Tut and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 1056

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1056

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/598

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN CHUOL TUT

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms MJ Carstairs, Senior Member

Date8 December 2006

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with a direction that the applicant is a person of good character.

..............[Sgd].............
  M J Carstairs

Senior Member

CATCHWORDS

CITIZENSHIP ‑ application for Australian citizenship ‑ conviction for offences – sexual offences – no criminal conviction – substantial compliance with probation order – applicant involved in church, community and youth counselling -  applicant of good character – decision set aside

Australian Citizenship Act 1948 s 13(1)(e),(f)

Australian Citizenship Instructions

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

Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997)

Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re McColl and Minister for Immigration and Multicultural Affairs [2006] AATA 340

REASONS FOR DECISION

8 December 2006  M J Carstairs, Senior Member

1.      John Tut seeks review by the Tribunal of a decision to refuse him Australian citizenship on the grounds that he was not of good character - one of several matters of which the Minister must be satisfied before granting citizenship to a person.

BACKGROUND

2.      Mr Tut is a 24 year old Sudanese national who escaped in 1991 to Ethiopia after the fall of the Sudanese government. Mr Tut came to Australia in 2002 on a refugee visa from Ethiopia, and was granted permanent residence on arrival.  Mr Tut’s partner is an Australian citizen; they have two children, Jordan aged 2 and Ava, aged eight months.  Another child is expected in 2007.  

3.      Mr Tut completed his secondary education, receiving his Ethiopian School leaving certificate in 2002.[1] After entering Australia he undertook further secondary study at Mitchelton High School as a mature age student, in order to improve his English for tertiary studies.  To that end he completed Grade 12 in 2005 and is currently undertaking a laboratory technician course at TAFE.  He hopes to attend university in 2007.

[1] Document T5

4.      Mr Tut works part-time at Coles and at Bi-Lo stores and recently commenced as a contracted translator with the Department of Immigration and Multicultural Affairs.

5.      I was told that Mr Tut first applied for Australian citizenship on 15 December 2004.  For reasons not explained, there was no copy of his claim form in the documents presented to the Tribunal.  No suggestion was made, however, that he provided information in his completed claim other than honestly.

6.      Mr Tut’s criminal history post-dates his application for citizenship, although the first offences, which took place outside the Embassy Hotel in Brisbane, occurred a month before.  The criminal history is as follows:

2005One count of removal of person from premises (under the Liquor Act 1992). 

One count of obstruction and one count of contravene requirement (under the Police Powers and Responsibilities Act 2000)

Fined and no conviction recorded in respect of all three offences.

2005Two counts of indecent assault against a female minor.         

No conviction recorded – probation of 18 months imposed.   

7.      Mr Tut’s claim was first refused on 30 November 2005.  This first decision was set aside earlier this year by the Tribunal[2] and the matter was remitted to the respondent for reconsideration on the grounds that s13(11)(e) of the Australian Citizenship Act 1948 (the Act), on which the delegate based the first decision, applies only where a person has been released from serving the whole or part of a sentence of imprisonment.  That was not the case here – Mr Tut was never given a term of imprisonment. 

[2] Oral decision of the Tribunal dated February 2006

8.      The respondent then made the second decision, that is to refuse Mr Tut’s claim for citizenship because he is not a person of good character as provided for in s13(1)(f) of the Act.  This is in issue before the Tribunal.

GOOD CHARACTER

9.      In relation to the question of his character, Mr Tut referred to his involvement with his church and the wider community.  He is a member of the Queensland Youth Council, having applied in 2004 after this was suggested to him by Mr Kevin Stewart, a member of Mr Tut’s church.  Mr Tut maintains contact with other Sudanses in this country, and I was told that he takes on a counselling role with Sudanese youth within his church community.  Mr Tut maintains that he has much to contribute and particularly wishes to be an Australian citizen so that he be a model to his young family as a part of the Australian community. 

10.     Mr Tut said that the first criminal offence, outside the Embassy Hotel, was the result of miscommunication between himself and police.  Mr Tut said that he was the one who had called the police over after he was refused entry to the hotel, and had taken offence about comments that were made about his appearance.  Mr Tut said that he could not understand how the police saw him as being the problem when he was the one who had instigated police intervention.  He acknowledged that he had become emotional.  In whatever occurred next, Mr Tut now agrees that he had refused to give his name and address to the police and had struggled with them.  He said he was wrong to do so.

11.     Without seeking to minimise the altercation with the police at the Embassy Hotel, I doubt that the Department would claim that Mr Tut was a person unworthy of citizenship if this were the only offence, particularly in the context of language difficulties and misunderstandings that can arise in such circumstances.  Clearly the more significant offence, the offence which squarely raises the question of good character, is not that occurrence, but the two charges of sexual assault to which Mr Tut pleaded guilty in the Brisbane Magistrates Court. 

12.     With regard to those offences I was provided with the court brief and the transcript of the proceedings in the Magistrates Court, plus the reasons for decision of the learned Magistrate, Mr Barbeler.   

