Seo and Minister for Home Affairs (Citizenship)
[2019] AATA 3649
•19 September 2019
Seo and Minister for Home Affairs (Citizenship) [2019] AATA 3649 (19 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6034
Re:Youngjae Seo
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:19 September 2019
Place:Sydney
The decision under review is set aside and the matter remitted to the Respondent for reconsideration with a direction that the Applicant meets the requirements of section 21(2)(h) of the Australian Citizenship Act 2007.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal – whether applicant of good character – possess amount of precursor prescribed by regulations – conceal serious indictable offence of another person – consideration of applicant’s character – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Migration Act 1958
CASES
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
BOY19 v Minister for Immigration and Border Protection [2019] FCA 57
Chen v Minister for Immigration [2007] AATA 1815
Do and Minister for Immigration and Border Protection [2016] AATA 999
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Home Affairs v G [2019] FCAFC 79
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Kalakoda and Minister for Home Affairs (Citizenship) [2019] AATA 3408
Mah v Minister for Immigration and Border Protection [2018] AATA 416
Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
Shi v Migration Agents Registration Authority [2008] HCA 31
Sui and Minister for Immigration and Citizenship [2008] AATA 1062
The Trustees for Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
19 September 2019
Mr Youngjae Seo (the Applicant) applied for citizenship by conferral under the provisions of section 21 of the Australian Citizenship Act 2007 (the Act) on 26 April 2017. That application was refused by the Minister’s Delegate on 21 September 2018 on the grounds that the Applicant was not a person of “good character” as required by the Act.
On 17 October 2018 the Applicant applied to this Tribunal for a review of that decision and his application was heard by the Tribunal on 5 September 2019.
PERSONAL DETAILS
The Applicant was born in January 1986[1] and is a citizen of the Republic of (South) Korea. He arrived in Australia in October 1997. On 7 February 2013 he was granted a BB 155 (Permanent) visa which is still current.
[1] Section 37 Tribunal Documents at [22].
In December 2010 he was convicted of two offences and sentenced for each as follows:
·Possession of a prohibited amount of precursor materials: for which he was sentenced to a 3 year good behaviour bond; fined $7,500 and required to pay court costs;
·Concealing a serious indictable offence of another person: for which a conviction under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was recorded with no other penalty.[2]
[2] That section provides, 10A(1) “A court that convicts an offender may dispose of the proceedings without imposing any further penalty.”
LEGISLATIVE FRAMEWORK
This can be outlined with relative simplicity.
Under the Act (section 21) a person is eligible to seek citizenship by conferral provided that they meet certain requirements which are specified in that section. These are enumerated in section 21(2) from (a) to (h) and all of the requirements must be satisfied. In the event that they are, then the applicant may be considered for citizenship. It is mandated by the Act that the Minister must make a decision to grant or to refuse a citizenship application (section 24(1)) but has discretion in reaching that decision – he/she may grant or not grant the application. Finally, citizenship only becomes enlivened once the approved individual has taken the mandated pledge of commitment (section 26).
One of the section 21(2) requirements which must be met is that the person:
(h) is of good character at the time of the Minister’s decision on the application.
This requires the Minister to be satisfied that the applicant is of good character at a specific time, namely when the decision on the application is made. The Minister’s authorised Delegate made that decision on 21 September 2018, believing that, at that date the Applicant was not a person of good character.
The Tribunal notes that the Delegate, in assessing the Applicant’s claim was otherwise satisfied that the Applicant met the requirements of subsections (a) to (f) inclusive of the section, and that the Applicant had successfully completed the citizenship test. The requirements of subsection (g) which relate to an applicant’s close ties with Australia and their likelihood of continuing to reside in Australia was not assessed.[3]
[3] Section 37 Tribunal Documents at [14].
The Administrative Appeals Tribunal Act 1975 puts the Tribunal in the shoes of the original decision maker and applications for a review of a ministerial decision (by the delegate) must be based upon evidence available to the Tribunal at the time of its hearing, some of which may not have been available to, or before, the original decision-maker at the time of their determination.[4]
[4] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
APPLICATION OF THE CITIZENSHIP POLICY
In making its de novo decision the Tribunal is bound by prior authority of the courts and guided, although not bound, by the provisions of the Citizenship Policy (the Policy) promulgated by the Minister.[5]
[5] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at [640].
