Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1374
•30 May 2022
Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1374 (30 May 2022)
Division:GENERAL DIVISION
File Number: 2021/4186
Re:Joseph Alfred Smith
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:30 May 2022
Place:Perth
The decision of the delegate of the Minister dated 15 June 2021 to refuse the applicant's application for Australian citizenship by descent because the delegate was not satisfied that the applicant was a person of good character, is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – s 16(2)(c) of the Australian Citizenship Act – refusal to approve the applicant’s application for Australian citizenship by descent – extensive and serious offending history – Tribunal not satisfied that the applicant is a person of good character – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 16, 16(2)(c), 16(3), 17
Migration Act 1958 (Cth) s 501(3A)
Police Powers and Responsibilities Act 2000 (Qld) s 791(2)
CASES
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3438
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Chen v Minister for Immigration [2007] AAATA 1815
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Odesho and Minister for Home Affairs [2019] AATA 3946
Lual and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3527
SKML and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2873
SECONDARY MATERIALS
Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 15 Assessing character under the Citizenship Act (1 January 2019) cl 3.3
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) ch 11
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
REASONS FOR DECISION
Deputy President Boyle
30 May 2022
THE APPLICATION
The applicant seeks the review of a decision of a delegate of the respondent (Minister) dated 15 June 2021 to refuse the applicant's application for Australian citizenship by descent (the Decision). The application was refused because the delegate was not satisfied that the applicant is a person of good character as required by s 16(2)(c) of the Australian Citizenship Act 2007 (Cth) (Act).
BACKGROUND
The following facts are taken from the Minister’s Statement of Facts, Issues and Contentions filed 17 December 2021 (Minister’s SFIC) and are not in dispute.
The applicant is a 56-year-old citizen of New Zealand who first arrived in Australia on 30 May 1985. On 1 September 1994 the applicant was granted a Special Category (Temporary) (Class TY) (Subclass 444) visa.
On 7 October 2020, the applicant made an application for Australian citizenship by descent.[1] On 16 December 2020, the Department of Home Affairs sent the applicant an email inviting him to comment on adverse information before the Department.[2] The applicant was invited to comment on offences disclosed in his National Coordinated Criminal History Check Report.[3]
[1] R2, T4, 16–25.
[2] R2, T9, 60–9.
[3] R2, T9, 69–72.
In response, the applicant provided character references, certificates of participation in certain programs, and a personal statement.[4]
[4] R2, T10–T13.
On 15 June 2021, a delegate of the Minister refused the application on the basis that the applicant did not meet the good character requirement in s 16(2)(c) of the Act.
On 25 June 2021 the applicant lodged with the Tribunal an application for review of the Decision.
THE ISSUE
The issue for determination is whether the Applicant meets the good character requirement in s 16(2)(c) of the Act.
THE HEARING AND EVIDENCE
The application was heard on 17 March 2022. The applicant was represented by Ms J Samuta and the Minister was represented by Mr A Shinnick. The applicant was the only witness to give evidence at the hearing.
Each of the parties had lodged Statements of Facts, Issues and Contentions (SFICs) and I had before me the following documents:
(a)Statement by the applicant filed 17 March 2022 (A3);
(b)Bundle of documents filed by the Minister on 23 July 2021 pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T-documents) (R2);
(c)Supplementary T-documents filed by the Minister on 17 December 2021 (R3);
(d)Letter of support dated 17 March 2022 from Katie Griffin, AOD Counsellor, Lives Lived Well Rockhampton (A4).
(e)Bundle of documents described as “Further evidence intended to be relied on” filed by the applicant on 16 November 2021 comprising various certificates of participation and letter of support dated 8 September 2021 from Katie Griffin (A2).
LEGISLATIVE FRAMEWORK
Section 16 of the Act relevantly provides:
(1) A person may make an application to the Minister to become an Australian citizen.
…
Persons born outside Australia on or after 26 January 1949
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i)the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii)the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application.
Section 17 of the Act relevantly provides:
(1)If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2)Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
Section 16(3) of the Act relates to persons born outside Australia or New Guinea before 26 January 1949 and is, therefore, not relevant in the present case.
