Boskovic and Minister for Immigration and Multicultural Affairs
[2000] AATA 251
•2 February 2000
DECISION AND REASONS FOR DECISION [2000] AATA 251
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1020
GENERAL ADMINISTRATIVE DIVISION )
Re MIROSLAV BOSKOVIC
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr D. Chappell
Date2 February 2000
PlaceSydney
Decision FOR the reasons given orally at the conclusion of the hearing in this matter the decision under review is affirmed.
(sgd) Duncan Chappell
..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship application – refusal to grant – not person of good character due to past criminal conduct – citizen of ……. – convictions for wounding with intent to cause grievous bodily harm and murder – previous consideration for deportation – history of alcohol use and dependency – brain damage and chronic pain resulting from severe motor vehicle accident – consideration of seriousness of offences – prospects of rehabilitation assessed to be good – risk of recidivism assessed to be low – insufficient effluxion of time for applicant to now be of good character – citizenship refused.
Australian Citizenship Act 1948 s 13
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187
Sotir Trajkoski v Department of Immigration and Multicultural Affairs (AAT 13088, 13 July 1998)
REASONS FOR DECISION
2 February 2000 Dr D. Chappell
This is an application by Mr Miroslav Boskovic for the review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s 13 of the Australian Citizenship Act 1948 (the Act). That decision refused the granting of Australian citizenship to Mr Boskovic. The refusal was based on a finding that he was not a person of good character, as required by s 13(1)(f) of the Act.
The reasons for that decision are set out in the Tribunal documents. Those documents, together with supplementary documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal. I will just refer briefly to the reasons given by the Minister's delegate for that refusal. The delegate, Ms Bin Ahyens, said that her decision to reject Mr Boskovic's application, was based on the ground that he had been convicted of two serious offences for which he received four years and twenty years gaol respectively. Before and between those convictions he was also charged with other offences (T2:8).
At the time of his application for citizenship Mr Boskovic had been out of gaol for three and a half years, and he has had no further criminal charges since he left gaol in 1995. The decision-maker took into account the number of convictions, the seriousness of the convictions, the period of sentence and the time since release from gaol. The decision was also made without reference to his conditions of release.
The application made to the Tribunal for review of the decision was lodged on 7 July 1999 (T1). The Tribunal's jurisdiction to review this decision is provided for by s 52A of the Act and that review has taken place over two days of hearings, 1 and 2 February 2000. Mr Boskovic, who was unrepresented, gave personal testimony to the Tribunal and he also called two witnesses to give evidence on his behalf: Mr Robert Mouxouris, a welfare worker and Mr Barry Dack, a drug and alcohol counsellor who has worked for a number of years in the New South Wales correctional system.
The respondent was represented by Ms Sharon Hanstein.
A number of exhibits, some of which I will mention as I proceed through the decision, were taken into evidence before the Tribunal and appear on the Tribunal records.
Let me now refer briefly to the legislation and the policy that provides guidance to the Tribunal in its decision-making. This legislation and policy is also referred to in the respondent's Statement of Facts and Contentions. Section 13 of the Act, which is the relevant provision, provides that:
(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:
and then a number of criteria are listed, including (f):
the person is of good character;.
Policy guidance to decision-makers exercising powers under the Act are provided by the Australian Citizenship Instructions (ACI). The Tribunal accepts the contention, contained in paragraph 4 of the respondent's Statement of Facts and Contentions, that unless there are cogent reasons to the contrary, and there are not in this instance, the ACI guidance should be applied. ACI paragraphs 4.8.15 through 4.8.28 are relevant to the good character requirements that are at the essence of the present matter. They are set out in full in the Tribunal documents at T4:16-18.
"Good character" is not defined as such in the Act, nor for that matter in the ACIs. Guidance, indeed binding guidance, is provided on this issue by the Full Federal Court decisions in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 and in Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187. In Irving, in particular, the Full Federal Court made a number of pertinent observations about the approach that should be adopted by decision-makers like the present Tribunal when considering issues of character. I would just like briefly to remind both Mr Boskovic and Ms Hanstein of what Davies J said in Irving:
It should also be observed that 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.
