SKML and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 2873

SKML and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2873 (11 August 2020)

Division:GENERAL DIVISION

File Number:          2019/1106

Re:SKML  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:11 August 2020

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant is of good character – high range PCA – assault – domestic violence – imposition – good behaviour bond – licence disqualification – Citizenship Policy – Australian Citizenship Procedural Instructions – decision under review affirmed 

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

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

SECONDARY MATERIALS

Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act

Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Dr L Bygrave, Member

11 August 2020

INTRODUCTION

1. The applicant, SKML, is 65 years old. He is a citizen of the Republic of Fiji and currently holds a subclass BB-155 (Resident Return) permanent visa.

2. On 6 December 2017, the applicant made an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The applicant’s application was refused by a delegate of the Minister for Home Affairs (the Minister)[1] on 15 February 2019 on the basis that he did not meet the good character requirement in paragraph 21(4)(f) of the Act.

   [1] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. On 28 February 2019, the applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review.

5. This application was heard by the Tribunal in Sydney on 2 July 2020. The applicant attended the hearing and gave oral evidence by videoconference.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   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.

7. Relevant to this application, subsection 21(4) of the Act sets out the eligibility requirements for Australian citizenship for a person aged 60 years or over as follows:

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

   (a) is:

   (i) aged 60 or over at the time the person made the application; and

   …

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

   Citizenship Policy

8. While the Act does not define the term ‘good character’, the Citizenship Policy offers guidance on the interpretation and application of the good character requirement. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]

   [2] [1979] AATA 179; (1979) 2 ALD 634.

9. Chapter 11 of the Citizenship Policy sets out the following policy guidance I should consider when assessing whether a person is of good character. The decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 is cited as guidance to the definition of good character:

   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… 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.[3]

   [3] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 145.

10. The Citizenship Policy further states that good character refers to the ‘enduring moral qualities of a person’ as an indication of whether they are likely to ‘uphold and obey the laws of Australia’.[4] The phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.

    [4] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 145.

11. This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. I can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship process.[5]

    [5] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 146.

12. The requirement of character in a citizenship application is discussed by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:

    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.[6]

    [6] [2000] AATA 931 at [8].

13. The Citizenship Policy sets out a non-exhaustive list of characteristics of good character. Relevant to this application, a person of good character would:

    ·respect and abide by the law in Australia and other countries;

    ·be honest and financially responsible (for example, not be in dishonest receipt of public funds);

    ·be truthful and not practice deception or fraud in their dealings with the Australian Government; and

    ·not be violent and not cause harm to others through their conduct.

14. As set out in the Citizenship Policy, the question for decision makers is whether any mitigating factors and/or explanation provided by the applicant outweigh the behaviour in question. This assessment requires considering an aggregate of qualities and weighing up factors, applying community standards.

15. Mitigating factors relevant to this application include whether a person of good character would have behaved the way the applicant did, the amount of time that has elapsed since his offending, whether the applicant has demonstrated that he has upheld and obeyed the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to his offences: this requires looking holistically at the applicant’s behaviour over a lasting or enduring period of time.

    Australian Citizenship Procedural Instructions (CPIs)

16. Further policy guidance is provided by the Australian Citizenship Procedural Instructions (CPIs), which detail operational instructions and supplement the Citizenship Policy. ‘CPI 15 – Assessing Good Character under the Citizenship Act’ (CPI 15) was issued on 17 April 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Citizenship Act.

17. Relevant to this application, CPI 15 states that Australian community standards, as reflected in Government initiatives, indicate that ‘domestic violence…in any form is not acceptable in the Australian community’.[7]

    EVIDENCE

    [7] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.3.