The Department has, from time to time, issued documents setting out, amongst other things, the executive policies relating to, and procedures to be followed in applications for citizenship.[5] The primary executive policy document is the Citizenship Policy.[6]
[5] For a discussion on the different documents falling into these categories see Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3438 at [20]–[32].
[6] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016).
Chapter 11 of the Policy deals with character as that term is used in the Act, and, more particularly, what is meant by “good character”. The overview of ch 11 describes its purpose as follows:
... Good character is not defined in the Act. 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’.
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 issue of character until they are ‘satisfied’, on a reasonable basis that the applicant is, or is not, of good character.[7]
[7] Policy ch 11.
The Policy provides:
What is good character
‘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.
...
Definition of good character
The term ‘good character’ is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
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 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.
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
(3) characteristics which have been demonstrated over a very long period of time
(4) distinguishing right from wrong
(5) 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 evident before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (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.
...
Characteristics of good character
Drawing from the definition outlined in Definition of good character, an applicant of good character would:
· respect and abide by the law in Australia and other countries
· be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
· be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
...
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
...
·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).[8]
…
[8] Policy ch 11.
CONSIDERATION
The parties’ respective SFICs and submissions referred to the Citizenship Procedural Instructions (CPI) issued by the Department from time to time, rather than the Policy (the relevant CPI being the Revised CPI).[9] As I have noted in previous decisions,[10] the process by which and the authority under which these documents are issued is not spelt out in the documents, nor do they identify their author. I am satisfied, however, that the purport and effect of the CPI are to the same effect as the Policy. Counsel for the parties at the hearing agreed that that was the case. It is not disputed that in the present case I should have regard to the Policy and other policy documents.[11]
[9] Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 15 Assessing character under the Citizenship Act (1 January 2019).
[10] See for example Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3438 at [20]–[32]; Lual and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3527 at [19–21].
[11] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
As the CPIs and the Policy note, the term “good character” is not defined in the Act. I must have regard to the ordinary meaning of the words in assessing good character: Irving v Minister for Immigration, Local Government and Ethnic Affairs[12] at [94]. Both the Policy and the CPIs cite Irving as setting out the relevant considerations.[13]
[12] (1996) 139 ALR 84.
[13] See CPI 15 cl 3.3; Policy ch 11.
Justice O’Bryan in BOY19 v Minister for Immigration and Border Protection,[14] having reviewed relevant authorities, summarised at [51] the relevant considerations as follows:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.
[14] [2019] FCA 574.
Justice O’Bryan further noted at [88] that “disrespect for the Australian Government, the laws of Australia and governmental departments reflects adversely on a person’s character in the statutory sense.”
In Odesho and Minister for Home Affairs,[15] Senior Member Puplick held that the onus lies upon the applicant to demonstrate that he or she is of good character, and that the decision maker must be “positively persuaded”[16] that the applicant is of good character (at [84]). In other words, I do not have to form an adverse view of the applicant’s character, rather I must be positively persuaded that the applicant is of good character.
[15] [2019] AATA 3946.
[16] Citing Senior Member McCabe (as he then was) in Chen v Minister for Immigration [2007] AAATA 1815.
In Kakar v Minister for Immigration and Multicultural Affairs,[17] Deputy President Wright stated at [14]:
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.
[17] Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132.
The Minister also referred to Fenn and Minister for Immigration and Multicultural Affairs,[18] wherein the Tribunal commented as follows at [8]:
That Mr Fenn is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship. 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 year's time when he can demonstrate a longer period of positive contribution to the Australian community.
[18] [2000] AATA 931.
I am also mindful of CPI 15, which notes that the seriousness of the offence, patterns of behaviour, the length of time since the offences, the expression of remorse, the age at the time of offending and the personal circumstances of the applicant at the time of the offence as well as at the time of the decision are all relevant matters which may be considered in determining if an applicant is of good character. These provisions are also identified in para 12 of the applicant’s SFIC as being relevant considerations.
Paragraph 13 of the applicant’s SFIC also cites cl 14.1 of CPI 15 which notes that:
There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.
….
If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years.
The above provision is reflective of the principles expressed in Assafiri v Minister for Immigration and Border Protection.[19] Each case is entirely dependent on the facts and circumstances of the offending and the actions taken by an applicant since that time.
[19] [2014] AATA 35.
