Darwich and Minister for Immigration and Citizenship

[2007] AATA 2106

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2106

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/399

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALI DARWICH

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr P W Taylor SC, Senior Member

Date24 December 2007

PlaceSydney

Decision The Minister’s decision under review is set aside.  The Applicant’s citizenship application is remitted to the Minister for reconsideration in accordance with the reasons given below.

.............[sgd]........................

Mr PW Taylor SC, Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – application for Australian Citizenship – application refused on character grounds – criminal record – whether applicant has reformed and is now of good character – decision under review set aside.

Apprenticeship and Traineeship Act 2001 (NSW)

Australian Citizenship Act 1948 – section 13

Australian Citizenship Act 2007 – section 24(6)

Australian Citizenship Instructions

Crimes Act 1900 (NSW) – section188

Migration Act 1958 – section 501

Motor Vehicle Repairs Act 1980 (NSW) – sections 15, 18

Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321

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

Re Kakar and Minister for Immigration & Multicultural Affairs [2002] AATA 132

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

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

REASONS FOR DECISION

24 December 2007 Mr P W Taylor SC, Senior Member         

1.      The Minister rejected Mr Darwich’s 3 October 2006 citizenship application because he was not satisfied Mr Darwich is a “person … of “good character”.  Mr Darwich is a 35 year old Syrian national.  He came to Australia in June 1994 and was granted permanent residence in June 1997.  He married an Australian citizen in July 2005.  Their daughter was born on 15 November 2006.  Mr Darwich asserts his good character and contests the Minister’s rejection of his citizenship application.

The Applicant’s conviction and sentence

2.      The Minister’s dissatisfaction about Mr Darwich’s character arises from offences for which he was imprisoned between March 2000 and June 2003.  The Minister thought that these offences took place over the period from 7 August 1998 to 14 March 1999.  The repetition of offences over that period indicated to the Minister a lack of good character, especially having regard to the period of Mr Darwich's imprisonment, which the Minister regarded as severe.  In addition, the Minister thought that Mr Darwich had only briefly disclosed his offences at the time of his application.  The totality of these considerations left the Minister dissatisfied that Mr Darwich was a person of good character.

3.      The Minister relied on a computer generated “criminal history” report provided by the New South Wales Police Service.  The report identifies the nature of the offence, the charge date and the date the matter was dealt with by conviction and sentence.  It does not disclose the actual date of the events to which the charges relate.  Properly understood, the “criminal history” report reveals the following details of the offences involving Mr Darwich.

No	Charge	Court		Charge	Offence	Sentence
Date			Number
1	18-Nov-98		24-Feb-00	5799127	receive stolen property > $15,000	Taken into account
2	18-Nov-98		24-Feb-00	5799127	receive stolen property > $5,000 <$15,000	Taken into account
3	18-Nov-98		24-Feb-00	7797980	receive stolen property > $15,000	Taken into account
4	18-Nov-98		24-Feb-00	6124563	receive stolen property > $15,000	Taken into account
5	20-Nov-98		24-Feb-00	5483825	receive stolen property > $15,000	Taken into account
6	20-Nov-98		24-Feb-00	7355887	receive stolen property > $15,000	Taken into account
7	14-Mar-99		24-Feb-00	7790608	receive stolen property > $15,000	Taken into account
8	7-Aug-98		19-May-00	5318732	receive stolen property > $15,000	1 year
9	18-Nov-98		19-May-00	6198603	receive stolen property > $15,000	1 year
10	18-Nov-98		19-May-00	7151908	receive stolen property > $15,000	1 year
11	18-Nov-98		19-May-00	7372482	receive stolen property > $15,000	3 years 6 months
12	19-Nov-98		19-May-00	7709183	receive stolen property > $15,000	1 year

4. The summary table records 12 similar offences. All of them involved offences under section 188 of the Crimes Act 1900 (NSW) and related to the knowing receipt, or disposal, of stolen motor vehicles. Five of the matters were the subject of formal charges brought on various dates between 7 August 1998 and 14 March 1999. Mr Darwich pleaded guilty to the five matters charged and, on 24 February 2000, asked for the other seven matters to be taken into account in his sentencing. Contrary to the inference that the Minister apparently drew from the formal charge dates, all of the offences concerned events that occurred in the four month period from April 1998 to August 1998 – rather than the seven and a half month period between the first and last charge dates.

