there.’[38] He had been away overseas for three months, and when he returned home the police came to their house on two occasions.[39]
[33] Transcript, 15-16.
[34] Transcript, 24-25.
[35] Transcript, 26.
[36] Transcript, 27.
[37] Transcript, 29.
[38] Ibid.
[39] Transcript, 30.
In a statement to police, SC described what had occurred:[40]
My husband … went to throw a knife at me where he then smashed up items in my kitchen. He also damaged my fridge and the wall frame.
[40] Supplementary T-Documents, ST2, 140.
SC told the officer that she believed that the Applicant had stolen jewellery from her bedroom whilst she was downstairs and had placed it in his vehicle.[41]
[41] Ibid.
The Applicant was asked whether he agreed that this is what occurred. He told the Tribunal that he was not willing to talk about these offences, ‘because they’re not even relevant.’[42]
[42] Transcript, 32.
The Tribunal asked the Applicant whether he attended court in relation to the offences and he confirmed that he did attend and he represented himself.[43]
[43] Transcript, 36.
The Applicant was shown a number of photographs showing damage to SC’s kitchen, fridge and wall frame, and smashed items on the kitchen floor. He was asked whether he was responsible for this damage to which he replied, ‘I didn’t do that.’[44] The Applicant agreed that an apprehended domestic violence order (‘ADVO’) was applied for by police to protect SC and the children because of this incident, and he did not contest the ADVO.[45] The ADVO is dated 1 June 2017 and expired on 31 May 2018.[46]
[44] Transcript, 39.
[45] Transcript, 40.
[46] Supplementary T-Documents, ST2, 171.
Documents produced under summons by Penrith Local Court and NSW Police Force record an incident in July 2014 involving the Applicant and SC. The Applicant is reported to have ‘punched the victim to the nose with a closed fist’ (amongst other acts of violence), in the presence of their child.[47] SC had a possible fractured nose and grazing to both arms, and she was taken to the Nepean Hospital for treatment. The Applicant was charged with Assault occasioning actual bodily harm (DV).[48] The charges in relation to the incident were dropped at SC’s request in August 2014.[49] A provisional Apprehended Violence Order was made against the Applicant.[50]
[47] Supplementary T-Documents, ST2, 208; ST4, 255.
[48] Supplementary T-Documents, ST2, 185.
[49] Supplementary T-Documents, ST2, 213-214,165.
[50] Supplementary T-Documents, ST2, 202-210; ST4, 254.
The Applicant told the Tribunal that he remembers this incident. He was asked to tell the Tribunal what occurred on this occasion, to which he replied, ‘Why I tell you? You go ask police. This undertaking by police.’[51]
[51] Transcript, 45.
The Applicant was asked whether he remembers whether SC was injured during this incident and if he wished to comment on the fact that she sustained injuries and had to go to hospital. The Applicant replied, ‘I don’t have to comment on that.’[52]
[52] Transcript, 50.
Driving offences
The documents produced under summons by Transport for NSW include the Applicant's driving record, which spans five pages and consists of approximately 20 driving related offences between 2004 and 2021. Such offences include, for example, five instances of failing to stop at a red arrow, driving using a mobile phone and eight instances of speeding.[53]
[53] Supplementary T-Documents, ST3, 223-227.
The Applicant was asked whether he would like to comment on his record of driving offences. He explained that he works four days a week with Civic as a subcontractor delivery driver,[54] and works afternoon shifts with Coles three days a week.[55] He described the offences as ‘very, very insignificant’.[56]
[54] Transcript, 52, 59.
[55] Transcript, 59.
[56] Transcript, 53.
Failure to declare criminal convictions
The Applicant failed to declare his criminal convictions on his incoming passenger cards when returning to Australia on 22 February 2020 and 25 April 2021.[57]
[57] Section 37 T-Documents, T10, 147.
During cross-examination, the Applicant told the Tribunal that he did not disclose his convictions when he completed the incoming passenger cards because ‘they’re not convictions.’[58] He explained that these are ‘spent convictions’. He was asked to explain why he considered this was so. He stated:
So once a conviction become – from the time you come out from prison when you see hit the bar ten years …[59]
CONTENTIONS
[58] Transcript, 54.
[59] Transcript, 56.
Applicant
The Tribunal invited the Applicant to explain why he believes he is of good character and should be conferred Australian citizenship:
So what I am … here to say is I am of good character. I’m of good character and as (indistinct) African (indistinct) stuff, last (indistinct) did apply to (indistinct) Africa or whatever and – but whatever that was said – that was said – you know people just say it is, sometimes, you know that is the system we live to. So also I have assumed character – this character will be not something that is within this room, you know, this character is different from the reality out there. The reality out there is like I’ve got to work, I’ve got to take my kids out, I have to do a lot of things like – you know – it’s hard some times.[60]
[60] Transcript, 59.