(at 9)
And then there is a reference made to the Oxford English Dictionary and Macquarie Dictionary:
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.
(at 9)
I think this statement made by Davies J in Irving is of great assistance to this Tribunal in deciding what it is that amounts to good character. So too is the pithy statement of Lee J in that case when he reviewed good character as:
"the enduring moral quality of a person"
(at 19)
The ACI sets out a number of matters which should be considered by decision-makers when determining whether or not a person is of good character. I will not read out each of those principles at this stage but the ACI makes it clear that the nature of the offences, the number of offences committed, the circumstances leading to the crimes committed, the applicant's age at the time an offence or offences were committed, and the behaviour of the applicant since the crimes were committed, as well as that person's present reputation in the community are all matters to be taken into account.
I turn now to the evidence. I think it is helpful to summarise the chronology of events which are not in dispute and which are set out in a very helpful way in the respondent's Statement of Facts and Contentions. Mr Boskovic was born in the former Yugoslavia, in what is now Croatia, on 8 November 1953. He was nominated to migrate to Australia and sponsored by his uncle, in 1973. He arrived in this country on 19 February 1974. He was granted permanent residency on 7 March 1974.
On 11 June 1978 Mr Boskovic committed an offence of wounding with intent to cause grievous bodily harm – he stabbed a person who was his former defacto partner. I should note that in relation to the conviction that resulted from that offence, and also from a series of other offences, Mr Boskovic did not dispute in any way the record of criminal convictions that he has acquired since arriving in Australia. These are set out at T:159-162. Following the commission of this first offence in June 1978 Mr Boskovic was convicted on 1 December, of that year, of the offence of wounding with intent to do grievous bodily harm after entering a plea of guilty. He was sentenced to four years imprisonment with a non-parole period of two years. Following that conviction and sentence, he became liable for deportation and was interviewed by officials of the respondent, who were considering his possible expulsion from the country.
Mr Boskovic was released to parole in December 1979 and in February 1980, shortly after that release he was informed by the Minister that a decision had been made. The decision made by the Minister was that he should not be deported on this occasion. He was warned that further offences would result in reconsideration of that deportation. In July 1980, Mr Boskovic made his first application for Australian citizenship. Indeed, over the succeeding two years he made two further applications which I will not refer to in any detail but which are all documented in the Tribunal documents. These applications resulted, eventually, in the granting of a certificate of Australian citizenship to Mr Boskovic in July 1983. However, this certificate was then revoked because it seems the respondent's officials were unable to locate Mr Boskovic.
Further offending then followed leading eventually, in June 1987, to Mr Boskovic's conviction for the crime of murder in the Supreme Court of New South Wales. I will come back to that offence in more detail in a moment but it resulted in a sentence of 20 years penal servitude with a non-parole period of 14 years. An appeal by Mr Boskovic to the New South Wales Court of Criminal Appeal against that conviction and sentence was subsequently dismissed in October 1988. There was also a related conviction concerning the possession and purchase of an unlicensed firearm.
Following this conviction and sentence Mr Boskovic spent a number of years in gaol. He was again released to parole in October 1995 and he then lived for a period of two years in a housing complex run by a rehabilitation committee offering a service to people who have been released from custody after long prison sentences. His parole period expired completely in January 1999. He then lodged his fourth application for Australian citizenship. The refusal of that application by the respondent is what leads to the present proceedings before the Tribunal.
