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

[2021] AATA 3316

SXBT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3316 (14 September 2021)

Division:GENERAL DIVISION

File Number:          2020/7094

Re:SXBT  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:14 September 2021

Place:Melbourne

The Tribunal affirms the decision under review. The Tribunal finds that the Applicant is not of good character under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

....[SGD].... ......................................................

Dr Damien Cremean, Senior Member

Catchwords

CITIZENSHIP – application for Australian citizenship refused – good character requirement allegedly not satisfied – Convictions of Applicant – Explanations given by Applicant – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Goldie v Minister for Immigration

and Multicultural Affairs [1999] FCA 1277
[1998] FCA 1660

Irving v Minister of State for Immigration Local Government & Ethnic Affairs

Minister for Home Affairs v Sharma (2019) 78 AAR 508

Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354

Secondary Materials

Department of Immigration and Border Protection Citizenship Policy, ‘Australian Citizenship [Policy Statement]’ (27 November 2020)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

14 September 2021

BACKGROUND

1. A decision made on behalf of the Respondent, dated 17 October 2020, refused the application of SXBT (“Applicant”) to become an Australian citizen. The refusal was on the ground that he failed to meet all the requirements for citizenship set out in s 21(2) of the Australian Citizenship Act 2007 (Cth) (the “Act”) in that he failed to satisfy the good character requirement.

2. The Applicant has applied to the Tribunal to have such decision set aside.

   LEGISLATION

3. Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied of a number of matters in regard to that person, including that the person:

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

4. The issue is whether the decision of the Respondent to refuse the Applicant’s application on the ground in s 21(2)(h) of the Act, is the correct or preferable decision, in light of the evidence presented to the Tribunal at the hearing.

   HEARING

5. The hearing took place on 2 June 2021. The Applicant was represented by Mr Aleksov of Counsel instructed by Bardo Lawyers and the Respondent by Ms Tobin of Clayton Utz.

6. At the hearing by videoconference, the Applicant gave evidence under affirmation (through an interpreter) and he was cross-examined on such evidence. No witnesses were called by the Respondent.

7. T Documents and Supplementary T Documents were received into evidence.

8. At the conclusion of the hearing, opportunity was given to the parties to provide written closing submissions. The parties were informed that the Tribunal would reach a decision in due course.

9. For the reasons below, the Tribunal has decided to affirm the decision under review.

   EVIDENCE

10. The Applicant gave brief evidence in which he confirmed the contents of his Witness Statement in the form of a Statutory Declaration made in support of his application dated 17 May 2021. He agreed that its contents are true and correct “in every respect”.

11. I have read and considered the contents of that Statement. The Applicant refers to two incidents involving a female, the first of which occurred on 9 September 2014 (“first incident”) and the second occurring on 6 October 2014 (“second incident”).

12. Arising out of such incidents, the Applicant was charged with two counts of contravening a protection order (ACT) imposed on 8 October 2013. He pleaded guilty and on 2 June 2015 was sentenced to a total of one month’s imprisonment suspended upon him entering into a 12 month good behaviour order.

13. In his Statement, the Applicant says that at the time of the first incident, “I admit that I was aware that I had breached a court order”. However, he says it “was certainly not my intention to have breached this order”.

14. The Applicant says in his Statement that on the occasion of the first incident he visited a female in Canberra “with flowers and a ring as a way of me apologising for the situation I [had] put her into”. He says she and he “had an affair”. He says the “affair was sexual, and consensual” although he says “I understand that the [female] had suggested to police that the relationship was not consensual”. Evidently that relationship became known to the female’s family and she and her husband divorced. He says he learned of the divorce and “felt sorry for her” and went to her premises “as the honourable thing to do”.

15. In his Statement the Applicant says the second incident arose when “by coincidence… I met her at the park”. He said he “was there for work”. He said “I might have come within some distance of her“ but he said “I definitely did not seek to stress her out or otherwise cause her any grief”.

16. In cross -examination the Applicant  said in relation to the first incident --“because …culturally that’s a very sensitive issue for me”—that :”My only intention was to find out how they were doing, and just to apologise”.

17. The Applicant explained that “I have grown up in a society which lacked [a] legal system”. He said “by going there I understand that the order was in place for 12 months and by going there I have breached the order, but that was not my intention”.

18. The Applicant said that in the case of the first incident “[a]fter I knocked [on] the door, the lady came and opened the door, not completely, just about 10 centimetres, about the length of the chain”. At this point he denied he had tried to force the door open saying “absolutely not. This is not what happened”.