The applicant’s SFIC at para 17 identifies, among other things, letters of support provided to the National Character Consideration Centre, signed in 2019–2020.[20] Based on the contents of these documents (although they were apparently filed as part of the applicant’s application for citizenship by conferral), they appear to have been prepared as part of the applicant’s representations to the Department relating to the proposed cancellation of the applicant’s visa following his criminal convictions. I note in this regard that the applicant’s visa would have been subject to mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) in any event. A number of the letters of support were very similar in form, expression and substance and appear to be seeking to address the considerations identified in the Ministerial Direction[21] relating to the exercise of the discretion to cancel a visa or to revoke cancellation of a visa.
[20] R2, T4, 26–33.
[21] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
Paragraph 17 of the applicant’s SFIC also lists certificates of participation and a letter evidencing the applicant’s participation in various rehabilitation programs whilst he has been in prison and immigration detention (see [5] above).
The applicant’s criminal record as evidenced in the National Criminal History Report[22] is as follows:
[22] R2, T9/69–72.
Court
Result date
Offence(s)
Result
Rockhampton District Court
30 September 2020
Assaults occasioning bodily harm
Conviction recorded; sentenced to six months’ imprisonment, suspended for nine months
Rockhampton Supreme Court
12 November 2019
Trafficking in dangerous drugs
Conviction recorded; sentenced to two years and six months’ imprisonment; parole release date of 11 May 2020
Rockhampton Supreme Court
12 November 2019
Possessing anything used in the commission of crime (on 26 October 2018)
Conviction recorded; not further punished; serious drug offence issued in relation to trafficking in dangerous drugs
Rockhampton Magistrates Court
8 April 2019
Common assault (on 19 December 2018)
Conviction recorded; sentenced to two months’ imprisonment (concurrent); declaration that time spent in pre-sentence custody be deemed as time already served; parole release date 8 April 2019
Rockhampton Magistrates Court
8 April 2019
Common assault (on 19 December 2018)
Conviction recorded; sentenced to four months’ imprisonment (concurrent); declaration that time spent in pre-sentence custody be deemed as time already served (parole release date 8 April 2019)
Rockhampton Magistrates Court
8 April 2019
Enter dwelling with intent; uses/ threatens violence (on 19 December 2018)
Conviction recorded; sentenced to nine months’ imprisonment (concurrent); declaration that time spent in pre-sentence custody be deemed as time already served (parole release date 8 April 2019)
Rockhampton Magistrates Court
27 November 2018
Possessing dangerous drugs (on 26 October 2018); possess utensils or pipes etc. that had been used (on 26 October 2018); offence in relation to unauthorised and prohibited explosives (on 26 October 2018)
Conviction recorded on all charges; probation period: 18 months
Rockhampton Magistrates Court
18 September 2018
Possessing dangerous drugs (on 9 July 2018); possess utensils or pipes etc that had been used (on 9 July 2018); possess property suspected of having been used in connection with the commission of a drug offence (on 9 July 2018)
Conviction recorded on all charges; $750 fine to be paid within 28 days
Rockhampton Magistrates Court
18 September 2018
Contravene direction or requirement
Conviction recorded; $250 fine to be paid within 28 days
Rockhampton Magistrates Court
18 June 2018
Possessing dangerous drugs (on 29 May 2018); possess property suspected of having been used in connection with the commission of a drug offence (on 29 May 2018); possess utensils or pipes etc that had been used (on 29 May 2018)
Conviction recorded on all charges; probation period: 10 months
Rockhampton Magistrates Court
16 February 2015
Common assault (on 12 January 2015)
Conviction recorded; probation period: 15 months
Rockhampton Magistrates Court
9 August 2006
Dangerous operation of a vehicle adversely affected by intoxicating substance with two prior convictions (on 25 May 2005); common assault (on 20 June 2005); breach of order – served with order on 20 June 2005
Conviction recorded; sentenced to five months’ imprisonment, suspended for 18 months; one penalty imposed: conviction recorded and fined $400 to be paid within four months (in default, imprisonment for eight days; $300 restitution to be paid within four months (in default, imprisonment for five days)
Rockhampton Magistrates Court
23 May 2006
Failure to appear in accordance with undertaking
Conviction recorded; fine $500 to be paid within five months (in default, imprisonment for 10 days)
Rockhampton Magistrates Court
18 December 2001
Breach of bail undertaking (of 21 June 2000)
Conviction recorded; sentenced to one week’s imprisonment
Townsville Magistrates Court
23 July 1998
Wilful damage (on 7 May 1998)
Conviction recorded; $400 fine (in default, imprisonment 12 days)
Townsville Magistrates Court
30 June 1998
Breach of bail act (contempt) (on 27 May 1998)
Conviction recorded; sentenced to two months’ imprisonment; declaration that time spent in pre-sentence custody be deemed as time already served
Townsville Magistrates Court
29 August 1997
Breach of bail act (contempt) (issued on 18 July 1997)
Conviction recorded; $600 fine to be paid within seven months (in default, 24 days’ imprisonment)
Townsville Magistrates Court
29 August 1997
Stealing as a servant (between 2 August 1996 and 3 November 1996); false pretences (18 charges – various dates on and between 29 August 1996 and 20 January 1997)
Convictions recorded; sentenced on each charge to six months’ imprisonment (concurrent); total restitution: $2,590.15.
