Onyeaka and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 960

Onyeaka and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 960 (14 December 2015)

Division	GENERAL DIVISION
File Number	2015/0073
Re	Gabriel Onyeaka
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	14 December 2015
Place	Sydney

1.    The decision of the Minister for Immigration and Border Protection made 9 December 2014 to refuse Mr Onyeaka Australian citizenship is set aside.

2.    The matter is remitted to the Minister with the direction that as at 23 September 2015, Mr Onyeaka was of good character in accordance with paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

J W Constance
Deputy President  

CATCHWORDS

CITIZENSHIP - citizenship by conferral - good character - whether the applicant satisfies the legislative requirement to be shown to be of good character - prior offences- breach of protection order - good behaviour bond - decision to refuse citizenship set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24

CASES

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634

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

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Australian Citizenship Instructions (Cth) issued 1 January 2014

REASONS FOR DECISION

DEPUTY PRESIDENT J W CONSTANCE

14 DECEMBER 2015 

INTRODUCTION

1. Mr Onyeaka applied for Australian citizenship by conferral on 23 October 2014.[1]

   [1] Exhibit R1 p.200.

2. On 9 December 2014, a delegate of the Minister refused Mr Onyeaka’s application. This was on the basis that Mr Onyeaka had not established that at that time he was of good character in accordance with the provisions of the Australian Citizenship Act 2007 (Cth).

3. Mr Onyeaka has applied to this Tribunal to review the delegate’s decision.

4. For the reasons which follow, the decision under review will be set aside and the matter remitted to the Minister with the direction that as at 23 September 2015, Mr Onyeaka was of good character in accordance with paragraph 21(2)(h) of the Act.

   BACKGROUND

5. Unless stated otherwise, the following findings of fact are based on the evidence of Mr Onyeaka. He provided a Statutory Declaration made 16 September 2015 and gave evidence. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. 

6. Mr Onyeaka is a citizen of South Africa.  He first arrived in Australia in July 2008 and has resided here ever since.  He currently holds a permanent subclass BC100 Partner (migrant) visa.

7. Mr Onyeaka married in 2010. A child of that marriage, a son, was born in April 2011.

8. In December 2011 Mr Onyeaka’s wife travelled to Queensland with their son, without telling him that she intended to live permanently with their son in Queensland.

9. In January 2012 Mr Onyeaka’s wife applied for a protection order against him. In April 2012 he consented to such an order being made without admission of the matters alleged against him. The order restricted his contact with his wife and named members of her family, not including Mr Onyeaka’s son.  At the time the order was made Mr Onyeaka’s wife was accompanied by a policeman who was a member of her family. He requested Mr Onyeaka to consent to the order.  

10. In March 2012, the Federal Magistrates Court made orders by consent on an interim basis.[2]  Included in the orders was the following:

    That this Order shall be sufficient authority for any schools/childcare, kindergarten attended by [the son] to give each parent information about [the son’s] educational progress and other school/childcare/kindergarten related activities and supply them with copies of schools/daycare/kindergarten reports, photographs, certificates and awards obtained by [the son] (at that parent’s cost).

    [2] Exhibit R1 p.179.

11. After the Court order was made Mr Onyeaka regularly travelled from Sydney to Queensland to maintain contact with his son.  In accordance with an arrangement made with his former partner through their respective lawyers, Mr Onyeaka was to collect his son at a local park.

12. On 19 October 2012 an incident occurred which Mr Onyeaka described as follows:

    On 19 October 2012, it [was] my weekend with [my son] and I arrived earlier than the arranged pickup. I went to the day care centre to see [my son] and how they were teaching him. At first, I went to the wrong day care centres, because there were several day care centres run by the same organisation in that area. I was directed to the correct day care centre. I went to the front door of the centre, but the door was locked, so I returned to my car. I was sitting in my car when two male police officers came to my car. They told me I had to come with them to the police station. They put me in the back seat. They did not handcuff me. Once at the police station, they did not interview me. They took me to a room and photographed and fingerprinted me. They said I was trespassing at the day care centre without their knowledge and gave me a letter to take to the court on 6 December 2012.[3]

    I am satisfied that this is an accurate version of the events.

