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

[2022] AATA 2144

TKQS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2144 (5 July 2022)

Division:GENERAL DIVISION

File Number(s):      2021/4244

Re:TKQS  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member   

Date:5 July 2022  

Place:Sydney

The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 18 June 2021 is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – issue: whether the applicant is of good character for the purposes of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – where the applicant was convicted of an act of indecency – offending not disclosed – decision under review affirmed. 

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Ragni Mala Prasad and Minister of Immigration and Ethnic Affairs [1994] AATA 326

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Mr S Evans, Member 

5 July 2022

1. TKQS (the Applicant) is a 30-year-old Iraqi national who first arrived in Australia in December 2013 as the holder of a permanent Refugee (subclass 200) visa. On 29 October 2020 he made an application for Australian citizenship. On 18 June 2021 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) refused his application having found that he was not of ‘good character’, which is one of the requirements for Australian citizenship. The Applicant contends he meets the character requirements for conferral of Australian citizenship and seeks review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal). 

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

   LEGISLATIVE AND POLICY FRAMEWORK 

3. Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (the Act) provides that a person may make an application to the Minister to become an Australian citizen. 

4. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

5. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen. 

   Determining questions of character

6. The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

   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.[1]

   [1] (1996) 68 FCR 422, 431 – 432.

7. The Department’s official guides to decision makers, include both the Australian Citizenship Policy Statement (the Policy Statement), which details the overarching legislative requirements for becoming an Australian citizen, and the Revised Citizenship Procedural Instructions. The Policy Statement provides context to the Instructions.

8. The Instruction relevant in this matter is CPI 15 - Assessing Good Character under the Citizenship Act (the Instructions). The Instructions provide guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.

9. Informed by the discussion in Irving, subsection 3.3 of the Instructions states 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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

10. The Instructions specifically call for the decision maker to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[2] A person’s enduring moral qualities encompass:

    (a)characteristics which have endured over a long period of time;

    (b)distinguishing right from wrong; and

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

    [2] CPI 15, section 14.

11. It is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so. The Tribunal is guided by the considerations outlined above when determining whether the Applicant meets the good character requirement for Australian citizenship.   

    ISSUE

12. The issue to be determined by the Tribunal is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Act.

    EVIDENCE

13. In his application for citizenship dated 29 October 2020 the Applicant was required to make a character declaration where it is asked: 

    Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?[3]

    [3] T4/115.

14. To which the Applicant answered: 

    Yes

    Act of indecency, court make decision 18 months visiting community correction order

15. In a letter dated 21 December 2020 the Applicant was invited to comment on the issue of whether he was of good character. The Applicant responded by letter dated 10 March 2021 in which he acknowledged he had received an 18-month Community Corrections Order for commit act of indecency and expressed his shame, embarrassment and remorse for his actions.[4]

    [4] T7/146 – 147.

    The Applicant’s offending

16. On 2 October 2018 the Applicant appeared in the Liverpool Local Court for commit act of indecency with person 16 years or over-T2 for which he was sentenced to an 18-month Community Correction Order (CCO), 18 months supervision and 18 months supervised by community corrections service treatment program ending on 1 April 2020.

17. The essential circumstances of the offending as set out in an amended police facts sheet dated 11 May 2018 are that the Applicant boarded a train on 17 April 2018 and started speaking on his mobile phone. The victim, who was a minor, was sitting to the far right of the Applicant and one row forward of him on the train.

18. When he finished speaking on the phone, the Applicant began masturbating.  He continued to do so for 15 minutes and whilst looking in the direction of the victim. The victim left the train carriage and saw the Applicant’s penis. The Applicant smiled at the victim as she left the train and when she was standing on the platform.

