Tavita Amosa and Minister for Immigration and Border Protection

[2015] AATA 55

[2015] AATA 55  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6983
Re	Tavita Amosa
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	30 January 2015
Place	Sydney

The decision of the delegate of the Minister dated 3 December 2013 to refuse Mr Amosa’s application for Australian citizenship is affirmed.

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

Deputy President J W Constance

Catchwords

CITIZENSHIP - Citizenship by conferral – good character – whether the applicant satisfies the legislative requirement to be shown to be of good character - previous convictions – failure to disclose convictions - decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24

Cases

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

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

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

Secondary Materials

Australian Citizenship Instructions (Cth) issued 1 January 2015.

REASONS FOR DECISION

Deputy President J W Constance

30 January 2015 

1. Mr Amosa applied for Australian citizenship by conferral on 18 September 2013.

2. A delegate of the Minister refused Mr Amosa’s application on the grounds that he had not established that he was of good character as at the date the decision was made, 3 December 2013.

3. Mr Amosa has applied to the Tribunal for a review of the delegate’s decision.

4. For the reasons which follow, the decision under review will be affirmed.

   BACKGROUND

5. Mr Amosa was born in Samoa in 1958 and arrived in Australia in 1984. He is a citizen of New Zealand.

6. Whilst residing in Australia, Mr Amosa has been convicted of a number of criminal offences. These are shown along with the respective sentences in the below table.

Year	Offence	Sentence
1984	PCA 0.14	Fined $400; 12 months disqualification
1984	Driving without a licence	Fined $100
1989	Assault occasioning actual bodily harm	2 year Good Behaviour Bond
1990	Mid-range PCA	Good Behaviour Bond 3 years; 12 months disqualification
1990	Driving without a licence	Fined $70
1990	Resist or Hinder Police (2 counts)	Fined $500 for each
1990	Offensive language	Fined $100
1991	Drive without a licence	Fined $250
1991	Special range PCA	Good behaviour bond 3 years; fine $750; 6 months disqualification
1992	Assault	Fined $500
1993	Supply Prohibited Drug	Fined $250
1997	Special range PCA	Fined $250; disqualified 6 months
1997	Drive whilst unlicenced	Fined $300
1997	Not change lane safely	Fined $200
2000	Assault Occasioning Actual Bodily Harm	Section 9 Good Behaviour Bond 2 years
2000	Assault Occasioning Actual Bodily Harm	Section 9 Good Behaviour Bond 2 years
2006	Breach of Domestic Violence Order	No conviction recorded; fined $350

1. Mr Amosa has not been charged with, or convicted of, any offences since 2006.

   THE ISSUE

2. The only issue for determination is whether, at the time of the Tribunal’s decision, Mr Amosa is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

   LEGISLATION

3. Applications for the conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth).

4. Section 24 of the Act provides, in part:

   (1) 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.

   (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

5. Section 21(2) of the Act establishes requirements for eligibility for the grant of citizenship. It provides, in part:

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

   ...                 

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

   It is only this subsection which is in issue in the present application.

   AUSTRALIAN CITIZENSHIP INSTRUCTIONS

6. The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.

7. The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are “cogent reasons to the contrary”.[1]

   [1] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

8. Paragraph 10.1.2 of the Instructions provides, in part:

   ‘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.

9. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[2]

   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 whilst 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. (citations of authorities omitted).

   [2] (1996) 68 FCR 422 at 431-432.

10. After referring to the judgement of the Court in the Irving, Paragraph 10.3.1 provides, in part:

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

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

    § distinguishing right from wrong

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

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

11. In considering the Australian Citizenship Instructions I have taken into account that they refer to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[3]:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what person says, in part what a person does and in part what a person is heard to say and seen to do.

    [3] [2011] AATA 304 at [120].

12. The Instructions go on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in dealings with the Australian Government.[4]

    CONSIDERATION

    [4] Paragraph 10.3.4.

    Characteristics of a person of good character

13. In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include:

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

    …               

    ·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …

    oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;

    …

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

    ...

14. Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. The relevant factors to be taken into account in considering why an applicant might not be of good character (as set out in paragraph 10.5.2) include the following:

    ·Has the applicant committed any offences and if so, did they admit that in their citizenship application?

    · If the applicant has committed an offence, was it serious or minor?

    ·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or disabled, or others who trusted the applicant?

15. The Instructions provide that this framework should be considered first before considering whether there are any mitigating factors which may indicate that a person is now of good character.