    [3] Exhibit A10 para. 11.

13. When Mr Onyeaka was at the Police Station on 19 October 2012 he was charged with two offences.  The first was a charge of trespass by entering or remaining in a yard or place of business. This charge was laid under the Summary Offences Act 2005 (Qld).

14. At the same time Mr Onyeaka was charged with breaching the protection order made on 16 April 2012. This charge was laid as a result of a complaint made on that day by Mr Onyeaka’s wife. The breach alleged was that Mr Onyeaka had contacted his wife on about 40 occasions by use of text messages between 16 April 2012 and 20 August 2012.

15. On 13 March 2013 Mr Onyeaka pleaded guilty to both offences. A conviction was not recorded on either charge. On the charge of breaching the order, Mr Onyeaka was ordered to be of good behaviour for a period of nine months and was required to enter a recognisance in the sum of $400. On the charge of trespass he was fined $350 and allowed two months in which to pay the fine.

16. Since the incident on 19 October 2012 Mr Onyeaka has made arrangements to visit his son at the day care centre and he has continued to maintain contact with him.  He sees his son every Saturday on Face Time and travels to Hervey Bay every 4 to 6 weeks. On these visits he has his son with him on Friday and Saturday and returns him to his mother on Sunday morning. Mr Onyeaka provides financial support for his son through the Child Support Agency.

17. Mr Onyeaka has a 17 month old daughter, born of a second relationship. His daughter lives with her mother in Sydney. Mr Onyeaka has a good relationship with the child’s mother and sees his daughter regularly, almost every day. He provides financial support for his daughter in an amount agreed after consultation with the Child Support Agency.

18. Since the incident in October 2012 Mr Onyeaka has attended courses to assist him to deal with the consequences of separation and divorce and the care of children of separated parents.   One of these courses involves group sessions and is ongoing; the group meets once per month. During these sessions Mr Onyeaka has talked about his feelings of remorse and the events which led to the breach of the protection order and the trespass.

19. The protection order expired on 15 April 2014 and Mr Onyeaka’s  former wife did not seek to have it renewed.

20. In June 2014, whilst working in his present position as a driver of a garbage collection truck, Mr Onyeaka found a document, which he thought was a driver’s licence, in rubbish. The document bore a photograph and the name of a male of Asian descent. Out of curiosity Mr Onyeaka retained the document and put it in his pocket. At no stage did he plan to endeavour to make any use of the document.

21. One week after finding the document Mr Onyeaka travelled overseas. On his return to Sydney on 18 June 2014 his luggage was searched and the document located in his shirt pocket. Mr Onyeaka did not recall taking the document with him overseas and did not intend to do so. A few weeks later he received a traffic infringement notice for possessing a document resembling an Australian driving licence. Mr Onyeaka paid the penalty of $850.

22. In March 2015 Mr Onyeaka was using his mobile phone whilst driving is motor vehicle. He was issued with a traffic infringement notice and paid the penalty of $330.

23. Since 2010 Mr Onyeaka has been working for a company which has a contract to collect garbage for a local council. In November 2012 he was offered a permanent full-time position as a driver which he accepted. He has continued to work in this position ever since.

24. Mr Onyeaka is engaged in a number of different activities within the community. He is a member of his local church and of the Nigerian Catholic Community. He was one of the organisers of a Mass for Africa Day held in November 2015. Since 2013 he has played for a local soccer team.

    THE ISSUE

25. The only issue for determination is whether, at the time of the Tribunal’s decision, Mr Onyeaka is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

    LEGISLATION

26. Applications for the conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth).

27. Section 24 of the Act provides, in part:

    (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.

    (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).

28. Section 21(2) of the Act establishes requirements for eligibility for the grant of citizenship. It provides, in part:

    (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.

    It is only this subsection which is in issue in the present application.

    AUSTRALIAN CITIZENSHIP INSTRUCTIONS

29. The Australian Citizenship 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’”.

30. The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are cogent reasons to the contrary.[4]

    [4] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.

