Rewharewha and Minister for Immigration and Border Protection (Citizenship)

Case [2018] AATA 2877

Rewharewha and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2877 (15 August 2018)

Division:GENERAL DIVISION

File Number:           2018/0133

Re:Rangi Takauia Rewharewha

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:15 August 2018

Place:Sydney

The decision under review is set aside and remitted to the respondent with a direction that Mr Rangi Rewharewha is a person of good character for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007.

...............[sgd].........................................................

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – whether Applicant of good character – driving offences – domestic violence – failure to disclose offences – decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 s 21

CASES

Ahori v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601

Bowdler v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Do and Minister for Immigration and Border Protection [2016] AATA 390
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Mahmood v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033
Mendoza v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686
Prapysatok v Minister for Immigration and Border Protection [2018] AATA 693
Prasad v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Safar v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 503
Umer v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

Zaya v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366

SECONDARY MATERIALS

Department of Home Affairs, Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Chris Puplick AM, Senior Member

15 August 2018

BACKGROUND

  1. Mr Rangi Takauia Rewharewha is a citizen of New Zealand who was born in June 1952 and first arrived in Australia on 25 September 1988. He has, since that date, made several trips in and out of Australia and at all times has been the holder of a valid visa (Special Category TY-444).[1] He last visited New Zealand in 2000.

    [1] Respondent’s Statement of Issues, Facts and Contentions paragraph 3

  2. He is married to a naturalised Australian citizen (of Polish descent) and has a daughter who is also an Australian citizen.[2] His wife had two children by a previous marriage who were close to Mr Rewharewha as his step-children. One surviving step-son still is.

    [2] Letter from applicant dated 21 June 2018

  3. It is important to note the nature of Mr Rewharewha’s employment in Australia. He is a skilled supervisor who specialises in…

Continue reading Rewharewha and Minister for Immigration and Border Protectio...

Sign in free to access the full text

Details
AGLC
Rewharewha and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2877
Case
[2018] AATA 2877
Decision Date

CaseChat Overview and Summary

This matter concerned an application for citizenship by conferral by Mr Rewharewha, who was seeking to challenge the Minister for Immigration and Border Protection's decision to refuse his application. The dispute centred on whether Mr Rewharewha met the "good character" requirement for citizenship, particularly in light of his driving offences, past domestic violence incidents, and a failure to disclose these matters on his application form. The case was heard by Senior Member Chris Puplick AM of the Administrative Appeals Tribunal.

The Tribunal was required to determine several key legal issues. Firstly, it had to assess whether Mr Rewharewha's driving record, when considered holistically, indicated a lack of good character. Secondly, it needed to evaluate whether the domestic violence matters, viewed in their proper context, precluded him from being regarded as a person of good character. Thirdly, the Tribunal had to consider the significance of Mr Rewharewha's failure to truthfully answer a relevant question on his citizenship application form. Finally, it was tasked with weighing these negative factors against any positive attributes and mitigating circumstances to reach an aggregate conclusion on his good character.