I turn now to the evidence relating to the convictions concerning the two very serious offences which led to prison terms and in particular to the very lengthy prison term for the murder conviction which has been the most recent offence committed by Mr Boskovic. Mr Boskovic did not at any time dispute the circumstances of those crimes as they were set out in the evidence before the Tribunal. The first of those offences of violence was the conviction for wounding with intent to cause grievous bodily harm. The most detailed description appears at T:110-111. The following quote comes from part of a report which was prepared by the respondent's officials at the time that Mr Boskovic was being considered for deportation and it contained these secondary sources of information about what was said by both the judge sentencing Mr Boskovic and also what was submitted to the Court during the committal proceedings. In the latter it was noted that:
Miroslav Boskovic born (8.11.53) was living in a defacto relationship with the complainant Maleka Basic for a period of about eight months. The complainant left the defendant after an argument about her wanting to resume work in a massage parlour. On this occasion threats were made by Boskovic towards the complainant. He reiterated these threats to her father, Milan Basic.
On the 11th day of June 1978 Boskovic searched the premises of relatives of Basic and also her friend's places looking for the complainant. He was seen to be in the possession of a knife on this occasion. In the early hours of Sunday morning of the same date after finding her whereabouts he lay in wait for her finish work at the Chez Michelle Massage Parlour in St Kilda Road. … The complainant left work and was about to enter a taxi, the offender attacked her with a knife inflicting about a dozen serious stab wounds and cuts to the complainant. As a result of the attack, the complainant was in the intensive care ward of the Alfred Hospital for a period of about two weeks in a critical condition.
The complainant has since been discharged from hospital, however, she is still suffering from the effects of the attack.
(T28:110)
Then the report goes on to mention what was said by the trial judge when sentencing Mr Boskovic.
You have pleaded guilty to a charge of wounding with intent to do grievous bodily harm. I think that you are quite right to plead guilty because on the evidence in the depositions there seems little doubt that the jury would have convicted you in any event, and indeed, the jury may have convicted you of the more serious charge of wounding with intent to murder. I have heard what Mr Tovey has said on your behalf, and I accept the view that you were placed in circumstances which have caused you great emotional stress. I take into account the fact that you are a young man and that you have not been in trouble before. On the other hand, the evidence shows that you were trying to find where this girl was working, you purchased a knife, you waited outside the massage parlour where she was working and then attacked her when she came out. I am inclined to think that you acted in a frenzy and that even now you probably have no clear recollection of the attack. But you were lucky that your knife didn't sever some blood vessel or penetrate some organ which brought about the death of this girl. It was, in my opinion, pure luck that you did not kill her.
(T28:110-111)
The second offence of violence which resulted, on this occasion, in the death of the victim was committed in 1986. The description which the Tribunal has of this offence is contained in documents which were subpoenaed from the Court of Criminal Appeal and the Supreme Court of New South Wales and they are to be found in exhibits R2, R3 and R4. Yeldham J was the judge who sentenced Mr Boskovic on this occasion and those sentencing comments were provided on 26 June 1987. Again, I quote his Honour:
Miroslav Boskovic you have been convicted of murder. The jury, which rejected your claim to be guilty only of manslaughter, obviously was satisfied that, whatever your state of intoxication, you did have the intent to kill or cause grievous bodily harm when you shot your victim several times on the night in question. This you did with a small pistol, which I am satisfied you purchased in the hotel that very afternoon for the express purpose of using it, if necessary, in the fashion which you did.
Your counsel has urged upon me that because of your mental condition as revealed in the material tendered after your conviction yesterday, and also your condition as to sobriety on the night in question, your culpability was significantly diminished by mitigating circumstances, and that hence I should not send you to gaol for life.
A psychologist, Mr Fox, has performed tests upon you from which he concluded that you had some frontal lobe brain damage, consequent upon a motor vehicle accident some years earlier. Dr Milton said that this and your prior excessive drinking would increase your tendency to loose control after consumption of large amounts of alcohol. He said also that he did not consider the degree of brain damage demonstrated would, in itself, constitute a significant abnormality of mind sufficient to diminish your responsibility to a substantial degree within the meaning of section 23 of the Crimes Act. Dr Shand, who saw you for the Crown, said that you suffered from a personality disorder including chronic alcoholism and probably pathological jealousy. I have read and considered also the notes of the Roselle Hospital concerning your admission in 1985 and the report of Sister Moriati from whom you have been having counselling while in gaol for your alcoholism.
