Booth and Minister for Immigration and Citizenship
[2009] AATA 185
•19 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009]AATA 185
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2538
GENERAL ADMINISTRATIVE DIVISION ) Re ROGER BRIAN BOOTH Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date19 March 2009
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - citizenship - applicant a New Zealand citizen - applicant arrived in Australia in 1980 - applicant convicted of criminal offences from 1980 to 1990 - applicant convicted of serious drug offences in 2004 and sentenced to imprisonment for 2 years 8 months - applicant released on parole in November 2005 and subject to parole obligations until 2007 - no subsequent convictions - applicant applied for Australian citizenship in December 2007 - good character requirement for grant of citizenship - applicant is not of good character - decision under review affirmed
Australian Citizenship Act 2007 (Cth), s 21(2)(h)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
REASONS FOR DECISION
19 March 2009 Deputy President S D Hotop Introduction
1. Roger Brian Booth (“the applicant”) is a citizen of New Zealand who first arrived in Australia in May 1980 when he was 19 years of age. He has lived in Australia ever since.
2. The applicant applied for Australian citizenship in December 2007 but his application was refused by a delegate of the Minister for Immigration and Citizenship (“the respondent”) on 22 May 2008 on the ground that, because he had been convicted of serious drug offences in Australia in 2004, he did not meet the “good character” requirement for a grant of Australian citizenship under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”).
3. The applicant has applied to the Tribunal for review of the delegate’s decision.
The Relevant Legislation
4. The relevant provisions of the Act are as follows:
“21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
…
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident at that time; and
(c)satisfies the residence requirement (see section 22), or has completed
relevant defence service (see section 23), at that time; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
…”
The Issue
5. It is common ground that the applicant meets the requirements of eligibility for Australian citizenship set out in paras (a)-(g) of s 21(2) of the Act. The sole issue for the Tribunal’s determination is, therefore, whether it is satisfied that the applicant “is of good character” within the meaning of para (h) of s 21(2) of the Act.
The Evidence
6. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T34, pp 1-114) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·a bundle of documents filed by the applicant (Exhibit A1);
·the oral evidence of the applicant.
The Applicant’s Criminal History in Australia
7. The applicant’s recorded criminal history in Western Australia is as follows (T11):
Court Date Offence Sentence Kalgoorlie 16/11/1980 No Motor Drivers Licence (MDL)
Spent Conviction$25 Kalgoorlie 16/11/1980 Driving Under the Influence – 1st Offence – MDL Disq Six Mths
Spent ConvictionDisq From Hold or Obtain MDL 12 mths cum Albany 17/01/1981 No MDL – Under Suspension
Spent ConvictionDisq From Hold or Obtain MDL 18 mths cum - $150 Manjimup 16/12/1981 No MDL – Under Suspension
Spent Conviction1 mth imp – Disq From Hold or Obtain MDL 12 mths cum Manjimup Court of Petty Sessions 17/03/1983 No MDL – Under Suspension
Spent Conviction6 mths imp – MDL Disq 18 mths cum Manjimup Court of Petty Sessions 17/03/1983 Excess 0.08%
Spent ConvictionMDL Canc & Disq
6 mths conc
PrescribedManjimup Court of Petty Sessions 17/03/1983 False Name & Address
Spent Conviction$50 Manjimup Court of Petty Sessions 15/05/1985 Unlawfully on Place/Prem – 2 counts
Spent Conviction$75 Manjimup Court of Petty Sessions 09/10/1985 Drunk
Spent Conviction$20 Manjimup Court of Petty Sessions 05/03/1986 Cannabis Possess A Quantity
Spent Conviction$100 Manjimup Court of Petty Sessions 05/03/1986 Possess Smoking Implement
Spent Conviction$100 Broome 30/06/1986 Driving Under The Influence – MDL Disq & Canc – Prescribed
Spent Conviction2 yrs
$800Broome 30/06/1986 No MDL
Spent Conviction3 mths imp
Manjimup Court of Petty Sessions 28/10/1987 Stealing
Spent Conviction$100 Pemberton Court of Petty Sessions 07/08/1990 Poss Utensils Use
Preparation Proh Drug
Spent Conviction$500 Perth District Court 04/08/2004 Amphetamine Possess 7 mths imp conc Perth District Court 04/08/2004 Amphetamine Possess With Intent 18mths imp conc Perth District Court 04/08/2004 Heroin Poss Qty
Intent Sell/Supply2 yrs 8 mths imp 8. The applicant’s recorded criminal history in Queensland is as follows (T10):
Court Date Offence Sentence Cairns Magistrates Court 14/01/1987 Produce Dang Drug
Poss Pipe Used in conn with
Smoking Dang Drug$1000 i/d 3 mths imp
$200 i/d 28 days imp9. A Community Justice Services Pre-Sentence Report dated 19 March 2004, which was prepared in respect of the abovementioned drug offences for which the applicant was sentenced on 4 August 2004, states (inter alia):
“ …
SUBSTANCE USE
Mr Booth began to smoke tobacco in his early teenage years. He says that he used alcohol from his mid-teens until two or three years ago when he became more heavily involved in his amphetamine use.
