Austin and Minister for Immigration and Multicultural Affairs

[2006] AATA 228

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 228

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/524

GENERAL ADMINISTRATIVE DIVISION		)
Re		JARED ROGER AUSTIN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Senior Member B J McCabe

Date28 February 2006

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with a direction that the applicant is a person of good character.

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

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - citizenship – applicant born in New Zealand – criminal convictions in New Zealand – whether applicant is a person of good character

Australian Citizenship Act 1948 ss 10B(1), 10B(1A)

WRITTEN REASONS FOR ORAL DECISION

10 March 2006 Deputy President P E Hack SC
Senior Member B J McCabe         

1.The applicant, Jared Roger Austin, was born in New Zealand on 9 January 1981. His father was an Australian citizen. By virtue of his father’s citizenship Mr Austin is entitled to be registered as an Australian citizen by virtue of section 10B(1) of the Australian Citizenship Act 1948. However by virtue of sub-section (1A) of that section he must not be registered unless the Minister is satisfied that he is of good character.

2.The Minister’s delegate was not so satisfied and Mr Austin seeks a review in this Tribunal of that decision.

3.It is said on behalf of the Minister that Mr Austin is not of good character because of a number of criminal convictions that he has. Those convictions are as follows,

a.on 9 July 1998 when Mr Austin was aged 17 years he was convicted in the District Court at Wellington, New Zealand of disorderly behaviour occurring on 5 July 1998. He was fined $250. His explanation of that offence, which was not challenged, was that he and a friend had had a dispute with a taxi driver about whether a fare had been paid. The taxi driver took them to a police station where Mr Austin was arrested and charged with disorderly conduct for refusing to get out of the taxi;

b.on 18 December 1998 Mr Austin shot a man following a fracas involving others. On 5 November 1999 in the High Court at Wellington he was acquitted of a charge of attempted murder but convicted of discharging a firearm with intent to do grievous bodily harm. He was sentenced to two years imprisonment, suspended for a period of two years and put on periodic detention (a form of community service) for nine months;

c.in the meantime on 17 May 1999 in the District Court at Wellington he was convicted of the offence of obstructing police on 30 March 1999.  He was fined $250. He says, and we accept, that he was arrested at an international cricket match for, in effect, sticking up for another person being arrested;

d.Mr Austin next was in trouble with the law on 7 November 2001 when he was convicted by the District Court at Wellington of three offences of common assault, said to have been committed on 15 March 2001. These convictions arose out of an incident when he and a friend had a run-in with a number of other youths. He and his friend and one of the other group were charged because he and his friend got the better of the fight;

e.finally on 9 August 2002 in the District Court at Wellington Mr Austin was convicted of an offence of common assault and escaping lawful custody on 16 June 2002. He was fined a total of $500.

4.Since that time Mr Austin has avoided all trouble with the law.

5.We are conscious of the fact that very careful consideration must be given to the question of whether an applicant for citizenship is of good character, a fortiori, where the applicant has been convicted of a number of criminal offences. The Australian Citizenship Instructions, which we have had regard to, make reference in paragraph 5.4.2 to a presumption of good character unless there is evidence to the contrary. Here, the convictions constitute that evidence.

6.In approaching this matter it seems to us that this is a case where Mr Austin, when younger, committed a number of relatively minor offences and one quite serious offence. Mr. Austin was, at the time of the offences, a troubled character. But we think it proper to have regard to the totality of the picture between then and now. In that regard we note that paragraphs 5.4.11 and 5.4.13 of the Australian Citizenship Instructions deal with a situation such as the present. Paragraph 5.4.11 is in these terms,

“Consider whether a crime was a one-off occurrence that can now be considered ‘out of character’, …”

Paragraph 5.4.13 provides,

“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 has 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.”

7.In our view Mr Austin has matured considerably and may now be regarded as a law-abiding citizen. We were most impressed with him when he gave his evidence. Mr Austin did not attempt to downplay the seriousness of the shooting offence and expressed what we regarded as genuine remorse. We take into account the fact that he has been in stable employment for the past two years.

8.We should say that we found the evidence of Mr Hilliard to be most helpful. Mr Hilliard is Mr Austin’s foreman and has had almost daily contact with Mr Austin in that environment for a period in the order of two years. He regards Mr Austin as a good worker; he considers him to be honest and regards him, despite the convictions, to be of good character. Indeed he went so far as to say that when he found out about the fact and detail of Mr Austin’s convictions that he regarded them as being out of character for the person that he knew.

9.To similar effect was the evidence of Mr Austin’s mother, Ms. Jackson, and his girlfriend, Ms Wilson.

10.The respondent submitted that Mr Austin had a history of violent behaviour and an evident lack of contrition which meant that he could not be regarded as being of good character. We do not accept that that is so.

11.It is the case that Mr Austin has convictions for offences of violence (as that term is used in classifying criminal offences) but only one of them is of any significance. Without the serious offence it seems right to characterise Mr Austin as someone who was a nuisance to the police in Wellington. But having regard to the explanations given by Mr Austin in relation to the minor offences, which we accept, it does not seem to us to be appropriate to say that he has a history of violent behaviour.

12.The submission that Mr Austin lacked contrition was based upon the fact that, so it was said, Mr Austin sought to minimize the seriousness of his criminal conduct. As we have said we accept that the circumstances of the minor offences are as explained by Mr Austin (in Exhibit 3 and in his oral evidence at the hearing). But we also recognise that Mr Austin, in his oral evidence and in his written material, has genuinely faced up to the stupidity of his earlier conduct.

13.We are comfortably satisfied that Mr Austin has now realised the error of his earlier ways and is capable of leading a productive and useful life as a citizen of this country.

14.Accordingly we set aside the decision under review and remit the matter to the respondent for reconsideration in accordance with a direction that the applicant is a person of good character.

15.We will certify, pursuant to regulation 19(7) of the Administrative Appeals Tribunal Regulations, that the proceedings have terminated in a manner favourable to the applicant.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Senior Member B J McCabe

Signed:         .....................................................................................
  Robert Hayes, Associate

Date of Hearing  28 February 2006
Date of Decision  10 March 2006
Counsel for the Applicant         Mr D Kent
Solicitor for the Applicant          Hall Payne Lawyers
Solicitor for the Respondent    Mr T Eteuati, Clayton Utz Lawyers