Zaya and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 366
•24 March 2017
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 (24 March 2017)
Division:GENERAL DIVISION
File Number: 2016/2966
Re:Kyaw Zaya
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:24 March 2017
Place:Perth
The decision under review is affirmed.
.......................[sgd]..................................
Deputy President Dr Christopher Kendall
CATCHWORDS
Citizenship – good character – whether Tribunal satisfied the Applicant is of good character – previous convictions – traffic offences – mental health diagnosis – use of alcohol and cannabis – incidents of reported violence – Applicant found not to be of good character as insufficient time has lapsed – decision under review affirmed
LEGISLATION
Australian Citizenship Act (Cth) – section 21(2)(h)
CASES
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97Beyan and Minister for Immigration and Border Protection [2015] AATA 256
SECONDARY MATERIALS
Citizenship Policy – chapter 11
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
24 March 2017
INTRODUCTION
Mr Kyaw Zaya has applied to the Tribunal for the review of a decision of a delegate dated 12 May 2016 refusing his application for conferral of Australian citizenship. The delegate determined that Mr Zaya did not meet the “good character” requirement contained in section 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
BACKGROUND FACTS
Mr Zaya is a Burmese male, born in Mandalay District in Myanmar. He is 45 years old. He arrived in Australia on 2 February 1996 as the holder of a subclass 211 permanent visa (T2 at 6).
Mr Zaya lodged a Class 211 Visa Permanent Entry for Australia (Special Assistance Category) “Class 211 Visa” at the Australian Embassy in Bangkok on 21 November 1994. He applied for the Class 211 Visa on the basis that he was subjected to substantial discrimination by the Military Government in Myanmar for his involvement in the 1988 political uprising.
Mr Zaya was granted his visa on 21 January 1996. He arrived in Australia on 2 February 1996. He worked at various jobs, including as a machine operator and a lab technician for various companies from 1999 to 2011.
On 11 December 2015, Mr Zaya lodged an application for citizenship by conferral (T7 at 85). At question 35 on the relevant form, Mr Zaya indicated that he had never been convicted of, or found guilty of, any offences in Australia. Mr Zaya did indicate that he had been confined in a prison or psychiatric institution by order of a court made in connection with a criminal proceeding and indicated that he was currently seeing a psychiatrist at a clinic (T7 at 92).
A national police check report run on 7 April 2016 revealed that Mr Zaya had 14 convictions over the period from 2002 to 2008 (T11 at 120−121). His criminal history is set out in the following table:
Court
Conviction Date
Charges
Result
Armadale Magistrates Court
11.11.2008
Possess a Prohibited Drug (Cannabis)
Fine $200
Perth Magistrates Court
21.03.2006
Disorderly behaviour in a public place
Fine $300
Perth Court of Petty Sessions
29.05.2003
Unlicensed Vehicle
Fine $50
Perth Court of Petty Sessions
29.05.2003
Driver contravene red traffic control signal
Fine $150
Perth Court of Petty Sessions
29.05.2003
No Motor Drivers Licence - Under Suspension
Fine $400 MDL cancelled & disqualified 9 mths cum
Perth Court of Petty Sessions
15.01.2003
Excess 0.08%
Fine $700 MDL cancelled & disqualified 6 mths conc
Perth Court of Petty Sessions
15.01.2003
Careless Driving
Fine $250 MDL cancelled & disqualified 9 mths cum
Perth Court of Petty Sessions
23.09.2002
No Motor Drivers Licence - Under Fines Suspension
Fine $1000 MDL cancelled & disqualified 9 mths cum
Perth Court of Petty Sessions
23.09.2002
Excess 0.08%
Fine $500 MDL cancelled & disqualified 4 mths conc
Perth Court of Petty Sessions
20.08.2002
Excess 0.05%
Fine $150 MDL cancelled & disqualified 3 mths conc
Perth Court of Petty Sessions
20.08.2002
No Motor Drivers Licence - Under Suspension
Fine $500 MDL disqualified & cancelled 9 mths conc
Perth Court of Petty Sessions
20.08.2002
Drive vehicle without lights illuminated
Fine $100
Perth Court of Petty Sessions
03.07.2002
No Motor Drivers Licence
Fine $100 MDL cancelled & disqualified 3 mths mandatory cocn [sic]
Perth Court of Petty Sessions
03/07/2002
Excess 0.02*
Fine $100 MDL cancelled & disqualified 3 months
A procedural fairness letter was sent to Mr Zaya on 7 April 2016 (T11 at 114). In response, Mr Zaya provided a Statutory Declaration which stated that he forgot to declare his convictions and fines, was not aware properly of the laws and regulations and had a lack of English language skills (T12 at 127). He further stated that he was sorry for not declaring the convictions and explained that Australian citizenship is important to him because he wants to see his mother from whom he has been apart for 20 years. A more detailed Statutory Declaration was made by Mr Zayar on 14 December 2016 in which he stated that he did not declare his offences because he had limited English and believed that because his offences were ‘so long ago’ and his fines had been paid that they would no longer be on his record (paragraph 49).
Mr Zaya also provided character statutory declarations.
On 12 May 2016, a delegate of the Minister refused to grant Mr Zaya citizenship by conferral. The delegate determined that Mr Zaya was not of “good character” as per section 21(2)(h) of the Act, taking into account the number and seriousness of the offences, his failure to declare the offences, the lack of remorse shown and the poor quality of the character references (T2 at 3).
On 7 June 2016, Mr Zaya lodged an application for merits review by the Administrative Appeals Tribunal (the “Tribunal”) (T1).
ISSUE
The issue for the Tribunal to consider is whether Mr Zaya meets the good character requirement in s 21(2)(h) of the Act.
LEGISLATION
Section 21(2)(h) of the Australian Citizenship Act 2007 (“the Act”) provides:
(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.
Until recently, decision makers seeking guidance about the meaning of “good character” were referred to the policy guidelines found at Chapter 10 of the Australian Citizenship Instructions (“the ACIs”). From 1 June 2016, the Citizenship Policy (“Citizenship Policy”). replaces the policy guidance previously provided in the form of the ACIs. The role of Citizenship Policy is to support the Act. It provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007.
The relevant policy guidelines are outlined in Chapter 11 of the Citizenship Policy
In reviewing the Citizenship Policy, the Tribunal notes that a decision about whether a person is of good character requires the consideration of an aggregate of qualities: Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326.
The Citizenship Policy explains that the term “good character” is not defined in the Act. Rather, the Tribunal should have regard to the ordinary meaning of the words in assessing good character. In that regard, the Tribunal is directed to Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, wherein Lee J noted (at [94]):
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 while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR per Miles CJ at FLR 459−60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128−9, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
It is further explained in the Citizenship Policy that in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 Deputy President Breen stated at [8]:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years time when he can demonstrate a longer period of positive contribution to the Australian community.
