Austin and Minister for Immigration and Citizenship
[2007] AATA 1762
•14 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1762
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0537
GENERAL ADMINISTRATIVE DIVISION ) Re DEAN AUSTIN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal The Hon R N J Purvis, AM, QC, Deputy President Date14 September 2007
PlaceSydney
Decision The decision under review is set aside. The Application for Citizenship is referred back to the Respondent for further consideration. ..............................................
The Hon. R J Purvis AM QC
Deputy President
CATCHWORDS
MIGRATION – application for Australian citizenship – whether applicant is of good character – applicant found guilty of numerous offences – whether sufficient time has passed to be satisfied there has been a change in behaviour – decision under review is set aside.
LEGISLATION
Australian Citizenship Act 1948, Section 13
Australian Citizenship Instructions
Migration Act 1958, Section 501
CASE LAW
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Bates v Minister for Immigration and Multicultural Affairs [2007] AATA 29
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
REASONS FOR DECISION
14 September 2007 The Hon R N J Purvis, AM, QC, Deputy President THE APPLICATION
1. This is an application by Mr Dean Austin (“the Applicant”) seeking review of a decision made by a delegate of the Minister for Immigration and Citizenship (“the Respondent”) dated 13 February 2007, refusing Mr Austin’s Australian citizenship application. The refusal was made on the ground that Mr Austin was not of good character within the meaning of section 13(1)(f) of the Citizenship Act 1948 (“the Act”).
2. In the reasons for the adverse decision, the Respondent relevantly stated:
“Mr Austin has been found guilty of numerous criminal offences. These have taken place over the period 19 February 1990 to 10 May 2003.
Mr Austin’s constant repetition of criminal offences over this period of time indicates that he does not meet the good character requirement. These offences have resulted in Mr Austin being sentenced to imprisonment, placed on a good behaviour bond or fined.
Mr Austin has provided information on his application outlining these charges and also provided a statement explaining he is now reformed. I have considered the explanation, however given the number of offences and the severity of punishment imposed, I cannot be satisfied that he is of good character.”
3. The Application of Mr Austin for citizenship is to be considered anew by the Tribunal. The above extracts from the Respondent’s decision record are indicative of the circumstances that warrant further consideration by the Tribunal, particularly in light of the evidentiary material tendered at the hearing, and the submissions made by the legal representatives of the parties.
The Issue for Determination
4. The issue before the Tribunal is whether Mr Austin is of good character within the meaning of section13 (1)(f) of the Act.
Relevant Provisions, Statutory Provisions and Instructions
5. Section 13 of the Act provides;
Section 13: Grant of Australian citizenship
“(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:
(a) the person is a permanent resident;
(b) the person has attained the age of 18 years;
(c) the person understands the nature of the application;
(d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f) the person is of good character;
(g) the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j) if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.”
6.Chapter 5.4 of the Australian Citizenship Instructions relevantly provides that:
“5.4.1 Applicants for grant of Australian Citizenship under s 13(1) are required to be "of good character":
• If an applicant fails to satisfy the Minister’s delegate that s/he is of good character, the application cannot be approved (it must be deferred or refused, as appropriate).
• For other applications under s13, it is a policy requirement. Although policy cannot be applied inflexibly, such an applicant who is deemed to be not of good character would be approved only in the most exceptional cases.
5.4.2 The 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. It is the responsibility of the applicant to show that they are of good character. 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.
5.4.3 If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character. An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.
5.4.4 Assessment 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;
• according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and
• considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.
5.4.5 Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 - 5.4.15, if there is evidence that the applicant:
(a) has, at any time, been sentenced to:
- death;
- imprisonment for life;
- a term of imprisonment of 12 months or more;
- 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more….
5.4.7 Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.
5.4.9 Consider whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond. The existence of a bond may indicate that insufficient time has elapsed since the commission of the crime to establish the applicant's good character…
5.4.11 Consider whether a crime was a one-off occurrence that can now be considered "out of character", or whether the person's criminal record shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13 – 5.4.17).
5.4.13 Crimes committed by the applicant at a young age may be given less weight depending on the nature of the crime and the applicant's subsequent record. It may be considered that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.
5.4.14 A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
5.4.16 The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.
5.4.17 The applicant’s present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship…”
Factual Situation and Findings of Fact
7. Mr Austin was born in New Zealand on 7 July 1974. He first arrived in Australia with his parents and sister on 8 June 1981. Since then he has remained resident in Australia.
8. Mr Austin attended primary and secondary school completing year 10. He was still at school when he first offended.
9. When entering Australia, his father established a fire protection business. Mr Austin completed his apprenticeship as a qualified fitter in that business and worked in the field until 1998, when the sentence imposed in August 1998 commenced.
10. On returning to New South Wales on parole in 2000 – Mr Austin only served 18 months of his sentence in prison – he returned to work in his fathers business and completed a Fire Contractors License course. He is still employed in this business, but in a senior position. In addition to working with his father, Mr Austin has commenced his own venture developing residential town houses.
