Anderson and Minister for Home Affairs (Citizenship)

[2019] AATA 229

Anderson and Minister for Home Affairs (Citizenship) [2019] AATA 229 (25 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3910

Re:Robert Anderson

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:                  Professor R McCallum AO, Member

Date:25 February 2019

Place:Sydney

The decision under review is set aside and the matter is remitted for reconsideration in accordance with the following direction that the Tribunal is satisfied that Mr Robert Peter Anderson is a person of good character. 

........................[sgd]......................................

Professor R McCallum AO, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by descent – refusal of citizenship – whether the applicant is of good character – providing false or misleading information –applicant holds a New Zealand citizenship – adoption – biological parents – deportation –use of fraudulent passport – member of a life and motorcycle club – subclass 444 temporary visa – enduring moral qualities – supply of amphetamine – indigenous ancestry – imprisonment – conviction – possession and cultivation of cannabis – visa cancellation – burglary – decision remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 16, 17

Migration Act1958 (Cth) ss 234, 501

CASES           

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

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; [1996] FCA 1660
Mohamad and Minister for Immigration and Border Protection [2018] AATA 687
Muggeridge and Department of Immigration and Ethnic Affairs [1994] AATA 418
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200
Re Drake and Minister for Immigration (No. 2) (1979) 2 ALD 634

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

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy (Department of Immigration and Border Protection, Canberra, 1 June 2016)

REASONS FOR DECISION

Professor R McCallum AO, Member

25 February 2019

INTRODUCTION

1. The Applicant, Mr Robert Peter Anderson was born in New Zealand in 1963 and he is a New Zealand citizen. His mother and father who have since deceased were Australian citizens at the time of his birth. Mr Anderson lives in New South Wales on the Central Coast.

2. On 27 July 2017, Mr Anderson applied for a grant of Australian citizenship by descent. However, on 4 July 2018, a delegate of the Minister for Home Affairs refused the application on the ground that the delegate was not satisfied that Mr Anderson was of good character pursuant to section 16(2)(c) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).

3. On 10 July 2018, Mr Anderson sought review of the delegate’s decision in the General Division of the Administrative Appeals Tribunal.

   THE ISSUE BEFORE THE TRIBUNAL

4. The issue before me as I stand in the shoes of the Minister, is whether or not I am satisfied that Mr Anderson is of good character.

5. Section 16(2) relevantly provides as follows:

   Persons born outside Australia on or after 26 January 1949

   (2)A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

   (a)a parent of the person was an Australian citizen at the time of the birth; and

   (c)if the person is or has ever been a national or a citizen of any country, … and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

6. Section 17 gives details on the Minister’s decision (including a decision of the Minister’s delegate, see section 53) and it relevantly provides as follows:

   17 Minister’s decision

   (1)If a person makes an application under section 16, 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 16(2) or (3).

   (2)Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

   Identity

   (3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

   …

7. No issue concerning the identity of Mr Anderson is before me.  

8. Section 16(2)(c) of the Citizenship Act requires the Minister to be satisfied “ … that the person is of good character at the time of the Minister’s decision” before a grant of citizenship can be made.

9. In Zheng and Minister for Immigration and Citizenship [2011] AATA 304, [23]-[25], Deputy President Forgie held that the task of the Tribunal is to determine whether or not it is satisfied that an applicant for citizenship is of good character at the time of the Tribunal’s decision. Therefore, the task before me is to determine whether or not I am satisfied that Mr Anderson is of good character at the date of this decision.

   THE HEARING

10. The hearing of this matter took place in Sydney on Monday, 4 February 2019. Mr Robert Anderson attended with members of his family and he was represented by Mr Karp. Counsel for the Respondent was Ms Watson, Australian Government Solicitor.

11. Mr Anderson gave sworn evidence.

12. Ms Joanne Doudle who is the de facto partner of Mr Anderson gave evidence by affirmation.

13. The oral evidence will be discussed in these reasons.

    MR ROBERT PETER ANDERSON: RELEVANT FACTS

14. From the oral and documentary evidence before the Tribunal, I have been able to untangle the following facts and circumstances concerning Mr Robert Anderson.

