Bali and Minister for Immigration and Citizenship

[2007] AATA 1600

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1600

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/0977

GENERAL ADMINISTRATIVE DIVISION        )

Re             Nigel Nilesh MANI

(now known as: Ryan Yash BALI)

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date30 July 2007

PlaceSydney

DecisionThe decision under review is affirmed.

.....................[sgd].........................

Professor GD Walker
  Deputy President

CATCHWORDS

CITIZENSHIP – applicant applied for Australian citizenship – applicant refused on character grounds – applicant has been convicted of a number of criminal offences – applicant failed to disclose his criminal convictions on his application form – insufficient time has elapsed since last offence to establish that applicant is of good character – decision under review affirmed.

RELEVANT ACT/S:

Australian Citizenship Act 1948 (Cth): s 13

Australian Citizenship Act 2007 (Cth): ss 21, 52

Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth): ss 5B, 7

Australian Citizenship Instructions: Chapter 5.4

Crimes (Appeal and Review) Act 2001 (NSW): Part 2

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CITATIONS

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

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REASONS FOR DECISION

30 July 2007	Professor GD Walker, Deputy President
Summary

1.      The applicant applied for Australian citizenship on 11 May 2005 but was refused because, having a serious criminal record, he failed to demonstrate that he fulfilled the character requirements of the Australian Citizenship Act 1948 (Cth) (the “Old Act”). On 27 July 2006 he applied to this tribunal for review of that decision.

2. At the hearing, the applicant appeared in person, and the respondent was represented by Mr Tigiilagi Eteuati of Clayton Utz. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person.

Applicable law

3.      A new citizenship act, the Australian Citizenship Act 2007 (Cth) (“New Act”), commenced on 1 July 2007. The effect of subsection 7(2) of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (“Transitionals and Consequentials Act”) is that if an application made under section 13 of the Old Act was undecided at the commencement of the New Act then it is taken to be an application made under section 21 of the New Act. It should also be noted that the effect of 5B(1) of the Transitional and Consequentials Act is that the applicant would satisfy the residence requirement under the New Act.

4.      The tribunal has jurisdiction to review the decision of the delegate pursuant to s 52(1)(b) of the New Act.  

5.      Section 21(2)(h) of the New Act relevantly provides:

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(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

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(h)   is of good character at the time of the Minister’s decision on the application.

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6.      In determining whether an applicant is of good character for the purposes of s 21(2)(h) of the Act, decision-makers (including the tribunal) may be guided by the Australian Citizenship Instructions (ACI).  Decision-makers will ordinarily apply policy such as the ACI unless the policy is unlawful or its application produces an unjust decision in the circumstances (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

7.      Chapter 5.4 of the ACI guides decision-makers in determining whether an applicant is of good character as required by s 21(2)(h) of the Act.  In particular:

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5.4.2The 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.

5.4.3If 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.

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Basic facts

8.      Nigel Nilesh Mani was born in Fiji on 7 March 1983 and is a citizen of that country.  He arrived in Australia with his family on 2 November 1991 and has remained here ever since, except for a month he spent in Fiji in 2004.

9.      On 6 June 2006, he changed his name to Ryan Yash Bali and is now known by that name (Exhibit A1).  In 2005 and 2006, he was convicted and fined for a number of offences and on 24 March 2006, he was placed on a two-year bond for the offence of making a false instrument.

10. Mr Bali’s criminal record printout (T pp49-52) is not altogether easy to interpret, as a number of his convictions were annulled under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW).  On some of those charges, he was later re-charged and subsequently fined.

11.     In particular, he was convicted on 22 February 2005 for stealing property as a clerk or servant to a value of less than $2,000 and fined $1,000.  He had been charged for that offence on 20 August 2001.  That conviction and fine, however, were annulled on 8 August 2005 and the matter is noted as having been referred to Mount Druitt Local Area Command (LAC).  In the sentence column appears the notation “result not available”.

12.     That charge, Mr Bali explained, arose from a theft at a company called Intensity Arcade Games, apparently part of the Greater Union group, and which carried on business at Ryde.  Mr Bali said he had never worked for Intensity, for Greater Union or for that matter at Ryde at all and had asked his solicitor to look into the matter.  The conviction had first appeared on his record when he was to attend court on a charge of possessing a prohibited drug.  He maintained that the conviction did not relate to him, but to somebody else.  The fact that the record shows that no fingerprints were taken in relation to that offence lends credibility to his claim.  As the criminal history does not show that the applicant was ever re-convicted on that charge, I do not think it should be taken into account.

13.     There is no doubt, however, that Mr Bali was convicted of the following significant offences:

§On 12 December 2005, he was convicted of possessing a prohibited drug and fined $300.

§On 12 December 2005, he was convicted of taking and driving a conveyance without the consent of the owner and driving while suspended, being fined $1,000 on each count.

§On 24 March 2006, he was convicted of making a false instrument and placed on a bond for two years.

§On 24 March 2006, he was convicted of possessing equipment for administering a prohibited drug and fined $250.

