Back and Minister for Immigration, Multicultural and Indigenous a Ffairs
[2003] AATA 1105
•4 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1105
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/115
GENERAL ADMINISTRATIVE DIVISION ) Re LORRAINE JOY BACK Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC (Deputy President) Date4 November 2003
PlaceBrisbane
Decision The decision under review is affirmed.
(Sgd) Deputy President
CATCHWORDS
CITIZENSHIP – applicant resident in Australia for 30 years - whether applicant of good character – criminal behaviour - imprisonment.
Australian Citizenship Act 1948 – s13
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321Re Kaur and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 228
Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87Re Mliner and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
REASONS FOR DECISION
4 November 2003 The Hon C R Wright QC (Deputy President) Background
1. The applicant Lorraine Joy Back was born on 13 April 1957 at Helensville in New Zealand. She had a difficult and unhappy childhood. In December 1975 she married her husband Greg. They relocated to the Mornington Peninsula in Victoria with their young son in 1976. Daughters were born to them in 1978 and 1983.. The children have now grown up and are making their own way in life. They remain very close to their mother. At the present time the applicant resides with her husband in Queensland.
2. In the late 1980’s or early 1990’s the applicant commenced work as a customer service officer with the Queensland Department of Transport at Nambour. She continued in that employment for a period of 5 or 6 years until she was suspended as the result of criminal activity.
3. As a consequence of this criminal activity she was charged with several offences and, on 15 August 1997, was convicted of 2 counts of unlawful possession and 2 of false pretences which were described by Justice McPherson of the Queensland Court of Appeal in delivering the judgment of the court rejecting the applicant’s appeal against sentence in the following terms:
“Lorraine Back was convicted after a trial in the District Court of two counts of unlawful possession of a motor vehicle contrary to s408A(1)(b) of the Criminal Code and two counts of obtaining by false pretences contrary to s427 of the Code. She was sentenced to a term of imprisonment of three years, to be suspended for three years after she had served 12 months of it.
Her original appeal against conviction has not been pursued and indeed we struck it out at counsel’s invitation at the beginning of the hearing of this application. What is left now is an application for leave to appeal against the sentence I have mentioned.
The circumstances of the offences are as follows. The applicant was an employee of the Nambour office of the Department of Transport. She had access to the computers used in that Department in order to record registrations of vehicles and changes of ownership, and so on. In 1994 a vehicle belonging to a particular individual was stolen, or received after being stolen, by the applicant’s husband. Using her access to the Departmental computer which she enjoyed as an employee, the applicant registered the vehicle under particulars from another vehicle, the registration of which had been cancelled earlier. That was part of the history of the offence in count 1 in the indictment of which she was convicted.
After entering the registration particulars of the vehicle in her name she sold it to a dealer in Nambour for $9,500, that being the offence charged against her in Count 2 of which she was convicted.
A similar procedure was followed with respect to another vehicle stolen in about 1995, which was the subject of count 4. In this instance the engine number was altered after a chassis belonging to another vehicle had been written off in an accident in March 1995. That vehicle was also registered in the applicant’s name in about July 1995.
Count 7 of which she was convicted was another instance of false pretences committed by the applicant. The engine in this instance came from a vehicle said to have been stolen from a Mrs Gork. On this occasion another vehicle registration was also cancelled and the engine number was used to provide false particulars for registration of the engine or vehicle to which I have referred. That information too was obtained by the applicant from departmental records.
The reconstituted vehicle with the false engine number or registration was later sold to a Mr Tregaskis. It may be said that, in relation to that count which, as I have said, was count 7, her husband was convicted of the offence of stealing or receiving it in count 6 of the same indictment; but the applicant was acquitted in respect of that particular charge.
It is evident from what I have said that a criminal enterprise involving some degree of sophistication was being conducted by the applicant and her husband, in which she used her access to Transport Department records and her ability to alter them in order to facilitate offences that were being committed by him or by both of them. Her husband was, like her, sentenced to a term of imprisonment of three years, but he did not receive the benefit of a suspension of that sentence as she did after serving 12 months.”
4. The District Court Judge, who originally sentenced the applicant in respect of the crimes mentioned by Justice McPherson, also sentenced the applicant in respect of 2 counts of forgery committed on 15 January 1993 and 20 January 1993, respectively to which she pleaded guilty on 28 October 1997. He imposed a composite sentence of 18 months imprisonment to be suspended for a period of 3 years after the applicant had served 6 months. This sentence was served concurrently with the previously imposed sentences for unlawful possession of a motor vehicle and obtaining goods by false pretences.