The Policy (effective from 1 June 2016) states its role to be:
“to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.”[6]
[6] Citizenship Policy (1 June 2016) at [1].
The Tribunal notes that prior to the introduction of the Policy as from 1 June 2016, decision-makers were required to have regard to what were then the Australian Citizenship Instructions (ACIs), That document had a similar opening paragraph as the Policy but included an additional penultimate sentence which read: “Decision makers should be mindful that policy must not be applied inflexibly.”
In Minister for Home Affairs v G the Full Federal Court, in reference to a case initiated before the Policy had superseded the ACIs, stated:
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”[7]
[7] Home Affairs v G [2019] FCAFC 79 at [18].
The same caveat applies to the Citizenship Policy.
This contrasts, for example, with the power of the Minister under section 499 of the Migration Act 1958 where legislative authority is given to the Minister to issue “directions” to decision-makers about the exercise of their functions or powers which are biding upon such decision-makers.
There are thus a series of questions which the Tribunal must address:
·What is the meaning of being of “good character”?
·What parts, if any, of the Citizenship Policy are relevant in this decision?
·Does Mr Seo, at this point in time, meet that “good character” definition?
GOOD CHARACTER
The Act contains no definition of what constitutes “good character” but, as noted, in making its determination the Tribunal is guided by judicial interpretation and by the Citizenship Policy.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
“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.”[8]
[8] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.
It is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[9]
[9] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
The Citizenship Policy (at p. 145) elaborates this by attaching to the phrase “enduring moral qualities”, where it notes the term “moral” “does not have any religious connotations”, the further qualifications, namely:
·“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.”
It is relevant that at page 147 of the Policy where the question of what constitutes being of good character is elaborated, the Policy gives the following example:
“… an applicant of good character would …
be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
……..
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 with licence or insurance)…..”
Relevantly, in Mr Seo’s case the court has also made clear that:
“When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”[10]
[10] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
CONSIDERATION OF MR SEO’S OFFENCES
As noted above, the Applicant was convicted of two offences which related to a series of events which took place in 2009.
In his Statement to the Tribunal, the Applicant outlines these as follows:
During my school days, my hobby was play computer games as well as soccer and baseball with friends in the park. I led my friends with leadership as I helped others rather than myself. Since high school, I had worked in the restaurant as a part-time job, and since servicing people fits my apt, and I had worked hard in order to do my own business. One day my high school senior introduced me to a friend around in 2008 or 2009. He was a lawyer; he bought me a dinner, and gave me a favour, advising me a lot about future successful life. At that time, I was in the middle of 20’s, and the words that the person who has succeeded in his life told were worthwhile. One day he asked me if I and my friend that I like could lend the garage with my name, and I asked him back if he wanted to put his stuff there. He replied to us as he needed a place to put some of the old stuff at home, and therefore, I lent the self-garage in Kennard self-storage with my name to him. For a while, I was so busy that the contact with him became rare, and one day he called me to make a payment for the garage lent. Even though I told him that I was so busy, I said pardonably “yes” to him, going to the self-storage to make a payment. However, suddenly, detectives caught me, driving me to the police office, which was ridiculous and terrified me. I was examined in the police office, and said that the stuff in the storage was not mine. After examination, I was sent to the trial, and the trial took almost 2 years. In fact, the 2 years made me hard mentally and physically. On trial, the stuff was not mine, but the garage was owned by me, which was a problem, and thus, I was sentenced good behaviour bond for 3 years. After that, I suffered from serious depression, and also, a sense of loss, reflecting on myself a lot. In addition, I‘ve learned many things from this experience, becoming careful usually.[11]
[11] Applicant’s Statement (17 February 2019).
It is suggested in a Police Report that the storage unit was first obtained/rented in the name of the Applicant in December 2008, or that at the very least, this was the date upon which the Applicant’s relationship with the other party commenced.[12]
[12] Tribunal Evidence R1 (NSW police Force – Criminal History – Bail Report) at [2].
