Carey and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 2142
•28 June 2018
Carey and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2142 (28 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2806
Re:Adam Carey
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal:Mr P W Taylor SC, Senior Member
Date:28 June 2018
Place:Sydney
The decision under review is set aside. I remit Mr Carey’s citizenship application to the Minister for reconsideration in accordance with these reasons, finding and decision.
.............................[SGD]...........................................
Mr P W Taylor SC, Senior Member
Catchwords
CITIZENSHIP – special category class TY subclass 444 visa – citizenship by conferral – good character – previous convictions – substantial criminal record – drug and dishonesty convictions – carnal knowledge of a minor – reporting obligation offences – personal circumstances – commendations – quality of good character – Citizenship Policy applied – character assessment – contemporary good character – decision set aside and remitted
Legislation
Australian Citizenship Act 1948 ss 10B, 10C, 11
Australian Citizenship Act 2007 ss 16, 17, 24
Australian Citizenship Amendment Act 1984 No 129 of 1984
Child Protection (Offender Reporting) Act 2004 (QLD)
Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (QLD)
Child Protection (Offender Reporting) and Other Legislation Amendment Act 2014 (QLD)
Citizenship Act 1977 (NZ) s 6
Criminal Code Act 1899 (QLD) s 215
Migration Act 1958 ss 116, 501Road Transport Act 2013 (NSW)
Cases
Baharestan and Minister for Immigration and Citizenship [2011] AATA 420
Dandan and Minister for Immigration and Citizenship [2010] AATA 539
Ex parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR(NSW) 448
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hasib and Minister for Immigration and Border Protection [2015] AATA 82
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
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Steele and Minister for Immigration and Multicultural Affairs [1997] AATA 405Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Secondary Materials
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 (QLD)
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
28 June 2018
A ministerial delegate rejected Mr Carey’s 24 August 2016 application for Australian citizenship, because he was not satisfied of Mr Carey’s contemporary good character.
Mr Carey’s review application sought to have the Tribunal set aside the delegate’s 27 April 2017 decision, and substitute its own contrary finding.
The circumstances underlying Mr Carey’s application, and the delegate’s decision are quite out of the ordinary. He was born in March 1969, whilst his 18 or 19 year old Australian citizen single mother was visiting New Zealand, and ill health temporarily delayed her return to Australia. The fact of Mr Carey’s birthplace gave him a statutory entitlement to the New Zealand citizenship status he holds:- see Citizenship Act 1977 (NZ) s 6(1)(a). Conversely, his mother’s status contingently entitled him to Australian citizenship:- see paragraph 5 below.
Mr Carey’s mother returned to Sydney with her infant son in June 1969. He lived with her, and grew up there, for the next 11 or 12 years. However his mother’s health issues, and the death of a man she married when Mr Carey was about eight, resulted in at least the latter part of that upbringing being apparently less than ideal. Sometime around 1980 / 1981 Mr Carey’s aunt became concerned for his welfare. Those concerns led her to obtain formal custody of Mr Carey in November 1981. At that time she was working in Wellington, New Zealand. Mr Carey lived in New Zealand with her until they returned permanently to Australia in about 1983 or 1984. That approximately four year period from about 1981 to 1984 was the second, and the last, occasion when Mr Carey has had any association with New Zealand. During it he attended school and, after leaving school at the age of 15, began an apprenticeship as a diesel mechanic.
Following his return to Australia, Mr Carey’s New Zealand citizenship ultimately made him eligible for a special category Visa (class TY subclass 444). That visa was first cancelled in May 2007. Following that cancellation, in early 2008 Mr Carey spent four months in immigration detention, until the visa cancellation decision was set aside by a Federal Court order, to which the Minister consented, in August 2008. More than seven years later, on 4 October 2015, a little over four hours after his airport arrival on return from an overseas holiday, and with no more than 90 minutes notice, his visa was cancelled again. Mr Carey has been in immigration detention ever since.
The Australian citizenship issue
The fact of Mr Carey’s mother’s Australian citizenship and ordinary residence, originally entitled him to Australian citizenship – subject only to the formal contingency of his birth being registered at an Australian Consulate (by 1974, or by any later time approved by the relevant Australian Minister):- see Australian Citizenship Act 1948 s 11(1)(b). After the Australian Citizenship Amendment Act 1984 No 129 of 1984, and until he turned 18 in 1987, Mr Carey would again have been automatically entitled to Australian Citizenship, subject only to consular registration of his birth: see Australian Citizenship Act 1948
s 10B.
Subsequently, under both the Australian Citizenship Act 1948 s 10C (until 2007) and the Australian Citizenship Act 2007 (“ACA_2007”) ss 16(2) & 17(2), Mr Carey’s maternal parentage, and his personal circumstances, meant he would have been entitled to be granted Australian citizenship, subject only to ministerial satisfaction that he was a person of good character.
Mr Carey’s “substantial criminal record”
Mr Carey’s criminal record underlies the reasons for both the 2007 and 2015 visa cancellation decisions, and the delegate’s 27 April 2017 citizenship decision. That record relevantly began with drug offences Mr Carey committed in late 1999, and eventually included about 39 convictions – involving 15 drug related offences prior to December 2009 and various failure to report offences between 2009 and April 2014. All of his recorded convictions, and their consequential sanctions, are listed in the Schedule to these reasons. The most serious of the convictions were in August 2002 and 2005.
The former involved drug trafficking in late 1999 and early 2000. They resulted in a two year prison sentence (of which Mr Carey served a 9 month non-parole period). The August 2005 convictions related to unlawful carnal knowledge of a young girl shortly before she turned 16 (in about April 2002) and drug offences in early 2004. Those convictions resulted in a five year prison term, of which Mr Carey spent 20 months in custody. (Each of the 2002 and 2005 sentences resulted in Mr Carey incurring a “substantial criminal record”, and consequently precluded him from satisfying the “character test” in Migration Act 1958 (“MigAct58”) ss 501(2), (6)(a), (7)(c).)
The October 2015 visa cancellation
As I later detail (see paragraph 57 below) Mr Carey is married and has two stepsons.
Mr Carey married his Australian citizen wife in February 2015. In early September 2015 he took her on a family holiday to Bali with her two sons, and then Mr and Mrs Carey had a short honeymoon in the Philippines. On his return arrival at Townsville airport on
4 October 2015, Mr Carey’s visa was cancelled – on the ground that his Australian presence was apprehended to pose a risk to the “health, safety or good order of the Australian community”:- see MigAct 58 s 116(1)(e).
The cancellation decision was made in an evident, and surprising, haste. So far as is apparent from the presently available material, the process did not display any genuine attempt to carry out the kind of fair and fully informed deliberative consideration that
Mr Carey’s circumstances required. So much is readily apparent from the following details of the events of 4 October 2015:-
(a)0915 hrs – incoming flight arrival at Townsville airport
(b)pre 1100hrs – initial brief interview by an immigration officer
(c)1200 hrs:- Mr Carey was purportedly given formal written notice of the intention to cancel his visa.
(d)1237 hrs:- Mr Carey was formally interviewed about the proposed visa cancellation. It was apparently during the course of this interview that he provided some of the information that was recorded in the formal notice of intention that had purportedly been given to him before the interview.
(e)
1330hrs:- a delegate completed a signed and typewritten record of decision containing (i) an incorrect statement that Mr Carey had been released from prison in 2007 (ii) an ambiguous statement that he had “considerable” subsequent convictions for various offences, (iii) an equivocal statement that the delegate had given “some” (unspecified) weight to Mr Carey’s personal family circumstances and rehabilitative efforts and, (iv) a statement that the delegate had given “considerable” weight to perceived inaccuracies in the information contained in
Mr Carey’s completed incoming passenger card and in his interview responses.
