Agostino Di Ruocco and Minister for Immigration and Border Protection

[2015] AATA 1029

[2015] AATA 1029 

Division	GENERAL DIVISION
File Number	2015/0565
Re	Agostino Di Ruocco
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Deputy President J W Constance
Date	18 September 2015
Date of written reasons	8 January 2016
Place	Sydney

The decision of the delegate of the Minister dated 1 December 2014 to refuse Mr Di Ruocco’s application for Australian citizenship is affirmed.

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

J W Constance
Deputy President

Catchwords

CITIZENSHIP- citizenship by conferral - good character - whether the Applicant satisfies the legislative requirement to be shown to be of good character - previous convictions - traffic offences - whether any mitigating factors apply - decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24

Cases

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

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

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

Secondary Materials

Australian Citizenship Instructions (Cth)

WRITTEN REASONS FOR DECISION

(decision given orally on 18 september 2015)

Deputy President J W Constance

8 January 2016

INTRODUCTION

1. Mr Di Ruocco applied for Australian citizenship by conferral on 1 December 2014. A delegate of the Minister refused the application on the grounds that he had not established that he was of good character at the date the decision was made, 15 January 2015.

2. Mr Di Ruocco has applied to the Tribunal for a review of the delegate’s decision.

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

   BACKGROUND

4. Mr Di Ruocco was born in Italy in 1960 and arrived in Australia in 1970 at age 10. He is a citizen of Italy.

5. Whilst residing in Australia Mr Di Ruocco has been convicted of the following offences[1]:

   ·On 5 February 1979 he was convicted of the offences of possessing utensils for smoking Indian hemp, possessing Indian hemp and smoking Indian hemp. On each charge he was fined $125 or five days hard labour.

   ·On 30 March 1979 he was convicted of driving whilst disqualified. He was sentenced to three months hard labour and disqualified from driving for a further six months. On the same date he was convicted of exceeding the speed limit for which he was fined $50 or 48 hours hard labour, fraudulently using a licence for which he was fined $150 or six days hard labour and possessing Indian hemp for which he was sentenced to three months hard labour.

   ·On 10 August 1982 he was convicted of driving in a dangerous manner. He was fined $300 or 12 days hard labour and disqualified from driving for three months.

   ·On 29 June 1987 he was convicted of possessing a prohibited plant. He was fined $1500 or 30 days hard labour.

   ·On 20 January 2014 he was convicted of driving a vehicle with an illicit drug present in his blood. He was fined $100 and was disqualified from driving for three months commencing 20 January 2014 and concluding 19 April 2014.

   The police record also shows a sentence of ‘part alcohol interlock program: 3 months’ for this offence. However, Mr Di Ruocco gave evidence that he was unaware that such an order was made and there is nothing further in the records to permit any further findings in relation to that order. As such I have not taken it into account except to note that the Minister’s delegate referred to this condition in the decision record dated 15 January 2015.[2] Mr Di Ruocco claimed that he was aware of this but has taken no action to make any enquiries as to what was required by the condition.

   [1] Exhibit R2 p.15-16.

   [2] Exhibit R1 p.6.

6. In addition to these offences Mr Di Ruocco’s driving record indicates that he has an extremely long list of traffic infringements.[3] Mr Di Ruocco was issued with a provisional licence in 1977, when he was 17 years of age.

   [3] Exhibit R2 p.20-25.

7. His first traffic infringement occurred in 1980 and many more infringements occurred over the ensuing years. In more recent years there were infringements in June 2006, March 2007, July 2009, September 2010, October 2010 and June 2012, mainly involving exceeding the speed limit.

8. Mr Di Ruocco was sent a demerit point warning letter in November 2012 and on 22 September 2013 the offence of driving with a prescribed illicit drug present in oral fluid occurred.

9. I note that on the evidence before me, Mr Di Ruocco has no offences or traffic infringements recorded, since that time.

10. However, the records indicate that Mr Di Ruocco’s licence to drive was suspended or cancelled on five occasions and I note that the disqualification period in relation to that last offence ended in April 2014, approximately 18 months ago.

    ISSUE FOR DETERMINATION

11. The issue before me is whether at the time of my decision Mr Di Ruocco is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

    legislation

12. Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth). Section 24 of the Act provides:

    (1)    If a person makes an application under section 21, the Minister must, by  

    writing, approve or refuse to approve the person becoming an Australian citizen.

    (1A)    The Minister must not approve the person becoming an Australian citizen

    unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

13. Section 21(2) of the Act establishes the requirements for eligibility of the grant of citizenship. It provides in part:

    (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

14. This is the only subsection that is in issue in the present application and as the Tribunal stands in the shoes of the decision maker these requirements of the law are applicable to the decision that I must make.