With some hesitation, I have come to the conclusion, after consideration of this material and what your counsel has said, and of the decision of the Court of Criminal Appeal in the Queen v Philip Jones (1986)22 ACR 42, that the case is not one in which a life sentence is mandatory, but I propose to send you to gaol for a very long time. What you did to this poor unfortunate lady, who had earlier tried to help you overcome your problem with alcohol, was wicked in the extreme. You deliberately purchased a pistol and then in your anger with her, because she would not take you back, you shot her at short range intending that she should die or suffer grievous bodily harm.
(R2:1-2)
I pass over several other paragraphs and go to the concluding one. Yeldham J said:
I sentence you to penal servitude for twenty years and I fix a non parole period of fourteen years. Those periods will date from 2 April 1986, since when you have been in custody. I recommend that while in prison you be given the opportunity to continue the therapy which you have been having in relation to your alcoholic problem.
(R2:3)
That is sufficient to indicate the nature of the circumstances surrounding the two very serious crimes of which Mr Boskovic has been convicted. In addition, as I have indicated, there are other offences which are not of such gravity but nonetheless quite continuous up until the time that he was convicted of murder. I turn next to the evidence concerning the circumstances surrounding Mr Boskovic's performance in prison and also his present reputation as those matters are referred to in the ACI guidelines.
Mr Boskovic was in his early 30s at the time that he committed the murder and he has been in prison for a significant period since that time or under parole supervision. The evidence that was presented to the Tribunal suggested that throughout the time that he has been in prison most recently, and on parole, Mr Boskovic has behaved in a model manner and did much to impress those who were supervising him during his correctional custodial period.
Mr Dack, who gave personal testimony to the Tribunal by phone, said that he had been providing drug and alcohol counselling, on a continuing basis, to Mr Boskovic during the time that he was in prison. Mr Dack had also been giving him one on one counselling. Mr Dack said that he had worked for 25 years as a counsellor and that one of the rewards that he obtained in a professional job which did not have many rewards was seeing people who could and did change and Mr Boskovic was one of those people. He said that Mr Boskovic was a man who had made a genuine effort to rehabilitate himself and had done all he could to obtain the benefit of Mr Dack's professional advice and guidance as a counsellor.
Mr Boskovic worked diligently while in prison to improve his qualifications to obtain employment upon release. He took courses at TAFE in painting and decorating and there are certificates showing those attainments as part of the exhibits before the Tribunal. There is also a certificate and reference from the Correctional Services industries indicating the fine work done by Mr Boskovic while working in their warehouse office and factory operations. I think it is correct to say as well that Mr Boskovic was released on work release for 12 months which indicates again that he achieved a trusted classification in the present system which would enable to him to work outside the parameters of the prison walls.
Evidence was received from a Mr Mouxouris, both in a statement and in personal testimony. Mr Mouxouris was a welfare worker for the Civil Rehabilitation Committee Justice Support Group. Mr Mouxouris is an experienced welfare worker who has had quite long-standing experience assisting Mr Boskovic since his release from gaol in October 1995. The best description of Mr Mouxouris' contact with Mr Boskovic is contained in a statement which is again one of the exhibits before the Tribunal. In it, Mr Mouxouris says that he had known Mr Boskovic since his release, in October 1995, when he took up residency with the CRC Justice Support as part of a supported housing project.
Miroslav resided at our crisis house for approximately 10 weeks, after which he moved into one of our outreach houses, where he lived until October 2, 1997.
Since that date he has been living in independent accommodation on the private rental market.
During the 2 years that Miroslav spent with CRC I had contact with him at least twice a week, if not on a daily basis. In both a professional and personal sense, I got to know Miroslav very well and can vouch for him as a man of good character.
Despite the many obstacles facing him upon his release from gaol, Miroslav has coped well, taking full advantage of the support offered to him by CRC. To that end, he has made great strides and has proven himself to be a good member of Australian society.