5.      On 19 May 2000, Mr Darwich was convicted and sentenced in relation to all of the offences.  The summary table does not accurately record the sentences imposed.  Mr Darwich was sentenced to cumulative periods in relation to three matters.  There were two cumulative, fixed terms of one year, a further cumulative minimum term of one year and three months, and an additional term of two years and three months.  In effect, Mr Darwich was given a cumulative minimum (non-parole) period of three years and three months imprisonment and a maximum term of five years and six months. 

6.      In the end result, Mr Darwich served the minimum non-parole period of three years and three months.  He was released from prison on 31 June 2003 and completed his parole requirements in December 2004.  In contrast to the actual period of his cumulative sentences, each of the offences with which Mr Darwich had been charged carried a potential maximum sentence of 12 years imprisonment.

Apparent factual misapprehensions about the offences

7.      The Minister’s decision seems to have been partly influenced by:

(a)a mis-description, and consequential overstatement, of the period during which the offences occurred;

(b)a characterisation of the period of imprisonment as severe, without explicitly recognising that each individual period of imprisonment was less than 10% of the available maximum; and

(c)an implied criticism of the brevity of Mr Darwich's disclosure, without explicitly considering the significance of the seven additional offences with which Mr Darwich had not been charged, but which he asked to be taken into account in his sentencing.

8.      Mr Darwich lodged an appeal against the severity of his sentence.  The NSW Court of Criminal Appeal judgment of 23 March 2001 records that all of the offences with which Mr Darwich was charged, including the additional offences taken into account in the sentencing, were committed in the period between April and August 1998.  Some of Mr Darwich's evidence to the Tribunal about his conduct relating to the offences could be interpreted as suggesting a somewhat longer period of involvement than that reflected in the Court of Criminal Appeal judgment.  However, Mr Darwich's evidence to the Tribunal was given more than nine years after the events and, as he explained, was given entirely from his unaided memory.  In contrast to the imprecision of Mr Darwich's recollection, it is reasonable to assume both that there was a thorough police investigation at the time, and that his self-interested additional disclosure was accurate.  In those circumstances, Mr Darwich's evidence to the Tribunal neither requires, nor justifies, a positive finding that the period of his criminal conduct was any more extensive than that described by the Court of Criminal Appeal.

9.      Although the sentences imposed on Mr Darwich were very much less than the available maximum, there is no doubt the offences with which he was charged involved serious criminality.  This is apparent from the remarks of the sentencing judge.  (The following passage in the sentencing judgement refers to both Mr Darwich and another person who was charged with similar offences and sentenced at the same time.  However, as the passage itself indicates, there was no suggestion that the two people had acted in concert in relation to the offences).

What each prisoner did, apparently separately from the other prisoner, was this: he purchased a 'written off' vehicle at an auction. Then he put an 'order' with somebody, who has not been identified, for a stolen vehicle of a make and model similar to the 'written off' vehicle. Then, after receipt of the stolen vehicle, he replaced the vehicle identifiers from the stolen vehicle with the identifiers removed from the written off vehicle. The he, or someone on his behalf, registered the stolen vehicle as the newly repaired written off vehicle. Then he, or whoever was the registered owner of the rebirth vehicle, sold it to an innocent purchaser. The owner of the stolen vehicle, or the vehicle's insurer, would suffer the loss of the stolen vehicle. After the rebirthed vehicle was recovered by police, the innocent purchaser would suffer the loss of the purchase price, although the original owner, or the vehicle's insurer, would recover some of the initial loss. As I have said, each prisoner was involved to a real and significant degree in the stolen vehicle rebirthing business and each prisoner's criminal acts resulted in substantial losses being suffered by innocent people or insurance companies.

10.     The sentencing judge characterised the offences as serious, well planned, productive of significant loss to innocent people and motivated solely by dishonest and self-interested greed.  He regarded the offences as meriting a salutary punishment.  The actual amount involved in the offences with which Mr Darwich was concerned amounted to a total of $343,782.88.  This was said to be the loss suffered by the owners of the stolen vehicles, their insurers and the purchasers of the rebirthed cars. 

11.     The sentencing judge also made favourable findings about Mr Darwich’s expressions of contrition.  He noted that Mr Darwich had pleaded guilty at the earliest opportunity, although he also noted that apparent strength of the prosecution evidence made conviction virtually inevitable.  He expressly found that, apart from the offences, Mr Darwich had an unblemished character.

