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

[2021] AATA 2584

Bille and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2584 (23 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6214

Re:Nimi Friday Bille

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member J Rau SC

Date:23 July 2021

Place:Adelaide

The decision under review is affirmed.

.......................[Sgnd]............................  

Senior Member J Rau SC

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – application for citizenship refused – whether Tribunal is satisfied Applicant is of good character – prior conviction – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

BOY19 v the Minister for Immigration and Border Protection [2019] FCA 574

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

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

SECONDARY MATERIALS

Australian Citizenship Policy Statement, Department of Immigration and Border Protection, 27 November 2020

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member J Rau SC

23 July 2021

1. By application dated 9 October 2020, the applicant seeks review the decision of a delegate of the respondent (the “Minister”) made on 14 September 2020, to refuse to grant Australian Citizenship, pursuant to section 24 of the Australian Citizenship Act 2007 (Cth) (the “Act”).

2. The application for review is made in accordance with section 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (“AAT”) for review of a decision made under section 24 of the Act.

   BACKGROUND

3. The applicant is 40 years of age and is a Nigerian citizen.

4. The applicant arrived in Australia on 24 April 2015 holding a Higher Education Sector (Offspring) (class TU) (Subclass 573) temporary visa.

5. On 9 September 2015, the applicant was granted a dependent Skilled-Independent (Web) (Class SI) (Subclass 189) permanent visa, at which time he became a permanent resident.

6. There is no evidence before the Tribunal to suggest that there is any current issue about the applicant’s standing as a permanent resident.

7. On 13 March 2018, the applicant was convicted in the Berri Magistrates Court of one count of indecent behaviour and was sentenced to a $200 good behaviour bond for 18 months. The applicant was legally represented in these proceedings and ultimately entered a plea of guilty on the basis of agreed facts. There is no evidence that the applicant has any other criminal history either in Nigeria, or Australia.

8. Relevant passages from the Magistrate’s judgement are:

   “I remind myself of the charge to which the defendant has ultimately pleaded guilty.”

   “The allegation is that between 22 June 2017 and 23 July 2017 at [THE LOCATION] the defendant behaved in an indecent manner towards [THE VICTIM] in a place… namely [THE WORKPLACE]… an offence contrary to s 23(1)(b) of the Summary Offences Act. I note the maximum penalty that applies is a fine of up $1250 and/or three months imprisonment.”

   “I have been assisted by those at the bar table. There is an agreed factual basis that I do not intend to repeat verbatim, but will annex to my formal sentencing remarks… the agreed factual basis and… There is confirmation that the factual basis as stated previously is fully agreed.”

   “In general terms, the allegation is that the victim was [AGE] who was working at [THE WORKPLACE] as an [POSITION]…. The first incident occurred late in the evening of Friday 23 June 2017…. He started kissing her on the neck and tried to pull her pants down… The victim put her hands up and told him to stop. Hardly surprisingly the victim was distressed by the behaviour.”

   “The agreed factual basis confirms that the next time the victim worked a shift with the defendant was a night shift commencing on Friday 21 July continuing into the early hours of the following day. She says early in that shift they were again in the same room and the defendant tried to kiss her at least once. She kept telling him to stop and pushing him back. At about 2 a.m. she was in another room and at this stage having been concerned about the defendant’s behaviour she had her phone in her pocket recording because she wanted some evidence of the manner in which she was being treated. The defendant came into the room, he turned the lights off and pulled the blinds down to a window in the room. He approached her and again put his arms around her and tried to kiss her. She again told him to stop however, he kept trying to kiss her. After a little while he let her go and he went to the door and left. About an hour or so later the victim was in another room and she was on a phone call at the time and she was yet again approached by the defendant who came up to her, put his arms around her, leaned in and tried to kiss her. She again pushed him away.”

   “On any assessment I express the view that such offending behaviour on such a factual basis places this offending at the higher end of the scale for the offence to which he has ultimately pleaded.”

   “…It does need to be noted that the victim ultimately left her employment at [THE WORKPLACE]… it is part of the overall factual circumstances that the defendant initially strongly denied and maintained his denials of the allegations against him. Those denials led to an internal investigation at [THE WORKPLACE] in question. It led to a determination that the victim’s claims were somewhat baseless. She was required to continue work at [THE WORKPLACE] and she felt significantly letdown by the process. Ultimately, she left that employment and was able to find alternative employment. I note the contents of her victim impact statement and I take them into account.”

