Docker and Minister for Home Affairs (Citizenship)
[2019] AATA 4479
•6 November 2019
Docker and Minister for Home Affairs (Citizenship) [2019] AATA 4479 (6 November 2019)
Division:GENERAL DIVISION
File Number: 2018/6945
Re:Mr Michael Docker
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO, Member
Date:6 November 2019
Place:Melbourne
The Tribunal sets aside the decision of the Delegate, dated 15 November 2018, refusing Mr Docker’s application for Australian citizenship by conferral; and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to
section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), that the applicant is a person of good character for the purposes of the Act........[sgd].............................................................
Ms Anna Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether the applicant is not of good character – whether the application for citizenship made by the applicant should be approved – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)Cases
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mana v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639
Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94
Safar and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 503Ragni Mala Prasad and Minister of Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke AO, Member
INTRODUCTION AND BACKGROUND
On 4 March 1982 Mr Docker arrived in Australia from New Zealand and since that time has resided in Australia. On 8 June 2005 Mr Docker was granted a Special Category Visa Subclass 444.
On 22 March 2017 Mr Docker lodged an application for Australian citizenship by conferral.
On 13 September 2018 a delegate of the Minister advised Mr Docker his application for citizenship was being assessed, and that his application may be refused because he may not meet the legal requirements of the Australian Citizenship Act 2007 (the Act) to be of “good character”, based on his criminal record. Mr Docker was provided with an opportunity to comment.
On 27 October 2018 Mr Docker provided his response, including a statutory declaration and several character references. In his statement to the delegate Mr Docker explained the circumstances of the criminal charges and the mitigating factors he claimed impacted on his actions, including his mental health issues and methamphetamine addiction.
On 15 November 2018 a delegate of the Minister, under section 24 of the Act, refused Mr Docker’s application for citizenship on the basis that he was not of good character. In the decision the delegate states:
Under citizenship policy, I must consider the significance of your offence(s)…
I am satisfied that you have been convicted of assault with weapon and that this is considered to be a significant offence.
Citizenship policy states the decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case.
You have provided a Criminal Convictions Report issued by the Ministry of New Zealand that list offences from 1979 and 1982. You have also provided an infringement notice issued by VicRoads in relation to a driving infringement in 2003, namely ‘Exceed Alcohol Limit’, which resulted in the cancellation of your driver license. Whilst a considerable period of time has elapsed since the commission of these offences, in light of these offences I am not satisfied those committed in 2015 can be considered a one-off occurrence. This weighs against you being of good character. I give this factor considerable weight on my assessment of whether you are of good character.
After considering your conduct, one of the factors I have considered is whether you have rehabilitated and made a conscious effort to obey and uphold Australian laws. You have stated that mitigating factors that affected your behaviour at the time of the offence were mental health issues and methyl amphetamine addiction. You have provided some evidence of rehabilitation in the form of a letter from Stepping Up Consortium confirming your willing engagement at all required court ordered counselling sessions, and your achievement of your treatment goals, including abstinence from alcohol and drugs. This weighs in favour of you being of good character. I give this factor some weight in my assessment of whether you are of good character…
You have provided three character references from people including your employer, a previous employer and your doctor. Two of your referees acknowledge your criminal background. The references state that you are hardworking, punctual, diligent, truthful, loyal, civil and obedient. All referees state that they support your application for Australian citizenship. This weighs in favour of you being of good character. I give this factor some weight in my assessment of whether you are of good character.
I have considered whether a reasonable amount of time has passed since you were free of any obligation to the court, in order to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character. Your obligation to the court in the form of a community correction order ended on 19 May 2016. In light of the nature of the offences committed in 2015, I am not satisfied that a reasonable amount of time has passed to establish a pattern of good behaviour and to conclude that you are now of good character. This weighs against you being of good character. I give this factor considerable weight in my assessment of whether you are of good character.
I acknowledge that you have provided character references from individuals who attest to your character, and evidence that you have undertaken the counselling sessions as required by your Community Corrections Order, however, due to the significant nature of the offences, and the fact that these offences cannot be considered a one-off occurrence, I am not satisfied that sufficient time has passed since you were free of any obligation to the court to conclude that you are of good character at the time of this decision.
In light of the above assessment I’m not satisfied that you are of good character.
On 23 November 2018 Mr Docker applied to the Administrative Appeals Tribunal for review of the Delegate’s decision, outlining his reasons as: I don’t agree I am not of good character. No one who supplied references was contacted. I consider it to be an arbitrary decision.
At the hearing, Mr Docker was represented by Mr John Blackley of Bayside Solicitors. Ms Katie Amanatidis of The Australian Government Solicitor appeared on behalf of the Minister for Home Affairs (“the respondent”). Mr Docker and Doctor Paul Grech, Psychologist, gave evidence under oath.
Mr Docker is a 58 year old New Zealand national, who arrived in Australia in 1982 as a 21-year-old. He has resided in Australia for some 37 years, the majority of his adult life. Mr Docker was married to an Australian citizen for 19 years, whom he subsequently divorced. Together they have three adult daughters and two grandsons who are all Australian citizens. Mr Docker has been continually employed since arriving in Australia, working in numerous positions, including as a fly-in, fly-out worker. He is currently employed as a truck-body builder.