In its reasoning, the Tribunal applied the principles outlined in the Citizenship Policy and relevant case law, such as *Prapysatok* and *Contreras*. It acknowledged that a good character assessment requires a holistic consideration of an applicant's behaviour over an enduring period, applying community standards. The Tribunal found that while the driving offences and domestic violence matters, viewed in isolation, would not be insurmountable barriers to a finding of good character, the failure to disclose these important matters on the application form was a significant issue that tended towards a negative assessment. However, the Tribunal also recognised Mr Rewharewha's positive contributions to the Australian economy and community over several decades, his remorse for past behaviour linked to alcohol, and his steps to address anger management issues. The Tribunal concluded that while the failure to disclose was serious, Mr Rewharewha's overall presentation, including his long-term positive contributions and genuine remorse, warranted a reconsideration of the decision. Consequently, the Tribunal set aside the original decision and remitted the matter for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It was restated clearly in the recent decision in Prapysatok (following Lachmaiya) where Senior Member Morris held that:I consider that, as citizenship is effectively the end-point for a non-citizen in the broader immigration process, this principle also extends to apply when permanent residents are applying for Australian citizenship. There is a reasonable expectation by the Australian people that a non-citizen will obey Australia’s laws and be truthful to immigration officials.[46][46] Prapysatok v Minister for Immigration and Border Protection [2018] AATA 693 at [28]CHARACTER EVIDENCE ON BEHALF OF MR REWHAREWHA Mr Rewharewha supplied the Tribunal with statements of support and character references from Mr Danny Ryan (a Project Manager at Hertel Modern with whom he had worked for many years in Western Australia) dated 3 December 2017 and Mr Paul Cattabriga (a Project Manager for the Insultech Group in New South Wales) dated 26 June 2018, both of whom attested to his professional skills and his personal good character. In answer to questions from the Respondent Mr Rewharewha admitted that neither of these referees had knowledge of his driving record or domestic situation which he said, was never discussed with anyone outside the immediate family. This factor diminishes the quality of the references for the Tribunal. The Citizenship Policy states:Referee reports can shed light upon an applicant's character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident.[47][47] Citizenship Policy page 155 A further reference was supplied by Mr Rewharewha’s wife dated 29 December 2017 in which she states that as his wife of 26 years she recognises that while he “has his downfalls, showing his temper, but he always apologises and is remorseful”, he is a “good husband and a good father to my children”. She says he is a hard worker, helpful, home-centred and a good financial provider. It would of course be better from Mr Rewharewha’s point of view that he did not have cause to apologise and express remorse quite so often. Mr Rewharewha gave extensive evidence on his own behalf and was questioned in detail by the Respondent. He also replied to several questions from the Tribunal. In essence he presented himself as a hard-working skilled tradesman who had worked in Australia for some 29 years and was a productive contributor to the Australian community. He has never accepted welfare (Centrelink) during periods of unemployment but always sought to re-enter the workforce and although he is past retirement and pension age he continues to work and intends to continue to do so. He admitted that he had a poor driving record, but that apart from the 2015 incident these offences had taken place quite some time ago (16 or so years). He admitted that he had been seriously and adversely affected by alcohol and that this had led to several incidents of inappropriate behaviour for which he was remorseful (a point accepted by the Respondent). He told the Tribunal that he had “changed for the better” and had given up drinking (and smoking) and was in the process of arranging to see a psychiatrist/psychologist to seek “advice” regarding anger management issues.

Decision

Reasons for decision

The Citizenship Policy gives further advice to decision-makers related to character assessment. It provides:[48]Weighing up the character decision 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. Decision makers should place more weight on significant offences. In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. …A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.[48] Citizenship Policy page 149 In Contreras[49] the full bench of the Federal Court referred to the balancing of all the elements which this Tribunal is required to consider as a “calculus”. All of the disparate elements must be considered and each of them must be given appropriate weight. Although neither the scheme of the Act nor the directions in the Policy set out the relative weights to be assigned to any individual element in the section 21(2) check-list, and although these weights will vary on a case-by-case basis, there are, naturally, some which weigh more heavily than others.[49] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52] In Mr Rewharewha’s case the matters which the Tribunal must address are these:(a)Is Mr Rewharewha’s driving record such that it would tend towards a conclusion that he is not a person of good character?(b)Has Mr Rewharewha committed or been convicted of such acts of domestic violence as would preclude him being regarded as a person of good character?(c)Is the fact that Mr Rewharewha failed to answer an important and relevant question on his Citizenship Application form, a failure of such magnitude as to lead to a conclusion that he is not a person of good character?(d)Do these matters in aggregate lead to a conclusion that Mr Rewharewha is not a person of good character?(e)Are there any factors which tend towards the credit of Mr Rewharewha such that any negative conclusions based on answers to the above questions might be offset in the calculus of weighing up the character decision? The conclusions of the Tribunal are as follows:(a)The driving offences, although not to Mr Rewharewha’s credit, are such that the Australian community would not take them, on their own, to be an insuperable barrier to a finding of good character.(b)The domestic violence matters, viewed holistically and in their proper context, likewise, would not lead to a community assessment that Mr Rewharewha is not of good character.(c)The failure of Mr Rewharewha to answer an important question truthfully is a significant matter and would lead to the conclusion that Mr Rewharewha is not a person of good character.(d)In aggregate these matters might suggest a negative assessment of Mr Rewharewha in terms of the good character test.(e)In all other respects Mr Rewharewha presents himself as a hard-working, honest man who has sought to do the best by his family, and despite various challenges has, by and large, been successful in overcoming them. He has made a positive and long-term economic contribution to the Australian economy and community, having been a resident here for several decades. His family are all Australian citizens. He acknowledges that he has had problems with alcohol and, as far as can be understood, this is the root cause of most of his problems. He has indicated an understanding of this and has taken steps to address and overcome it. He clearly understands the gravity of his past behaviour and is genuinely remorseful. He seeks to become an Australian citizen because he feels a genuine attachment to and loyalty to this country.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.