Bates and Minister for Immigration and Multicultural Affairs

[2007] AATA 29

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 29

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/608

GENERAL ADMINISTRATIVE DIVISION		)
Re		SEAN RAYMOND BATES

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Ms MJ Carstairs, Senior Member

Date22 January 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...........[Sgd]...................
  M J Carstairs

Senior Member

CATCHWORDS

CITIZENSHIP ‑ application for Australian citizenship ‑ conviction for offences ‑ whether applicant of good character – offences found to be serious in nature – insufficient time passed to demonstrate change in behaviour – decision affirmed

Australian Citizenship Act 1948 s 13(1)(f)

Australian Citizenship Instructions

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

Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

REASONS FOR DECISION

22 January 2007  M J Carstairs, Senior Member

1.      Sean Bates seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing his citizenship application made on 5 April 2006 on the grounds that he was not of good character as is required by s13(1)(f) of the Australian Citizenship Act 1948 (the Act).  The references to Mr Bates not being of good character relate to his criminal convictions.

THE ISSUE

2.      The issue before the Tribunal is whether the applicant is of good character as required by s13(1)(f) of the Act.

BACKGROUND

3.      Mr Bates is a New Zealand citizen who was born on 11 September 1969 and first came to Australia in about 1981. Since then, for the most part Mr Bates has resided in Australia.  He now has his own business as a graphic designer, operating as a sole trader.  Recent annual turnover in the business has been in the order of $90,000.

4.      Mr Bates has been in a long term relationship with his partner, Mr Brett Quinlan, since 1995.  After moving between Sydney, Melbourne and New Zealand since that time they have now settled in Brisbane, where Mr Quinlan’s family lives.  From all accounts Mr Bates’ family accepts and supports the relationship.

5.      As is usual for New Zealand citizens Mr Bates held a special category visa allowing him to remain in Australia.  This came under scrutiny after he indicated, upon re-entering Australia after an absence overseas, that he had been convicted of criminal offences.  Those issues affecting his visa status now have been resolved in Mr Bates’ favour, and he is permitted to remain in Australia as a permanent resident. 

6.      The criminal history that is in issue is not extensive; the offences are separated by many years; but the more recent instances are serious:

§In 1989 at Byron Bay in New South Wales, when he was aged 19 years, Mr Bates was convicted of possessing and administering a prohibited drug.  No conviction was recorded and he was fined $400.  Of this offence Mr Bates said that it involved the smoking of marijuana, and the charge of ‘administering’ related to his admitting to smoking the drug.

§In 2003, at the Brisbane Supreme Court, Mr Bates was convicted of unlawfully supplying a dangerous drug (heroin).  He was sentenced to a term of 15 months’ imprisonment, suspended after 4 months, with an operational period of 3 years.  He was also convicted of possession of dangerous drug (heroin), with a term of 4 months imprisonment to be served concurrently with the sentence for supply.  He was also convicted of possession of a dangerous drug (cannabis) with no other penalty imposed.

§On 12 August 2003 Mr Bates pleaded guilty to four related drugs charges and one weapons charge.  A conviction was recorded but no other penalty was imposed.

7.      Mr Bates served his 4-month gaol sentence and was released in November 2003.  He applied for grant of citizenship about 2 years later.  Mr Bates acknowledges his criminal history and has never sought to hide his convictions.  Nor does he dispute that the 2003 convictions were serious. 

EVIDENCE ON MATTERS OF CHARACTER

8.      The evidence before me revealed that Mr Bates had a somewhat difficult upbringing.  In a statutory declaration dated 6 January 2006 (T11) Mr Bates said he was the only child of young and probably immature parents: his mother was sixteen at his birth; his father seventeen.  It seems that he suffered abuse from his father, who had an alcohol and drug problem, and was in other ways neglected.  He referred to his childhood in some detail in discussions with Dr G Larder, consultant psychiatrist (T11) and I take into account the information about his circumstances of family and his upbringing. 