Mr Docker explained to the Tribunal that he had come to Australia for a better life. He suspected he was going to end up in jail in New Zealand by the way he was going and the company he was keeping. There were limited opportunities in New Zealand at the time and he had jumped on the Aussie bandwagon like everyone else.
Mr Docker explained to the Tribunal that he was now seeking to become an Australian citizen as he had always assumed that he was an Australian resident. Fundamentally, he said that Australia was his home, his family are all Australian citizens, he has paid Australian taxes for 38 years, and child support for 18. He said he needed the ability to travel to New Zealand to visit his elderly mother and stepfather without the fear that he would not be able to return. Mr Docker told the tribunal:
And the fact that I’m the only member of my family that is not an actually Australian. I mean, the way I see it, I am as Australia as any other Australian, just like being in a de facto relationship, I’m missing the marriage certificate
I believe that I was a permanent resident but upon coming back from Fiji in about 2010, I was informed I was on a special 444 Visa, which I had found out means to leave the country; you need to reapply from where you leave to come back. Now, I appear to have, somewhat, by applying for citizenship, boxed myself into a corner because with the denial of citizenship on the grounds of character, if I leave the country and reapply to come back, obviously, that component of character comes into play. So what I’m saying is I have boxed myself in the corner by – if anything comes up I go back to New Zealand, well I’m free to go, but I don’t know how am I going to go about getting back. So that was one of the aspects of me applying for citizenship.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the applicant is of good character.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
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).
....Section 25 of the Act provides, in part:
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
The term “good character” is not defined by the Act. However, guidance is provided by the Department of Immigration and Border Protection Citizenship Policy issued by the Minister in 2016 (the Policy). The stated role of the Policy is to provide guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007.
Chapter 11 of the Policy deals with good character. Importantly, it is expressly stated from the outset that it is not Departmental policy for decision-makers to be bound by a checklist. Rather, decision-makers are to look at the merits of each case and turn their minds to the issues of character until they are satisfied, on a reasoned basis, whether the applicant is, or is not, of good character.
The Policy makes reference to the definition of “good character” given by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431-432):
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.
The Policy also refers to Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President Breen discussed the role of the character requirement in a citizenship application (at para 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… 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.
To assist decision-makers, the Policy contains a non-exhaustive list of the characteristics of good behaviour, which is set out below:
an applicant of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
oinvolvement in a bogus marriage
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
oinvolvement in Centrelink or Australian Tax Office fraud
ogiving false names and/or addresses to police
·not to be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not to be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not to have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not to have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not to be the subject of any extradition order or other international arrest warrant
·not to be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not to be the subject of any verifiable information causing character doubts.
The Policy also provides guidance on weighing up the character decision. It points out that the assessment of whether an applicant is of “good character” requires the consideration of an aggregate of qualities. More weight is to be given to serious offences.
The Policy further states:
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
The Policy makes reference to Deputy President Forgie’s decision in Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94, to demonstrate this point:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
EVIDENCE
The evidence before the Tribunal included two sets of documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents”. Mr Docker provided numerous references and a psychologist’s report.
The following table has been derived from Mr Docker’s records as outlined in a Criminal Convictions Report from the Ministry of Justice New Zealand dated 17 February 2017:
Court
Date Nature of Offence Sentence North Shore District Court
23 July 1979
Burgles (Oth prop) ($100-$1000) by Ngt
Fine
Palmerston North District Court
12 Sept 1979
Unlawful takes motor vehicle Etc
Police non-traffic prosecution
Fine
Disqualification
from Driving
Dannevirke District Court
25 Feb 1982 Intimidates persons with firearm Fine Dannevirke District Court
3 March 1982
Theft Ex car (under $500)
Probation
Mr Docker provided a surprisingly frank account of his numerous offences in New Zealand. They had occurred when he was in his late teens or early 20s and living in a small country town. The Tribunal has relied upon Mr Docker’s open account of these offences as there was no other evidence, such as police records or court documentation, on which to rely, the offences having occurred 40 years earlier.
Mr Docker described his life growing up as difficult. His parents divorced when he was 10 years old and his mother re-married. He moved from town to town and school to school during this period. He said that when he was 15 his mother found him a job on a farm but he did not want to be there, so left to live with his grandmother and uncles. After a while, his uncle said he needed to go home and finish school, so he returned to live with his mother and finished school, went into the New Zealand Navy for a short time, and at 19 returned home and found employment. He indicated this was an awesome time living the dream with his girlfriend of the time. They had a car, a house, and were quite self-sufficient. But his alcohol abuse spoilt everything and he started to get into trouble with the law.
During examination-in-chief, Mr Docker explained each of his New Zealand offences:
·Burglaries 23 July 1979
Applicant (A): If I recall correctly that was in relation to the theft in company of the stereo from the Thames Youth Club. A stereo, yes it was a stereo.
Tribunal (T): How old were you at the time of that offence? – – –
A: Well 17/18 – 18 I think.
A: Ah all I can remember was we were – myself and two others were taken to the Thames Youth Club where we were drinking and um yeah upon leaving, ah, we took the stereo with us. The next day, if I recall correctly, we went to, um - sold the stereo to a second-hand shop. And lo and behold the local police turned up and questioned us about the said stereo but for some reason or another we talked our way out of it, got paid for the stereo and it was at a further time that I got pulled up for the stereo.
