"CDCZ" and Minister for Immigration and Citizenship
[2008] AATA 644
•24 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 644
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5947
GENERAL ADMINISTRATIVE DIVISION ) Re "CDCZ" Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date24 July 2008
PlaceAdelaide
Decision The tribunal sets aside the decision under review and remits the decision to the respondent for reconsideration in accordance with these reasons.
Signed
(D G Jarvis)
Deputy President
CATCHWORDS
IMMIGRATION - CITIZENSHIP - permanent resident - good character requirement - past criminal conduct - meaning of “good character” - standard of good conduct for citizenship purposes differs from standard for Migration Act purposes - evidence of subsequent good conduct - consideration of Australian Citizenship Instructions - applicant may challenge grounds on which criminal conviction was based - heavy onus on applicant seeking to do so - relevance of remorse in assessment of good character - decision under review set aside.
Australian Citizenship Act 2007 (Cth), ss 21(2)(h) and 21(4)(f)
Migration Act 1958 (Cth), s 501(6)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Austin and Minister for Immigration and Citizenship [2007] AATA 1762
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Gibson and Minister for Immigration and Citizenship (2007) 45 AAR 424
Re Koon and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 296
REASONS FOR DECISION
24 July 2008 Deputy President D G Jarvis 1. The applicant is a seventy-nine year old Chinese national. He applied for Australian citizenship in May 2006. His application was refused by a delegate of the Minister on the grounds that she was not satisfied that the applicant passed the character requirement in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (new Citizenship Act).
2. The applicant subsequently applied to this tribunal for review of the delegate’s decision.
Issue Before the Tribunal
3. The only issue before me is whether I am satisfied that the applicant is of good character at the time of my decision.
Background
4. The following facts are not in dispute, and are derived from documentary evidence before me and from the applicant’s evidence, which I accept.
5. The applicant was born in China, and was educated at Christian schools there. He studied medicine in China and completed his training in 1952 at Beijing University. In 1975 he undertook a further two-year course in traditional Chinese medicine. He practised medicine in a variety of fields, mostly in Inner Mongolia, for approximately forty years. His work included teaching and research, and he contributed more than eighty articles to medical journals. He is the author of nine books, and of a section of another book published in England in 1989 or 1990.
6. He was married in 1953, and has two children. His wife, son and his son’s children are Australian citizens, and live in Australia.
7. His son obtained a PhD in medical research in 1989 from the Australian National University, and practises Chinese medicine in Adelaide. His daughter is a Professor of Medicine, and has been invited to undertake research work at Edinburgh University. His grandson completed a science course at the Flinders University in Adelaide.
8. The applicant first came to Australia for about three months between January and April 1987 as a visiting fellow to the Australian National University. He returned to Australia in 1992, and took up residence in Australia in 1993. He then commenced practice in Adelaide in traditional Chinese medicine, including acupuncture and massage. He attained permanent residency in 1994.
9. On 31 May 1996 the applicant was found guilty by the District Court of South Australia, on a trial by judge alone, of two counts of indecent assault upon two female patients, and six counts of rape upon four female patients. The trial Judge’s sentencing remarks included the following observations (exhibit R1, T7, pages 96 – 97):
“The acts of indecent assault took the form of a massaging of inner thighs and an attempted removal of a bra in the case of count 1, and a massaging of breasts in the case of count 6. The acts of rape … took the form of digital penetration of the vagina. The offences occurred in a consulting room at your home … between April 1994 and April 1995. …. each of the victims sought treatment for complaints which were unrelated in any direct sense with their sexual organs; and that, in each case, you soon made physical contact with breasts or the genital area or both. This contact was achieved under the guise of medical examination or treatment whereas, in truth, your sole purpose was sexual gratification.”
10. The Judge sentenced the applicant to five years’ imprisonment for all of the offences with a non-parole period of eighteen months.
11. The applicant also has one further conviction, namely a conviction on 28 November 1995 for dispensing medicine containing a schedule 4 poison, for which he was fined $100.00. The applicant was released on parole on 26 November 1997. He did not breach the conditions applicable during the period of his parole, which expired on 14 May 2001.
12. After that, the applicant commenced to work again in the practice of traditional Chinese medicine. He has done so by assisting in his son’s practice.
13. According to submissions dated 25 April 2007 sent to the Department of Immigration and Citizenship the applicant made an earlier application for citizenship soon after the completion of his parole period in November 2001, but it was “found that [this] was too early to establish a pattern of good character” (exhibit R1, page 46). There is no further information before me as to the earlier application referred to in those submissions.
Legislative Provisions
14. The applicant applied for a Certificate of Australian Citizenship in September 2005 under s 13 of the Australian Citizenship Act 1948 (Cth) (the old Act).