19. When questioned about the second incident the Applicant said “[o]n the way out from shopping I encountered the female in the park”. He said he was with a co-worker at the time.

20. The Applicant stated he said to her—“‘Look ,I’m here for work purposes. My company which I work for has got work here” and ‘I have nothing to do with you, I’m only here for work’”.

21. He said that after that encounter he went to the police station the following day to report it so that the police would not “came [sic] after me”.

22. Consequently, the Applicant said, “I don’t accept that I have breached the order on this occasion”. In particular, he denied the complainant’s accusation that he “came within two metres of her” but he did agree he came within 100 metres of her and that he knew this was not allowed by the protection order. He denied that he asked the complainant—“Can I kiss you?”.

23. In all the Applicant said the second incident “was just an accidental encounter”.

24. The Applicant agreed that the contents of his application for citizenship were “my responsibility”. He said he had answered “no” to a question on the form about being found guilty of offences in Australia but he said someone else had filled out the form for him “because of my limited amount of English”. This applied to other questions which he gave answers to in other documents including about offences.

25. In answer to questions by me he gave an account of his relationship with the female from the beginning, supporting a version that the relationship between them was consensual and was initiated in the female’s house. The female’s husband had found out and the female ended the relationship after some months which included time together in a Canberra motel.

    CONTENTIONS AND SUBMISSIONS

26. The Applicant contends that the decision under review should be set aside for reasons given in both oral and written submissions, the latter dated 17 May 2021.

27. I shall only summarise what I see as the main points emerging from both.

28. The Applicant submits that in the circumstances of this case he meets the requirements of “good character” in s 21(2)(h) of the Act.

29. Reference was made to a number of considerations and to a number of authorities. Those authorities include BOY 19 v Minister for Immigration and Border Protection (2019) 78 AAR 481 (“BOY19”). They also include Minister for Home Affairs v Sharma (2019) 78 AAR 508 (“Sharma”). The Applicant submits that I may go behind his convictions in this case and consider what took place. What happened “on the ground” was the expression used.

30. It is also submitted that I should have regard to all the factors in the case relating to the Applicant’s character as a matter of his enduring moral qualities.

31. In particular, it is submitted that I should make findings that the Applicant’s relationship with the female was consensual—inter alia she willingly went to the motel room with him—and there is no basis for the allegation made against him that he raped her at any stage.

32. As regards the protection orders and their breach it is submitted that the Applicant has acknowledged his mistake, and this is not something he would ever do again.

33. As regards documentation errors, it is submitted that the Applicant gives a “plausible explanation” of having relied on someone else due to language problems.

34. In all the circumstances, it is submitted I should not find that the Applicant’s conduct was “so serious” as to result in a finding that he is not of good character.

35. The Respondent, however, contends that the decision under review should be affirmed and relies on the written submissions dated 28 May 2021.

36. On the question of the meaning of “good character”, I am referred to various areas of the Citizenship Policy.

37. I am also referred to authorities within that Policy document including Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (“Irving”).

38. I am referred to other authorities including Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354.

39. I am asked to make findings about the Applicant’s conduct in respect of the female by reference to the Australian Federal Police (“AFP”) Statement of Facts.

40. It is submitted that I may not go behind the Applicant’s convictions.

41. It is submitted that the fact that the Applicant gave misleading information to government officials and failed to disclose convictions should be taken seriously. This is because the migration system depends upon the integrity of the information provided by individuals like the Applicant.

42. It is submitted that considering all the circumstances, I should not make a finding that the Applicant is of good character.

    CONSIDERATION

43. The Full Court decision in Irving is referred to by O’Bryan J in his review of the authorities in BOY19. At [46] of the latter, his Honour says “the term ‘good character’ is not defined in the Act, which indicates that Parliament intended the term to be used in a broad way and allows the decision-maker to consider a range of events and conduct connected with [an] applicant”.

44. I do not consider therefore that I am obliged under s 21(2)(h) of the Act to confine myself only to a consideration of the Applicant’s conduct on the occasions of the first and second incidents.

45. Although not specifically mentioned to me I would draw attention to the Full Court decision in Goldie v Minister for Immigrationand Multicultural Affairs (1999) 56 ALD 321 (“Goldie”) where at [8], the Court observed that the concept of “good character” in s 501 of the Act “is not concerned with whether an applicant for entry meets the highest standards of integrity but with a less exacting standard than that”.