5. In respect of these criminal offences the applicant spent nearly 12 months in prison.
The Application for Review
6. On 14 October 2001 both the applicant and her husband applied for Australian citizenship. Each application was rejected by the Minister’s delegate and both applicants then applied to the AAT for review of those decisions. The applications for review were scheduled to be heard in Brisbane on 11 September 2003, but Mr Back’s application was withdrawn prior to the hearing. Mrs Back’s application proceeded as planned. She was represented by Ms Agnes Kemenes of Four Corners Migration Consultancy. The respondent was represented by Mr Domenic Gallo of Blake Dawson Waldron, Solicitors. Mrs Back gave oral evidence and in addition nineteen documentary exhibits were received into evidence. At the conclusion of the hearing Mr Gallo made oral submissions and leave was given for Ms Kemenes to lodge written submissions by 18 September. These submissions have now been received. Ms Kemenes also wrote requesting leave to file further exhibits viz, two statutory declarations by Mrs Sue Griffiths. As Mr Gallo did not object and did not seek to cross examine Mrs Griffiths upon her declarations they are admitted into evidence and will be marked as Exhibits “T” and “U”.
7. The applicant’s citizenship application was rejected by the primary decision-maker on the ground that she had not shown that she was a person of “good character”. That an applicant for citizenship must satisfy the Minister that he or she is a person of “good” character is required by s13(1)(f) of the Australian Citizenship Act 1948.
8. Unlike s501 of the Migration Act 1958 which by subsection (1) reserves a discretion to the Minister to grant a visa to an applicant even though that applicant may have failed to pass the character test, section 13 of the Australian Citizenship Act reserves to the Minister a discretion to grant citizenship to an applicant only if the applicant has satisfied the Minister that he or she possesses the attributes listed in s13(1)(a) to (f) inclusive.
9. Section 13(1) lists 9 separate personal preconditions, which must exist in respect of any applicant before the Minister’s discretion can arise. Section 13(1A) lists an additional precondition as to residency. Sections 13(2)-(8) inclusive list a number of circumstances in which some of the specific preconditions enunciated in s13(1) may not apply. None of these are relevant to the present case. Sections 13(9)-(9E) give the Minister certain discretions in relation to children and section 3(11) and (11A) list certain circumstances in which criminal activity results in an absolute bar to citizenship. The remaining subsections in section 13 deal with matters of procedure or interpretation.
10. No provision of the Australian Citizenship Act confers a discretion on the Minister, either expressly or by implication to waive the pre-requisite specified in section 13(1)(f) that an applicant for citizenship must satisfy the Minister that he or she is a “person of good character” before the Minister’s discretion to grant citizenship is enlivened.
11. This distinction between s501 of the Migration Act and the relevant provisions of the Australian Citizenship Act is important in assessing outcomes of several of the decisions which were referred to by the applicant’s representative in support of the applicant’s case. The distinction between the two legislative approaches may be summed up compendiously as follows – there is discretionary power to grant a visa to an applicant who is not of good character. There is no discretion to grant citizenship to an applicant who is not of good character.
12. This does not mean that the concept of “good character” as used in both Acts is not the same in each case. Indeed I can see no proper basis for making a distinction between the use of those words in either legislative provision. Whilst the meaning of “good character” is not defined in either of the Acts, or indeed in any other legislative source of which I am aware, it is plain enough that the guidance provided by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94-5 in the following passage, represents one of the most useful approaches to the concept.
“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 while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR 455 per Miles CJ at FLR 459-60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliff at 1128-9, Lord 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 Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan Per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
13. The views of Lee J in Irvingwere endorsed by the Full Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 and also in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321. In Goldie the following passage appears in the Court’s reasons for judgment:
“Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.”
14. It is of particular significance in the context of the material presented on the applicant’s behalf in the present case to bear in mind the distinction made both in Irving and Goldie, that the good standing or repute of an applicant in the eyes of his or her friends, relatives, neighbours or employers does not provide the ultimate touchstone for character assessment.
15. Such individual appraisals by persons well known to the applicant will often be relevant, but the weight of any such appraisal will normally be found in the detail which it provides of specific activities involving the applicant which can be recognised by the Tribunal as indicating present good character (cf Re Kaur and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 228, Senior Member Kiosoglous at paragraph 118). A mere untested written reference will rarely have a great deal of weight and, as a consequence, I have a certain amount of difficulty with what is said paragraph 4.8.28 of the Citizenship Instructions. It is the enduring moral qualities as assessed by the Tribunal on the basis of evidence presented which will determine the issue (see Deputy President McMahon in Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87).