Applicant’s evidence

14.     In his oral evidence at the hearing, Mr Bali said the offences began when he was greatly depressed as a result of violent abuse by his father.

15.     He had completed his Higher School Certificate in 2001 and in 2002 started work with the TNT Australia group as a call centre operator with TNT Express Australia Pty Ltd.  Then he moved to the company’s customer query team.  Subsequently, he was promoted to the position of credit controller, collecting debts from other companies.

16.     While at high school, he had worked at a Coles store as a weekend supervisor.  Between 2001 and 2003 his life had gone well.

17.     In 2003, however, as a result of his depression, he became involved with a different group of people, the kind he had not previously thought he would ever mix with.  He was the only one in the group who held a full-time job.  A person he had dealt with from time to time at Sun Microsystems while he was in the TNT credit department had invited him out with a group of friends.  He had not previously gone out very much.  As a result of his depression, he had allowed them to introduce him to crystal methamphetamine and he became an habitual user of that drug.

18.     As a result of his involvement with drugs, he resigned from TNT after three or four months, a decision he deeply regrets as he was advancing in the company and seemed to have good prospects there (see T p27).

19.     In April 2004, he returned to Fiji to stay with his aunt for a month to break free of drugs and to escape the group of people he had thought were his friends but who really were not.  In the different atmosphere with his aunt in Fiji, he effectively rehabilitated himself and succeeded in quitting drugs after a month.

20.     He now works for the Crowne Plaza Hotel in Parramatta, which is part of the large Intercontinental chain, as night auditor.  His responsibilities include checking the day worksheets, balancing credit, ensuring that guests are correctly billed, supervising cash transactions and generally keeping security.

21.     He now lives with his mother, and as he works a permanent night shift he does not socialise very much.  He has brought about substantial improvements in his life and plans to enrol at TAFE next semester to pursue further studies.  Such an arrangement would fit well with his night employment schedule.

22.     He is regularly seeing a psychologist and undergoes regular drug tests of his own volition.  He is still being prescribed anti-depressants because he still suffers from depression over his regrets at the way he allowed his life to go down, destroying his career path at TNT and putting his mother through a great deal of anguish.

23.     The applicant said he had failed to disclose his convictions on his application form or at the interview with the departmental officer because he had been going through a hard time as a result of violent assaults by his father (T pp29-36).  At the time of his interview of 3 June 2005, when asked if there were any criminal convictions on his record that he was aware of, he had told the department officer that there were not, apart from speeding and parking fines.

24.     He endeavoured to explain that statement by saying that at the time of the interview he had not yet been convicted.  His solicitor was taking steps to have a number of the convictions annulled, and was successful in August 2005.  Consequently, he regarded those matters as ongoing rather than concluded convictions.

25.     He had to concede, however, that he had not previously offered that reason.  In his statutory declaration of 19 April 2006 (T pp25-26), he had said that he overlooked the convictions at the interview because he was very disturbed and depressed at the time as a result of his father’s violence towards him.  His father had since left Australia after being released from detention.  He agreed that he should have stated in the declaration that those matters were ongoing, but the department had only asked for an explanation in relation to two of the convictions (T p38).

26.     His agent had explained the letter to him, but it had not occured to him to go back and check the true position.  He had simply overlooked it.  His unsatisfactory answers on the application and at the interview stemmed from the fact that he was still suffering the effects of crystal methamphetamine use.

27.     Mr Eteuati pointed out to the applicant that in March 2006 he was convicted of possessing equipment for administering prohibited drugs, whereas he had previously said he had been drug-free since the month he spent in Fiji in April 2004.  The applicant said the item was a glass pipe that he had probably left in the glove box of a friend’s car when it was raided.  It was not his pipe but probably had his fingerprints on it because he hid it there.  He conceded, however, that he was still using drugs at the time of the charge (November 2005), because after his return from Fiji his former associates had contacted him because he owed them money and they had drawn him back into the drug milieu.  Nevertheless, he was not as involved with it as he had been before.

28.     But it was for that reason that he moved to Brisbane in January 2006 and worked there for six months, returning to Sydney in July 2006.  He had wanted to make a final break from that group and had succeeded in doing so.  His former friends still think he is in Brisbane.  He was emphatic that from the date his bond was imposed, 24 March 2006, he had not touched drugs at all and has not attracted police attention.

29.     The circumstances of the false instrument conviction (T p51) were that a group of his then friends had obtained a cheque book belonging to a corporation.  They asked him to fill out the amount, for some reason connected with the characteristics of his handwriting, and he did so.  Two other members of the group then forged the two signatures required on the cheque.  That was the offence that led to his being placed on the bond that expires on 24 March 2008.

30.     The applicant acknowledged that he had given conflicting answers in cross-examination but said that he found it impossible to go back to recall all the events during that period in a clear and sequential manner.  He was trying his very best, but crystal methamphetamine is highly addictive and breaking the habit had demanded a major effort from him.  Now he is having regular tests for drugs to show his mother and his family (Exhibit A2).