Without limiting the many other factors that the Tribunal can look to, guidance can be found in the Citizenship Policy’s description that an applicant of good character would:
· 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:
o providing false personal information (such as fraudulent work experience or
o qualification documents) or other material deception during visa and citizenship applications
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
· not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
· not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
In relation to weighing up these various factors, the Citizen Policy states:
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.
Decision makers should place more weight on significant offences.
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.
EVIDENCE
This matter was heard in Perth on 8 March 2017. Mr Zaya appeared in person and was represented by Mr Bone. Mr Bone appeared pro bono. The Minister was represented by Ms Ladhams. The Tribunal thanks Mr Bone and Ms Ladhams for their assistance with this matter. The Tribunal notes, in particular, the cooperative approach taken by both lawyers, the clarity of their submissions and the respect with which they treated each other and those called as witnesses. This type of advocacy is well suited to a Tribunal of this sort. Others would do well to emulate the approach taken by both lawyers.
The evidence before the Tribunal consisted of:
·A 130-page set of T-documents (T1 to T12);
·A Statement of Facts, Issues and Contentions on behalf of Mr Zaya dated 15 December 2016 with a Schedule of Evidence comprising:
Annexure A
Documents with respect to the grant of the Class 211 Visa Permanent Entry for Australia (Special Assistance Category)
1.Grant of Class 211 Visa Permanent Entry for Australia (Special Assistance Category)
2.Movement Records
3Cross Reference by Irene Darby, Department of Immigration and Ethnic Affairs
Annexure B
Documents with respect to the Applicant’s Cases and Offences
1.Department of Attorney General, Fines Enforcement Registry - Details of Cases Registered
2.Certified Copy of Traffic Infringements - For Last Five Years
3.National Police Certificate
4.Brief Jacket for Brief Number 659807-1
5.Statement of Material Facts for Brief Number 659807-1
Annexure C
Documents with respect to the Applicant’s Character
1. Statutory Declaration - Kyaw Zaya
2. Statutory Declaration - Tun Tun Oo
3. Tisarana Vihara Monastery - Certificate of Appreciation
4. Letter from red Cross for monthly donations
Annexure D
Documents with respect to the Applicant’s Medical Condition
1. Letter to Dr Chris Chang from Dr Jana Stehbauer
2. Client Management Plan
·A letter from Dr Chang of Lathlain Doctors Surgery dated 31 May 2016
·A letter from Dr Chang of Lathlain Doctors Surgery dated 21 February 2017
·Various Pathology Reports dated 10 May 2016;
·Psychiatric Assessment and Service Plan dated 2 November 2011;
·Statutory Declaration from Oswald Bruce Abreu dated 4 August 2016;
·Statutory Declaration from Kyaw Zaya dated 4 August 2016.
Mr Zaya gave oral evidence at the hearing of this matter as did Mr Tun Tun Oo.
The Tribunal has reviewed all of the evidence before it and highlights the following.
Criminal Convictions
Mr Zaya has been convicted of 14 criminal convictions (noted above at paragraph 6). Most relate to traffic offences (including driving while intoxicated) that occurred between 2001 and 2003. There were also two other criminal offences relating to disorderly behaviour in public and possession of a prohibited drug (cannabis) in 2006 and 2008. In sum, the offences were over three separate periods: numerous traffic offences from the years 2001 to 2003, and two isolated offences in 2006 and 2008.
In relation to his criminal convictions, Mr Zaya provided the following Statutory Declaration dated 4 August 2016 (A2):
2.1 Criminal Convictions between years 2002 and 2008
In those years I made some mistakes which lead me to misbehave as I was away from my family as a refugee and my parent’s marriage broke down, so I was drinking alcohol and used cannabis to forget stressing about family matters.
I had anxiety from that time which lead me later to the mental illness called paranoid schizophrenia.
I could not travel to see my ill mother who is in Burma as the Burmese Government requires an Australian passport and I could not travel to Burma with a travel document.
2.2 No Criminal Convictions since 2008
From this experience I have grown and taken personal responsibility for my actions. I also hurt many people from my mistake and realise I cannot change what is already done, but I can make the best in the future as I am very remorseful of my actions. I have made some mistakes and I really feel a shame and guilty as an adult. I went to meditate as a Buddhist monk a few months ago, and I become more in control of myself. I am still suffering my mental illness and although I am not able to work due to my illness, I promise that l will pay all the fines if it is owing on me.
2.4 Family matters
When my father passed away I was not able to go for his funeral At this time my mother is ill so I wanted to see her. From now on I will behave in the very good manners pay all the fines that I owe and move forward as a good citizen. I am looking for a second chance to re-establish myself in the Australian community by helping people around and being a good citizen of Australia.
Mr Zaya also provided the Tribunal with a detailed overview of his background, his offences and his medical history in a Statutory Declaration dated 14 December 2016 (A1). Relevantly, he states:
16.I understand I have committed numerous traffic offences. I committed my traffic offences between the years 2001 to 2003. My traffic offences include drink driving, driving without a licence and not obeying traffic laws. I have also committed criminal offences in 2006 and 2008 for disorderly behaviour and possession of cannabis.
17.My judgement was significantly impaired during the period I committed the repeated traffic offences. I was suffering from depression and was not in the right frame of mind. My mind was consumed with missing my family and the sadness of not being able to return to Myanmar.
18.I could not return to Myanmar as I feared the Burmese Military Government. I was overwhelming stressed about the entire situation that l felt I needed to turn to alcohol to alleviate my stress and depression.
19.I felt so depressed about my situation that I would often come home from work and just drink alcohol.
20.I believed these above-mentioned factors significantly contributed to my numerous traffic offences. I understand my behaviour and actions fall short of the standard expected by the Australian community. I understand that there is no excuse for my behaviour and actions.
21.From 2002 to 2003, I continued to contravene my licence suspension and drove without a licence as I need to drive for work. There were no alternative methods to get to work as public transport was very limited.
22.In 2006, I was arrested for disorderly behaviour in public. The police were called to a residential property due to a loud argument I had with my cousins. I was required to pay a fine for this incident. Although l was under the influence of alcohol, which caused me to overreact in this situation, I understand my actions were wrong.
23.In 2008, l committed a criminal offence for possession of Cannabis. I was stopped by the police and asked if I had anything of interest to them. I immediately handed over my Cannabis and was very honest with the police. I understand that what I held in my possession was wrong. I used to take Cannabis because it helped me to relax when I was in a stressed state. However, I have sought medical treatment to assist with my stress.