T: When you were questioned later, did you make full admissions? – – –
A: Yes I did
T: You took responsibility for that? – – –
A: yes I did, yeah.
·Unlawful takes motor vehicle 12 September 1979
A: Myself and two others, walked past a motor vehicle with the engine running. The owner and driver of the vehicle was in the, um, a takeaway bottle shop so we helped ourselves to his car .. So after a period of time, joyriding and drinking, we crash[ed] the said vehicle. Unfortunately one of us went through the windscreen so obviously the ambulance and police turned up and I was taken into custody at that time. I was released the next day and had to front the Magistrates’ Court to answer that charge.
T: And when the police questioned you, did you make full admissions? – – –
A: Yes, myself and the other occupant made full admissions. The other gentleman unfortunately was in hospital.
T: Did you cooperate with the police when they discuss the matter with you? – – –
A: Yes
·Intimidates person with firearm 25 February 1982
A: briefly myself and friends attended a party that we were invited to. There was a group of people from another town close by that arrived. An altercation took place where our friend of mine was stabbed with a broken milk bottle.
T: Were you involved in that altercation? – – –
A: No, no, I wasn’t. I wasn’t involved. We’ve gone outside and he’s been lacerated with a bottle so we endeavoured to put their him into the car and drive off and we were followed out and they’ve jumped on the roof of the car and caved the roof of the car in. Whoever was driving the car has driven a couple of them over. We’ve taken my friend to the hospital in company with two others, I’ve gone along with them. One of my associates went to his uncle’s house and got his uncle’s shot gun used for clay shooting. We’ve gone back to the party which was still under way … We were going to let the shotgun off and try and scare everybody because of the perceived you know - we were - they’d destroy my mate’s car and stabbed my mate so we were going to back and fire off the shot gun and try and scare them off and that was what we were thinking at the time … the gentleman, my friend who took the shotgun off his uncle, had first – it was a pump action shotgun so had the first go, I had the second go. The first shot was fired at the house.
T: And the second shot was fired by? – – –
A: Myself which was fired in the air
T: What, was it towards the people or at the crowd or was it just straight up in the air? – – –
A: They were all in behind partying and we were in this is the hedge, we were all standing in the hedge so the first shot was fired at the house and peppered the house we’ve shot. That was the description in the local paper. My turn, I just fired in the air and the third person, when it was his turn, he’s fired it in the air….. Upon such time they all came swarming out the house like locusts looking for us. They couldn’t find us and eventually we were able to remove ourselves from the hedge, return the shot gun and we were spoken to the next morning by the local police and we decided to surrender ourselves the following afternoon.
T: Why did you surrender yourself? – – –
A: Because it was a small town and it was the police knew … in small town like mine it’s not going to take long and the police had a pretty good idea because we were the three that had presented at the hospital with my mate that had been lacerated, another gentleman in company with us it was his car that got destroyed so didn’t it take long for them to put two and two together… Okay so just by not being – I was not a victim of association. I was one of the – the particular company that yeah took part in that.
T: So you’ve presented at the police station? – – –
A: Presented to the police station, given a full and frank admission and I’ve got to be honest with you here; there was another charge of “discharging a firearm in a public place” but I think that when it went to court they only proceeded with the intimidating persons with firearm but to be completely honest there was a further charge but obviously that has not proceeded.
·Theft EX car 3 March 1982
A: whilst severely inebriated which is no excuse, I removed $6 of pork sausages from the front seat of a parked car. I’m pretty sure that the two I were in company with had also retrieved some items from the car. Subsequently we were found by the police or they were in close proximity and we were spoken to and they discover the sausages and other objects in our car whereupon we were taken to the Palmerston North police station, interviewed and charged.
A Victorian LEAP police report of 21 August 2002 records a family violence report in respect of domestic dispute/intentionally cause injury; and a further family violence report of 23 January 2003 notes verbal disagreement over maintenance payment.
Mr Docker explained the circumstances of this offence to the Tribunal. He said his ex-wife had been diagnosed with Multiple Sclerosis (MS) shortly after the birth of their second daughter. It had been a very difficult time for her, and their relationship had subsequently deteriorated. Their relationship had broken down at the end of 2002 and there had been some animosity that had resulted in reports of family violence to the police. Mr Docker strenuously argued that all the complaints had been withdrawn and no charges had been laid. Mr Docker told the Tribunal that he would now describe his relationship with his ex-wife as cordial, and that he has re-established a strong relationship with his three daughters.
