Samuka Solomon Konneh and Minister for Immigration and Border Protection

[2014] AATA 950

[2014] AATA 950

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2833
Re	Samuka Solomon Konneh
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Senior Member CR Walsh
Date	18 December 2014
Place	Perth

The Tribunal affirms the decision under review.

…………[sgd]…………...............

Senior Member CR Walsh

Catchwords

Citizenship by conferral – eligibility – general residence requirement – Applicant convicted of a number of offences relating to driving without a licence and  providing false information to the police – Applicant’s offences “minor” under the Australian Citizenship Instructions -  insufficient period has passed since Applicant’s most recent convictions  – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth) –  s 21(2), (3), (4), (5), (6), (7) and (8) – s 21(2)(h) – s 24(1) – s 24(1A)

CASES

Apire v Minister for Immigration and Border Protection [2014] AATA 193

Assafiri v Minister for Immigration and Border Protection [2014] AATA 35

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132

Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326

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

Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

Secondary Materials

Australian Citizenship Instructions  – Chapter 10 – s 10.1.1. – 10.1.2 – s 10.3 – s 10.3.1 – s 10.3.4 – s 10.5 – s 10.5.2 – s 10.5.4 – s 10.6.5

REASONS FOR DECISION

Senior Member CR Walsh

18 December 2014

INTRODUCTION

1. Mr Konneh seeks a review of a decision of the Minister for Immigration and Border Protection (Minister), dated 31 March 2014, to refuse Mr Konneh’s application for Australian citizenship, by conferral, because he did not meet the “good character” requirement for citizenship in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) as a result of a being convicted of a number offences relating to driving without a licence and providing false information to the police.

   BACKGROUND

2. Mr Konneh is a 27 year old citizen of Liberia who first arrived in Australia, on 3 December 2008, on a permanent protection visa he has held since 11 September 2008.

3. On 10 December 2013, Mr Konneh applied for grant of Australian citizenship using a standard Form 1300t “Application for Australian citizenship” (Citizenship Application). 

4. In the Citizenship Application, under the heading “Part F – Good character and criminal offences”, Mr Konneh noted (at 31(a)) that he had been convicted of offences in Australia and provided some details of the offences in the box provided. 

5. As part of Mr Konneh’s citizenship application process, a National Police check was performed.  The results report for that National Police check disclosed Mr Konneh’s criminal history to be as follows:

Court	Conviction Date	Charges	Result
Joondalup Magistrates Court	17.10.2011	False name and address	FINE $100; Mdl Disqualified 3 mths
Joondalup Magistrates Court	17.10.2011	Unauthorised driving by learner driver	FINE $100
Perth Magistrates Court	13.01.2012	False name (driver)	FINE $200
Perth Magistrates Court	13.01.2012	Fail to stop at a stop sign or line	FINE $150
Perth Magistrates Court	13.01.2012	No authority to drive – disqualified/suspended	FINE $500; Mdl FINE $500; Mdl Disqualified 9 mths- cumulative
Perth Magistrates Court	02.01.2014	Unauthorised driving by learner driver	FINE $150
Perth Magistrates Court	02.01.2014	Exceed speed limit in a speed zone	FINE $150

1. By letter from the Department of Immigration and Citizenship dated 30 January 2014, Mr Konneh was asked to comment on his criminal history.  By Statutory Declaration, dated 28 March 2014 (Statutory Declaration), Mr Konneh responded as follows:

   I drove unauthorised because of the need to get work on these occasions. I gave misleading information to the police in an attempt to avoid any punishment for my wrong doing.

   I regret ever getting in these problem and I promise that I will not repeat of ever do anything of the sort. I have full manual Western Australia license and I will drive carefully and abide by all driving rules so I do not loss point and risk being suspended from driving again.

2. In support of the Citizenship Application, Mr Konneh also provided three character references by way of statutory declaration (Character References).

3. On 31 March 2014, the Minister refused the Citizenship Application on the ground that Mr Konneh did not meet the “good character” requirement for citizenship in s 21(2)(h) of the Citizenship Act.

4. On 29 May 2014, Mr Konneh applied to the Tribunal for a review of the Citizenship Decision.

   ANALYSIS

5. Section 24(1A) of the Citizenship Act states that the Minister must not approve a person becoming an Australian citizen (under s 24(1) of the Citizenship Act) unless the person is eligible to become an Australian citizen under s 21(2) to (8) of the Citizenship Act.

6. Of relevance here is s 21(2)(h) of the Citizenship Act, which states:

   21       Application and eligibility for citizenship

   …

   General eligibility

   (2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (h)is of good character at the time of the Minister’s decision on the application. [Emphasis added]

   Meaning of “good character”

7. The phrase “good character” is not defined in the Citizenship Act for the purposes of s 21(2)(h) and, therefore, takes its ordinary meaning.