24.Since 2008 I have not committed any traffic or criminal offences,
Medical Evidence
The evidence shows that Mr Zaya has suffered from a mental illness. Relevantly, Mr Zaya claims that he was suffering from depression during the period in which he committed his numerous traffic offences. He states that his depression was derived from isolation from his family and his inability to return to Myanmar. This, in turn, he claims, increased his dependence on alcohol. It is evident that Mr Zaya had a serious drinking problem during this period.
Mr Zaya sought medical treatment for his depression and it now appears to be under control.
In addition to depression, Mr Zaya was diagnosed with Paranoid Schizophrenia in 2007. He sought medical treatment for his Paranoid Schizophrenia and he completed his medical treatment in July 2015.
In relation to this issue, the Tribunal notes the following summary of Mr Zaya’s mental health conditions from his General Practitioner in a letter dated 21 February 2017 (A3):
Mr Kyaw Zaya … is a patient of this practice since 12 May 2005. He has been attending this practice for his medical and mental health as required basis for many years.
He was a migrant from Burma who had difficult time during settlement in Australia. He had argument with his brother and had physical injuries due to his alcohol and smoking excessively. On 11 September 2007, he complained that he was unable to sleep for the last 3 days. He admitted that he smoked marijuana on and off and he developed delusion and hallucination. He was admitted in Armadale inpatient unit from 10 December 2007 till 1 April 2008 with diagnosis of Paranoid Schizophrenia and poly substance abuse.
He was well known to Royal Perth Hospital in 2008, Dr Michael Lucas, Hepatology Fellow stated in his letter on 3 July 2008 that Mr Zaya was diagnosed as Chronic Active hepatitis (first diagnosed in 2004), alcohol abuse, previous intravenous drug use, current under psychiatrist care for his psychotic disorder in Armadale Hospital and previous prison stay in 2004 due to not paying for a traffic offence. He was advised the risk of ongoing alcohol use in the setting of a chronic liver disease and also asked him to cut down his marijuana use and encouraged him to good compliance with his appointments at Royal Perth Hospital. He was followed up at liver clinic at Royal Perth Hospital by Dr Corrie Studd who stated in his letter on 5 February 2009 that he continued smoking marijuana on a regular basis and drinking alcohol. Dr Studd stated, “I do not think he is a good candidate at the moment for treatment given the fact that he is drinking alcohol again and I am uncertain as to the stability of his psychiatric condition, The daily use of marijuana is also a concern”.
He had an ultrasound scan performed as part of his follow up for hepatitis C and was found incidentally to have a thickened bladder wall posteriorly. Urological resident Dr Daniel Ting stated that the flexible cystoscopy on 22 May 2009 did not reveal any malignancy.
He was followed up by psychiatrist Dr Koloth at Eudoria Street Centre. He was diagnosed as Paranoid schizophrenia and depression. He was treated with Olanzepine 5mg nocte and Mirtazepine 60mg nocte. Dr Koloth stated in his letter to Dr K Venugopal at Hepatology Royal Perth Hospital ‘I strongly support the plans for interferon therapy considering it provides to him. This may positively help his psychological well being as he was very keen to see his physical health improve. The schizophrenia symptoms are unlikely to be affected by Interferon. He was then prepared for the treatment of hepatitis C with weekly injections of interferon and twice daily Ribavirin by Dr Venugopal in November 2009.
On 2 November 2011T he called ambulance after having a fight with his brother under the influence of alcohol expressing the wish to kill him. He was admitted at Armadale-Kelmscott Memorial Hospital from 2 November 2011 to 11 November 2011. Dr Jana Stehbauer stated in the discharge letter, “The patient was put on an alcohol withdrawal scale, receiving regular diazepam in reducing scheme to assist management of withdrawal symptoms. He settled well and expressed regret about the fight. As social issues, he lives socially isolated with his brother and cousins, missing his parents and other family members, who remained in Burma and about whom he worries.”
On 10 July 2015, Dr Jana Stehbauer at Eudoria Street Centre stated, “No mental health service involvement is required for follow up. He has good insight for treatment needs and is compliant with his medication. However, he does at times consume alcohol and may then arguments with his brother or others. It also causes deterioration of his illness with auditory hallucinations troubling him. Usually he seeks help using pm Olanzepine or even present to Emergency Department.”
Mr Zayar is compliant with his treatment for schizophrenia and depression. He takes Olanzepine 5mg daily and Mirtazepine 30mg nocte. His mental state is stable with current medication. He was advised to quit smoking and alcohol but he was not ready to quit them but he had reduced the amount.
On 15 November 2016, he stated that his application for Australian Citizenship was refused due to not paying his previous traffic offences during the period he was psychotic with paranoid schizophrenia. He believes that his criminal offences were attributed to his mental illness.
He stated that his father passed away 3 years ago and his mother was alone in Myanmar who was not well. He worries his mother ill health and he has strong wish to visit his ill mother before she passes away.
I understand he is applying for Australian Citizenship to be able to visit his ill mother in Myanmar. I believe his mental health is stable with current medication and his mental condition would benefit or improve from being able to visit his mother. I would support his application for Australian Citizenship.
I will be happy to answer any further questions you may have regarding this matter and please do not hesitate to contact me if I can be of further assistance to you. [sic]
There is also psychiatric evidence before the Tribunal that summarises Mr Zaya’s behaviour and raises concerns in relation to anger management and violence. The Tribunal notes the following medical summaries relevant to Mr behaviour in the years following his last conviction in 2008.
The Tribunal notes an extract from a Psychiatric Assessment and Service Plan dated 2 November 2011 (A2) that reads:
40 year old Burmese man with a history of paranoid schizophrenia and polysubstance abuse.
Eddy has been feeling low for about 1 week. Normally he drinks a few beers each night and occasionally uses THC. For about 1 week he has increased his alcohol intake drinking whiskey ++ and increasing his THC use. His appetite has decreased, not eating the meals prepared for him and has had a poor sleep pattern over the past few days. Stays awake all night talking loudly to himself and shouting abuse at his brother. Keeps the kids and everyone in the house awake. Brother thinks that Eddy is missing his family in Burma and that is the reason he drinks. Brother says that Eddy is compliant with medication but has been taking them after using alcohol. Last night Eddy called the police and made accusations against his brother. They took him to E.D.
The Tribunal also notes an extract from an Armadale-Kelmscott Memorial Hospital Discharge Report dated 11 November 2011 (A2) that reads:
Presenting Problem:
The patient called ambulance after having a fight with [redacted] under the influence of alcohol expressing the wish to kill him. The patient is known to have a risk of violent behaviour which can be in context of psychosis as well. At the time of admission mental state assessment was complicated by obvious intoxication and patient was still unable to settle his emotions.