12.     Despite the Minister's description of Mr Darwich's offence disclosures as brief, that brevity was not, nor could it properly be, a significant reason to make any adverse finding against Mr Darwich.  In answer to the relevant question in the citizenship application form, Mr Darwich disclosed that he had served three years in gaol after having been convicted of offences involving the receipt of stolen goods.  This was an adequate disclosure of the substance of the matters.  By making that disclosure, Mr Darwich at least implicitly indicated a willingness to provide any additional information the Minister might reasonably require in connection with his citizenship application.

Conviction and imprisonment as evidence of a lack of "good character"

13.     The offences of which Mr Darwich was convicted involved, as the sentencing judge’s remarks made clear, a practice of car "rebirthing".  The Minister contends that Mr Darwich’s conduct in connection with such a practice constituted serious criminal misconduct involving theft and deception.  The Minister's contention is that both the nature of the offences, and the significant period of imprisonment that was imposed, are themselves indicative of Mr Darwich's lack of good character.

14.     There is considerable force in the Minister's contention, but it is also open to two criticisms. The first is that it does not include any consideration or assessment of Mr Darwich’s personal circumstances at the time of the offences.  The second is that it does not take into account, at least not to any significant extent, Mr Darwich’s circumstances since the commission of the offences.  Nevertheless, the Minister's contention is that Mr Darwich bears the onus of establishing he is a "person ... of good character".  The Minister contends that Mr Darwich cannot discharge that onus when only three and a half to four years have passed since he was released from prison.

Mr Darwich’s pre-offence conduct and circumstances

15.     Irrespective of any question of "onus” in relation to the assessment of Mr Darwich's character, it is certainly relevant to consider his personal circumstances  leading up to the 1998 offences.  Mr Darwich came to Australia on a tourist visa with his older sister in 1994.  He was then aged 22.  He extended his tourist visa, apparently on several occasions.  By about June 1995 he had established a de facto relationship with an Australian citizen and applied for permanent residence in 1995.  On 16 June 1997 he was granted permanent residence.  (The de facto relationship itself ended in about December 1997.)

16.     In the early period of his working life in Australia Mr Darwich operated a cleaning business with his brother-in-law.  That seems to have led to involvement in doing some car detailing work.  Mr Darwich had previously worked in Syria as a panel beater and that experience, together with his car detailing work, gradually led to an increasing level of repair work on cars for family and friends.  As time progressed he spent more and more of his time on the car repair work and left the cleaning side of the business to be attended to by his brother-in-law.  This occurred over the period from 1994 to about 1996.

17.     Mr Darwich said that he started to make good money from his car repair work in the period from about 1996 onwards.  It was this incremental involvement with car repair work that eventually led to Mr Darwich’s conviction.  He said that he was not aware, at least for a time, that there was any illegality involved in his car repair work.  It was really just a matter of repairing cars that friends asked him to work on.  He was not able to write English effectively and although he spoke English reasonably well he was reliant on others, to a large extent, to deal with parts suppliers.  However, there did come a point where he realised that he was working on damaged cars that had been purchased at auction and that sometimes he was being asked merely to install matching parts that were provided to him.  He came to appreciate that the parts were probably stolen.  This developed to a stage where he was asked to re-badge stolen cars with compliance plates and vehicle identification data obtained from damaged auction cars.  It was his participation in these events for which he was arrested and which ultimately lead to his conviction and imprisonment. 

Consequences of the offences

18.     New South Wales authorities took action to recover from Mr Darwich the proceeds of the offences for which he had been convicted.  His house was seized and sold.  A substantial part of the proceeds of sale was confiscated, on the ground that he could not demonstrate any entitlement attributable to properly derived income or assets.  Mr Darwich thought the amount confiscated was something in the order of $125,000.  As well, Mr Darwich explained that a small number of people had complained to him independently about their own losses as a result of their dealings with him in connection with the offences.  He says he voluntarily provided additional compensation to these people.

Prison experience and conduct

19.     Mr Darwich started his imprisonment in about March 2000.  He described his three year and three month sentence as the worst period of his life.  It was so bad that he does not even want to remember it.  He regretted the difficulty it had created for his family, particularly for his sister, who had regularly visited him in regional gaols outside Sydney.