11. Mr Austin said that he was introduced to marijuana use by other students. He committed his earlier offences in aid of financing his usage. Once he was earning money, he had no need to offend, at least for a few years, at which time he began using cocaine and ecstasy. He became more addicted, and by 1998 was seriously in debt. He said that he attempted to traffic as a courier of drugs in 1998 in order to pay off his debts. In April 1998, he was charged with the offences later detailed in these reasons and, in August 1998, he was sentenced to six years imprisonment. The happening of this event was a rude awakening to him, and upon his release on bail and return to NSW, he began a drug rehabilitation course organised by the Salvation Army. He also underwent treatment with a psychologist. Whilst in prison, he undertook a substance abuse course. He has not used or trafficked in drugs since his arrest in April 1998.
12. In 2002, Mr Austin purchased his present home, and in March 2007 married a Brazilian lady in New Zealand whom he had first met in Sydney when she was there as a student. After the relationship began in 2004, Mr Austin undertook a Portuguese language course, and visited his future wife in Brazil. He remained there for six months, during which time they became engaged.
13. Mr Austin’s wife had, in 2006, applied for a ‘Fiancé Visa’. A delay occurred as the Respondent considered the character issue referrable to Mr Austin. However, the Respondent did not cancel Mr Austin’s permanent residence, and in due course the Fiancé visa was granted. Mrs Austin arrived in Australia in July 2007. Mr and Mrs Austin are presently living in his home on the Central Coast.
14. Mr Austin said that he has applied for citizenship as he has, “always considered myself to be an Australian”. His immediate family lives in Australia, his father and sister being Australian citizens. He regrets his past criminal conduct. He wants to be “recognised as a full member of the Australian community”. He realised, he said, that he made mistakes that he cannot change, however, he was able, and has changed for the future. He wants to be “a better person”.
15. Mr Austin impressed me as an honest man. He has a home, a wife, permanent employment and is developing a business of his own. He wants to contribute to the community. He wants to feel that he “belongs”.
Criminal Record of Mr Austin
16. Date Offence
16 March 1990 Stealing, Malicious Damage (2 Counts), Possess Implements
15 August 1990 Unlawful Use Passenger (2 Counts)
10 October 1991 Supply Prohibited Drug Possess Prohibited Drug
21 August 1998 Possess Prohibited drug
31 August 1998 Possess Quantity of Heroin with Intent to Sell/Supply
Posses MDMA with Intent
29 May 2003 Suspended Driver
Use/Allow Use of High – Beam on Oncoming Vehicle
Driver State False Name or Address
Furnish False Information
17. Mr Austin was 15 years old when he first offended. His most recent conviction occurred on 29 May 2003. He was then 28 years of age. There is no drug related offence since the conviction and his sentence to a term of imprisonment in 1998. It is relevant to note part of what was stated by the sentencing Judge in his reasons for sentence, namely:
“…It has to be said, of course, that although there are two counts because you are dealing with two different drugs, for sentencing purposes it is the one course of criminality, namely the act of unlawful participation in the distribution of a harmful prohibited substance within the community …
In summary, the material facts are that on 7 April 1998 your co-offender and yourself were arrested at the Perth domestic airport in possession of a large quantity of heroin and ecstasy tablets, having flown from Sydney with the intention of selling the drugs in Perth. When I say a large quantity it should be noted that the quantity particularly was referable to the ecstasy tablets rather than the heroin.
….
It needs to be said and said emphatically that drug trafficking is an offence which by virtue of its inherent seriousness and having regard to the protection of the community demands a custodial term.
It is conduct which requires the court to accord general deterrence paramount consideration. Matters personal only play a secondary role in the sentencing process. That is not to say, of course, that it is not necessary to look at and have regard to matters personal, but it is to say that general deterrence, specific deterrence and punishment are the paramount sentencing principles.
Your counsel… called in aid a number of witnesses… The burden of that evidence was that you had a significant drug problem and agreed to act as a courier on the occasion in question in order to repay drug debts out of a fear of the consequences to you if your inability to discharge your indebtedness was not covered; in other words that you acted under some sort of compulsion. The evidence also was to the effect that you have reached the stage where you are prepared to make a genuine effort towards your rehabilitation and have support in that regard…”
18. Mr Austin did not himself give evidence, a circumstance about which the Judge made adverse comments.
19. The traffic offences in May 2003 were committed at the same time, as each other, and were as a result of Mr Austin acting unwisely, spontaneously and without thought as to the reality that the false information would be easily discerned by the police. When he came to realise this, he furnished the correct information. But it was too late. He was properly charged with the offences to which he pleaded guilty. As he said in his evidence:
“… I was pulled over by a police radar check because I flashed my lights at oncoming lights to warn them. At that time, I knew that my licence had been automatically suspended because of loss of points. I panicked and gave false details about my name and address but then told the truth when they said they would take me to the police station. It was a stupid incident which I know should never have happened”.
