D'Onofrio and Minister for Immigration and Citizenship
[2008] AATA 696
•8 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 696
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5477
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY D’ONOFRIO Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member L Hastwell Date8 August 2008
PlaceAdelaide
Decision
The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
IMMIGRATION & CITIZENSHIP – application for citizenship – character test – resident in Australia for many years – former drug addict – criminal record – terms of imprisonment – recent more minor offences – standard of character required to satisfy good character requirement – no objective character evidence provided – short period since last offence – decision affirmed
Australian Citizenship Act 1948 s 13
Australian Citizenship (Transitionals and Consequentials) Act 2007Australian Citizenship Act 2007 ss 21, 24, 52
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Silsby and Minister for Immigration and Citizenship [2007] AATA 1729
Re Darwich and Minister for Immigration and Citizenship (2007) 99 ALD 410Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Hamwi and Department of Immigration and Ethnic Affairs (AAT 9639, 25 July 1994)
Re Rafiq and Minister for Immigration and Citizenship (2008) 99 ALD 688
Re Fenn And Minister for Immigration and Multicultural Affairs [2000] AATA 931REASONS FOR DECISION
8 August 2008 Senior Member L Hastwell 1. Anthony D’Onofrio (the applicant) lodged an application for a grant of Australian citizenship on 8 September 2005. On 1 November 2007, a delegate of the Minister for Immigration and Citizenship (the respondent) refused the application on the basis that the applicant did not satisfy the character requirements set out in the legislation. The applicant seeks review of that decision to this Tribunal.
legislation
2. The applicant’s application for Australian citizenship was made under s 13 of the Australian Citizenship Act 1948 (the 1948 Act). Item 42 of Part 2 to Schedule 1 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals Act) repealed the whole of the 1948 Act and by virtue of item 7(2) of Part 1 of Schedule 3 to the Transitionals Act, the application now stands to be determined under the new Australian Citizenship Act 2007 (the 2007 Act), which commenced on 1 July 2007. The Tribunal must therefore determine the application according to the 2007 Act.
3. The Tribunal has jurisdiction to hear this matter pursuant to s 52(1)(b) of the 2007 Act.
4. Section 21 of the 2007 Act provides as follows:
“21 Application and eligibility for citizenship
(1)A person may make an application to the Minister to become an Australian citizen.
General eligibility
(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.”
5. Section 24 of the 2007 Act provides:
“24 Minister’s decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
…”
6. Citizenship Instructions (the Instructions) have also been promulgated to assist the decision-maker in applying the legislation. As the term “good character” is not defined in the 2007 Act, the Instructions provide guidance to decision-makers as to the application of the 2007 Act and the interpretation of that provision.
the hearing
7. The applicant represented himself and gave oral evidence to the Tribunal. The documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence (Exhibit R1). Subsequent to the hearing, and with the consent of the parties, further documents were obtained from the Adelaide Magistrates Court and a set of supplementary T documents were filed by the respondent (Exhibit R2). Copies of those documents were provided to the applicant.
8. The applicant was 45 years of age at the time of the hearing. He came to Australia with his parents when the family immigrated to Australia from Italy when he was three years of age. He has grown up in Australia and considers himself to be an Australian.
9. He is from a large family. Three of his siblings have Australian citizenship. His parents did not apply for him to become an Australian citizen when he was a child and by the time he made his own application for citizenship, he was an adult with a significant criminal record. This is the reason that the Minister has declined to grant him citizenship at this point in time.
10. On the applicant’s account he had a difficult childhood. His father was a very reluctant immigrant who was never happy with his life in Australia and frequently expressed the desire to return to his home country to reside. He described an unhappy family life characterised by some violence and alcohol abuse.
11. The applicant was in his twenties before he found himself on the wrong side of the law. He then committed a number of serious criminal offences, in the context of his addiction to heroin. He comes to this Tribunal with a criminal record showing numerous convictions for serious offences and he has served terms of imprisonment. A summary of his Criminal History Information Report was contained at T2/8-9 and confirmed a long history of offences commencing in 1989 and with the most recent being in March 2007.
12. The applicant has not used heroin for many years. He has deep regrets about the damage that his addiction has caused to his life and his relationships. He has now been on the methadone program for 13 years. He sees his 9 year old son under supervision once a month with a social worker accompanying him. He would love to spend more time with his son, who is currently in foster care. His dream is to have his son live with him, but he accepts that is not yet possible. He remains positive about his future.
13. He sees a counsellor at Warinilla Clinic regularly and he collects his methadone daily. He has ongoing health problems and continues to take medication to assist with anxiety and underlying addiction problems.
14. He is distressed that he has been refused citizenship. He sees his recent offences as being trivial and, to a degree, excusable and he does not consider they constitute a basis for refusing him citizenship.