    Mr Anderson’s Birth And Subsequent Adoption

15. Ms Laurel Scott was Mr Anderson’s teenage Mother, she was an Australian citizen and she lived in Australia. Ms Laurel Scott gave birth to Mr Anderson in New Zealand in 1963. On the date of his birth, Ms Laurel Scott was two days shy of her fifteenth birthday. Mr Ronald Palmer who lived in Australia and who was an Australian citizen, was Mr Anderson’s Father and he was also a teenager who was aged 17 at the time of the birth.

16. It appears that Ms Laurel Scott’s Mother sent her from Australia to New Zealand where she could put her child up for adoption. More than half a century ago in Australia as I recall, teenage pregnancies were seen as shameful and even immoral. After the birth, Ms Laurel Scott returned to her home in Australia.

17. Subsequently, Mr Anderson was adopted by Mr Peter Muggeridge and Mrs Christine Muggeridge who were a married couple residing in Dunedin New Zealand. They are now deceased. Upon adoption, Mr Robert Anderson was given the new name of Stephen Paul Muggeridge. This was his name up until 1997, however, throughout these reasons I shall use his current name of Robert Peter Anderson.

18. Later in Australia, Mr Anderson’s biological parents, that is Ms Laurel Scott and Mr Ronald Palmer were married, and Ms Laurel Scott became Mrs Laurel Palmer. The Palmers lived in Australia and they had two sons, Darren and Jason, and one daughter Ronette.

19. Mr Anderson was the third of four children who had been adopted by Mr and Mrs Muggeridge. When he was nine years old, Mr Anderson learned that he had been adopted.

20. Mr Anderson did not complete his secondary education as he left school aged 15.

21. In 1984, Mr Anderson married Ms Marina Catherine Denhier.

22. From 1981 to 1986, Mr Anderson was convicted of a number of offences in New Zealand. He was convicted of several traffic offences. Mr Anderson was also convicted on both possession and cultivation of cannabis and also of burglary.

    Mr Anderson Is Contacted By His Biological Parents And Settles In Australia

23. It appears that Mr Anderson’s biological parents, Mr and Mrs Palmer did try to make contact with Mr Anderson on a number of occasions, but with no success. However, by the mid-1980’s, it is my understanding that the adoption laws were altered and adoption records became available to birth parents and their adult biological children.

24. In 1986, the Palmers contacted Mr Anderson and he met the family when he visited Australia that year.

25. These are rather unusual circumstances. The happenstance of Ms Laurel Scott being sent to New Zealand for the birth of her son, meant that Mr Anderson became a citizen of New Zealand. Although eligible for citizenship in Australia, he would only have been able to acquire this if his birth had been registered in Australia. However, he was not contacted by his birth family until he was in his twenties. This meant that he did not have an opportunity to apply for Australian citizenship by descent when still a child. Mr Anderson and his wife Marina subsequently relocated to Australia and briefly moved in with his birth parents. In 1988, they quarrelled with Mr and Mrs Palmer and left the family home.

26. In March 1989, Marina gave birth to their daughter, Sarah Muggeridge who is an Australian citizen. Subsequently, the couple were divorced in November 1994.

    Criminal Offences And Deportation From Australia

27. At that time, it appears that Darren, one of Mr Anderson’s biological brothers introduced him to the Life and Death Motorcycle Club.

28. In Muggeridge and Department of Immigration and Ethnic Affairs [1994] AATA 418, where an order to deport Mr Anderson was affirmed by the AAT, Deputy-President McMahon summarised Mr Anderson’s criminal convictions in Australia as follows:

    7.  It was through Darren that the applicant [Mr Robert Anderson] became involved with the Life and Death Motor Cycle Club. This was a club of motor cycle enthusiasts who regarded themselves as "outlaws". The applicant explained in evidence that they abided by their own laws. They considered that the rules of their conduct were those of the club rather than those of society. The club had 3 chapters and was organised with some degree of formality. To become a member, it was necessary to know an existing member. One then remained a "prospect" for one to three months. The club then voted on one's application to be recognised as a nominee. Assuming that status was achieved, it would be retained for periods between 6 months and 2 years. At that stage, the nominee proposed himself for membership as a "trial member". If accepted, this lasted from one to 3 months. Thereafter he was eligible to be voted upon as a full member. Having gone through this process for over 2 years, Mr Muggeridge [Mr Anderson] became a full member of the club in March 1989.

