George Brown and Minister for Immigration and Border Protection

[2015] AATA 414

[2015] AATA 414

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2015/0006
Re	George Brown
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor R Deutsch, Deputy President
Date	12 June 2015
Place	Sydney

The decision under review is affirmed.

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

Professor R Deutsch, Deputy President

CATCHWORDS

CITIZENSHIP – character test – whether applicant is of good character – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 ss 21, 24

CASES

Re Drake and the Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Professor R Deutsch, Deputy President

12 June 2015

INTRODUCTION AND BACKGROUND FACTS

1. The Applicant is a 57 year old citizen of the United Kingdom who first arrived in Australia on 9 November 1961.

2. Between 1976 and 2010, the CrimTrac Report dated 28 July 2014 (found at T6 – 49) reveals that, as an adult, the Applicant committed a series of offences. Sentences were handed down on the following dates for the offences referred to as follows:

   (a)13 January 1976 – Smoke Indian hemp

   (b)17 January 1977  –  Fraudulently lend licence

   (c)13 May 1977 – Possession of Indian hemp

   (d)4 September 1979 – Malicious injury

   (e)25 January 1993 – High range PCA

   (f)27 May 1993 – Peep and pry

   (g)11 December 1997 – Wilful and obscene exposure

   (h)12 August 2005 – Drive with middle range PCA

   (i)31 July 2006 – Common assault

   (j)27 April 2007 –  Common assault

   (k)27 April 2007 – Drive vehicle recklessly/furiously or speed/manner dangerous

3. On 6 November 2010 the Applicant was granted a Class BB permanent visa.

4. In 2011, the CrimTrac Report reveals that the Applicant committed four further offences as follows:

   (a)15 February 2011 – Possess prohibited drug

   (b)11 April 2011 – Drive with high range PCA

   (c)11 April 2011 – Use of high-beam on oncoming vehicle

   (d)5 May 2011 –  – Drive with high range PCA

5. On 26 May 2014 the Applicant applied for Australian citizenship by conferral and by letter dated 29 July 2014 he was invited to comment on certain aspects of his history.

6. On 25 August 2014, the Applicant responded to that invitation by letter addressing a number of matters. Most particularly, the Applicant expressed regret and remorse for his past actions and stated that his “weakness of character” was that he “revert[ed] to alcohol [when] under stress”.

7. On 10 December 2014, a delegate of the Respondent made a decision pursuant to s 24(1) of the Australian Citizenship Act 2007 (the Act) to refuse the application made by the Applicant for Australian citizenship by conferral. She refused the application on the basis that the Applicant had failed to satisfy her that he was of good character for the purposes of s 21(2)(h) of the Act.

8. On 2 January 2015, the Tribunal received an application for review of that decision.

9. On 3 March 2015 the Applicant filed with the Tribunal a series of documents as follows:

   ·Academic transcript: Statement of Attainment in Outreach Access – 24 December 2003;

   ·Statement of Attendance: Pathways to Employment , Education and Training Course – 12 December 2006;

   ·Academic Transcript: Statement of Attainment in Pathways to Employment, Education and Training – 20 December 2006;

   ·Academic Transcripts: Certificate II in General and Vocational Education – 9 July 2008 and 22 December 2008;

   ·Certificate of Attainment: Sober Driving Program – 11 October 2011.

   ISSUE

10. The sole issue for determination in this case is whether the Applicant is of good character for the purposes of satisfying the relevant eligibility criteria to become an Australian citizen.

    CONTENTIONS

11. The Applicant contends that he is now a person of good character and the correct or preferable decision would be to approve his application for citizenship.

12. The Respondent contends that he is not currently a person of good character and the correct or preferable decision is to refuse the Applicant’s application and affirm the decision under review.

    THE LEGISLATION

13. A person may make an application to the Respondent to become an Australian citizen and the Respondent must, by writing, approve or refuse to approve the person becoming an Australian citizen: subss 21(1) and 24(1) of the Act.

14. Subsection 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless, amongst other things, the person satisfies the eligibility criteria in s 21(2). Paragraph (h) provides that the Respondent must be satisfied the person is of good character at the time of the Minister’s decision on the application.

    THE AUSTRALIAN CITIZENSHIP INSTRUCTIONS

15. The term “good character” is not defined in the Act but there is an explanation of the application of the good character requirement in the Australian Citizenship Instructions (ACIs).

16. The ACIs provide guidance on policy to decision makers exercising powers under the Act. The Tribunal will generally apply policies such as that contained in the ACIs unless there are cogent reasons not to do so: Re Drake and the Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.

17. The ACIs deal at length with the good character requirement and most importantly the ACAs state at section 10.3.4 that 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 and organisations …

    ·not 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 a licence or insurance)

    ·not 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 have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people

    ·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide

    ·not be the subject of any extradition order or other international arrest warrant

    ·not 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 be the subject of any verifiable information causing character doubts.