8. Most cases have adopted the following definition of “good character” from the Full Federal Court’s decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 per Lee J[1]:

   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 while the latter is a review of subjective public opinion: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR 455 per Miles CJ at FLR 459-60; Plato Films Ltd v Speidal [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. [Emphasis added]

   [1] This statement was made in the context of s 180A(2) of the Migration Act 1958 and associated regulations.

9. The existence of criminal convictions is relevant in determining “good character.” In Irving, Davies J stated (at 425):

   [C]riminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the applicant. If the conviction was in the last, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.[2]

   [2] See also Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14]; Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 at 777, [22] and Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].

   Australian Citizenship Instructions

10. The Australian Citizenship Instructions (ACIs) provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Citizenship Act and associated regulations. Of particular relevance to this application, is Chapter 10 of the ACIs which discusses the meaning of “good character” for the purposes of the Citizenship Act and associated regulations.[3] 

    [3] The Tribunal must take into account any relevant statement of governmental policy which is consistent with the statute concerned, unless there are cogent reasons not to: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.

11. Section 10.1.1 of the ACIs, titled “Background”, states:

    …The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character.’

    This chapter also provides a framework for assessing an applicant under the “good character” provisions.  It is not departmental policy for decision makers to be bound by a check-list.  Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not of good character. [Emphasis added]

12. Section 10.1.2 of the ACIs, titled “Summary”, states:

    ‘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. [Emphasis added]

13. Section 10.3 of the ACIs outlines what is “good character.”  In particular, s 10.3.1 of the ACIs, titled “Definition,” states:

    In this context, “moral” does not have any religious connotations.  The phrase “enduring moral qualities” encompasses the following concepts:

    ·     characteristics which have been demonstrated over a very long period of time

    ·     distinguishing right from wrong

    ·     behaving in an ethical manner, conforming to the rules and values of Australian society.

    The good character requirement looks at the essence of the applicant.  Their behaviour is a manifestation of their essential characteristics.

    This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evidence before their visa application and throughout their migration and citizenship processes. [Emphasis added]

14. Section 10.3.4 of the ACIs provides a non-exhaustive list, drawing from the definition discussed above, of characteristics demonstrating that an applicant is of “good character,” including:

    ·     Respect and abide by the law in Australia and other countries

    …

    ·     Not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example, recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance). [Emphasis added]

15. In the Statutory Declaration and his evidence before the Tribunal, Mr Konneh stated that he drove without a driver’s licence on the relevant occasions because he needed to get to work to earn money to pay his rent and other bills (as he was financially straitened at the relevant time) and there was no public transport to his place of work.  Mr Konneh also stated that he provided the police with false information, on the occasions concerned, to avoid the consequences of (i.e. being penalised for) driving without a licence.  Mr Konneh told the Tribunal that he drove without a licence and lied to the police on the relevant occasions with full knowledge that his conduct was against the law.  Mr Konneh’s conduct demonstrates a lack of respect and disregard for Australian law including, specifically, driving without a licence and providing false information to the police, which points away from Mr Konneh being of “good character” as that expression is understood to mean:  Irving and s 10.3 of the ACIs.

    Serious and minor offences

16. The list contained in s 10.3.4 of the ACIs (discussed above in paragraph 19) is to be considered in conjunction with s 10.5 of the ACIs, titled “Framework for making ‘good character’ decisions”. 

17. Section 10.5.2 of the ACIs states that one issue for consideration is whether the applicant has committed an offence and, if so, whether the offence is “serious” or “minor.”

18. Section 10.5.2 of the ACIs provides that “serious offences” include, but are not limited to:

    ·     crimes of violence (e.g. murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)

    ·     war crimes, crimes against humanity and/or 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

    ·     other offences incurring prison sentences of 12 months or more.

19. Section 10.5.2 of the ACIs states that “minor offences” include:

    ·     shoplifting

    ·     traffic offences resulting in a criminal record

    ·     offences which do not lead to a conviction or sentence. [Emphasis added]

20. Mr Konneh’s offences (as set out above in paragraph 5) are “minor offences” under s 10.5.2 of the ACIs.

    One-off offence or pattern of criminal behaviour

21. The ACIs refer to a list of factors to which consideration should be given by decision-makers.  Of particular relevance here is s 10.5.2 of the ACIs which requires a decision-maker to consider whether an offence was “one-off” or whether it forms part of a pattern of criminal behaviour, noting that:

    A pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them. [Emphasis added]

22. Mr Konneh was convicted of seven offences on three separate occasions (i.e. he was convicted of two offences on 17 October 2011, three offences on 13 January 2012 and two offences on 2 January 2014).  Whilst, as stated above, Mr Konneh’s seven offences are “minor offences” under s 10.5.2 of the ACIs, they nevertheless establish a pattern of behaviour, or, at the very least the genesis of a pattern of behaviour, which demonstrates a disregard for Australian law and indicates that Mr Konneh may not “uphold and obey” the law if Australian citizenship is conferred on him:  s 10.5.2 of the ACIs.