Admission Reason: To provide a safe environment, observation, assessment and treatment as needed.
Principal Diagnosis: Alcohol abuse, threatening to kill brother in physical altercation under the influence
…
Complications: Chronic alcohol abuse, Hx o MJA abuse, but denied in recent past
…
Management / Progress
Special Points of Concern:
The patient was put on an alcohol withdrawal scale, receiving regular diazepam in a reducing scheme to assist management of withdrawal symptoms. He settled well and expressed regret about the fight. [redacted] that alcohol abuse had recently escalated and that this led to the altercation [redacted] brought it up as a point of concern. However, he was welcome back home as Soon as we would discharge him. There were no problems of any kind on the ward. With detoxification over the week is complete his mood was euthymic and no psychotic symptoms had been elicited. He had received his regular medication and Thiamine, Multivitamins was added. There was no need to change or add any other medication and patient was discharged
Return to alcohol abuse
Social Issues:
Live socially isolated with brother and cousin, missing his parent and other family members, who remained in Burma, and about whom he worries.
…
Psychiatric Assessment and Service Plan
FORMULATION: (including risk assessment)
40 yo man of Burmese descent, known active client of Eudaria St Clinic with schizophrenic illness, living with brother and sis in law, was BIB Police due to his aggressive & physically abusive behaviour towards brother with an intense desire to kill him. He is dishevelled, angry, confused and maintains his homicidal ideation as intense as before. He has lately increased drinking more alcohol & smoking more marijuana. Compliant with medication and no overt psychotic phenomenon evident.
Finally, the Tribunal notes an extract from an Armadale Adult Client Management Plan dated 4 June 2015 (A1) that reads:
Kyaw, (prefers to be called Eddie) is a Burmese man first hospitalised in December 2007 with Paranoid Schizophrenia. Additional diagnosis of depression. Currently free of positive symptoms. He has insight into his condition and is compliant with his treatment. Main problems are depressive symptoms. Eddie is living with his brother and family in Langford and is reasonably settled there, though it is overcrowded. Family are supportive of Eddie. Approximately 3yrs ago he experienced some paranoid ideation while out with his family at the Burswood Centre, his family removed his knife from him as a precautionary measure and Eddie gave his consent for this. Eddie used to work in the Mining Industry and on occasions he will travel to Kalgoorlie with his family to revisit the area. He enjoys fishing, playing pool and cooking for his family. He does drink alcohol on occasions and when used to excess it can exacerbate his depressive symptoms. Eddie uses THC on occasions too. He has started to reduce his intake of substances as he has some insight into the detrimental effects of this on his illness.. He lacks confidence to use public transport alone, however recently has been attempting to practise using it to regain his confidence. Eddie usually presents as amicable and passive when well, he is welcoming of input from the Mental Health Service and attends his OPA regularly. Eddie is not employed at this time
In a Statutory Declaration dated 14 December 2016 (A1) Mr Zaya provided the Tribunal with further evidence in relation to his mental health:
25.During the time I committed my offences, I suffered from various health issues. I was diagnosed with depression in early 2000s. I do not remember the exact date I was diagnosed but I know that it was sometime in the early 2000s as it was a contributing factor to my reliance on alcohol. I am currently on medication for my depression and I visit Dr Chang once a month in relation to my depression.
26.In December 2007 I was admitted to Armadale Hospital for Paranoid Schizophrenia. I would often hear voices when I was home alone,
27.For my Paranoid Schizophrenia, I was required to meet with my case manager once a month. I was also required to meet with a psychiatrist every month. My treatment spanned about seven years. I had to undertake injections every fortnight at a clinic in Gosnells.
23.I am no longer required to take injections and now I just take medications,
29.I completed my treatment for Paranoid Schizophrenia in July 2015. I am no longer required to meet with my psychiatrist and case manager.
30.My current mental health is stable. I no longer have Paranoid Schizophrenia. I attend my medical appointments regularly and I am compliant with my medication. I have significantly reduced my dependence on alcohol, although I admit I still drink once or twice a week.
Before the Tribunal, Mr Zaya expressed remorse for his actions during this period. He did not seek to use his mental health issues as an excuse to evade responsibility or refrain from showing remorse. He stated that he has accepted responsibility for his mental illness and undertaken positive actions to overcome his mental illness.
It is noted on the evidence that that although Mr Zaya has decreased the amount he consumes, he still drinks occasionally and particularly on weekends. He also told the Tribunal that he continued to use Cannabis, which he obtained from an unnamed source, until mid-2015.
Mr Zaya has never accessed medical rehabilitation services for his alcohol or drug consumption. He did, however, enter monkhood for 43 days in June 2015 with a view to reconnecting with his religion, inner self and his culture. Overall, he states that entering monkhood provided him with an opportunity to better himself as a person. He claims that he continues to practise his learnings from monkhood on a regular basis and channels his energy into gardening and cooking. Mr Zaya best explains his current state of mind in his Statutory Declaration dated December 2016 (A1):
31.Now that I am in a better mental and physical state, I have come to terms to fully understand my actions. I feel sad for committing my numerous offences. I understand what I did was wrong and that I should not have done what I did. I understand that my actions broke the law and that it is not acceptable by society. For the actions in my past, I am truly sorry.
32.As I am now older, l have reflected on my offences from 2001 to 2003, 2006 and 2008. I understand my actions itself were dangerous and the consequences of my actions.
33.I am working very hard to change from my past and make a better future for myself.
34.The main driving factor in my change is that I want to help my family and I want to help everyone.
35.I donate to the Red Cross once a month. I pay $25 every month which supports support Red Cross because I genuinely want to help their cause.
36.I volunteer my time at the Burmese Buddhist Monastery during their fund raising events. I offer to help with any task required, such as cleaning up after the fund raising events.
37.In June 2015, I joined Monkhood with my friend Tun Tun Oo. It was a personal choice for me to enter monkhood. I wanted to do it because I felt it was a rite of passage and would help me in becoming a better person.
38.I entered monkhood for 43 days. I was required to wake up every early every day and mediate [sic]. I mediated [sic] about five times a day. I was not allowed to drink during this entire time. I was only allowed to eat at certain times during the day.
39.I learnt a lot about myself during this time. The mediations [sic] assisted me in learning about self-control and discipline. It helped me to control my stress and I feel calmer in general.
40.The monkhood gave me an opportunity to connect with my culture, especially because I have not returned to Myanmar in over 20 years. I was able to form a stronger connection to Buddhism, a religion which a strongly prevalent in Myanmar. I continue to practise regularly and mediate [sic] about five times a week. My time in the monkhood has strongly inspired me to give good deeds into the world, which is common notion in Buddhism.