15. The applicant has not been in jail since 1996. His criminal offences since 1997 are as follows:
·24.3.97 Conviction for carrying an offensive weapon.
·18.4.97 Conviction on three counts of being unlawfully on premises.
·15.1.01 Convicted for producing a controlled substance.
·17.7.03 Convicted of possessing a firearm without licence, handling a firearm while under the influence of liquor or drugs, possessing an unregistered firearm, obtaining ammunition and failing to store ammunition in locked container.
·15.12.04 Convicted of possession of a controlled substance.
·1.3.07 Convicted of carrying an offensive weapon.
16. The applicant was questioned about these more recent offences.
17. He denied ever having been convicted of producing a controlled substance, although he acknowledged a history of marijuana use that is ongoing.
18. He gave interesting explanations as to why he had a loaded gun on his roof which was the reason for the 2003 conviction. He blamed his neighbour for the fact that the gun was found on the roof by the police. He told the Tribunal that he is victimised by the police. He had been given the gun by a friend and he had agreed to look after it. He acknowledged obtaining ammunition for the gun. He did not want the rifle on his premises, hence he put it on the roof. He knew that it was illegal for him to have that weapon.
19. With respect to the most recent charge of carrying an offensive weapon, he pointed out that no penalty was imposed and he told the Tribunal that the Magistrate considered it to be a very minor matter. It involved him going to Centrelink with a large kitchen knife in his back pocket. His explanation was that he had been cooking when he was asked to come to the office and without thinking he had put the knife in his back pocket and pedalled down to the office.
20. The applicant repeatedly expressed great regret about the course his life had taken. He asked the Tribunal to accept that his offending was carried out mainly in a time of confusion and drug addiction. He considered his early offending to be serious, but asked the Tribunal to accept that he would now not hurt anyone. He has come from a violent and sad childhood. He feels like he lives in “no man’s land” and said that he now abides by the laws as much as he possibly can. He wants to be a citizen of the country that he considers to be his home and he wants to have the right to vote and to participate more fully in the life of the community.
21. The applicant did not call any character witnesses, nor did he bring any written character references to the hearing. He referred by name to some individuals that he believed would speak well of him, but he did not arrange for them to give any evidence to the Tribunal.
contentions
22. The applicant contends that the Tribunal should accept that he has every intention of being a good citizen if granted citizenship and that his life of offending is behind him. He contends that he is now of good character and that he is a reformed person.
23. The respondent contends that the applicant’s long history of convictions displaces a presumption in favour of good character. In particular, convictions as recent as 2007 are significant in the context of his application. The respondent contends that the applicant does not meet the good character test set out in the 2007 Act.
24. The respondent contends that the applicant’s pattern of offending, which continued even after his application for citizenship was lodged, precludes any argument that he is of sufficiently good character to be granted citizenship. The respondent argues that there is nothing to prevent him re-applying for citizenship in the future when he has remained conviction free for a period of time.
consideration
25. The Tribunal acknowledges the applicant’s sincerity in his desire to achieve citizenship. Nevertheless, at times he was vague and evasive in some of his responses and at other times he was overly frank about his ongoing use of marijuana. He claims to have tried very hard to avoid offending in recent years and to lead a decent life. However, he appears to continue to have significant lapses of judgement at times as to both his associations and actions. On his own account, he mixes with individuals who from time to time lead him into further trouble with the police. His crimes are not crimes of violence as such, although the recent offences relating to the firearm and the knife suggest a threat of violence in the circumstances.
26. His explanation as to his recent offending was not particularly convincing. He was quick to blame others for those offences and did not accept full responsibility for them.
27. The applicant does not have the same privileges as other Australians although he grew up in this country. He cannot vote or travel freely outside Australia and he is fearful of what his future may hold, given that he is only a permanent resident. He is insecure about holding a status that is less than that of a citizen. He has possibly seen recent reports of people being deported from the country on the basis of criminal convictions, even though they have resided for most of their lives in Australia.
28. The Tribunal must have regard to the Instructions and the law in determining this application.
findings of fact
29. The Tribunal makes the following findings of fact:
·The applicant has been resident in Australia since he was three years of age.
·The applicant’s parents did not make any application for him to gain citizenship when he was an infant and he remains a permanent resident in Australia.
·The applicant became a heroin addict at approximately 26 years of age and has a significant history of offences commencing in 1989 and continuing through to as recently as 1 March 2007. These offences related to dishonesty, drug use and, more recently, carrying an offensive weapon.
·The applicant has been heroin free for 13 years. He is on a methadone program and picks his methadone up daily. He receives counselling and has ongoing health problems associated with his years of drug addiction.
·The applicant does not appear to have participated in the workforce in recent years or at all.
·The applicant is one of six children and a number of his siblings are Australian citizens.