9.      In oral evidence Mr Bates acknowledged that he has taken drugs for many years and has been involved in drug cultures in Sydney and Melbourne.  He referred in his oral evidence to his lack of strong family support as a younger person, allowing him to drift into drug cultures in Sydney.  He met Mr Quinlan in Sydney and it seems that since their relationship commenced they have progressively developed more serious drug habits.  Mr Bates said that they tried to escape from the Sydney drug culture by going to Melbourne, but they discovered that Melbourne was worse for them.  About this time their drug habits were costing in excess of $1000 per week.  However they were both in employment and they were able to maintain that level of expenditure without recourse to criminal activity to secure drugs. 

10.     In evidence both Mr Bates and Mr Quinlan said that in 2000 they went to New Zealand and were hopeful of breaking the cycle and making a new start, perhaps with the support of Mr Bates’ mother who had returned there and had remarried.  However that plan did not work out.  In about 2001 Mr Bates and Mr Quinlan came back to Australia and had resumed taking heroin in the time leading up to the occurrence of the offences in 2003.  Dr Larder recorded in his report that Mr Bates was able to achieve a remission from his heroin addiction for a 3-year period between 1999 and 2002.

11.     Mr Bates was charged with the 2003 offences when he attempted to sell heroin to a prostitute, who was in fact an undercover policewoman.  Mr Bates described those offences as foolish, and he offered as part explanation that he was in some financial need at the time.  In sentencing, the Judge stated:

…You are…a relatively young man, with no prior convictions and a good record of employment.  You are clearly skilled in your occupation and have been a valued and successful employee in your chosen occupation.  You have as well…done some work for charity…there is a great deal to be said in your favour….

…heroin is a dangerous drug.  It causes, as you know better than most, a great deal of misery and your conduct, it seems to me, was quite deliberate despite your personal circumstances.  You set out to sell the drug to one you thought was addicted and in a wretched state for your own commercial gain. 

12.     Since his release from prison Mr Bates and Mr Quinlan have undertaken counselling and are on medicated drug therapy programs.

13.     In support of his application for citizenship Mr Bates produced numerous letters of reference from people including those who have had positive associations with his business, from friends and from Mr Quinlan’s family.  A number of the references addressed the question of the consequences of possible visa cancellation and resultant return to New Zealand.  As such, these letters of support tended to focus on the detrimental consequences for his relationship with Brett and for the business.  As such, their content has less direct relevance for the issues before me.  Nevertheless I have no hesitation in accepting from those references that Mr Bates is well supported by friends and contacts and that he is a capable and successful businessman who does what he can to support his preferred community organisations.  Most references acknowledged Mr Bates’ criminal offences and all attested to the belief that Mr Bates had learnt his lesson. 

14.     I understand from other documentary material and the evidence of Dr M Kelly, Senior Medical Officer at Prince Charles Hospital in Brisbane, that Mr Bates is compliant with his therapies, and that those involved in his rehabilitation see it as successful thus far.

IS MR BATES OF GOOD CHARACTER?

15.     Under s 13(1) of the Act the Minister may, in her discretion, grant a certificate of Australian citizenship to a person who is of good character, and Chapter 5 of the Australian Citizenship Instructions sets out the policy guidelines which are to be applied in assessing applications for the grant of a Certificate of Australian Citizenship.  I should have regard to these instructions, unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).

16.     I had regard to the following paragraphs of the Instructions:

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... 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 weighted against ordinary community standards of behaviour.

17.     Thus there is a presumption of good character unless there is evidence to the contrary.  The evidence to the contrary in Mr Bates’ case is the serious criminal convictions in 2003.

18.     In Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997), the Tribunal stated that character is to be judged objectively against ordinary community standards of moral behaviour.  At paragraph 22 the Tribunal referred to Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 in which the Federal Court stated (at 425):

…the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute... But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant…

19.     In Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 the Tribunal said (at paragraph 17):

“Good character" in s 13 [of the Act] should be given the same meaning as it is in s 501 of the Migration Act 1958(Cth)…The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it...