(f)1330 hrs:- Mr Carey was provided with a written notice of the cancellation of his visa.
It will be seen from the preceding details that if Mr Carey was in fact given the notice of intention at 1200hrs (a proposition whose accuracy I doubt – see paragraph 45 below) the interviewing decision maker operated on the basis that 37 minutes was the “reasonable period” (required by a notation instruction on the proforma decision record documents) between Mr Carey being given the notice and being required to respond to it. If there was a justification for proceeding on that basis, it is not apparent from any of the material put forward in the present proceedings.
The February 2018 spouse visa refusal
Shortly after his October 2015 detention Mr Carey lodged an application for a partner visa. The Minister refused that application on 28 February 2018. Mr Carey’s inability to pass the statutory “character test” (see paragraph 7 above) enlivened the Minister’s refusal discretion. In exercising that discretion the Minister opined there was a low likelihood that Mr Carey would re-offend, but nevertheless concluded that the risk re-offending posed to the Australian community was nevertheless unacceptable, having regard to the nature of Mr Carey’s previous offences.
The Minister’s character contentions
In contesting the review application, the Minister contended Mr Carey is not a person of good character because
(a)his 2002 and 2005 convictions involved serious offences
(b)he had not accepted full responsibility for the sexual offence underlying the 2005 conviction and, rather than showing persuasive remorse, had shown disregard for the young girl
(c)on many occasions after his release from prison in late 2005 Mr Carey had failed to comply with reporting obligations – under the Child Protection (Offender Reporting) Act 2004 (Queensland)
(d)there had been no significant periods since 2002 when Mr Carey had neither offended nor been subject to a period of imprisonment
(e)Mr Carey’s overall conduct was not indicative of a commitment to obey Australian laws.
The 2002 drug and dishonesty convictions
Mr Carey’s drug trafficking conviction in August 2002 resulted in his first period of imprisonment. It was, apparently, but one episode in the illicit drug use and supply in which he was involved between 1999 and 2004. In that context its present significance is best taken into account with his August 2005 convictions, and his later drug offences in 2009.
There is little meaningful information about the dishonesty offences involved in Mr Carey’s October 2002 convictions. One of those matters apparently involved the use of a forged, or incorrectly signed, cheque that someone else gave to him. The circumstances of the other offence were not the subject of any evidence, and that limits the significance that can now be given to it. In the absence of further details what stands out is that both offences were dealt with together, and made the subject of a short custodial sentence that was served during Mr Carey’s supervening incarceration following his drug trafficking conviction in August 2002. Those observations, together with the fact that Mr Carey has no subsequent (or even prior) dishonesty related offences, suggests that they have no material significance for present purposes.
The August 2005 convictions
These three convictions involved offences that occurred in April 2002 and March 2004. Their circumstances were detailed in the sentencing judge’s remarks. According to those remarks the young girl involved in the carnal knowledge offence had been a cannabis user before she first met Mr Carey – most likely just before she turned 15. Subsequently, he introduced her to methamphetamine and, shortly before her 16th birthday in about
April 2002, had sexual intercourse with her on an overnight stay with him on the Sunshine Coast. Their sexual relationship continued for the next few months until his incarceration in July 2002. During that period he regularly supplied her with cannabis and methamphetamine. After the relationship ended the girl’s family took her interstate, where she was hospitalised for treatment for the effects of her drug use. She returned to Queensland in December 2003 and two months later, in February 2004 she reconnected with Mr Carey.
At the time of the March 2004 drug offences Mr Carey was producing methamphetamine, in a quantity the sentencing judge described as “unknown”. He injected her with methamphetamine. She reported the incident to the police and he was subsequently arrested. The girl told police that she had seen Mr Carey and another man cooking methamphetamine. That assertion was apparently corroborated by subsequent forensic detection of that substance on glassware taken from his premises.
In what must have been a reference to the March 2004 drug offences, the sentencing judge noted the crown’s submission that Mr Carey’s conduct was all the more serious because it was that of a mature man and had been committed after he had been released from prison (in April 2003 – in relation to his August 2002 offences).
The judge noted that Mr Carey had entered an early guilty plea to the carnal knowledge offence and treated that as a significant consideration, because it avoided the necessity of the young girl giving evidence “perhaps in two trials”. At the time of his sentencing in August 2005 Mr Carey had been in custody for almost 18 months. The judge noted, and described as “remarkable”, the evidence of Mr Carey’s conduct whilst in prison. It had included his participation in various anger management, cognitive skills and health awareness courses and, more notably his role in setting up a jail awareness program and working as a mentor for first offenders. The sentencing judge accepted submissions that Mr Carey appeared to have changed his outlook and had shown insight in relation to his offending. The judge continued “all that having been said, it still seems to me that this was serious conduct which requires me to consider very seriously from the point of view of both punishment and deterrence, and making it clear that the community denounces the conduct in which you were involved”. That ultimate view led to the judge imposing a composite five year custodial sentence for all three offences. That sentence reflected just over one third of the maximum 14 year penalty for the carnal knowledge offence:-
see Criminal Code Act 1899 (Qld) s 215(2).
The sentencing judge’s remarks, particularly his description of Mr Carey’s early guilty plea as a significant issue, are inconsistent with the second of the Minister’s character contentions (that Mr Carey was lacking relevant remorse – see paragraph 12(b) above). The position is somewhat clouded however, by the fact and content of Mr Carey’s subsequent appeal against his conviction for the carnal knowledge offence. He apparently lodged that appeal on 29 August 2005 and subsequently requested that the matter be dealt with after his release from prison. But after that release Mr Carey in fact took no further interest in the appeal, and it was dismissed, in his absence, on 3 April 2006. The reasons for judgement of the President of the Queensland Court of Appeal set out part of the contentions in Mr Carey’s notice of appeal. The substance of them was that (i) he had been misinformed that reporting obligations under the Child Protection (Offender Reporting) Act 2004 (QLD) would not apply to him, (ii) he had only pleaded guilty because the complainant’s advanced pregnancy meant she would not have been able to attend the trial, and (iii) he had been informed that he would not be sentenced until he had been dealt with for the drug supply charges.
In dismissing Mr Carey’s appeal the President of the Court of Appeal noted that the allegations in Mr Carey’s notice of appeal were not supported by any evidence and were actually inconsistent with his words and conduct as recorded in the transcript of the trial proceedings. The President noted that Mr Carey had “not provided evidence nor even contended that he was not in fact guilty of the offence”.
Justice Jerrard expressed much the same view about Mr Carey’s guilt. But the judge went on to opine that Mr Carey’s appeal was based on the proposition that he “would have taken his chances” on the carnal knowledge offence trial, because he understood the complainant would not have been available. The judge thought such an approach was inconsistent with Mr Carey having any regret for the offence. That opinion was however quite inconsistent with the actual contents of Mr Carey’s notice of appeal. That document, which was quoted in the President’s judgment contained the statement that
Mr Carey “had intended to enter a plea of not guilty to the charge until” he was told about the complainant’s inability to attend court. Consequently, that statement in the notice of appeal indicates that, far from “taking his chances” Mr Carey had actually pleaded guilty in order to avoid the requirement for the complainant to attend court.