    8. The applicant bought successively 2 motorcycles, a Norton, and a Harley Davidson from moneys advanced by the club through the offices of the president. The applicant had no source of income with which to repay these loans. Indeed he has never worked in Australia. He had had a motor cycle accident in New Zealand in which he injured his right hand. He continued to receive compensation payments for a short while after he came to Australia. When these cut out, he became a recipient of Australian Social Security payments.

    9. In order to earn money to repay the motor cycle advances, he worked in the club's shop and ultimately came to be in charge of it. His wife gave evidence that he subordinated his family to the club and he himself agreed that he spent a considerable part of his time supervising the shop, which was open for 7 days per week.

    10. The shop sold amphetamine to both members and non-members. The prices to members were lower than those to non-members, so that members could make a profit for themselves by on-selling the amphetamine to third parties. Mr Muggeridge gave evidence that during this time he organised the club house, looked after the money, balanced the books (which were kept in code) and accounted for the cash on a periodic basis to the president, Mr Kitchener. The money was secreted until the president required it for further purchases.

    11. A statement of police evidence tendered at his trial (Exhibit 12 in the present proceedings) stated that the applicant performed one of the 2 most important roles in the club's amphetamine business. Subject to the general control of the president, Mr Muggeridge was responsible for the manning of the shop, for the quantities and types of amphetamine to be made available through it, and for the secure hiding of amphetamine at the club house. It was within his responsibility to grant or refuse credit, or to approve or refuse discounts. The club was infiltrated by a detective and, in addition, its telephone line was intercepted after necessary permissions had been obtained. From evidence gathered in this way it was stated by the police that not only did he carry out the duties which I have related. There were also many examples of him dealing with complaints as to shortages and quality, discussing with the president the management of the business with respect to customer preferences and availability of supplies, and conducting third party dealings himself. In particular he made arrangements to sell an ounce of amphetamine to a member of a rival motor cycle gang, describing this to the president in another telephone call as a potential opportunity for substantial future sales.

    12. A police raid was carried out on the premises on 22 September 1989 and charges were laid against all full members of the club. Notwithstanding this, after bail was arranged the sales continued in substantial quantities until the trials. The applicant continued to be in charge of this activity.

    13. On 22 March 1991 the applicant was sentenced to imprisonment for a period of 4½ years on a charge of taking part in the supply of a prohibited drug. His term of imprisonment is to conclude on 30 April 1994. Judge Shadbolt made certain observations when sentencing. Relevant extracts relating to the applicant are as follows —

    "The prisoners Kitchener and Muggeridge [Anderson] have pleaded guilty each to one count in the indictment, namely, taking part in the supply of a prohibited drug.

    The circumstances of the offence were that certainly during 1989 and perhaps before members of a bike gang as the Life and Death Motorcycle Club were distributing amphetamines through premises they occupied at Pelican, Wickham and Richmond.

    The formality of the club's organisation, its code of loyalty and its discipline made its criminal activity difficult to penetrate but a combination of an undercover agent, telephone taps and surveillance provided enough evidence to charge thirteen and secure a conviction against each.

    What has become clear as a result of the police investigations is that bulk supplies of drugs were secured and buried in the premises the gang occupied and members, each, it appears, bringing with him a chain of users, operated the premises like a shop. The scope of the operation, the length of time over which it operated and the quantity of the drugs distributed make it a major criminal enterprise netting for some of its participants many thousands of dollars.

    Fifty thousand dollars was found hidden in Kitchener's house. Between July and September, for which there are records, four and a half kilograms was sold and conservative estimates based on these and other figures suggest that the profits may have been as high as $400,000.

    In an enterprise of this nature people play various roles, some more crucial and involved than others, but these two prisoners represent, in regard to Kitchener, the instigator of the scheme and, as far as Muggeridge [Anderson] is concerned, its organiser.

    It was Kitchener who bought and arranged delivery of the drugs and Muggeridge [Anderson] who organised the shop, kept the records and took the money to Kitchener. It cannot be disputed that Kitchener is the most involved and indeed it is not disputed that he was the head of this organisation. It is disputed that Muggeridge [Anderson] should be regarded as second-in-charge. That is not a view that I accept.

    ................

    As far as Muggeridge [Anderson] is concerned his record is light. It consists of a break, enter and steal and a break and entry with intent supplying a prohibited drug, namely, cannabis, driving an unregistered and uninsured motor vehicle and a PCA. It is not a record which will exclude any leniency to being extended to him.