16. Under the heading, Weighing up the decision, the Instructions provide:

    Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    • would a person of good character have behaved the way the applicant did

    • what is there to demonstrate that the applicant has upheld and obeyed the law

    • has the applicant behaved in accordance with Australia's community standards

    • does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[5]

    [5] Paragraph 10.5.4.

    The Offences

17. Paragraph 10.5.2 of the Australian Citizenship Instructions defines serious offences to include “crimes of violence”, which includes domestic violence. Traffic offences which have been included on a criminal record are regarded as minor offences.

    Offences involving violence

18. In respect of the offence of assault occasioning actual bodily harm in 1989, Mr Amosa stated that he was working as a bouncer at Cronulla Leagues Club. After he returned home after work, a girl he met at the club arrived at his house drunk. She smashed the glass in his front door and entered the property. Mr Amosa stated in evidence that “she throw an ashtray on me so ... all I do is try to push her out my house [sic]”. He believes that this caused her to fall out the door. Mr Amosa accepted that he had been drinking that evening.

19. Mr Amosa was charged with a further assault in 1992. His girlfriend was being followed by two men, who were swearing at and taunting her, causing her to run up to Mr Amosa to escape. Mr Amosa stated in evidence:

    I thought they going to attack us. One of the fellow[s] ... I think he sort of tried to throw the beer on me and that’s when I, I think I slap him or something, and the other one turn around to hit me and I- I’m not sure, I think I hit back ...

    Mr Amosa accepted that had been drinking alcohol a short time before this incident.

20. The convictions for assault occasioning actual bodily harm in 2000 related to injuries sustained by Mr Amosa’s girlfriend at the time. Mr Amosa “got really drunk” at a work Christmas party which he attended with his girlfriend. He stated that “I was drinking rum with my boss and that’s all I remember”. He woke up at the taxi rank and was instructed by police to go home. In the proceeding days he was interviewed and charged with the assault of his girlfriend. The assault purportedly occurred on the night of the Christmas party.

21. Mr Amosa stated that the police told him that

    ... the girl was injured, got a black eye or injured eye and she was taken to hospital and they thought it was [me] that beat her up ...

    Mr Amosa denied to police, and continues to deny, that he assaulted his then girlfriend.

22. Mr Amosa could not recall why, in 2006, he was charged with the breach of a domestic violence order which had been taken out to protect his wife. He stated that the order was made because he broke into their house. His wife had locked Mr Amosa and his children outside after they returned home late from church. He stated that this was the only incident.

23. Mrs Amosa similarly stated that the domestic violence order arose after she and Mr Amosa had an argument after she left a church celebration early to return home. Mrs Amosa maintains that Mr Amosa did not hurt her during the argument, but she did leave their home and contact the police. Like her husband, Mrs Amosa could not recall what occurred for Mr Amosa to be found guilty of breaching the order in 2006.

    Traffic Offences

24. Mr Amosa has been convicted on a number of occasions for drink-driving and driving without a licence. In a statement addressed to the Minister,[6] Mr Amosa stated:

    I was very wrong for drink and drive without a licences [sic]. I paid the penalty. I paid cash also I do community service.

    When questioned about the offences, Mr Amosa stated that there was “no good reason” for him to have committed the offences. He reiterated that he was “young, stupid and ... reckless”.

    Supply of a Prohibited Drug

    [6] R1, p. 61.

25. Mr Amosa said in evidence that he was at a hotel in Cronulla when the police conducted a search for drugs. He stated that he found a bag of approximately one gram or half a gram of marijuana on the floor and put it in his pocket. When questioned as to why he was charged with supplying a drug, Mr Amosa maintained that that amount was all the police found on him and that he was not selling the drugs.

    Consideration of Offences

26. The offences of violence for which Mr Amosa has been convicted are to be regarded as serious, being within the definition of serious offences contained in paragraph 10.5.2 of the Instructions.  Most concerning is that these violent offences appear to be part of a pattern of behaviour. Each occurred after Mr Amosa had been drinking. Such violent conduct is fundamentally inconsistent with behaviour accepted by the Australian community and not the conduct of an individual with the enduring moral qualities of a person of good character.

27. Traffic offences are not generally regarded as serious offences. Nonetheless, Mr Amosa was convicted of drink driving whilst not holding a licence on four separate occasions from 1984 through to 1997. This course of conduct shows a repeated disregard of the traffic laws. In these circumstances, the offences weigh heavily against Mr Amosa’s being found to be of good character.

