Clough and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1158

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1158

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/178

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRANT EDWARD STEPHEN CLOUGH

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President S D Hotop
Senior Member A Sweidan

Date22 November 2005

PlacePerth

Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that a certificate of Australian citizenship be granted to the applicant.

............(Sgd S D Hotop)..........

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – citizenship – applicant a New Zealand citizen – applicant arrived in Australia from New Zealand in 1978 – applicant convicted of numerous offences of fraud, money laundering and receiving in 1996 and 1997 and sentenced to 47 months imprisonment – applicant released from prison in December 1997 and completed parole in February 2000 – applicant has had no further convictions – applicant has since been in stable employment – applicant applied for Australian citizenship in January 2004 – applicant has been rehabilitated – applicant now satisfies “good character” required for grant of Australian citizenship – decision under review set aside

Australian Citizenship Act 1948 (Cth) s 13(1)

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187  

REASONS FOR DECISION

22 November 2005

Deputy President S D Hotop

  Senior Member A Sweidan

Introduction

1.      Grant Clough is a citizen of New Zealand who arrived in Australia in March 1978 when he was 26 years of age.  He has lived in Australia ever since.

2.      In January 2004 Mr Clough applied for Australian citizenship but his application was refused by a delegate of the respondent Minister on 26 April 2005 on the ground that, because of his criminal record in Australia, he did not satisfy one of the statutory requirements for a grant of Australian citizenship, namely that he be “of good character”.  Mr Clough has applied to this Tribunal for a review of that decision.

The Issue

3.      Mr Clough has been found by the delegate to satisfy all of the statutory requirements for a grant of Australian citizenship, except the “good character” requirement.  The sole issue for the Tribunal’s determination is, therefore, whether Mr Clough now satisfies the “good character” requirement and should be granted Australian citizenship.

4.      For the reasons which follow, the Tribunal has determined that Mr Clough is now a person of good character and should be granted Australian citizenship.

The Legislation

5.The Australian Citizenship Act 1948 (“the Act”) relevantly provides:

“13 Grant of Australian citizenship

(1) Subject to this section, the Minister may, in the Minister's discretion, upon

application in accordance with the approved form, grant a certificate of Australian

citizenship to a person who satisfies the Minister that:

(a) the person is a permanent resident;  

(b) the person has attained the age of 18 years;

(c) the person understands the nature of the application;

(d  the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f)  the person is of good character;

(g) the person possesses a basic knowledge of the English language;

(h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j)  if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.”

Ministerial Policy

6.      Ministerial policy guidelines relating to the determination of applications for Australian citizenship are set out in the Australian Citizenship Instructions (“the Instructions”) which relevantly state:

“5.4     Good Character Requirement  – s13 (1) (f)

5.4.1 …

5.4.2 The term ‘good character’ is not defined in the Act, so decision makers should 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. 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.

5.4.3 If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character.  An applicant’s behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.

5.4.4    Assessment of good character involves:

·establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;

·according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and

·considering the full circumstances relating to the relevant matters and evidence of the applicant’s behaviour since then.  Factors to be considered include, but are not limited to, those in the following paragraphs.

5.4.5 Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 – 5.4.15, if there is evidence that the applicant:

(a)       has, at any time, been sentenced to:

-   death;

-   imprisonment for life;

-   a term of imprisonment of 12 months or more;

- 2 or more terms of imprisonment (whether on one or more

occasions), where the total of those terms 2 years or more;

(b)       is a serious repeat offender (see 5.3.9 – 5.3.11);

(c)may have committed, or been involved in the commission of, war crimes or crimes against humanity or human rights (in which case the decision maker is to contact Character Section in Central Office for advice);

(d)has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result been detained in a facility or institution;

(e)may have, or have had, an association with someone else, or with a group or organisation, whom the decision maker reasonably suspects has been or is involved in criminal conduct;

(f)is subject to proceedings for an offence against a law of another country, including proceedings by way of appeal or review;

- a person subject to such proceedings for an offence against an Australian law would come within the bar on grant in s 13(11)(a) (see 5.3.4); or

(g)is on release from the whole, or a part, of a sentence on parole, licence or security.

