Alcantara and Minister for Immigration and Multicultural Affairs

[2006] AATA 363

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 363

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/578

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTIAN ALCANTARA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date24 April 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Member

CATCHWORDS

CITIZENSHIP ‑ application for Australian citizenship ‑ conviction for offences ‑ whether applicant of good character

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

Australian Citizenship Instructions

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

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

REASONS FOR DECISION

24 April 2006  M J Carstairs, Member

1.      This is an application by Christian Alcantara for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 24 August 2005, refusing to grant Mr Alcantara Australian citizenship on the grounds that he was not of good character within the meaning of s13(1)(f) of the Australian Citizenship Act 1948 (the Act).

BACKGROUND

2.      Mr Alcantara was born in San Salvador in 1977.  He travelled to Australia at the age of sixteen and entered Australia on an El Salvadoran passport on 18 August 1994.   He was granted permanent residence on arrival. 

3.      When he first came to Australia he lived with an aunt and attended high school, completing his studies in 1997.  Since leaving school he has worked firstly as a process worker in factories and more recently as a truck driver. The applicant has been convicted of a number of offences in Australia since then. 

4.      Mr Alcantara’s criminal history is as follows:

1997Wilful and unlawful damage to property              No conviction recorded.

2 years probation and required to pay $1070 compensation

Serious assault on a police officer  Conviction recorded and ordered to serve 240 hours community service

Unlawful wounding  Conviction recorded. Placed on probation for 3 years and required to undergo counselling

1998Possessing drugs / Possessing utensils  No conviction recorded - fined $400

Obstruct police officer  Conviction recorded - fined $200

1999Breach of 1997 probation order.  Conviction recorded, fined $150

Dangerous driving  Conviction recorded suspended sentence and disqualified from driving 12 months

2001Breach of domestic violence order  Conviction, fined $400

Breach of domestic violence order  Conviction, fined $600

2005Possessing dangerous drugs  No conviction recorded, fined $300

5.      In addition to this he has a police traffic record of twelve traffic and public transport offences in the period 1995 to 1999 including three for driving without a licence.

6.      On 22 October 1997 Mr Alcantara applied for the first occasion to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) for Australian citizenship.  This was refused.  He reapplied on 1 February 2005 (T6), and it is this application that is the subject of the Tribunal review.

7.      In his 2005 application the only past offence that he mentioned was:

“Fighting, appeared in court Brisbane 1996” (T6)

He gave no details of other offences and convictions.  On 24 August 2005 a delegate of the Minister refused the application for Australian citizenship.  On 6 September 2005 the applicant lodged an application with the Tribunal, for review of the decision to refuse his application for citizenship.

8.      The issue before the Tribunal is whether the applicant is of good character as required by s13(1)(f) of the Act.

EVIDENCE

9.      In a statutory declaration dated 18 January 2006 (exhibit A1) the applicant stated that his prior convictions occurred when he was in his early twenties and he subsequently had learned his lessons from them and had undertaken anger management counselling.  He stated that since he came to Australia he had completed high school, and was now an upstanding citizen in full-time employment with a good work ethic. He maintains that he has much to contribute to the Australian community. 

10.     Mr Alcantara said that some convictions were the result of disruptive behaviour at clubs and involved other El Salvadorians.  He said that at the time he was unable to control his anger but has since learned anger management skills through court ordered programmes after his convictions.  He said that the drug offences were minor, and should be understood in the context of his youth at the time, and that he now knows better.  However the most recent conviction for possession of marijuana was on 16 June 2005 (exhibit R1) soon after the current application for citizenship was made.

11.     Mr Alcantara says that he tries not to think about his past convictions as he wants to move on and make a fresh start.  He would like to have citizenship so that he might travel overseas with his partner, and visit his elderly mother in San Salvador as he has heard that she is not well.

12.     In regard to the driving offences, Mr Alcantara said that he had made these mistakes, including those involving driving without a licence, when he was young.  Now that he has a truck driver’s licence and is employed as a truck driver he has a better appreciation of the responsibility of holding a driving licence because his employment is involved. 

13.     In oral evidence the applicant acknowledged that he had failed to include details of his convictions when he was completing an earlier citizenship application form in 1997.  He said that someone, perhaps his aunt, had told him to complete the form that way.  He said that he had answered the question again in his 2005 application, where he was required to detail ALL occurrences where he had been convicted of any offence (Q43 on document T6): Fighting, appeared in court Brisbane 1996 because he was told to answer in the briefest way possible.  He said he is not proud of the offences.

14.     In support of his application Mr Alcantara produced a number of letters from friends and employers (T8) which describe him as a reliable employee and as trustworthy, kind and helpful.  Only one of these letters of support acknowledged the criminal offences and that person attested her belief that he had changed for the better since the time of the offences.