28. Taking into account also Mr Amosa’s convictions for supply of a prohibited drug, and for resist and hinder police, Mr Amosa has an extensive history of criminal offences extending from almost immediately after his arrival in Australia in 1984 through to 2006. In the case of the violence and traffic offences, Mr Amosa has been convicted of a number of similar offences throughout this period. He has repeatedly broken the law and this indicates to me a pattern of criminal behaviour. Mr Amosa’s criminal history indicates that he is an individual who does not respect the laws of this country.

    Failure to disclose convictions

29. On lodging his application for citizenship, Mr Amosa failed to disclose any of his convictions.

30. The question asked in the application form as to previous convictions reads:

    Have you 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)?[7] [Original emphasis].

    [7]  Exhibit R1 p.133.

31. Mr Amosa answered ‘No’ to this question. The form proceeds to instruct:

    If you answered ‘Yes’ to any of the above questions, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention.[8] [Original emphasis]

    Again Mr Amosa failed to note any details of his convictions.

    [8] Exhibit R1 p.133.

32. Mr Amosa gave conflicting evidence as to why he did not answer the question correctly. After firstly admitting on oath that he answered ‘no’ because he thought it would aid his application for citizenship, Mr Amosa stated that he answered ‘no’ on the application form because he did not understand the question. He proceeded to state that he thought he only needed to disclose convictions if they resulted in a gaol sentence. Mr Amosa stated further that he is still learning English and that this contributed to him not understanding the question.

33. When pressed further about his failure to disclose his criminal history, Mr Amosa proffered a different explanation. He stated that he did not disclose his criminal history as he “signed a permission form ... to go and search [my] history, and [I] was under the impression that everything would be found... and [I] did not need to disclose any of that”.

34. I adjourned the proceedings on 13 October 2014 to allow the parties to make closing submissions in writing. Mr Amosa was given the option of making his submissions orally after receipt of the Respondent’s written submissions. At the request of Mr Amosa, the hearing was resumed on 19 November 2014 to enable him to give his final submissions by telephone.

35. At the resumption of the hearing, Mr Amosa gave a further explanation for his failure to disclose his convictions. He stated that he believed any convictions from 14 years ago would not be included on his criminal record. He also stated that he believed a conviction only related to a gaol sentence. The combination of these reasons was suggested to be the reason why Mr Amosa did not disclose his criminal convictions.

36. I accept that Mr Amosa has difficulty with the English language.  However, I do not accept that these difficulties account for his failure to disclose his convictions. Nor do they explain the conflicting accounts he gave to this Tribunal as to his reason for failing to disclose those offences.

    Mitigating Factors

37. Paragraph 10.5.2 of the Instructions provides, in part:

    Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.

    oWhat is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ...

    oHas the applicant accepted responsibility and shown remorse for their conduct?

    oHow has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…

    oHas the applicant rehabilitated themselves?…

    oWhat was the applicant’s age at the time the offence was committed?…

    oWere there any extenuating circumstances relating to the offence?

    Evidence of Mrs Amosa

38. Mr Amosa’s wife provided a statement dated 13 October 2014 and gave evidence at the hearing.

39. Mrs Amosa has known her husband since 1996, and stated that he is “a very good person and he is a very caring father when it come[s] to his children and his family”.[9] Mrs Amosa only learned of Mr Amosa’s criminal history from what he had told her when talking about his past. She was not aware of all of that history, and specifically did not know that he had been found with marijuana and convicted of drink driving whilst unlicensed.

    [9] Exhibit A4.

1. Mrs Amosa stated that having been with Mr Amosa for an extended period of time, she is of the opinion that her husband is of good character. He has worked with a youth justice organisation, assisting young people in custody and with other bodies promoting the welfare of young people. Since working with youth offenders he has changed his attitude.

   Character Evidence

   The Hon Mr Ed Husic MP

2. In a letter addressed to the Registrar of the Tribunal and dated 11 March 2014, Mr Husic wrote specifically in relation to Mr Amosa’s application for a review of the delegate’s decision. He states that “at no time did he [Mr Amosa] fail to disclose his record.” [10]As Mr Amosa failed to disclose his extensive criminal record in his application for Australian citizenship, I can only assume that Mr Husic relied solely on information given to him by Mr Amosa.

   Mr Kessell

   [10] Exhibit A2.

3. Mr Kessell is a tenancy consultant at the Adventist Development and Relief Agency (ADRA) Community Centre Blacktown. He first came in contact with Mr Amosa in November 2012, and assisted him in obtaining accommodation in Sydney. In a statement dated , Mr Kessell stated:

   I can certify that Mr Amosa has outgrown his early negative behaviour as I have recently witnessed how calm he remained in the face of a flagrant injustice with regards to a housing application.