He spent his time constructively and is a model citizen, in my opinion, who is honest, reliable and trustworthy. He is extremely unlikely to re-offend and leads a stable, normal life.
(A1:154)
Mr Mouxouris has no hesitation in supporting Mr Boskovic in his application to become a citizen. The Tribunal found Mr Mouxouris, like Mr Dack, to be a frank, truthful and credible witness on behalf of Mr Boskovic. Mr Boskovic himself also gave personal testimony and the Tribunal found him to be credible. He made no attempt to hide from the realities of what he had done, or the gravity of the crimes that he had committed. He acknowledged that he had a serious drinking problem but stated that he had done what he could to address that problem and he had been abstinent from alcohol and drugs since his commission of the murder in 1986.
Mr Boskovic said that he had done all that he could to change, to rehabilitate himself. He referred as well to his medical history including his brain damage stemming from a motor vehicle accident which occurred shortly after Mr Boskovic arrived in Australia. He referred to the impact that accident had upon him. That is confirmed by the other evidence before the Tribunal, evidence which was also referred to by Yeldham J at the time of sentencing Mr Boskovic. In particular, I refer to a report from Dr Rod Milton, who in the letter addressed to the Director of the Legal Aid Commission said, after referring to certain psychological tests that had been conducted by a psychologist on Mr Boskovic:
I note that Mr Boskovic showed considerable difficulty in recalling a complex animal-like figure. This is a well reputed test and in my experience gives an excellent indication of frontal lobe problems. Similarly, tests of visio-spatial memory are also good indicators of frontal lobe dysfunction because they are a test of memory without much relation to language and I note that in this instance Mr Boskovic did badly.
OPINION: It is not surprising to find evidence of brain damage. This would be likely to arise in part from the severe head injury suffered by Mr Boskovic years ago, but also from his excessive drinking. The net effect of the head injury would to be increase Mr Boskovic's tendency to lose control after consumption of excessive amounts of alcohol
(R4)
Dr Milton then went on to express the view that despite the brain damage, the injury was not sufficient to bring Mr Boskovic within the framework of diminished responsibility provisions of the New South Wales Crimes Act 1900. That observation was made at the time of his trial for murder. More recently, Mr Boskovic has had other health problems as he described in his own testimony to the Tribunal. He tendered reports from his treating physician, Dr Oreb, at the King Street Medical Centre. I will just read briefly from part of the report of Dr Oreb on 8 October 1999. It is addressed "to whom it may concern", and says:
Mr Miroslav Boskovic is a 46 year old male and the patient of this Medical Centre for 2 - 3 years. At present the patient is complaining of;
·Lower back pain
·Thoracic and neck pain
·Right shoulder/right elbow pain
·Poor erections
It goes on to note that Mr Boskovic had back surgery in February 1997 which improved certain aspects of his back problem but resulted in only a negligible improvement of the back pain itself. Dr Oreb went on to make the following diagnosis:
1. L4-L5 Decompression
2. Chronic lower back pain with chronic pain syndrome
3. Mechanical derangement of thoracic and Cervical spine
4. Poor erection secondary to lower back pain
5. Mental stress/ depression
6. HEP C positive
The prognosis given was "poor" and Dr Oreb concluded by saying:
The patient is unfit for any labouring work and is only fit for very selective duties with minimal standing and walking involved.
(A1)
Mr Boskovic told the Tribunal that he is now on a full disability pension as a result of these afflictions. He said that he is now living in private accommodation, that he has a partner, that he is very limited in what he can do because of his poor health and that it is not possible for him to obtain regular full-time employment. He has made reference to his parents who are, he said, both old and in poor health and still living in the former Yugoslavia. It would seem that some siblings are also living in Yugoslavia.
Mr Boskovic also has relatives living here in Australia. He said that he had lived the majority of his life here in this country. He feels part of this country, he feels Australian and he wants to become a citizen. That summarises the relevant evidence that was presented to the Tribunal. I turn now to consider that evidence and to look at it in the framework of the decision that must be made by the Tribunal as to whether or not Mr Boskovic is a person of good character.
