CHUM and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 536

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 536

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No. 2010/5195

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAM ATT CHUM

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP  

Respondent

DECISION

Tribunal  Regina Perton, Member

Date 2 August 2011

Place Melbourne

Decision  The Tribunal affirms the decision under review.

.................(signed)........................

Member

CITIZENSHIP ‑ application for Australian citizenship ‑ conviction for recklessly cause injury ‑ whether applicant of good character

Australian Citizenship Act 2007   s 21(2)(h)

Crimes Act 1958 (Vic) s 18

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997)

REASONS FOR DECISION

2 August 2011  Regina Perton, Member

1.      Sam Chum is a citizen of Cambodia who has been an Australian  permanent resident since 2006.   He applied for citizenship on 31 August 2010.  On 1 November 2010 a delegate of the respondent refused Mr Chum’s application for Australian citizenship on the basis that he was not of good character because of a criminal conviction in 2008.   On 25 November 2010 Mr Chum sought review of the decision.

LEGISLATIVE BACKGROUND

2.      Section 21(2) of the Australian Citizenship Act 2007 (the Act) provides:

(2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

…

(h)  is of good character at the time of the Minister’s decision on the application.

3.      Chapter 10 of the Australian Citizenship Instructions (the Instructions), sets out the policy guidelines which are to be applied by delegates of the respondent in assessing applications for the grant of Australian citizenship under the provisions of s 21 of the Act.  The Tribunal is required have regard to the policy set out in the Instructions, unless there are cogent reasons why it should not (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

4.      The relevant paragraphs of the Instructions provide:

…

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 they are of good character.

…

An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record.  However, general conduct and associations may also be relevant.

…

Assessing good character involves:

·establishing whether or not an applicant has a criminal record, and the nature of that record, if any

…

·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.

…

5.      The Instructions list a number of factors that decision-makers should have regard to where a person has a criminal record. They include:

·

the seriousness of any offences against ordinary community standards …

...

·

whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond …

...

·whether an offence was a one-off occurrence that can now be considered "out of character", or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated …

·whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

·the applicant’s age at the time the offence(s) were committed …

A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person's behaviour immediately prior to the making of a decision.

A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

ISSUE

6.      The only issue before the Tribunal is whether at the time of the Tribunal’s decision Mr Chum is of good character.

IS MR CHUM OF GOOD CHARACTER?

7.      

Mr Chum told the Tribunal that he is now of good character.  He explained that he first arrived in Australia in 1995 and returned to Cambodia in 2003 after divorcing his first wife and marrying his second wife, an Australian citizen.  On

27 February 2005 he arrived in Australia and became a permanent resident on

17 March 2006.  He stated that in Australia he has been in full-time employment.  He has been working as an asbestos remover for several years.  He stated that he had never been in any trouble before the incident that led to his conviction.

8.      In respect of the incident in question, Mr Chum stated in a statutory declaration dated 14 October 2010 that a friend asked him to drive him to a house in Keysborough.  He stated that he saw two men and a woman inside the property.  He stated that after his friend entered the property he saw two men armed with asparagus knives running towards his friend.  They appeared intent on harming his friend.  Mr Chum said that he remained outside the property and his friend approached him for assistance.   He saw the men running towards him, so he got out of his car and took a large garden knife from the boot of his car to defend himself.  Mr Chum was adamant that he did not intend to fight with the men but just wanted to defend himself.  He stated that the police charged him because he carried a knife.  Mr Chum was subsequently charged with recklessly cause injury.

9.      On 18 July 2007 Mr Chum was convicted in the Dandenong Magistrates’ Court and sentenced to six months’ imprisonment wholly suspended for twelve months.  He lodged an appeal against the conviction and sentence in the County Court of Victoria, and on 27 March 2008 the Court dismissed the appeal.  He was convicted and sentenced to three months’ imprisonment wholly suspended for two years, plus a fine of $2000.               