19. In an affidavit provided to the Court dated 2 October 2018 the Applicant writes that he was aware that he needed help before the offence but that it was ‘not until I was arrested for these offences that it truly hit me that something was terribly wrong with me’. He writes that he has constantly been questioning how he could have behaved the way he did and that he is ‘shocked’ by his behaviour. He writes in part: 

    To this day, I struggle to understand why I did behave in such a disgusting way. I have never done anything like this before. I am so deeply ashamed of myself and my actions. I honestly do not know or understand why I behaved in this way. All I know was that at the time I was so overwhelmed by my life and the stress in my life. My mother was very sick and I was not coping at all.  I felt like my life had reached its lowest point and I was in a dark place.[5]

    [5] SM1/41.

20. The Applicant also explained at the hearing that the act of indecency was in part related to his suffering from Post Traumatic Stress Disorder (PTSD). He told the Tribunal:

    MEMBER:  Yes.  Okay.  And can you perhaps explain how it is that the post‑traumatic stress disorder related to the offending, or contributed to the offending in some way?

    WITNESS:  Well, when ‑ even in privately, when I do this thing, on the offence, I do it when I'm really stressed and I have too much in my mind.  I want to relax and to have a good time.  On that time, it's like, I wasn't ‑ I couldn't wait to get home.  And I was going back from ‑ going back from Court of this offence, of the traffic thing, the driving offence.  I was going back from it to home.  And I was so stressed and like this, and I really feel to do it.  And I know it's wrong to do it in publicly, but I checked there was no one back.  When the ‑ that person came, the problem I did, I didn't stop.

21. Documents before the Tribunal at the time of the hearing included a report dated 12 April 2018 by clinical psychologist Sam Borenstein.[6] Mr Borenstein’s report makes reference to the Applicant having ‘pleaded not guilty to one charge of exceed speed limit over 10 kilometres and falsely nominated another person as the person who was in charge of the vehicle at the time the camera recorded the offence’. Mr Bornstein continues, stating that the Applicant had ‘not received legal advice at that time, and upon doing so, entered a plea of guilty’. He concludes:  

    [the Applicant] says of the offence, “I was scared. I didn’t know what to do”. [The Applicant] says he acted on impulse when he filled in a false declaration, and he was in fact in a fairly acutely emotionally state [sic].

    [6] SM1/43 – 53.

22. The Applicant’s nationally coordinated criminal history check report dated 16 December 2020 records the conviction for the commit act of indecency with person 16 years or over-T2, but does not include any other offences, including one of the nature described in Mr Borenstein’s report.

23. The Applicant was referred to the reference in Mr Bornstein’s report and asked if it was a mistake. He told the Tribunal: 

    This is true, yes.  But as ‑ because for what happens exactly, because the Court did not give me a chance to talk, and when I brought a lawyer, okay, the lawyer said, "No, you have to plead guilty."  So I accepted to be guilty for it.  Why?  Because I'm guilty to lend a car for someone.  I'm guilty to that person, he nominated a person he's not in Australia, and I'm guilty, yes, done all this, and I accepted all of that.  So by pleading guilty for this, I asked to have a chance for ‑ to fix that problem and they gave me a chance.  And they gave me 50 per cent discount on the fines and they did not make me lose my licence too.

24. When pressed to provide further detail, the Applicant gave evidence that whilst he was not guilty of the offence, he did not have evidence to prove his innocence. Faced with the prospect of harsher penalties, he chose to plead guilty. 

25. He detailed the circumstances leading to the offending, telling the Tribunal that his friend asked to borrow his car, which at the time was unregistered. His friend was ‘supposed to do the rego’ for his car as the Applicant was at work.

26. When the Applicant subsequently received the speeding fine he told the individual  who had borrowed his vehicle to pay the fine. The nominated driver offered to give the money directly to the Applicant who told him: 

    No, I don't want anything under my name, because I'm trying to make a good [driving] record. .[7]

    [7] Transcript of Proceedings (21 March 2022), p. 23.

27. The Applicant claims to have given then given the nominated driver the fine on the understanding he would pay it as agreed. The Applicant thought the matter had been resolved until he received a court attendance notice. 

28. Following the Tribunal hearing, the Respondent sought to summons documents relating to the offending described in Mr Borenstein’s report. The documents provided under summons include the Applicant’s Roads and Maritime Services (RMS) driving record.