Character
20. In his application for citizenship Mr Austin stated:
“Dear Sir/Madam,
Since my release from prison in July 2000 I have turned my life around. I have always been employed, have brought (sic) a home and I am currently engaged to my fiancé. Please take this into consideration when making your decision”.
21. Mr Austin married his fiancé this year, and is presently living with her in the home he acquired on the Central Coast of New South Wales.
22. Mr Austin’s father said that his son “is a changed person”. “He started off on the wrong foot. I think he learnt his lesson in jail”. He now wants a life, Mr Austin Senior said, beyond his convictions.
23. A long term friend, Mr Kirt Bartlewicz, gave evidence in support of Mr Austin at the time of the Perth hearing. He also gave evidence before the Tribunal. He became aware of his friend’s drug addiction and tried to warn him away from usage. He has not ever used drugs himself. He was aware of his friend undertaking a rehabilitation course and said that; “he gave up drugs entirely at that time”. He supports the application for citizenship as “a great thing for both him and his family since it would be an indication that he has put his past behind him and is a fully respected member of society.” His friend, Mr Bartlewicz, said that his friend; “has a lot to offer”.
24. As was stated in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at paragraph 8:
“the grant of Australian citizenship should be a privilege not bestowed lightly. Those to whom it is given should have evidenced in the past and display a willingness in the future to uphold the values of the community and make a positive contribution to the country,”
25. Since Mr Austin’s release from prison in 2000, he has made positive contributions to the community by way of obtaining further qualifications, maintaining constant employment, purchasing a home and starting his own business. He has recently married. He and his wife intend to start a family. The Tribunal is of the opinion, and so find, that Mr Austin “has turned his life around”. He has regretted his past and restored his character.
26. Regard is, as has been earlier indicated in these reasons, to be had to the Australian Citizenship Instructions, the relevant clauses of which have been set forth above. Mr Austin has a serious criminal record. But there is evidence, strong evidence, of good general conduct which except for the 2003 traffic offences extends over a period of seven years. From a community point of view, Mr Austin is now an achiever who should constructively contribute to its welfare.
27. Retaining his permanent residence may be seen as evidence of the Respondent not considering that Mr Austin was “not of good character” within the meaning of section 501 of the Migration Act 1958. After further considering the character of Mr Austin, a spouse visa was granted to his wife.
28. It is noted that the Tribunal in ReMlinar v Minister of Multicultural Affairs (1997) 48 ALD 771 and in Bates v Minister for Immigration and Multicultural Affairs (2007) AATA 29, said that the citizenship standard of good character/conduct should be higher for citizenship cases than for section 501 migration matters. This it was said is because of the “importance of citizenship” and the “greater responsibilities and privileges attached to it”. I do not agree. If the words are to be given the construction ascribed to them in Irving vMinister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, than whichever legislation is being considered the words must have ascribed to them the same meaning. This subject to the strictures which may be relevant from the Citizenship Instructions themselves and the Act. To find otherwise would be to construe the legislative provisions other than as they appear.
29. It is the prerequisites of section 13 of the Act other than character that bring into play the aspects pertaining to responsibilities and privileges.
30. In the present matter, however, I am satisfied that even be there a higher standard, it is now met by Mr Austin.
31. Caution is certainly to be exercised in considering whether sufficient time has passed in order to be satisfied that there has been a change in behaviour and that it will be maintained. I am of the opinion that this is so. Sufficient time has elapsed to show that deferral of consideration is not a relevant factor. There is not an anticipated change of circumstances, only a continuance of the presently existing favourable general conduct.
32. A pattern of good behaviour, which is one free of drug use and dealing, has been established. The 2003 traffic offences, whilst not unimportant, evidence thoughtlessness in a panic situation, rather than a resurgence of criminality. I do not accept as was submitted on behalf of the Respondent, that the 2003 offences were consequent upon a conscious disregard for the law or a propensity to lie. Mr Austin was not honest in what he first said to the police officers. He was aware that his licence had been suspended on account of traffic infringements. I do not consider, however, that this series of events evidences a reversion to his pre−1998 propensities, or likelihood to act at this time in a manner that is antisocial.
33. While satisfied that the drug convictions reflect adversely on the character of Mr Austin, I am of the opinion that he has demonstrated that he is at this time of good character.
34. The decision under review is set aside. The Application for citizenship is referred back to the Respondent for further consideration.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RNJ Purvis AM, QC, Deputy President.
Signed: [sgd]
Felicia Daniele, AssociateDate/s of Hearing: 28 August 2007
Date of Decision: 14 September 2007
Counsel for the Applicant:
Solicitor for the Applicant: Mr Michael Jones
Counsel for the Respondent:
Solicitor for the Respondent: Mr Anthony Cox
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