CONSIDERATION OF THE ISSUES

15.     Under s 13(1) of the Act:

“13(1)      Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

…

(f)the person is of good character;”

16.     Chapter 5 of the Australian Citizenship Instructions (the Instructions), sets out the policy guidelines which are to be applied by delegates of the Minister, in assessing applications for the grant of a Certificate of Australian Citizenship under the provisions of s 13 of the Act.  Mr Palfrey submitted that I should have regard to these instructions, unless there were cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). I accept this submission.

17.     Mr Palfrey referred to the following paragraphs of the Instructions:

“…

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

5.4.4Assessment of good character involves:

·   establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character…

…

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

…”

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

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

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

…”

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

“…

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

20.     Mr Palfrey submitted that in the present case Mr Alcantara’s criminal record suggests that he is not of good character.  Mr Palfrey submitted that while Mr Alcantara has had no lengthy individual criminal sentence imposed on him, the Instruction at 5.4.7 refers to the need to take into account the nature of crimes and refers to crimes of violence.  He also submitted, referring to paragraph 5.4.11, that Mr Alcantara’s record showed a pattern of repeated offences, which was to be distinguished from a one-off occurrence which might reflect less badly on character. 

21.     Addressing other relevant factors, Mr Alcantara told me that his offences reflected the ignorance of youth and that he has changed and become more responsible.  Instruction 5.4.13 refers to establishing a pattern of good behaviour.  Mr Palfrey said the applicant has not demonstrated a change in his character since the offences (Instruction 5.4.14) and said that account should be taken of the non-disclosure of the offences on the application form and the recency of the latest drug related offence, occurring as it did, after the current application for citizenship was made.  Mr Palfrey submitted that there was no reason to doubt the words of those who have provided references for Mr Alcantara, but that these on their own do not outweigh serious and repeated offences.   

22.     I agree that Mr Alcantara is well supported in his references by friends and family members, as well as those who have worked with him.  I accept that he is in stable employment and contributing to the community.  I accept also his evidence that he has established a stable and loving relationship with Ms M Belle Isle and that he has close connections with her daughter, Ms J O’Brien, who has a young child, all of which indicate that Mr Alcantara has a pattern of family connections now in this country.  No doubt these assist in developing a more mature outlook.  However I also note that most of the references attesting to his good character are from friends and family members.  Only one written referee acknowledged Mr Alcantara’s past criminal history at all (Instruction 5.4.17).  I note that there are no references from other reputable people in the community, such as representatives of charitable organisations, community groups or similar institutions.  

23.     In applying the guidelines outlined in Irving and Re Mlinar to relevant matters, I was satisfied that the convictions here, though not resulting in lengthy sentences, nevertheless by their number and the recency of some of them, do represent serious breaches of the law.  In particular I was concerned with the offences of violence, and the offences of serious assault on a police officer and obstructing a police officer as reflecting real disregard for the law.  In applying the test set out in Irving and Re Steele for the ordinary meaning of good character, these convictions reflect adversely on the applicant’s character.

24.     I accept that an applicant for citizenship has the responsibility for ensuring that all relevant material is included on the application form.  It is of great concern that Mr Alcantara when submitting two applications has concealed the extent of his criminal history. I do not accept his reasons for doing so on the current application, when the form clearly specifies the detail that is required and requires a signed declaration that the information is complete, and correct in every detail (T6).  It is significant that Mr Alcantara chose to mention only one offence that occurred well in the past, when his criminal history is both extensive and recent.  In assessing the question of good character, I have placed weight on Mr Alcantara’s failure to disclose his history when required to do so.

25.     I took into account that the Instructions refer to the length of imposed sentences as an aspect of assessing the seriousness of a person’s criminal history.  Mr Alcantara’s longest sentence was for 3 months imposed in 1999, wholly suspended for 18 months.   If the length of sentence were the only factor to take into account, a different outcome might result.  But it is not the only factor.

26.     I was not persuaded that Mr Alcantara shows genuine remorse for the pattern of his offences since he came to Australia twelve years ago.  I accept that he was very young when he came to Australia and this would have been a very difficult time for him.  He had to learn a new language, new customs, and was without parental support at a crucial stage of his life.  However his attitude in giving his evidence at the hearing was that all these offences reflected his youth at the time, but this does not explain his consistent, repeated pattern of offending over a number of years, and certainly ignores the offence that took place after his current application for citizenship.  I do not accept that he has taken serious account of his crimes. 

27.     I regard Mr Alcantara’s overall pattern of repeated offences as serious and I regard his explanation for giving false or misleading answers to the questions about previous criminal offences on two occasions as unsatisfactory.

28.     For these reasons the Tribunal finds, on balance, that the applicant has not demonstrated that at the time of his application for citizenship he was of good character. Consequently he does not satisfy s 13(1)(f) of the Act.

DECISION

29.     The Tribunal affirms the decision under review.

I certify that the preceding 29 paragraphs are a true copy of the reasons for the decision of M J Carstairs Member:

Jeff Mills

Legal Research Officer

Date of hearing:  8 February 2006

Date of decision:  24 April 2006
Applicant unrepresented.
Solicitor for the respondent:            Mr M Palfrey, Clayton Utz Solicitors