·The applicant has served terms of imprisonment on a number of occasions with the lengthiest being 36 months in 1990 and the most recent being 12 months in 1994.
·The applicant breached parole on a number of occasions, with his last breach being in 1994.
·The applicant has not been in prison since approximately 1996 and since that time his offences have been dealt with by way of fines, convictions and community service orders.
·The applicant is a recipient of a Disability Support Pension and has significant health problems. He receives regular counselling and is required to take medication daily.
application of the law
30. In coming to the correct and preferable decision, I have taken into account all of the available evidence. The application is to be dealt with under the 2007 Act.
31. The only basis upon which there is any opposition to the applicant’s claim for citizenship is that he does not achieve the requirement of being of good character as required by s 21(2)(h) of the 2007 Act. The sole issue for determination by the Tribunal is whether the applicant is of good character for the purposes of the 2007 Act.
32. The concept of good character is not defined in the 2007 Act and the Instructions have been issued to provide the decision-maker with guidance in making decisions under the 2007 Act. I must give consideration to the Instructions in making my decision, unless there are compelling reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
33. Chapter 10 of the Instructions deal with the issue of character. The Instructions direct that if the decision-maker is not satisfied that an applicant is of good character at the time of the application, then the decision-maker cannot defer the application, but must refuse the application. The applicant can always apply at a later time if he or she considers that their circumstances have changed.
34. The general rule is that an applicant may be presumed to be of good character unless there is evidence to the contrary. In this case, the respondent points to the applicant’s serious criminal record and his general conduct and associations as being relevant factors for the Tribunal’s consideration. The relevant portion of the Instructions provides as follows:
“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.”
35. The list of factors to which consideration should be given is included in Attachment A to the Instructions, and the relevant portions for the Tribunal’s purposes in this case are as follows:
“Attachment A – Character – Summary
Criminal record considerations:
Seriousness of any offences – eg crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children, war crimes, violations of human rights.
Length of any prison sentence – a sentence totalling 12 months or more, or 2 or more terms of imprisonment where the total is 2 or more years.
Repeat convictions for the same offence indicate a serious repeat offender.
Repeat criminal behaviour over time – when different offences occur.
Concealment of any offences – may be an indicator of a continuing lack of good character.
Any on-going obligations in relation to a sentence received – eg bond, security or parole.
Length of time between last offence and application for Australian citizenship.
Convictions for offences in another country – eg political offences which may not be criminal offences in Australia.
Existence of extenuating circumstances in relation to the crime(s) committed – eg . temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication).
Age at which the crimes committed – crimes committed as a juvenile may be given less weight than those of an adult.
Associations with other criminals or criminal organisations – may indicate poor character.
Other factors:
Evidence of length of employment, stable family life and community involvement can be indicators of character.
Reputation in the community should also be considered – referee reports, references and especially statutory declarations from non-family members can indicate changes in character.
Financial debts where there is no conviction for an offence or the debts are not being pursued are not grounds for considering an applicant to be of bad character."
36. The applicant has a serious criminal record commencing almost 20 years ago. He has been sentenced to imprisonment, had his parole cancelled and breached bonds on a number of occasions. The Tribunal accepts that his offences up until approximately 1994 were in the context of a very significant addiction to heroin. Since he was last released from prison in approximately 1996, his offences have been less serious as reflected in the penalties imposed.
37. The applicant’s early offences were serious. There has been a pattern of repeat offending even since he ceased using heroin with at least some of those convictions still relating to the illicit use of drugs.
38. The applicant has re-offended since lodging his application for citizenship.
39. The applicant was quite frank in his evidence and disclosed ongoing marijuana use which he did not appear to appreciate remained a criminal offence.
40. The applicant showed a tendency to still want to blame others for his recent offences.
41. With respect to the recent offence of possessing weapons that he was not licensed to use, he blamed a friend who had dropped off at least one of the weapons to his home. He felt he was relatively blameless for that offence. He could not see that it was his own lack of judgment, evident in his decision to then keep the weapons, buy ammunition for one of them and then hide one on the roof to avoid police detection, that resulted in the charges being laid against him. Similarly with the offence involving the knife, his explanation as to how he came to be charged with that offence was not particularly convincing.
42. The applicant did not bring any character witnesses to the hearing to provide evidence as to his reputation in the community. No referee reports or references or declarations from non-family members were produced. He assured the Tribunal that there were people who could speak to those issues, but he had elected not to involve them in the process before the Tribunal.
43. There is certainly precedent for citizenship being granted to a person despite an earlier criminal record. Length of time since a person has been convicted of an offence, the circumstances surrounding an offence and the way in which a person has conducted themselves in the community since they last offended are all matters to be brought to account by the Tribunal: Re Silsby and Minister for Immigration and Citizenship [2007] AATA 1729, Re Darwich and Minister for Immigration and Citizenship (2007) 99 ALD 410.