41.The completion of monkhood inspired me to continue my journey of self-improvement. I feel that I want to be better.
42.I feel my perspective is significantly different than before. I am more patient now and I feel confident to communicate with everyone. I feel a sense of happiness which I have not felt in a while. I think this is because I feel like I am continually changing and improving.
43.While I still drink occasionally, I do not drink as much as before. I have exercise greater self-control. In addition, I feel that I have addressed the root of my problems which caused me drink excessively before.
44.I have channelled a lot of my spare time into gardening and cooking.
45.I understand that being able to have a drivers licence is a privilege, one that should not be taken lightly. I am working towards obtaining my licence again. I recently passed the test for my Learner’s Permit. I am currently awaiting medical reports to advise if I am able to drive again.
46.I would like to be able to have my licence again because I intend to seek employment in a lab. I want to work because I want to be able to send money back home to my mother. I want to be able to support my nieces and nephews with their education in Myanmar.
47.If I was granted my licence again, I will obey the traffic laws and ensure that I never drink and drive. I have learnt my lesson from my past mistakes.
48.I am a different person than I was before. I am in a better mental state. I feel that l am working towards a better future and I do not want to jeopardise that, I have definitely developed a better understanding of my actions considering my mental health condition has improved.
50.I know that obtaining Australia [sic] Citizenship is a privilege. I believe that I am someone who will uphold the values of Australia because I am a good person. Despite my past offences, I tried very hard to change and become a better person.
51.I have learnt a lot from past mistakes and I truly respect the laws of Australia. I will endeavour to not make the same mistakes.
52.Obtaining Australian Citizenship will also give me the opportunity to be able to travel to Myanmar to see my mother and family again. I miss my mother and I have not seen her in over 20 years. My mother is old and I am worried that I will not be able to see her before she pass away.
53.Overall, I believe that I am a changed man and my actions in reforming myself demonstrate that I am someone worthy of Australian Citizenship.
Extract from Application for Australian citizenship Form 1300t dated 23 March 2016 (T7 at 92)
Applicants for Australian citizenship are required to complete a Form 1300t and are expected to respond truthfully to all questions asked.
Mr Zaya completed his form in March 2016. He was assisted by his friend, Mr Oo, who also gave evidence before the Tribunal. Relevantly, Mr Zaya’s completed form contained the following questions and answers:
35Please answer the following questions for yourself and any children, included in your application:
(a)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)? No þ Yes ¨
(b)Have you been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia? No ¨ Yes þ
If you answered ‘Yes’ to any of the questions at Question 35, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature off the offence, full details of sentence and dates of any period of imprisonment or other detention.
(b)I am currently seeing in a psychiatric at a clinic [sic]
Mr Zaya states that that he did not mean to provide false or misleading evidence to the Department. Rather, he misunderstood what was being asked of him (because of his poor English) and thought that because he had paid all of his time and served his time, he no longer “had any offences”.
In this regard, the Tribunal notes Mr Zaya’s written statement dated 14 December 2016 (A2) as follows:
49.I did not declare that my traffic and criminal offences in my application because I have limited English. I honestly thought that because my offences were so long ago and having paid all my fines, they would no longer be on my record. I realise now this was wrong and l want to be as honest and open as possible.
The Tribunal also notes Mr Zaya’s Statutory Declaration dated 20 April 2016 (T12 at 127) that provides:
I Kyaw Zaya was forget to declare a bout my convictions and fines. I was not aware properly of the Australian Citizenship. I was not understand about Australian law and regulation as lack of my knowledge and lack of English language. I would seek an apology about that. I am sorry. The Australian citizenship is important for me as I wanted to see my mother who have been apart for more than twenty years. [sic]
The Tribunal also notes that on a Statutory Declaration dated 4 August 2016 (A2), Mr Zaya wrote:
2.3 Australian Citizenship Application form 1300t
I honestly forgot to declare my criminal convictions in the application as I was hospitalised at that time. I try to fill them in to the best of my knowledge but I have lack of English language learning and I made a mistake.
Mr Zaya’s friend, Mr Oo, told the Tribunal that he helped Mr Zaya complete the form and that Mr Zaya did indeed think that the use of the word “offences” referred to something still ongoing. He also explained that Mr Zaya misunderstood the form more generally due to his poor English and that this is best evidenced by the fact that Mr Zaya responded “yes” when asked whether he had been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia – something that was clearly not true. This, it was contended, did not amount to “deception” – simply “confusion” – and evidence of confusion generally.
Character References
Mr Zaya provided various letters and statements of support from friends, including: Derek O’Hearn dated 21 April 2016 (T12 at 130) and Aung Zaw Moe dated 4 May 2016 (T12 at 128). These referees speak in glowing terms when referring to Mr Zaya, referring to him as kind and compassionate.
Mr Zaya also received a character reference from II Oswald Bruce dated 4 August 2016 (A2) that provides:
2.1I have known Kyaw Zaya since 1997. He is my close friend and was introduced by a friend. Since then I have been keep in touch with him until now. I do know about his convictions and he paid some fines; however, he still owes some money, but he has promised me that he will be arranging to pay all the fines in the future.
2.2I know that Kyaw Zaya is suffering some kind of mental illness called Paranoid Schizophrenia and other illness such as Hepatitis C too. I often take him to the clinic and I have been encouraging him. He has some on-going treatment on waiting list for Hepatitis C.
2.3As I understand he has some family matters weighing on him which lead him to cause anxiety and stress so he has misbehaved, in the previously in the years 2002 to 2008. His parent’s relationship breakdown later on his father died and he could not go back on his father’s funeral. At this time he wanted to see he wanted to see his ill mother as they have been apart for more than twenty years.
2.4The only way that he can see his ill mother is to get an Australian passport. So it is very important for him to get the Australian Citizenship as he has passed the Citizenship test too. It means that he is improving from his previous character. He became the Buddhist monk for a while to realise himself and to be remorseful.
2.5I usually encourage him by taking him to the Buddhist Monastery so, he has changed a lot from previous misbehaving character as you may see no more convictions after the year 2008. I believe he deserved a second chance to be a good citizen in Australian community.
Mr Zaya also provided two references from his friend, Mr Oo (T12 at 129 and A1). Mr Oo’s detailed letter of 14 December 2016 (A1) reads as follows:
1.I met Mr Zaya when I first came to Australia in 2009. I met Mr Zaya through his cousin, Nelson John Win Pe, who introduced us at Mr Zaya’s house. I became friends with Mr Zaya due to his kind and welcoming nature.