20.     Mr Bates is well supported in his references by friends and family members, as well as those who have worked with him.  I accept that he is in stable employment and contributing to the community.  I also accept his evidence that he has established a stable and loving relationship with Mr Quinlan.  He has a pattern of family connections with Mr Quinlan’s family in this country.  No doubt these assist in developing a more mature outlook.  However I also note that most of the references attesting to his good character are from friends and family members.  I have no reason to doubt the words of those who have provided references for Mr Bates, however these on their own do not outweigh serious offences and the extensive evidence about drug-taking over many years. 

21.     There is no doubt that in sentencing Mr Bates the Judge appreciated that the offences were serious.  I take account of the Instructions at paragraph 5.4.7 which refers to sentences totalling 12 months as a broad guide to seriousness and makes specific reference also to crimes involving drug trafficking.  I am satisfied that the convictions in 2003 were for serious offences, and to my mind, this is the most significant of the facts before me. 

22.     I take into account that the serious offences took place late in 2002 after Mr Bates had a clear record for some 14 years.  But there is no doubt, on the evidence of Mr Bates himself and that of Mr Quinlan, that Mr Bates has been using drugs for many years.  In Mr Bates’ case, with his drug-taking commencing at about 18 years of age and continuing into his thirties it could not be said that the criminal offences were “out of character”.    

23.     This evidence also leads to the conclusion that Mr Bates’ drug-taking is well entrenched, and he has moved progressively to harder drugs with the passage of time.  I was impressed with Mr Bates and Brett Quinlan in their candid evidence on these matters.  In my assessment of Mr Bates’ overall character I give weight to his honest account of his past.  I note that Mr Bates implied that prison had been a reforming experience.  However he re-offended when first released from prison and had returned to live with Mr Quinlan who was still using heroin.  If the lessons he had learnt were as life-changing as he asserted in his statutory declaration, the relapse is hard to explain.

24.     I also take into account that Mr Bates has attempted once before to give up drugs and has failed.  In that context the remarks of Dr Larder are pertinent:

Given the risk factors, in his life, the severity of his disordered behaviour syndrome and the “magnitude of the wasted years” it is very “early days” in his recovery.

25.     This suggests that caution should be exercised in considering whether sufficient time has passed to be satisfied that the changed behaviour that is now asserted by Mr Bates is sustained.  Instruction 5.4.14 refers to establishing a pattern of good behaviour.  I believe that insufficient time has passed for me to be satisfied that the change is demonstrated (Instruction 5.4.14), and the Australian community can rightfully demand that a longer period of time elapse to enable Mr Bates to demonstrate that he truly is of good character and rehabilitated from his former behaviour.  He has only been free from his obligation to the court of good behaviour in mid to late 2006 when his suspended sentence expired.

26.     For these reasons, and in applying the guidelines outlined in Irving and Re Mlinar to relevant matters, I am satisfied that the convictions reflect adversely on Mr Bates’ character.  I am satisfied that at the time of the claim for citizenship Mr Bates has not demonstrated that he was of good character. Consequently he does not satisfy s 13(1)(f) of the Act.

27.     Section 14 of the Act permits me to remit the matter to the respondent for up to 12 months so that Mr Bates could demonstrate that he truly had reformed.  For the reasons already given in relation to his longstanding drug history I have concluded that such a course is not appropriate in this case. 

DECISION

28.     The Tribunal affirms the decision under review.

I certify that the preceding 28 paragraphs are a true copy of the reasons for the decision of M J Carstairs Senior Member:

Signed:     …M Brazier……………………………………….

Associate

Date of hearing:  15 December 2006

Date of decision:  22 January 2007
Counsel for the applicant                 Mr F Syme
Solicitor for the respondent:            Mr J Lo, Clayton Utz Lawyers