Mr Carey’s guilty plea, and the reason for it, is a relevant consideration to bear in mind when it comes to assess the significance of a statement he made in response to a “natural justice” letter sent to him on Christmas Island in January 2017, inviting his comments on his various convictions. As part of his response to that invitation Mr Carey gave an account over the phone to his aunt, and her verbatim description was sent to the Department. It included the statement that he had pleaded guilty to the carnal knowledge offence because he did not want to “implement anyone else who was involved with her”. In the decision reasons the delegate considered that this statement evidenced Mr Carey’s disregard of the victim and contradicted the unqualified remorse he had expressed in a handwritten statutory declaration Mr Carey submitted in February 2017.
The “implement” statement is, in reality, a matter of no consequence. First of all the misuse of the word “implement” betrays a confusion of thought. Second, Mr Carey’s hypothetical contest of the carnal knowledge charge could hardly have been a material consideration in avoiding the likely incrimination of others for sexual misconduct with the girl. There is nothing to indicate that there were any others and, even if there had been, the girl was herself a direct source of complaint and evidence against them. Thirdly, the claim is contrary to the contents of Mr Carey’s 2005 notice of appeal, with its stated, and relevantly contemporaneous, reason for his guilty plea. Consequently the reality is that
Mr Carey’s actual conduct in 2005 was, as the sentencing judge accepted, actually probative of his acknowledgment of guilt and of his regard for the girl involved.
Another aspect of Mr Carey’s brief dictated response to the January 2017 “natural justice” letter was that he had no knowledge of the girl’s age “because of her maturity”. In his oral evidence Mr Carey adhered to that view, and said he had been shocked when he was told the girl’s true age. That claim was relied on to support the delegate’s view that Mr Carey lacked relevant insight and remorse for his conduct. Against the background reality of the girl’s age when he first met her Mr Carey’s statements about the girl’s apparent age are difficult to accept as an accurate description of his actual state of mind at the time of the offence in 2002. The implicit reality, given his guilty plea, is that he had no reasonable basis for any belief that the girl was of age (see the statutory defence in the Criminal Code Act 1899 (QLD) s 215(5)). But there is no adequate evidentiary basis for a finding that he had, at any time, dishonestly asserted such a belief. And the assertion is itself of little present significance as a contradiction of Mr Carey’s possible good character. That is so for three reasons. The first is the reality of Mr Carey’s guilty plea. The second is that the asserted belief actually reflects an acknowledgement of the wrongdoing involved in underage sexual intercourse. The third is the sixteen year passage of time since the offence, and the total absence of any subsequent similar offence.
The reporting obligation offences
Mr Carey’s August 2005 conviction was for a reportable offence under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
(‘the Reporting Act”). As such he was liable to be subjected to reporting obligations in relation to a range of personal details. Those details were defined in Schedule 2 of the Act and involved 17 categories of information. They include (i) all the person’s names (both current and past), (ii) details of their tattoos, telecommunication carriage providers, internet service providers and social media accounts, (iii) addresses of any location where the person lives or can generally be found (iv) employment details, (v) children with whom the person is in contact, (vi) any motor vehicle the person owns or has driven for 7 days in any calendar year and (vii) their passport details. (Obviously the reporting obligations are detailed and extensive.) It is an offence to fail to comply with reporting obligations, and the potential sanctions for such an offence range from a fine to imprisonment for a period of up to 5 years:- see the Reporting Act s 50.
The reporting obligations are triggered when the person is given a statutory notice by the Commissioner of Police (typically soon after the person has been released from prison):- see the Reporting Act ss 14 & 54. The person’s personal and reportable details are to be maintained in a sexual offenders register maintained by the Commissioner of Police:-
the Reporting Act s 68.The reporting period length was originally 15 years (after prison release) in the case of a carnal knowledge offence of the kind for which Mr Carey had been sentenced in 2005. But it was reduced by the Child Protection (Offender Reporting) and Other Legislation Amendment Act 2014 (QLD) – in two important respects. First of all the amending legislation replaced the Schedules to the Act that classified different types of offences. The effect of this amendment was that the reporting period for a single offence of the type of which Mr Carey had been convicted was reduced from 15 to 5 years. The second change was that the maximum reporting period was extended to either 10 years (if the person had been found guilty of more than 1 reportable offence) or life (if the person committed a further reportable offence whilst subject to reporting obligations):- see s 36.
The Explanatory Memorandum to the 2014 amending legislation included the following explanation for the reduction in the length of the statutory reporting period:
Uniform reporting periods
The Bill streamlines the current method of determining an offender's reporting period to reflect contemporary research showing reportable offenders pose the greatest risk within the first three years of their release into the community.
In this regard, the Bill amends section 36, reducing the length of an initial reporting period and subsequent reporting periods from eight years and 15 years respectively to five years and 10 years. The current lifetime reporting period will remain and be applied to reportable offenders who continue to commit sexual and other particular offences against children.
The delegate’s decision reasons display awareness of the basic fact of the legislative changes, but no understanding of either their extent or the reasons that underlay them. Those reasons compel the conclusion that the Queensland Parliament had adopted a considered, and thoroughly researched view, that absent circumstances of particular significance in the case of individual offenders, continuing reporting obligations more than 5 years after a person’s conviction for a single reportable offence were unnecessary. Uninformed by that information, the delegate engaged in an inverted process of reasoning, and unjustifiably dismissed the significance of the reduced reporting period with the observation that there was no information that Mr Carey’s reporting obligations ceased “due to any positive assessment of his behaviour”. This involved attaching significance to the absence of information, and failing to appreciate the significance of the information that was available.
Various passages in the April 2006 Court of Appeal judgments suggest that Mr Carey’s failure to respond to court notices relating to the appeal suggested he had breached his reporting obligations. Those comments, made in Mr Carey’s absence, wrongly assumed that those obligations had been triggered by him having been given the required statutory notice. Perhaps influenced by the same assumption, it was put to Mr Carey in the course of his oral evidence, that he had entirely ignored his reporting obligations for a number of years. The reality appears to have been that the required statutory notice that triggered his reporting obligations was not in fact given to Mr Carey until February 2008. Consistent with that view, and despite the observations in the Court of Appeal judgment, Mr Carey’s criminal record history contains no reporting offence conviction offences until that of March 2008.
The reporting offences summarised in the Schedule involved the following circumstances:-
(f)15 March 2008:- Mr Carey had been given notice of his reporting obligations on 15 February 2008 and had been required to complete his initial registration within 28 days. Shortly after that time expired Mr Carey had been taken into immigration detention (as a result of the May 2007 visa cancellation decision). He did not complete his registration until mid December 2008 – some months after his release from detention. When he was then interviewed about the reasons for not completing his registration he stated that he had no excuse other than bad management. He explained that he had had difficulty in arranging permanent accommodation and believed he needed that to complete his registration.
(g)January – July 2009:- Some time after completing his initial reporting registration Mr Carey moved to the Gympie area, but did not promptly report his change of address. His failure was the subject of police questioning in July 2009. At that time Mr Carey acknowledged that he had been in breach of his reporting conditions. He offered the explanation that he had planned to sort it all out in the next couple of weeks but had been having trouble getting into Gympie, because he did not have a driver’s licence.
(h)December 2009 – May 2010:- Mr Carey did not provide the annual report that was due in December 2009. On 7 January 2010 he was given a court attendance notice for that failure. By mid 2010 Mr Carey had either moved to the Maroochydore area or was intermittently staying either there or in the Gympie area. His reporting obligation extended to include details of any address where he resided for more than 14 days in any calendar year, and that failure, in relation to his Maroochydore address, underlay his conviction for an offence in May 2010.