2.While I was studying at Tafe, I would stop by Mr Zaya’s house on the way back from Tafe to have dinner with him. He was a fantastic cook and willing to share food with everyone. He would even pack me a lunchbox for Tafe the next day.
3.I see Mr Zaya either on a weekly basis, or if I am busy with work, I will see Mr Zaya at least once a month. However, I keep in contact with Mr Zaya on the phone very regularly.
4.I often drive Mr Zaya to his various medical appointments or help him with his grocery shopping.
5.Sometimes I will stay a few days at Mr Zaya’s house to spend time with him and his cousins. We will go fishing, visiting sites in the city and go shopping. Mr Zaya and I enjoy fishing. Our favourite spots to go fishing are in Rockingham, Mandurah and Fremantle.
6.Everytime I visit Mr Zaya’s house, he always offers me food and drink. Mr Zaya is always generous with his food. Mr Zaya is known to be a very good cook. He loves to cook traditional Burmese food. Mr Zaya will invite his friends to his house for a delicious home cooked meal. Mr Zaya would always bring his home cooked food to share at social gatherings.
7.Mr Zaya is passionate about gardening. He grows traditional Burmese vegetables for his cooking. I often lend a hand with his gardening. Mr Zaya often shares his cultivations with his next door neighbours. Mr Zaya also shares his cooking with his neighbours as well.
8.I consider Mr Zaya to be a very kind and generous man. Mr Zaya is willing to offer his help to me. For example, Mr Zaya has introduced me to his circle of friends, some of which I am now good friends with. Another time, my car broke down and he helped me fix my car.
9.I feel that I can share my personal issues with Mr Zaya about my friends and family, and Mr Zaya will offer a listening ear. I would often seek advice from Mr Zaya if I am having any person issues.
10.Mr Zaya encouraged me to use my Burmese skills to work as an interpreter. With his encouragement I applied for a job as bilingual worker in Communicare in Cannington. I worked there from 2013 to 2015 in a casual role. My duties involved picking up newly arrived refugees from the airport and helping them open bank accounts, enrol in school and giving a tour of Perth.
11.Mr Zaya and I often help with fundraising raising event help [sic] by the Burmese Buddhist Monastery. The proceeds of this event go towards paying the expenses of the Buddhist Monastery. Mr Zaya helps with washing the dishes, setting up the chairs and tables and cleaning the monastery.
12.When l see Mr Zaya interact with new people, he is very friendly to them.
13.I find Mr Zaya to be a very humble man. Mr Zaya donates to Red Cross on a monthly basis even though he is on a disability pension.
14.Mr Zaya has often confided in me that he would like work again so he may send money to his nieces and nephews in Burma so he may pay for their education.
16.There are some days when Mr Zaya can get angry. However, he calms himself down watching TV or listening to music. These instances are rare. During the whole time I have known him, he has never been angry at me or have I witnessed his anger directed at anyone.
17.Mr Zaya has been open with me about losing his licence. He uses himself as an example of being careful not to drink and drive. When we have social gatherings, and I have two or three cans of beer, Mr Zaya warns me of the dangers of drink driving and how he lost his licence. In these instances, he would persuade me not to drive, and offers his place to rest for the night.
18.When I first met Mr Zaya, I did not exactly know he had a mental health issue. However, I could sense he might have a mental health issue. I noticed that Mr Zaya was very forgetful. For example he would often say he is going to do something, which he had already done. I still find Mr Zaya forgets things these days.
19.I understand Mr Zaya previously applied for Australian citizenship and it was refused due to his numerous traffic and minor criminal offences.
20.I helped Mr Zaya with the application; however I did not declare on the form that I helped him because I am not a professional in this area. I provided Mr Zaya with limited assistance with the form as I only have limited understanding of the form from my experience. This is the reason why the statutory declarations helped Mr Zaya did not disclose Mr Zaya’s traffic and minor criminal offences. I realise now that this was a mistake.
21.I have come to know that Mr Zaya has numerous criminal and traffic offences.
22.Mr Zaya told me previously that he lost his licence due to drink driving. As I mentioned above, Mr Zaya has always stressed the importance of not drinking and driving and used himself as an example.
23.I found out about the rest of his traffic and minor criminal offences when we received the T- Documents from the Administrative Appeal Tribunal.
24.I understand that Mr Zaya has numerous traffic offences, primarily for not obeying traffic laws and some instances for drink driving. I am aware that Mr Zaya has offences for possession of Marijuana.
25.We went together to the Fines Registry to ensure there were no outstanding debts. However, we were advised that Mr Zaya had paid the fines over the past years.
26.I know Mr Zaya is very sorry for his actions. He is very remorseful for his actions. Mr Zaya often reflects on his past actions and says they were wrong.
27.I know he values the privilege of being able to drive. He always stresses the importance of having a licence and ensuring that I always take positive actions to obey traffic laws.
28.I truly believe that Mr Zaya has accepted responsibility for his past actions in committing the traffic and minor criminal offences. He understands he broke the law and the important of the laws in society. I know he accepts responsibility for his past actions because I can see he is trying hard to change his ways.
29.Mr Zaya informed me that he recently passed his Learner’s Permit test. He is currently awaiting medical report from his doctor to confirm he can drive again.
30.Mr Zaya is very compliant with his medications and attending his doctor’s appointments.
31.I entered monkhood with Mr Zaya in June 2015 at the Burmese Buddhist Monastery. I only entered monkhood for a brief period of one week unlike Mr Zaya. It was Mr Zaya’s personal choice to enter monkhood. This involved mediating for the most part of the day. We would wake up at 6.00am every morning to mediate, offer food to Buddha and mediate again. We would pray with people when they visit the Monastery every Saturday. We are required to adhere to very strict diets, where we are only allowed to eat up to a certain time.
32.I believe entering monkhood taught myself and Mr Zaya discipline and helped us reconnect at a stronger level with our religion.
33.After the monkhood, I noticed a change in Mr Zaya’s behaviour. I noticed that Mr Zaya is much more connected to his religion. He prays and. mediates on a daily basis. Mr Zaya drinks less, limited to only the weekend or social gatherings.
34.I am of the view that Mr Zaya will not commit an offence again. He understands the value of licence and obeying traffic laws.
35.I am confident he will not commit an offence again due to the change in his personality. I know that Mr Zaya is very committed to changing for the better.
36.I support Mr Zaya’s application for Australian Citizenship because I believe Mr Zaya is a good man. I understand Mr Zaya has made some mistakes in the past; however Mr Zaya accepts responsibility of his past events. I have continually witnessed him working very hard to change from his past.