Mr Booth has never embraced cannabis and reports that his alcohol was never problematic. His Court History would tend to indicate that he may be under-reporting his past alcohol use/problems. He insists that Heroin has never been his drug of choice.
Mr Booth reports that some fifteen or so years ago he began to use amphetamines. He says that this usage was occasional/social use for a period of eight to ten years. Eventually he found himself to be addicted. He was able to detoxify himself for periods of a week or more from time to time but his use always continued and slowly escalated. Mr Booth reports intravenous injections on a daily basis for most of the past four or five years and claims to have used up to a ‘couple of grams each day’.
Mr Booth claims that he is currently drug-free and determined to remain so. There is no way of confirming his claim other than an extended period of regular supervised urine tests.
…” (T8, pp 45-46)
10. In respect of the abovementioned drug offences for which the applicant was sentenced on 4 August 2004, Kennedy CJDC, in the course of her sentencing remarks, said:
“ …You have been convicted on your own confession that on 29 November 2003 you had in your possession a prohibited drug, namely heroin, with intent to supply it to another and that on the same date and at the same place you had in your possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another and on the section 32 notice there’s a small quantity of – possession of a small quantity of methylamphetamine.
The heroin was relatively high grade, it was 32 per cent, and the methylamphetamine was even higher grade and it is a significant quantity of drugs as your counsel has said.
Fortunately for you, you come to be sentenced on the basis that you did not bring this into the state. You did not increase the supply of this in Western Australia and you were holding it for someone else. That in itself of course is serious because there has to be some good reason why they need you to help them to hide the drug. So you are providing them with significant assistance and it’s a very significant help. On the other hand, you have pleaded guilty on the fast-track system and you have shown considerable remorse. Unfortunately for you this has come about because of your drug addiction which has been now going on for some time….
… this matter requires a prison sentence and I would start the prison sentence at five years and that is reduced under the new legislation to three years and four months and then I have deducted further amounts for your fast-track plea of guilty and in the circumstances, on count 1, you are sentenced to two years and eight months.
On count 2 you are sentenced to 18 months and that is concurrent and on the section 32 you are sentenced to seven months and that is concurrent. The total sentence is two years and eight months. You are eligible for parole….” (T9, p48)
11. A Department of Justice “Immigration Report”, prepared on 13 July 2005 in respect of the applicant’s incarceration in Bunbury Regional Prison following his sentencing on 4 August 2004 for the abovementioned drug offences, states (inter alia):
“ …
5 Programme Participation
5.1 Comment on offender’s programme participation
...
Assessment for TREATMENT – SUBSTANCE USE OFFENDING CHECKLIST – OUTCOME made the following recommendation.
‘Booth shows no insight into the seriousness of his offending and did not appear to take much responsibility for his past actions, he presents as more aware of the personal consequences for himself. To his credit, he later conceded to the possible link between his amphetamine use and current offences. Booth stated whilst he has commenced making changes to his amphetamine use and is currently substance free, he is unsure if he could sustain this change upon his release into the community. He later admitted he still enjoys using the substance.
In view of Booth’s verbalised ambivalence towards maintaining change, inclusion in an addictions offending low intensity Preventing and Managing Relapse Program is deemed most relevant in addressing his current substance use treatment needs.’