   “His guilty plea is at least some sign of contrition. His counsel submitted that the defendant had struggled to admit his behaviour, but ultimately… The fact that his offending occurred on a couple of occasions, but was persistent and certainly persistent on the second of those occasions perhaps somewhat lessens the weight that can be given to his otherwise good character.”

   “It was stressed that English was not the defendant’s first language and it was simply conceded that in many respects he misread the ‘import’ of that what was said and the ‘interaction’ that arose between him and the victim. Reference was made to the fact that she had befriended him on Facebook. At one point I confirmed with counsel that all that was really was that the victim had been friendly towards the defendant, no more no less. It was simply conceded that he had misread those signs… On the first occasion the defendant’s advances towards the victim were rejected and rejected quite strongly. This man persisted on the next occasion they worked together and indeed on the second occasion he persisted on at least two occasions.”

   “Prosecution had also indicated that they were seeking an s 19A Intervention Order. On that last point counsel conceded that the defendant would certainly consent to such an intervention order and I take that into account and give him credit for that. Such an order would give the victim some on-going protection and hopefully some comfort. It is a factor in favour of the defendant.”

   “Whilst I am certainly of the view that this offending was towards the higher end of the scale for such offences, the sheer seriousness of this matter cannot be my sole consideration. I need to balance the… higher end of the scale for such matters. It was appalling treatment of this young woman. It was persistent treatment of this young woman particularly on the second occasion. He could not possibly have misinterpreted her rejection of him on the second occasion and yet he persisted… but I am firmly of the view that it would be inappropriate for this man not to be convicted of this offending.”

   “It will be a condition of the bond in addition to him being of good behaviour that if he is not of good behaviour then he is back for re-sentencing. He will need to pay court fees, prosecution fees and a levy.”

   “There will be the s 19A Intervention Order. She will be named as the protected person and the conditions of the Intervention Order will be that he not contact or communicate with her by any means whatsoever.”

9. On the day before the hearing, the Tribunal received a copy of the “factual basis for plea” referred to in the sentencing remarks set out in paragraph 8. This document states as follows:

   “Factual Basis for Plea.

   R v BILLE

   Overview:

   Between 22nd June 2017 and 23rd July 2017 at [THE LOCATION] the accused, Nimi Friday BILLE behaved in indecently towards [THE VICTIM] by grabbing her around the waist, attempting to pull her pants down, the victim could feel the accused penis pressing up against her bottom. Further the accused continued to grab her around the waist and tried to kiss her on a number of occasions.

   Detail:

   The victim in this matter is [THE VICTIM].

   [THE VICTIM] states she is an [POSITION] and was at the time employed at [THE WORKPLACE]. [THE VICTIM] states she commenced working there in February 2017.

   [THE VICTIM] states that she and her co-worker, the accused, became friends at work. [THE VICTIM] states they would talk on Facebook messenger from time to time. [THE VICTIM] states that after some time and in April 2017 the accused asked her to delete the Facebook messenger messages so his wife would not find out he was talking to her.

   [THE VICTIM] states that the accused would tell her she is beautiful and liked her personality. [THE VICTIM] states that the accused would write her notes saying she was beautiful.

   [THE VICTIM] states that at about 10.40 pm on Friday 23rd of June 2017 she started working night shift and was working in a team with the accused on the [WORK AREA]. [THE VICTIM] states they started their first round at about 11.30 pm.

   [THE VICTIM] states in about the first 10 minutes of the round she went into room [X] and into the bathroom. [THE VICTIM] states she went to the sink of the bathroom to grab some gloves. [THE VICTIM] states she heard the sliding door to the bathroom close and the lights turned off. [THE VICTIM] turned around and could tell it was the accused, as she asked him what he was doing and he whispered for her to hang on a minute.

   [THE VICTIM] states the accused came up to her and they were facing each other. [THE VICTIM] states the accused leaned towards her and tried to kiss her, putting both of his arms around her waist.

   [THE VICTIM] states she pushed back, saying no and broke the hold. [THE VICTIM] states she walked around the accused and got to the door.

   [THE VICTIM] states she was just about to open the door when arms grabbed her from behind and pulled her back 2 to 3 steps. [THE VICTIM] states the accused started kissing her on the neck and trying to pull her pants down. [THE VICTIM] states she could feel the accused's erect penis through his tracksuit trousers against her bottom.