The date of the offence for which he was charged was 15 September 2009 and he was formally charged on 17 September 2009. When the Applicant was first placed before the Court in September 2010 in respect to the following charges:[13]
·Supply prohibited drug ˃= commercial quantity – S1
·Possess precursor intended to use in manufacture/production – T1.
[13] Tribunal Evidence R1 (NSW police Force – Criminal History – Bail Report).
Both of these charges were subsequently withdrawn and the Applicant then appeared before the Court on 20 December 2010 where he was charged with:
·Possess amount of precursor prescribed by regulations – T1
·Conceal serious indictable offence of another person – T1
·Possess prohibited drug (2 counts)
·Owner/occupier knowingly allow use of drug premises – 1st off
·Goods in personal custody suspected being stolen (not m/v).
The Applicant was convicted on the first two of these offences and the latter three were withdrawn.
Because the Applicant pleaded guilty to the offences there are no sentencing remarks to guide the Tribunal as to the thinking of the Presiding Magistrate in sentencing, but the Tribunal notes that the sentence imposed for the first offence was a good behaviour bond for a period of three years. Under section 9(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as it then was[14], the maximum period for which such a bond could be imposed was five years. No additional sentence was imposed for the second offence.
[14] Repealed in September 2018 and replaced with a system of conditional release orders.
This suggests, very strongly, to the Tribunal that the Court accepted the Applicant’s claims to the effect that he was led, unwittingly, to obtain a storage unit which he allowed some other person to use, without knowledge of the purposes for which they were using that unit. His behaviour was characterised as naivety and failure to make appropriate inquiries rather than a degree of criminality.
There is no evidence before the Tribunal as to what the precursor material was, nor the precise quantity involved. Nor is there any evidence related to any other person(s) being charged in relation to the matter. Finally there is no explanation of how it came about that the Police were, it appears, in attendance at the storage unit at the time that the Applicant arrived there to make payment for its rental.
There is no evidence about the identity of the person who persuaded the Applicant to be his catspaw in this undertaking or the usual arrangements in place for rental payments. The Applicant, in evidence to the Tribunal stated that on the occasion of his arrest he had been provided with cash by this other person to go and make the rental payment.
The Applicant also told the Tribunal that he was legally represented before the Court by a Korean-speaking lawyer and that he was not fully aware of what the exact nature of the concealment charge actually was. In any event he denies any knowledge of the activities of the other party/parties in question.
CONSIDERATION OF ISSUES
As the Court has stated, in making assessments of character issues here criminal offences are concerned, regard should be given to matters such as the seriousness of the crime, the length of time since its commission and any evident of rehabilitation of the offender.[15]
[15] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
Seriousness: The Act itself provides no material guidance as to what is to be considered a “serious offence”. Again this contrasts with the provisions of the Migration Act where such a definition exists.
The “definitions” section of the Act (section 3) defines a “serious prison sentence” and “serious repeat offenders”, but not “serious offence”.
The only mention in the Act comes in section 34 which deals with revocations of citizenship and provides that a revocation may be made where the person has committed a serious offence defined as
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b) the person committed the offence at any time before the person became an Australian citizen.
None of the 49 odd references to the term “serious” in the Policy provide for such a definition.
The Tribunal notes that, in relation to the offences for which the Applicant was convicted, the former offence of possession of precursor drugs was laid under s 24B of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of 1,000 penalty units or 5 years imprisonment, or both. The offence of concealing was laid under s 316 of the Crimes Act 1900 (NSW) and attracts a maximum penalty of 2 years imprisonment.
Although the Tribunal must make its own decision de novo on the material before it at the time of hearing, it does note that the Delegate, in their original decision made it explicit that:
“I am satisfied that you have not been convicted off an offence that would ordinarily be considered to be serious.”[16]
[16] Section 37 Tribunal Documents at [16].
In a further submission to the Tribunal, the Respondent accepts that the Applicant’s offences should be regarded as “fall(ing) within a ‘middle’ range of seriousness.”[17]
[17] Respondent’s Supplementary Submissions (dated 9 September 2019) at [5].
The fact that the Magistrate did not proceed to impose a custodial sentence and instead imposed a bond in the mid-range of the available tariff suggests that the Magistrate regarded this offence (which was also a first offence) as not being at the serious end of the offending scale.