18. Once the behaviour of the Applicant has been assessed having regard in particular to the matters raised in the previous paragraph and any other relevant considerations (for example, the matters raised in section 10.5.2 under the heading “Behaviour – why the applicant might not be of good character” the decision maker is called upon to turn his or her mind to whether there are any mitigating factors which should be taken into account.

19. The mitigating factors referred to in the ACIs are:

    ·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? … Each case is to be assessed on its own merits and issues such as the seriousness of the offence, the nature of the offence, whether another person was harmed and the rehabilitation process needs to be assessed. In the case of a serious offence, a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character. [Emphasis added.]

    ·Has the applicant accepted responsibility and shown remorse for their conduct?

    ·How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?

    oit is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.

    ·Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws? For example, have they undertaken drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other program which addresses risk factors relating to their offending? Have they moved away from bad influences, for example by disassociating themselves from a peer group?

    ·What was the applicant’s age at the time the offence was committed? …

    ·Were there any extenuating circumstances relating to the offence? For example, an offence committed under duress or under periods of psychological disturbance (including involuntary effects of medication or temporary psychological conditions but not including under the influence of recreational drugs), may be given less weight…

    ·Is there evidence of length of employment, stable family life and/or community involvement? …

    APPLICATION TO THE APPLICANT’S CIRCUMSTANCES

20. In considering the first set of factors referred to above it is clear, having regard to the Applicant’s lengthy and serious criminal history, that he has had problems in respecting and abiding by the law in Australia and that he has been involved in a number of crimes involving, in particular violence and drugs.  Quite clearly, he has caused harm to others through these crimes and through other crimes involving drink-driving and excessive speed.

21. Clearly, the Applicant has a history which suggests that he was not of good character certainly during the time in which he committed these offences.

22. The more difficult question which I must now consider is whether sufficient time has passed since the last of the offences to enable me to find that he is now of good character.

23. I note in particular that this is a specific mitigating factor referred to in the list outlined above as indeed is the fact that the Applicant has accepted responsibility for his conduct and shown remorse and has taken some steps to rehabilitate himself.

24. On the question of the length of time between the date of the offence and the application for Australian citizenship, the ACIs themselves recognise that each case is to be assessed on its own merits and in doing so the seriousness of the offences, the nature of the offences, whether another person was harmed and the rehabilitation process undertaken need to be assessed.

25. The offences which were committed by the Applicant range from relatively low-level offences to what must be regarded as serious offences. In that latter category in particular I note that the Applicant was involved in common assaults and malicious injury. In addition, as was put to me by the representative for the Respondent at the hearing, while most driving offences ordinarily would not be considered to be serious, the cumulative effect of multiple driving offences (as in this case) cannot be ignored. In this regard I also note that some of these driving offences involved driving with high range PCA which expose others to the risk of serious harm.

26. It inevitably must be the case, as is suggested by the ACIs, that the number and nature of the offences must be taken into account in determining how long a time period must elapse between the date of the last known offence and the date of the application for Australian citizenship.

27. In this case the time between the conviction for the last offence and the application for Australian citizenship was almost exactly three years and is now just over four years.

28. Having regard to the number of offences that have been committed with at least half a dozen being classified as serious offences, I do not view this period of time to be sufficient for me to be able to conclude that the Applicant has now good character.

29. The Applicant appeared for himself at the hearing and indicated verbally what he has put in writing. I have no reason to doubt the sincerity with which he has expressed his regret and remorse for his past actions. Furthermore, I note for the record that a character reference was provided by Dr Gregory Thanos which indicated that since knowing him the Applicant “has been of good character and [a] responsible, trustworthy and caring person”, had been “alcohol free in the past 4 years” and had “changed his ways of the past drinking and substance smoking.” Dr Thanos was not called as a witness in the proceedings.

30. I also note that the Applicant has undertaken a number of programs of rehabilitation although it is of some concern that the only program undertaken since the last of his offences was a Sober Driving Program in October 2011.

31. Taking into account all mitigating factors referred to in the ACIs, I am persuaded that the Applicant has accepted responsibility and shown genuine remorse for his conduct. However, this mitigating factor is outweighed by the extensive and serious nature of the criminal activity which the Applicant has been engaged in and I am not satisfied that sufficient time has passed since his last conviction. Further, there is insufficient concrete evidence at this stage of the Applicant’s involvement in meaningful programs of rehabilitation.

    CONCLUSION

32. The Tribunal concludes that the correct or preferable decision is to affirm the decision under review.

    
    
    

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

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

Associate

Dated 12 June 2015

Date of hearing	18 May 2015
Applicant	In person
Solicitor for the Respondent	Mr L Dennis, Sparke Helmore