   [THE VICTIM] states she ripped the accused's arms from her waist and she went out of the bathroom, standing next to the resident's bed. [THE VICTIM] states she left the room and continued on with the round.

   [THE VICTIM] states that a short time later she went into room X with the accused. [THE VICTIM] states the resident was on the toilet at the time and she stood by the bathroom door which she slid shut to give the resident some privacy. [THE VICTIM] states the accused came up to her to be very close, lent in towards her lips to try and kiss her. [THE VICTIM] states she put her hands up and told him to stop.

   [THE VICTIM] states the accused backed off and she went into the bathroom so that the accused wouldn't try to make a move in the bathroom.

   [THE VICTIM] states later that morning she finished her shift and went home crying.

   [THE VICTIM] states she tried to call her best friend [NAME], the witness in this matter, but she didn't answer. [THE VICTIM] states she texted [NAME]. [THE VICTIM] states she called [NAME] later that night after she slept and told her what had happened.

   [THE VICTIM] states the next time she worked with the accused was on Friday 21st of July 2017 which was a night shift.

   [THE VICTIM] states she and the accused were a team again and started in the [WORK AREA]. [THE VICTIM] states that in most rooms which required both of them, the accused tried to kiss her at least once. [THE VICTIM] states that each time she told him to stop, pushing him back.

   [THE VICTIM] states at about 2.00 am on Saturday 22nd of July she was sitting in the [ROOM] with the accused writing notes about the residents on computers. [THE VICTIM] states she unlocked the [ROOM] and went in to the trolley to see when [ROOM] were due.

   [THE VICTIM] states she had started her phone recording with her phone in her pocket because she wanted evidence that the accused was harassing her. [THE VICTIM] states she heard the accused come into the room. [THE VICTIM] states she saw the accused shut the door, turn the lights off and pull the blinds down to a window in the room.

   [THE VICTIM] states the accused came over to her and tried to kiss her, putting his arms around her. [THE VICTIM] states she told the accused to stop and that he has a wife however the accused tried to kiss her again. [THE VICTIM] states after a little while the accused let go and went to the door, opening it, and looking angrily at her.

   [THE VICTIM] states that at between about 3.00 am and 3.30 am on the same day she was room [X] in the [WORK AREA] when the work phone called. [THE VICTIM] states both she and the accused were in the room at the time. [THE VICTIM] states it was the other carer's calling to say they were going on break.

   [THE VICTIM] states that while she was on the phone, the accused came up to her, putting his arms around her, leaning in trying to kiss her. [THE VICTIM] states she was pushing him away with one hand but couldn't tell him to stop because she was on the phone.”

10. If anything, the agreed facts set out in paragraph 9, suggest even more persistent harassment on the part of the applicant than the sentencing remarks:

    (a)The offending occurred on the only two occasions that the victim and the applicant were rostered together on night shift alone;

    (b)The applicant made three attempts to behave indecently on the first occasion; and

    (c)The applicant made more than three attempts to behave indecently on the second occasion.

11. These matters were not only agreed facts in the Magistrates Court, but they were put to the applicant during the hearing of this matter. He agreed that they were the facts. The Tribunal is in no position to look behind the facts as found by the Court.[1] This is explicitly stated in the Australian Citizenship Policy (“the Policy”) the material parts of which are set out at para 22 below.

    [1] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [63].

12. On 15 January 2020, the applicant lodged an application for Australian citizenship. In the application, the applicant declared that he had been convicted of an offence in Australia and stated as follows:

    “On 13 March 2018 I was convicted of indecent behaviour within 18 months good behaviour bond. I have neither criminal record both in Nigeria and Australia before this”.[2]

    [2] Exhibit 5, T2, p 49.

13. By correspondence dated 17 June 2020 applicant was invited to comment on his history of offending in the context of the consideration of whether to approve his citizenship application. In particular, this correspondence referred to the question of whether or not the applicant could satisfy the delegate that he was of “good character”, as required under section 21(2)(h) of the Act.

14. In response to this correspondence, the applicant provided a statutory declaration dated 17 July 2020.[3] In this document he states amongst other things:

    [3] Exhibit 7.

    “I am married with two children. My beautiful wife is Onyinyechi Onuigbo, and She is a Registered Nurse.” [sic]

    “We met in Nigeria in 2001, she is beautiful and hardworking, everything I wanted in a wife and life partner. We dated until 2011 when she relocated to Australia to study. This period without her was difficult, but our love and dedication saw us through until she visited Nigeria in 2013. Soon after her return to Australia, we got engaged, and we have been married since 2015. We have a great relationship, and she is one of the best things that has happened to me.”