…” (T20, p70)
The Applicant’s Evidence
12. The applicant made a brief statement in which he:
·expressed remorse for his commission of the drug offences in respect of which he was convicted and sentenced in 2004;
·referred to his subsequent “achievements”, namely, that:
– he has been drug-free and alcohol-free for 5½ years, and he gave up smoking about 9 months ago (which he described as “monumental changes in (his) lifestyle”;
– he has been with the same employer in the mining industry since July 2006 and holds the position of “Leading Hand” and he has obtained “Worksafe tickets” to operate various kinds of machinery including front-end loaders and bobcats;
·said that he has “extensive contact” with his mother and two sisters who live in Mandurah, and his son who is now aged 17 years;
·asserted that he “does not intend to go back to the life [he] previously led”.
13. In cross-examination the applicant acknowledged that he started using amphetamines in the early 1990s and continued to use them until November 2003 when he was arrested for the abovementioned drug offences. He also acknowledged that in the period 2000-2003 he was taking a couple of grams of amphetamines intravenously per day, but he said that he had “never touched” heroin.
14. As regards his expression of remorse for committing the abovementioned drug offences, it was put to the applicant that he had written a letter to the former Department of Immigration and Multicultural and Indigenous Affairs dated 12 July 2005, in response to a notice of intention to consider cancelling his visa, in which he stated (inter alia):
“ …
My current imprisonment arises from what being (sic) could truly be called a ‘victim of circumstance’. I was in a hotel room, on my way home to Kalgoorlie from holidays in South Australia, when a friend arrived and asked me to look after what turned out to be 2 ounces of heroin for the night. He said he would collect it in the morning. I had no idea that he was already in serious trouble, but this was borne out when later that evening the police burst into my hotel room and arrested me. I mistakenly thought that if I simply pleased guilty to possession that I would not receive a jail sentence. I thought I was helping a friend out. I am truly embarrassed and mortified to realise that I was just helping someone commit a serious drug offence.
…” (T16)
The applicant said that he no longer regards himself as a “victim of circumstance” and he referred to his plea of guilty as demonstrating that he accepted that he was guilty of those drug offences. It was then put to him that he had indicated in his abovementioned letter that he had then believed that, if he pleaded guilty, he would not received a custodial sentence, whereupon he said that perhaps in 2005 he did not accept full responsibility for committing those offences but that he now does.
15. The applicant was also referred to the Department of Justice “Immigration Report” prepared on 13 July 2005 (see paragraph 11 above) in which reference is made to an assessment of the applicant’s treatment needs which states (inter alia):
“ Booth shows no insight into the seriousness of his offending and did not appear to take much responsibility for his past actions, he presents as more aware of the personal consequences for himself.”
The applicant queried whether the officer who made that statement was qualified to do so, and he disputed the accuracy of that statement.
16. It was further put to the applicant that he had written a letter (undated) in 2008 to the Department of Immigration and Citizenship, in support of his application for Australian citizenship, in which he stated (inter alia):
“ I would like to explain my role that surrounds the night of my arrest in this most unfortunate and regrettable set of circumstances.
I was at the time living in Kalgoorlie and on holiday in Adelaide, on my way home to Kalgoorlie I had a stop over in Perth in a hotel where someone I thought was a friend visited me and asked if I would mind if he left something in my room for the night which he would then collect in the morning, looking back I guess I was naïve not to think something was a little strange, but as he was a so called friend I wasn’t expecting to be put in such a position.
Unbeknownst to me he was arrested that same evening with drugs in his car, to lessen any impact this was to have on himself he told the police I was in a hotel room with a package of drugs and so the rest is history, as I see things I was inadvertently caught up in something that really had nothing to do with me, and so I implore of you do not make a decision that still sees me paying for a moment of bad judgement some five years ago.
…” (T34)
The applicant said that he now does not believe that he was “inadvertently caught up in something that really had nothing to do with [him]”, as stated in that letter, and that he now believes that what he did was wrong.
17. The applicant was referred to the Progress Notes made by a counsellor at the Palmerston Centre which he had tendered in evidence (Exhibit A1, pp 4-7). The applicant confirmed that he had attended the Palmerston Centre for counselling in fulfilment of a condition of his parole, and that he had attended on three occasions, namely, on 1, 8 and 15 December 2005, and had then decided to discontinue his attendance. He was referred, in particular, to the following note made by the counsellor on 1 December 2005 regarding his “drug use history”:
“ Amphetamines – IV 10 yr period, has been using for 15 mths while in jail” (Exhibit A1, p 6).