10.     Mr Chum maintained that he was remorseful about his involvement in the incident and that his behaviour on that day was out of character.  He stated that in the period of nearly five years since the incident, and sixteen months since the expiry of the period of suspension of his term of imprisonment, he has not re-offended or been in any trouble with the police.  He has been active in the Cambodian Association of Victoria in assisting Cambodian immigrants and helping to organise community activities.  He also referred to his good employment record.  He said that he needs Australian citizenship to allow him to travel overseas with his wife as the holder of an Australian passport.  His wife has close relatives in the United States of America whom they would like to visit.

11.     In a written statement dated 15 October 2010 the Venerable Peo Liv, Buddhist Monk and leader of the Dharman Buddhist Temple, described Mr Chum as of good character.  He said that Mr Chum is a nice person who attends the temple regularly with his wife to practise Buddhism and likes to help his friends and the Cambodian community.

12.     In a written statement dated 25 August 2010 Mr Youhorn Chea, President of the Cambodian Association of Victoria, stated that he has known Mr Chum for more than ten years.  He described him as an honest person and hard worker who has made a significant contribution to the Cambodian community through his support for the work of the Association.  Mr Chea stated that to his knowledge Mr Chum had possession of the garden knife for self-defence on the day in question because he feared for his safety, but has not been in any trouble since the conviction.  Mr Chea said that when the police arrived and saw he had a knife in his hand the police charged him.  Mr Chea stated that Mr Chum had breached the law as he carried the knife in a public place. 

13.     In a further statement dated 26 February 2011 in support of the application for citizenship Mr Chea said that he is also a Councillor in the City of Greater Dandenong and has counselled Mr Chum.  He noted that Mr Chum is remorseful and is unlikely to re-offend. 

14.     

In a written statement dated 2 February 2011 Mr Luong Chao stated that he has known Mr Chum since 1995 as a work colleague, and had employed him when he started his own building business.  He described Mr Chum as a good-natured, reliable and honest worker who is respectful of his colleagues.  Mr Chao said that although he was aware of the incident that led to the conviction he believes that

Mr Chum is not a violent, aggressive or reckless person.  Mr Chao stated that

Mr Chum has expressed remorse about the incident and in his observation there have been no further incidents of this nature.

15.     Mr Chum had foreshadowed that his referees would appear as witnesses at the hearing.  However on the day of the hearing they were unavailable.  He said that his employer was in Queensland and another referee in Cambodia. 

16.     Mr Chum was asked for further details of the circumstances that led to his conviction.  He said that he had been at a party at the home of a friend on the weekend but had left his mobile phone battery charger there.  After work on Monday 6 September 2006 he went to his friend’s home to retrieve his charger.  His friend asked him to drive to a nearby property as his family members were using his car at that time.  Mr Chum said that he had no idea why his friend wanted to go to that property.   His description of what happened was more comprehensive than that in the statutory declaration he had earlier provided to the respondent. 

17.     Mr Chum was adamant that he had not struck anyone but had been brandishing a machete that he retrieved from the boot of his car to defend himself.  He said that he had bought the knife a few days earlier to use in the garden and had not removed it from his car.  It had still been in its cover and unused at the time of the incident.  He kept the tools he used for work in the boot of his car.   Mr Chum said that after the incident he had driven his bloodied friend back to the friend’s home.  He could not explain why he had left the machete in his friend’s garage where it was located by the police when they executed a search warrant on his friend’s home.  Drugs were found in his friend’s house but Mr Chum said that he had no idea that his friend used or sold drugs.  He said that he had never been in his friend’s house but met him at community events in restaurants.  The party had been in his friend’s garage.

18.     Mr Chum said that he pleaded guilty to the charges based on the advice of his legal representatives and community representatives.  He indicated that he did not understand the implications of what he said at the criminal proceedings.  He felt he was ill-advised and concerned about the calibre of the legal advice he was given and the poor quality of the interpreters. 