    “We have two children, our daughter is Ruby, she was born in 2016, and she is almost 4 years old, our son Jaden, he will be 2 years old in October. They are our joy and delight, they keep us busy and fulfilled”.

    “In March 2018, I was convicted of indecent behaviour. It was never my intention to behave improperly, and I am so sorry about this incident and so profoundly remorseful. It is so out of character for me, and I have never committed or been charged or found guilty of an offence in my life before”.

    I take full responsibility for my actions, and I will never ever commit any offence or misconduct in Australia or anywhere else”.

    It was a very stressful time, and I have since availed myself the time to learn and to understand what is and what is not acceptable in Australia. I intend to maintain a clean record for myself, and my family and my community’s sake”.

    “I am not a danger to anyone I came to Australia to work hard, provide for my family and contribute positively to the country that has treated me so well”.

    “My wife and my two children are all proud Australian citizens”.

    “I have served my good behaviour bond without incident. No other member of my family in Australia or overseas has any criminal convictions”.

    “Also, since my arrival in Australia and following my conviction, I maintained employment to support my family and continue to study”.

15. By correspondence dated 23 July 2020, the applicant was requested to provide further information. Specifically, he was requested to provide sentencing remarks in respect of the indecent behaviour conviction on 13 March 2018. There is no evidence of the applicant having responded to this request.

16. On 14 December 2020, the delegate refused the application on the basis that the applicant did not meet the requirements of section 21(2)(h) of the Act. The delegate was not satisfied that the applicant was of good character and provided the following reasons:

    “Whilst the character references and statutory declarations you have submitted in support of your character are positive in nature, I do not consider that sufficient time has passed since your 18 month good behaviour sentence and obligation to the courts concluded. Although the offence itself is the only offence recorded against you, it is considered serious in its nature. You continued to act inappropriately on numerous occasions towards another person. You consistently ignored the requests the other person made for you to stop your behaviour towards her. You persistently harassed her, showing a total disregard to her requests, her feelings, and her personal safety.

    Citizenship policy states that a reasonable amount of time will need to have passed to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character. Given the seriousness of the offence, I do not consider that there has been a significant amount of time passed since the offence took place to be satisfied that you can now be considered of good character.”[4]

    [4] Exhibit 5, T12, p 143.

    ISSUE

17. The only issue to be determined by the Tribunal is whether the Applicant is of good character for the purposes of s 21(2)(h) of the Act. 

    LEGISLATIVE FRAMEWORK

18. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Where the Minister receives such an application, the Minister must approve or refuse to approve the person becoming an Australian citizen.

1. Section 24(1A) provides that the Minister must not approve a person to become an Australian citizen unless that person is eligible under section 21(2)-(8) of the Act. Section 21 (2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the decision on the application.

2. In BOY 19 v the Minister for Immigration and Border Protection[5] (“BOY 19”), O’Bryan J considered the requirement that a decision-maker must be satisfied of an applicant’s good character. There is neither a presumption of good character, nor bad character to be displaced. A decision-maker may not be satisfied that a person is of good character without necessarily having to come to the conclusion that a person is of bad character:

   “Section 21 (2)(h) requires the Minister to form a judgement as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof in apposite. Second, the matter of which the Minister must be satisfied, the applicant’s good character is not a fact to be proven but an opinion requiring an evaluative judgement. A standard of proof, such as a balance of probabilities, is incapable of application to such an opinion……

   It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.”[6]

   [5] [2019] FCA 574.

   [6] Ibid at [54] and [55].

3. The term “good character” is not defined in the Act; however, there is guidance on the application of the good character requirement in the Policy. The Tribunal is not bound to apply the Policy; however, the Tribunal should have regard to and apply the Policy unless there are good reasons not to do so. In the circumstances of this matter, the Tribunal has not been made aware of any such reason to depart from the Policy.

4. The Policy relevantly says the following:

   CPI 15 - Assessing Good Character under the Citizenship Act

   …

   Definition

   The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):

   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 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… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

   The phrase ‘enduring moral qualities’ encompasses the following concepts:

   - characteristics which have endured over a long period of time;

   - distinguishing right from wrong; and

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

   The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

   A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

   Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.

   For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (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.

   Community standards

   In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act could provide assistance in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character.