37.Mr Zaya has sought medical help for his mental illness issues and he is compliant with the advice from his doctors.
38.I understand Mr Zaya wants to obtain Australian Citizenship to visit his aging mother. Mr Zaya is very close with his family, especially his mother. He speaks to his mother on the phone every week and keeps in regular contact over social media. Mr Zaya loves and cares for his mother dearly and he has not seen his mother in over 20 years. Mr Zaya’s father passed away three years ago and Mr Zaya was unable to travel to Myanmar to attend the funeral.
39.Overall, I support Mr Zaya’s application for Australian Citizenship. Mr Zaya’s actions have demonstrated he deserves a second chance.
Mr Oo also gave oral evidence before the Tribunal where he again spoke highly of Mr Zaya. He confirmed that Mr Zaya drinks less than he used to and that although he still gets angry, this is not anger of a sort that he used to witness.
CONSIDERATION
In determining whether Mr Zaya is of good character for the purposes of the Act, the first thing the Tribunal needs to examine is whether the offences for which Mr Zaya received convictions are “serious”.
In written submissions, counsel for Mr Zaya contended that the nature of Mr Zaya’s offences are not properly characterised as serious offences because Mr Zaya’s numerous offences did not result in any prison sentences or in a good behaviour bond. All of his offences resulted in orders for the payment of fines.
The Minister, in turn, contended as follows:
18.The respondent accepts that the offences for which the applicant received convictions would not, in isolation, be categorised as serious. Nevertheless, the Tribunal should be concerned that the applicant’s criminal history demonstrates a clear pattern of driving whilst either unauthorised or suspended as well as a number of offences relating to driving whilst under the influence of alcohol. The number of these offences is indicative of a general disregard for the law.
19.The Tribunal has consistently found that persistent offending of this nature is not consistent with Australian community standards: Rahman and Minister for Immigration and Border Protection [2016] AATA 1034 at [20]; Daood and Minister for Immigration and Border Protection [2015] AATA 481; Wang and Minister for Immigration and Border Protection [2014] AATA 89; Konneh and Minister for Immigration and Border Protection [2014] AATA 950; Sharma and Minister for Immigration and Border Protection [2016] AATA 816.
The Tribunal was also referred to the decision Apire and Minister for Immigration and Border Protection [2014] AATA 193, wherein the Tribunal stated:
Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection at [7] — laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values.
The Tribunal agrees with this assessment. There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.
In addition to his driving offences, committed in 2002- 2003 Mr Zaya was also convicted of disorderly behaviour in 2006 and possessing Cannabis in 2008. It was suggested before the Tribunal that the use of Cannabis should not be viewed as “serious” because society’s views in relation to Cannabis are changing and, indeed, Cannabis is now legal is many jurisdictions.
The Tribunal disagrees. While the views of some in relation to the use of Cannabis may be changing, it remains the case that possessing Cannabis in Western Australia remains a criminal offence. Despite this, Mr Zaya continued to use an illegal substance well into 2015, having been told as early as 2008 that do so was illegal and bad for his health. This reflects a failure on his part to appreciate the need to adhere to Australian laws and the social expectations they currently reflect. This weighs heavily against any finding that he is currently of good character.
The Minister also contended that the Tribunal should be concerned by Mr Zaya’s failure to disclose his criminal convictions, particularly in light of the length of his record, because dishonesty in citizenship applications is indicative that a person is not of good character. This, it was submitted, is at the very least evidence of an inability to distinguish between right and wrong. The Minister continued:
24.The respondent contends that it is not credible that the applicant would have genuinely believed that he did not have to declare any of the 14 offences for which he has been convicted of. Given his past proclivity for disregarding legal requirements, the Tribunal is entitled to form the view that the applicant did not declare the convictions simply because he hoped the Department would not become aware of them. This is dishonest behaviour, specifically referenced in the Citizenship Policy, which has consistently been found to be inconsistent with Australian community standards (see, for example, Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [62]).
It has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character: Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97, Beyan and Minister for Immigration and Border Protection [2015] AATA 256).
The Tribunal does not accept on the evidence that Mr Zaya was “dishonest” in relation to his application. To act “dishonestly” means to behave or be prone to behave in an untrustworthy, deceitful, or insincere way or to act in a way that is intended to mislead or cheat. Mr Zaya struck the Tribunal as entirely honest and sincere. The Tribunal accepts his evidence that because of his language difficulties and mental health condition, he simply did not understand what he was being asked. There was no deception here. Rather, there was only confusion.
In written submissions, counsel for Mr Zaya contended that the Tribunal should take into consideration any extenuating circumstances as a mitigating factor when considering Mr Zaya’s character. The Tribunal addresses each factor as outlined by counsel for Mr Zaya below.
Passage of time
Counsel for Mr Zaya highlighted that Mr Zaya’s last offence was committed on 4 October 2008. He applied for Australian Citizenship on 5 November 2015. The passage of time between these two dates is seven years. Further, since the date of his last offence, Mr Zaya has not committed any further offences. According to counsel for Mr Zaya, a longer period without any misconduct illustrates a likelihood that good conduct will continue and provides strong foundation in establishing that an applicant is of “good character”.
The Tribunal notes that in Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, Senior Member Toohey stated:
64There is no formula for determining how much is sufficient time to be satisfied that a person is of good character ...
…
67It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
…
71I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so, as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.
The Tribunal accepts that Mr Zaya has not committed any offences since 2008. The Tribunal also accepts that much of his conduct throughout the period in and proceeding 2008 was due to a quite serious mental health condition that is now being controlled and therapeutically managed. There is, however, more to a determination of good character than the last date of any conviction. The Tribunal must also look at an applicant’s conduct generally following these offences.
In this regard, the Tribunal is concerned that Mr Zaya continued to exhibit violent behaviour toward his family until 2011 and continued to purchase Cannabis (and thus be associated with others who are involved in anti-social or criminal behaviour) and use Cannabis until as late as mid-2015. He also continues to drink alcohol. This is despite Mr Zaya’s medical doctors advising that that both Cannabis and alcohol were bad for his mental and physical health generally.
Overall, Mr Zaya’s behaviour subsequent to his criminal offences reflects a failure on Mr Zaya’s part to fully appreciate the connection between his alcohol and drug use and his mental health and, ultimately, the type of behaviour that resulted in his convictions in the first place. Not enough time has elapsed for the Tribunal to be satisfied that Mr Zaya will remain non-violent, not involved in drugs and will not cause harm to others through his conduct.
Not enough time has passed for Mr Zaya to prove that he can manage those character flaws that resulted in his convictions and subsequent troubling behaviour. Overall, these factors weigh heavily against Mr Zaya being found to be of good character.