20.     Mr Darwich said he had learned a lot as a result of his conviction and imprisonment.  Whilst he was in gaol he had determined to use the opportunity to rehabilitate himself.  He took advantage of the educational opportunities that were available to him in prison.  He undertook a number of courses.  He had learnt basic English at school in Syria and was able to read and converse in English, even when he first came to Australia.  But his English spelling was not very good and he regarded himself as having difficulty with effective English language communication.

21.     By June 2001 he had successfully completed seven courses involving numeracy and English literacy skills.  By October 2001 he had successfully completed two modules (involving literacy and computer skills) of a nationally accredited certificate course in general education.  He had also completed another module of a Vocational Education and Training certificate course.  In November 2001 he was issued with a certificate of competence as a general forklift driver, and during 2002 he took a course in automotive panel beating.  He was granted an automotive panel beater's craft certificate, under the NSW Apprenticeship and Traineeship Act 2001, on 7 November 2002.

22.     As this record of achievement perhaps suggests, Mr Darwich said he applied himself conscientiously during his imprisonment.  He claims he was, in effect, a model prisoner.  He explained that he had been granted work release, a privilege that could only be earned by good behaviour, in order to complete his craft certificate course in panel beating.  After he had completed his craft certificate course he had been granted work release to undertake a succession of three jobs.  The first of these jobs lasted six months and ended only because his employer went out of business.  Mr Darwich says he was given a good reference by this employer.  The second job lasted about five months.  He was doing aluminium welding for a company that made prefabricated aluminium fencing.  He lost the job because his employer took him to work on site in a location where his electronic bracelet did not transmit to the prison authorities.  Because of that irregularity the prison authorities refused to allow Mr Darwich to return to work, even though there was no suggestion of misconduct or fault on his part.  Mr Darwich’s final work release job was as a panel beater.  He had that job for three months.

23.     Mr Darwich explained that his last panel beating job on work release ended when he was approached by the Immigration Department to review his permanent resident status.  Whilst that review was under way he spent the last three months of his sentence in minimum security custody.  Mr Darwich was released from prison on 31 June 2003.  After he was released from prison he was advised by the Immigration Department that their review had been completed and that no action would be taken to revoke his permanent resident status.

Release from prison and re-establishment

24.     Mr Darwich said he remembered very well the day he was released from prison.  He had described it to his sister as his "birthday".  What he meant was that after his conviction, and prison experience, he was determined that his release would mark the start of his new life in Australia.  He had learnt from his mistakes and was going to set about putting his life onto a proper course.

25.     For a while after he was released from prison Mr Darwich again lived with his sister.  Although she was the only member of his immediate family in Australia, he was also supported by family and friends in re-establishing himself.  They gave him money to re-establish himself and also helped him find work.  Notably these friends did not include any of the people who had been involved in the 1998 offences.  Mr Darwich says that since his release in 2003, he has eschewed any further association with those people.

26. About a year or so after he was released from prison, Mr Darwich started up his own motor vehicle repair business. The lawful conduct of such a business in New South Wales requires a licence under section 15 of the Motor Vehicle Repairs Act 1980 (‘the 1980 Act’). The licensing authority, the Motor Vehicle Repair Industry Authority, must refuse to issue a licence in certain specified circumstances. These include where it appears the licence applicant is not likely to carry on their business honestly and fairly, is "in any other way not a fit and proper person to hold a licence" or has been convicted of a "car stealing" offence under certain nominated provisions of the Crimes Act 1900: see subsections 18(1)(e)(i) and (j) Motor Vehicle Repairs Act 1980. Mr Darwich says that his licence application disclosed his conviction and sentence. However, none of the offences of which he was convicted under section 188 of the Crimes Act 1900 was a disqualifying offence, and he was in fact issued with a licence. It follows, that the Motor Vehicle Repair Industry Authority must have been satisfied that neither the fact nor the circumstances of Mr Darwich's 2000 convictions and sentence of themselves required a conclusion he was unfit to hold a licence under the 1980 Act. Mr Darwich says that he has held a licence under the 1980 Act continuously up until the present time.