Mr Docker explained to the Tribunal that during this period he was trying to save his marriage and so sought the help of a psychologist. During this treatment, Mr Docker explained to the psychologist that he was always being threatened with the prospect of having an intervention order taken out against him by his wife and daughter, and that whilst both had sought to take out intervention orders against him they were always withdrawn. To resolve the stress of the situation his psychologist had suggested that a way of dealing with his issues was to take control, and suggested he get an intervention order taken out against himself. He advised the Tribunal:
So I went to the Frankston police station upon the advice of the psychologist where I was laughed out the police station. Then I’ve gone to the clerk of Courts at the courthouse and he’s looked at me and he just shook his head and said “hang on, I don’t know whether you can actually do that”, but he’s come back and said, “well, I think you can do that so you can go and sit over there and wait for the magistrate to call your name.” So I’ve gone and seen the magistrate and the magistrate goes, “well what are you here for? Who do you want do to take out an intervention order against?” And I said, “myself” and he goes, “what?” and I said, “myself upon the advice of my psychologist” and I explained the situation to him and he said “do you know the seriousness of an intervention order?” and I said “well, yes as I’ve got I’ve got the threat of one hanging over my head constantly, so I’ll get my own thank you very much” and then … because I’d been told, my psychologist thought I might have some more control.
Mr Docker under cross examination indicated that he understood an intervention order was a very serious thing and that he had never been found to have breached an intervention order. The intervention order the respondent was referring to in the documentation was one he had taken out against himself.
The following table has been derived from a VicRoads confirmation of cancellation of license dated 18 February 2004:
Date
Nature of Offence
31 December 2003
Exceed alcohol limit - license cancellation for six months
Mr Docker explained the circumstances of this offence:
R: .. it says alcohol level 0.070% to 0.099%? – A: Yes it was .08 the charge was
R: sorry double the alcohol limit which is .05%-- A: well it was past .05% yes yes
R: And do you agree that this type of drink-driving was dangerous and may have caused harm to others? – A: Definitely
A Victorian LEAP police report of 18 September 2013 records “possess controlled weapon without excuse”. The report notes that Mr Docker was sitting in a car in a hotel car park where he was found to be in possession of a black wooden baton in the driver side door. Under cross examination, Mr Docker explained this incident to the Tribunal:
I was parked in the car with my current – with my girlfriend at the time and we were approached by a divisional van and they got out and asked me if there was anything in the car that shouldn’t be in the car and I said “No”, and opened the door and there was a black 1953 wooden English policeman’s baton in the driver side door which I’d bought from Mitchell’s camping.
It [the police baton] was sitting in the car because of the company I was keeping. You didn’t know what was going to happen, you know what I mean, so it was for self-protection, and yes, as I found out it was illegal and it was very expensive… Yes I mean it cost me $30 and it ended up costing me $900.
The following table has been derived from Mr Docker’s records as outlined in an Australian Criminal Intelligence Commission report dated 12 May 2018:
Court
Date Nature of Offence Sentence Dandenong Magistrates Court
19 May 2015
Assault with weapon
Criminal damage (intent damage/destroy)
Convicted and a community correction order for 12 months.
Unpaid Community Work perform 96 hours of community workConvicted and a community correction order for 12 months.
Unpaid Community Work perform 96 hours of community work
Pay compensation of $450
A Melbourne Magistrates Court document dated 28 December 2014 record the incidents in the following manner:
On Tuesday 23rd December at approximately 18:40 hours and dispute regarding pay has occurred between the victim and the offender, who are employer and employee respectively. Docker has worked at the business which is a recycle plant for the past two months. The verbal argument has escalated and resulted in Docker picking up an axe, he has then grabbed the victim by the shirt with his other hand and pinned him up against a glass window. Docker has then demanded the victim hand over his wallet. The victim has refused however agreed to let him have whatever cash was in the wallet. The victim handed over between $500 and $600 cash. Docker has swung the axe approx five times against the office desk causing significant damage. Docker then threw the axe across the room hitting an office window also causing significant damage. Docker has picked up the axe and followed the victim outside. Docker pushed victim against a truck and swung the axe towards the victim who ducked, the axe has narrowly missed the victim’s head and struck the truck door. Docker continued a further two times striking the truck door with the axe. Victim has then left in a vehicle to evade Docker and called police. The victim is scared and fearful the offender Docker will confront him again and assault or further damage his property. Police have fears for the safety of the victim. The offender has not been spoken to by the police.
The police incident report dated 13 February 2015 details the incident which was committed on 23 December 2014 and led to the above offences:
On Tuesday 23rd December at approximately 18:40 hours a dispute regarding pay has occurred between the victim and offender Michael Docker, who are employer and employee respectively. The verbal argument has escalated and resulted in Docker picking up an axe, he has then grabbed the victim by the shirt with his other hand and pinned him up against a glass window. Docker has then demanded the victim hand over his wallet. The victim has refused, however agreed to let him have whatever cash was in the wallet. The victim handed over between $500 and $600 cash. Docker has swung the axe approximately five times against the office desk, causing significant damage. Docker has picked up the axe and followed the victim outside. Docker pushed the victim against a truck and swung the axe towards the victim who ducked. The axe has narrowly missed the victims head and struck the truck door. Docker continued a further two times striking the truck door with the axe. The victim has then left in the vehicle and called police.
Docker decamped prior to police arrival. Statement taken from victim and witness. Scene processed - photographs taken and axe seized.
2 January 2015 Admissions to assault and damage alleged by victim. Stated did not steal cash is owed same as wages. Released its as further enq are regarding version provided.