46. The Court in that case then continued—“It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities is so deficient as to show it is for the public good to refuse entry”. Hence the reference to the Applicant’s enduring moral qualities in the submissions lodged on his behalf.

47. I have mentioned on another occasion (see Sherwan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1702) that the “public good” is not specifically referred to in s 21(2)(h) of the Act but it may well come in as an element to be considered if, as the Respondent contends, the integrity of the migration system is in issue.

48. It clearly is correct to submit that regard to the integrity of the system is a fundamental consideration.

49. In reference to the expression “good character” in s 22(1)()h) of the Act, O’Bryan J in BOY19 observed that Parliament may be said to have intended the term “good character” to be used in a broad way. I do not consider in this case that I should confine my attention only to claims of false or wrong details signed off by the Applicant as true and correct.

50. In cases of this kind, the question for the Tribunal is whether, in the circumstances presented, the Applicant is of “good character” under s 21(2)(h) of the Act. If the Applicant is of good character, he is eligible for citizenship. If, however, he is not of good character, then he is ineligible.

51. The approach I adopt to this question is that set out by O’Bryan J in BOY19, above, at [54]. His Honour says that the word “satisfied” in s 21(2)(h) of the Act “is not amenable to the application of the evidentiary burden of proof, such as balance of probabilities”.

52. O’Bryan J goes on further to observe (at [55]), that I am required to “reach an affirmative belief that the applicant is a person of good character”. It is not necessary for me to have “a high degree of confidence” that this is so, but at the same time, it is not sufficient for me simply to believe there is “a chance” this is so.

53. In accordance with authority, I am satisfied to the required degree that the Applicant fails to meet the “good character” test in s 21(2)(h) of the Act. That is to say, I am satisfied he fails to meet that test at the present day because I do not have a high degree of confidence that he is of “good character”. Nor do I accept that there is merely a chance that he is not of good character.

54. To be explicit, I am quite positively satisfied—even on the higher balance of probabilities test—that the Applicant is not of good character. The focus of my view is on the Applicant’s disregard for  the court’s protection orders and his breaches of them.

55. For this purpose, I do not need to make findings about his conduct with the female. It is sufficient that the orders were made and breached knowingly. I do agree however that the decision in Sharma allows me to examine the circumstances of a conviction if to do so is not to impugn a conviction. At the same time I am mindful of what the Full Court said in Minister for Immigration and Ethnic Affairs v Daniele (above) that there should not be “undue concentration” in cases of this kind on the circumstances leading to a conviction.

56. Examining the circumstances of the Applicant’s convictions does not—in contrast to Sharma—lead to a favourable view of the Applicant’s conduct. At the least, it is said, I should find his relationship with the female “consensual”. The police case would indicate something quite different to this and I do not feel confident in finding the relationship was consensual in the absence of hearing from the female—who was not called to give evidence for obvious reasons.

57. I would observe in passing that the magistrate who made the protection orders must obviously have taken a serious view of the Applicant’s conduct. It should not be overlooked that the magistrate took the view that his conduct merited initially a term of imprisonment. Some could regard that as excessive if the Applicant was someone with no prior convictions. The magistrate must have been thoroughly persuaded that imprisonment was warranted.

58. But assuming the relationship was consensual, on the Applicant’s own account, the relationship was one carried on by him knowing the female was a married person and that it was culturally unacceptable. Even if I should discount that cultural factor, the initiating sexual contact between the two occurred in the female’s home—in the laundry—and her children were nearby. He knew children were nearby and that he was engaging in sexual relations with their mother because she had her foot against the door preventing children from opening it.

59. The Applicant, if I go by his account only, could not resist temptation, despite the children being there. He did not reject her approaches on that account. It seems even that he may have ejaculated on that first occasion into a child’s toy truck following her invitation to do so.

60. So, in my view, the Applicant is not assisted in showing he is of “good character” by going into this aspect of the circumstances surrounding his convictions.

61. Turning specifically to the first incident, the police account is very different from the Applicant’s. But I shall assume the Applicant’s account is correct. It was obvious to the Applicant that the female was intent on staying safe inside her house. By his account the front door could only be opened about 10 centimetres because of a door chain. By the door not being opened any further by her he must have realised he was not a welcome presence. To make that observation I do not need to find that he sought to force the door open. Nor is his presence made welcome because he arrived with flowers and a ring.