27.     Mr Darwich’s first repair business after being released from prison was a mobile repair business that initially grew out of the work he did for friends.  He had only a few tools and no premises.  He would go and work on cars at other people's places.  This eventually led to him purchasing a van.  He equipped the van with appropriate tools and it became his mobile workshop.  He began to promote his mobile business and carried it on, with increasing success, for about 12 months.  But he attracted resistance from the Motor Vehicle Repair Industry Authority.  They required him to have a permanent workshop.  That led him to making an arrangement with a friend who operated another vehicle repair business.  Under that arrangement Mr Darwich shared part of the premises.  This enabled him to continue to do car repair work whilst at the same time attempting to resolve his difficulties with the Motor Vehicle Repair Industry Authority about the future operation of a mobile repair business. 

28.     Eventually, Mr Darwich decided to establish his own repair shop business.  In about the latter part of 2005 he purchased an existing business.  He renamed it Yennora Prestige Smash Repairs.  He has continued to operate the business until the present time.  He operates the business with secretarial and administrative assistance from his wife.  He employs one apprentice and has two full-time contractors who work on a piecework basis.

29.     In his review application, Mr Darwich said that he had changed his life for the better since his release from prison.  He realised that he had made a very big mistake from which he had learned the hard way.  He hoped that his achievements and progress since his release from prison demonstrated that he had changed his life and become a dedicated husband, father and citizen.  He believes he has blended into the community and has definitely put his dubious past behind him.  He said that he always used the example of his own experiences as a deterrent to the younger generation to deter them from the dangers of doing the wrong thing. 

30.     Mr Darwich appeared for himself at the Tribunal hearing.  His closing remarks in support of his application were quite poignant.  He had provided a number of supportive character references, including from prominent members of his Syrian Community.  But he accepted that the ultimate question of his character depended on his own attitude and actions.  As to that he said:

It doesn't matter how many papers or references I have got.  I know myself I am a good man.  I made a mistake in the past and it was a good lesson for anyone who wants to learn.  I am a good man and I will look after my wife and children.  I can’t say any more than that.

Supporting evidence of character

31.     Mrs Hanan Darwich’s evidence was strongly supportive of her husband.  She is an Australian citizen who has lived all her life in Australia and worked for 10 years as a hairdresser.  She said that she comes from a strict, but very supportive, Muslim background.  Her father is Syrian by birth and she regards him as having been quite strict with her.  She has two older, and two younger, brothers, all of whom are very protective of her.

32.     Mrs Darwich says that she first met her future husband in early 2005.  They were introduced by one of her cousins, who is also married to a more distant cousin of Mr Darwich.  Before they were introduced Mrs Darwich was told about Mr Darwich’s previous conviction and imprisonment.  It seems, from her explanation, that it was a matter of common knowledge amongst members of the Syrian community with which she and her family were associated.  Despite that knowledge, Mr Darwich was regarded by the community members as having re-established himself since his release from prison and as having done well.  It was because of that endorsement that Mrs Darwich agreed to be introduced to him.

33.     Mrs Darwich said that her parents and family were also well aware, through the osmotic community knowledge, of Mr Darwich’s conviction and imprisonment.  When Mr Darwich first met her parents, they were concerned to establish that Mr Darwich’s immigration status was secure.  They did not want there to be any risk that his association with their daughter was merely a matter of convenience to bolster his own immigration status.  However, once that apprehension was allayed, by the fact that Mr Darwich already had permanent resident status, they were content to accept him on his merits.  It was up to him to prove himself, to establish that he had a secure future and would be able to properly provide for their daughter.

34.     Mrs Darwich says that since 2005 the whole of her wider family has got to know Mr Darwich well.  She said that Mr Darwich participates in all the family functions and is well known to, and liked by, all of the relatives in her extended family.  There is not a word of animosity against him.  Mrs Darwich says that her four brothers are well aware of her husband's background and are fully supportive of him.  She said that everyone she associates with who knows him says she is very lucky to have her husband, because he is a good man.  She says he has never caused any trouble at any time within the family and is well liked by all her relatives.  She says he is also well regarded by all his work associates and that he is well respected.  In the two and a half years of their married life she has been very, very happy.

35.     Mrs Darwich says she is completely satisfied her husband would never return to the kind of behaviour that resulted in his conviction.  She says that she sometimes asks him how he would react if he ever had a chance to do "something stupid" again.  She said that his response is that he never would.  He would not risk sacrificing again what he has now – a loving wife, a young daughter, another child on the way, and a successful business.

