Avison and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 531

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 531

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/339

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WAYNE MASON AVISON

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date7 June 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision to reject an application by Wayne Mason Avison for Australian Citizenship.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

CITIZENSHIP – lengthy criminal history – some offences recent – not sufficient time passed to be satisfied of good character – decision to reject application for Australian Citizenship affirmed

Australian Citizenship Act 1948: s13(1)(f)

Migration Act 1958: s501

REASONS FOR DECISION

Deputy President Don Muller        

1. This is an application by Wayne Mason Avison for review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs (the Respondent) dated 20 April 2004 to refuse his application for a grant of Australian Citizenship. Mr. Avison’s application was refused on the basis that he did not satisfy the good character requirements within the meaning of that term in sub-section 13(1)(f) of the Australian Citizenship Act 1948 (the Act) because of his criminal record.

2.      At the hearing on 17 December 2004, Mr. Avison appeared on his own behalf and the Respondent was represented by Mr. D. Gallo of Blake Dawson Waldron.

3.      The Tribunal had before it the following documentary evidence:

Exhibit 1 – T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

Exhibit 2 – Supplementary T documents – Transcript of sentencing remarks by Mackenzie J in the Supreme Court of Queensland, 9 August 1989

Exhibit 3 – Further supplementary T documents – Notification of Decision under s.501(2) of the Migration Act 1958, to the Applicant

Exhibit 4 - Further supplementary T documents – outgoing and incoming movements of Applicant, Transcript of proceedings in Queensland District Court, 21.3.96

4.      The relevant legislation is contained in subsection 13(1)(f) of the Act.  It provides:

“s.13 Grant of Australian Citizenship

91)  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”

5.      The following matters are not in dispute and the Tribunal finds as follows:

(a)Mr. Avison was born in Wellington, New Zealand, on 30 August 1969

(b)He first entered Australia, in the company of his parents, on 29 June 1981, when he was 12 years old

(c)He currently holds a Subclass 444 Special Category Visa which entitles him to permanent residency in Australia.

(d)He initially lived with his parents in Melbourne where he went to school.

(e)He moved with his parents to Tasmania where he completed year 9 of school.  His schooldays ended when he punched the principal and got himself expelled.

(f)On 31 May 1985, he took a car from a used-car yard and went for a joyride.  He was given a “supervision order for 12 months”.  This event precipitated his leaving Tasmania.

(g)In 1986 he went to Melbourne where he obtained a job in a factory for 10 months.

(h)In 1987 his parents moved to Queensland and he decided to join them.  He obtained a job building footpaths.

(i)In 1987 he met his future wife, whom he married in 1991.  He has three children of that marriage.

(j)From 1987 he has had long periods of being unemployed.  He has had employment as a fibre-glasser (2 years), cleaning pig carcasses (2 months), tannery work, painting (8 months) and tree lopping (2 years).

(k)He separated from his wife in 2001.

(l)On 7 June 2004, he married a Thai national in Brisbane.  His wife was in Australia on a visitors visa.   He has applied, on her behalf, for a spouse visa.

6.      Mr. Avison has a lengthy criminal history.  The records show the following:

·31 May 1985 – Motor vehicle stealing (Tasmania) – Supervision order of 12 months.

·2 December 1986 – Break enter and steal (NSW) – Probation 12 months.

·8 May 1987 – Stealing; attempted stealing (2 charges); wilful and unlawful destruction of property – Probation 2 years.

·21 September 1987 – Break enter and steal (2 charges); attempted break and enter with intent; wilful and unlawful damage to property; stealing (4 charges); wilful and unlawful destruction of property in the night-time (2 charges) – Probation 3 years.

·9 November 1987 – In charge of a motor vehicle whilst under the influence of liquor or drug – Convicted and fined $300.

·1 June 1990 – Breach of Bail Act (Contempt) – Imprisonment 14 days.