31.     He had gone through an experience that had taught him a great deal about people “out there” and how deceptive they can be.  He now has a new job and is doing all he can to make good all the things he had done wrong.  He has paid his fines and is trying hard to get himself back to where he was before he succumbed to drugs.  He was previously of good character but fell into bad company when he was depressed because of his father’s abuse.

32.     In his closing submissions, after explaining his plans to begin a TAFE course next semester, he said that his main concern is to try to make up to his mother for all that he put her through.

Consideration

33.     Even when one disregards, as one must, the annulled conviction for stealing property as a clerk or servant, which appears to relate to another person, the applicant still has a significant criminal record that displaces the presumption that he is of good character.  Weighed against ordinary community standards of behaviour, his criminal record suggests that he is not of good character.  The offences were not part of an isolated incident but, taking the charge dates rather than conviction dates, extended from October 2004 to November 2005.

34.     Previously, he had plainly been a young man of good character who demonstrated drive and efficiency in progressing rapidly in his employment with TNT Express Australia Pty Ltd.  Ms Sussan Davies, finance and administration director of that company, wrote a very favourable reference for him on 27 March 2006, about two years after he left the company (T p27).  The crew scheduling superintendent of Emirates Airlines in Dubai, Mr Shalendra Maharaj, who has known the applicant for 16 years, writes very highly of him and believes that he has the potential, motivation, energy and personal attributes that would enable him to advance in the airline industry and Mr Maharaj would like to assist him to do so (T p23).

35.     The state manager of Coles Supermarkets for New South Wales wrote the applicant a highly laudatory letter dated 1 July 2002 (part Exhibit A1) reporting that he had received a letter from a particular valued customer saying “what a wonderful job you are doing at our Earlwood store.  In her letter she said how friendly and helpful you are to all our customers and what a high level of service you offer”.  After thanking the applicant for his dedication and commitment, the manager added “Staff like you are an extremely valuable asset to our company and make a real difference to the business.  Your happy manner is clearly appreciated by our customers”.

36.     In October 2006, after being placed on his present bond, he was appointed to the position of night auditor at the Crowne Plaza Hotel, Parramatta, a member of the worldwide Intercontinental Hotels group (part Exhibit A1).  He has been working there ever since in a position of considerable responsibility and trust.  He has freed himself from drugs, leads a quiet life and plans to undertake further studies, which he can combine satisfactorily with his night shift commitments at the Crowne Plaza.

37.     His efforts to make amends for the suffering that his wrongdoing caused to his mother show that he has developed, or rediscovered, a salutary measure of empathy that will strengthen his ability to think in advance of the consequences of his actions in the future.  He is voluntarily undertaking psychological counselling and therapy to help him to rebuild his life.

38.     But for an important reservation to which I come in a moment, I think he has done and is doing everything that one could ask a previously troubled young man of 24 to do to resume a positive direction in life.

39.     Although the applicant fell badly from grace, he has taken determined steps to regain the right path.  In 2004 he returned to Fiji for a month in an effort to detoxify himself, and was partly successful.  He might have been wholly successful had his former contacts not sought him out.  But he is adamant that he has wholly broken away from drugs since he was placed on the bond and the test results he has tendered corroborate that.

40.     My reservation relates to the false and misleading answers he gave to questions on his application form and at his interview.  Viewed in isolation, they could be enough to negate the good impression that his other efforts create.  His explanations for those misstatements were conflicting and generally unsatisfactory.

41.     He seeks to explain his unimpressive performance in that regard as stemming from the fact that owing to the affects of crystal methamphetamine during that period, he is unable accurately to reconstruct what happened during that time.

42.     There is no expert evidence before the tribunal about the effects of crystal methamphetamine.  Those who work with drug offenders say, however, that it is more destructive to mind and body, and more addictive, than heroin.  The claim that it could have impaired his ability to recall what he did and thought at that time is not inherently farfetched.  Even so, however, the applicant displayed insufficient recognition of the need for scrupulous care and accuracy in giving sworn evidence and in completing official documents with important legal consequences.  He cannot expect the Commonwealth to make an irrevocable commitment to him until he fully accepts and acts on that recognition.

43.     I therefore accept Mr Eteuati’s submission that as the applicant remains subject to a good behaviour bond, insufficient time has elapsed since his last offence to establish positively that he is of good character, especially in light of what I have had to say about his false and misleading answers to the department and some aspects of his evidence at the hearing.

44.     If he maintains his present drug-free and law-abiding course until his bond expires in March 2008 he will, in my view, have a much stronger case for a grant of Australian citizenship.

45.     The decision under review must be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   .....................[sgd]................................................

               R. Wallace, Associate

Date/s of Hearing:  15 June 2007
Date of Decision:  30 July 2007
Solicitor for the Applicant:                  Unrepresented
Solicitor for the Respondent:             Mr Tigiilagi Eteuati, Clayton Utz