5.4.6    …       

5.4.7Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards.  For example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment.  Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.

5.4.8 …

5.4.9 …

5.4.10 …

5.4.11 Consider whether a crime was a one-off occurrence that can now be considered ‘out of character’, or whether the person’s criminal record shows repeated offences and a pattern of unlawful 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 (see 5.4.13 – 5.4.17).

5.4.12 Consider whether there were any extenuating circumstances relating to the crime being committed.  For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) 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.

5.4.13…

5.4.14 A person’s previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person’s behaviour and reputation at the time of the decision that has greatest relevance.  Decision-makers must be satisfied that a person is of good character at the time of 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.

5.4.15…

5.4.16 The applicant’s behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions.  Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights.  The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.  

5.4.17The applicant’s present reputation in the community should also be considered.  The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship.  Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements.  Declarations from character referees that acknowledge the person’s criminal background, and attest to a change in character since, should be given considerable weight.”

Mr Clough’s Criminal History in Australia

7.Mr Clough’s recorded criminal history in Australia is as follows:

Court	Date	Charges heard	Count	Result
District Court of WA, Perth	1.11.96	Fraud	6	1:47 months imp 2-6:47 months imp conc ea chg
District Court of WA, Perth	1.11.96	Money Laundering	7	47 months imp conc ea chg
District Court of WA, Perth	1.11.96	Receiving	4	47 months imp conc ea chg Total: 47 months imp
District Court of WA, Perth	20.12.96	Fraud	1	18 months imp conc
District Court of WA, Perth	20.12.96	Receiving	1	18 months imp conc
District Court of WA, Perth	8.9.97	Accessory after Fact	6	12 months imp conc ea chg
District Court of WA, Perth	8.9.97	Fraud	11	12 months imp conc ea chg
District Court of WA, Perth	8.9.97	Receiving	9	1:12 months imp 2-8:12 months imp conc ea chg Total: 12 months imp cum

8.      The abovementioned offences, of which Mr Clough and his co-accused were convicted, were committed in the course of what Judge Viol, in his sentencing remarks on 1 November 1996, described as a “clever scam” involving the buying of wrecked motor vehicles, the receiving of stolen matching vehicles, the re-identification, or “re-badging”, of the stolen vehicles using parts, compliance plate numbers and chassis numbers from the wrecked vehicles, and the subsequent selling of the re-identified (“re-badged”) vehicles.  His Honour went on to describe this scheme as “blatant and well thought out” involving “people intent on using their personal occupations and attributes to make money at the expense of innocent victims”.  Judge Kennedy, in sentencing Mr Clough and his co-accused on 20 December 1996 in respect of further offences committed in the course of that scheme, described their behaviour as involving “serious criminality”.   

The Evidence

Mr Clough

9.      In his oral evidence Mr Clough said that the various offences of which he was convicted in 1996 and 1997 were committed in the course of the abovementioned scheme over a period of 4 years from 1988 to 1992.  He acknowledged that that scheme involved a “major fraud” and that there was no excuse for his criminal conduct.  He said that he accepted full responsibility for his wrongdoing, although he acknowledged that he had pleaded not guilty to the charges brought against him.  He explained that he had pleaded not guilty because of the embarrassment and shame that he felt over what he had done.  He also acknowledged, however, that at his trial he and his co-accused knowingly presented a false defence to the charges involving the creation of a fictitious third party who, they claimed, had re-badged the stolen vehicles.

10.     He said that being imprisoned had a great deterrent effect on him and while in prison he resolved to make changes to himself in order to prove his worth when released.

11.     He said that, since his release in December 1997, he has constantly been in gainful employment for almost the whole of that period.  He said that a few days after his release he commenced contract work, constructing mezzanine floors in factories, for about 3 months.  He then worked for 18 months building heat exchangers before commencing employment with Answer Engineering in 1999 where he was employed until June 2005.  During his employment with Answer Engineering he was appointed Site Manager and was subsequently promoted to General Manager.  He said that in June 2005 he left Answer Engineering to set up his own business – QED Fabrication Pty Ltd – operating in the same field.