   The Preamble to the Act sets out the meaning of Australian citizenship:

   Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

   The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

   a)    by pledging loyalty to Australia and its people; and

   b)    by sharing their democratic beliefs; and

   c)    by respecting their rights and liberties; and

   d)    by upholding and obeying the laws of Australia.

   After considering the text of the Preamble, DP Forgie stated:

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

   Government, both Federal and State, initiatives, such as the making of new laws or reviewing of existing laws, campaigns to raise awareness in the community, the appointment of Royal Commissions to investigate certain matters and make recommendations to government on issues that affect the community should be taken into consideration where relevant, as these issues are reflective of Australian community expectations.

   Such issues could be, for example:

   -    media campaigns about domestic violence, which reflects both the community’s and the government’s stance on this issue;

   -    the Royal Commission into Institutional Responses to Child Sexual Abuse;

   -    State and Territory government approaches to Outlaw Motorcycle Gangs (OMCGs) and youth street gangs; or

   -    new laws regarding national security and terrorism.

   These initiatives indicate that domestic violence and child sexual abuse in any form is not acceptable in the Australian community. Behaviour that impinges on the safety of, or creates fear in the community, is not acceptable. Persons taking part in, or condoning, such activities do not respect the rights and liberties of others in the community.

   The citizenship decision-maker must assess whether the decision-maker is satisfied that the applicant is of good character at the time of decision. Such an applicant is likely to uphold the commitment they will make when making a Pledge to become an Australian citizen.

   Australian values statement

   Another identification of community standards can be found in the Australian values statement, which requires applicants to confirm that they will respect the values of Australian society and obey the laws of Australia.

   The values statement signed by applicants for provisional or permanent visas also acknowledges that, if the applicant goes on to become an Australian citizen, they will enjoy reciprocal rights and responsibilities and that these responsibilities include obeying Australian laws.

   While a values statement will not have been made by all citizenship applicants (applicants for citizenship by descent, adoption, resumption and those who acquired permanent residence before 17 October 2007 will not have signed the statement), it is a clear statement of community expectations.

   4.4 An applicant who is of good character

   An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.

   As a general proposition, a person who is of good character would:

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

   -    be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

   -    not practise deception or fraud in dealings with the Australian Government, or other organisations, for example

   o   intentionally providing false personal information (such as fraudulent work experience or qualification documents) or;

   o   other material deception during visa and citizenship applications;

   o   evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;

   o   knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;

   o   concealing criminal convictions;

   o   fraud against the Commonwealth such as tax fraud or Centrelink fraud;

   o   giving false names and/or addresses to police;

   -    not be the subject of any extradition order or other international arrest warrant;

   -    not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);

   -    not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;

   -    not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;

   -    not be involved in terrorist organisations or acts of terrorism overseas or in Australia.

   Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

   It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

   …

   Offences

   Does the applicant have a criminal record? Were the offences disclosed?

   The current citizenship application, previous citizenship applications, visa applications and passenger card declarations may also be checked for an acknowledgement of criminal convictions.

   Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. With convictions by overseas courts it may be necessary to take account of the independence of the judiciary in the particular country.

   The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).

   -    If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.

   -    If the applicant has committed an offence, was it a serious offence? For example:

   o   crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)

   o   war crimes, crimes against humanity, genocide;

   o   crimes against children;

   o   drug trafficking (including importation and supply);

   o   people smuggling;

   o   fraud (including identity fraud);

   o   harassment or stalking;

   o   terrorist activity;

   o   extortion;

   o   illegal pornography, including child pornography;

   o   breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;

   o   offences incurring prison sentences of 12 months or more.

   …

   How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?

   A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.

   …

   4.11 Weighing information

   In addition to the general principles of good decision-making set out in Citizenship Instruction 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:

   -    characterise the nature of any offence or behaviour;

   o   is the offence serious or minor?

   o   did the offence harm other people?

   o   who were victims?

   o   is there a pattern of behaviour?

   o   was it a one off incident?

   o   were there extenuating circumstances?

   -    consider any associations with people or organisations of concern;

   -    consider any mitigating circumstances;

   o   length of time since the offence was committed

   o   age at time of offence

   o   behaviour since completing prison sentence or obligations to court

   o   remorse regarding their offending behaviour

   o   community support (referee reports etc)

   o   changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.

   -    weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.

   4.12 Mitigating Factors – could the applicant be of good character despite the adverse information

   The discussion below expands on the points made above in section 4.11. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.