In response to the Respondent’s oral submission that the Applicant appears to regard Australian citizenship as a right rather than a privilege, he stated, ‘That’s what it is. It is a privilege. It is a privilege and a right.’[61]
[61] Transcript, 72.
The Applicant further contends that his criminal record has already been dealt with in the context of the Migration Act 1958 (Cth), specifically by the Tribunal in its 2010 decision to set aside the decision to cancel his visa.
Respondent
The Respondent contends that notwithstanding the passage of time, the Applicant’s criminal offending weighs heavily against a finding that he is a person of good character.[62] In particular, the evidence of domestic violence committed by the Applicant, against a female, weighs strongly against a finding that the Applicant is a person of good character.[63] The Respondent notes that the Applicant has not made any expressions of genuine remorse for his past behaviour or provided evidence to suggest that he is reformed and unlikely to commit further criminal acts.[64] The Respondent contends that the Applicant has attempted to downplay the seriousness of his offending behaviour, and appears to treat Australian citizenship as a right, rather than a privilege that is not bestowed lightly.[65]
[62] RSFIC [23(a)].
[63] RSFIC [23(b)].
[64] RSFIC [23(e)].
[65] RSFIC [23(g)] referring to the Applicant's submissions at Section 37 T-Documents, T11,155; T12,163-164; T13,169-170.
The Respondent contends that none of the Applicant’s convictions are spent convictions under either Commonwealth or State law. In relation to the 2004 importation of cocaine offences, these are not capable of being spent convictions because the term of imprisonment is too significant.[66] Under Commonwealth law a conviction is only capable of being spent if a person was not sentenced to imprisonment for more than 30 months. Even if under the Commonwealth legislation convictions are ordinarily treated as spent, the process under the Act is exempt, so the decision-maker may still need to consider them in assessing good character.
[66] Transcript, 67.
CONSIDERATION AND REASONS
The sole issue for determination by the Tribunal is whether the Applicant satisfies the requirements of paragraph 21(2)(h) of the Act which requires it to decide whether he is of ‘good character’.
The meaning of ‘good character’
There have been numerous Federal Court decisions on the meaning of ‘good character’ and the application of the good character test. The classic exposition of the meaning of this term is found in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (‘Irving’).[67] Lee J stated:[68]
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.
[67] (1996) 68 FCR 422.
[68] at [431]-[432].
The question whether a person is or is not of ‘good character’ is primarily an issue of fact.[69] As Davies J remarked in Irving:[70]
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
[69] Irving v Minister for Immigration Local Government and Ethnic Affairs at [424] per Davies J (with whom Nicholson J concurred).
[70] at [427]-[428].
In determining whether it is satisfied that an applicant for citizenship is of ‘good character’, the Tribunal is “entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act”.[71]
[71] Drake v Minister for Immigration and Ethnic Affairs(1979) 46 FLR 409 at [420] per Bowen CJ and Deane J.
In Minister for Immigration and Ethnic Affairs v Baker, the Full Federal Court stated:[72]
The words “good character” in this section should, as Lee J pointed out in Irving (at 431-432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.
[72] (1997) 73 FCR 187 at [197].
In Fenn and Minister for Immigration and Multicultural Affairs,[73] Deputy President Breen discussed the character requirement for citizenship:
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.
[73] [2000] AATA 931 at [8].
Paragraph 14.2 of CPI 15 refers to the decision in Prasad and Minister for Immigration and Ethnic Affairs,[74] in which the Tribunal explained:
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
Is the Applicant of ‘good character’?
[74] [1994] AATA 326 at [7].
Criminal offending
In June 2004 the Applicant was convicted of serious offences involving the importation of cocaine. The Tribunal notes that 18 years have passed since these convictions were recorded. The Applicant contends that these convictions are spent, and therefore are not relevant to consideration of whether he is of ‘good character’.
Spent convictions
Under Commonwealth[75] and New South Wales law,[76] after 10 years convictions are ‘spent’ if the person was not sentenced to imprisonment for the offence for more than 30 months. In the Tribunal’s decision in KKHS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship),[77] Senior Member Fairall described the effect of the relevant provisions in Commonwealth legislation:
Such provisions are intended to limit the effect of a person’s conviction, and to allow a person to recover free from the taint of conviction after a lengthy period of good behaviour. One important aspect of the federal scheme is that in exercising statutory powers, ordinarily a decision-maker “must not take account of the fact that the person was charged with, or convicted of, the offence”. Importantly, for present purposes, citizenship applications are expressly excluded from the scope of the legislation. Although for many purposes the applicant’s conviction is spent under federal law, he was obliged to disclose it in his application for citizenship, and the decision-maker is required to consider it in determining whether he is of good character.[78]
[75] Crimes Act 1914 (Cth), Part VIIC, Division 3; subsection 85ZM(2) of the Crimes Act 1914 (Cth) provides that a person's conviction of an offence is spent if inter alia the person was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.