Ms Hanstein, in her submissions, acknowledged the strength of the evidence which I have referred to concerning Mr Boskovic's efforts at rehabilitation both in prison and on his release. Ms Hanstein said, however, that not enough had been done by him to demonstrate that he was now a person of good character, given the gravity of the offending which I have previously described. She suggested that there were in fact few good deeds that could be pointed to over and beyond his own personal rehabilitation and that the applicant had not made significant contributions to the community.
Ms Hanstein pointed to the fact that only one year had elapsed since parole ended. In the respondent's submission, Ms Hanstein indicated there were incentives for Mr Boskovic to be of good behaviour while he was on parole and that more time should and would have to elapse in order to assess what his true character was. Mr Boskovic, in his submissions, disagreed with this assessment. He said he was a different person and he had done all he could to change himself since his prison sentence for murder. He had been out in the community for nearly five years. He had paid the price for the past misdeeds and he should now be granted citizenship.
I now turn to the Tribunal's views, based on the submissions and the evidence. This is not an easy case. The evidence does reveal very positive efforts by Mr Boskovic to overcome what can only be described as a very serious record of violent crime, culminating in a conviction for murder. He has been crime-free since that murder. He has sought to acquire new skills to make himself employable. He has sought the assistance of drug and alcohol counselling to understand the factors which lay behind his offending.
The evidence presented shows that Mr Boskovic has been alcohol and drug free since 1986. He is suffering a number of disabilities which make work very difficult for him, if not impossible. He has also - as he indicated in his closing comments - been associated with singing at the Pentecostal Church. On these objective measures, Mr Boskovic does display some of the features, or "enduring moral qualities", which are part of the rich mix that must be assessed as to whether or not a person is entitled to be described as being of good character.
There remains, however, the enormity of the violence inflicted on two women with whom he was involved in a relationship. One of those all but died, as has been indicated in the excerpts that I have read, and the other did die in what the New South Wales Supreme Court and the Court of Criminal Appeal found to have been a crime in which Mr Boskovic had the required intent to kill or inflict grievous bodily harm.
The latter crime was in fact a premeditated killing and I think it is important to go back to what the Court of Criminal Appeal said about this when it reviewed the sentence and the conviction following the jury decision and the sentence imposed by Yeldham J. Lee J, speaking for Carruthers and Grove JJ, referred to the conviction for murder and noted in the appeal that Mr Boskovic was in fact unrepresented. Lee J said the following:
The appellant's substantial defence was that he was so drunk he didn't know what was happening. There was evidence in the documents to which I have referred and at the trial that the appellant was a heavy drinker and had been for many many years such. There was also evidence in Dr Fox's report that a motor accident some considerable number of years earlier in which he sustained a head injury, coupled with the heavy drinking and coupled with the head injury may have rendered him more vulnerable to lose control than otherwise would be the case.
Because of that it seems, and only because of that, his Honour was prepared to view the matter as one not requiring the mandatory life sentence. His Honour said that he took that course with some hesitation and I can understand his Honour's hesitation, and I take the view which I expressed here in the course of argument that if there is any error at all in his Honour's judgment it was on that matter. However his Honour having taken that viewpoint decided nonetheless that the case was a premeditated killing and that it called for a heavy sentence with an obvious element of deterrence in it.
(R3:1-2)
So, again, it was clear from what Lee J said in that decision of the Court of Criminal Appeal that it was felt that if Yeldham J had made any error at all, it was erring on the side of leniency in not imposing a mandatory life sentence. In fact, the sentence which was imposed was 20 years. As a result of remissions that period has been reduced and Mr Boskovic has not only been released out into the community for a number of years but is now in essence free of all his obligations to the Court.