(i)November 2011 to 30 March 2012:- Mr Carey attended the Maroochydore police station in mid March 2011. In the course of reporting there he was questioned about the telephone number he had used to contact the police station. He explained that his previous mobile phone had been stolen in November 2011, and that he did not realise he had to report it as part of his obligations. That omission, together with Mr Carey’s tardiness in completing his December 2011 annual report, formed the basis of his April 2012 convictions.
(j)December 2012 to April 2013:- Mr Carey did not complete his annual report when it was due in December 2012. But he did attend the Mount Isa police station in April 2013 and completed his report at that time. During the course of completing his report he disclosed that he had moved to Mount Isa in early March and that he had obtained a new mobile telephone number. Those three elements of tardiness in Mr Carey’s reporting were the basis of his three convictions on 29 April 2013.
(k)27 March 2014:- Mr and Mrs Carey moved to Townsville in early 2014, and he promptly reported his change of address at that time. Subsequently, after moving to a new address on Magnetic Island he again attended the Townsville police station to report the change. On that occasion he also disclosed a tattoo he had acquired in Mt Isa about six weeks earlier. He volunteered the information that he had forgotten to report it sooner, and his wife had reminded him
Mr Carey was certainly tardy in complying with his annual reporting obligations – having been timely only in relation to his 2010 and 2013 reports. He was also tardy, at least prior to early 2013, in promptly disclosing his changes of address. In other respects some of his reporting obligation failures were attributable to either misunderstanding or forgetfulness. As statutory obligations that potentially attracted significant sanctions, the reporting obligations to which Mr Carey was subject were matters he ought to have been far more scrupulous in discharging. But a balanced assessment of his failures leads to the conclusion that his failures were more related to tardiness than defiance or disregard, and that they were very much on the lower end of the scale of significance. Moreover,
by the time of his move to Townsville, and with the assistance of his wife, he seems to have become scrupulous and candid in complying with his reporting obligations.
Psychological evaluation
Ms Anita Duffy is a psychologist who assessed Mr Carey on two occasions. The first assessment Ms Duffy undertook in November 2017 in a telephone hookup with Mr Carey at the Christmas Island detention centre. The second assessment Ms Duffy carried out at the Villawood detention centre in March 2018.
Ms Duffy’s first report was primarily concerned with the interpretation of the results she obtained for various psychometric tests she administered to Mr Carey. These included (i) a relative risk assessment for sexual offence recidivism, based on demographic and criminal history information, (ii) a similar tool based on responses to a “self assessment questionnaire”, (iii) a risk assessment tool addressing “dynamic factors” – relating to the person’s social relationships and subjective characteristics, and (iv) a self reporting questionnaire designed to assess substance dependency. Ms Duffy interpreted Mr Carey as having an “average” or “low to moderate” risk of re-offending based on the first two assessment tools. She also concluded that he had no “dynamic” factors indicating a risk of re-offending. In relation to substance dependency, Ms Duffy reported that Mr Carey total test score was “well below the diagnostic threshold for substance dependence”. Overall Ms Duffy’s view was that Mr Carey’s low “dynamic” risk factors were the matters of major significance. Based on her interpretation of the test results she concluded that he had likely overcome the behaviours that contributed to his 2002 carnal knowledge offence, that he was better able to self regulate his behaviour, and was far more socially connected and responsible than he had been at the time of his offending in 2002 and 2009.
In her first report Ms Duffy speculated that Mr Carey’s reporting condition breaches might have been associated with some degree of cognitive deficits, particularly relating to organisation and memory, rather than indicative of disregard or indifference. Background information to that speculation was a history that Mr Carey had been severely assaulted during his incarceration in 2004/2005. In her second report, prompted by the same history, Ms Duffy provided an opinion on Mr Carey’s cognitive functioning, based on the results of a series of standard tests design to measure intelligence, memory, organisational and executive functioning. (Later evidence established that the assault occurred in December 2001 (see paragraph 55 below), but neither the precise timing, nor the actual causal role of the assault, is really material to Ms Duffy’s conclusions.)
Ms Duffy reported that Mr Carey was in the 12th percentile for general intellectual functioning, and that placed him in the low / average range. He functioned in the average range for verbal comprehension, in the low average range for perceptual reasoning, processing speed and working memory. His short term memory deficits were common to both visual and verbal material, and below the level typically corresponding to his assessed intelligence. Ms Duffy had a general understanding that the nature of
Mr Carey’s reporting failures were typically matters of tardy compliance. Based on that understanding, she interpreted her test results as consistent with an hypothesis that
Mr Carey’s generally lower level of cognitive performance in relation to memory and organisational tasks may have contributed to his reporting failures. Ms Duffy thought that her assessment was unlikely to be vulnerable to intentional manipulation by Mr Carey of his test responses. That opinion was based on (i) the fact that some of the tests had inbuilt reliability measures that had not been triggered by Mr Carey’s responses, (ii) her own observations of his apparent effort and reliability.
There is no reason not to accept Ms Duffy’s overall interpretation of her various test results. She is a very experienced psychologist and her reports convey a thoroughness of method and rational and reasonable interpretation. Her further causal contribution hypothesis is a potentially significant consideration in relation to some aspects of
Mr Carey’s reporting failures. That is the case in relation to delays in notifying changes of address, changed phone numbers and his 2013 tattoo – because they were irregular, and in some respects unusual occurrences. The hypothesis is less readily acceptable in relation to his failure to comply consistently and timeously with this annual reporting obligation – because it was a standard regular obligation. The records of many of the contemporaneous explanations he gave for his non-compliance generally involved awareness of the relevant reporting obligation, but a degree of indifference to timely compliance. That apparent indifference appears, however, to have disappeared by 2013 / 2014, and was not, in any event characterised by any hostility or intentional evasion.
His various reporting failures were not associated with any further sexual offending nor, indeed, with any other significant offending after his drug offences in 2009. In the totality of the circumstances Mr Carey’s reporting failures, whilst relevant matters to consider,
do not meaningfully adversely inform any contemporary assessment of his character.
The other – post 2005 – offences
One view of Mr Carey’s situation perceives a contrast between the haste and basis for the October 2015 visa cancellation and the earlier re-instatement of his visa in 2008. That contrast is the greater because (i) none of his post 2005 offences involved a sexual offence of any kind, (ii) none of those offences involved violence and, (iii) with the sole exception of the short suspended sentence imposed in April 2014 for a reporting condition breach, none of his post 2005 convictions resulted in a custodial sentence. Those convictions fall into three categories (i) the reporting and “damage property” convictions in May 2009, (ii) the drug offence convictions in the six month period between January and December 2009, and (iii) the subsequent reporting condition breach offences I have addressed earlier in these reasons.
The reporting condition breach involved in the May 2009 conviction was that of failing to complete his initial registration report within the required time. There is no available information about the first “damage property” conviction. The second seems to have been associated, according to Mr Carey’s recollection, with an occasion when he was arrested whilst living with his sister and brother-in-law – in December 2008, some months after he had been released from immigration detention. Mr Carey said that the police were aware of his whereabouts and despite that fact he was arrested at his sister’s house and then taken to the local police station. There in a state of frustration (because he believed his arrest was completely unnecessary) he kicked and damaged the door in the police station. Such an incident is properly and reasonably to be characterised as “minor” (for reasons referred to later) and of no present consequence.
Mr Carey’s three drug related offences were in July, September and December 2009. At the time of the July and September 2009 offences he appears to have been living at various addresses in or near Gympie. By December 2009 he had moved to the Sunshine Coast area. In relation to each of these offences there is again little information. However, the abbreviated police fact sheets for the three matters indicate that one of the three incidents involved only cannabis, and in all three instances Mr Carey claimed to have been self medicating for back pain. That explanation appears to be consistent with the comparatively modest fines that were imposed in relation to all of the offences.