2 January 2015 Suspect MK interviewed stated was not part of blackmail or assault but did receive stolen cash. Stated cash was owed to her due to not having been paid wages by the victim for one month. Stated believed money was owed to her and no theft Mobile phone of MK used to film incident seized. Brief is not authorised for MK due to insufficient evidence.
Mr Docker during examination in chief explained the circumstances of this offence:
This was the first time that I’d worked for cash. All my other jobs have been above board where I paid tax and got super and all of this. This was my first, shall we say, full-time cash in hand job so I was there for approximately three months and it was – I was one of about seven, eight depending on who was there – he had around about seven or eight people there on a weekly basis and it was always a massive issue to get paid, so prior to the offence I done two weeks about 15 to 16 hours a day and have been telling him, G… I want to get paid before Christmas, you know. I really want to get paid before Christmas, and we were all assured were going to get paid before Christmas. Two days before Christmas G… informed me there was no money to pay anyone. On hearing that I’ve lost my temper, assaulted G….
How did you assault G…? – – – I had an axe in my hand. I grabbed – actually, I’ve gone and I’ve gone into the office I’ve let loose with the axe and I’ve … smashed say for instance that counter … and destroyed a large plate glass window. I pushed G…. against a wall. I was, yes I wasn’t in a good place. I’ve relieved G… of his wallet which contained $700 … I distributed a bit amongst my fellow workers that weren’t going to get paid.
Did they willingly accept that? – – – Yes well, no one had been paid for two or three weeks, and everyone have been promised for two or three weeks and it was two days from Christmas. I’m not making any excuses. I’m just telling you what happened. Unbeknownst to me, one of the workers was filming us on a mobile phone. I didn’t realise until I was – presented myself to the Dandenong police station and the gentleman behind the desk, you’re the bloke on the video.
You’ve presented yourself to the police? – – – Yes, well they left a card in the letterbox …I got interviewed and I’ve done a statement and ended up at court with a charge of assault with a weapon and a charge of criminal damage. Well there was no denying it because they’ve got the evidence and - and I explained myself in the interview as to as to why it came about.
Mr Docker—under cross examination—was taken to the Melbourne Magistrates Court document of 28 December 2014 to explain the circumstances of this offence:
A: No. That is not correct. I hit the window directly with the axe in my hand… I didn’t throw the axe at the window; I had it in my hand.
Respondent (R): Yes. There is a slight difference, because the difference is the report says you swung at G… with the axe? – – –
A: Well, the only way we can prove that is the video…
A: yes I’ve had sleepless nights. I’m going to appear here now. Up popped the TV screen and then we’ll sit back and have a look at this… – I mean the video would have made it so much easier for me, because I’m trying to recall something from five years…
Dr Andrew Taylor, general practitioner, in a letter of the 22 April 2015 prepared for Mr Docker’s court appearance in respect of the 2014 incident states:
He has attended this clinic on about a dozen occasions since 2010 with his problem of amphetamine addiction/abuse.
He has engaged willingly but has not done well with treatment - or with what limited treatment is actually available for persons suffering stimulant addiction.
Michael states that he was under the influence of methamphetamine when he committed the offence that appears in the charge sheet (dated 1/3/15).
In terms of Michael’s past history of amphetamine use and the bizarre nature of the offence in terms of Michael’s past history (non-violent) I would suspect that indeed Michael was under the influence of methamphetamine.
Mr Docker explained to the Tribunal that at the time of the offence he had been under the influence of methamphetamine, which he had been addicted to for at least a period of five years. He described his addiction to the Tribunal stating:
A: I basically think I was at that stage I just had that much money, I was earning that much money, I had that much money I could do it and get away with it and I was in control. I was earning like $120,000 a year and it was new to me, it was exciting. I mean I started this, you know, rather late in life… as the treating doctors have said “aren’t you a bit old for this”? And you know I was, but I think I just had too much money …. everything was owned and bought for and everything like, so you know it was party time, you know?
R: so say five years before 2014 about 2009 you start with amphetamine, speed. It progresses. You’re starting to use amphetamine almost 24/7. You do progress to ice maybe two years in, and you’re also using ice during that five-year period leading up to the offence? – – –
A: Yes yes
A: 100% most definitely yes it went from speed to ice. You’re hundred percent correct I’m not in dispute of that at all.
Doctor Paul Grech, Consultant Clinical Psychologist, provided a written report to the Tribunal dated 25 March 2019 in which he summarises his findings stating:
Mr Docker presents as a man of sound intellect and character.
Mr Docker has a limited criminal record, including matter in which he assaulted a superior at work, after he and his fellow workers had not being paid for a long time. Mr Docker referred to it as his “Robin Hood moment”, but demonstrated a strong insight into his aggressive approach towards dealing with a difficult work issue. He received a 12 month CCO and restitution costs of $450. There is also a previous drink drive matter. He is remorseful for his previous offending.
Dr Grech gave evidence at the hearing. He advised the Tribunal that Mr Docker had been referred to him by his general practitioner on a mental health plan to help him deal with his anxiety levels. In particular, his anxiety in connection with the Tribunal hearing. Dr Grech advised the Tribunal that whilst he hadn’t been engaged to provide an expert opinion in respect of Mr Docker’s character, that was something he would ordinarily assess in the course of treatment.