19.     In Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997) at [26], the Tribunal stated that character is to be judged objectively against ordinary community standards of moral behaviour.  In Irving
v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Davies J said at 425:

…the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute... 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…

20.     In Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 the Tribunal said at [17]:

…

"Good character"…should be given the same meaning as it is in s 501 of the Migration Act 1958(Cth)…The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it...

21.     In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 Branson J stated at [38]:

…proof of a conviction is, as a matter of logic, highly probative of the truth of factual matters essential to the conviction. Little public benefit might be thought to flow from the expenditure of time and money involved in the reconsideration of the same issues by an administrative decision maker. Moreover, particularly where significant time has passed since the events which founded the criminal charge, evidence which was available at the criminal trial might not be available at the time of the administrative hearing. Matters which were conceded or proved beyond reasonable doubt at the criminal trial might quite easily be denied by a party to an administrative hearing who knows, for example, that a former witness against him has died or is otherwise unlikely to be called to give evidence.

22. The Tribunal takes into account Mr Chum’s version of the incident that led to his conviction. The Tribunal notes that he had legal representation in the Magistrates’ Court and the County Court. Unfortunately the Tribunal did not have access to the facts alleged by the prosecution in the Magistrates’ Court or to the remarks by the sentencing Judge in the County Court. However the Tribunal notes that s 18 of the Crimes Act 1958 (Vic) provides the following description of causing injury intentionally or recklessly:

A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence.  Penalty:  If the injury was caused intentionally – level 5 imprisonment (10 years maximum); If the injury was caused recklessly – level 6 imprisonment (5 years maximum).

23.     In applying the Instructions and the findings in Irving and Re Mlinar, the Tribunal is satisfied that the conviction involving a weapon and resulting in a term of imprisonment of three months, although wholly suspended, represents a serious breach of the law which reflects adversely on Mr Chum’s character. 

24.     The Tribunal accepts that Mr Chum had no prior criminal convictions and has had none since completing his sentence, and that there are no outstanding matters involving him since the expiry of his sentencing obligation in March 2010. The Tribunal also accepts that he has expressed remorse for his conduct and has maintained a stable work history.  He has a supportive wife and has contributed to the Cambodian community through his work with the Cambodian Association of Victoria.  He has provided letters of support from his employer and members of his community.  The period of imprisonment was at the lower end for the offence for which he was convicted. 

25.     However Mr Chum was aged 36 years at the time of the offence.  The County Court determined that his term of imprisonment should be wholly suspended for a period of two years.  The County Court did not dismiss the charges for which he was convicted in the Magistrates’ Court.  The respondent submitted that a period of at least the length of the suspension period was appropriate before the character provision was met. 

26.     The Tribunal notes that the charges for a violent crime were dealt with by both the Magistrates’ and County Courts.  The County Court determined that  Mr Chum’s conviction stood.  There appears to be some inconsistency between Mr Chum’s description of what happened and the nature of the conviction.  However the Tribunal did not have access to documentation that might allow it to reconcile the discrepancy.  The respondent stated that searches for the transcript of the County Court proceedings had been unsuccessful. 

27.     In all the circumstances the Tribunal is not persuaded that a period less than the period of suspension is sufficient for Mr Chum to establish a pattern of good behaviour or a change in character.

28.     For these reasons the Tribunal finds, on balance, that Mr Chum has not demonstrated that at the time of the Tribunal’s decision he was of good character.  Consequently, he does not satisfy s 21(2)(h) of the Act.

29.     As indicated to Mr Chum by the respondent’s representative at the hearing, he is entitled to make a fresh application for citizenship and may consider doing so when sufficient time has lapsed since the expiry of the period of suspension. 

DECISION

30.     The Tribunal affirms the decision under review.

31.      

I certify that the preceding thirty [30] paragraphs are a true copy of the reasons for the decision of

Regina Perton, Member:

(sgd)         Kate Conners

Associate

Date of hearing:  27 July 2011

Date of decision:  2 August 2011
Advocate for applicant:  Self-represented
Advocate for respondent:                   Mr David Brown
Solicitor for the respondent:                Australian Government Solicitor