This is the position adopted by the Tribunal. Although Mr Seo was convicted of two offences, and although the Tribunal must not “go behind” the determinations and sentences of the Court,[18] it finds guidance from the Court in believing that Mr Seo’s offences were not significantly or severely “serious” for the purposes of his citizenship application.[19]
[18] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Mah v Minister for Immigration and Border Protection [2018] AATA 416.
[19] Kalakoda and Minister for Home Affairs (Citizenship) [2019] AATA 3408 at [31] per Deputy President Pascoe AC CVO.
The Tribunal’s task is not made any easier by there being no evidence before it in relation to any other charges being laid in relation to the material found in the storage unit let alone any other convictions or sentences arising from this incident.
Length of time since offence: The Respondent put to the Tribunal that the length of time to be taken into account should be calculated from the date of the expiry of the Bond whereas the Applicant urged that it should be from the date of the original conviction. This gives a range of some 5 years and 9 months to 8 years and 9 months.
The Tribunal has frequently examined the question of the length of time which should have elapsed between the last commission of an offence and the granting of an application for citizenship where issues of “good character” are central. This is a multi-factorial exercise as made clear in Kakar (above).
In Assafiri the Tribunal considered an applicant with an extensive criminal record and stated:
[67] It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. 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 individual case.
[71] I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.[20]
[20] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35.
In Ahori the Tribunal, in relation to domestic violence offences (again, not to be equated with Mr Seo’s matters) noted it concern about issues of frequency and recency:
[83] There is nothing in this decision which would preclude the Applicant from lodging another application in due course. However, such an application would need to be made after the expiration of some time and only if the Applicant has no further domestic violence or other issues that would preclude the granting of citizenship. The record of transgressions by the Applicant is too frequent and too recent for the Tribunal to conclude that he was at the time he made the application, or now, a person of good character for the purposes of the Act.[21]
[21] Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601.
In Mahmood the Tribunal addressed similar matters where a relatively short period of time had elapsed since the applicant’s last offence:
[7] In the current matter it was shown at the hearing that the applicant had a string of traffic offences. These are set out in the applicant’s NSW Driving Record found at T14 of the T documents filed in this matter. They include, among other offences, seven speeding offences, using a mobile phone, not obey a stop sign, turning improperly, not wearing a seat belt and disobey traffic lights. The applicant’s license was suspended from 8 September 2015 to 7 January 2016 but was not implemented and, instead, the Applicant was placed on a good behaviour bond from 9 September 2015 to 7 September 2016.
[9] While each individual matter might be excused, the repeated nature and the cumulative effect is such as to indicate a disrespect and/or disregard to that aspect of the law which all have to do with the public users of the road.
[15] I have also taken into consideration that the applicant has completed a Traffic Offenders Rehabilitation Programme. This was completed on 19 March 2016. Whilst this is commendable I believe that more time is required to see if this has been of lasting benefit.[22]
[22] Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033.
In Sharma the Tribunal was not convinced that a two year elapse since the most recent offence was sufficient for it to the confident that the applicant had reformed:
[48] There is no evidence that Mr Sharma has been charged with any offences since the expiry of the bonds in 2013 other than a traffic infringement. Nonetheless, the relatively short period between the expiry of the bonds and the date of this decision, being just over two years, means that I cannot be satisfied, without more, that Mr Sharma has reformed.[23]
[23] Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608.
In Fenn,[24] the Tribunal was concerned that five years might not have been enough for the applicant to demonstrate a restoration of character to the required level and in Sui[25] six years was thought insufficient. However in both these cases the offences were significantly more serious than they are in relation to Mr Seo and here the Tribunal repeats the finding in Assafiri that in relation to the elapse of time “How long that will be will depend on all the circumstances of the individual case.”[26]
[24] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
[25] Sui and Minister for Immigration and Citizenship [2008] AATA 1062 at [72].
[26] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [67]
In this instance the Tribunal accepts that the length of time, be it nearly six years or nearly nine years, is sufficient for the Applicant to be given credit for having maintained a record without any further convictions for any offences.[27]
[27] The Tribunal is aware of the fact that the Applicant has been charged with other offences but he was found not guilty of those. Tribunal Evidence at R1.