   -    What is the length of time since the offence and conviction?
   There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character

   -    Has the applicant accepted responsibility and shown remorse for their conduct?

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

   There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.

   4.13 Weighing up the evidence

   The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.

   Decision-makers should consider the following matters:

   -    Would a person of good character behave the way the applicant did?

   -    What evidence is there to demonstrate that the applicant has upheld and obeyed the law?

   -    Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?

   -    Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?

   -    Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?

   -    Are there any other factors that are relevant to an assessment of the applicant’s character?

   In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:

   "a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness."

   A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.

   If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years.

   Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.

   EVIDENCE BEFORE THE TRIBUNAL

5. The evidence before the Tribunal falls into three categories. The first is the evidence relating to the circumstances surrounding the applicant’s conviction on 13 March 2018 and the extent to which this reflects on his character. The second category is the applicant’s own evidence and character evidence from his wife and individuals who have come to know him since his arrival in Australia in 2015. The third is an expert report from psychiatrist Dr Marty Ewer dated 24 March 2021.

6. In giving his evidence before the Tribunal, the applicant presented as a person who was trying to give truthful answers to questions. He accepted the detail of his offending when it was put to him. He became quite emotional on several occasions when attempting to answer questions. I have no doubt that he found the experience of being asked questions about his conduct distressing. He expressed what I accept was genuine remorse, although given the context, it is difficult to be sure as to whether that relates to the offending itself, or to its consequences, or both. He was unable, to offer any explanation for his conduct.

   THE CONVICTION

1. The applicant’s offending was found by the sentencing judge to be “at the higher end of the scale for the offence”.[7] The maximum penalty for this crime is a term of imprisonment three months.

   [7] Exhibit 5, T11, p 131.

2. The circumstances of the offending are set out in some detail at paragraph 8 and 9 above. The significant elements of the offending may be summarised as follows:

   (a)The offending occurred on two separate occasions, 23 June 2017 and 21 July 2017. These were the only occasions when the applicant and the victim were rostered on a night shift together.

   (b)On both occasions, the applicant continued to make unwelcome sexual advances on the victim, even after she had made it clear to him that she was neither consenting, nor interested.

   (c)The second incident occurred approximately a month after the first. The fact that it occurred at all indicates that the applicant had taken no notice of his earlier rejection by the victim. On this occasion, the applicant made more than three attempts, during the course of a late-night shift, to molest the victim, despite her clear rejection of his unwanted advances.

   (d)The applicant’s behaviour was furtive. He chose moments when he was alone with the victim, who was almost 20 years his junior, to make these advances. In the context of the offending, the victim was a vulnerable person relative to the applicant.

   (e)These advances occurred in the workplace and ultimately resulted in the victim having ongoing concerns about her safety in working near the applicant. There is a very serious occupational health and safety issue in the circumstances of this offending.

   (f)When the victim complained and an investigation subsequently occurred in the workplace, the applicant denied the offending. The victim was put through the ordeal of an investigation. The remarks of the presiding Magistrate in the March 2018 conviction indicate:

   “It led to a determination that the victim’s claims were somewhat baseless. She was required to continue work at the home and she felt significantly let down by the process. Ultimately, she left that employment and was able to find alternative employment.” [8]   

   As a result of the applicant’s actions, including his denials of misbehaviour during the workplace investigation, the victim left her employment.

   [8] Ibid.

3. The applicant made various statements which attributed his behaviour to cultural differences. This includes the frankly bizarre assertion in paragraph 8 of Exhibit 3 dated 21 April 2021, that his conduct was due to a Nigerian cultural practice of “not giving up” on friendships. It is difficult to accept that the applicant could have genuinely believed that it was acceptable for a married man of almost 40 years of age to make unsolicited and repeatedly rebuffed sexual advances to woman almost half his age. (This view is reinforced by the furtive nature of his offending and by his denial of the conduct during the subsequent workplace investigation). Furthermore, in his evidence, he confirmed that he knew that his behaviour was wrong when he did it. He agreed that he might have made her feel afraid. He agreed that she was vulnerable. He agreed that he knew that his conduct would not have been acceptable in Nigeria. He agreed that his conduct was about satisfying his sexual desires.

4. These advances were made in the workplace and at times when his victim was alone with him. The sexual harassment of a young woman in the workplace is totally unacceptable. The applicant denied his conduct right up until his plea of guilty. It seems open from the evidence of at least one of his character witnesses (KM), that the applicant may have told people since his conviction that he was compelled to plead guilty by his lawyer, not because he was in fact guilty.