At the Tribunal, Dr Grech expanded on his assessment of Mr Docker’s character, stating that he assesses someone’s character clinically by how upfront and candid the person is during their sessions. Dr Grech stated that he takes into account a person’s connection to family when considering personality and character. He explained that Mr Docker had struck him as someone who is straightforward, of sound intellect, and who demonstrated a considerable interest in his family and community. He indicated that Mr Docker had expressed remorse for his actions in 2014, and indeed was ashamed of these actions. Dr Grech emphasised to the Tribunal that in his assessment he doubted Mr Docker would ever repeat such behaviour. Mr Docker had acted impulsively in relation to his offences in 2014 and he was now taking action through counselling to find ways to deal with his anger in a constructive manner.
Dr Grech indicated that he had not been made aware of Mr Docker’s prior criminal charges in New Zealand, and whilst he had knowledge of Mr Docker’s drug addiction, he could not recall if Mr Docker was using in 2014, but he was aware that Mr Docker was using around four or five years ago. Under cross examination Dr Grech advised the Tribunal that this information did not alter his opinion. If anything, it would only enhance his opinion that Mr Docker’s actions in 2014 were influenced by substance abuse. In a sober state he finds Mr Docker to be a person of the highest integrity who has had some challenges. He gives all these issues weight in his assessment as well as Mr Docker’s sound relationship with his children and his continued abstinence from drugs.
CONSIDERATION
Mr Docker’s representative contended that the Tribunal, taking into account all Mr Docker’s circumstances, should find that he is of good character and therefore meets the criteria of section 21(2)(h) of the Act.
Mr Docker’s representative argued that the Minister’s case in a nutshell was that Mr Docker’s criminal matters ought to be regarded as serious, and this is evidence he is not of good character. The Minister’s delegate had arrived at this conclusion as they had connected the offences in New Zealand some 40 years ago to the one committed five years ago in Australia.
Mr Docker’s representative, in addressing these matters, stated good character is a slippery term, and drew the Tribunal’s attention to the matter of Irving where the Full Court of the Federal Court of Australia found:
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… 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…
Mr Docker’s representative argued that Mr Docker has lived in Australia for almost 40 years with one criminal conviction to which he has made full and frank admissions, pleaded guilty to at the earliest opportunity, and has received therapy in accordance with his Community Corrections Order (CCO) which he is continuing under his own volition. The representative argued the respondent had failed to take into account Mr Docker’s behaviour in totality while living in Australia, and placed too great a weight on his New Zealand convictions which had occurred many years prior.
Mr Docker’s representative argued the Minister’s delegate had failed to assess Mr Docker in the context of his total time living in Australia in which he has sustained full-time work, raised three children, supported his ex-wife during their marriage with her MS condition, and had committed only one offence. Mr Docker’s representative argued that whilst the offence was serious it had not resulted in physical harm, it was not premeditated, it occurred while he was affected by drugs, was a result of a great deal of provocation from the former employer, who had withheld wages from all the employees prior to Christmas; and that the victim had provided no impact statement nor attended the court proceedings. Further they contended that the sentencing decision of the Magistrate indicated that in the spectrum of offending, the matter was regarded as relatively low as they did not contemplate an immediate term of imprisonment and instead ordered a CCO with a relatively low number of hours.
Mr Docker’s representative argued that he was of minimal risk of reoffending as a considerable amount of time had elapsed since his last offence in 2014. They contended that Mr Docker’s behaviour during that time was exemplary, citing the completion of the obligations of his CCO; sustaining full-time work; dealing responsibly with an employer who has gone into liquidation; mending his relationship with his family—particularly his daughters—and engaging with treatment to deal with his addiction.
Mr Docker’s representative drew the Tribunal’s attention to the numerous statutory declarations and references provided by Mr Docker’s current and former employers, family, and friends which all attested to his good character. In particular drawing the Tribunal’s attention to the following statutory declarations:
·Mr Frank Sellars dated 2 October 2018 in which he states:
I employed Michael for approx one year and when he came in to get employment he laid all his cards on the table in reference to his criminal offences. Told me that was all behind him and he was a hard worker.
Michael was a reliable, trustworthy and very hard worker and we had a good working relationship, the only reason he left was to choose a better income at another truck body builders. Michael is a very truthful and loyal person and I support his application for Australian citizenship.
·Mr Matthew Palmer dated 9 October 2018 in which he states:
I have known Michael Docker since he commenced employment in my business; STR Trucks Bodies Pty Ltd on 30 March 2017.
Michael is known among the employee group to be a genuine, hard-working member of our company and one who we can rely on to always be punctual and ensure the job gets done.
Michael has a great rapport with his fellow employees and also the management at STR Truck Bodies Pty Ltd.
Michael has proven to be a man of high values and morals and his family is of the utmost importance to him. He is a hard worker and contributes to ensuring his family is well taken care of, both financially and emotionally.
I was not aware of the offences that Michael committed but I have had discussions with Michael around providing the statutory declaration and I feel that the chances of him reoffending would be very unlikely. Michael has regret for his poor actions and hopes to join the rest of his family in becoming an Australian citizen.
As an Australian citizen, I fully and wholeheartedly support Michael in his application to become an Australian citizen. I believe he can contribute to our society both through work and being a valued member of his local community.