    ................

    I have to have regard to the scope of this criminal enterprise, the sale and the length of time over which it was run, the damage which it did, the degree of difficulty of the penetration of the organisers and, in Muggeridge's [Anderson’s] case, the youth of the prisoner and his plea, and as far as Kitchener is concerned, his plea of guilty.

    Indeed, I take into consideration the pleas of guilty in respect of both of them because they have saved the State a trial which might have taken four months. After taking all of that into consideration it is necessary to impose substantial prison sentences upon both men.

    In respect of Muggeridge [Anderson], he is sentenced to be held for penal servitude for a period of four and half years, that is to commence on 1 November 1989 and will conclude on 31 [sic] April 1994. An additional term of eighteen months is set which will commence on 1 April 1994 and conclude on 1 November 1995."

29. Mr Anderson was shown the above quoted paragraphs and was asked whether they were a fair description of his activities in the motorcycle club and of his conviction of taking part in a conspiracy for the supply of a prohibited drug. He said that they were a fair description, however, he took issue with the final sentence in paragraph 7 which is quoted above. The final sentence is: “Having gone through this process for over 2 years, Mr Muggeridge [Mr Anderson] became a full member of the club in March 1989.” Mr Anderson said that he had only been with the club for about 13 months.

30. Mr Anderson was deported to New Zealand on 30 April 1994.

31. Ms Karen Lloyd met Mr Anderson when he was in prison in Australia. Ms Karen Lloyd and her two children from a previous relationship followed Mr Anderson to New Zealand. In 1996 when living in New Zealand, Mr Anderson and Ms Karen Lloyd travelled to Fiji where they were married.

    Mr Anderson Returns To Australia

32. On 18 September 1997, Mr Anderson returned to Australia using a fraudulent passport under the name of Robert Peter Warwick Anderson, but with a different date of birth. Therefore, to obtain the fraudulent passport, it was necessary for Mr Anderson to obtain a fraudulent birth certificate.

33. On entering Australia, Mr Anderson received a subclass 444 Temporary visa which is given to New Zealand citizens. Although he had arrived in Australia on a fraudulent passport, and although he had been deported, his subclass 444 Temporary visa meant that he was not in Australia unlawfully. However, had the immigration authorities been aware that Mr Anderson had been deported, they would not have granted him the visa. Under section 234 of the Migration Act 1958 (Cth) (the Migration Act), it is an offence if a person gains entry to Australia by presenting to an officer forged or false documents and making false or misleading statements. Mr Anderson knew that his passport was fraudulent.

34. Later he obtained a driver’s licence, a credit card and a medicare card under the name of Robert Anderson.

35. Ms Karen Lloyd and her two children also returned to Australia with Mr Anderson.

36. In his evidence, Mr Anderson said that he returned to Australia because he learned that his biological brother Jason had been diagnosed with mesothelioma (or asbestosis). Jason passed away in September 2000.

37. Mr Anderson and Ms Karen Lloyd separated in 1999 and divorced in 2000.

38. In about 2000, Mr Anderson began living with Ms Donna Greenwood and her two children, but they broke up in about 2002.

39. Mr Anderson formed a relationship with Ms Joanne Doudle in 2003. They began living together in 2004 and have lived together ever since. When they commenced living together, Ms Joanne Doudle had two small children, and from the evidence before the Tribunal Mr Anderson has been their committed and loving step-father ever since. Their biological father passed away several years ago.

1. In paragraph 2 of her statutory declaration dated 29 January 2019, Ms Doudle wrote as follows:

   2. Robert is the most kind and sincere person that I have ever met. We have been in a relationship for the past 15 ½ years. He has been a father to my children whom they also call dad. Their natural father is deceased. The children never got to know him.

2. Ms Ruth Vial who is Ms Doudle’s Mother, made a statutory declaration dated 29 January 2019. The statutory declaration reads in part as follows:

   I Ruth Leonce Vial have known Robert Anderson for the past 15 years, and am aware of his previous criminal record here and New Zealand.

   Robert has made a enormous difference to this family when he started a relationship with my daughter Joanne Doudle. Joanne is the mother of [the two children] and works shift work at the local Vietnam Veterans Nursing Home. Robert is always on hand to transport the children to and from school and sporting events and church when their mother is working.

