English and Minister for Immigration and Citizenship

[2011] AATA 711

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 711

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0222

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER ENGLISH

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date14 October 2011  

PlaceBrisbane (heard in Rockhampton)

Decision The decision under review is affirmed.  

.............Signed...................

Deputy President

CATCHWORDS

CITIZENSHIP – application for citizenship by descent – third application to Tribunal - whether applicant of good character – extensive criminal history – decision under review affirmed

Australian Citizenship Act 2007 (Cth) s 16

Comcare v Grimes and Another (1994) 50 FCR 60

English and Minister for Immigration and Citizenship [2010] AATA 2

English and Minister for Immigration and Citizenship [2010] AATA 487Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

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

Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

REASONS FOR DECISION

14 October 2011   Deputy President P E Hack SC    

1. The applicant, Mr Peter English, was born in Papua New Guinea in March 1976. He came to Australia in November 1993, that is, at the age of 17 years.

2. In November 2010 Mr English applied (again) for Australian citizenship. A delegate of the respondent, the Minister for Immigration and Citizenship, refused that application on 31 December 2010 on the basis that Mr English was not of good character as was required, so it was said, by s 16(2)(c) of the Australian Citizenship Act 2007 (Cth).

3. Mr English now seeks a review of that decision.

   Background

4. This is the third application that Mr English has made to the Tribunal. In late 2009 Mr English sought a review of a delegate of the Minister to cancel his visa pursuant to s 501(2) of the Migration Act 1958 (Cth). That decision was affirmed[1]. Mr English made his first application for citizenship in February 2010. It was refused in April 2010. That decision was affirmed by the Tribunal on 1 July 2010[2].

   [1] See [2010] AATA 2.

   [2] See [2010] AATA 487.

5. The background to the matter and, in particular, Mr English’s appalling criminal history is set out in the visa cancellation decision; it is not necessary for present purposes to repeat those matters. It will suffice to say that Mr English has been an inmate of various correctional centres in Queensland since September 2007 as a consequence of his arrest, and subsequent conviction, for offences of assault occasioning bodily harm whilst armed, simple assault and wilful damage, and the activation of an earlier suspended sentence.

   The legislation

6. A person may make application to the Minister to become an Australian citizen[3] and, when such an application is made, the Minister must approve or refuse the application[4]. But the Minister must not approve the person becoming an Australian citizen unless the person is eligible under either s 16(2) or (3) of the Act.

   [3]    Australian Citizenship Act, s 16(1).

   [4]    Australian Citizenship Act, s 17(1).

7. The Minister accepts that Mr English satisfies the criteria in paragraphs (a) and (b) of s 16(2) of the Act. What is in issue in these proceeding is s 16(2)(c), the requirement that the Minister be satisfied “…that the person is of good character at the time of the Minister’s decision on the application.”

   Is Mr English “of good Character”

8. The Minister pointed to decisions of the Full Court of the Federal Court[5] to demonstrate the content of the expression “good character”. The expression is to be regarded as “a reference to the enduring moral qualities of a person”[6]. The import of the passages relied upon by the Minister is that the fact of criminal convictions will, ordinarily, reflect adversely upon the character of an applicant but that it remains open to an applicant to demonstrate reform. And, as Baker emphasises[7],

   “Conduct may make [the enduring moral qualities of a person] visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.”

   [5]    Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 and Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.

   [6]    Baker at 197.

   [7]    At 197

9. But, in my view, there is an anterior step. In July 2010 Senior Member McCabe was not satisfied that Mr English was of good character. He said[8],

   “Evidence of the applicant’s reform is encouraging but it does not dispel the doubts over his character generated by his lengthy criminal record. In the circumstances, I have no option but to affirm the decision to reject his application for citizenship on character grounds.”

   Mr English did not appeal that decision to the Federal Court. And it is not open to him to ask me to, in effect, sit on appeal from that decision. The fact and recency of the earlier decision does not, without more, preclude the making of a further application. But unless there was significantly different evidence the making of a second application might well be regarded as vexatious and warranting the use by the Tribunal of its undoubted power under s 33 to prevent the relitigation of a matter finally decided[9].

   [8]    At [15]

   [9]    See Comcare v Grimes and Another (1994) 50 FCR 60; ReQuinn and Australian Postal Corporation (1992) 15 AAR 519.

10. Moreover there is authority for the proposition that, in appropriate circumstances, the Tribunal may conclude that a previous decision should be applied again as the correct or preferable decision when it is subsequently sought to revisit the earlier decision[10]. Nevertheless the Minister’s case was not put on this basis and, in the circumstances, it would not be fair to Mr English to determine the matter on that basis.

    [10] Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374, 390.

11. But in any event an appropriate starting point is to consider what is before me that touches on the question of Mr English’s character that was not before Senior Member McCabe in July 2010. There is, on analysis, nothing beyond the further effluxion of time during which Mr English has continued to behave well within the confines of the prison environment, to undertake vocational courses and to undertake a role as a support worker for other prisoners.

12. But even were I to be persuaded that the material was different to that considered by Senior Member McCabe I am not satisfied that the material before me establishes Mr English’s good character when regard is had to the considerable evidence of earlier bad character demonstrated by his criminal record. There is evidence of commendable rehabilitation on Mr English’s part. But, as Senior Member McCabe pointed out, it has, so far, taken part in the tightly controlled environment of a goal and his progress has all been of recent times. The progress is encouraging but considerable reservations must remain having regard to the lengthy criminal history.

13. That history together with the fact of Mr English having, on two earlier occasions, promised, unsuccessfully, to reform, leads me to conclude that I am not satisfied that Mr English is of good character. I would affirm the decision under review.

    I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

    Signed:         ............Signed............................................................
      Associate

    Date of Hearing  3 October 2011 
    Date of Decision  14 October 2011
    Applicant  Self represented  
    Solicitors for the respondent     Clayton Utz