Boby and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 1246
•26 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1246
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/199
GENERAL ADMINISTRATIVE DIVISION ) Re MARK BOBY Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date26 November 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration of the application by Mark Boby for a grant of a certificate of Australian Citizenship with the direction that he has satisfied s 13(1)(f) of the Australian Citizenship Act 1948.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
CITIZENSHIP – applicant previously not of good character – number of traffic offences and anti-social offences – applicant is now a person of good character – decision set aside
Australian Citizenship Act 1948: ss 13(1)(f), 13 (11)
Irving v Minister for immigration & Ethnic Affairs v Baker (1996) 689 FCR 422
Minister for Immigration & Ethnic Affairs v Baker (1997) 153 ALR 463
Kakar and Minister for Immigration & Multicultural Affairs [2002] AATA 132
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Mark Boby for review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs dated 24 December 2003, to reject an application for grant of Australian Citizenship, on the ground that he is not of good character within the meaning of that term in subsection 13(1)(f) of the Australian Citizenship Act 1948 (the Act).
2. Mr. Boby was found by the delegate to not be of good character on the ground that he has a substantial criminal record.
3. The matter was heard on 10 August 2004. Mr. Boby was represented by Mr. Byrne, QC, with Mr. Hanlon of Counsel, and the Respondent by Mr. D. Gallo, solicitor of Blake Dawson Waldron.
ISSUE FOR DETERMINATION
4. The matter to be determined by the Tribunal is whether, notwithstanding Mr. Boby’s past behaviour, he is now a person of good character.
LEGAL FRAMEWORK
5. The relevant provision of the Act for the purposes of this review is subsection 13(1)(f), which provides:
“13 Grant of Australian citizenship
(1)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”
6. In determining whether Mr. Boby is of “good character” as required by subsection 13(1)(f), reference was had to the Australian Citizenship Instructions which amplify the relevant considerations in making that determination. Specifically, paragraphs 5.4.1 to 5.4.17 are relevant.
EVIDENCE BEFORE THE TRIBUNAL
7. The following documents were tendered by counsel for Mr. Boby as part of the formal evidence:
Exhibit 1“T” Documents, which include a statement by Mark Boby, plus statements of support for him from a friend, a business associate and an employee.
Exhibit 2 Queensland Court Outcomes Report dated 29 August 2002
Exhibit 3An e-mail from Paul McCarthy of the Respondent’s Character Section, Brisbane.
8. Mr. Boby also gave oral evidence. The following facts were not disputed nor challenged by the Respondent’s solicitor. The Tribunal accepts them and finds that:
(a)Mr. Boby was born in Christchurch, New Zealand on 12 July 1969.
(b)He is still a citizen of New Zealand.
(c)He attended Ariauni Primary School for seven years. He then attended Chisnawood Intermediate School for two years. For the next two years he attended Ariauni High School. Then he left school at the age of 16 years.
(d)After he left school his first employment was as an assistant to his father, who was a sign writer. Mr. Boby then worked for the New Zealand Housing Corporation, painting houses for about two years.
(e)In 1985, at the age of 16 years, he was involved in a serious motor vehicle incident. A vehicle in which he was a passenger collided with another vehicle. As a result he lost his right eye and received severe facial injuries. He received compensation in the sum of $15,100.
(f)He took about two years to recover from his injuries.
(g)In 1989 he was involved in another motor vehicle incident. He was riding a motor-cycle when a car collided with him. He sustained a badly broken leg and was hospitalised for two weeks. He received compensation of $11,000.
(h)Between 20 August 1985 and 29 November 1991, Mr. Boby was convicted of a large number of criminal and traffic offences in New Zealand. The following is a summary of those convictions:
1985: Burglary
(Supervision for 1 year beginning 11 April 1986)
1986: Unlawfully taking a motor cycle
Theft of property
(Supervision 1 year beginning 11 April 1986)
1987: Procure/possess cannabis plant
Possess utensil for cannabis
(Non-resident Periodic Detention (PD) 3 months beginning 11 February 1987)
Cultivate cannabis
Unlawfully taking motor vehicle
(Corrective training for 3 months beginning 10 March 1987)
Delivered liquor
Trespass
Communicate with inmate
(Non-resident PD for 6 months beginning 16 November 1987)
Driving whilst never having held a driver’s licence x 4
(Convicted and discharged)
Unlicensed person driving blood alcohol 0077
(Non-resident PD 6 months beginning 17 February 1987, disqualified driving 6 months)
1988:
Drives when disqualified (First Offence)
(Non-resident PD 3 months beginning 24 May 1988, disqualified driving 9 months).
Drives when disqualified (Second Offence)
(Non-resident PD 7 months beginning 30 November 1988, disqualified driving 2 years).