·Narelle Docker dated 24 April 2019 in which she states:
My father Michael Docker has been in my life for the past 35 years. He has been through many trials and tribulations that have made him the well-rounded, adjusted and compassionate human being that he is. Childhood was not easy for him back in New Zealand so he decided to move forward and venture out and in early adulthood made Australia home. He has spent almost a half of his life here, married an Australian lady, had three daughters who all have Australian passports and two Australian grand kids. He has also paid taxes in Australia, owned numerous properties and just wants to call himself Australian. Please let my dad be an Australian.
Mr Docker’s representative strenuously argued that the respondent’s contention that there had been insufficient time for Mr Docker to demonstrate he was of good character was erroneous and failed to consider his 40 years living in Australia. There had been no consideration of Mr Docker’s four years of non-offending, his work history in Australia, his support of his family in Australia, and the testimony of Dr Grech, where he asserted that in his professional opinion, he found Mr Docker to be of good character, honest, patient and connected to his loving family.
The respondent contended that the key issue is whether Mr Docker is of good character for the purposes of citizenship eligibility. According to the Policy, this depends on if he can demonstrate: enduring moral qualities over a long period of time; that he respects and abides by the rule of law in Australia and other countries; he is not violent; he is not involved in drugs; and does not cause harm to others, say through drink-driving.
The respondent argued that Mr Docker’s criminal conduct in Australia was serious and evidences he is not of good character. They argued that: the incident in 2014 for which he was convicted of assaulting his employer with an axe, damaging his office, was significant, as evidenced by his CCO. Additionally, he had a serious drug addiction spanning five years, which at its peak saw him using ice on a daily basis, observing this addiction had started late in Mr Docker’s life as he, by his own admission, was earning a lot of money and could “get away with it”. The respondent contended that Mr Docker’s actions in this period had placed considerable strain on his family. They argued that the Tribunal needed to take into account these very serious matters of criminal conduct and drug use.
The respondent contended that Mr Docker’s criminal offending in New Zealand was serious, and whilst a considerable amount of time has lapsed since the earlier offences, they nevertheless demonstrate that Mr Docker’s most recent assault offence cannot be described as “one-off” behaviour. The respondent contended that based upon the evidence before it, the Tribunal must consider the offending in New Zealand as demonstrating a pattern of behaviour. The respondent argued that the evidence from Mr Docker himself indicated:
·in 1979 he stole a car and was joy riding while drunk which resulted in a serious accident where someone went through the windscreen;
·in 1982 his actions of taking a shot gun, returning to a party full of people and firing it could have resulted in serious injury, and he had intended to intimidate the people at the party; and
·in 1982 he demonstrated a contempt for other country’s laws where he stole sausages and chose to breach his sentence of prohibition by coming to Australia.
The respondent contended that in light of Mr Docker’s long history of violent offending, (the most recent very serious with an element of serious drug addiction) his previous behaviour in New Zealand, together with the fact his CCO had only ceased three years ago, an insufficient period of time had lapsed to demonstrate that he is of good character. The respondent did accept that whilst there may be evidence that Mr Docker has taken serious steps forward in this time, such as completing his CCO, undertaking drug counselling and reportedly being drug free since 2015, three years was simply not enough time, in light of all the other circumstances, to consider that he has established he was of good character.
The respondent argued the Tribunal should place little weight on Dr Grech’s evidence as Dr Grech had not been provided information in respect of Mr Docker’s prior offending or extent of his drug addiction. They argued that whilst Dr Grech had commented on Mr Docker’s integrity, he had not addressed issues of reoffending or the time lapse since the completion of his CCO, fundamentally arguing that regardless of Doctor Grech’s comments not enough time had elapsed to demonstrate that Mr Docker was of good character.
Further, the respondent argued that little weight should be given to the references provided by Mr Docker as the Policy provides that greater weight should be given to references made as a statutory declaration and that acknowledge offences committed by the applicant. Regard should be had to the length of time the referee has known the applicant and the context of the relationship, and very few of the references fulfilled this criteria.
The Policy’s clearly stated intention is that the decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. In light of this, the Tribunal found that for the majority of Mr Docker’s 37 years in Australia he was a law-abiding citizen, in full-time employment, who purchased numerous properties and raised three children.
The Tribunal did consider Mr Docker’s offences in Australia of assault, criminal damage and drink-driving as serious. Mr Docker had undoubtedly caused distress to his former employer and damage to his former employer’s property when he sought to take the law into his own hands to retrieve lost wages. Additionally, driving whilst under the influence of alcohol undoubtedly does put the community at risk. However, the Tribunal also considered the sentences imposed on Mr Docker which indicated his offending was at the lower end of the scale.
The Tribunal did consider Mr Docker’s previous convictions in New Zealand, not excluding them or considering them as spent (spent convictions are excluded from the operation of the Policy), however the Tribunal did not place significant weight on these offences as they had occurred when Mr Docker was in his late teens, had not resulted in terms of imprisonment, and it was some 32 years until Mr Docker re-offended.
