Tong and Minister for Immigration and Citizenship

[2007] AATA 1195

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1195

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/624

GENERAL ADMINISTRATIVE DIVISION		)
Re		AKOK ACHOUNG ATEM TONG

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal The Hon R N J Purvis, AM, QC, Deputy President

Date30 March 2007

PlaceSydney

Decision Consideration of the application is deferred pursuant to section 14 of the Australian Citizenship Act 1948 for a period concluding on 30 September 2007.If nothing adverse to the character of Mr Tong should happen prior to 30 September 2007, including an absence of breach of the conditions of the bond, the decision under review is to be set aside and the application referred back to the Respondent for further consideration with a direction that section 13(1)(f) of the Australian Citizenship Act 1948 is satisfied.

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

The Hon RNJ Purvis AM, QC
  Deputy President

CATCHWORDS

CITIZENSHIP – permanent residency status – good character requirement – good-behaviour bond – failure to disclose past traffic convictions – government policy – consideration of the application is deferred – if nothing adverse to the character occurs decision under review to be set aside

Australian Citizenship Act 1948 – s 13(1), s 14

Migration Act 1958 – s 501

Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

REASONS FOR DECISION

30 March 2007 The Hon R N J Purvis, AM, QC, Deputy President       

the application

1.      This is an application lodged by Mr Akok Achoung Atem Tong (“the Applicant”) with the Tribunal under date 25 May 2006, seeking review of a decision made by a Delegate of the Minister for Immigration and Citizenship (“the Respondent”) on 5 May 2006 to refuse Mr Tong’s application for Australian citizenship. The relevant application was refused on the ground that Mr Tong was not of good character.

2.      In the decision of the Respondent refusing the application, it was stated that Mr Tong, whilst having been convicted of various traffic offences, failed to disclose the same in his citizenship application. He was also, at the time of his application, on an 18 months good-behaviour bond imposed as the consequence of a traffic conviction expiring in May 2007, the existence of which was also not disclosed. The Respondent, accordingly, was not satisfied that Mr Tong was of good character.

statutory provisions and instructions

3.      So far as they are relevant to this application, the Australian Citizenship Act 1948 provides:

13 Grant of Australian Citizenship

(1)Subject to this section, the minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

…

(f) the person is of good character;

…

…

14 Deferral of consideration of application under section 13

(1)       Subject to subsection where:

(a) an application is made to the Minister under section 13; and

(b) it appears to the Minister at a particular time that:

(i)if the Minister were to complete consideration of the application at that time, the Minister would be likely to refuse the application (otherwise than by reason of the operation of paragraph 13(1)(d) or (3)); and

(ii)having regard to the effluxion of time, or to the likelihood of a change in circumstances, the Minister would be likely to grant the application if consideration of the application were deferred for such period as the Minister determines;

the Minister may, in the Minister’s discretion, defer consideration of the application until the expiration of that period.

(2)The Minister shall not defer consideration of an application made under section 13 for a period that exceeds, or for periods that, in the aggregate, exceed, 12 months.

…

4.      The Australian Citizenship Instructions make provision for factors that warrant consideration when assessing the Good Character Requirement. So far as relevant they provide:

…

5.4.2The term ‘good character’ is not defined in the Act, so decision-makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.

5.4.3If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character.

…

5.4.4Assessment of good character involves:

…

·Considering the full circumstances relating to the relevant matters and evidence of the applicant’s behaviour since then.

…

5.      Clause 5.4.7 requires consideration to be given to the seriousness of any offences committed by the applicant in the context of ordinary community standards.

6.      Clause 5.4.9 requires consideration to be given to whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond. It provides that the existence of a bond may indicate that insufficient time has elapsed since the commission of the crime to establish the applicant’s good character.

7.      In clause 5.4.11 the happening of an offence and being a “one-off” occurrence, may well be considered as out of character. Again extenuating circumstances are to be considered as they relate to the person’s behaviour and reputation at the time of the decision being made. Decision-makers are required to be satisfied that a person is of good character at the time of the decision.

8.      It is emphasised in clause 5.4.16 that the onus is on the Applicant to demonstrate that there has been a change in his/her character since last offending.

relevant facts and findings of fact

9.      Mr Tong migrated to Australia from the Sudan with his wife and one child in June 2003. At or shortly after their arrival in Australia, the family was granted permanent residency status. Since that time a second child has been born to the Applicant and his wife. He has not as yet obtained employment, having spent time learning English and since 2005, being enrolled in a computer course with TAFE. He has attended computer classes organised by the Young Christian Workers Organisation. He wishes to seek a position working with computers and information technology.