   I am very proud to have Robert in our family. Robert is the only father figure [Ms Doudle’s son] has known.

   They live in a very happy home and it is always a pleasure to visit them.

3. After he arrived back in Australia, Mr Anderson obtained employment as a specialist welder. However, in February 2010 he had a workplace accident and suffered a spinal injury. He has had about seven operations, including the placing of screws in his spine. Mr Anderson has not been employed since this accident.

4. In about 2010, Mr Anderson and his two step-children became members of the Hope Unlimited Church congregation, and in 2011 they were baptised. From the evidence before the Tribunal, Mr Anderson is a committed member of this Christian church.

5. A reference letter from Reverend Maz Smith dated 5 September 2018 is before the Tribunal. Reverend Smith wrote in part as follows:

   It has been my pleasure to know Robert since mid-2014. Robert called in at worship one Sunday morning, joined a weekly bible Study group. I was leading and became known as a gentle, thoughtful man. He attended worship when he was able. On some days he attended Hope Church at Charmhaven because his children preferred their style of music. On other Sundays he attended our service.

   When we moved out of our old building and into the local primary school, Robert continued to attend. In fact he became more regular, generally attending fortnightly. Robert was always friendly, respectful of elderly people, polite and quiet.

   Robert has continued in weekly attendance, in assisting with driving elderly or seriously ill members of the congregation to nearby appointments and shopping requirements. He (and his partner's son and daughter) assist with weekly chair arrangements in the church building unless his back is so bad that he is unable. Robert is an invaluable and much loved member of the congregation.

   The Australian Authorities Become Aware Of Mr Anderson’s Presence In Australia

6. The Australian authorities became aware of Mr Anderson’s presence in Australia in 2012. On 4 August 2016, the Minister for Immigration and Border Protection Cancelled Mr Anderson’s visa on character grounds pursuant to section 501(2) of the Migration Act. However, on 8 December 2017, a Full Court of the Federal Court of Australia overturned the Minister’s cancellation decision. See Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200.

7. Before the reinstatement of his visa, Mr Anderson spent about 15 months in detention at the Villawood Detention Centre.

8. After his visa was reinstated, Mr Anderson legally changed his name to Robert Peter Anderson which is the identity under which he has been known since he returned to Australia in 1997.

   Mr Anderson Discovers his Indigenous Ancestry

9. In his evidence, Mr Anderson said that about a year ago he learned that his aunt, Mrs Peggy Anne Kleem had been recognised as an aboriginal. She had been made a member of the Albury and District Local Aboriginal Land Council. Mr Anderson explained that his Aunt, Mrs Kleem was the sister of his father. His paternal grand-father had married an indigenous woman who is of course Mr Anderson’s paternal grand-mother.

10. There is before the Tribunal, a new membership application form signed by Mr Anderson who is seeking to become a voting member of the Darkinjung Local Aboriginal Land Council. Mr Anderson said that no decision on his aboriginal status has been made.

    THE MEANING OF GOOD CHARACTER

11. The words “good character” are not defined in the Citizenship Act. However, in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432; [1996] FCA 1660 at [19] Lee J commented on the meaning of good character in the Citizenship Act. His Honour said:

    19. 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. (See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel (1961) AC 1090 per Ld Radcliffe at 1128-1129, Ld 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: In Re Davis [1947] HCA 53; (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

12. The Australian Government has published a document titled “Citizenship Policy” dated 1 June 2016 which gives guidance to decision-makers when exercising powers under the Citizenship Act. Chapter 11 of the Citizenship Policy deals with good character.

13. This Tribunal is not bound to apply Government policy. In Re Drake and Minister for Immigration (No. 2) (1979) 2 ALD 634, 644-45 per Brennan J, it was held that the Tribunal should apply Government policy unless a decision would lead to injustice. I intend to adhere to chapter 11 of the Citizenship Policy as its application in this instance would not lead to any injustice.

14. The relevant portions of Chapter 11 of the Citizenship Policy are as follows:

    Definition of good character

    The term ‘good character’ is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following 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.

    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.

    This broad definition means that 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 their migration and citizenship processes.

    In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President 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 and Minister for Immigration and Citizenship ([2011] AATA 304), Forgie DP found the Preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character ([2011] AATA 304 at [119]).