31. 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.

32. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[5]

    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).

    [5] (1996) 68 FCR 422 at 431-432.

33. After referring to the judgement of the Court in Irving, Paragraph 10.3.1 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.

34. In considering the Australian Citizenship Instructions I have taken into account that they refer to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[6]:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, 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.

    CONSIDERATION

    [6] [2011] AATA 304 at [120].

    Characteristics of a person of good character

35. In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include:

    ·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)… .

36. Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. The relevant factors to be taken into account in considering why an applicant might not be of good character (as set out in paragraph 10.5.2) include the following:

    ·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)

    oother offences incurring prison sentences of 12 months or more.

    Minor offences include:

    oshoplifting

    otraffic offences which have been included in a criminal record

    ooffences which do not lead to a conviction or a sentence.

    ·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or disabled, or others who trusted the applicant?

    ·Was the offence pre-meditated?

    ·Consider the length of the sentence, if one has been imposed.

    ……

    ·Are there any ongoing obligations in relation to the sentence received, such as a good behaviour bond following conviction?

    ……

    ·How many offences had been committed? Was it a one-off or is there a pattern of criminal behaviour?

37. The Instructions provide that this framework should be considered first before considering whether there are any mitigating factors which may indicate that a person is now of good character.

38. Under the heading, Weighing up the decision, the Instructions provide:

    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.[7]

    [7] Paragraph 10.5.4.

    The Offences

39. The Australian Citizenship Instructions provide that crimes of violence, including domestic violence, are to be regarded as serious offences.

40. Although one of the offences of which Mr Onyeaka was found guilty was the breach of a protection order by the sending of numerous text messages, I do not consider that it should be regarded as a serious offence. I take into account that Mr Onyeaka was not charged with an offence against his former wife, although his conduct did involve her. To this extent she was a victim.  However I note that Mr Onyeaka’s former wife did not report the sending of the messages for two months after they ceased and that she did so on the day he attended the child care centre and was charged with the trespassing offence.  I am satisfied that she did not feel threatened by Mr Onyeaka's behaviour, nor did he intend to be threatening.

41. In accordance with the Instructions, offences which do not lead to a conviction or a sentence are usually regarded as minor offences. In this case, neither finding of guilt led to a conviction.

42. Undoubtedly in some circumstances the offence of trespassing upon premises where young children are being cared for would be regarded as serious. However, in the circumstances in which I have found that Mr Onyeaka committed this offence, I am satisfied that it too should be treated as minor. I accept Mr Onyeaka's explanation that he attended the premises only for the purpose of attempting to discuss the well-being of his son.  Clearly the Federal Magistrates Court order of 19 March 2012 provided for such contact.  Further I take into account that Mr Onyeaka did not attempt to leave the vicinity, nor did he attempt to evade police.

43. I note also that Mr Onyeaka disclosed details of the offences to the Department in making his application for citizenship. This weighs in favour of his character as a person likely to be honest in his dealings with the Australian Government. 

44. I have taken into account also the traffic infringement notices received by Mr Onyeaka.  Whilst both instances involved a disregard for the laws of this country, both are properly regarded as minor instances. I am satisfied that Mr Onyeaka did not intend to use the document resembling a driver’s licence for any improper purpose.

45. Taking into account all of Mr Onyeaka's conduct  I am satisfied that there is no pattern of the commission of offences

    Mitigating Factors

46. Paragraph 10.5.2 provides, in part:

    Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.

    oWhat is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ...

    oHas the applicant accepted responsibility and shown remorse for their conduct?

    oHow has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…

    oHas the applicant rehabilitated themselves?…

    oWhat was the applicant’s age at the time the offence was committed?…

    oWere there any extenuating circumstances relating to the offence?