Obscene language
Offensive behaviour
(Total fines $100)
1989:
Drives when disqualified
(Imprisonment 1 month 14 days beginning 19 May 1989, disqualified driving 1 year)
1990:
Enters with intent
Theft of property
(Imprisonment 5 months beginning 27 February 1990)
Drives when disqualified/unlicensed driver, excess breath alcohol 0194
(Non-resident PD 6 months beginning 30 July 1990, disqualified driving 1 year)
Theft Property, wilful damage
(Reparation $400, non-resident PD 6 months beginning 8 October 1990)
1991:
Drove while disqualified
(Imprisonment 9 months beginning 4 December 1991 disqualified driving 1 year)
Receives property/registration plates
Theft property
(Imprisonment 8 months beginning 17 January 1992)
(i)In 1994 Mr. Boby decided “to turn over a new leaf” and to start a new life in Australia. He entered Australia on 31 March 1994 and returned to New Zealand on 13 April 1994. He again entered Australia on 5 June 1994, with the intention of living permanently in Australia. He went back to New Zealand for one week in September 1994, returning to Australia on 14 September 1994.
(j)On 14 September 1994, Mr. Boby was granted a Visa, category TY -444.
(k)Mr. Boby initially obtained work as a kitchen hand at Surfers Paradise. He remained in that position for about 12 months.
(l)Mr. Boby experienced physical difficulties with his eye and his leg, due to the injuries received in the motor vehicle collisions in 1985 and 1989 (described above). He received partial sickness benefits for two to three years.
(m)On 1 March 2001, Mr. Boby registered and started a business, Mark’s Imports Pty Ltd. His company has been involved in importing motor vehicles, car parts and motor cycles from Japan. He has been travelling to and from Japan and other countries on a regular basis. In his first 18 months of operation he imported about 60 motor vehicles and 10 motor cycles. His turnover was approximately $350,000. He employed three people on a contract basis.
(n)Since being granted an Australian Visa in September 1994, Mr. Boby has returned to New Zealand for short periods on 14 occasions. He has also travelled to Japan, Malaysia and Indonesia.
9. Exhibit 2, “Queensland Court Outcomes”, shows that Mr. Boby appeared before the Southport Magistrates Court on the following occasions for the following reasons:
6 April 1998: Use insulting words (21/3/98) Fined $75 (no conviction recorded)
7 July 1998:Obstruct police officer in performance of duty (also on 21/3/98) Fined $100 (no conviction recorded)
2 November 1999: Possessing dangerous drugs (on 19/10/89) fined $400 (no conviction recorded)
10. On 30 July 2002 a representative of the Respondent sent to Mr. Boby a “Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act 1958”. The relevant ground was said to be that he had a substantial criminal record (as defined by subsection 501(7) of the Act).
11. After a considerable amount of correspondence between Mr. Boby’s solicitor and the Respondent’s delegates, it was decided on 7 November 2002, not to cancel Mr. Boby’s visa on the following bases:
“As Mr BOBY has two or more convictions with terms of imprisonment totalling two (2) years or more he fails the Character Test under s.501(7)(d). Mr BOBY has, however, no convictions recorded since 1991 in New Zealand and no convictions recorded in Australia. He is operating his own import business and is employing three (3) people albeit on a casual basis.
Given the length of time since Mr BOBY’s last conviction, and his last offence recorded in Queensland, and despite the fact that he has failed to correctly complete his IPC, it would appear that Mr BOBY is a low risk or recidivism.”
12. Mr. Boby was formally warned that any further conviction could lead to the question of his visa cancellation being reconsidered.
13. Mr. Boby made an application for grant of Australian citizenship on 28 November 2002.
14. On 5 January 2003, Mr. Boby was removed from the Gabba cricket ground by police, for spilling beer on an attendant during a cricket match. He was under the influence of alcohol at the time. His name and address were taken and he was allowed to go free in the street outside the cricket ground. He was convicted on 28 February 2003 of “Obstruct police, disorderly behaviour” and fined $300.
15. Mr. Boby’s solicitor notified The Manager – Compliance Section of Mr. Boby’s conviction in relation to the Gabba incident. The Respondent decided not to reconsider Mr. Boby’s visa at that time.
16. On 3 December 2003, the decision was made to reject Mr. Boby’s application for grant of Australian citizenship. The decision maker decided that the Gabba incident indicated that Mr. Boby had not broken his previous pattern of committing offences, and that he could not therefore be considered to be rehabilitated.
17. On 12 January 2004, a delegate of the Respondent telephoned Mr. Boby to tell him that should he depart Australia and then try to re-enter he may not be re-admitted, because he would not be able to be granted a Special Category Visa.
18. The current situation is that Mr. Boby can legally remain in Australia indefinitely, provided that he does not commit a relatively serious crime, but he cannot efficiently continue his importing business because he cannot leave Australia and then re-enter.