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

    After considering the text of the Preamble, Forgie DP stated ([2011] AATA 304 at [120]):

    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.

    The role of the citizenship decision maker is to assess, to the best of their ability, whether the applicant is of good character at the point of decision. Such an applicant is likely to uphold the pledge, should they be approved for citizenship.

    Australian values statement

    Another identification of community standards can be found in the Australian values statement. The Statement requires applicants to confirm that they will respect the Australian way of life and obey the laws of Australia before being granted a visa.

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

    While the values statement will not apply to 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 that apply to all, including those who have migrated to Australia.

    Characteristics of good character

    Drawing from the definition outlined in Definition of good character, an applicant of good character would:

    ·    respect and abide by the law in Australia and other countries

    ·    be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)

    ·   be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:

    ·    providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications

    ·   involvement in bogus marriage

    ·    concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship

    ·    involvement in Centrelink or Australian Tax Office fraud

    ·    giving false names and/or addresses to police

    ·    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

    ·    not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people

    ·    not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide

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

    ·   not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and

    ·    not be the subject of any verifiable information causing character doubts.

    This list is not exhaustive and should be considered in conjunction with Framework for making ‘good character’ decisions.

    CONSIDERATION

15. As I noted above, my task is to determine as at the date of this decision, whether I am satisfied that Mr Anderson is of good character.

    Mr Anderson’s 1991 Conviction

16. In March 1991, Mr Anderson was convicted, after pleading guilty of the serious crime of taking part in a conspiracy for the supply of a prohibited drug. After serving four and a half years of his sentence of imprisonment, Mr Anderson was deported to New Zealand on 30 April 1994.

17. From the documentary and oral evidence before the Tribunal, I find that since March 1991, Mr Anderson has not been convicted of a crime, not even of a road traffic offence.  There is no evidence of any drug taking on his part, nor of him re-engaging with members of motorcycle clubs.

18. In his evidence before the Tribunal, Mr Anderson said that he was sorry and suffered remorse owing to the commission of his crime of conspiracy involving drugs. He said that at that time his life was spiraling out of control. His wife was pregnant and he owed money to the motorcycle club.

19. From the evidence before me, since about 2004, Mr Anderson has been a loving step-father to Ms Joanne Doudle’s children.  Since returning to Australia in 1997 and right up to his workplace injury in 2010, Mr Anderson was employed undertaking skilled work. He is now a committed member of his Christian church.

20. Ms Anita Duffy who is a psychologist, assessed Mr Anderson and her report is dated 6 March 2018.  Ms Duffy assessed the probability of Mr Anderson reoffending as extremely low. Her report reads in part as follows:

    His accident in 2010 caused a considerable disruption to his health and he was unable to return to employment. Despite this he was closely involved in community activities, attended the Christian church and was the carer for his children, picking them up from school and sports when his partner was engaged in shift work. He has been an integral part of the family and his community, which researchers have shown are strong protective factors against further offending.

    Personality assessment shows Mr Anderson to exhibit a strong moral compass, self-control, work ethic, conscientiousness and responsibility, which are protective against further crime. His personality profile reflects a tendency to be socially conforming and dependable, thereby to adopt the values of those he respects and admires. In this case, his partner, her family, the church and community are his sources of support and admiration. He is dependent on his family and would be devastated if he had to leave them.

    Over the past two decades, Mr Anderson has displayed qualities of adherence to social norms, hard work and family values. He has not reoffended for nearly 30 years. Risk assessment using the measure of protective factors which reduce recidivism, including internal, motivational and external factors, shows an extremely low likelihood of return to crime. Factors such as his age and disability caused by his medical problems further lower the risk of criminal behaviour.

21. In my judgment, the chances of any recidivism on his part are extremely low.

22. If this was all that I had to consider, I would have no hesitation in deciding that I am satisfied that Mr Anderson is of good character.

    Mr Anderson’s Return To Australia

23. However, in 1997, Mr Anderson returned to Australia on a forged passport and did not disclose this forgery to the migration authorities. Put plainly, he told lies when re-entering Australia in 1997.

24. In his evidence, Mr Anderson was asked in cross-examination why he did not return to New Zealand after the death of his brother Jason in 2000. Mr Anderson said that he was employed, that he had another relationship, that his family was in Australia and that he had nothing to go back to in New Zealand.