   Mr Amosa and his family lived in what Mr Kessell described as “substandard conditions” whilst awaiting the resolution of a housing application. He stated that Mr Amosa acted with “remarkable patience” throughout this time.

   Mr Longhurst

4. Mr Longhurst provided a brief statement dated 30 June 2014. He has known Mr Amosa for 24 years through church and as family friends. He describes Mr Amosa as a “very loyal friend” and “a dedicated generous all round ‘good bloke’.

   Mr O’Malley

5. Mr O’Malley is a Member of Mr Amosa’s parish in Queensland and provided an undated statement. He stated that Mr Amosa appeared to be heavily involved with the Samoan community in the area and that he provided support to Samoan youth who were required to appear in the Children’s Court.

   Mr Silapa

6. Mr Silapa is a Pastor of Mr Amosa’s church and has known Mr Amosa for 25 years. He is aware that Mr Amosa has been before a court for “some issues with the law” but believed that these issues arose approximately 20 years ago.

7. Mr Amosa holds the position of a High Chief within the Samoan community. Mr Silapa regards Mr Amosa as “instrumental in establishing a cultural centre for his community while he was living in Logan”. Mr Amosa implemented a number of cultural programs to address the high rate of crime amongst young Pacific Islanders in Logan. In Mr Silapa’s opinion, Mr Amosa’s position as a High Chief has transformed his attitude and since then “he has been nothing but a model citizen”.

   Weighing the various factors

8. In deciding whether I am satisfied that Mr Amosa is of good character, the evidence has to be looked at as a whole.[11] Paragraph 10.5.4 of the Instructions provides, in part:

   Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.… A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.

   [11] See paragraph 10.1.1 of the Australian Citizenship Instructions. 

9. As stated above, Mr Amosa has been convicted of a number of offences which are to be treated as serious. They indicate a pattern of disregard for the laws of this country and weigh heavily against a finding of good character.

10. I take into account that the last offence occurred over eight years ago and was not the subject of a conviction. Most of Mr Amosa’s offending occurred prior to the year 2000. Since that time he has become a Chief within the Samoan community and committed himself to working with the community. In particular he has worked to assist the rehabilitation of Pacific Islander youths in the criminal justice system. His work in this respect is admirable.

11. Despite his community work, I am not satisfied that Mr Amosa satisfies the legislative requirement to be shown to be of good character. Mr Amosa has not accepted responsibility for the assaults for which he was convicted. He stated in a written letter to the Minister, as well as in evidence, that he does not believe that he was guilty of any of the assaults. In such circumstances, his apologies for this offending are hollow.

12. I have considered the character references provided by Mr Amosa. They indicate that he is an individual who has made a strong contribution to his community. Nevertheless, in this application, the character evidence is of little assistance in determining whether Mr Amosa exhibits the necessary “enduring moral qualities”. None of the authors indicate that he or she is aware of the nature of Mr Amosa’s criminal record. Mr Silapa merely stated that Mr Amosa had “some issues with the law”. Furthermore, Mr Husic stated that “at no time did [Mr Amosa] fail to disclose his record”. This is clearly inconsistent with the evidence before the Tribunal. In the circumstances I give this evidence very little weight.

13. Mr Amosa’s failure to disclose his convictions and his varied explanations for that failure are most concerning. The explanations Mr Amosa provided to the Tribunal were contradictory.  I do not accept his evidence in this regard.  I am satisfied that he was deliberately untruthful in his dealings with the Australian Government when he made his application for citizenship. This causes me to conclude that despite the time which has elapsed since Mr Amosa’s last conviction, he is a man who does not exhibit the moral values the community would expect to be shown by a citizen of this country.  The ACI’s clearly indicate that such conduct is inconsistent with the characteristics of a person of good character. In my view, it weighs heavily against a finding of good character. Combined with his lack of regard for Australian law, this outweighs any mitigating factors.

14. I am not satisfied that Mr Amosa presently satisfies the legislative requirement to be shown to be of good character. 

    DECISION

15. My conclusion on this application does not prevent Mr Amosa from making a further application for citizenship at some time in the future when he may be able to demonstrate that he does meet the requirements for a grant of citizenship.

16. The decision to refuse Mr Amosa’s application for Australian citizenship by conferral will be affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated 30 January 2015 

Date(s) of hearing	13 October; 19 November 2014
Date final submissions received	19 November 2014
Applicant	In person
Solicitors for the Respondent	M Bock; Clayton Utz