FBMR and Minister for Immigration and Border Protection
[2015] AATA 116
•2 March 2015
[2015] AATA 116
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2239
Re
FBMR
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 2 March 2015 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott RFD, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by descent – whether applicant of good character – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 16
CASES
Irving 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
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
2 March 2015
INTRODUCTION
The applicant was born in New Zealand in April 1976. Since 2008 he has had multiple entries into Australia on a Special Category (Subclass 444) Visa.
On 26 August 2013 the applicant lodged an application for Australian citizenship by descent. On 24 March 2014 a delegate of the Minister refused that application on the ground that the applicant was not of good character.
The applicant now seeks a review of that decision by this Tribunal.
BACKGROUND
The applicant has an extensive criminal history which extends back to 1995. The applicant has appeared before the New Zealand courts on 13 occasions. The applicant has been convicted of various offences including burglary, a number of counts of theft, possession and cultivation of drugs, unlawful possession of a firearm and a number of serious traffic offences. The full criminal history of the applicant is contained in the
T documents.[1] The applicant has also been sentenced to various forms of imprisonment and detention. Whenever the applicant has entered Australia he has made false declarations that he has no criminal convictions.
[1] Exhibit A p 93.
AUSTRALIAN CITIZENSHIP ACT
The Minister must not approve a person becoming an Australian citizen by descent unless the person is eligible under either s 16(2) or (3) of the Australian Citizenship Act 2007 (Cth) (“the Act”). As the applicant was born outside Australia on or after 26 January 1949 it is necessary that the applicant satisfy s 16(2) of the Act.
It is therefore necessary that the applicant meets the requirements in s 16(2)(a), (b) and (c) of the Act. There is no issue that the applicant satisfies s 16(2)(a) and (b) of the Act. What is in contention is whether the Minister can be satisfied, in terms of s 16(2)(c) of the Act, that the applicant “is of good character at the time of the Minister’s decision on the application.”
MEANING OF “GOOD CHARACTER”
The expression “good character” is not defined in the Act. However, there are various decisions of the Federal Court of Australia in interpreting citizenship legislation which have provided guidance on the meaning of the expression. In Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 it was remarked that “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”. In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 it was explained that the conduct of an applicant for citizenship must be examined, however:
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.
CONSIDERATION
Since the applicant arrived in Australia in 2008 he has made a contribution to the Australian community by being in employment. The applicant has been held in high regard by his employer who regards him as “a role model to his team and others”. The applicant has been placed in a position of trust by his employer as the applicant now holds a supervisory role. His employer has stated that members of the staff are regularly tested for drug and alcohol abuse, and that the applicant passes these tests and all of these matters are to the credit of the applicant.
I have to consider the extensive criminal history of the applicant which dates back to 1995. It is true that many of the offences for which the applicant was convicted were committed when he was a young man. At that time the applicant states that he was under the influence of “the wrong sort of people that influenced my bad behaviour”. The applicant was unable to recall details of his bad behaviour and there are no remarks of any sentencing judge to give details of the offences. For a time, from 2002 until 2006, the applicant was not convicted of any offences; he explained that this was at a time when he was raising children. However, it is troubling that in 2007, when the applicant was over thirty years of age, he was sentenced to a term of six months imprisonment upon being convicted of his third offence of driving whilst disqualified and under the influence of alcohol. On that occasion the applicant was granted leave to apply for home detention.
The applicant is endeavouring to establish a new life in Australia. The applicant has been a law-abiding citizen since his arrival in Australia. He also supports his local rugby league club.
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Federal Court of Australia emphasised the need to examine the conduct of the applicant. One matter of great concern is that twice in 2008, once in 2012 and once in 2013 he has made false declarations about his criminal history whenever he has entered Australia on an incoming passenger card. On each occasion he responded “no” to the question: “Do you have any criminal conviction/s”. On 24 May 2013 the National Character Consideration Centre of the Department of Immigration and Citizenship wrote to the applicant to advise him of the importance of declaring any criminal convictions on his incoming passenger card.[2] Following this correspondence the applicant again entered Australia on 18 June 2013 and falsely declared on his incoming passenger card that he did not have any criminal convictions.
[2] Exhibit A, p 77.
The applicant has given differing explanations for making false declarations on the incoming passenger cards. In giving evidence he has given different explanations for making false declarations including that he ticked the “no boxes” and that he has “misunderstood what they were asking of me”.
I do not accept that the applicant was unable to read the questions on the card or routinely ticked the “no boxes” as he has on occasions ticked the “yes” box when he answered the question as to whether he intended to reside in Australia for more than 12 months.
I am also satisfied that the applicant fully understood the question about whether he had any criminal convictions because on his last entry into Australia he gave an explanation to the officers that he thought that the questions related to Australian convictions and he “only had convictions in New Zealand”.
The fact that as recently as June 2013 the applicant made a false declaration on an incoming passenger card leads me to conclude that I cannot be satisfied that the applicant is of good character. The Australian Citizenship Instructions (the ACIs) provide guidance to decision-makers; these Instructions would be generally followed unless to do so would cause injustice in a particular case. The ACIs, (at para. 10.3.4) list characteristics that an applicant of good character would have; in particular, an applicant of good character would “be truthful and not practise deception or fraud in their dealings with the Australian Government” and not provide “false personal information”.[3] The making of false declarations on incoming passenger cards are not an indication that the applicant is of good character.
[3] T4, p 47.
The applicant has the support of his employer who has provided two references, and his workmates who support his application for citizenship. However, I do not give great weight to these references because they do not indicate that the referees have been shown the criminal history of the applicant. The applicant has in fact admitted that he has not shown his criminal history to those referees. This is certainly apparent in the case of one referee who refers to the “previous indiscretions” of the applicant.
I have decided to make an order to keep confidential the name and address of the applicant. The making of this order was not opposed by the Minister. The applicant has a distinctive name. The order is made because the applicant has a daughter who will live in the Australian community.
DECISION
I affirm the decision under review.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member. ..............................[Sgd]..........................................
Associate
Dated 2 March 2015
Date(s) of hearing 03 February 2015
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