25. Mr Anderson was asked whether he disclosed his criminal history to his partners. Mr Anderson said that he did disclose his criminal history and his use of a fraudulent passport to Ms Joanne Doudle.

26. In her evidence, Ms Doudle said that about eight months into their relationship, Mr Anderson did disclose his past crimes and his deportation from Australia. Ms Doudle said that this was about nine years ago and that it did not concern her.

27. Ms Doudle confirmed that Mr Anderson had told her of his past in paragraph 3 of her statutory declaration dated 29 January 2019. Ms Doudle wrote as follows:

    3. I have been aware of Robert’s past since we met but it did no concern me as no-one remains the same person that they were 30 years ago. Robert is the most honest person that I know. He hates drugs and constantly warns the children of the damage they cause.   

28. Ms Doudle said that in discussions with Mr Anderson she had said that she did not want to go to New Zealand as her family was in Australia.

29. Counsel for the Respondent referred me to what Deputy President Forgie had stated in Zheng and Minister for Immigration and Citizenship [2011] AATA 340 at [119]-[120].

30. Although some of the Deputy President’s words appear in the Citizenship Policy which I have quoted above, I reproduce the relevant portion here. Deputy President Forgie said:

    119. It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.  I gain some assistance in identifying what society considers good, right and proper from the Preamble to the Act. After recognising that Australian citizenship represents full and formal membership of the Australian community, the Preamble states that citizenship is a common bond, which involves reciprocal rights and obligations and unites all while respecting their diversity. The Preamble goes on to state that persons upon whom Australian citizenship is conferred:

    “… 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.”

    120. 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.  Keeping out of trouble is one way in which a person may show that he or she is of good character.  Doing good works and acts of kindness may be another.  How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another.  The ways are not finite.

1. Counsel for the Respondent also referred me to what Senior Member Morris had said in Mohamad and Minister for Immigration and Border Protection [2018] AATA 687, [38]-[39].

2. In this matter, the Applicant had not truthfully recorded all of his convictions on his application for Australian Citizenship by conferral. Senior Member Morris said:

   38. In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon stated, at [35]:

   The observance of truth in dealing with officials in migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications... Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.

   39. I believe that this principle also adheres when an eligible non-citizen is applying for Australian Citizenship. There is a reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.

3. I agree that the breaking of our migration laws by lying and using a fraudulent passport amounts to serious wrong-doing. As I wrote above, it is an offence if a person gains entry to Australia by presenting to an officer forged or false documents and making false or misleading statements.

4. In his evidence before me, Mr Anderson expressed sorrow and remorse for using a fraudulent passport to re-enter Australia.

5. Once one untruth is told, it often cascades into the telling of other lies. This is what doubtless occurred when Mr Anderson obtained a driving licence, a credit card and a medicare card. After all, especially in rural New South Wales, a driving licence facilitates employment and family life.

6. In his evidence before the Tribunal, Mr Anderson expressed sorrow and remorse for using a fraudulent passport when returning to Australia. I find that in 1997 he did not fully comprehend that his use of a fraudulent passport would mean that its documentary use in daily life would mean that he would continue living with this lie. I do not hold the view that the use of a fraudulent passport on re-entry to Australia extinguished his capacity to turn his life around and become a person of good character.

7. Over the last two decades, Mr Anderson has shown himself to be a person with enduring moral qualities. He has undertaken skilled work until his workplace injury in 2010 and he has been a loving and committed step-father to Ms Doudle’s two children. He has become a committed Christian and assists with church activities. Since his visa cancellation in 2016 which was subsequently overturned, his past wrong-doings are now in the public domain.

8. Having regard to all of the evidence before me, I find that I am satisfied that Mr Robert Peter Anderson is a person of good character.

   DECISION

9. The decision under review is set aside and the matter is remitted for reconsideration in accordance with the following direction that the Tribunal is satisfied that Mr Robert Peter Anderson is a person of good character. 

I certify that the preceding 78 (seventy-eight)paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

…...........................[sgd].................................

Associate

Dated: 25 February 2019

Date(s) of hearing:	04 February 2019
Counsel for the Applicant:	L Karp
Solicitors for the Respondent:	D Watson, Australian Government Solicitor