36.     Mrs Darwich’s evidence was impressively genuine.  She was, as might be expected, very supportive of her husband.  But she was also intelligent, engagingly responsive and independently thoughtful.  The circumstances in which she first became aware of her husband's background shows that her initial involvement with, and subsequent commitment to, her husband were the results of considered and informed decisions in which she had ample opportunity to form her own assessment of him.  In addition her evidence discloses that her close family, which she describes as both strict and supportive, has unreservedly accepted her chosen husband.  Indeed he is regarded as having merited their genuine affection and respect. 

37.     Mrs Darwich explained that she assists in the administrative work involved in her husband’s business.  She regularly deals with all the major motor vehicle insurers.  She said that her husband has a particularly good reputation and relationship with one of the NRMA vehicle assessors.  Mrs Darwich said that from her observation and dealing with people in connection with her husband's business he has a very high reputation for honesty and straight dealing.  She said people regard him as doing excellent work and as being "straight to the point".  Mrs Darwich also explained that since the early part of 2007 they had entered into a debt factoring arrangement with a financier.  She said that they also had an excellent relationship with that company.

38.     Mrs Darwich conceded that she did not think they had specifically disclosed to any of the motor vehicle insurers, or to the debt factoring company, the fact of Mr Darwich’s previous convictions and imprisonment.  However, they had taken out all of the usual relevant insurance in connection with the business.  That insurance included coverage for property damage, public liability and, no doubt, workers compensation.  Full disclosure had been made to those insurers, including disclosure of all Mr Darwich’s convictions.  Notwithstanding that disclosure no insurance had ever been refused.

Other supporting character evidence

39.     Mr Darwich also provided supporting character evidence from a number of people.  These included the President of the Moslem Àlawi Youth Movement (Mr Ibrahim), two practising solicitors (Messrs Ball and Yakenian), the President of the Australian Syrian Expatriates Association Inc (Mr Albassit) and a senior religious leader of the Syrian community in Australia, Sheikh Ahmad Jundi.  Messrs Ibrahim, Ball, Yakenian and Jundi, all acknowledge awareness of the fact of Mr Darwich's previous criminal conduct, although some of their references to it are a somewhat brief and euphemistic.  Mr Ball expressly refers to a gaol sentence for car "rebirthing".  There is no reason to suspect that he is under any misapprehension about the nature and significance of Mr Darwich’s past misconduct.  Mr Ball expresses the opinion that he is "convinced" Mr Darwich has completely turned the corner in his life and will not re-offend.  Similarly, Mr Yakenian, after referring to Mr Darwich's release from gaol describes him as having tried hard and as having succeeded in establishing a reputation as a clean and honest operator of his smash repair business at Yennora.

Ministerial policy in relation to the “good character” criterion

40. Various provisions of the Australian Citizenship Instructions outline considerations relevant to the assessment of character for the purposes of section 13 of the Australian Citizenship Act 1948 (‘the 1948 Act’). The term has no statutory definition and bears the meaning it would convey in ordinary usage: paragraph 5.4.2. The assessment of character involves consideration of the conduct which is said to impugn the applicant's "good character", the applicant's explanation, and the full extent of the relevant circumstances: paragraph 5.4.4. Where a substantial period of imprisonment has been imposed that, in itself, will tend to indicate the seriousness of the applicant's misconduct: paragraph 5.4.7. Criminal conduct of this kind may be accorded less significance if a relevantly favourable intervening migration decision has been made, although its precise significance will depend upon the extent of the disclosure that was made at the time: paragraph 5.4.8. Although past criminal conduct can be a potent indicator of character, the ultimate matter to be assessed is the applicant's contemporary behaviour and reputation. The potentially adverse significance of past criminal behaviour may be diminished where it is demonstrably aberrant by comparison with the general pattern of the applicant's conduct. The inherent difficulty of accurately assessing character will mean that it is often prudent to require a reasonable amount of time to have passed in order to justify a conclusion that a person is currently of good character: paragraph 5.4.11 and 5.4.14. But other relevant factors, in addition to the passage of time, include the applicant's contemporary status, their employment and community reputation. Supportive declarations from character referees who acknowledge awareness of the applicant's past criminal behaviour, and vouch for their changed character, are entitled to be given considerable weight: paragraph 5.4.16 and 5.4.17.