He disputed that statement and added that the counsellor had not asked him that question and he did not know why she had written that note. He reiterated that he ceased using amphetamines in November 2003 when he was arrested.
18. The applicant was referred to the report of a urine test for drugs, dated 11 September 2008, conducted at his worksite medical centre, which he tendered in evidence (Exhibit A1, p12). According to that report, he tested negative for various drugs, including amphetamine. The applicant acknowledged that that test had been requested by him and was not a random test but he added that he is subject to random drug testing at his employment and that since April 2008 he has had three random drug tests and there were “no problems”. He further added that a positive drug test would result in “instant dismissal” from his employment. He said that he had “made up [his] mind a long time ago” that he did not want to take drugs, and that he had done so “not just because of drug testing”. He also tendered in evidence the results of urine tests conducted in November 2005 (shortly after the commencement of his parole period) which were also negative (Exhibit A1, pp 10-11).
19. The applicant confirmed that he had completed his supervised parole period in September 2006, but he added that he thereafter continued to be subject to unsupervised parole obligations for a further period which he thought may have been of 12 months’ duration expiring in September 2007.
20. The applicant also confirmed that he had not done any “charitable or community work” since his release from prison.
21. Finally, the applicant was asked whether he was disadvantaged by not having Australian citizenship. He responded that he was not entitled to vote and he added that he could not think of any other disadvantages.
Additional Evidence
22. The Tribunal also had before it various recent character references strongly supportive of the applicant in the form of statutory declarations, letters and emails from employment supervisors, longstanding friends and family members in Australia, all of whom are apparently persons of good repute (see Exhibit A1, pp 13-29, T29-T33). The Tribunal has given appropriate weight to each of those character references in accordance with the Australian Citizenship Instructions (T4, p 28).
Analysis
The meaning of “good character”
23. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Federal Court of Australia (Full Court) considered the meaning of the expression “good character” for the purposes of the migration legislation. Davies J (with whose reasons R D Nicholson J agreed) said (at p 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: see The Oxford English Dictionary, meanings 11, 12, and 13; The Macquarie Dictionary, meanings 1,2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. 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. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”
Lee J said (at pp 431-432):
“ 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 whilst the latter is a review [of] subjective public opinion… 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… . Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.” (citations of authorities omitted).
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said (at p 197):
“ The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.”
Is the Tribunal satisfied that the applicant is now “of good character”?
24. The applicant conceded that the drug offences of which he was convicted in 2004 “reflect[ed] poorly on [his] character” but he submitted that, in the period of over three years since his release from prison in November 2005, his character had “changed dramatically”, as confirmed by the abovementioned statutory declarations attesting to his good character. He submitted that he is genuinely remorseful for having committed those offences and that he has been drug-free since November 2003 and does not intend to revert to his previous lifestyle or to reoffend. He also submitted that sufficient time had already passed since his release from prison for the Tribunal to be satisfied that he is now of good character and that “more time won’t make any difference”.
25. The drug offences of which the applicant was convicted in 2004 are clearly of a serious nature as indicated by Kennedy CJDC in her sentencing remarks and as reflected by the sentences which she imposed (see paragraph 10 above). Those drug offences, furthermore, were not isolated instances of criminal conduct on the part of the applicant, having been preceded by a long history of criminal convictions in Australia – albeit far less serious than the 2004 convictions – dating from 1980 (see paragraphs 7-8 above). Although there are no recorded criminal convictions in respect of the applicant in the period 1991-2003, the Tribunal notes that the applicant has acknowledged that he consistently used an illicit drug, namely, amphetamines, throughout that period, and that, from at least 2000, he took that drug intravenously in very substantial quantities of “a couple of grams” per day. Having regard to the applicant’s recorded criminal history in Australia from 1980 culminating in convictions for serious drug offences in 2004, together with his use of illicit drugs for most of that period, the Tribunal is satisfied that the applicant was not of good character for the duration of that period.
26. The question is whether, notwithstanding the abovementioned lengthy period of criminal conduct on the part of the applicant and his lack of good character for the duration of that period, the Tribunal can now be satisfied that he is presently of good character.
