English and Minister for Immigration and Citizenship - [2010] AATA 487

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 487

ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2010/1783

General Administrative Division )

Re: Peter English
Applicant

And: Minister for Immigration and Citizenship
Respondent

TRIBUNAL: Senior Member Bernard J McCabe

DATE: 1 July 2010

PLACE: Brisbane (heard in Townsville)

DECISION: The Tribunal affirms the decision under review.

.......................[Sgd].......................
Senior Member

CATCHWORDS

CITIZENSHIP - application for citizenship by descent – parent was Australian citizen at time of birth – applicant born in Papua New Guinea after independence – whether applicant is of good character – applicant incarcerated for criminal offences – decision affirmed on character grounds.

Australian Citizenship Act 2007 (Cth), s 16

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

REASONS FOR DECISION

1 July 2010 Senior Member Bernard J McCabe

Mr Peter English, the applicant, has applied for Australian citizenship. The Minister, the respondent in these proceedings, says Mr English’s application must be declined because he is unable to satisfy the requirements of s 16 of the Australian Citizenship Act 2007 (Cth). Mr English has asked the Tribunal to reconsider that decision.
Section 16(2) includes several requirements that must be met before the Minister (or the Tribunal upon review) can decide to extend citizenship by descent to a person. Section 16(2)(a) says the applicant must have a parent who was an Australian citizen at the time of the applicant’s birth.
The applicant was born in Papua New Guinea after that country became independent from Australia. The Minister initially refused to accept that Mr English Snr, the applicant’s father, was an Australian citizen at the time of the applicant’s birth. There are some documents on the file which suggest Mr English Snr did not become an Australian citizen until 2002. I note there is also a certificate at p 50 of Exhibit One noting that Mr English Snr has been an Australian citizen since birth. After I drew that document to the attention of Ms Linacre, who appeared for the Minister, it was conceded that Mr English Snr was a citizen at the time the applicant was born. After hearing from Mr English Snr and reviewing the documents, I am satisfied that concession was properly made. Although Mr English Snr was born in PNG and resided there at the time of independence, he enjoyed a right of entry to the mainland. He did not lose his Australian citizenship upon independence and he has never renounced it. It follows that the first limb of the three-part test in s 16(2) is satisfied. The second limb, s 16(2)(b), is also satisfied: Mr English Snr resided in Australia for a number of years before his son brought his application for citizenship. That leaves only the third limb of s 16(2).
Section 16(2)(c) requires that:
“the Minister [and upon review, the Tribunal] is satisfied that the person is of good character at the time of the Minister’s decision on the application.
The subsection imposes a demanding standard upon those seeking citizenship. Citizenship cannot be given conditionally. As a practical matter, it cannot be taken back once it is conferred. Given that a decision to confer citizenship is effectively a final one, the legislation requires that the decision-maker must be satisfied that the applicant is of good character.
The Australian Citizenship Instructions sensibly observe that a decision-maker would ordinarily be satisfied that a person is of good character in the absence of evidence of criminal convictions or other matters of similar gravity. But the applicant in this case is not entitled to what is, in effect, a presumption of good character because of his serious criminal convictions. The applicant’s criminal history was discussed in the course of the decision of DP Hack in English and Minister for Immigration and Citizenship [2010] AATA 2. In that case, the learned Deputy President decided to affirm the Minister’s decision to cancel the applicant’s visa on character grounds. The applicant remains in gaol as a consequence of his offending, and he is to be deported if he does not succeed in this application.
The applicant’s criminal history raises serious questions over his character. As a practical matter, it is impossible for me to be satisfied the applicant is of good character within the meaning of s 16(2)(c) unless I can refer to evidence that justifies me reaching the view that he is now of good character notwithstanding his criminal history.
I heard from Mr English Snr and from the applicant’s brother. They spoke movingly of the applicant’s troubled upbringing. The applicant’s brother provided evidence of matters that had recently come to light which might help to explain the applicant’s bad behaviour. Other members of the family were present in the hearing room and some of them provided written statements in support of the applicant. I was left with the impression of a large and supportive family network that was ready to assist the applicant upon his release from gaol if he were permitted to stay.
I also heard from the applicant. He is an intelligent, softly spoken man. He demonstrated genuine remorse for his criminal behaviour. He showed commendable insight into what he had done and accepted responsibility for the bad choices he had made. He gave evidence of completing a number of behaviour management courses from which he has derived benefit. He has also completed a number of trade and technical courses while incarcerated that would be of assistance upon release.
The applicant says his criminal days are behind him. He says he wants to get out of gaol and settle down with his family. He wants to get a job, buy a car, own a home and live like an ordinary person. I have no doubt he was telling the truth about his intentions.
The evidence from the applicant and his family members was useful, but it is difficult to identify objective or independent evidence that might provide the reassurance I need. I note there was a report completed by a psychologist on 19 June 2009. The report was undertaken to assess the applicant’s mental health status at the time. In essence, the report suggests there is good reason to hope the applicant would overcome his problems with appropriate assistance.
I also note there is a “Behaviour Report” from the gaol’s Cultural Development Officer dated 27 May 2010. The report acknowledges the applicant has exhibited good behaviour and completed all of the required programs. The report also notes the applicant was selected to act as an Offender Peer Support Worker within the gaol. As the job description suggests, the applicant provides support to other inmates, especially young and first time offenders. The report concludes the applicant “has become a positive role model to other offenders”.
Both of these reports deal with the applicant in the tightly controlled environment of a gaol. The reports provide a basis for optimism about the applicant’s future. The progress he has made in overcoming his drug problems and developing a mature insight into his behaviour, together with the support of his family, suggests he has a good chance of leading a normal, settled life. But these promising developments are all comparatively recent. Only time will tell whether the applicant’s character has really changed.
There is no doubt the applicant’s family will be upset if he is required to leave Australia when he is released from prison. I am also conscious that being returned to PNG when his immediate family remains in Australia will do the applicant no good at all. The applicant and his family have asked for another chance for the applicant to demonstrate that he has become a person of good character. Sadly for the applicant, the legislation does not permit me to allow that in circumstances where a decision has already been made that his visa be cancelled. The time for second chances has passed. I have to be satisfied that he is a person of good character now.
Evidence of the applicant’s reform is encouraging but it does not dispel the doubts over his character generated by his lengthy criminal history. In the circumstances, I have no option but to affirm the decision to reject his application for citizenship on character grounds.
If the applicant is returned to PNG, he is free to make a fresh application for citizenship in due course. If he settles down and stays out of trouble over time, a future decision-maker might be readily convinced that the applicant should be permitted to return to this country and take up citizenship given his family ties and his newly acquired job skills. But that is a matter for another day.
The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ...........................[Sgd]................................................
Patrick MacDonald, Associate

Date of Hearing 23 June 2010
Date of Decision 1 July 2010

Advocate for the Applicant Mr A English

Solicitor for the Respondent Ms A Linacre