Townsville Magistrates Court
17 February 1997
Breach of bail act (contempt) (on 1 August 1996); false pretences (five charges on or between 29 January 1997 and 3 February 1997)
Convictions recorded; sentenced to two months’ imprisonment; one penalty imposed: conviction and sentenced to one months’ imprisonment; restitution: $452.95
Southport Magistrates Court
31 March 1995
Possession of property suspected of being tainted (on 12 December 1994)
Conviction recorded; $300 fine
Southport Magistrates Court
22 November 1994
Possession of a dangerous drug (22 September 1994); supply a dangerous drug to another (22 September 1994); possession of a dangerous drug (22 September 1994)
One penalty imposed: conviction recorded; $1,000 fine.
Noosa Magistrates Court
6 August 1993
False pretences (five charges: 24 September 1992, 19 July 1992, 2 September 1992, 5 September 1992, 29 October 1992)
On each charge: conviction recorded; $200 fine; total restitution: $570.65
Goondiwindi District Court
14 May 1991
Break, enter and steal (on 21 June 1986)
Two years’ probation; 120 hours of community service; restitution: $680
On any criterion, the applicant’s criminal record is extensive and serious. That appears not to be disputed by the applicant, nor could it be. The applicant himself in his SFIC describes his criminal record as follows:
20. Our client’s offending history can be broken down into several distinct periods, including:
(a) 1985 to 1986;
(b) 1992, 1994 to 1998, and 2000;
(c) 2005 to 2006;
(d) 2015; and
(e) 2018, with our client’s last offence being committed on 19 December 2018.
21. It is conceded that some of these offences were violent offences, but on the whole our client’s criminal offending has not included any of offences listed as serious in CPI section 14.2 including “murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children.”
22. It is submitted that the underlying causes of our client’s offending behaviour is caused by a relapse into drug use caused by depression.
23. Our client has not reoffended since 19 December 2018, which is a period of around three years.
The applicant has been convicted of a number of property and drug related offences over many years. Although, as the applicant notes, there are some gaps in his offending, I agree with the Minister’s submission that the applicant's persistent offending over many years demonstrates a serious and enduring lack of regard for the law.
The applicant has been convicted of breaching bail on four occasions, of failing to appear in court in accordance with an undertaking, and of contravening a direction or requirement of a police officer under s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld). I agree with the Minister’s submissions that these offences demonstrate a contumelious disregard for lawful authority and for the framework of criminal justice.
I also agree with the Minister’s contention that the applicant's offending has increased in seriousness over time and has evolved from dishonesty, property and lower-level drug offences, into serious violent offending and drug trafficking. The applicant has a history of using violence and criminal behaviour to address issues in his life.
In March 2005 the applicant committed a serious assault on a man with whom he had been living by punching him in the face several times until the victim's face began to bleed.[23] The victim suffered full thickness lacerations to the side of his head and multiple contusions to the head, face and right wrist. In the immediate aftermath of the offending, the applicant showed no remorse for his offending, with a witness reporting that the applicant said “if you had not done it, you would not have gotten bashed up”.[24] The reference to “it” was apparently a claim by the applicant that the victim had stolen from him.
[23] R3, S28/72.