16. I agree with the opinion of Deputy President D Chappell in Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 where he said at paragraph 17:
“`Good character’ in s13 should be given the same meaning as it is in s501 of the Migration Act 1958 (Cth) (the Migration Act): Re Hamwi and Department of Immigration and Ethnic Affairs (AAT, No 9639, DP McMahon, 25 July 1994, unreported); Re Naumovski and Minister for Immigration and Ethnic Affairs (AATA, 9815, DP McMahon, 4 November 1994, unreported) and Re PE and Department of Immigration and Ethnic Affairs (AAT, No. 9990, DP Breen, 6 February 1995, unreported). The standard of good character should be even higher for citizenship cases than s501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it. Mr Smith conceded that hardship to the applicant (as noted in the ACI) is a relevant factor when exercising discretion, but is not strong enough here to warrant prejudging the final outcome of the criminal matter by granting citizenship.”
The Evidence
17. The applicant says that after being released from prison she realised that she needed to change her lifestyle and she concluded that she could use her experience to help others. She also says that she felt sick and humiliated by the grief which she had caused to her children, who had to endure the shame and embarrassment of her being charged and imprisoned. She says she understands the seriousness of her criminal conduct and realises that there is no excuse for what she did.
18. In 1998 the applicant enrolled in the Queensland TAFE for the Diploma of Applied Science (Community and Human Service). This was a 2-year course, which she completed successfully and obtained her Diploma on 12 December 2000. A year later she received a Certificate IV in Community Services (Youth Work) from the Cooloola Sunshine Institute of TAFE. She also holds a number of certificates relating to her involvement with youth and community services over the last 2 or 3 years. (see Exhibit “Q”)
19. The applicant sought and obtained work as a counsellor dealing with young people at risk of leaving school and ceasing their education prematurely at the Maroochydore High School. Since then the applicant says she has been working for the Noosa Youth Service Inc. providing assistance, support and counselling to homeless and disadvantaged youngsters. In a letter dated 21 July 2003, Mrs Sue Griffiths, the Manager of Noosa Youth Services Inc. says “Lorraine has a secure and long-term future with Noosa Youth Service, her contribution to our organisation and our local community has been beyond expectation”.. Prior to her employment with Noosa Youth Services Inc. the applicant disclosed her criminal history to her then prospective employers. This is confirmed by Mrs Griffiths in her Statutory Declaration (Exhibit “U”).
20. The evidence of the applicant, Mrs Griffiths and the other friends, colleagues and associates who took the trouble to provide the written references contained in Exhibits “E” to “P” inclusive, persuade me that the applicant has a genuine desire to keep out of further trouble and to follow a vocation assisting young people who are socially disadvantaged and at risk. I am further satisfied that she is held in high regard by her referees who believe her to be a valuable and contributing member of society.
21. The applicant has lived in Australia for nearly 30 years and she regards this country as her home. There are however 3 issues which cause me concern. The first of these is obvious enough. The applicant’s criminal behaviour unarguably caused her to become a person who was not of good character upon her detection, conviction and punishment for the offences referred to earlier in these reasons. Such a conclusion is in accord both with the relevant policy contained in the Australian Citizenship Instructions and common sense. There is no need to refer to the Instructions in detail – they are set out in Exhibit “A” (the T documents) and also in the respondent’s Statement of Facts and Contentions.
22. A finding therefore that the applicant was not properly to be regarded as a person of good character, until at least her discharge from prison, is inevitable. This reasoning would appear to be at the heart of the provisions of s13(11)(b) of the Australian Citizenship Act 1948:
“The Minister shall not grant a certificate of Australian citizenship to a person under subsection 91), (9), (9B) or (9E):
…
(b)during any period during which the person is confined to a prison in Australia.”
23. This leads me to the second issue of concern. Has the applicant been shown to be a person of good character by reason of her rehabilitation and redemption or for any other reason since 1998? This necessitates consideration of a further statutory limitation upon the grant of a citizenship certificate, which appears to me to have relevance to the present case. It is s13(11)(d) which says:
“The Minister shall not grant a certificate of Australian citizenship to a person under subsection 91), (9), (9B) or (9E):
…
(d)if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or upon licence to be at large—during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole of that sentence, or the whole or a part of the remainder of that sentence, as the case requires.”