October 2015 – detention – entry card and Bandidos
The decision record of 4 October 2015 recited that the delegate had attached considerable weight to Mr Carey’s completed incoming passenger card, and its inaccurate “no” response to the question asking about his conviction record.
Mr Carey’s evidence in the present proceedings provided a context which requires that inaccuracy to be regarded as immaterial in any fair and balanced assessment of his character. Prior to leaving Australia he had been interviewed by immigration officers and explicitly warned that on his return he should complete his incoming passenger card truthfully. Mr Carey says he disclosed the fact of his criminal convictions on his departure card and that his contrary answer on his incoming passenger card was a mistake, due to the fact that without his glasses he had misread the relevant question. That was an explanation Mr Carey offered at the time. Its substance is recorded in the note of his first, pre 1100hrs interview, on 5 October 2015. The context clearly indicates therefore, that in his first interview he promptly acknowledged the inaccuracy in his passenger card answer.
The notice of intention and the decision reasons of 4 October 2005 also attribute to
Mr Carey statements that he had no post 2007 convictions other than for traffic offences. That information was said to have been provided in the context of an acknowledgement that Mr Carey had been “in prison between 2002 and 2007” and to have been provided “during interview”.
For his part Mr Carey said in his written statement that he did disclose his full criminal record. He also denied that he had disavowed any drug convictions after his release from prison. He was not cross examined on either of those claims.
In the absence of specific challenge to Mr Carey’s evidence, and given the evident haste of the decision making process on 4 October 2015 (see paragraph 9 above) as well as aspects of the contents of the decision record, I am disinclined to accept that it is an accurate record of what Mr Carey actually said. I certainly do not accept that it establishes he intentionally provided inaccurate information about his criminal record. First of all there is the assertion that Mr Carey said he had been in prison “between 2002 and 2007”. Such a statement is quite contrary to the objective facts (as the Schedule details reveal) and it is consequently difficult to accept that it is what Mr Carey actually said or intended to convey. Second, the 2007 date is linked elsewhere in the decision record to the 2007 cancellation of Mr Carey’s visa. This suggests that the interviewer/decision maker was aware of that date and event from the outset, and may have interpreted Mr Carey’s statement (whatever it actually was) to correspond with their own understanding or assumptions. Third, that statement is said to have been made “during interview”. There are records of only two interviews. The first is a short two paragraph note that makes no reference to imprisonment. The second is contained in the 1330hrs decision record apparently prepared after an interview that started at 1237hrs. That record does contain the statement, in the context of a disclosure that the imprisonment related to child sex and drug offences. Given that the between “2002 and 2007” statement is evidenced only in the latter document, it is curious that it is also contained in the “notice” purportedly handed to Mr Carey at 1200hrs. That curiosity leads me to doubt that Mr Carey was even given the notice of intention before the 1337hrs interview. But even if he was, and even if he had made the “between the 2002 and 2007” statement in the earlier interview, that statement must be taken to have been accompanied by the disclosure of the nature of the offences involved. It follows that whatever inaccuracy was involved in the “no” answer contained in Mr Carey’s incoming passenger card that inaccuracy had been corrected in the initial interview. Furthermore, neither in the first interview, nor the second interview nor even in the present proceedings, was Mr Carey challenged on his assertion that his passenger card response was mistaken rather than intentional. Fourth, it is patent on the face of the notice document that the decision maker was fully aware of Mr Carey’s criminal record before the 1337hrs interview. In those circumstances, before giving “considerable weight” to either Mr Carey’s incoming passenger card response or his “between 2002 and 2007” statement, the decision maker was bound, in all fairness, to apprise Mr Carey of the perceived inaccuracy in those statements, obtain Mr Carey’s response to the inconsistency, and fairly evaluate that response. None of those things seems to have happened.
The objective reality is that even before he left Australia in September 2015 Mr Carey had been warned by immigration officials of the need for accuracy in completing his incoming passenger card. Mr Carey acknowledged the fact of that warning, and his recollection of it is recorded in the brief note of his pre 1100hrs interview on 4 October 2015. The fact of that warning conveys the likelihood that, to Mr Carey’s certain knowledge, the immigration authorities at Townsville airport were relevantly apprised of the fact of his criminal record. Indeed he asserted he had disclosed it at the time of his departure – and that assertion was not challenged in these proceedings. Furthermore Mr Carey asserted that from the outset of the interactions on 4 October 2015 he believed the interviewer know all about his criminal record. The brief record of the first interview tends to corroborate the accuracy of that assertion. The contents of the notice of intention, if its timing be accepted at face value, certainly both establishes the interviewer’s knowledge and corroborates the accuracy of Mr Carey’s belief. In those circumstances Mr Carey had nothing to gain, and a lot to lose, by intentionally lying about his criminal record in the interview that assertedly took place after he was given the notice of intention. I do not accept that he did. Nor do I accept that he did so on any earlier interaction on 4 October 2015.
In the eight days after his apprehension on 4 October 2015, and without being given an opportunity to contact anyone and inform them of his whereabouts, he was moved between the Brisbane international and domestic airport terminals, the Brisbane city watch house, the Brisbane Immigration transit area and a Brisbane city hotel. On 12 October 2015 he was taken to a radiology clinic. A note of Mr Carey’s behaviour at the clinic describes him as “gloating” and “fixated” about his criminal past and violent crimes.
He assertedly told his escort that “his Bandido bikie associates” knew his hotel room number and that he had actually waved at them from his hotel window. It also described him as apparently frustrated with the attitude or conduct of the detention officers and as having commented that he had no issue with “smashing” them.
On the evening of 12 October 2015 Mr Carey was transferred to the Brisbane Immigration transit area. The following day he was assessed by a mental health nurse. During that assessment Mr Carey was said to have made comments that (i) he had paid “big money” to obtain psychiatric reports that he was unfit to go to gaol and unfit to go to trial, and (ii) he “shops for services to achieve favourable outcomes”.
Mr Carey concedes that he did make the statement about waving to his Bandido associates, but denies its truth. In reality the statement is simply not credible. He had not lived in Brisbane for many years. And by the time of this assertion Mr Carey had been in immigration detention for over a week. During that whole period he had been denied phone contact and unable to contact anyone to alert them to his whereabouts. In those circumstances the suggestion that he had been waving at bikie associates from the seventh floor window of the Brisbane hotel where he was being kept, and that they knew where he was, stretches credulity beyond acceptable limits. The first relevant reference to Bandidos occurred in the pre 1100hrs interview on 4 October 2015, and it came from a question posed by the interviewer. There is no significant evidence that Mr Carey ever had any direct involvement with the Bandidos, and certainly not in or around 2015. He himself denied any. Mrs Carey corroborated his denial – and emphatically declared that she would not have tolerated any such association.
It may reasonably be inferred that Mr Carey was extremely frustrated and angry by the circumstances of his apprehension in early October and quite unreceptive to the idea of cooperation with those who were detaining him. So much may be gathered from the incredible statement about the Bandidos. But it is further evidenced by the statements attributed to him in the mental health assessment the following day. There is not the slightest evidence that Mr Carey ever paid money to obtain reports to establish that he was unfit to go to trial or unfit to go to gaol.
Clearly the circumstances of Mr Carey’s apprehension and detention in early October 2015 were hastily effected, apparently unfair and profoundly frustrating and distressing. Mr Carey’s hyperbolic behaviour and assertions in those circumstances provide no material assistance in assessing his contemporary character.