41.     The ultimate assessment as to whether a person is “of good character” is concerned with their enduring or intrinsic moral qualities.  It is not necessary to be satisfied that the person meets, or has always met, the highest standards of integrity.  Neither is it necessary to address, as a separate criterion, the extent to which regard may properly be had to the question of the person’s reputed good standing, fame or repute.  It is necessary to show that the person’s moral qualities are of sufficiently high standard to warrant the favourable exercise of the relevant statutory discretion or function:  see Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 323 and 324; citing Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425 and 431. In the case of an application for Australian citizenship, the privileges and responsibilities of citizenship inform the appropriate assessment of character: Re Mlinar and Minister for Immigration & Multicultural Affairs (1997) 48 ALD 771; and suggest that the relevant assessment of character involves some comparison between the applicant’s intrinsic moral qualities and the standards of behaviour and social conduct evident, as desirable qualities, in the Australian community: Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [13]. That comparison and appropriate assessment ultimately requires an impressionistic conclusion about the significance of a range of relevant considerations, rather than the application of a conclusively prescriptive definition. In arriving at the ultimate conclusion about an applicant’s character in any particular case minds may reasonably differ about the weight to be given to different circumstances. Consequently they may also differ about the proper conclusion to be drawn. But the possibility of reasonably reached different conclusions does not mean that the criteria for assessing character are merely idiosyncratic.

Lapse of time

42. Because each of Mr Darwich's prison sentences was for a term of not less than 12 months, section 13(11)(c) of the Australian Citizenship Act 1948 precluded the Minister from granting him Australian citizenship until after 31 June 2005. Similarly, if Mr Darwich was subject to a parole period of two years and three months (as is perhaps suggested by paragraph two of the Court of Criminal Appeal 23 March 2001 reasons for judgment) he would have been ineligible for Australian citizenship until after 30 September 2005: see section 13(11)(d) of the Australian Citizenship Act 1948. Thereafter, until its repeal on 1 July 2007, the 1948 Act would have made Mr Darwich ineligible for citizenship if he had re-offended and been the subject of a further 12 months term of imprisonment at any time before 31 June 2013: see section 13(11)(ca) of the Australian Citizenship Act 1948. (Similar disqualifying restrictions apply under section 24(6) of the Australian Citizenship Act 2007.)

43. Apart from the automatic disqualification provisions referred to in the preceding paragraph, the lapse of time between an application and the applicant's past criminal conduct is a relevant, but not necessarily decisive, consideration in an assessment of their character. Past conviction is not, and in the absence of any specific statutory provision (such as section 501(6) of the Migration Act 1958), cannot be regarded as, an automatic barrier to the establishment of a person’s contemporary “good character”: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.

Good character sufficiently established

44.     The Minister rightly submits that the offences Mr Darwich committed are very serious.  By Mr Darwich’s own admission they involved a significant period of deliberate dishonest conduct for personal gain.  The cumulative minimum sentences that were imposed on him, and which totalled three years and three months, affirm the accuracy of the Minister's submission.

45. The Minister’s submissions also observe, again entirely correctly, that Mr Darwich has only been at liberty in the community for a little over four years since his release at the end of June 2003. In addition, for the first six months of that period Mr Darwich was under active parole supervision. His parole supervision ceased in fact at the end of December 2003, although it perhaps did not formally expire until September 2005. It follows that his period of unsupervised freedom since release from prison is only four years at best and perhaps only a little over two years . The Minister contends that this is too short a period to permit the Tribunal to be satisfied he is a "person … of good character" for the purposes of section 13(1)(f) of Australian Citizenship Act 1948.

46.     There is a considerable degree of imprecision about the utility of the mere passage of time in any assessment of a person's "good character".  On the one hand, there is an undeniable element of force in the Minister's submission that lapse of time is relevant.  The longer the period since proven past misconduct, the potentially greater level of satisfaction one can have about the likelihood of continuing future good conduct.  A sustained period of good conduct, together with an informed confidence of its likely future continuation, provides a good platform from which to opine that a person is indeed of "good character".

47.     However, it is implicit in this mode of reasoning that the lapse of time is itself merely a subsidiary indicator of good character.  Morever in the present case there is an element of arbitrariness in confining attention to the period since Mr Darwich’s release from prison.  In fact more than nine years have elapsed since the last of the offences with which he was charged.  More than seven years have elapsed since he pleaded guilty (in February 2000) and six years have elapsed since he embarked on his commendable rehabilitation efforts during his imprisonment. 