24. The first sentences in respect of the offences for which the applicant was convicted were imposed on 15 August 1997. The period of suspension of the balance of the sentence of 3 years was also 3 years. This 3 year suspension period appears to me to have been imposed so as to run as from the date of completion of the applicant’s actual term of incarceration i.e about 15 August 1998. The applicant did say that “I actually spent nearly 12 months in gaol”, so I infer that she received some short period of remission for good behaviour. Assuming in the applicant’s favour that this remission period could have been anything up to 3 months this would mean that s13(11)(d) would have rendered it impossible for her to obtain a grant of citizenship until at least 16 August 2001.
25. Mr Gallo submitted that it is only the applicant’s conduct since the expiration of the suspension period which should be considered in determining whether she is now a person of “good character”, but I cannot agree with this. Certainly she could not have obtained a certificate of citizenship before that date, and no doubt, the underlying rationale for s13(11)(d) may, in whole or part, be found in the proposition that a current sentence whether being served or suspended prevents the offender’s assessment as a person of “good character”, but this is not what the Act actually says. It merely prevents the grant of a certificate until the sentence has been completed.
26. It should be noted that the applicant is not a “serious repeat offender” within the meaning of s13(11A) and consequently does not face the extended period of certificate disqualification provided for in s13(11)(ca).
27. Notwithstanding the views I have just expressed, I think it is clear enough that the Tribunal must consider carefully those factors which are claimed to have transformed a bad character or resurrected a good character to the standard or level required for satisfaction of s13(1)(f).
28. This brings me to a consideration of the third issue of concern. When completing her application for citizenship the applicant was asked in the section headed “Character” whether she or her child had been convicted of any offences and whether she had been confined to prison. She answered “Yes” to both questions. She was then asked to “give details of ALL occurrences”, including the name of the court, the offence, the sentence received, relevant dates and “to whom it applies (yourself or name of child)”. To this request she wrote “Maroochydore District Court 2 x unlawful use of a motor vehicle. 2 x false pretences, 3 years suspended after 12 months from 15.08.1997 to 30.07.1998 applies to myself”.
29. It will be noted that the first 2 offences referred to have been misdescribed as unlawful “use” rather than unlawful “possession”, but of itself this appears inconsequential. However, more to the point, the applicant has failed altogether to mention or give details of the 2 forgery charges which attracted a partially suspended sentence of 18 months imprisonment. The applicant attempted to explain this omission by saying that the sentences on all charges were served concurrently and, in any event “I believed the convictions would be followed up and all convictions would be found by the Department”.
30. Her attention was also drawn to Exhibit “R” (T documents in her husband’s application to review) where, in the “Character” section she, on his behalf had provided details of his criminal background in her own handwriting in which “2 x unlawful use of a motor vehicle, and 2 x false pretences” were listed as his only criminal history. In fact Mr Back had numerous additional convictions which were not mentioned including, handling stolen goods and driving whilst disqualified (1979) culpable driving (1977), driving under the influence of liquor (1984), perjury (2 charges 1992) and false pretences (8 charges 1992).
31. I regret to say that I find the applicant’s explanation for the omissions of detail in both her and her husband’s criminal histories completely unconvincing. I believe that she was aware of the nature and extent of her husband’s other convictions and that, in both instances, she was deliberately down playing their past unlawful conduct with a view to enhancing their prospects of securing citizenship. As a consequence both applications were misleading in a material respect and in my opinion this finding reflects adversely upon the applicant’s present character.
32. It is my opinion that the applicant has not yet reached the point where it can be said that she is now a person of good character. Unless and until she is able to satisfy a relevant Tribunal or the Minister’s delegate of this fact, she does not satisfy the character requirements of s13(1)(f).
33. There is no evidence that the applicant’s present entitlement to reside in Australia is under threat so her apprehension that she faces imminent expulsion seems to be misconceived. Nor is there any reason to suppose that the passage of a further 12 month period will, as a matter of probability, result in a favourable assessment of the present character issues in her favour. Therefore it seems to me that her application should not be deferred under the enabling provisions of section 14 or 14A, but rather, should be dismissed.
34. Accordingly, the application to review fails and the decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)
Signed: Sarah Oliver
AssociateDate of Hearing 11 September 2003
Date of Decision 4 November 2003
For the Applicant Ms Kemenes, Four Corners Migration
Solicitor for the Respondent Mr Domenic Gallo, Blake Dawson Waldron
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