15. The old Act was repealed by the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (the transitional Act). Item 7(2) of Part I of Schedule 3 to the transitional Act provides in effect that if an application under s 13 of the old Act has not been decided immediately before the commencement of the new Citizenship Act, then the application is taken to be an application under s 21 of the new Citizenship Act. That Act commenced on 1 July 2007. The applicant’s application is accordingly deemed to be an application under s 21 of that Act.
16. Section 21(1) of the new Citizenship Act provides in effect that a person may make application to the Minister to become an Australian citizen. Subsections 21(2) to (8) deal with eligibility to become an Australian citizen.
17. The delegate’s decision referred to s 21(2)(h) of the new Citizenship Act. As the applicant was over the age of sixty, the relevant subsection was s 21(4). However, the relevant paragraph that refers to good character, s 21(4)(f), is in terms identical to s 21(2)(h).
18. Section 21(4) provides for eligibility for Australian citizenship where (relevantly) the person concerned is aged over sixty at the time when the application is made. It provides as follows:
“4). A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is … aged 60 or over at the time the person made the application; …
(b) is a permanent resident at that time; and
(c) understands the nature of the application at that time; and
(d)satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at that time; and
(e)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f)is of good character at the time of the Minister’s decision on the application.”
19. It is common ground that the applicant has satisfied all of the eligibility criteria except for the criterion referred to in s 21(4)(f), namely being of good character at the time of the decision on his application.
Consideration
20. Australian Citizenship Instructions (the Instructions) have been issued pursuant to the new Citizenship Act. The introduction to the Instructions states that their role is:
“… to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.” (exhibit R2, ST2, page 2)
21. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, the then President of this tribunal, Justice Brennan as he then was, referred to the importance of Ministerial policy in guiding the exercise of discretion by decision-makers, including matters that come before this tribunal. In that case, the matter in issue was whether a deportation order should be made. Brennan J pointed out (at pages 640.5 and 644.9) that Ministerial policy can be an aid to consistency among tribunal decisions, and to consistency between decisions of the tribunal and those of the Minister, thus enhancing “the sense of satisfaction with the fairness and continuity of the administrative process.” His Honour continued, at page 645.4:
“When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.”
22. The Instructions include the following statements under the heading “Good Character Requirement” (exhibit R2, ST2, pages 5 - 6 and following):
“The term “good character” is not defined in the Act. Decision makers must therefore be guided by the ordinary use of the words in making assessments.
It is the responsibility of the applicant to show that they are of good character. If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.
…
An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. … An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.
…
Assessing good character involves:
·establishing whether or not an applicant has a criminal record, and the nature of that record, if any;
·establishing whether or not there is other information relevant to the issue of character;
·according procedural fairness to the applicant where there is credible, relevant, and adverse information which the decision maker intends to take into account; and
·considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicant’s behaviour.”
23. The Instructions go on to refer to a list of factors to which consideration should be given by decision-makers. The first such factor is the seriousness of any offences against ordinary community standards, and in elaboration of this factor, the Instructions state that certain specified crimes that include crimes of violence and sexual abuse and have incurred a prison sentence or sentences totalling twelve months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Further considerations are then referred to. I will discuss these further considerations below, insofar as they are relevant.
24. According to the Instructions, in determining whether the applicant has satisfied me that he is of good character, I must be guided by the ordinary use of the term “good character”. I have accordingly referred to the meaning of “character” in the online version of the Oxford English Dictionary, and in the Macquarie Dictionary, 4th Edition, and also to the meaning of the word “good” in those dictionaries. In the context of s 21, the term “good character”, according to the dictionaries, can either refer to a person having good moral qualities, or to a person having a good reputation. The former meaning involves an objective assessment, whilst the latter meaning is derived from a subjective assessment by the community : Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431G. In that case, Lee J said (at 432A – B, omitting references):
“A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
25. In the same case, Davies J said, at page 425C:
“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.”
26. In the respondent’s Statement of Facts, Issues and Contentions it is submitted that the standard of good character in citizenship matters is higher than that applicable under s 501 of the Migration Act 1958 (Cth) (Migration Act), but the respondent also very properly noted that there had been some disagreement with that proposition in decisions of this tribunal. The issue is referred to in Re Austin and Minister for Immigration and Citizenship [2007] AATA 1762 at [28]; Re Koon and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 296 at [78], and Re Gibson and Minister for Immigration and Citizenship [2007] AATA 1679 at [35].