    Australian Citizenship Instructions

15. The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.

16. The Instructions reflect government policy and are not binding on the Tribunal. However the Tribunal should apply the policy unless there are “cogent reasons to the contrary” [4]. I am satisfied in this matter that there are no reasons why I should not apply the Instructions.

    [4] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

17. Paragraph 10.1.2 of the Instructions provide in part:

    ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.

18. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[5]

    Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion. ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. (citations of authorities omitted).

    [5] (1996) 68 FCR 422 at 431-432.

19. After referring to the judgement of the Court in Irving, Paragraph 10.3.1 provides, in part:

    In this context, "moral" does not have any religious connotations. 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 good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.

20. In considering the Australian Citizenship Instructions I have taken into account that they refer to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship:[6]

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, 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 what a person does and in part what a person is heard to say and seen to do.

    [6] [2011] AATA 304 at [120].

21. The Instructions go on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in dealings with the Australian Government.[7] All of these authorities along with the Australian Citizenship Instructions make it clear that abiding by Australian laws is a very important factor that I need to consider.

    consideration

    [7] Paragraph 10.3.4.

    Characteristics of a person of good character

22. In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include:

    Respect and abide by the law in Australia and other countries.

23. It is a matter of weighing up the various factors in the evidence before me. Under the heading of Weighing up the decision, the Instructions provide:

    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.

    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.[8]

    [8] Paragraph 10.5.4.

24. I note once again that there is a reference to the question of whether an applicant for citizenship has upheld and obeyed the laws of Australia. Mr Di Ruocco’s driving record, whilst it does not contain serious offences, is nevertheless far from good. Many people in the Australian community manage to get through their driving career with no convictions. Many people receive only few but in Mr Di Ruocco’s case he has been convicted of a number of offences and has a very significant record of breaching the traffic laws of Australia.

25. Some of those offences, such as driving with an illicit substance in the blood, directly affect the community by putting the safety and lives of others at risk. Protecting the community is the very purpose of our traffic laws, speeding laws and laws which require that speed be limited outside a school.

    Mr Di Ruocco’s evidence

26. I have taken into account the oral and written evidence given by Mr Di Ruocco. He claims that from an early age he fell in with the wrong crowd. He stressed that a number of his convictions took place a long time ago when he was a youth and that is undoubtedly correct. Had it not been for the offence of which he was convicted in 2013 there would have been more strength in that argument.

27. However, in recent years Mr Di Ruocco has committed another offence involving the use of an illicit substance and that was an offence involving driving. Mr Di Ruocco’s traffic record indicates that rather than a series of offences that happened a long time ago, it has been a continuing pattern over many years of frequent breaches of Australian traffic laws.

28. Mr Di Ruocco explained the circumstances in which he used marijuana on that last occasion. He claimed his father was ill and that his business was experiencing difficulties. However, I am not satisfied that they are sufficient explanations and I must take the decision of the court as it stands.

29. Mr Di Ruocco told me that he is a married man, he has raised a family in Australia and he is a land owner in Australia. He has operated a business for 20 years and in that time he has paid his taxes and otherwise been a law abiding citizen.

30. Apart from the question of whether he has been a law abiding citizen or not, I accept the testimony that he has worked hard, he has raised his family here and he has in many ways contributed to Australian society.

31. Mr Di Ruocco put to me that he should not be punished again for the offences he has committed and which have already been dealt with by the courts. However, the question of the grant or refusal to grant citizenship is not a matter of punishment, nor is it a matter of right. Australian citizenship is a privilege.

    Weighing the various factors

32. Balancing the various factors I have come to the conclusion that Mr Di Ruocco’s repeated failure to respect and observe the laws of Australia are such that I cannot be satisfied that he is of good character. In reaching that conclusion I have taken into account the various character references which Mr Di Ruocco has provided. Those references are given lesser weight because they were not by statutory declaration but even if they had been it would not have made any difference to the decision that I have reached.

    Mitigating factors

33. In balancing those various considerations I have taken into account what is said by the Instructions in relation to mitigating factors. Paragraph 10.5.2 provides in part:

    Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.

34. A number of these factors include:

    ·     What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? ...

    ·     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 good behaviour bond? …

    ·     Has the applicant rehabilitated themselves? …

    ·     What was the applicant’s age at the time the offence was committed? …

    ·     Were there any extenuating circumstances relating to the offence?

35. I have taken those factors into account as per the reasons that I have referred to. They do not in my view outweigh the seriousness of Mr Di Ruocco’s continued breaches of Australian law and even taking into account that he has now for some time been free of any convictions or traffic infringements, that is not a particularly long time in view of the driving record that preceded it.

    conclusion

36. The decision under review is affirmed.

37. I note that this conclusion does not preclude Mr Di Ruocco from making a further application for Australian citizenship in the future.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated 8 January 2016

Date of hearing	18 September 2015
Date final submissions received	18 September 2015
Applicant	In person
Solicitors for the Respondent	K Hehir; Australian Government Solicitor