Rehabilitation: (a) Character references: In this respect the Tribunal has considered the character statements given on behalf of the Applicant and the oral evidence given by his friend Byong Woo Son.
The Tribunal notes the proper caveats urged upon it by the Respondent in relation to several of these references to the extent that they are not in the form of a Statutory Declaration and that a number of them exhibit either no, or only very scant knowledge of the criminal convictions of the Applicant.[28]
[28] Respondent’s Statement of Facts, Issues and Contentions at [43]-[48].
The Tribunal agrees that many of them are of limited utility, but to the extent that they do demonstrate appropriate knowledge of the Applicant and his offences, they otherwise speak to his good character, his willingness to assist others, his participation in church activities and continuous period of paid employment. Mr Son in his evidence characterised the Applicant as a person willing to go out of his way to help others and to behave as the responsible “designated driver” for his group of regular dinner/drinking or “hanging out” friends.
(b) Employment: The Tribunal was concerned about what appeared to be contradictory statements by the Applicant about his employment record. The Applicant’s evidence was to the effect that he was the sole shareholder of a company called Vita Plus Pty Ltd but that that company had undergone a name change some 3½ years ago and that he now “gained fund, and ran my own business, running a cleaning company, named “Green Zone Pty ltd (sic) at present.”[29]
[29] Applicant’s Statement (17 February 2019).
In further submissions to the Tribunal via his counsel, the Applicant confirmed that Vita Plus Pty Ltd was still a registered company but that it now operated under the name Greenzone Cleaning Services. Greenzone Cleaning Services is just a registered business name, being a name wholly owned by Vita Plus Pty Ltd. Greenzone was registered on this basis on 30 April 2018.[30]
[30] Applicant’s Further Submission, dated 11 September 2019 attaching relevant ASIC certificates.
The Tribunal accepts that the Applicant has been working in this cleaning service since 2018 having previously worked in some form of import business dealing with physiotherapy and cosmetic supplies.
(c) Educational activities: It appears that, at least until the time of his court appearance, the Applicant was enrolled in TAFE studying for an Advanced Diploma in Management.[31] The record shows that he completed 8 modules before discontinuing his participation sometime in 2012 which was his last year of enrolment. It appears that he has one or two more modules to complete for the Diploma and he told the Tribunal that he intended to do so, although he was uncertain as to when this might occur. The Applicant told the Tribunal he stopped studying at TAFE as a direct result of the trauma of being involved in court proceedings and felt himself thereafter unable to give the degree of concentration required to his studies.
[31] Applicant’s Evidence attached TAFE Academic Record dated 6 February 2019.
This is however, at odds with what the Applicant stated in his written submission where he asserts that: Since that, I went to TAFE, starting study again. Finally, I completed a Diploma of business and Advance Management, Business.[32] It does the Applicant no good to provide the Tribunal with contradictory statements, especially one so open to objective verification. He has not completed his Diploma.
[32] Applicant’s Statement (17 February 2019).
(d) Questions of Honesty: The Respondent drew the attention of the Tribunal to questions of the Applicant’s “honesty” in his dealings with the Department, and in particular drew attention to the manner in which the Applicant had completed his citizenship application form.
On that form a question is asked:
“Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application and any ‘spent’ convictions)?”
To this the Applicant answered “Yes”. That was truthful.
The form then requires “Give details”. In response to this the Applicant wrote
“One of my friends ask me a favour to keep his property item to use on my name in private garage called Kenndard (sic) storage. Police find out that item was serious item..”
The Respondent puts it to the Tribunal that this does not constitute a full and honest statement of the Applicant’s offences and that he was being less than candid by failing to also disclose the offence of concealing information.
The Tribunal does not accept this submission. It agrees that the response is perhaps less than fulsome, although the response as given takes up almost the entire space provided for such an answer on the form.
The Applicant is not particularly articulate despite his lengthy residence in Australia and his competent level of English language understanding and fluency. The Tribunal believes he has stated the nature of his primary offence to the best of his ability and that his understanding of the concealment charge is not, and was not at the time of completing the form, particularly well defined. The Tribunal does not accept the submission of the Respondent that the Applicant was being deliberately misleading or dishonest.