62. As regards the second incident the Applicant expects me to accept that it was only a “coincidence” that he encountered the female in the park. If I assume that it was—why did he not walk away? Instead, on his account, he delays long enough to explain why he is in the park—that he is there because of his work. But he is explaining this at a time when he knew he could not come within 100 metres of her. I expect she could feel very threatened. Especially perhaps if he did ask her for a kiss.

63. This conduct during the second incident does not speak highly of the Applicant’s “good character”. That is, even on his account of it. Rather, it seems he is prepared to explain his appearance in the park merely as a coincidence and expects me to accept that that is true.

64. At the time of course, the Applicant had with him a co-worker. It could have been useful to hear from that person—if the person exists. That person could have said that they were there or in that vicinity on company business. But the co-worker was not called to give evidence and I found Counsel’s explanation for his absence unconvincing. I consider there are grounds there for me to draw an adverse inference to the effect that, if the co -worker does exist, the co- worker was not called because any evidence he could give might not be helpful. In effect, that the Applicant was not in the park for “work purposes” at all, and that I should find he is lying when he says it was merely a “coincidence” encountering the female in the park. In light of the decision I make, however, I do not need to draw such an inference.

65. I do accept that the Applicant a day afterwards went to the police and reported himself. On one view this was commendable, if unusual. On another it was as he said to avoid having the police come after him. But why was he at all worried about that if he had an innocent explanation for being in the park? Was he concerned he would not be believed? On this second view—or on a related view—he went to the police so he could raise that in his favour. I am not able to be satisfied which of these views I should prefer.

66. If the co-worker never did exist, however, it would not be the first time for an accusation to be made that the Applicant was caught out lying. It is evident that there are a number of occasions in evidence where the allegation is made that the Applicant has given false answers in important migration documentation. His explanation is that he has a poor command of the English language and someone else filled them in for him.

67. No such person was called to give evidence—if they are still alive or available—so his account is deficient in not being supported by independent evidence in that regard.  However, I am not able to be satisfied that I can, or ought to, make a finding that the Applicant has not been telling the truth about this. It may very well be that he is being truthful because it is well known that in many cases of this kind or in this area, language is a real problem.

1. I am satisfied however that the Applicant was not experiencing language difficulties when it comes to the court’s protection orders. He pleaded guilty to having breached them.

2. At the time of the first incident the Applicant knew the orders existed. He said he was “aware” of the orders but that it was not his “intention” to breach them by going to the female’s house. This is nonsense and an example I consider of him trying to minimise his conduct. He knew the orders prohibited him going to the female’s house, but he went just the same. He intended to engage in that conduct. That conduct was prohibited. He was aware that it was. Therefore, either he intended to breach the orders or he did not care that he would be breaching the orders. Either way this action does not speak to him being of “good character”.

3. As to the second incident the Applicant was again aware the orders existed. Yet he breached them by going up to the female. Indeed, even based on his own evidence, the breach is plain for all to see. He was close by the female and seeking to explain to her why he was in the park at a time when he was not allowed to be within 100 metres of her.

4. The conversation he says he had with her could not have been conducted from a distance of 100 metres. It was the sort of conversation which would take place in close proximity to another person possibly from about 2 metres away—yet he disputed he went that close to her. He said in evidence he does not “accept” that he breached the orders on this second incident. It is obvious that he must have done so. My finding in the matter does not take into account what the Applicant will or does “accept”.

5. In breaching the orders on both occasions as I find he has—in accordance also with his plea of guilty—the Applicant has shown he felt free to ignore court orders as he pleased.

6. He has shown therefore wilful disregard of the orders of an Australian court.

7. Australian courts apply the law of the land. It is plainly in the public interest that court orders be obeyed.

8. Therefore, with respect to the two occasions, the Applicant has shown a wilful disregard of the law of the land and has acted in a way which is not in the public interest.

9. Someone wilfully disregarding the law of the land and acting contrary to the public interest is, in my view, not of “good character” under s 21(2)(h) of the Act.

10. It is in my view in the public interest that he is not given Australian citizenship.

11. I should add that I consider my finding to be one conformable with and supported by the Citizenship Policy—to various paragraphs of which my attention is drawn in the Respondent’s submissions.

    DECISION

12. The conclusion I reach for the above reasons, is that the decision under review must be affirmed.

I certify that the preceding 79  (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

....[SGD].......................................................

Associate

Date of hearing:	2 June 2021
Counsel for the Applicant:	Mr Aleksov
Solicitors for the Applicant:	Bardo Lawyers
Advocate for the Respondent:	Ms Tobin
Solicitors for the Respondent:	Clayton Utz

Dated: 14 September 2021