[24] R3, S28/72.
As is evidenced by his criminal record, the applicant continued to offend consistently up to 2019. This included a conviction in 2019 for entering a dwelling with intent and using or threatening violence, and of two counts of common assault which occurred on 19 December 2018. The facts of that offence were that the applicant arrived at a property occupied by two people known to him.[25] Without the occupants' consent, the applicant entered the dwelling and kicked open the bedroom door where the occupants were, and threatened to “smash [their] heads in'”.[26] The applicant made this threat while brandishing a metal bar. The applicant pushed the female occupant three times causing her to fall back onto the bedroom wall, hitting the back of her head.[27] The male occupant ran out of the room to call the police. The applicant was convicted and sentenced to a total effective sentence of 9 months imprisonment.[28]
[25] R3, S8/25.
[26] R3, S8/25.
[27] R3, S8/25.
[28] R3, S14.
The Minister submits, and I agree, that the applicant’s violent offending must be considered particularly serious as it involves the violation of private property with intention to commit or threaten violence, and further involves an assault on a female while wielding a weapon. Violence perpetrated by men against women must always be considered serious. As noted by Member Bygrave in SKML and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[29] at [35]: “violence is never acceptable in the Australian community and is not consistent with the privilege of Australian citizenship.”
[29] [2020] AATA 2873.
The violent offending in December 2018 was committed while the applicant was on bail for drug trafficking charges. In November 2019 the applicant was convicted, on his plea of guilty, to trafficking in a dangerous drug and to possessing a mobile phone used in the commission of a crime.[30] Notably, the applicant's trafficking in drugs was not a fleeting occurrence but instead occurred between 28 March 2018 and 27 November 2018.[31] The applicant was asked at the hearing about his drug dealing and use. His evidence was evasive and unconvincing. Initially the applicant claimed that well prior to his arrest on the drug charges, he had determined to give up drug use and dealing. I asked him questions in that regard as follows:
[30] R3, S22/60.
[31] R3, S33/81.
TRIBUNAL: Is it the case that you were trafficking in dangerous drugs up to the point that you were arrested?
APPLICANT: No, I don't - I stopped basically and I think they - it was a phone call or something and I admitted to things or some of things that I did there - it was the trafficking. I admitted to it to the police.
…
TRIBUNAL: What made you stop trafficking in drugs?
APPLICANT: Family.
…
TRIBUNAL: So is your evidence that then at the time you were arrested by the police you were no longer dealing in drugs?
APPLICANT: I wasn't dealing in it, no. It was - and then I just sit around and went - just went cold turkey on it all and seek out Katie and started seeing her through a counsellor and all that to help me get through it all.
…
TRIBUNAL: The offence for which you were convicted was that between the 28 March 2018 and 27 November 2018 you trafficked dangerous drugs. Now that might mean that that was either in March or sometime between March and November. Can you tell me when you stopped trafficking in dangerous drugs?
APPLICANT: Well, it might have been March. I can't - yes, it might have been March or before.
TRIBUNAL: No. Just listen, Mr Smith. The conviction is that between 28 March 2018 and 27 November 2018, you trafficked dangerous drugs?
APPLICANT: I might have between those dates. Yes, well I would stopped. Yes, because I stopped and - October I think it was when I stopped.
TRIBUNAL: That's October of 2018?
APPLICANT: Yes. And I seeked out help then but that's when I - and I - when I did my (indistinct) with the police and all that - when they saw me, yes. We worked it out there. So –
…
TRIBUNAL: The particulars of that charge or that conviction were that you were in possession of something used in a commission of a crime on the 26 October 2018. So does that jog your memory? Did the police raid your house on the 26 October 2018?
APPLICANT: Yes. They come around to my place. Yes. And raided - the officers then, yes - when they come in.
…
TRIBUNAL: No. The question - listen to the question. What I'm asking you is your earlier evidence was that you think you may have stopped in about October in dealing in drugs?
APPLICANT: Yes.
TRIBUNAL: October 2018?
APPLICANT: Yes.
TRIBUNAL: Was that on the 26 October 2018 when the police came around to your house and amongst other things found the objects used in the commission of a crime?
APPLICANT Yes, I think that's about it. Yes. That sounds about right.[32]
[32] transcript 6–7.