TRIBUNAL’S DELIBERATIONS
19. The question for the Tribunal’s determination is whether Mr. Boby is of “good character”. From the evidence presented of his history of traffic and criminal convictions in New Zealand there were times in his life when that question would have undoubtedly have been answered in the negative. However, an examination of the principles and guidelines relevant to this legislation is required.
20. The following parts of the Australian Citizenship Instructions are relevant to evaluate the above question within the scope of paragraph (f) of subsection 13(1):
“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.
5.4.3….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.
5.4.4Assessment of good character involves:
§ …..
§ according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and
§ considering the full circumstances relating to the relevant matters and evidence of the applicant’s behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.
5.4.5Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 – 5.4.15, if there is evidence that the applicant:
(a) has, at any time, been sentenced to:
-death
-imprisonment for life;
-a term of imprisonment of 12 months or more;
-2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
(b) is a serious repeat offender (see 5.3.9 – 5.3.11);
……..
5.4.7Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.
……
5.4.11Consider whether a crime was a one-off occurrence that can now be considered ‘out of character’, or whether the person’s criminal record shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13 – 5.4.17).
…..
5.4.13Crimes committed by the applicant at a young age may be given less weight depending on the nature of the crime and the applicant’s subsequent record. It may be considered that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.
5.4.14A person’s previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person’s behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
…..
5.4.16The applicant’s behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.
5.4.17The applicant’s present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person’s criminal background, and attest to a change in character since, should be given considerable weight.”
21. As required by paragraph 5.4.2, “good character” should be viewed using the ordinary meaning of those words. That instruction entitles Mr. Boby to a presumption that he is of good character, unless there is evidence to the contrary. This term has also been judicially considered in Irving v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 422 at 431-432. There, Lee J said that the words “good character” refer to the “enduring moral qualities” of the person seeking Australian citizenship, and does not refer to “the good standing, fame and repute of that person in the community”. His Honour also stated that this assessment must use an objective test and not a subjective test as the use of referees provided by the Applicant is likely to produce a biased result owing to the selection process involved. He further differentiated “enduring moral qualities” from reputation and stated that those of poor reputation could be shown to have been reformed and to be of good character and “conversely, a person of good repute may be shown by objective assessment to be a person of bad character”.
22. The reference to “enduring moral qualities” has also been defined as involving “…a comparison between his attributes and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community” (Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132). General conduct or behaviour also must be considered and there are times when good conduct “…. Displayed but once or twice may lay character bare very tellingly” (Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 at 470).
23. In this case, Mr. Boby’s behaviour, as evidenced from his criminal and traffic convictions in New Zealand demonstrated irresponsibility and disregard for the law between the ages of 16 and 22 years. Although none of the offences involved violence, sexual abuse or any of the crimes specifically mentioned in paragraph 5.4.7 of the “Instructions”, he was nevertheless a serious social pest during that period. The last of those offences, theft of property, occurred on 29 November 1991, and he served a term of imprisonment of eight months.
24. The indications are that Mr. Boby did indeed turn over a new leaf when he came to Australia. In the ten years he has been in Australia his behaviour has markedly improved on his previous New Zealand behaviour. He has been involved in three incidents which have brought him to the notice of the police, namely, insulting words/obstruct police on 21 March 1998, possession of cannabis on 19 October 1999, and the incident at the Gabba on 5 January 2003. No convictions were recorded for the first two incidents and in the Gabba incident he was fined $300.
25. Mr. Boby’s behaviour in Australia has not been faultless, but I believe that the ordinary Australian community standards would put his Australian indiscretions in the relatively minor category.
26. I take into account the fact that Mr. Boby’s New Zealand offences occurred during his youth. He seems to have matured in the last ten years and gained more stability in his life.
27. In my view the Gabba incident has been accorded an importance in the consideration of Mr. Boby’s character, that it does not warrant. It seems to me to have been an alcohol induced act of stupidity in an environment where stupidity is fairly normal for a large number of Australian citizens.
28. In Mr. Boby’s favour is the fact that he has otherwise led a stable life. He is supported by referees. He has developed a business of significant size. He has employees working for him. I take the view that these matters far outweigh a few minor indiscretions in assessing his current character.
29. Mr. Boby’s enduring moral qualities, which have previously been shown to be not of a high standard, are now such that the Tribunal is satisfied that he should be regarded as being of good character. The Tribunal has accepted that, on balance, the Applicant satisfies the statutory provisions and the criteria in the Australian Citizenship Instructions, such that he should be entitled to be favourably considered for an award of Australian citizenship.
30. The decision of the Tribunal is therefore that the decision of the delegate should be set aside.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 10 August 2004
Date of Decision 26 November 2004
Counsel for the Applicant Mr. Burn, QC and Mr. Hanlon
Solicitor for the Applicant Adamsons Solicitors
Solicitor for the Respondent Mr. Gallo, Blake Dawson Waldron
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