The Tribunal found Mr Docker was of good character considering the aggregate of his qualities over his lifetime, and that this single adverse incident in Australia was not of sufficient weight or seriousness to outweigh that finding. The Tribunal drew upon the Member’s decision in Prasad and Minister for Immigration and Ethnic Affairs [1994]:
A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
The Tribunal found that for the majority of Mr Docker’s time in Australia he had respected and abided by the laws of this country; that he’d been honest and financially responsible by paying his taxes and maintaining full-time employment; that he was truthful; had not practiced any deceit in dealings with the Australian government; and that whilst he had been involved with drugs, had a drink-driving charge and a criminal conviction, these did not demonstrate that his behaviour overall indicated he was antisocial, violent or criminal.
The Tribunal found Mr Docker to be an exceptionally frank and honest witness who had taken full responsibility for his actions for which he was extremely remorseful, noting his police statement where it is recorded:
The accused has made full and frank admissions to the dispute that occurred on 23 December 2014. The accused has stated that he has been promised wage payment by the victim for over a month and after taking some meth amphetamine has overreacted. He has been shown the mobile phone footage a day later and has stated he was quite ashamed about his actions
H/S: what you see in the video is a bloke that is letting off steam, blowing up. He’s done the wrong thing
H/S: I’m sorry for my actions
The Tribunal did not consider that Mr Docker’s offence in Australia combined with his previous offences in New Zealand demonstrated he was not of good character, noting the Policy does not make reference to a consideration that an offence must be a once off occurrence.
The Tribunal placed little weight on the New Zealand offences. Considering the steps Mr Docker had taken to rehabilitate himself, including completing his CCO, the Tribunal found that enough time had lapsed since Mr Docker’s offending to consider him of good character. The Tribunal noted Mr Docker had completed his voluntary community hours in a short period of time whilst not losing any paid employment. Mr Docker advised the Tribunal the Magistrate had told him that he was not to forego paid employment to complete his CCO, and he personally had a desire to finalise his time so he could return to paid work on Saturdays to maximise his overtime capacity.
The Tribunal considered Mr Docker’s evidence, corroborated by Dr Grech, that he had sought treatment, which was ongoing, for his mental health conditions to rehabilitate himself and to ensure he did not relapse into drug abuse. The Tribunal noted his testimony:
A: I just dropped all the mates that I had and I have stayed away from everyone that was involved in that scene, so to speak, and have just gone – I just worked and tried to rehabilitate myself … financially and healing with my family and my daughters…
R: So just wanted to make sure that there have been no relapse and you haven’t re-used? – – –
A: No … I mean it’s easily checkable by the state of my bank account and how I am financially, you know what I mean? Because once it has got a grip on you, it doesn’t matter how much money you’ve got, it’s gone. And I mean I’ve been doing alright financially.
R: Now, Mr Docker you said that essentially you have replaced the amphetamine and methamphetamine use with alcohol? – – –
A: I haven’t replaced it. I mean - what I do now, I go to the pub and have a drink. I don’t go to certain individual’s houses and sit around and stick a needle in my arm.
R: and is that every day? – – –
A: That I go to the pub? Not every day, but it’s more than it should be, I dare say.
The Tribunal placed weight on the evidence of Dr Grech who provided a clear and unequivocal account that he considered Mr Docker to be of good character, someone who was upfront, honest, of the highest integrity and generally a good person. He observed that on numerous occasions he had kept Mr Docker waiting for his scheduled sessions and that Mr Docker was always incredibly patient and polite regardless of the circumstances. Dr Grech placed great weight on an individual’s sound relationship with their children. He observed that Mr Docker had a deep love for his children and grandchildren, and that he wished to be part of their lives and part of the Australian community.
The Tribunal also placed weight on the numerous references Mr Docker provided to the Tribunal, which have been sworn as statutory declarations and reference his criminal offending. The references all painted a picture of a hard-working, honest individual who had made a mistake in his life for which he had shown remorse and served his punishment.
Whilst the Tribunal found Mr Docker’s offences serious as they essentially put the community at risk, it considered him to be of good character. The Tribunal considered Mr Docker’s qualities in aggregate, including: his 37 years of contribution to the Australian community, the significant period of time since his offending in New Zealand at a young age, the period of time which has lapsed since the completion of his CCO, his steps towards rehabilitation, his connection to his daughters and grandsons, and his desire to become an Australian citizen. These demonstrate that he is an individual of enduring moral qualities.
In conclusion, the Tribunal finds that Mr Docker should not be denied the ability at this time to apply for Australian citizenship and relied upon his own frank assessment:
I am not trying to make myself look good, I’m only telling you the truth.
I like to think I’m a good person.
I find it to be a terrible stain on my character than I am not of good character.
DECISION
The Tribunal sets aside the decision of the Delegate, dated 15 November 2018, refusing Mr Docker’s application for Australian citizenship by conferral, and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to
section 43(1)(c)(ii) of the AAT Act, that the applicant is a person of good character for the purposes of the Act.
I certify that the preceding 69(sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.
...[sgd]...............................................
AssociateDated: 6 November 2019
Dates of hearing: 26 July & 16 August 2019 Advocate for the Applicant: Mr J Blackley Solicitors for the Applicant: Bayside Solicitors Advocate for the Respondent: Ms K Amanatidis Solicitors for the Respondent: Australian Government Solicitors
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Standing
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