29. The Applicant’s driving record shows he was issued a learner licence in February 2014 and provisional licence in April the following year. On 23 April 2016 he was detected exceeding the speed limit by more than 20 km/h but not more than 30 km/h for which he was fined and his licence was suspended for three months.

30. The Applicant received further fines for exceeding the speed limit, disobey traffic lights, stand vehicle in disabled parking space without authority, driving whilst suspended and Exceed speed limit by more than 30 km/h but not more than 45 km/h.

31. Not included in his driving record is an offence of exceeding speed limit over 10 km/h which was detected by a camera on 16 January 2017. According to a sentencing submission made on behalf of the State Debt Recovery (SDR) office, the Applicant was sent a penalty notice for this offence on 19 January 2017.[8]

    [8] SM2/121 – 125.

32. On 29 March 2017 the Applicant provided a statutory declaration in which he nominated another driver as being responsible for the vehicle at the time of the speeding offence. A penalty notice was subsequently issued to the nominated driver by SDR. Records held by the Department of Immigration and Border Protection show that the person who was nominated as driver by the Applicant was outside of Australia at the time of the offence, having departed on 28 December 2016.[9] 

    [9] SM2/147.

33. The SDR sentencing submission also notes that at the time of submitting the statutory declaration, the Applicant had been issued with a P2 provisional drivers licence, had incurred 6 demerit points, had a demerit point limit of 7 points and had been issued a demerit point warning letter by RMS. The submission argues that the Applicant’s conduct was ‘calculated to avoid responsibility’ for the offence. 

34. The Applicant wrote to the court on 13 April 2018 stating that he took ‘full responsibility for any actions’, and that he knew that what he had done was ‘wrong and illegal’.[10] He asked that a conviction not be recorded and stated he was ‘ashamed and remorseful’ for his action.

    [10] SM2/102.

35. Based on correspondence from the Applicant’s legal representative in those proceedings, it would appear that the matter was resolved with a plea of guilty by the Applicant.

36. Court documents indicate that the Applicant was initially fined $250 for the speeding offence and $5,000 for falsely nominate another person as the person in charge of a vehicle at the time of a camera recorded offence.[11] The Applicant appealed the severity of the fine which was reduced on 26 July 2018 to $2,000. 

    [11] SM2/54.

37. Having been provided the summonsed material, the Applicant made an undated written submission in which he wrote in part: 

    In relation to the charges of falsely nominating another person, decisions I made then were based originally on ill-considered advice from others and an ingrained fear of Police based on the reputation and actions of law enforcement officers in my homeland of Iraq and Syria, where corruption, graft, racism and violence was endemic among the police forces.  The respondent has not set out or considered the background or circumstances leading up to this incident. It may have been dishonest, but not a deliberate attempt to deceive or defraud.  It was a decision based on the ill-considered advice of others and a genuine deep mistrust of law enforcement officers.  Again, statistics reveal that about a third of all Australians have lied insurance car claims and documents, so am I really any worse than these Australian citizens? Has the respondent taken this into consideration in his decision making?             

    The Applicant’s personal circumstances

38. In his 12 April 2018 report Mr Borenstein writes that the Applicant resides with his mother and sister and lives ‘a fairly lonely existence’. Between 29 January 2014 and 28 March 2014 the Applicant attended a total of 8 sessions of counselling with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) for ‘the treatment of anxiety, depression and post traumatic stress consequent to repeated traumas in Iraq and Syria’.[12]

    [12] SM1/44.

39. Mr Borenstein reports that the Applicant was kidnapped when he was 8 years old and has a vague memory of the kidnapping. He was released after two weeks when a ransom was paid. He was not physically hurt but thought that he would die. The Applicant is reported to have told Mr Borenstein that after the kidnapping he would not go out much and did not have many friends. Whilst in Syria the Applicant was subject to further trauma when a car bomb exploded 150 metres from where he was standing.