The policy direction at paragraph 4.8.26, to be found at T:18 of the Tribunal's documents, says the following about the question of behaviour since the crime was committed, and in particular, how much time might be relevant:
Policy does not establish any specific time requirement for a finding of good character. However, a reasonable amount of time will need to have passed since the last crime was committed to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
I asked Ms Hanstein if she could be of any assistance in pointing the Tribunal to authorities and also to any policy consideration as to what would be a reasonable amount of time if, as she had contended, one year was not sufficient after Mr Boskovic had completed his parole. Ms Hanstein was very helpful in providing assistance to the Tribunal but she declined to offer any specific time, saying that was a matter for the Tribunal. She did indicate that it had been a general rule in the past that five years after a person had been free of any court obligation was a sufficient lapse of time.
I have found one earlier decision of the Tribunal which assists and relates to the particular issue of the amount of time that might elapse, or the reasonable amount of time that might elapse, in considering a citizenship application. The decision is one of my colleague, Deputy President McDonald, in Sotir Trajkoski v Department of Immigration and Multicultural Affairs (AAT 13088, 13 July 1998).
It did in fact involve a review of an application made by an applicant who was seeking citizenship and who had been denied it under section 13(1)(f) on the basis of his past criminal conduct. This is the same situation that faces Mr Boskovic. In that case, at paragraphs 18 and 19, the Deputy President made some statements, which I want to quote. Before that, I might just mention that in this case as well DP McDonald apparently had before him an intra-departmental memo confirming that the applicant should spend at least five years free of any Court obligation before the Department would consider him under the good character provision of the Act. This seems to confirm what Ms Hanstein said but there is no such intra-departmental memo before this Tribunal. DP McDonald stated:
As the Tribunal has consistently stated, it will, unless there are exceptional circumstances, follow published Departmental Guidelines. In this case there is no reason why the instructions, with respect to citizenship should not be followed. Clause 4.8.26 nominates that a reasonable time from the time the crime was committed must have passed before a person can be considered to be of good character. In this case, nearly ten years has passed since the applicant committed his last serious offence. Any decision maker must regard the trafficking of drugs, be they cannabis or heroin, as constituting serious offences rendering a person to be considered not of good character. It is, however, acknowledged that a person can over time reform..
(at 18)
DP McDonald then goes on to talk about what he had done while in prison:
In this case there is nothing to suggest that the applicant was other than a model prisoner - he told the Tribunal he spent some time as the librarian at the Canning Vale Prison and that he had taken interest in reading newspapers and keeping himself informed as to political issues. This led him to wanting to vote in Australian elections. He said during the period of imprisonment as a consequence of his reading his English greatly improved. [There is evidence that] leaves the Tribunal satisfied that the applicant has been willing to share his experiences to demonstrate to other youths from the Macedonian community about the adverse consequences of being involved with drugs. Additionally, the applicant has voluntarily spent time assisting in other Macedonian youth based activities. The Tribunal also accepts the applicant's evidence that his family is now the central focus of his attention. There is no evidence to suggest that the applicant is either still mixing with his former undesirable associates or involving himself in the commission of any drug or other offences. The applicant said he planned to set up his own business.
(at 19)
That was the context in which DP McDonald set aside a decision and found the applicant in that case to be a person of good character, despite having been convicted of a number of serious drug related offences. I have looked at this case and I have considered what Deputy President McDonald said and I concur, in general, entirely with the approach that he took. However, in this case the two offences of violence which have been committed by Mr Boskovic are of much greater gravity, in the Tribunal's opinion, than the case of the offences that Deputy President McDonald had before him in the Trajoski case.
Mr Boskovic's crimes are described, or can be described, as abhorrent and are ones which are of grave concern to the Australian community. Nearly 15 years have, however, elapsed since the commission of the last offence. Mr Boskovic has only been free of court obligations for a period of one year. It is a fine balance as to whether or not a person can be considered to have rehabilitated himself or herself to the extent that the person's enduring moral qualities can now be considered those of a person of good character. In circumstances where very serious crimes have been committed there must always be an element of risk in reaching such a decision.