[76] Criminal Records Act 1991 (NSW). NSW legislation governing spent convictions is in some respects narrower in scope than the provisions in Commonwealth legislation. For example, it does not apply where the sentence imposed was not more than six months: Criminal Records Act 1991 (NSW), section 7(1)(a).
[77] [2021] AATA 204.
[78] At [26] referring to Crimes Act 1914 (Cth), sections 85ZL; 85ZM(2)(b); other footnotes omitted.
As the Tribunal observed in this passage, the ‘spent convictions’ provisions do not apply to a person who makes a decision under the Act; or to disclosure of information to the Tribunal; or to the taking into account of information by such a person or the Tribunal.[79]
[79] Crimes Act 1914 (Cth), section 85ZZH. Subsection 85ZM(2) of the Crimes Act 1914 (Cth) provides that a person's conviction of an offence is spent if inter alia the person was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended. The term “offence” simpliciter is not defined for relevant purposes - the definition in section 3C is limited to Part IAA of the Act, dealing with Commonwealth investigative powers - although section 85ZL defines "Commonwealth offence" and “State offence” (as an offence against a Commonwealth or State law respectively); and in relation to a conviction, "spent", has the meaning given it in section 85ZM.
The Applicant’s convictions for the importation of cocaine were under Commonwealth legislation. He was sentenced to imprisonment for 10 years, which well exceeds the 30 month threshold. Accordingly, these convictions are not ‘spent’. Irrespective of whether the convictions are spent, they may be taken into account by the Tribunal in this review application as it involves a review of a decision made under the Act.[80]
[80] Crimes Act 1914 (Cth), section 85ZZH.
Based on the evidence before it, the Tribunal finds that in considering the seriousness of the drug offences for which the Applicant was convicted, the passage of time is insufficient to demonstrate that the Applicant has the enduring moral qualities’ characteristic of ‘good character’. In making this finding, the Tribunal has had regard to the Applicant’s attempt in his submissions to dismiss these offences as now being irrelevant to an assessment of his character.
Domestic violence convictions
Since his convictions for the importation of cocaine, the Applicant has been convicted of two offences which have involved domestic violence against his second wife, SC. These convictions are not consistent with the requirement in paragraph 4 of CPI 15 that an applicant for citizenship not be violent and not cause harm to others. Domestic violence offences are serious offences involving, by definition, vulnerable persons over whom the offender exercises power and control. The Australian community has zero tolerance for crimes of domestic violence. In Mendoza and Minister for Immigration and Border Protection,[81] Senior Member Puplick made this point in the context of a character assessment for a citizenship application:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.
[81] [2018] AATA 686 at [48]
Applicants for citizenship who have been convicted of domestic violence offences face a high bar in establishing that they are a person of ‘good character’. In Sharma and Minister for Immigration and Border Protection,[82] Deputy President Constance said that domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.’
[82] [2015] AATA 608 at [37]
Senior Member Sosso (as he then was) considered the seriousness of domestic violence offences in Ahori and Minister for Immigration and Border Protection, where he stated:[83]
Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting… There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character…
[83] [2017] AATA 601 at [53]-[54]
This Tribunal adopted this approach in Umer and Minister for Immigration and Border Protection[84] and Belhake and Minister for Home Affairs (Citizenship)[85] namely, that there is a presumption that a person is not of good character in circumstances where the applicant for citizenship has been convicted of a domestic violence offence, and this presumption is only negated in the face of compelling evidence and persuasive reasons which support a contrary finding. This approach does not, as Senior Member Sosso stated, allow the Tribunal to automatically reach a conclusion that an applicant is not of good character purely on the basis of a conviction for domestic violence – it must consider and evaluate all the evidence presented.
[84] [2018] AATA 1630.
[85] [2019] AATA 4472.
The Tribunal adopts this approach in this review and, in the paragraphs which follow, considers whether there is compelling evidence and persuasive reasons to support a finding that the presumption that the Applicant is not of good character is negated.
Acceptance of responsibility and remorse for conduct
The evidence before the Tribunal is that the Applicant has not taken responsibility for his criminal offending. When asked about the incident in September 2016 which resulted in him being convicted of two domestic violence offences in June 2017, he described it as him and his wife engaging in an innocuous ‘battle of the sexes’. He denied that he caused the extensive damage to property that is depicted in the photos of SC’s kitchen that are before the Tribunal. He told the Tribunal that he did not wish to talk about these offences because they are ‘not even relevant’. The Applicant has not expressed remorse for his criminal offending, and asserted it to be of no consequence to an assessment of his character.