Mr Carey’s personal circumstances
Mr Carey was about 15 and a half when he and his aunt returned to Australia in mid 1984. Thereafter he completed his apprenticeship and thereafter worked in a range of jobs – mainly in the construction industry. Some of Mr Carey’s jobs involved employment interstate, but mostly he continued to live with his aunt on the NSW central coast. At one stage he worked for his aunt in a small electrical appliance business she had set up.
In about 1990 Mr Carey and his aunt moved to Queensland, where she had bought a small farm. By some time in the mid 1990’s, when he was aged about 26, Mr Carey had moved back to the NSW Central Coast and begun a domestic relationship with a young woman who had a toddler son. In the following four years Mr Carey took on the role of father and was apparently happy and devoted in that role. But it ended with the boy’s death, at the hands of his natural father during an access visit.
As can be seen from the Schedule, the first of Mr Carey’s drug related offences occurred not long after that dramatic event and, according to Mr Carey was directly related to the distress, disruption and grief that it had occasioned. That impact was corroborated by the evidence of Mr Carey’s aunt. She had moved back to Sydney some short time before the boy’s death. She saw Mr Carey at the funeral and kept in contact with him – at least by phone. She said that in “no time at all” after the boy’s death Mr Carey went from being a happy and involved person to a disengaged loner. He broke up with his partner, (although unknown to her at the time) started to use drugs, and he moved to Queensland.
That change in Mr Carey’s circumstances likely accounts for his bail breach conviction in November 2001 and his subsequent three month period of imprisonment. It was during that incarceration that he was assaulted, and suffered bruising injuries to his head, face and back of the neck. That incident, and its effect on Mr Carey was noted in the sentencing judge’s 2005 remarks. So also was the 1999 murder of Mr Carey’s stepson and, in referring to the latter the judge accepted that Mr Carey’s drug use was “to some extent a form of self medication” for the grief and stress he suffered in the aftermath of that occurrence.
Following his release from gaol in November 2005, Mr Carey lived with his sister and brother in law on the Sunshine Coast. He had difficulty finding work because of his criminal record, and suffered from extreme anxiety. In 2006 he obtained a disability support pension. The details of Mr Carey’s activities thereafter are not readily apparent – apart from the fact of his period of immigration detention between March and July 2008. But he appears to have continued to live in and around the Sunshine Coast area up until the early part of 2009.
Mr Carey and his wife had first become acquainted, through mutual friends, in the late 1990’s, when he moved to Queensland and was living in the Brisbane area. That was about six years before her first husband’s death in 2004 – an event that itself occurred shortly after Mr Carey’s second period of imprisonment. Mr Carey renewed his acquaintance with Mrs Carey some years after his release from prison, most likely during 2009. Their renewed acquaintanceship seems to have developed gradually, and became a domestic relationship probably in the latter part of 2009. That was when Mr Carey moved from the Gympie area back to the Sunshine Coast. At that time Mr Carey was about 40 years of age, and Mrs Carey was aged 35. They lived together, with the two boys, for the next four years. In early 2013, after their Sunshine Coast house burnt down, they moved first to Mount Isa, and then, in early 2014, to Townsville. After establishing themselves on Magnetic Island, they later married – on 15 February 2015.
Commendations
Mr Carey’s aunt, speaking of her impressions of Mr Carey as a child and a young man, described him as a “peace maker” whose defining characteristic was that of loyalty to family and friends. Up until the events of late 1999 (see paragraph 53 above) he had been just a typical young man making his way in the world. She acknowledged the inescapable reality of Mr Carey’s illicit drug use and the offences associated with it.
But her assessment of him was that his drug use, and the reasons underlying it were “definitely long behind him”. She said that she and the rest of Mr Carey’s family had witnessed a complete turnaround in his life since he began his relationship with
Mrs Carey, and were proud of the way he had overcome his past difficulties. She described Mr Carey, in his relationship with Mrs Carey, as an “excellent dad” who had directed his priorities to creating a good life for his family. Clearly Mr Carey’s aunt was a devoted and supportive mother (in all but biological reality) to Mr Carey. She also presented, in her numerous representations on his behalf, and in her oral evidence, as an informed, intelligent, insightful person with extensive experience in public administration and sound judgment. Her energetic support of Mr Carey, and her assessment of him, despite both the bias of her affection for him and her comparatively recent (2016) awareness of the nature of his carnal knowledge offence in 2002, is a significant consideration in any informed contemporary assessment of Mr Carey’s character.
It is readily apparent from the details in the Schedule that Mr Carey’s only offences since the latter part of 2009, and the development of his relationship with Mrs Carey, have been reporting obligation failures. For her part Mrs Carey describes him as having taken on the role of father to her two sons and having been a supportive husband. She described his constructive role in encouraging the boys to become involved in the Naval Cadets, and his active involvement with committee membership and fundraising for that organisation. She described him as patient and calm.
Mrs Carey has known her husband for almost 20 years. In her written statement she described him as incredibly patient and supportive of her in relation to her previous husband’s death. The context and wording of that assertion in her written statement conveyed the impression that it related to events shortly after that event in 2004. However it was clear from the oral evidence of both Mr and Mrs Carey that their interaction as acquaintances ended prior to 2000 and was not renewed until the latter part of 2009. At that latter time she was aware of his drug use, and understood that he was “coming off that stuff”. I infer that his abstinence was a pre-condition to the establishment of their relationship. Mrs Carey explained that the subsequent development of their relationship has not just been about her own personal need for support and stability.
She was also conscious of her boys’ needs for guidance and care. She observed Mr Carey’s interactions with the boys and saw him as a kind, patient, caring and supportive influence. It appears that Mrs Carey became more fully aware of the nature and extent of Mr Carey’s offences and convictions after their relationship blossomed in 2009 but she regarded, and regards, him as having completely changed. She thought they had become a strong couple in the first four years of their relationship. Their move to Mt Isa in 2013, after the house fire on the Sunshine Coast, was the result of a mutual decision to start a new life. Since their move to Mt Isa and then Townsville Mrs Carey said their family unit had become very well admired for the way they lived.
The positive impact of Mr Carey’s contribution to his family unit is corroborated by
Mrs Carey’s two boys. They are currently aged 17 and 19 and were aged about 11 and 9 when their mother and Mr Carey began their relationship. Both described him as a good father, and the younger boy as “the best thing in my family”. Mrs Carey’s third, and eldest son, has apparently not lived with Mr and Ms Carey, but was a regular visitor, and had a long association with Mr Carey, whom he described as a friend and someone he loved and respected. Similar positive assessments came from Mr Carey’s sister and from his former brother in law. Mr Carey’s sister, like his aunt, expressed pride in the fact that Mr Carey had been able to turn his life around. Mr Carey’s former brother in law is a Queensland a police officer. He had been aware of Mr Carey’s drug use in the period prior to his 2004 incarceration. That disapproving awareness had in the past, led the brother in law to limit his interaction with Mr Carey. But in the period after Mr Carey’s November 2005 release from prison, the brother in law had allowed Mr Carey to live with them whilst he attempted to get back on his feet. In that time, and in the years since, he had detected a massive change in Mr Carey. He said that he provided his September 2017 statutory declaration support for Mr Carey “without question” and emphasised that he would not have done so if he had “any issue with him”.
Many other people provided commendation letters relating to Mr Carey. Mostly they addressed his partner relationship with Mrs Carey. In that respect their comments did not bear directly on Mr Carey’s personal repute and character. But they do indirectly contribute to the assessment of his character, by evidencing the nature and extent of his current community association and its support for him. Those commenders included
(a)co-tenants of premises they rented at Mt Isa between June 2013 and March 2014.