12.     He said that in the (almost) 8 years since his release from prison he had been highly motivated to succeed and to prove his self-worth to himself and to the community.  He added that he believed that he had succeeded and that, in that period, he had demonstrated that he is worthy of being granted Australian citizenship.

13.As regards his reasons for applying for Australian citizenship, he said that:

·     his wife, son and daughter are all Australian citizens;

·     he has lived in Australia for the past 27 years, calls Australia home, and feels that he is an Australian rather than a New Zealander;

·     he wished to operate his new business in Australia as an Australian citizen, and his travelling to and from Australia, for the purpose of developing export markets, would be facilitated if he had an Australian passport. 

He added that his becoming an Australian citizen was “the most important thing on [his] plate” at the present time.

Additional Material

14.Material which is also in evidence before the Tribunal includes:

·     strong character references for Mr Clough from former employers (including the Director of Answer Engineering), business associates and long-standing friends in Australia, all of whom are apparently persons of good repute;

·     a letter from Manna Ministries, a charitable association which provides friendship, care and evening meals to those in need, confirming Mr Clough’s willing involvement in providing his trade services in the establishment of a kitchen and dining area in a city building, and attesting to his good character;

·     a Department of Justice Community Based Work Release Report dated 27 November 1997 (prior to Mr Clough’s release from prison) in which it is noted that:

-Mr Clough works in the Cabinet Shop and his Instructor describes him as “a keen and conscientious worker who shows initiative and leadership skills”;

-prison staff describe Mr Clough as a “model prisoner who is constantly polite, courteous and respectful”;

-Mr Clough “presents as a mature adult, polite and well-mannered”;

-Mr Clough “would successfully complete a period of Community Based Work Release and thereafter Parole”, and it is “recommended that [he] be released to Community Based Work Release on his eligibility date” (21 December 1997);

·     a comprehensive Clinical Psychology Assessment Report in respect of Mr Clough, prepared by Dr Marc Joffe, Clinical Psychologist, dated 8 December 2004, in which it is noted that:

-Mr Clough’s familial history is “highly suggestive of a capacity for empathy” and for “conscience and moral development”;

-Mr Clough’s work history, both before and after his incarceration, is “stable and consistent” and that is “suggestive of sound character, generally, the capacity to get along with others, general honesty, reliability and a capacity for constructive consistency”; 

-the long duration of each of  Mr Clough’s 2 primary relationships is also “indicative of consistency, capacity for loyalty, capacity to think and work difficult things through, and a generally constructive disposition”;

-Mr Clough acknowledged the seriousness of his offences and accepted responsibility for them, and he appeared to experience “deep, congruent and genuine remorse” for his wrongdoing (original emphasis);

-over the previous 5 years Mr Clough has “literally resurrected his career by evidencing occupational upward mobility at Answer Engineering” and “reports from the workplace are indicative of honesty, trustworthiness, reliability, and profound work ethic”;

-the extent of Mr Clough’s work ethic in the period since his offending is “indicative of [his] contrition and wish to make reparation to his wife”.

Analysis

The meaning of “good character”

15.     In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Federal Court of Australia (Full Court) considered the meaning of the expression “good character” for the purposes of the migration legislation. Davies J (with whose reasons R D Nicholson J agreed) said (at p 425):

“… the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”

Lee J said (at pp 431-432):

“Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.” (citations of authorities omitted).

In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said (at p 197):

“The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’.  Conduct may make those qualities visible, but it should never be confused with them.  In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.”

Is Mr Clough now a person “of good character”?