10.     On 9 February 2005 Mr Tong appeared with a Legal Aid Officer before a Magistrate at Burwood Local Court where he was convicted of driving a motor vehicle whilst a learner unaccompanied by a licensed person, or police officer, or a tester, and failing to display an “L” sign. He said in his evidence before the Tribunal that he was not able to find a suitable person to accompany him. He was fined $300, ordered to pay court costs and disqualified from driving for six months commencing on 8 March 2005. On 27 August 2005 he was again before the Local Court, charged with driving whilst disqualified and was convicted and placed on an 18 months good-behaviour bond.

11.     Under date of 25 October 2005, Mr Tong lodged with the Respondent his application for grant of Australian citizenship. He did not ask for, nor received any assistance in completing the form. He said that he was, and is, able to “communicate quite well verbally” but that his “reading and writing skills still need much improvement” (Exhibit B). This even be it that since at least early 2005 he has been a student of Information Technology and Computers. He provided answers on the form to all of the relevant questions except for six questions relating to character, the most relevant being:

46. Please answer the following questions about yourself and any other person included in this application:

(a) Have you, or any other person included in this application, ever 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)?   

…

(d) Are you, or any other person included in this application, presently under a probation order, good behaviour bond, on parole, released on licence, or subject to periodic detention overseas or in Australia?

12.     Mr Tong says that he “did not understand” these questions even though he seemingly understood all of the other questions that he answered. He in due course presented the form to an officer of the Respondent at Parramatta. He did not ask for assistance at that time from the officer in answering any of the questions. Nor did the officer draw to Mr Tong’s attention the fact that he had not answered all of the questions. He was well aware of his convictions and the fact that he was on a good behaviour bond at the time of his application. He signed the application, declaring that the information in it was “complete and correct”. The Tribunal is satisfied that Mr Tong did not intend to reveal his traffic convictions to the Respondent.

discussion and decision

13.     It is not the traffic offences themselves that might warrant an adverse character finding against Mr Tong, but his failure to disclose their existence and that of his being on a good-behaviour bond in the citizenship application. The offences occurred in 2005, the citizenship application was made in 2006, and the currency of the bond expires in May 2007.

14.     As already mentioned, the onus is upon Mr Tong to satisfy the Tribunal that he is of good character. There has been insufficient time to establish this fact. The Refugee Campaign Coordinator with the Young Christian Workers Organisation says that in her “experience”, Mr Tong is of good character. Having in mind the above narrated conduct and the bond to which there is attached the good-behaviour obligations, the Tribunal is of the opinion that it cannot be said or found at this time that Mr Tong has established the good character pre-requisite.

15.     Citizenship has attached to it privileges but it also carries responsibilities. A person to whom citizenship has been awarded holds himself/herself out as one who has been recognised by the Australian people as one who is entitled to join them as an Australian. This is why the characteristic of being of good character is so important. It is for the public good that acceptance or refusal is important.

16. Good character is to be given the same meaning as that attributed to the words as used in section 501 of the Migration Act 1958  (see Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 at para 17). The Citizenship Instructions in the various considerations earlier identified are relevant. The policy detail in the Instructions does not have the force of delegated legislation and is thus not strictly binding upon the Tribunal. However, unless there is good reason not to do so, the Tribunal will follow the policy (Mlinar (supra) para 21).

17.     If the Tribunal was to complete consideration of this matter at this time, having in mind the existence of the bond, the making of the application while the bond was current and Mr Tong not making mention of it, the application is likely to have been refused. On the other hand, the bond will expire in May 2007. Mrs Tong has her application for citizenship due for consideration later this year. Mr Tong holds a driving licence at this time on a provisional basis.

18.     If nothing untoward should occur over the next six months, it is likely that the Tribunal would, at the expiration of that period, grant the application.

19. Accordingly consideration of the application is deferred pursuant to section 14 of the Australian Citizenship Act 1948 for a period concluding on 30 September 2007. If nothing adverse to the character of Mr Tong should happen prior to 30 September 2007, including an absence of breach of the conditions of the bond, the decision under review is to be set aside and the application referred back to the Respondent for further consideration with a direction that section 13(1)(f) is satisfied.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM QC, Deputy President.

Signed:         [sgd]  .....................................................................................

Associate

Date/s of Hearing  16 March 2007 
Date of Decision  30 March 2007             
Representative for the Applicant           Self-represented          
Representative for the Respondent      Bronwyn McNeil – Clayton Utz Lawyers