5. The Tribunal does not accept that the pattern of conduct which was the subject of the applicant’s conviction could be explained by cultural differences or cultural misunderstanding. If there were a recognised cultural issue that made the applicant’s behaviour seem acceptable to him, it has not been explained. The best attempt at an explanation of this “cultural issue” was dismissed by the learned Magistrate in these terms:

   “Reference was made to the fact that she had befriended him on Facebook. At one point I confirmed with counsel that all that was really was that the victim had been friendly towards the defendant, no more no less. It was simply conceded that he had misread those signs”.[9]

   [9] Ibid, p 132.

6. At paragraph 8 and 9 of Exhibit 3, the applicant also attempts to excuse his conduct on the basis of “an inability to understand English”. This is said not only to explain his repeated molestation of the victim despite her protestations, but also as leading to “a possibility that he entered a plea of guilty in circumstances where he did not fully comprehend the progression of his case”. This continuing assertion of a significant language barrier must be considered in the context of the applicant’s evidence to the Tribunal on this topic. This evidence included the facts that English is the official language of Nigeria, that the applicant grew up in a middle-class family, completed primary and secondary school where the language of instruction was English, and he completed a university degree in architecture, again taught in English. It should be noted that his English proficiency was tested before his arrival in Australia, by an IELTS test on 2 October 2014.[10] His results then indicated a moderate proficiency in English. He would certainly have understood the language used by the victim in rejecting his advances almost three years later.

   [10] Ibid, T7, p 87.

7. These statements are not consistent with a full acceptance of guilt.

8. The applicant’s statutory declaration dated 17 July 2020, speaks of his relationship with his wife in the following terms:

   “We have a great relationship, and she is one of the best things that has happened to me.”[11]

   [11] Exhibit 7.

9. The applicant speaks of his family in the following terms:

   “We have two children, our daughter is Ruby, she was born in 2016, and she is almost 4 years old, our son Jayden, he will be two years old in October. They are our joy and delight, they keep us busy and fulfilled”.[12]

   [12] Ibid.

10. The applicant speaks of his offending in the following terms:

    “In March 2018, I was convicted of indecent behaviour. It was never my intention to behave improperly, and I’m so sorry about this incident and so profoundly remorseful. It is so out of character for me…”[13]

    [13] Ibid.

11. It is difficult to see how the applicant can reconcile statements contained in his statutory declaration regarding his devotion to his wife and family, with the offending to which he pleaded guilty in March 2018.

12. It is also a matter of concern that in speaking of his conviction in March 2018, the applicant characterises it as “this incident”. It was not one isolated incident (see paragraphs 8 and 9).

13. It is also a matter of concern that the applicant states that it “was never my intention to behave improperly”. This implies that either the applicant knew what he was doing but was unaware that his conduct was improper, or that he acted without thinking at all. Either of these alternatives would be a matter of serious concern. This also does not accord with his concessions when giving evidence.

14. There is no evidence to suggest that the applicant has engaged in any form of rehabilitation or other therapy since the commission of the offences to deal with “cultural” issues. The applicant did give evidence about discussing the conviction with his Pastor. This was confirmed by the Pastor when he gave evidence. The Tribunal is left in a position where there is simply no plausible explanation for the applicant’s offending. This mystery about his offending also makes it difficult to find any compelling reason to conclude that it may not occur again.

    CHARACTER REFERENCES

15. The applicant has produced a number of positive references. These take the form of both letters and statutory declarations from the applicant’s wife, work colleagues, and friends.

16. Without detailing the contents of each of these references, it appears that most, though not all, of the applicant’s referees were aware to some degree of the applicant’s history of offending. Only two of the witnesses called by the applicant, aside from his wife, really knew anything more than the mere fact of a conviction for “indecent behaviour”, as opposed to the particulars of the circumstances leading to his conviction. All the witnesses expressed surprise or shock about the fact of the applicant’s conviction. All said words to the effect that this was not in character for the man that they had come to know. Most of them agreed with the proposition that a person of good character would not commit an indecent act. The applicant’s wife was very positive about him as a husband and a father. His conviction has not shaken her assessment of his good character, though she struggled to explain what he had done.

17. In general terms, the evidence is that the applicant is quiet, respectful, well liked, reliable, hard-working, a member of a church community, member of a community soccer club, and a dedicated family man.