1. Mr Onyeaka did not make this application for citizenship until two years after the commission of the offence of trespass, although only ten months after the expiry of the good behaviour bond. However since October 2012 Mr Onyeaka has made a genuine effort to rehabilitate himself by attending and completing appropriate courses.  I will refer later to additional evidence as to Mr Onyeaka's participation in the courses. Having listened to him giving evidence I am satisfied that he is remorseful of his conduct and accepts his responsibility for it.For the reasons I have already set out I am satisfied that there are extenuating circumstances relating to the offence of trespass, particularly that Mr Onyeaka did not seek to force his attention upon anyone at the centre and that the Court order had indicated to him that it was appropriate for him to seek information from those caring for his son. 

   Character Evidence

2. Ms Quade is the Solo Parent Ministry Co-Ordinator within CatholicCare Social Services of the Parramatta Diocese, which facilitates and operates personal and parenting educational programs for parents following separation and/or divorce. She provided a detailed Statutory Declaration made on 8 October 2014[8] and gave evidence.

   [8] Exhibit R1 p.194.

3. Ms Quade confirmed that Mr Onyeaka had participated in a number of programs run by the Agency. In her opinion he is a committed member of the Parish and the programs she facilitated. He has been willing to share his experiences during group sessions.

4. Ms Quade gave evidence that in discussions with herself and members of the groups, Mr Onyeaka “expressed remorse regarding what he considers at the time was his desperation to enquire as to the welfare of his very young son. He now acknowledges that had he provided the child care with the interim orders, and pre arranged his visit directly with the centre staff the incident would have been avoidable.” [9]

   [9] Exhibit R1 p.195.

5. Although Ms Quade’s recollection was not clear, she did recall Mr Onyeaka telling her of the offence relating to his contacting his former wife by way of text messages.

6. I was very impressed by Ms Quade’s evidence and her forthright manner.  I accept her evidence.

7. Mr Coggan has been Mr Onyeaka's supervisor at the company for which he works for over five years. Mr Coggon provided a statement dated 11 June 2015 [10] and gave evidence.

   [10] Exhibit A1.

8. In the opinion of Mr Coggan, Mr Onyeaka is a very capable and dedicated employee. His commitment to his work has been unusual in that he started as a casual runner/offsider for various Sydney Council collection contracts and has been promoted to the position of a permanent heavy vehicle operator.

9. Mr Coggan was unaware of the offences committed by Mr Onyeaka until shortly before he gave evidence.

10. On the basis of Mr Coggan’s evidence I am satisfied that Mr Onyeaka has been an excellent employee and has impressed his employer to the extent that he has gained significant promotion and is a valued member of staff. He has demonstrated financial responsibility in paying his taxes. Mr Onyeaka provided a copy of his latest tax return.

    Other Mitigating Factors

11. Despite his separation from his children, Mr Onyeaka has continued to maintain as close a relationship with them as possible. In the case of his son, this has required him to commit very considerable time and financial resources to maintain the relationship. I am satisfied that he provides proper financial support for both children. His conduct in this regard is indicative of a person of enduring moral qualities.

    Discussion

12. The decision of whether Mr Onyeaka is of good character is not made by applying the various factors referred to in the Instructions as a checklist. The evidence has to be looked at as a whole.[11] Paragraph 10.5.4 of the Instructions provides, 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.… A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.

    [11] See paragraph 10.1.1 of the Australian Citizenship Instructions. 

13. Mr Onyeaka’s offending does not weigh heavily against his character. There are extenuating circumstances and Mr Onyeaka did not have the benefit of legal representation when he appeared before the Court. I do not seek to go beyond the findings of the Court. but note that the Court did not regard either of the offences as warranting a conviction.

14. I am satisfied that Mr Onyeaka is a person with the enduring moral qualities of a person of good character.

    CONCLUSION

15. The decision under review, being the decision of the delegate of the Minister made 9 December 2014, will be set aside.

16. The matter will be remitted to the Minister for reconsideration in accordance with the direction that as at 23 September 2015, being the date of the hearing, Mr Onyeaka was of good character in accordance with subsection 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 14 December 2015 

Date(s) of hearing	23 September 2015
Date final submissions received	23 September 2015
Advocate for the Applicant	S Jeans
Solicitors for the Applicant	Simon Jeans & Associates
Advocate for the Respondent	P Richards
Solicitors for the Respondent	Clayton Utz