    The applicant’s criminal history

18. The applicant’s criminal history includes the following offences:

    ·Moss Vale Petty Sessions, 17 June 1981: High range (prescribed concentration of alcohol) PCA and unlicensed driver – $750 fine and license disqualification for 12 months;

    ·Redfern Petty Sessions, 23 November 1984: High range PCA – $800 fine and license disqualification for two years;

    ·Sydney District Court, 11 March 1986: Imposition (three charges) – convicted on each charge and released on entering recognizance self $1,000 to be of good behaviour for three years;

    ·Campsie Local Court, 9 August 1990: Assault occasioning actual bodily harm and assault – convicted on each charge;

    ·Liverpool Street Local Court, 30 January 1991: Assault and fail to appear – convicted and released on entering recognizance self $500 to be of good behaviour for two years (fail to appear charge dismissed);

    ·Campsie Local Court, 22 July 1991: Assault – charge dismissed;

    ·Ryde Local Court, 18 June 1992: High range PCA – license disqualification for three years;

    ·Ryde Local Court, 23 July 1992: Assault and breach apprehended violence order (AVO) – convicted and released on entering recognizance self $500 to be of good behaviour for three years;

    ·St James Local Court, 21 March 1995: Make false statement to migration officer – convicted and sentenced to imprisonment for two months released on entering recognizance self $500 to be of good behaviour for 12 months;

    ·Liverpool Local Court, 4 July 2007: Middle range PCA – license disqualification for 12 months; and

    ·Campbelltown Local Court, 2 October 2008: Common assault (domestic violence) – fine $500.[8]

    [8] Exhibit T-T7, page 66.

    The applicant’s evidence

19. The applicant provided written statements dated 30 June 2019 and 25 February 2020 about his life including the history of his family situation, his participation in community activities and past offending behaviour. He also gave oral evidence at his hearing.

20. Mr ‘W’, a legal practitioner assisting the applicant, filed a ‘Statement of Issues and Facts on Behalf of the Applicant’ with the Tribunal dated 25 October 2019. This document includes further information on the applicant’s history.

21. The applicant was born in 1954 and first came to Australia in 1976. He played first grade rugby for various Sydney clubs between 1977 and 1979. He returned to Fiji in 1980 before moving to Bowral to play rugby league in 1981 and 1982. He then moved back to Sydney in 1983 and continued to play rugby until 1985.

22. The applicant has six children from his first marriage; all of these children were born in Australia. He partnered for a second time around 1994 and had three more children who were also born in Australia.

23. Both in his statements and during his oral evidence, the applicant acknowledged his history of offences although he had difficulty in recalling details. He accepted that he used to have a problem with consuming alcohol – he would ‘drink to drown his sorrows’ and ‘have a few beers to relax’ – and admitted his offences of high range PCA while driving. 

24. The applicant could not remember details about his conviction on three charges of imposition in 1986. He said that he believed this related to a period in the 1980s when he was receiving social security payments while employed on a casual basis and he did not declare his employment or income to the Government; he subsequently had a debt that he repaid. The applicant was unable to recall anything about his conviction for making a false statement to a migration officer in 1995.

25. Regarding his convictions of assault and breaching an AVO between 1990 and 1992, the applicant said that his relationship with his first wife was violent at times. He contended that his ex-wife acted aggressively and he responded in self-defense. He could not recall his court experiences or whether he pled guilty but said that he was not the only person at fault during most of these incidents.

26. The applicant disputed the details of his conviction on 2 October 2008 for common assault (domestic violence). His version of this incident was that his then ten-year-old son and nine-year-old daughter were fighting and he intervened to separate them by pulling away his son. He said that he and his then-partner, the mother of the children, began arguing and she called the police; he was later arrested, charged and convicted of common assault of his son.

    The evidence of Ms ‘R’

27. At the Tribunal hearing, the applicant was supported by two of his children. His daughter, Ms ‘R’, filed a letter of support and provided oral evidence. Ms ‘R’ stated that she was ‘in full support of [her] father gaining his citizenship as he has always been a great father, role model and now grandfather… Taking into consideration his age, we would like to secure his future here in Australia with us, his children and family’.[9] Ms ‘R’ provided supporting oral evidence about her father to the Tribunal, particularly emphasising that he was of good character and a supportive father. She acknowledged the history of her parents fighting when she was a young child but said her father had ‘always put his children first’, had learned from his past mistakes and is viewed as a positive role model within the Fijian community in Australia. Ms ‘R’ accepted that she was unaware of much of her father’s criminal history due to her young age at the time of many of his convictions.