44. If the applicant had not committed any offences from 1997 to this date, there would be a basis for disregarding his earlier criminal history and seeing it in the context of his addiction. Nevertheless, he comes to the Tribunal with further criminal offences and with offences committed as recently as late 2006. He was dealt with in relation to that particular offence in March 2007 and he has not been charged or convicted of any offences since that time. He was discharged without penalty with respect to the most recent offence and for the offence prior to that, which was for possession of marijuana, he was given a six month good behaviour bond. That prior offence was some four years earlier in 2004. In the course of his evidence to the Tribunal he admitted to receiving at least one fairly recent on the spot fine for using marijuana.
45. The issue for the Tribunal is whether the applicant’s qualities are of the requisite degree to satisfy the Tribunal that he is of good character for the purpose of Australian citizenship.
46. The Tribunal obtained a copy of the Magistrate’s Court file with respect to the offences since the year 2000. It was not a particularly helpful document, but did confirm that the 2002 offences were fairly serious. They involved threats to a neighbour and possession of an air rifle and a Mannlicher bolt action rifle whilst not holding a firearms licence. There were charges relating to possession of cannabis in 2004 and carrying an offensive weapon, namely a knife, in 2006.
47. The applicant’s application for citizenship was dated 8 September 2005 and it was lodged on that date.
48. The decision of the Minister to refuse the grant of citizenship was made on 1 November 2007.
49. Between the date of his application for citizenship and the date of the Minister’s decision, it would appear that the applicant was charged with, and pleaded guilty to, the offence of carrying an offensive weapon.
50. The Tribunal must be guided by case law and by the Instructions in applying the test of good character. In that regard the Tribunal can also look to cases decided under the 1948 or 2007 Acts (Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771, Re Hamwi and Department of Immigration and Ethnic Affairs (AAT 9639, 25 July 2004) and Re Rafiq and Minister for Immigration and Citizenship (2008) 99 ALD 688.
51. The Tribunal is not entitled to make any findings that contradict or go behind the criminal record of the applicant.
52. The issue for the Tribunal is whether, despite a serious criminal record, the applicant is sufficiently rehabilitated that he can be considered a person of good character. In the context of a case under the 1948 Act, Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, the Tribunal commented as follows at paragraph 8:
“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 year's time when he can demonstrate a longer period of positive contribution to the Australian community.”
53. In the present case, the applicant has offended since lodging his application for citizenship and although he received no conviction or penalty with respect to that offence, it was nevertheless a further offence committed after his application had been lodged.
54. The applicant does not accept responsibility for a number of his earlier offences and blames them all on either third parties, his drug addiction or on police harassment. When confronted with the offences since the year 2000, the applicant was adamant that they were all trivial or minor or that he could not recall them at all, hence the need to obtain the further supplementary T documents to assist the Tribunal in ascertaining whether he, in fact, at any stage had possessed a controlled substance in the year 2000.
55. The Tribunal accepts that the applicant passionately wants to be a citizen and feels excluded from society and victimised by his past. Nevertheless, the Tribunal must have regard to the standards that the Australian community expects from its citizens. The applicant has not provided any character references or proof of any work history or voluntary work history in the community in recent years in support of his claim. In his oral evidence he referred to individuals who could provide a good account of him, but they have not been called to give evidence. He relies on a brief letter from his local Member of Parliament to support his claim for citizenship (T8). There is nothing in that letter to indicate whether he is a personal acquaintance of the person in question and whether they had full knowledge of his entire criminal record, including his recent offences. In the circumstances the Tribunal cannot place significant weight on this reference.
56. The standard of character required for citizenship is high. The Tribunal has weighed up all the available evidence and is of the view that the applicant has not satisfied the Tribunal in this case that he meets that standard. His failure to appreciate the seriousness of having any offences on his record, let alone offences such as possessing weapons that could cause potential harm to members of the community, in recent times was a concern for the Tribunal. The lack of any independent character evidence being provided is significant.
57. The applicant needs to establish a longer offence free period and provide strong referees who are fully aware of his prior history and yet are willing to attest to his good character and standing in the community if he hopes to be successful in a future application. As in the case of Re Fenn, the Tribunal accepts that the applicant is making a concerted attempt to turn his life around, but it will take some more time of him remaining free of offending before the Tribunal can accept that he has met the requisite character standard required for a grant of citizenship.
58. The Tribunal’s view is that his current application must fail for the reasons set out above and the Tribunal affirms the decision under review.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L HASTWELL
Signed: ................J Coulthard......................................
AssociateDate of Hearing 16 June 2008
Date of Decision 8 August 2008
Advocate for the Applicant In person
Advocate for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent AGS
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