The Tribunal was more concerned that, in oral examination, when the Tribunal asked the Applicant if he had “been before the court” on any other matters after his 2010 court appearance, he answered that he had not. He stated this quite clearly. The Respondent subsequently produced a copy of a Police Report[33] which had not previously been before the Tribunal which indicated that the Applicant was before the Court again in November 2013 when he was charged with two offences, in relation to which he was found not guilty by verdict.
[33] Tribunal Evidence R1 (NSW police Force – Criminal History – Bail Report).
Counsel for the Applicant put it to the Tribunal that, in using terminology such as “before the court”, it had asked a question which the Applicant was unable to understand properly as being a phrase not in “common usage”. The Applicant himself said, when recalled to be further examined in the matter, that he had misunderstood the question and had not intended to mislead or give false evidence. The Tribunal is not absolutely persuaded of this explanation but is prepared to give the benefit of the doubt to the Applicant.
(e) Age at time of offence: The Tribunal accepts that at the time of his offending, the Applicant was a relatively young man, being then 23 years of age and having been in Australia just under 12 years. He is now a more mature 33 year old man and the Tribunal accepts that he has learned from his experiences. Youthfulness itself is no excuse for criminal or anti-social behaviour but the Tribunal accepts that at the time the Applicant may have been more vulnerable to the sort of community and peer pressure which he suggests led him to be naively caught up in unlawful activities.
(f) Appearance as a witness: The Applicant gave evidence to the Tribunal and was cross-examined by the representative of the Minister. Aspects of his evidence are dealt with throughout this determination. However he impressed the Tribunal as a somewhat naive individual, prone to succumb to peer pressure and obviously anxious to please other people. He appeared somewhat vague in terms of recollection of details about the offence in question which, admittedly, took place some 10 years ago and resulted in the relatively unburdensome imposition of a bond rather than the trauma of a custodial sentence which might trigger a more acute level of memory. He expressed contrition in relation to the offences and the Tribunal accepts that he has made an effort to ensure that he has not associated with people who might induce him to commit further offences.
GENUINE COMMITMENT TO ACQUISITION OF CITIZENSHIP
In the process of evaluating and assessing the original application, the Minister’s delegate wrote to the Applicant on 20 March 2018 informing him that there was information before the delegate which suggested that the applicant might not be a person of good character. The Applicant was invited to comment on this before the delegate proceeded to further consideration of the application. The Applicant was given 28 days thereafter to respond.[34] The Applicant failed to do so within that time limit but apparently contacted the Department to ask for an extension of time to respond. This was granted until 15 May 2018. There was still no response from the Applicant and so the Delegate proceeded to make his/her final determination.
[34] Section 37 Tribunal Documents at [41]-[43].
When asked at the hearing why he had failed to respond the Applicant gave no satisfactory explanation other than to say that he did not have access to, nor apparently had sought any help with formulating his response.
The Respondent put to the Tribunal that this evidenced a lack of serious commitment on the part of the Applicant in pursuing his citizenship application and that this dilatory approach to such an important matter should be weighed negatively against the Applicant when assessing matters of “good character”.
While the Applicant did himself no favours by failing to respond when given the opportunity, for the Tribunal to follow such a course of action as suggested would led it into error.
Such consideration would be taking into account a matter which is not relevant to an assessment of what constitutes good character as was outlined in the recent Federal Court decision in BOY19.[35] Although there are significant differences in the exact circumstances of that case compared with that of Mr Seo’s, the principles laid down in that decision, by O’Bryan J must be followed. His Honour held:
[85] An initial question arises whether the Member relied on the applicant’s “lack of diligence” in reaching the conclusion that the Member was not satisfied as to the good character criterion in s 21(2)(h). …………
[86] That leads to the question whether the applicant’s lack of diligence or tardiness was relevant to the statutory assessment under s 21(2)(h). Counsel for the applicant submitted that a lack of diligence or being “tardy” in providing paperwork to government bodies is not relevant to the applicant’s “enduring moral qualities”, and that that was especially so given the Member’s conclusion (at [67]) that the applicant had not attempted to hide information or avoid disclosure. Counsel for the Minister submitted that it was open on the Member’s assessment of the evidence for it to consider that the particular kind of lack of diligence or civic responsibility found in the present case did diminish a person’s character. The question that is raised by this ground of appeal is whether a person’s tardiness, or lack of responsiveness, in providing documentation to a government body, when there is no intention to hide information or to mislead or deceive, and the tardiness works against the person’s best interests, is conduct that is relevant to the assessment of the person’s character under s 21(2)(h).