16.     The respondent cited Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, in which the Tribunal determined that Mr Fenn was not a person of good character within the meaning of s 13(1) (f) of the Act, and submitted that, given the factual similarities between that case and the present case, a similar determination would be appropriate in the present case. In Re Fenn  Deputy President Breen said (at paras 7-8):

“7.       Mr Fenn committed fraud over a period of 4 years in an amount of over $800,000.  This does amount to major fraud and while this may be the only period of criminal activity in Mr Fenn’s life, it cannot be said to be a one-off occurrence given the prolonged period over which it was committed.  The applicant was of mature age at the time of the offence, so youthful mis-judgement cannot be claimed on his behalf.  A psychological report compiled in June 1992 for the Sentencing Judge stated that the offence was committed at a time of extreme pressure and that the applicant exhibited great remorse for his actions.  It concluded that if the applicant continued to work in the employ of another business, his risk of recidivism would be low.  The reality is that most acts of fraudulent misappropriation are committed during times of financial and business pressure and the Court did not seem to accept this as a significant mitigating factor when sentencing the applicant.  The applicant was released on parole in October 1995.  Since that time he has moved to Queensland and started a new life.  He has permanent employment and is regarded highly by his employer.  He is also regarded highly by a number of people within the community, some of whom provided letters of reference to the Tribunal.  It is accepted that the applicant is seriously endeavouring to make a fresh start and a positive contribution to the Australian community, although he did acknowledge that it is beyond his ability to repay the money he misappropriated.

8.        The grant of Australian citizenship is a privilege not bestowed lightly.  It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.  While Mr Fenn may have made a contribution to the community before these offences and since 1995, he significantly detracted from the community for over 4 years and deprived a number of Australians of their savings and other monies rightfully theirs.  That Mr Fenn is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship.  The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts.  It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State.  The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.”

17.     It is common ground that, apart from the abovementioned offences committed by Mr Clough from 1988 to 1992, he has no relevant criminal history.  Those offences, however, were numerous and were committed repeatedly over a substantial period.  They collectively constitute – as Mr Clough himself acknowledged – a major fraud, and his behaviour during that period involved, as stated by Judge Kennedy, serious criminality.  Clearly, the good character which Mr Clough possessed before he embarked on that criminal conduct was destroyed by that conduct.  The question is whether he has subsequently - in particular, during the period since he has been “free of obligation to the court” (para 5.4.14 of the Instructions) – established “a pattern of good behaviour” such as to demonstrate that he has reformed, has been rehabilitated, and has re-established his good character.

18.     The Tribunal notes that Mr Clough’s parole period expired on 9 February 2000 and it will treat that date as the date on which he became “free of obligation to the court”, within the meaning of para 5.4.14 of the Instructions.  The Tribunal also notes, however, that throughout the period of his incarceration (October 1996 – December 1997), Community Based Work Release (December 1997 – June 1998) and parole (June 1998 – February 2000), Mr Clough’s conduct was, by all accounts, consistently good.

19.     Throughout the period since the completion of his parole until June 2005, Mr Clough was employed by Answer Engineering where he commenced as a welder and was subsequently promoted the position of Site Manager and ultimately to the position of General Manager.  A character reference from Brad Lane, Director of Answer Engineering, dated 17 December 2004, refers to:

·     Mr Clough’s extreme reliability and trustworthiness;

·     Mr Clough’s excellent performance as General Manager;

·     the great respect which Mr Lane and all staff members have for Mr Clough, and the high regard which the firm’s clients have for him.

As previously mentioned, Mr Clough left Answer Engineering in June 2005 and commenced his own business, QED Fabrication Pty Ltd.

20.     Mr Clough’s present good reputation in the community is evidenced by the abovementioned character references from longstanding friends in Australia and from the social welfare organisation, Manna Ministries.  The Tribunal also notes the abovementioned Clinical Psychology Assessment Report of Dr Marc Joffe whose findings, in the Tribunal’s opinion, are indicative of Mr Clough’s having, over the last 5 years, rehabilitated himself and re-established his good character.

21.     The Tribunal also formed a very favourable view of Mr Clough at the hearing.  In the Tribunal’s opinion he gave his evidence in a candid and sincere manner and appeared to the Tribunal to be genuinely ashamed of, and remorseful for, his past wrongdoing and determined to continue to make amends and to prove his worth as a person by working hard, being productive and making a valuable contribution to society.