40. The Applicant’s father died with he was young. Mr Borenstein writes that the Applicant’s symptoms had become more prevalent over the two years before writing his report ‘coinciding with his mother’s deteriorating health’. At the time the Applicant feared that his mother’s health would deteriorate as his father’s did. Evidence before the Tribunal indicates that the Applicant’s mother has been receiving treatment for cancer since 2017 and suffers from other medical conditions including ischaemic heart disease.  

41. Mr Borenstein writes that the 2017 offending occurred when the Applicant ‘was in an acutely emotional state’. The Applicant had not long formed a new relationship and when he and his girlfriend argued he became ‘increasingly anxious and distressed’. When the Applicant ‘filled in the false declaration after receiving the fine, he felt most concerned about the relationship and experienced intrusive memories of his father’s death and failed relationship in Syria, triggering [the Applicant] into survival mode’.[13]

    [13] SM1/47.

42. Mr Borenstein reports that the Applicant’s results on the Depression Anxiety Stress Scale (DASS 21) confirms extremely severe symptoms of depression and anxiety.

43. The Applicant gave evidence that he had been consulting with Mr Borenstein regularly for nearly two years.

    Character references

44. David Critchley was the Applicant’s teacher whilst he was at college. In addition to a written statement in support of the Applicant, he provided oral evidence at the hearing. Mr Critchley writes that the Applicant is a ‘man of great integrity and respect’ who has excellent social skills and takes ‘a keen interest in the welfare of those around him’. Outside of pandemic related restrictions, Mr Critchley had contact with the Applicant weekly. Mr Critchley is both a friend and mentor to the Applicant.

45. Prior to the indecent exposure offence, Mr Critchley spoke to the Applicant about his life prior to him arriving in Australia. He writes that the ‘squalor and harsh conditions’ that the Applicant and his family experienced in Syria and Turkey brought the Applicant to tears.

46. He believes that the Applicant missed much of his adolescent years owing to the difficulties he experienced growing up and that the Applicant is a ‘respectful, conscientious and loyal member of society’. 

47. At the hearing he told the Tribunal that having known the Applicant since 2016 he believed his offending was out of character. Mr Critchley was very surprised when he found out about the act of indecency. He said the Applicant was extremely embarrassed and mortified about what happened.  

1. In terms of the changes he has seen in the Applicant, Mr Critchley told the Tribunal that the Applicant appeared more relaxed recently and believes that he has benefitted from the psychological treatment he has received. Asked about the Applicant’s anger, he gave evidence that he has seen him in tears and frustrated but has never seen him very ‘angry’.

2. Rhona Cuenca has known the Applicant for almost three years having met at church. She finds him ‘a man of truth, honesty and integrity’, and writes that the Applicant has been open with her about his offending.

3. Ms Cuenca has accompanied the Applicant when he was required to attend the Community Corrections Office and to his psychologist appointments. She believes that the Applicant has matured following the conviction.

4. Mr Al-Khamees and Mrs Al-Khameesi write that they have known the Applicant since 2015 when their son attended school with the Applicant. They write that he is like a son to them and has always been a good and approachable person. He assisted them with their own citizenship applications and write that the Applicant was ‘honest and upfront with us about his inappropriate behaviour’. They believe the Applicant has learnt from his mistake. 

5. Carmen Lazar of the Assyrian Australian Association writes that she has known the Applicant since December 2013 when he was a youth volunteer worker. She writes that he was a reliable ‘team player’ during his time as a volunteer.

   CONSIDERATION

6. The Applicant presented with a desire to improve and to do better. I accept that he has sought counselling to improve upon himself both in 2014 and more recently and regularly commencing at the time of the 2017 offending.

7. In various statements he has acknowledged the seriousness of the act of indecency and the impact of the offence on the victim. On the basis of his affidavit of 2 October 2018, I accept the Applicant appreciates how much distress and discomfort his offending caused to the victim. 

8. His referees speak well of him and it is apparent, based on the support they have provided, that he has formed meaningful relationships in the community.  

9. The Applicant gave evidence at the hearing that he was not responsible for the offending related to the speeding offence in 2017. I do not accept this evidence for two reasons. Firstly, it is well established that the Tribunal cannot impugn or ‘look behind’ a conviction made by a criminal court. As was said by the Full Federal Court in HZCP v Minister for Immigration and Border Protection:

   As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function. The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.[14]

   (Citations omitted and emphasis added.)