27. I do not agree that the standard of good character in citizenship cases will necessarily be higher than under s 501. The requirement for good character must of course be interpreted by reference to the statutory provisions that are applicable in each case. Section 501(6) contains detailed provisions as to when a person does not pass the character test that do not appear in the new Citizenship Act. These detailed provisions must be applied where they are relevant, but to the extent that s 501(6)(c) requires consideration of the relevant person’s past and present criminal conduct and general conduct it is analogous to the good character criteria in the citizenship legislation. The consequences of approving a citizenship application (that is, the rights and privileges that will thereby be conferred) are of course different from the consequences of issuing, refusing to issue or cancelling a visa to enter or remain in Australia (being a matter that will include potential consequences to the Australian community). I note that the Full Federal Court has said that having regard to the differing consequences of refusing visa applications, the standard of good character should entail a consideration of the public good, and that the standard of good character is “not fixed but elastic”, depending on whether short or long term entry is sought : Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, per Spender, Drummond and Mansfield JJ at [8]. It follows from that case that the meaning of “good character” will not necessarily be the same in citizenship and s 501 cases. Failing the character test under s 501 is a precondition for the Minister’s power to refuse or cancel a visa. It seems to me that there is no necessity for any elasticity of meaning of “good character” under the new Citizenship Act, since under s 24(2) the Minister retains an overriding discretion to refuse to approve a person becoming an Australian citizen despite meeting the relevant eligibility criteria.
28. In any event, in my view it is not helpful or relevant to compare the standard of character in the two contexts. Each case should be decided on its own facts, and by reference to the relevant policy documents that apply in each context.
29. The applicant has been convicted of crimes that involved personal violence and sexual abuse. I have already referred to the remarks of the sentencing Judge. He clearly regarded the crimes as serious, and the sentence that he imposed reflects this. The criminal behaviour took place over a period of about twelve months, and the offences that resulted in imprisonment involved six different victims. The Judge recorded that the victims had suffered psychological problems as a result of their experiences. The applicant was a person senior in years. It was found that he exploited the vulnerability of his victims purposefully and persistently (exhibit R1, T7, page 98).
30. This tribunal is bound to accept the fact of the applicant’s convictions: see Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [44] and Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313. However, where a legislative power is not conditional on the existence of a criminal conviction and sentence, decision-makers may consider material that challenges the grounds on which the convictions were based. Sections 21(2)(h) and 21(4)(f) of the new Citizenship Act are examples of such a situation. In Ali, Branson J formulated principles that apply when persons seek to challenge the existence of criminal convictions or the facts on which they are based. Her Honour said at [43], omitting references:
“Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based… policy considerations suggest that the legislature intended that the (Migration) Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in such a way which:
(a)recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences …; and
(b)limits inconsistency between the decisions of the criminal courts and those of tribunals …
As a consequence, in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted … .”
The same policy considerations should I think apply when the relevance of prior criminal convictions has to be evaluated under the new Citizenship Act.
31. In the case of the convictions of the applicant, the trial, as I have said, was by a judge alone, and the trial Judge recorded his findings in the sentencing remarks. In that respect the present matter differs from a conviction recorded by a jury, where it is not possible to know precisely what evidence the jury accepted. I assess the applicant’s character on the basis that he was convicted of the offences in question, and that the Judge’s findings of fact as recorded in the sentencing remarks constitute strong prima facie evidence in the proceedings in this tribunal.
32. Counsel for the Minister, Mr P d’Assumpcao, submitted that the applicant has not shown remorse or contrition for his offending, and that on the contrary, he has maintained that the victims consented to the medical examinations that gave rise to the convictions and that they lied in their evidence before the District Court. Counsel relied in support of this submission on certain assertions made by the applicant in a letter dated 25 April 2007 from the applicant to the Minister’s delegate (exhibit R1, T7, pages 46 – 55), on notations on enclosures to that letter and on the applicant’s evidence before this tribunal, in which he maintained that the victims had given their consent to the examinations that resulted in the convictions for assault and rape. Counsel also referred to a statement by the sentencing Judge that the applicant had shown no signs of contrition or remorse (exhibit R1, T7, page 98).
33. The Instructions do not refer to whether a non-citizen with criminal convictions is remorseful, but amongst the matters required to be considered are “any comments by the applicant”. This is wide enough to include any expressions of remorse. The absence of contrition and remorse for a pattern of criminal conduct will generally constitute evidence that the non-citizen is not of good character, and should be taken into account in considering whether the non-citizen has shown that he or she has reformed to the point where a decision-maker can be satisfied that he or she is of good character. Nevertheless, in my opinion it is also necessary, when evaluating the terms of any expression of remorse by a non-citizen, to consider his or her attitude to all of the circumstances surrounding the conviction. If the non-citizen gives evidence of belief that there were extenuating circumstances, or of facts that would be inconsistent with guilt, any expression of remorse is likely to be expressed in qualified or conditional terms. I do not think that this should necessarily count against the non-citizen if the tribunal finds that the belief is honestly held, even though (as I have said above) the tribunal must accept the fact of the conviction. The tribunal must, however, assess the credibility of the non-citizen’s evidence as to belief against the facts on which the conviction was necessarily based, and as appears from Ali, supra, there is a heavy onus on a party who seeks to challenge those facts.