I am satisfied that the only reason that the applicant ceased dealing in drugs was because the police raided his house in October 2018, at which time they found the drugs and mobile phone for which the applicant was convicted on 12 November 2019.
The applicant’s SFIC seeks to explain the applicant’s offending behaviour as being “caused by a relapse into drug use caused by depression”[33] and points to the fact that the applicant has “not reoffended since 19 December 2018”.[34]
[33] applicant's SFIC para 22.
[34] applicant's SFIC para 23.
The applicant also relies heavily on his having, according to the applicant, “undertaken significant rehabilitation efforts through courses such as seeking drug and alcohol counselling, his Men’s Group Courses, and his LifeSkills Alcohol and Other Drugs courses”.[35]
[35] applicant's SFIC para 24, citing T12.
While I appreciate the reference in some of the authorities cited above to rehabilitation, the submissions made by the applicant are somewhat out of place in an application which depends on me being “positively persuaded”[36] that the applicant is of good character; that he has the requisite enduring moral qualities. They are the sort of submissions that one would expect to see in a consideration of the likelihood of an applicant reoffending in a visa cancellation application, not in a submission aimed at positively persuading me as to “the enduring moral qualities of a person”.[37]
[36] See [21] above.
[37] BOY19; see [19] above.
The same observation applies to the submissions made at para 26 of the applicant’s SFIC, that “tailored rehabilitation attempt is a major protective factor against any future offending, and therefore supports a conclusion that our client is of good character”. With respect, the proposition is non-sequitur and misconceives the nature of the term “good character” as defined and explained in the Policy, the CPIs and the many cases referred to above. Tailored rehabilitation is relevant to the likelihood of the applicant reoffending, it says little or nothing directly about the applicant’s enduring moral qualities.
The applicant has repeatedly and seriously disrespected the laws of Australia which, as Justice O’Bryan observed, “reflects adversely on a person’s character in the statutory sense.” (see [21] above).
At para 28 of the applicant’s SFIC, the contention is made that:
On the whole, it is submitted that given the period of time since the Applicant’s last offended, his extensive rehabilitation efforts and promise of employment if he is allowed to return to the community, our client is not likely to reoffend in Australia and therefore is currently of good character for the purposes of s 16(2)(c) of the Act.
As with many of the applicant’s submissions, this submission does not address the primary issue, namely is the applicant a person of good character; is he a person who the community would “wish to have included as [a] fellow citizen”?[38]
[38] Fenn, see [23] above.
In Fenn it was observed that five years of not offending was not a sufficient time for Mr Fenn’s character to be “restored to the level required for a grant of citizenship”. Three years falls well short of that yardstick, particularly given the applicant’s extensive and serious criminal record. It is hard to see how, unlike Mr Fenn’s situation, a “restoration” of the applicant’s character to what it was prior to his last offence, is a “restoration” of good character. It is clearly not the case that, prior to his last offence some three years ago, the applicant was a person of good character. The enduring moral quality demonstrated by the applicant for about the whole of his time in Australia has been a contempt for the law and the Australian community.
I place little weight on the letters of support provided by the applicant. As noted above, they were clearly prepared to support the applicant’s representations to the Department relating the cancellation of the applicant’s visa and addressed the considerations under the relevant Ministerial Direction. While I do not doubt the sincerity of the authors of those letters, largely friends and family, the letters do not evidence the applicant having the enduring moral qualities required of a person seeking to become an Australian citizen. They do not demonstrate the applicant as having the qualities of good character as described in ch 11 of the Policy (see [16] above).
For the reasons sets out above, I am not satisfied that the applicant is a person of good character. He is therefore not eligible to be granted Australian citizenship, because he does not meet the eligibility requirements to become an Australian citizen set out in s 16(2)(c) of the Act.
DECISION
The decision of the delegate of the Minister dated 15 June 2021 to refuse the applicant's application for Australian citizenship by descent because the delegate was not satisfied that the applicant was a person of good character, is affirmed.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 30 May 2022
Date of hearing: 17 March 2022 Counsel for the Applicant: Ms J Samuta Solicitors for the Applicant: Samuta McComber Lawyers Counsel for the Respondent: Mr A Shinnick Solicitors for the Respondent: Minter Ellison
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