27. The applicant pointed to his “achievements” since his last offences – in particular, his remaining drug-free since November 2003 and his stable and successful employment in the mining industry since July 2006 – as demonstrating that he is now of good character. As regards the applicant’s claim that he has remained drug-free since his arrest in November 2003, the Tribunal notes that there is some evidence suggesting that he continued to use amphetamines during his period of incarceration from August 2004 to November 2005 (see the note made by the Palmerston Centre counsellor on 1 December 2005 referred to in paragraph 17 above). The Tribunal also notes, however, that the applicant disputes the truth of that note, and that the Department of Justice “Immigration Report” of 13 July 2005, which relates to the applicant’s conduct during his incarceration, makes no reference to any drug usage on his part and indicates that his prison performance was generally satisfactory. There is, furthermore, no evidence before the Tribunal that the applicant has used illicit drugs since his release from prison in November 2005. As regards the applicant’s claim that he has had stable and successful employment in the mining industry since July 2006, suffice it to say that the Tribunal is satisfied that that claim is borne out by the statutory declaration and emails from three of the applicant’s employment supervisors which are in evidence (Exhibit A1, pp 13-14; T29-T30).
28. The Tribunal notes, on the other hand, that there is no evidence before it that the applicant has, since his release from prison, engaged in any voluntary, charitable or community work, or participated in any rehabilitation programs, or attended meetings of support groups (such as Narcotics Anonymous), or undertaken a substantial period of counselling with an appropriately qualified health professional which might have objectively demonstrated a clear commitment on his part to rehabilitate himself and re-establish his good character. The Tribunal does not regard the applicant’s attendance at the Palmerston Centre in December 2005 as particularly significant as regards his rehabilitation because, according to his own evidence, he attended in fulfilment of a condition of his parole and he attended on only three occasions before deciding to discontinue his attendance. The Tribunal notes, however, that the counsellor, in her initial assessment summary on 1 December 2005, commented that the applicant “appears motivated to continue to abstain” and “appears positive about his life and his future” (Exhibit A1, p7).
29. An important matter in considering whether the applicant has rehabilitated himself and re-established his good character is, in the Tribunal’s opinion, whether he has fully accepted responsibility, and is genuinely remorseful, for his wrongdoing – in particular, for committing the serious drug offences of which he was convicted in 2004. The Tribunal notes that Kennedy CJDC, in her sentencing remarks on 4 August 2004 (see paragraph 10 above), commented that the applicant had “shown considerable remorse”, although she did not elaborate thereon. The applicant has also, in his evidence before the Tribunal, expressed his remorse for having committed those offences. Having considered the whole of the evidence before it, however, the Tribunal has reservations regarding whether the applicant has fully accepted responsibility, and is genuinely remorseful, for having committed those offences. The Tribunal notes, in this connection, the statements made by him in letters to the Department in July 2005 and in 2008 (see paragraphs 14 and 16 above) regarding the circumstances in which those offences were committed by him, and his evidence in cross-examination whereby he sought to disavow those statements – evidence which, in the Tribunal’s opinion, was self-serving and less than convincing.
30. Having regard to the whole of the evidence before it, the Tribunal is not presently satisfied that the applicant has yet rehabilitated himself to such an extent that it can reasonably be said that he is now of good character. The Tribunal acknowledges, on the other hand, that he has taken important steps in that direction by securing, and successfully maintaining, gainful employment from July 2006, and by apparently remaining drug-free and crime-free since his release from prison and the expiration of his parole obligations. In the Tribunal’s opinion, however, sufficient time has not yet passed, and the applicant has not yet taken sufficient steps, to enable the Tribunal to feel confident that he will not relapse into illicit drug use in the future and to be satisfied that he is now of good character.
31. Accordingly, the Tribunal is not satisfied that the applicant is now “of good character” within the meaning of s 21(2)(h) of the Act.
Decision
32. For the above reasons the Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: :...............[sgd D Brodie]........................
Associate
Date of Hearing 9 March 2009
Date of Decision 19 March 2009
Representative of the Applicant Self-represented
Counsel for the Respondent Mr S Thackrah
Solicitor for the Respondent Australian Government Solicitor
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