(b)the landlords of the premises occupied after March 2014 in Townsville and March 2015 to September 2016 in Nelly Bay
(c)business owners on Magnetic Island, one of whom employed Mrs Carey’s elder son, who described Mr Carey as leading the discipline in the family and keeping the boys in line with the guidance he was able to provide.
(d)the celebrant at their 15 February 2015 marriage.
I noted earlier the sentencing judge’s August 2005 characterisation of Mr Carey’s “remarkable” constructive contributions to prison life and his assistance to young offenders:- see paragraph 18 above. Mr Carey’s conduct in immigration detention, after overcoming the distressing frustration of early October 2015, seems to have been correspondingly remarkable and constructive. On 14 October 2015 Mr Carey was transferred to Yongah Hill immigration detention centre about 100km north east of Perth. Fifteen months later, in January 2017 he was transferred to the Christmas Island detention centre. In July 2017 he received a formal commendation letter on behalf of the Australian Border Force from a senior officer stationed on Christmas Island. That letter explicitly acknowledged Mr Carey’s on-going positive behaviour at the Christmas Island detention centre. It described that behaviour as providing “a positive role model for other detainees” and evidencing “positive leadership”. It acknowledged Mr Carey’s membership on the Detainee Consultative Committee, and thanked him for his courteous attitude and co-operative behaviour.
The quality of “good character”
The concept of “good character” is related to a person’s “moral qualities” – variously described as their “enduring” or “essential” qualities. This conceptual association is expressed in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. That case addressed the term “good character” in the context of s 501(6)(2) of the Migration Act 1958 (Cth). In that context “character” referred to a person’s actual moral qualities, rather than to their reputation: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [425] (per Davies J) and [431]-[432] (per Lee J). Despite the different context of that legislative provision, the same association between “good character” and “enduring moral qualities” has been adopted in the departmental policy guidelines relating to character assessment for the purpose of citizenship applications under ACA_2007: see the Citizenship Policy (effective from
1 June 2016) Chapter 11, page 145. The policy guidelines eschew the idea that character assessment is a mere “check list” procedure. They emphasise that “decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not, of good character”:- the Citizenship Policy Chapter 11, page 144. Notwithstanding the disavowal of a “check list” the policy guidelines describe the concept of “enduring moral qualities” as involving consideration of(a)the characteristics a person has demonstrated “over a very long period of time”;
(b)the person’s ability to distinguish right from wrong (although this does not involve any religious connotations); and
(c)the person’s “ethical behaviour” and their conformity to the rules and values of Australian society: see the Citizenship Policy Chapter 11, page 145.
The policy guidelines go on to characterise a grant of citizenship as “a privilege not bestowed lightly”: citing Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]. The concept of “privilege” may overstate the position if it is used to detract from the reality that there is a statutory right, governed by the relevant eligibility criteria. But putting that reservation to one side, the policy guidelines appropriately refer to the Preamble to ACA_2007, with its reference to “full and formal membership of the community” and the corresponding “rights” and “obligations” of citizenship – namely, loyalty to Australia, belief in its democratic systems of government, respect for, and conformity with “the laws of Australia”: see the Citizenship Policy Chapter 11, page 145. The guidelines also acknowledge, that the values associated with good character “are not values that can be assessed in the abstract … they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do”: see the Citizenship Policy Chapter 11, page 146 – both citing Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
As both the generality of the policy guidelines, and their express disavowal of a “check list” approach suggest, there are no precise parameters to permit definitive distinction between “good” and “bad” character: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [428] per Davies J. Nevertheless, the guidelines do describe a number of specific characteristics of “good character”: These illustrative characteristics are then somewhat repetitively iterated. They can be succinctly summarised as involving:-
(a)general respect for and obedience to the law;
(b)honesty, particularly in their dealings with government agencies, and most particularly in relation to taxation, immigration and financial assistance from public funds;
(c)avoidance of conduct that is harmful to others, carries relevant risk of harm to others, or indicates an unwillingness to accept regulatory restrictions and requirements intended to contribute to the best interests of the members of the community; and
(d)non-association with others involved in illegal or anti-social behaviour: see the Citizenship Policy Chapter 11, page 147.
Where a person has a significant criminal history, their character assessment requires regard to the nature, circumstances and “pattern” (ie the number, frequency and recency) of their offences. In undertaking that assessment it is appropriate, indeed necessary, to distinguish between offending that merits description as “minor”, or is not properly to be characterised as “serious”. In drawing that distinction there is obvious common sense in the proposition, contained in the summary of the “good character” criteria sent to Mr Carey with the 5 January 2017 “natural justice” letter, that the concept of “minor” offences includes offences such as shoplifting, traffic offences and others that did not result in a formal conviction “or a sentence”. But the assessment also requires a more nuanced evaluation than that of drawing a binary distinction between “serious” and “minor” offences. Within the ACA_2007 provisions the concept of a “serious prison sentence” (and analogously that of a “serious offence”) applies to any custodial sentence of at least 12 months. That expansive criterion covers a vast array of offences. For example, the traffic related offence of unlicensed driving is potentially punishable by such a sentence (see Road Transport Act 2013 (NSW) s 54) but it is not in the same order of seriousness as the offence for which Mr Carey was convicted in 2005. And even where a person’s individual offences might properly be characterised as “minor”, their nature, frequency and circumstances may evidence a disregard for the requirements of lawful conduct and be inconsistent with good character.
Unlike the present matter (where Ms Duffy’s reports provide independently assessed insight into Mr Carey’s capacities and attitudes:– see paragraphs 33 to 36 above) character findings are often not informed by expert psychological assessment. More often they are matters of impressionistic inference derived from evidence of a person’s actual conduct: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [425C]; Steele and Minister for Immigration and Multicultural Affairs [1997] AATA 405. But it would be incorrect to make a character assessment based wholly on evidence of actual objective conduct. It is relevant also to consider evidence of a person’s reputation, in the sense of the repute with which they are regarded by friends, colleagues and associates. Evidence of that kind is a permissible basis for an inference about the nature of the person’s character: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [425] (per Davies J). The appropriateness of the inference in any particular case may, depending on the nature and recency of the person’s offending, be contingent on satisfaction that the repute is based on accurate awareness of the conduct that has been impugned. The appropriateness of the inference will necessarily depend on satisfaction that those who commend the person’s contemporary good character have based their opinions on accurate information about, and have a sound capacity to evaluate, the person’s conduct.
Consistent with the preceding observations, contemporary character assessment requires much more than an expression of an opinion about the quality of a person’s particular past offences:- Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at [194]. Past conduct deficiencies may lend themselves to, and even justify, emotively charged descriptions of past offences. (In the present case, it is not difficult to envisage descriptions of Mr Carey’s 2002 offence as that of a paedophile – even though such a description would probably not be justified by an accurate understanding of that term.) But past offences do not preclude a finding of current good character. They may not even materially inform an assessment of a person’s current character and fitness. Past conduct will not materially inform a character assessment if it was isolated and aberrant, in terms of the person’s intrinsic qualities and likely behaviour: see eg Baharestan and Minister for Immigration and Citizenship [2011] AATA 420 (single offence was an 18 year old manslaughter conviction). On the other hand, because the assessment of character is concerned with essential qualities and capacities, it is not confined to consideration of a person’s usual or prevalent behaviour. Depending on the particular circumstances, even isolated episodes of past misconduct may provide a basis for satisfaction that a person is not of “good character”: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at [195]; Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
Where a person’s past offence is clearly inconsistent with their good character at that time, there is an understandable reluctance to be persuaded of their subsequent good character. That reluctance is evident in the observations of Walsh JA In Ex parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR(NSW) 448 at [461]: There the learned judge said:
… Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man
Despite that understandable reluctance, the policy guidelines implicitly, and properly, reject the notion that “essential character” is fixed in time. The question to be determined is whether the contemporary evidence provides satisfaction about the person’s “good character” at the present time:- see ACA_2007 s 16(2)(c). The length of time that has passed since the last instance of an applicant’s serious impugned conduct is a relevant consideration, and it is a potentially mitigating consideration. I remarked earlier on the suggestion in the guidelines that good character involves characteristics that “have been demonstrated over a very long period of time”. Other references in the policy guidelines refer to a “lasting” or “enduring” period of time – the precise extent of which will depend on “the merits of the each case”:- see Citizenship Policy Chapter 11, page 150. In relation to that concept the policy postulates, with understandable imprecision, that even after “the passage of many years” it may be “extremely difficult” to be satisfied of the contemporary good character of a person who has committed a “very significant offence” – a category that includes sexual assault and crimes against children.