34. Much of the applicant’s cross-examination was directed to the issue of whether the applicant is remorseful. The applicant pleaded not guilty to the charges in question, and gave evidence in the hearing before me that he did not plead guilty because he did not then think that he was guilty of anything. He said further that he subsequently decided that he could not afford the costs, and wanted to avoid the publicity, of an appeal, even though he maintained that he had the consent of the victims, and had been advised that an appeal had good prospects of success. However, he also said in the proceedings before me in effect that he now thinks that he was guilty of the offences, and that he was practising the way he did in China, but now understands that under Australian culture and customs what he did was wrong. He also said at the time he did not agree with the Judge’s findings that the actions that gave rise to the convictions were medically unrelated to the conditions for which the victims sought treatment, but he said that he was not arguing about that now. He said further that he regrets what happened and is remorseful, and that he accepts that his actions had an adverse effect on the victims, and would apologise to his victims if he were to meet them face to face.
35. In the foregoing circumstances, the applicant’s unwillingness to admit that he did not have his victims’ consent should not in my view mean that I should not give some weight to his qualified expression of remorse, and I accept that he is remorseful to the extent that he regrets the effect of his conduct on his victims. In view of the conclusions I have reached as to the applicant’s present character, I find it unnecessary to further consider the issue of remorse.
36. The fact of the applicant’s criminal convictions, including the issue of remorse, is only one of a number of matters relevant to a determination of whether the applicant is of good character. As Davies J pointed out in a case involving deportation, namely Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 656, the scope of the inquiry before this tribunal would ordinarily be much wider than the inquiry before the criminal court, and the tribunal should examine the criminal activity “with eyes different from those of the criminal jury.” His Honour then went on to refer to a number of matters which the tribunal would need to consider, and these included not only the applicant’s criminal behaviour, but also his personality and characteristics.
37. In the present matter, there are a number of matters other than the applicant’s convictions and the issue of remorse that I must take into account. These additional matters are as follows.
(a) There is no suggestion that the applicant was not of good character before the period of offending. Indeed, in his sentencing remarks, the Judge accepted that the applicant was of good character before then, and referred to his long and distinguished career.
(b) The offending conduct took place more than thirteen years ago. The applicant has served the non-parole term of imprisonment that was imposed, and was released from prison more than ten years ago. He did not breach his parole, which expired more than seven years ago.
(c) He has been actively involved as a member of the Chinese community with Christian churches and a Bible study group since being released from prison. He has addressed a meeting of ageing Christians in Australia on a voluntary basis, and has been invited to address a similar overseas conference, which he also proposes to do at his own expense.
(d) He gave evidence that he has made a positive contribution to the community, in that he has assisted people over many years in his medical practice, and prior to his convictions, he also engaged in the teaching of traditional Chinese medicine (see exhibit A1, paragraphs 6 and 7).
(e) Since his release from prison, the applicant has completed a course at TAFE. He obtained a diploma as an interpreter, and has been accredited by NAATI as a translator from English to the Chinese language. He voluntarily translates church programs to assist with the conduct of church services.
(f) Three character witnesses holding various positions of responsibility in the community gave evidence of his good character. Whilst I accept the criticism of counsel for the respondent that two of the three character witnesses did not appear to have a good understanding of the applicant’s offending, all three witnesses spoke of his good character in the period since his offending, and of his work with the Christian groups of which the applicant is a member. Of course, their evidence relates to their subjective assessment of the applicant’s character, but it also confirms certain of the objective evidence to which I have referred above.
(g) The applicant resumed practice in traditional Chinese medicine more than seven years ago. He said that he no longer conducts any examinations involving breasts or sexual organs. There is no evidence of any subsequent offending or complaints that would be inconsistent with the applicant’s evidence.
(h) The applicant is now seventy-nine years of age, and was seventy-two when he completed his parole period. Since then he has been active in his involvement in community affairs and employment, and taking his advanced years into account I think that he has now demonstrated a pattern of good behaviour over a reasonable period.
38. The matters referred to in the preceding paragraph indicate that the applicant is currently a person of good character, that he has made and is making a positive contribution to the community, and that he will not engage in criminal conduct in the future. I have carefully considered all of the evidence before me, and I am satisfied that the applicant has reformed and is presently of good character.
Decision
39. The tribunal sets aside the decision under review and remits the decision to the respondent for reconsideration in accordance with these reasons.
I certify that the 39 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
B Bills AssistantDate/s of Hearing 25 June 2008
Date of Decision 24 July 2008
Applicant In Person
Counsel for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent Australian Government Solicitor
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