18. It is important, however, to be mindful of the proper purpose to which these references may be put.[14] The numerous character references are each but one person’s subjective opinion of the applicant’s standing within his community. As Lee J said in Irving:

    ““good character” should be taken to be used in [the] ordinary sense, namely, a reference to the enduring moral qualities of a person, and not 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… Person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be person of bad character.”[15]

    [14] (1996) 68 FCR 422.

    [15] Ibid at [431] and [432].

19. The character evidence is supportive of the applicant and is one of the factors that must be considered. This evidence is, however, the subjective opinion of a number of people, based on varying degrees of knowledge about the applicant and his offending, gleaned through diverse interactions with him. The Tribunal must form its own independent view of the applicant’s character.

    DR EWER’S REPORT

20. The report of Dr Ewer relevantly states:

    “…. I could not identify any reason why he may do something out of character. There is no evidence that he was psychiatrically unwell at the time of the offending, there is no evidence that he was abusing drugs or alcohol the time of the offending, and he was not under any particular stress at the time of the offending…… I cannot identify a psychiatric reason that would see him reoffend. Therefore, from a psychiatric perspective, there seems to be a low likelihood of reoffending.”[16]

    [16] Exhibit 10, p 13.

21. Dr Ewer’s report adds nothing to demystify the reasons for the applicant’s offending. The report is clear in its assessment that the applicant did not offend in the context of any identified psychiatric illness. In these circumstances, the opinion that “I cannot identify a psychiatric reason that would see him reoffend”, is unhelpful. He did not offend in the first place because of psychiatric illness. Whatever the cause of his offending may have been, psychiatric illness does not appear to have been a factor. This also means that there is no psychiatric illness that might be treated or managed so as to minimise the risk of similar offending in the future.

    CONCLUSION

22. If the Tribunal were asked to consider the question “is the applicant a person of good character?” immediately following his conviction on 13 March 2018, it is my view that the answer would have been unequivocally, “no”. This much was all but acknowledged, quite properly, by the applicant’s counsel.

23. The question for the Tribunal is therefore essentially this: since his conviction on 13 March 2018, has the applicant demonstrated “good character” sufficiently for the Tribunal to be “satisfied” that the applicant is a person of “good character”?

24. To answer this question in the negative, it is not necessary for the Tribunal to be satisfied that the applicant is of “bad character”. To answer this question in the affirmative, “it is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character”.[17]

    [17] BOY 19.

25. This leads then to an enquiry as to what, if anything, has changed since 13 March 2018. I note that the Policy in describing “enduring moral qualities” refers to them as, amongst other things, “encompassing the following concepts:

    (a)Characteristics which have been demonstrated over a very long period of time

    (b)Distinguishing right from wrong

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

26. A consideration of all of the evidence against the Policy set out in paragraph 19 (above) leads to the following relevant findings:

    a)having regard to the matters set out in paragraphs 23 to 45 above, and given that the applicant has only been resident in Australia since 2015 and that he was convicted in March 2018 of indecent behaviour, he has failed to show characteristics of “good character” “which have been demonstrated over a very long period of time”;

    b)having regard to the matters set out in paragraphs 23 to 45 above, there is a question about the applicant’s capacity to clearly distinguish “right from wrong”;

    c)having regard to the matters set out in paragraphs 23 to 45 above, there is a question about the applicant having the capacity to “conform to the rules and values of Australian society”; and

    d)having regard to Exhibit 3, particularly paragraphs 8 and 9, the applicant has continued, at least up until the hearing of this matter, to claim that cultural issues and “miscommunication” due to a lack of fluency in English were responsible for his offending. These two assertions are unsustainable.

27. For all of the reasons set out above, it is the opinion of the Tribunal, that the applicant has not demonstrated the required “enduring moral quality” over a “very long period of time”. The Tribunal is not satisfied that the applicant is of good character pursuant to section 21 (2)(h) of the Act such that he should be granted Australian citizenship at this time.    

28. This decision does not preclude the applicant from making an application for Australian citizenship at some time in the future.

    DECISION

29. For the reasons outlined above the decision under review is affirmed.

    
    ...........................[Sgnd].................................

    Legal Administrative Assistant

    Dated:   23 July 2021

Date of hearing:

15 July 2021

Advocate for the Applicant:

Dr Steven Churches

Elliot Johnston Chambers

Advocate for the Respondent:

Samuel Cummings

Sparke Helmore