Some possible insight into what may be regarded as “the passage of many years” can be derived from the disentitlement periods provided for in ACA_2007 in relation to citizenship by conferral. In that context, in addition to a requirement for positive satisfaction of a person’s contemporary character, there is a prohibition on the grant of citizenship (i) within 2 years of a person’s release from a 12 month sentence, (ii) within 10 years of such a release where the person has been subsequently sentenced to another such term of imprisonment: – see ACA_2007 s 24(6). The insight provided by that comparison is limited – because of the need (i) to recognise that the statutory preclusion operates independently of (and potentially despite) actual satisfaction of good character and, (ii) to have regard to all the considerations relevant to the particular person. Factors that will influence subjective views about the significance of the actual period since the person’s significant or relevant offences will include the applicant’s age at the time of the offence and particularly whether the offence was contributed to by no longer present circumstances or stressors – such as psychological or physical illness: It will also include impressions about the seriousness of the particular offences: Gany and Minister for Immigration and Citizenship [2010] AATA 966 at [33]; and additional evidence providing positive endorsement of the applicant’s “post-offending” rehabilitation, good behaviour, and good repute: see Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [42]; Hasib and Minister for Immigration and Border Protection [2015] AATA 82 at [41]-[51]. Ultimately, and despite the generalities that can be drawn from the policy guidelines, a decision about what period of good behaviour appropriately conduces to satisfaction about contemporary good character “cannot be reduced to an arbitrary formula”: see Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [44].
Although satisfaction (or dissatisfaction) about a person’s character is ultimately the result of an impressionistic evaluation of a range of considerations, it is not a matter of merely subjective preference in the weighing of those considerations. This point is inherent in the guidelines’ reference to the person’s lawful conduct, and the obligations of citizenship. But the policy guidelines attempt to add some degree of emphasis exhorting the citizenship decision maker to apply “community standards” rather than “their own personal standards”. The Citizenship Policy (at Chapter 11, page 149) suggest that in applying this instruction decision makers should be enquiring (i) whether a person of good character would have engaged in the applicant’s conduct, (ii) about the extent of the applicant’s lawful conduct, (iii) about the extent of the applicant’s compliance with Australian community standards, and (iv) about the extent that the applicant shares and respects Australian democratic beliefs.
Contemporary good character
A negative answer to the first of those questions is unavoidable, and was conceded on
Mr Carey’s behalf. The answer to the second question is more detailed and nuanced.
Mr Carey had no similar prior offence, and no similar offence in the sixteen years since 2002. Indeed all but one of his subsequent offences resulted only in fine penalties. Consistent with the indication provided in the “summary” document (see paragraph 67 above) those offences can be described as minor. Within that categorisation, Mr Carey’s drug offences in 2009 do involve repeated drug use. But it is material to note that (i) the last of them occurred almost nine years ago, (ii) at that time, according to Mrs Carey, he was then already in the process of “coming off” drugs, (iii) he has maintained his drug abstinence even during his, now prolonged, period of immigration detention, and (iv) Ms Duffy’s psychometric test result evaluation was that Mr Carey had no apparent substance dependency risk.
Mr Carey’s numerous reporting breaches between February 2008 and March 2014 also lend themselves to characterisation as repeated offences. But neither the offences themselves, nor that characterisation, requires a conclusion adverse to Mr Carey in relation to his likely lawful conduct and his underlying commitment to Australian values. As I have pointed out earlier there are differences in the circumstances of Mr Carey’s reporting breaches. Many of them occurred before he established his domestic relationship with Mrs Carey. After that relationship became established, his breaches seem to have been more matters of tardiness and misunderstanding than indifference or defiance. And, despite the criticism that Mr Carey’s reporting breaches justifies, the underlying reality is that they occurred against the background of otherwise lawful behaviour, and considerable success in his domestic and community life and contribution. There is simply no question that following Mr Carey’s acceptance of responsibility as a partner of Mrs Carey, and parental role model to her two sons, he has turned his life around.
The delegate dismissed the objective realities of Mr Carey’s good conduct since December 2009 as not demonstrating any significant periods when he has neither offended nor been subject to a suspended sentence. The delegate effectively dismissed as irrelevant Mr Carey’s behaviour whilst in immigration detention. The former proposition is superficial and contains a significant inaccuracy. The superficiality is that it expressly treats all of Mr Carey’s post 2009 offences (which were only reporting breaches) as “serious” and does not pay due regard to the totality of Mr Carey’s conduct in that period. The inaccuracy is that, since the expiry of his five year sentence (in March 2009)
Mr Carey has only once been subject to a bond or suspended sentence. That was imposed as a result of his 10 April 2014 conviction, and Mr Carey has no conviction for any subsequent offence.
Disregard or dismissal of Mr Carey’s behaviour in his prolonged period of immigration detention is not appropriate. The Australian Border Force commendation letter of 11 July 2017 is not just some condign recognition that Mr Carey has behaved himself whilst in immigration detention. It is an explicitly positive endorsement of not just his general behaviour but also of his leadership and performance as a role model. That endorsement means more than that Mr Carey’s conduct has been “commendable” (as the delegate considered) it is a considered view, based on prolonged and close observation in the stressful and isolating environment of immigration detention, that Mr Carey has, and consistently displays “essential” qualities that evidence his contemporary good character.
The nature and circumstances of Mr Carey’s drug related carnal knowledge offence require anxious and careful evaluation of his conduct – both then, in the years that preceded it, and subsequently. In the years prior to 2001-2002 Mr Carey was an ordinary and law abiding young man. (I disregard as immaterial in the present context his 1991 offences.) His domestic world fell apart following the murder of his partner’s son in 1999. His carnal knowledge offence and his significant drug use, occurred in the aftermath of that traumatic change in his life. This is not to say that his conduct in that period is to be excused, or its significance in strongly questioning his character, is to be minimised. But it is to say that the answer to the question is informed by that insight into his circumstances at that time, and awareness of how significantly those circumstances have changed in the subsequent years – most particularly since his partnership with Mrs Carey in the latter part of 2009.
Decision
For the reasons apparent from the analysis I have undertaken above, I am satisfied that Mr Carey is, at the present time, a person of good character.
The decision under review is set aside. I remit Mr Carey’s citizenship application to the Minister for reconsideration in accordance with these reasons, finding and decision.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
................................[SGD]........................................
Associate
Dated: 28 June 2018
Date(s) of hearing: 21 and 22 March 2018 Counsel for the Applicant: Alexander Flecknoe-Brown Solicitors for the Applicant: A Grosart - Legal Aid NSW Solicitors for the Respondent: A Markus - Australian Government Solicitor
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