48.     It is consistent with the policy evident in the Australian Citizenship Instructions referred to above, and also with the ordinary approach to the assessment of character, to regard the quality of an applicant’s “post conviction” conduct as more influential than the mere assessment of the length of the period in which it has occurred.  This is especially so where, as I have suggested, there would be an element of arbitrariness involved if primary regard was had to the period since Mr Darwich was either released from prison or freed from all parole restraints.

49.     In the present case the following considerations, when taken together, justify the conclusion that Mr Darwich is a person of “good character”, notwithstanding the seriousness of the offences he committed in 1998 and the significant period of imprisonment he subsequently served:

(a)The remarks of the sentencing judge in 2000 indicate that Mr Darwich had an otherwise unblemished character at the time of the 1998 offences.  His conduct, though serious and deliberate, may therefore be regarded as aberrant.  Furthermore, it occurred over nine years ago.

(b)Mr Darwich’s relatively prompt contrition in response to the matters charged indicates a public and unequivocal acknowledgement of wrongdoing.

(c)Mr Darwich’s conduct, apart from being aberrant, may have been partly influenced by his former associates and by his relative lack of recognised qualifications and experience in operating effectively a properly conducted Australian business.  As to the former consideration, he has severed all contact with his former associates.  As to the latter, his further education and his actual experience in successfully conducting his current business tend to demonstrate his competence and ability.

(d)Mr Darwich’s prison behaviour and educational achievements indicate a commitment to self improvement and compliance with proper standards.  Even if this commitment was primarily motivated by intelligent self interest, it must have re-inforced in him both the importance of proper standards and also the subjective rewards likely to follow from adherence to them.

(e)Mr Darwich has obtained, and maintained, a statutory licence under relevant State legislation (the NSW Motor Vehicle Repairs Act 1980). The issue of that licence, in a regulatory environment where lack of good character is a disqualifying consideration, demonstrates that he is, at least implicitly, regarded by a relevant State Government Authority as being a person of good character.

(f)Mr Darwich’s current good reputation and character is affirmatively vouched for by significant members of the Syrian community and by two practising solicitors.  These affirmations of good character have been made despite awareness of both the nature of Mr Darwich’s past convictions and his period of imprisonment.

(g)Mr Darwich’s current good character is supported by his wife.  Often that kind of support must be viewed with sceptical regard to the likelihood of bias attributable to emotional commitment and spousal loyalty.  But in the present case, Mrs Darwich allowed the relationship to develop in apparently full awareness of Mr Darwich’s past conduct and in an environment where she had the full support of a close family entirely devoted to her support and protection.  Those facts, together with Mrs Darwich’s claim that her husband has obtained the affection and respect of her family, both immediate and extended, provide significant evidence tending to support Mr Darwich’s contemporary claim of “good character”.  It corroborates the other evidence of Mr Darwich’s current good character.

50.     I am satisfied that the preferable decision, in the circumstances I have considered, is that Mr Darwich is a person of good character, notwithstanding the seriousness of the offences he committed in 1998.

The Tribunal’s formal decision

51. The Minister submitted that if the Tribunal was satisfied that Mr Darwich was a person of good character the appropriate course of action was to set aside the Minister’s decision and remit the application to the Minister for reconsideration. This course was said to be appropriate because the Minister’s refusal decision had been based solely on the “good character” issue. The Minister had not considered all of the other relevant criteria provided for in section 13 of the Australian Citizenship Act 1948. Neither had all of those matters been addressed in the course of the Tribunal hearing.

52. It does not appear likely, given the manner and content of Mr Darwich’s evidence and submissions to the Tribunal, that he will fail to satisfy the Minister of the other criteria provided for in section 13(1) of the Australian Citizenship Act 1948. However the Minister’s submissions correctly point out that none of these other matters was addressed specifically either in the course of the Tribunal hearing, or in the Minister’s original decision. In these circumstances the appropriate course is to accede to the Minister’s request and remit the application for reconsideration in accordance with these reasons for decision.

53.     The Minister’s decision under review is set aside.  The Applicant’s citizenship application is remitted to the Minister for reconsideration in accordance with these reasons. 

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of MR PW TAYLOR SC, SENIOR MEMBER:

Signed: ......[sgd]....................................................................
  Associate

Date/s of Hearing  22 November 2007
Date of Decision  24 December 2007
Representative for the Applicant    Self-represented
Solicitor for the Respondent          Mr T Eteuati