    Mitigating factors

23. Section 10.5.2 of the ACIs lists a number of mitigating factors to be taken into account in deciding whether a person is of “good character” for Citizenship Act purposes, including:

    ·The length of time between the date of the offence and application for Australian citizenship or between the conviction and the application for Australian citizenship;

    ·Whether the applicant has accepted responsibility and shown remorse for their conduct;

    ·Whether the applicant has rehabilitated themselves – whether the applicant has made a conscious effort to obey and uphold Australian laws;

    ·The applicant’s age at the time the offence was committed;

    ·Whether there any extenuating circumstances relating to the offence(s); and

    ·Whether there is 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 and whether they support the application for citizenship.

24. Mr Konneh’s two most recent convictions, on 2 January 2014, occurred less than 12 months ago.  This is an insufficient period in which to objectively ascertain whether Mr Konneh’s 7 convictions on 3 separate occasions over a relatively short period of about 15 months (i.e. from 17 October 2011 to 2 January 2014) represent aberrations or an on-going pattern of criminal behaviour.  What is required is a reasonable period in which Mr Konneh’s enduring moral qualities can be objectively assessed to determine whether he is of “good character”:  Irving and Kakar.  Given the recent proximity of Mr Konneh’s latest convictions, the Tribunal cannot be satisfied, on a reasoned basis, that Mr Konneh is reformed and is of “good character”:  Irving, Kakar and s 10.1 of the ACIs.  A longer period of time is required to ascertain whether Mr Konneh’s convictions have had a salutary effect.  In this regard, the Tribunal endorses the view expressed recently by the Tribunal in Apire v Minister for Immigration and Border Protection  [2014] AATA 193 at [22]:

    The longer the period without offence, the firmer the platform on which a finding of good character may be made.

25. In his Statutory Declaration and in his evidence before the Tribunal, Mr Konneh stated that he now holds a Western Australian driver’s licence, he regrets and is sorry for his past conduct, and that in the future he will “drive carefully and abide by all driving rules” so that he does not “lose[e](sic.) point[s](sic) and risk being suspended from driving again”.

26. Whilst 27 year old Mr Konneh may have accepted responsibility for his conduct, his expressions of remorse are limited and there is no objective evidence of his rehabilitation and a conscious effort to obey an uphold Australian laws:  s 10.5.2 of the ACIs.  There is no evidence of extenuating circumstances in Mr Konneh’s case, his only excuse for driving without a licence and lying to the police being that he needed to get to work to earn money because he was in financially straightened circumstances at the relevant time.  Further, the Character References do little to support Mr Konneh’s position that he is of “good character”.

    Weighing up the decision

27. Section 10.5.4 of the ACIs, titled “Weighing up the decision,” states:

    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 of 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. [Emphasis added]

28. Any mitigating circumstances and explanation provided by Mr Konneh for his conduct do not outweigh Mr Konneh’s behaviour of driving without a licence and lying to the police.  This conduct demonstrates a disregard of Australian law and does not accord with Australia’s community standards:  s 10.5.4 of the ACIs.

29. In providing false information to the police on two occasions, Mr Konneh has demonstrated a proclivity towards dishonesty to evade the legal consequences of his actions, which demonstrates a failure to abide by an uphold Australian law and does not accord with Australian community standards:  s 10.5.4 of the ACIs.

30. In such circumstances, it cannot be said that Mr Konneh has objectively demonstrated “enduring moral qualities” which represent “good character” over a sufficient period:  Irving, Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [64], [67] and [71] and Chapter 10 of the ACIs.

1. In conclusion, the Tribunal finds that, on balance, Mr Konneh is not of “good character” pursuant to s 21(2)(h) of the Citizenship Act and he should not, therefore, be granted Australian Citizenship. In reaching this conclusion, the Tribunal acknowledges with approval the following comments of the Tribunal in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]:

   The grant of Australian citizenship is a privilege not bestowed lightly.  It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts.  It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State.  The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community. [Emphasis added]

2. The refusal to grant Mr Konneh citizenship at this time does not preclude Mr Konneh from applying for and being granted citizenship in the future, once a reasonable amount of time has passed since his most recent convictions (on 2 January 2014), to enable an objective assessment of his “enduring moral qualities”:  Irving, Fenn and Chapter 10 of the ACIs.

   Decision

3. For the above reasons, the Tribunal affirms the Citizenship Decision.

I certify that the preceding 38 (thirty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

…………[sgd T Freeman]…………………………..

Associate

Dated     18 December 2014

Date of hearing	17 December 2014
Representative for the Applicant	Self
Representative for the Respondent	Mr A Gerrard
Solicitors for the Respondent	Australian Government Solicitor