On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant has taken responsibility for his offending nor that he appreciates that his criminal behaviour caused harm, including damage to property. Accordingly, the Tribunal finds that the evidence before it does not negate the presumption that an applicant for citizenship who has been convicted of domestic violence is not a person of ‘good character’.
Length of time elapsed
The Applicant was convicted of the two domestic violence offences in June 2017 arising from an incident that occurred in September 2016. Therefore, more than six years have passed since the Applicant committed these offences. The Applicant was sentenced to a 12 month section 9 bond which expired in June 2018, some four and a half years ago.
The Tribunal does not consider that sufficient time has elapsed for it to be satisfied that the domestic violence offences the Applicant committed were out of character for him. In making this finding it relies on the evidence before it that the Applicant was charged with Assault occasioning actual bodily harm (DV) in July 2014. The Applicant was alleged to have punched SC in the nose with a closed fist causing injuries that required her to be taken to hospital. The matter did not proceed to court at the request of SC who asked that the charges be dropped. Whereas the Applicant’s violent conduct on this occasion did not result in a criminal conviction, it indicates a pattern of behaviour that was repeated in September 2016 leading to his conviction in June 2017 for two domestic violence offences. The Applicant denies that he was responsible for these offences, despite having been convicted of them, and he refused to comment on the incident that led to the laying of charges against him in July 2014. On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant has demonstrated the ‘enduring moral qualities’ associated with ‘good character’.
In making this finding, the Tribunal has had regard to the seriousness of the Applicant’s criminal conduct, being acts of domestic violence. Crimes of this nature require a significant amount of time to pass before a finding can be made that a person is of ‘good character.’ The Tribunal notes that CPI 15 provides that in determining the period of the enduring/lasting moral qualities of an applicant, the nature of the offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. This was recognised by the Tribunal in Assafiri and Minister for Immigration and Border Protection. Senior Member Toohey observed:[86]
Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
[86] [2014] AATA 35 at [67]
The Tribunal cannot be satisfied that the Applicant is a person of good character after the passage of only four years since his obligations arising under the section 9 bond have expired. The serious nature of domestic violence, coupled with the Applicant’s reluctance to accept responsibility for his actions, are such that the Tribunal finds that the passage of time is insufficient for it to be satisfied that the Applicant has demonstrated he is of ‘good character’.
Driving offences
In making this finding, the Tribunal has also had regard to the Applicant’s attitude to the 20 driving offences he committed between 2004 and 2021. He described his lengthy driving record as ‘very, very insignificant’ and suggested that it was merely an inevitable consequence of his work as a delivery driver. The Applicant’s downplaying of his criminal behaviour and his apparent unwillingness to appreciate that speeding and failing to stop at a red arrow puts other road users at risk of serious harm, indicate that he does not possess the ‘enduring moral qualities’ characteristic of a person of ‘good character’.
Evidence demonstrating ‘good character’
The Tribunal finds that there is very little evidence before it which supports a positive conclusion about the Applicant’s character. His oral evidence is that he has been employed as a delivery driver for two and a half years and he works seven days a week. He also claims to financially support his children by sending money to their mother every week. There is no evidence before the Tribunal to corroborate the Applicant’s evidence in relation to his financial support of his children. The Applicant did not provide any other evidence, for example, character references, to support his assertion that he is of good character.
Previous consideration of criminal record
Finally, the Tribunal does not accept the Applicant’s submission that his criminal record has already been dealt with in the context of the Migration Act 1958 (Cth), specifically by the Tribunal in its 2010 decision to set aside the decision to cancel his visa. Paragraph 5 of CPI 15 relevantly provides that a decision not to cancel a visa on character grounds does not bind a decision-maker considering a citizenship application. In accordance with this guidance, the Tribunal has given fresh consideration to the character issues relevant to the Applicant’s citizenship application and reached the conclusion that he is not of ‘good character’.
CONCLUSION
Having considered the Applicant’s circumstances and weighing the available evidence, the Tribunal is unable to make a positive finding of ‘good character’ in relation to the Applicant. This is particularly so in circumstances where he has been convicted of domestic violence offences in the past five years. Accordingly, the Tribunal finds that the Applicant does not satisfy paragraph 21(2)(h) of the Act.
This conclusion does not preclude the Applicant from making a further application for citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he does meet the ‘good character’ requirement for the grant of Australian citizenship.
DECISION
For the reasons set out above, the decision under review is affirmed.
I certify that the preceding 82 (eighty – two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
.................................[SGD].......................................
Associate
Dated: 14 December 2022
Date(s) of hearing: 7 July 2022 Applicant: In person Solicitors for the Respondent: Ms C Campbell, HWL Ebsworth Lawyers
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