Remorse and Responsibility
Counsel for Mr Zaya contended as follows in relation to this issue:
36.The Applicant accepts full responsibility for the offences he has committed. He understands his actions were wrong and expresses remorse. An illustration of the Applicant’s responsibility for his actions is demonstrated in Annexure B5. On 4 October 2008, the Applicant was asked by a police officer if he had anything on his person of interest, the Applicant openly admitted he had cannabis in his possession and acted in full cooperation with the police. The Applicant’s actions demonstrate the Applicant was able to distinguish between right and wrong. Further, the Applicant accepted responsibility and the legal consequences of having a prohibited substance in his possession. The Applicant’s actions in this offence have paved way for a continuous period without any further offences. Incidentally, this was also the Applicant’s last offence to date. The Applicant has demonstrated his responsibility for his actions by undertaking a positive duty of paying all the fines for his past offences. The Applicant has no outstanding fines to pay.
The Tribunal found Mr Zaya to be a sincere witness who feels considerable regret for what has occurred. It also accepts the evidence of Mr Oo that Mr Zaya fully recognises the errors of his way.
This weighs in favour of Mr Zaya being found to be of good character.
Rehabilitation
Counsel for Mr Zaya contended as follows in relation to this issue:
41.The Applicant submits that he has reformed from his previous behaviour. The Applicant has undertaken positive duty to undertake actions to ensure that he does not reoffend. The Applicant sought actively sought medical treatment for his mental health illnesses.
42.The Applicant entered monkhood for 43 days in June 2015 with a view to reconnect with his religion, inner self and his culture. Overall, the Applicant submits entering monkhood provided him with an opportunity to better himself as a person, and change from his past ways (see Annexure C1). The Applicant continues to practise his learnings from monkhood on a very regular basis. The Applicant channels his energy into his hobbies of gardening and cooking. The Applicant’s actions demonstrate that he is strongly committed to rehabilitation to part from his former ways.
The Tribunal accepts that Mr Zaya has done a great deal to address the issues that lead to his offending behaviour. Importantly, he has sought professional medical help for his mental health condition. This is no small accomplishment and Mr Zaya is to be applauded for his courage in that regard. Mr Zaya has also sought the support of his community and attended monkhood for 43 days. This too is admirable.
Unfortunately, insufficient time has passed since Mr Zaya last used Cannabis (less than 18 months) and his clinical notes reveal violent outbursts in 2011 related to alcohol, drug use and his mental health. Mr Zaya states that he is now fully rehabilitated. The Tribunal remains concerned in this regard. The Tribunal notes that on 10 July 2015, Dr Jana Stehbauer stated:
No mental health service involvement is required for follow up. He has good insight for treatment needs and is compliant with his medication. However, he does at times consume alcohol and may then have arguments with his brother or others. It also causes deterioration of his illness with auditory hallucinations troubling him. Usually he seeks help using pm Olanzepine or even present to Emergency Department.
The above raises serious concerns about Mr Zaya’s ability to remain drug and alcohol free. Should he continue to drink and use Cannabis there is a risk this will affect his mental health and lead him to re-offend and/or harm others. Although Mr Zaya is encouraged to continue attending the Burmese Buddhist Monastery, there is no evidence before the Tribunal that his time there will indeed result in abstinence of the sort required. Overall, not enough time has yet passed since his last stay there for the Tribunal to be satisfied that Mr Zaya will stop using alcohol and drugs in a way that cause harm.
These actors weigh heavily against a finding that Mr Zaya is of good character.
Enduring Moral Qualities
In relation to this issue, counsel for Mr Zaya contended as follows:
44.Important to the assessment as to whether an Applicant’s “enduring moral qualities” indicate that that person is of good character, are a person’s characteristics which have been demonstrated over a very long period of time.
45.Apart from the offences between the years 2001 to 2003, and the isolated events in 2006 and 2008, the Applicant has demonstrated that he is a person of good character over a period of time. The Applicant had not committed any offences since his arrival in Australia in 1996 until 2001. More recently, he has not committed any offences since 2008.
46.The Applicant’s general conduct, apart from the above-mentioned period, demonstrates the ability of the Applicant to distinguish right from wrong and that he behaves in an ethical manner, conforming to the rules of Australian society. The Applicant understands his former behaviour was not of an ethical nature of conforming to rules of Australian society. The Applicant took voluntary and positive actions to seek medical treatment and rehabilitate himself, to ensure he is able to conform to the rules of Australian society. The Applicant’s commitment to rehabilitation demonstrates the Applicant is a person who holds enduring moral qualities.
47.While we accept the Applicant has committed numerous offences, we submit that if the factors were looked at holistically, the Applicant would be found to be a person of good character with enduring moral qualities.
The Tribunal notes that, in this context, ‘moral’ does not have any religious connotations. As explained in the Citizen Policy, 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 Tribunal also notes the Mr Zaya’s offences do not preclude him from being found to have enduring moral qualities. As explained by Senior Member P W Taylor SC in Darwich and Minister of Immigration and Citizenship [2007] AATA 2106 (24 December 2007) (at paragraph 43):
Past conviction is not; and in the absence of any specific statutory provision (such as section 501(6) of the Migration Act 1958), cannot be regarded as, an automatic barrier to the establishment of a person’s contemporary “good character”: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.
Mr Zaya is clearly committed to leading a good, ethical lifestyle and he has put effort into addressing his addiction and health issues. Unfortunately, as outlined above, the Tribunal is not convinced that enough time has passed for it to be satisfied that Mr Zaya has done enough to ensure success in this regard.
To borrow from the words of Senior Member Toohey in Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, the “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case. The Tribunal accepts that absence of offending is itself an indicator of a person’s rehabilitation, and more so, as time passes. It counts in Mr Zaya’s favour that nearly nine years have passed without any further offences. However, there is not in the Tribunal’s view sufficient objective evidence yet of his good character and a commitment on his part to rectify those issues that raise concerns about his character generally.
CONCLUSION
For the reasons outlined above, the Tribunal concludes that Mr Zaya is not of good character pursuant to section 21(2)(h) of the Act and should not be granted Australian citizenship at this time.
This conclusion should not be seen as suggesting that Mr Zaya will never be entitled to Australian citizenship. Mr Zaya is entitled to apply again at a later stage and the Tribunal encourages him to do so in due course.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 82 (eighty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
............[sgd].....................................
Administrative Assistant
Dated: 24 March 2017
Date of hearing: 8 March 2017 Counsel for the Applicant: Mr K Bone Solicitors for the Applicant: Fragomen Counsel for the Respondent: Ms A Ladhams Solicitors for the Respondent: Australian Government Solicitor
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