13.     The incident took place at Mr Tut’s flat where he resided with his cousin.  Mr Tut and the girl were both in Year 12 at Mitchelton High School.  Importantly, for a proper appreciation of the nature of the complaint, although both were in in Year 12 Mr Tut was 22 years of age and the girl was only 16.  They were walking home together after school.  She accompanied him to his flat, where she alleged Mr Tut attempted to force his attentions upon her.  However the girl said in her statement to police that Mr Tut desisted in his actions when she objected to his behaviour. 

14.     Mr Tut said that he had made the decision to plead guilty after his legal aid solicitor telephoned from the Magistrates Court on the day of his committal and spoke to an officer at the Department of Immigration and Ethnic Affairs about what consequences might flow for his citizenship application from different outcomes in the Magistrates Court proceedings.  Mr Tut said that he understood his solicitor was told that if there was no conviction recorded there would be no impediment to his citizenship application.  His solicitor was telephoned at my request during the hearing and was able to access Mr Tut’s file from archives at short notice.  His file note of the telephone call accorded with what Mr Tut said was discussed with the officer.  That is, the advice given was that if no conviction was recorded then there would be no problem for Mr Tut’s application.

15.     I considered carefully what Mr Tut now says about being innocent of the charges of sexual assault.  However I do not accept that he only pleaded guilty because he believed that there would be no hindrance to his citizenship application.  I certainly accept that discussions to that effect did take place between his solicitor and an officer at the Department. 

16.     Clearly a plea of guilty should be taken on its face.  I do not accept that Mr Tut would have pleaded guilty simply to have the matter expedited. This Tribunal should not lightly interfere with the judgment of Courts.  I am particularly mindful in forming the view that I have, that what took place concerned sexual offences, involving a young person of 16 years of age and Mr Tut an adult some years her senior.

17.     I note the Crown acknowledged that there were no circumstances of aggravation in respect of the offences and agreed that no conviction should be recorded.  The Crown pointed out to his Honour that Mr Tut had to overcome a number of difficult life circumstances as a refugee, and mentioned Mr Tut’s citizenship application, as did Mr Tut’s solicitor. 

18.     Having taken account of the Court records and the remarks in judgment I have therefore proceeded on the basis that the offences took place as charged.  His Honour, a very experienced magistrate, considered the circumstances of the offences and acknowledged that the charges were very serious.  Those indeed were his opening words.  However he said there were a number of mitigating factors, including that the girl’s behaviour indicated that she was well disposed towards Mr Tut and he was a friend - not a stranger.  His Honour’s remarks taken as a whole reflect that he considered these offences were on the lesser end of severity in matters of this kind.  That too is reflected in his conclusion that no conviction should be recorded, but that Mr Tut should be placed on probation for 18 months. 

REFERENCES FROM OTHERS CONCERNING MR TUT’S CHARACTER

19.     In support of his application Mr Tut produced a number of letters from teachers and friends, presenting Mr Tut as kind, generous, hardworking and helpful.  Some were general character references, seemingly prepared to assist Mr Tut when seeking employment.  They do not refer to matters particular to the citizenship claim, nor did they make reference to his criminal offences.  One was from the headmaster at Mitchelton State High School where Mr Tut completed his Year 12 studies.[3] I was told that the giving of this reference, a positive one, should be understood in the context of the headmaster being the person to whom the girl reported what happened at Mr Tut’s flat and he then referred the matter to the police. 

[3] Document T8.

20.     Mr Duol Thian, who is the Secretary of the Sudanese Nuer Congregation of Queensland and a personal friend of Mr Tut, attended the hearing and gave evidence, as did Mr Kevin Stewart, a management consultant who came to know Mr Tut through their mutual involvement with Creek Road Presbyterian Church.  Mr Thian said that he has known Mr Tut for about three years.  He spoke of Mr Tut’s involvement in counselling and guidance to Sudanese youth in their church.  Mr Thian said that Mr Tut is a good man who provides leadership to others. 

21.     Mr Stewart said that he has been an Elder of the Presbyterian Church for 27 years and came to know Mr Tut about the end of 2002, when Mr Stewart became involved in driving those from the Sudanese community who like Mr Tut, wanted to attend church.  Mr Stewart said that Mr Tut had come to him about the criminal charges.  Mr Stewart said that he has no hesitation in accepting Mr Tut’s word regarding what happened.  He said that Mr Tut is very mindful of acting appropriately and providing guidance to others in the Nuer community.  Mr Stewart said that he had no hesitation providing a reference for Mr Tut for membership to the Queensland Youth Council.

SHOULD MR TUT BE GRANTED CITIZENSHIP?

22.     Under s 13(1) of the Act, at the Minister’s discretion, the Minister may grant a person a certificate of citizenship.

23.     Chapter 5 of the Australian Citizenship Instructions (the Instructions), sets out the policy guidelines which are to be applied by delegates of the Minister when assessing applications for the grant of a citizenship.  I had regard to these instructions: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

24.     In particular I took into account that paragraph 5.4.2 of the Instructions notes that while the term good character is not defined in the Act, decision makers should be guided by the ordinary use of the words, and would in the ordinary course take into account a serious criminal record.  Paragraph 5.4.4 puts this account in the context of the full circumstances relating to any criminal matters.  Paragraph 5.4.11 requires that I consider whether an offence is a one-off occurrence and in that sense out of character. 