    [9] Exhibit A15.

    References in support of the applicant

28. The applicant provided the Tribunal with a number of references to verify his good character. The Citizenship Policy states that ‘referee reports can shed light upon an applicant’s character’ and provides advice about the level of weight to be given to references.[10]

    [10] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 155.

29. Written references submitted by the applicant date from 1985 and are by friends, colleagues and family members. These references describe the applicant as a successful rugby player, well-mannered, honest and reliable, and explain his supportive contribution to rugby union and the Fijian community in Australia. The applicant also filed documents that show some of the positive achievements of his children.

30. I note that none of the references filed by the applicant are statutory declarations and only the reference of Mr ‘W’ dated 25 October 2019 referred to his history of offences. Relevantly, Mr ‘W’ set out his understanding of the character requirements in view of the applicant’s past behaviour and opined that the applicant:

    …has, over a lengthy period of time, been determined to effect his rehabilitation and now is a reformed citizen and of such otherwise good character and moral quality, that he would uphold the important rights and freedoms of being an Australian Citizen.[11]

    [11] Exhibit A12.

    CONSIDERATION

31. The sole issue for determination by the Tribunal is whether the applicant satisfies the requirements of good character in paragraph 21(4)(f) of the Act.

32. Having regard to the policy guidance set out in the Citizenship Policy and CPI 15, I make the following findings:

    ·most of the applicant’s criminal convictions are historical, dating between 1981 and 1995;

    ·his historical offences have involved convictions of serious incidents, including assault, breach of an AVO and deception in his dealings with the Australian Government;

    ·a period of over 11 years has passed since October 2008, the date of the applicant’s most recent conviction; and

    ·the applicant has provided multiple references to show he has made positive contributions, both as a father and to the Fijian community in Australia.

33. Nonetheless, I have significant concerns about the applicant’s character as he demonstrated very limited insight about his criminal history at the hearing. He was unable to recall details about specific and serious incidents, and attributed his criminal offences to his consumption of alcohol and/or the behaviour of his ex-partners. He has not undertaken any programs of rehabilitation.

34. With regard to his conviction of common assault in October 2008, the applicant explained this incident as him simply separating his two young children who were fighting. I find that this explanation is completely inconsistent with a charge for and conviction of common assault in the Court. As there are no supporting statements or evidence from either his ex-partner or his children who were present, I have difficulty accepting this version of the events by the applicant.  

35. I also note that violence is never acceptable in the Australian community and is not consistent with the privilege of Australian citizenship.

36. Having regard to the character references provided by the applicant, I further note that the Citizenship Policy states that referee reports should acknowledge any offences by the applicant and explain why the applicant is nonetheless considered to be of good character. The Policy further notes that:

    Decision makers should give very little weight to references which do not acknowledge the offence or incident...

    More weight should be given to references made as statutory declarations… [12]

    [12] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 155.

37. In view of this requirement, I am not satisfied that the information in the character references provided in support of the applicant outweigh his offences, particularly as none of the references are statutory declarations.

38. Weighing all the available evidence, I am not satisfied that the applicant is of good character at this time as required by the Act and the Citizenship Policy. The applicant’s criminal history includes convictions of assault, imposition, breaching an AVO and driving with high range PCA. I find any mitigating factors do not outweigh the applicant’s offending or support a finding that he is of good character over a lasting or enduring period of time.

    CONCLUSION

39. In considering all of the relevant circumstances, I am not satisfied that the applicant meets the requirements of paragraph 21(4)(f) of the Act. I note that this conclusion does not preclude the applicant from making a further application for citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he does meet the requirements to be granted Australian citizenship.

    DECISION

40. The Tribunal affirms the decision under review.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 11 August 2020

Date of hearing:	2 July 2020
Applicant:	Self-represented
Counsel for the Respondent:	Ms Grace Ng, Australian Government Solicitor