22.     Having regard to the material before it, the Tribunal is satisfied that, in the period from February 2000 in particular, Mr Clough has, by his consistently good and productive conduct, gradually rebuilt his good reputation in the community and re-established his good character.  The Tribunal accepts that Mr Clough is fundamentally a good person with enduring moral qualities and that the period from 1988 to 1992, when he committed the abovementioned serious offences, represented an aberration – an aberration which, however, was very substantial in both time and degree and which effectively destroyed his existing good character.  In subsequent years – in particular, since February 2000 – however, Mr Clough has, in the Tribunal’s opinion, gradually revived and re-established his underlying good character.

23. Accordingly, the Tribunal is satisfied, and finds, that Mr Clough is now, once again, a person of good character, within the meaning, and for the purposes, of s 13(1)(f) of the Act.

A further matter

24. Finally, the Tribunal notes that, on 21 February 2005, a delegate of the respondent determined that, by reason of Mr Clough’s abovementioned criminal history, he reasonably suspected that Mr Clough did not pass the “character test”, within the meaning of s 501 of the Migration Act 1958 (Cth), thereby rendering his Class TY 444 Special Category visa liable to cancellation under that section, but the delegate decided, having regard to all relevant considerations, not to exercise the discretion to cancel his visa under that section.  On 1 March 2005, however, a formal written notice was issued by the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”), warning Mr Clough that any further criminal convictions would lead to reconsideration of the cancellation of his visa.

25. The respondent submitted that, since Mr Clough has only recently been found not to pass the “character test” for the purposes of s 501 of the Migration Act and been given a warning about future possible cancellation of his visa if he commits further offences, a grant of Australian citizenship to Mr Clough now would render that warning “nugatory”.  The respondent further submitted that it would be premature to grant Australian citizenship to Mr Clough before a reasonable period of time has elapsed in which to determine whether that warning has had any “chastening effect” on him.

26. The Tribunal does not accept the respondent’s submissions. In the first place, the “character test” for the purposes of s 501 of the Migration Act is a different concept from that of “good character” for the purposes of s 13(1) of the Act. Whereas a person is forever deemed not to pass the “character test” for the purposes of s 501 of the Migration Act if, among other circumstances, they have (like Mr Clough) been sentenced to a term of imprisonment of 12 months or more, a person who has been convicted of serious offences and thereby demonstrated that they were then not of good character may nevertheless subsequently demonstrate that they have been rehabilitated and are now “of good character” for the purposes of s 13(1) of the Act (see, in particular, para 5.4.14 of the Instructions). Secondly, the fact that the Department, on 1 March 2005, issued a warning to Mr Clough about future possible cancellation of his visa if he commits further offences is not relevant to the issue of whether he is presently a person “of good character” for the purposes of s 13(1) of the Act, and, in the Tribunal’s opinion, the issuing of that warning – somewhat belatedly, given that it was based on Mr Clough’s convictions in 1996 and 1997, and (the Tribunal notes) was issued only after he had lodged with the Department his application for Australian citizenship – provides no good reason for delaying a grant of Australian citizenship to Mr Clough who, the Tribunal has found, is now a person “of good character” for the purposes of s 13(1) of the Act.

Conclusion

27. As previously mentioned, the delegate determined, in the decision under review, that Mr Clough satisfies all the requirements of s 13(1) of the Act, other than the “good character” requirement in para (f) of s 13(1). The Tribunal has determined that Mr Clough now also satisfies that “good character” requirement. In those circumstances the appropriate disposition of this matter (as acknowledged by the respondent) is that the Tribunal should set aside the decision under review and substitute therefor a decision that Mr Clough be granted a certificate of Australian citizenship.

Decision

28.     For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that a certificate of Australian citizenship be granted to Mr Clough.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Senior Member A Sweidan

Signed:         ..................(Sgd E M Jordan).......................
  Associate

Date of Hearing  27 September 2005
Date of Decision  22 November 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr A Gerrard
Solicitor for the Respondent     Australian Government Solicitor