[87] As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities. The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.
[88] Consistently with Chapter 11 of the Citizenship Policy 2016, respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship. Conversely, disrespect for the Australian Government, the laws of Australia and governmental departments reflects adversely on a person’s character in the statutory sense.
[89] A more difficult question is whether “tardiness” in dealing with a government body, in and of itself, is relevant to the assessment of a person’s character. Tardiness can have many causes, not all of which will be relevant to the question of character in the statutory sense. In the worst case, tardiness may be caused by a desire to withhold information from a government body and thereby mislead or deceive the body. Tardiness may also be caused by disrespect for, or disregard of, a particular government body or department. If such causes were present, it would be open to conclude that such attitudes weighed adversely in the assessment of a person’s character in assessing eligibility for citizenship. Conversely, tardiness may be caused by intellectual difficulties, or language difficulties, or a lack of familiarity with or comprehension of particular governmental requirements and procedures. In such circumstances, it would be wrong to conclude that tardiness ought to carry any weight at all in the assessment of character.
[90] In the present case, the Member found that the applicant’s explanations for failing to provide documents were cogent and acceptable (at [31]). The Member did not interpret the applicant’s conduct as an attempt to hide information from or avoid disclosure to the Department (at [114]). The Member also found that the applicant had limited English language skills and for most of the time during his dealings with immigration officials he had limited access to legal support (at [116]). The Member further found that the applicant’s interaction with immigration officials may have been conditioned by his experiences with officialdom in Pakistan, referring to expert evidence that it is rare for members of minorities (such as Hazaras) in Pakistan to see the State as a protective agency and many fear persecution in dealing with agencies, especially the police and the military (at [117]). Given those findings, in my view no basis was established to support a conclusion that the applicant’s lack of diligence in providing documents to the Department was relevant to the assessment of the applicant’s character in the statutory sense. The Member failed to make any finding that the lack of diligence in providing documents to the Department reflected on the applicant’s moral qualities. Rather, all of the findings reflected practical challenges faced by the applicant, including language difficulties, the absence of legal assistance and an understandable lack of familiarity with governmental processes in Australia.
[91] For those reasons, in my view the Tribunal erred in law by taking into account an irrelevant consideration in its assessment of the applicant’s character for the purposes of s 21(2)(h) of the Act, being the applicant’s lack of diligence in producing documents promptly to the Department in order to establish his identity.
[35] BOY19 v Minister for Immigration and Border Protection[2019] FCA 57.
THE BURDEN OF PROOF
As already noted, section 21(2) of the Act enumerates, from (a) to (h) the qualifications or requirements which must be met for an application for citizenship by conferral to be granted by the Minister.
Subsections (a) to (f) are essentially objective – they are matters of fact ranging from the age of the applicant, their residential status or their passing of the Citizenship test.
Subsection (g) is subjective where there is some doubt about the residential status of the applicant and their attachment to Australia, but at least admits of some objective evidence as being able to determine certain matters (e.g. length of residency) one way or another.
Subsection (h) however is almost entirely subjective. Unlike the provision in s 501 of the Migration Act 1958 which provides for an automatic failure of the test of being of “good character” if a person is sentenced to a term of imprisonment of 12 months or more, under the Citizenship Act the onus lies upon the Applicant to demonstrate that he or she is of good character. This was outlined by Senior Member McCabe (as he then was) in Chen:[36]
[18] The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character. Ms Linacre, for the respondent, said the Minister cannot be satisfied about the applicant’s character if there is evidence which calls that character into question.