25.     In Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997), it was determined that character is to be considered objectively against ordinary community standards of moral behaviour.  The Tribunal  there stated (at paragraph 22) that:

“…In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Davies J (with whose reasons R D Nicholson J agreed) said (at p.425):

“…the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute... But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant…"

26.     In Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 the Tribunal said (at paragraph 17):

“"Good character" in s 13 [of the Act] should be given the same meaning as it is in s 501 of the Migration Act 1958(Cth)…The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it...”

27.     I was impressed with Mr Tut in giving his evidence.  I consider that he is - as many of those who have written in his support have said - honest and hard working.  He has done much to better himself since coming to Australia.  He is studying at tertiary level and he is working at two jobs.  He finds time to make a contribution to the community through his church and through the Queensland Youth Council. He is a man who I accept is deeply committed to his young family and is seeking to ensure the best for their future and provide an example to them as an Australian citizen. 

28.     I found the evidence of Mr Stewart and Mr Thian helpful in assessing Mr Tut’s character.  Both men are persons of good reputation in the community.  Both attest to Mr Tut’s character, his reputation within their church and within the wider community, and as one who provides a role model to Sudanese youth.  I note that Mr Tut’s headmaster, who reported the offences to police, allowed Mr Tut to stay on at the school and gave Mr Tut a supporting reference at the end of Year 12.[4] 

[4] Document T8.

29.     I took account of Mr Tut’s present denials that he had perpetrated any offence, despite his plea of guilty.  There are circumstances where this might count against his good character.  Showing appropriate remorse can be indicative of a positive change in character.  I have taken into account his Honour’s cautionary remarks to Mr Tut that he needed to learn what was appropriate behaviour in Australia.  It seems to me that Mr Tut is mindful of his responsibilities now. 

30.     Guidance for the outcome on Mr Tut’s citizenship application comes from the fact that, in the context of all the evidence and information before him, the Magistrate chose leniency.  Reference is made in the Instructions to these considerations.  Paragraph 5.4.7 of the Instructions refers to sentences totalling 12 months as a broad guide as to what constitutes seriousness, but points out further that the decision-maker should consider any leniency being indicated in the length of a sentence or in the remarks of the sentencing judge.  It seems to me that the fact the Magistrate considered that what took place between Mr Tut and the girl did not warrant a conviction being recorded is sufficient to determine in Mr Tut’s favour the questions of the seriousness of the offence. 

31.     I was satisfied that both offences were out of character for Mr Tut and he shows no pattern of repeated offending.  More than twelve months of the eighteen month probation has now passed.  In that time Mr Tut has completed his schooling and undertaken his first year of TAFE study.  He is in a stable relationship with the mother of his two children, with a third child on the way. 

32.     Mr Lo submitted that Mr Tut’s real motive in seeking citizenship is to access the HECS fee arrangements only available to Australian citizens.  I do not agree.  Mr Tut, who has mastered English skills, but struggled at times with expressing more complex ideas, acknowledged that he could not afford to attend university unless he can access the HECS scheme. However he said that there are a number of other reasons for his seeking citizenship, including that he wants to demonstrate his commitment to Australia to his children and would like to join the Australian Army.  It did not seem to me that this was a case similar to McColl and Minister for Immigration and Multicultural Affairs [2006] AATA 340 to which Mr Lo referred, in which a similar issue arose, but where the applicant was a repeat offender, over a lengthy period of time and a case where there were not other compelling circumstances as there are here.

33.     Mr Lo submitted that the proper course was not to grant citizenship while the period of probation had not expired.  I do not agree.  Mr Tut has had no convictions recorded and has had no prison sentence imposed upon him.  Sufficient time has passed for me to be satisfied that he is unlikely to re-offend or disregard any of the requirements of his probation. 

34.     I consider that, having regard to the totality of the evidence, what took place between Mr Tut and the girl was out of character for him, and as His Honour pointed out in assessing the evidence, it can be a fine, difficult line, (perhaps more difficult for Mr Tut in a new cultural setting) between encouraging a young woman to go further, and going further than they wish to go.

35.      I accept that Mr Tut now faces up to the responsibilities of citizenship, a matter well supported by those such as Mr Thian and Mr Stewart who speak highly of his moral qualities and are in a good position through their regular contact with him to observe these matters. 

36.     For these reasons the Tribunal finds that Mr Tut, at the time of his application for citizenship, was a person of good character, who satisfies s 13(1)(f) of the Act and should be granted Australian citizenship.

DECISION

37.     The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with a direction that the applicant is a person of good character.

I certify that the preceding 37 paragraphs are a true copy of the reasons for the decision of M J Carstairs Senior Member:

Signed       Michelle J Brazier   

Legal Research Officer

Date of hearing:  23 November 2006

Date of decision:  8 December 2006
The Applicant was unrepresented
Solicitor for the respondent:            Mr J Lo, Clayton UTZ Solicitors