Aydin and Minister for Immigration and Citizenship

[2007] AATA 1567

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1567

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/253

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ilhan Aydin

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date20 July 2007

PlaceSydney

Decision  The decision under review is affirmed.

...................[Sgd]....................

Ms N Bell
  Senior Member  

IMMIGRATION AND CITIZENSHIP – refusal on grounds of character – character test – of good character – criminal record – decision affirmed.

Re Drake and Minister for Immigration and Ethnic Affairs (no. 2) (1979) 2 ALD 634

Australian Citizenship Act 1948

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Mr Aydin has a chequered past.  From 1983, when he was just 15 years old, to 2000, he was convicted of 46 separate offences ranging from drink driving and shoplifting through to drug trafficking and assault occasioning actual bodily harm.  However, Mr Aydin, who came to Australia from Turkey when he was six years old and knows no other home, wants to become an Australian citizen.

2.      The Minister for Immigration and Citizenship refused Mr Aydin’s application for citizenship because, on the basis of his criminal record, he considers Mr Aydin is not a person of good character.

issue

3. The sole issue for me to determine is raised by section 13 of the Australian Citizenship Act 1948. This Act, rather than the new Australian Citizenship Act 2007, applies because Mr Aydin lodged his application for citizenship in September 2006 and it was refused by the Minister for Immigration and Citizenship in January 2007, before the commencement of the new Act.

4. Section 13 of the old Act provides that the Minister may grant a certificate of Australian citizenship if the person is, among other things, of good character.

5.      The Australian Citizenship Instructions may guide a decision maker in his or her determinations (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[1]).  At paragraph 5.4.2 the Instructions note that, in most cases, evidence of an absence of good character would be in the form of a serious criminal record.  Relevantly, paragraph 5.4.7 of the Instructions also notes violent crimes and drug trafficking as serious offences that should be given “due weight” in assessment. Paragraph 5.4.11 urges decision makers to consider whether the crime was a “one off” occurrence that can now be considered out of character or whether repeated offences indicate a pattern of behaviour.

[1] (1979) 2 ALD 634

6.      Paragraph 5.4.14 notes that, while a person’s criminal record is relevant to assessment of character, it is the person’s behaviour and reputation at the time of the decision that is most relevant.  The paragraph notes that to establish a pattern of good behaviour and, therefore, good character a reasonable amount of time will need to have passed since the last conviction.  Paragraph 5.4.16 notes that stable employment, status in the community and activities that indicate contempt or respect for the law are also relevant factors.  Paragraph 5.4.17 notes that references from people such as employers, attesting to good character could demonstrate good reputation and that statutory declarations should be given substantially more weight. If further notes that declarations from referees who acknowledge the person’s criminal background and attest to a change in character since then, should be given considerable weight.

7.      I will consider the question of Mr Aydin’s character with the above factors in mind.

mr aydin’s character

8.      Mr Aydin’s criminal record is extensive, to say the least.  It spans 17 years and began with “Break, Enter and Steal” when he was 15 years old.  His criminal record of 46 convictions includes many driving and drink driving offences; a number of drug related offences including one of “Supply Prohibited Drug”; stealing and shoplifting offences; and, of most concern, convictions for “Use Unlawful Violence” and “Assault Occasioning Actual Bodily Harm” for which he was sentenced to 18 months imprisonment, reduced to 12 months on appeal.

9.      Mr Aydin does not dispute the accuracy of his criminal record as presented by the Minister.  However, he maintains his innocence in relation to his convictions for violent crimes.  While he acknowledged that he was legally represented at both his trial and his appeal, he is firm in his view that the evidence given by Crown witnesses was false and he was not at the scene of the assaults.  He has taken the matter up with the Independent Commission Against Corruption and with the New South Wales Ombudsman and awaits their investigation.

10.     Mr Aydin said that when he went to goal for 12 months he began to take heroin and became addicted.  He lived under the influence of that addiction until he decided, in 2000, to go to Turkey and do compulsory military service.  He said he did this with the express aim of getting off heroin and continued to use the drug right up until the airport, leaving for Turkey.  He had 90 Rohypnol, which had been prescribed for him by his psychiatrist, to help him get through withdrawal from heroin.  He said he joined the army in Turkey about two weeks after he arrived and was still going through withdrawal from heroin at that time.  He said the army was a hard but good place to be at that point because he had no time to himself and no opportunity to do anything else.  He said he has not used heroin since he left Australia for Turkey and avoids those people he knew when he was an addict.  He admitted, however, to smoking marijuana occasionally, saying that he last did so some six months ago when it was being passed around at a barbeque.

11.     Mr Aydin said that while he was in Turkey he met his wife and married.  She returned to Australia with him in 2002 and is now an Australian citizen.  She accompanied him to the hearing.  They wish to have a child and are currently taking part in the IVF program at Westmead Hospital.  They are also saving for the deposit on a house of their own and are living with Mr Aydin’s parents in order to save some money.  Mr Aydin said he has been in constant employment since his return to Australia and is currently working some 50 to 60 hours per week with Able Traffic Control and has had that job for more than 12 months.  He was in his previous job for 21 months and in the job before that for 9 months.  Mrs Aydin works part time.

12.     Mr Aydin provided a number of references from friends and employers.  Only two of these references make mention of his criminal record and both of those are from friends who have known Mr Aydin since childhood.  Both attest to the positive change in him over the last few years.  The two references from employers are glowing.  The remaining references are from friends, his general practitioner and a neighbour and are supportive.  Only the neighbour’s reference is in the form of a statutory declaration.

13.     I note that Mr Aydin has had previous periods free from criminal convictions, in particular between October 1986 and March 1990 – almost three and a half years.  He was remarkably candid in his admission that the other significant period free of criminal activity was largely due to his imprisonment.  His current conviction free period is continuing after nearly five years.

14.     In spite of his extensive criminal record, Mr Aydin impressed me as candid and genuine in his evidence in this application.  I am satisfied that he is seriously attempting to live a good and responsible life free of destructive or criminal activity.  He has, in this attempt, the support of his wife and a determination to start a family and establish a family home.  He is clearly successful in his employment and, with the exception of his indulgence in marijuana, appears to understand the need to abide by the law.

15.     However, for most of Mr Aydin’s adult life, he did not demonstrate these qualities.  His criminal record is remarkably long and includes, even without the crimes of violence he denies, some serious offences.  It takes time to change an entrenched pattern of behaviour and time to demonstrate a lasting change.  I consider that Mr Aydin has not yet demonstrated such a lasting change, although the reforms he has made so far are admirable.  I consider that the passage of some further time, during which Mr Aydin perseveres on his current path, will serve to establish his good character.  However, he has not, in view of his long history, reached that point yet.

16.     I commend Mr Aydin for the progress he has made so far and I encourage him to apply for citizenship again at a later date.  It may also assist him in such an application to have available references, in the form of statutory declarations, that note his history and the very significant changes he has made to his life.  Mr Aydin is to be commended for those changes.  I encourage him in his future efforts.

decision

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ..............[Sarah Sandstrom].........
  Associate

Date of Hearing  16 July 2007

Date of Decision  20 July 2007

Solicitor for the Respondent     Mr Eteuati