[21] Where evidence raises a question in the mind of the decision-maker over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Minister (or the Tribunal upon review) to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly – for example, by comprehensively disproving the allegations – but the decision-maker must be provided with a level of comfort about his or her decision.
[36] Chen v Minister for Immigration [2007] AATA 1815.
The Tribunal has outlined its reasons for not holding that the Applicant’s convictions establish to a sufficient degree that the Applicant is not a person of good character, but this is itself insufficient to establish that he is. The question is the “level of comfort” which the Tribunal holds in relation to the applicant’s good character.
CONSIDERATIONS
Central to this is the question of what the Respondent refers to as the Applicant’s “candour”. The Respondent relates this to the Applicant’s “denial of any contemporaneous knowledge of his possession and concealment offences”, together with his responses to the Tribunal’s questions about subsequent appearances before the Courts. In addition, the Respondent questions the Applicant’s alleged failure to “fully understand or accept responsibility for his offending.”[37]
[37] Respondent’s Supplementary Submissions at [6].
The Tribunal is not with the Respondent on this matter. It accepts the Applicant’s statement that he had no knowledge of the activities taking place in the storage unit he had rented. The charge of concealment was brought under section 316 of the Crimes Act 1900 (NSW) which provides in section 316(1) that:
(1) An adult:
(a) who knows or believes that a serious indictable offence has been committed by another person, and
(b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and
(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority,
is guilty of an offence.
There is simply nothing before the Tribunal which would establish that the Applicant knew or believed that an offence was being committed by another person and hence he could not have had information which might have been materially relevant. The Tribunal also notes there is nothing before it to show whether any other person was actually charged with or indicted for a serious offence in relation to this matter.
Given this conclusion it follows that any alleged failure to fully understand or admit responsibility must be judged within that context. The admissions in relevant documentation, although perhaps less than fulsome, were not inaccurate to the point of being false or misleading.
The Tribunal has already determined that the Applicant should be given the benefit of the doubt over the way in which he answered the Tribunal’s initial questions about subsequent court appearances, as explained above.
There remains the matter of the exaggeration of his educational attainment but with 8 out of 10 units of his study completed and the opportunity to actually gain the qualification he claims, the Tribunal does not seek to hold this against the Applicant with any great weight although he should not have made such an exaggerated claim.
The Tribunal accepts that over the last 10 years the Applicant’s record is one without further offending or conviction. It also accepts that he has made an effort to continue in gainful employment and that he has a circle of friends and acquaintances who appear equally law abiding and responsible. It notes his role within this friendship circle. While the Applicant may not have anything to show for himself as a positive contributor to the community that hardly distinguishes him from many other Australian citizens.
Citizenship is a privilege, not to be granted lightly and it should rightly be conferred only upon those who profess and uphold the values of the Australian community. Where applicants have committed offences and been punished in some form or another, its denial is not a form of (additional) punishment.[38]
[38] Fenn v Minister for Immigration and Multicultural Affairs [200] AATA 931 at [8].
Equally it is part of the Australian ethos to display a degree of informed tolerance for those who have committed a certain level of offences in the past and who are thought to be at least given the opportunity for a second chance,[39] especially where they have made some effort to improve their lives and avoid further difficulties.[40]
[39] Do and Minister for Immigration and Border Protection [2016] AATA 999 at [68];
[40] The Trustees for Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
The Tribunal, on balance, has a sufficient level of comfort to include the Applicant in that category of persons.
The Tribunal notes that in their initial assessment of this application the Delegate did not assess the requirement for the Applicant to meet the provisions of section 21(2)(g) related to future residential status or a continuing close association with Australia.[41] This condition still requires to be met if the Applicant’s application is to be successful ultimately.
[41] Section 37 Tribunal Documents at [14].
DECISION
The decision under review is set aside and the matter remitted to the Respondent for reconsideration with a direction that the Applicant meets the requirements of section 21(2)(h) of the Act.
I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 19 September 2019
Date(s) of hearing: 5 September 2019 Date final submissions received: 11 September 2019 Counsel for the Applicant: Mr P Berg Solicitors for the Applicant: Mr M Song, Cambridge Lawyers Solicitors for the Respondent: Mr C O'Sullivan, Australian Government Solicitor
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