On the evidence before it, and having taken account of the submissions and the authority that I have referred to, the Tribunal is not in this case persuaded that it can be satisfied that Mr Boskovic is now of good character. He is undoubtedly a long way along the road to rehabilitation but he is not yet there. The Tribunal raised earlier the possibility of exercising the power to defer making a decision in this matter within the context of section 14 of the Act. I asked Ms Hanstein specifically about this matter and there was some discussion in the context of the submissions that she made. That deferral could be made for a period of up to or not exceeding 12 months. Section 14(1) of the Act says that:
Subject to subsection 2 where:
(a) an application is made to the Minister under section 13
as it is in this case, and -
(b) it appears to the Minister at a particular time that:
(1) if the Minister were to complete consideration of the application at that time the Minister would be likely to refuse the application otherwise than by reason of the operation of paragraph 13(1)(d) or (e)
which are not relevant here and, indeed, I think paragraph 1 applies in this case and -
(2) having regard to the effluxion of time, or the likelihood of a change in circumstances, the Minister would be likely to grant the application if consideration of the application were deferred for such period as the Minister determines, the Minister may, in the Minister's discretion, defer consideration of the application until the expiration of that period.
Ms Hanstein stated that the respondent did not contest the view that section 14 was a power which could be exercised within the framework of the Tribunal. It did not require a matter to be referred back to the Minister for such an exercise of power, a view which the Tribunal shares. The question then to be asked is whether the Tribunal would reach a different decision in a different time frame or as a result from the effluxion of time or if there was a likelihood that there would be a change in circumstances, as section 14.1(b)(2) indicates.
Having carefully considered the evidence that is before the Tribunal, I think there is nothing that would say that there was likely to be a change in the circumstances which would justify such a deferral, nor do I think the situation in decision making would be different merely through the effluxion of another period of up to 12 months. The Tribunal is therefore not minded at this point to exercise the discretion that is contained in that particular section of the Act. Thus, the decision of the Minister is affirmed.
In reaching that decision, however, I would like to add the following comments. First, Mr Boskovic, if circumstances do change then you can bring a further application and those circumstances could involve a range of things including the type of activities that were mentioned in that case that I read from in Trajovski. Changes in those types of circumstances might well result in a different view as to the nature of your character at this point. Also, I would like to say that in regard to the effluxion of time, without any change in the circumstances, I feel that there is no clear rule here.
Some guidance might be obtained from the time nominated by Yeldham J for the head sentence of 20 years. That 20 years was a head sentence which the Court of Criminal Appeal thought probably to have been a lenient one in terms of not being a decision as to mandatory life imprisonment. I have already indicated the gravity of the offence, as did the Court of Criminal Appeal, and if one took 20 years as a guide to the amount of time that should elapse if nothing else were to change, it could be said that a person with such a criminal record might have now established good character, there is clearly still some time to elapse for Mr Boskovic.
Finally, I would like to say that Ms Hanstein conceded that Mr Boskovic might still face the possibility of deportation under section 200 of the Migration Act 1958 or the cancellation of his visa under s 501 of that Act. This is a possibility, since the result of the decision reached by the Tribunal at this point is that he remains a non-citizen and liable therefore to the provisions of those two sections of the Migration Act.
Obviously, the present application does not involve a consideration of such grave possibilities, and the Tribunal would indicate that there was significant evidence before the Tribunal that would suggest that if it were to have been looking at a cancellation of a visa, it would have exercised a discretion not to refuse a granting of a visa despite a finding of bad character or, alternatively, if it had been a situation involving section 200 of the Act the evidence also showed a very low risk of re-offending, of strong ties to this country, coupled with significant disabilities on the part of the applicant, which would weigh significantly in his favour and would make it unlikely that the Tribunal would affirm expulsion at this point.
That is all I wish to state in the course of this decision. I thank you, Ms Hanstein, and Mr Boskovic for the assistance you have provided.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell
Signed: .....................................................................................
AssociateDate/s of Hearing 1 and 2 February 2000
Date of Decision 2 February 2000
Representative for Applicant Unrepresented
Solicitor for the Respondent Ms S. Hanstein
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