·27 July 1990 – Steal with actual violence in company – Imprisonment 1 year.

·7 September 1990 – Breach probation order imposed on 21 September 1987 – Imprisonment 6 months on each charge, concurrent sentences.

·15 February 1993 – Produce dangerous drug; possession pipe used in connection with smoking dangerous drug; possession pipe used in connection with the administration of a dangerous drug – convicted and fined $900.

·7 July 1993 – Receiving job search allowance whilst working (2 charges) – Good behaviour bond, 2 years.

·3 May 1994 – Possession dangerous drug – Convicted and fined $400.

·5 September 1994 – Unlawful assault; wilful and unlawful damage to property – Convicted and fined $600.

·7 December 1994 – Breach of recognizance imposed on 7 July 1993 – Convicted and fined $600.

·21 March 1996 – Break and enter place and therein wilfully damage property – No conviction recorded, Community service 40 hours.

·27 September 1996 – Breach community service order imposed on 21 March 1996 – Imprisonment 6 months concurrent, wholly suspended 1 year.

·11 December 2000 – Wilful damage – Imprisonment 9 months, suspended 2 years.

·9 December 2002 – Behave in a disorderly manner; wilful damage to property without consent – Good behaviour bond 12 months.

7.      I should make particular mention of the offence noted above as having been committed on 21 March 1996.  The facts were that Mr. Avison was attempting to break into a video store through the roof of the store.  He fell through the roof onto a table and set off the alarm.  He broke the glass door of the store to escape.  However, the police had arrived and he was arrested.  He then broke the window of the police car.  The transcript of the sentencing proceedings indicates that Mr. Avison was sentenced to community service with no conviction recorded, because the sentencing judge was of the mistaken belief that Mr. Avison had no prior convictions.  It seems that no one enlightened the judge.

8.      Mr. Avison gave evidence at the Tribunal hearing.  The main points of his evidence were:

·He has had trouble obtaining work, especially between 1987 and 2000.  In the 16 years he was in Brisbane he only worked for a total of 7 years.

·He spent a lot of time out of work and developed a habit of “sitting around at home drinking and smoking pot”.

·He drank heavily between 1987 and 1996.

·He has not drunk alcohol since the incident in 1996 when he fell through the roof of the video store.

·He has made a lot of mistakes but he was not a career criminal.  He was a fool.  He was not a dangerous person.  He was stupid.

·He has now matured and “woken up to himself”.

9.      The Tribunal notes that the Departmental records show that:

·     On 2 July 1991, a delegate of the Respondent issued Mr. Avison with a warning that if he committed any further criminal offence he would be liable to be deported.

· On 20 May 2004 the Respondent issued a Notice of Intention to Cancel Mr. Avison’s Special Category visa 444, under section 501 of the Migration Act 1958 on the basis that he was not a person of good character.

·     The Respondent wrote to Mr. Avison on 14 September 2004 and informed him a decision had been made not to cancel his visa but warned him that any further conviction would lead to reconsideration of the visa cancellation.

10.     There is no doubt that Mr. Avison has not been a person of good character for a lengthy period of time.  He has a criminal record which stretches from 1985 to 2002.  He has been convicted on 17 occasions.

11.     The question for the Tribunal is whether Mr. Avison is now a person of good character.

12.     Mr. Avison’s most recent conviction was on 9 December 2002.  He was given a 12 months good behaviour bond.  That is, he was subject to some form of official supervision until 9 December 2003.

13.     In my view it is far too early to tell whether Mr. Avison has reformed.  His record is bad.  It would take many years of decent, honest and trouble-free living on his part before I would be satisfied that he is a person of good character.  I am certainly not so satisfied at this point in time.

14.     The decision to reject Mr. Avison’s application for Australian citizenship is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  17 December 2004
Date of Decision  7 June 2005
Counsel for the Applicant         Mr. Avison, himself
Solicitor for the Respondent     Blake Dawson Waldron