   [14] [2019] FCAFC 202 at [77].

10. Secondly, the evidence in relation to the speeding fine and false declaration does not support a finding of anything other than what is recorded in the court documents. Specifically, the Applicant was fined for speeding and for falsely nominating another person for the camera recorded offence. On 26 July 2018 he accepted a 12-month section 10 bond from the District Court of NSW in relation to these offences.[15]

    [15] SM2/12.

11. The Applicant’s evidence to the Tribunal – that he entered a plea of guilty out of expedience and as he lacked evidence to demonstrate he was not driving the vehicle – is contrary to the submissions he made to the District Court. In those submissions he not only accepted unequivocally his responsibility for the offending but also went to considerable length to explain the reasons for the offending, which he submitted were primarily a combination of external stressors combined with his own traumatic experiences prior to his coming to Australia.[16]

    [16] SM2/43.

12. In any event, having received the summonsed material the Applicant now acknowledges he falsely nominated another person as being responsible for the 2017 speeding offence. His argument that his actions were driven by a deep mistrust of law enforcement is not supported by evidence and contrary to his previously stated ambition to become a police officer. His observation that the 2017 offending was unexceptional compared to the actions of many Australian citizens indicates he does not consider the falsely nominating another person offence to be particularly serious.

13. The Instructions specifically provide that an applicant of good character would not practise deception or fraud in dealings with the Australian government or other organisations, and I consider the 2017 offence weighs against a finding of good character for this reason.

14. Consistent with the Instructions, it is appropriate to consider the Applicant’s offending in the context of his background and personal circumstances. I acknowledge that the Applicant has experienced a difficult childhood and note his diagnosis of depression, PTSD and other related conditions by Mr Borenstein. Those experiences, as detailed by Mr Borenstein and Mr Critchley, may have contributed to his offending behaviour.

15. The Applicant contends that the act of indecency was linked to his diagnosis of PTSD. Mr Borenstein’s report supports a conclusion that the traumatic experiences of his past continue to have an impact on his current behaviour and mental health. The Applicant claims to have appeared in court for the 2017 offence the day he performed the act of indecency. This account appears consistent with the documentary evidence and supports his contention that PTSD and anxiety contributed to his most recent offending.   

16. By way of mitigation the Applicant also submits that he is seeking to improve himself and pointed, quite appropriately, at the work he had done with Mr Borenstein and STARTTS before that. It is also to his credit that he has completed his secondary schooling and continues to study whilst working.

17. The amount of time that has passed since the offending behaviour is a mitigating factor identified in the Instructions. In the current circumstances the Applicant was under obligation to the Court in respect of his good behaviour bond until 1 April 2020. I accept the Respondent’s contention that not enough time has passed since the most recent offending for this to be a mitigating factor.

18. In Ragni Mala Prasad and Minister of Immigration and Ethnic Affairs the Tribunal observed that ‘[a] decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness’.[17] 

    [17] [1994] AATA 326 at [7].

19. The Applicant’s individual offences are not insignificant and his driving record and the nature of the 2017 offence indicate a disregard for the law. I have taken into account the Applicant’s positive character references, traumatic background and the other good qualities. The Applicant’s expression of remorse is acknowledged but afforded limited weight given his obfuscation of the 2017 offending including his initial claim to the Tribunal that he had done nothing wrong. 

20. For these reasons, in considering the totality of the evidence I am unable to make a positive finding of good character at this time. As the Applicant does not satisfy paragraph 21(2)(h) of the Act, the decision under review will be affirmed.

21. I note that it is open to the Applicant to make another application for Australian citizenship should he wish to do so.

    DECISION

22. The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 18 June 2021 is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 5 July 2022

Date(s) of hearing:	21 March 2022
Date final submissions received:	7 May 2022
Applicant:	In person
Solicitor for the Respondent:	Mr I Duldig, Clayton Utz