Grafton and Minister for Immigration and Border Protection (Citizenship)

Grafton and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 981 (1 December 2016)

Division

GENERAL DIVISION

File Number

2016/0066

Re

William Grafton

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Senior Member T Tavoularis

Date 1 December 2016

Place Brisbane
The decision under review is affirmed.
....................[sgd]...................................
Senior Member T Tavoularis
IMMIGRATION – CITIZENSHIP by descent – eligibility – where application for Australian citizenship refused – good character requirement not satisfied – pattern of behaviour/ offending – decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth), ss 16 & 17
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
HSXY and Minister for Immigration and Border Protection[2016] AATA 560
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sharma and Minister for Immigration and Border Protection [2016] AATA 816
Tsai and Minister for Immigration and Border Protection [2016] AATA 411
Wang and Minister for Immigration and Border Protection [2014] AATA 89
Secondary Materials
Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10 - Character
Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, 1 June 2016, Chapter 11 – Character
REASONS FOR DECISION
Senior Member T Tavoularis
1 December 2016
INTRODUCTION

This is an application for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the Respondent”) refusing Mr William Grafton’s (“the Applicant”) application for Australian citizenship. This refusal was on the ground that the delegate was not satisfied that the Applicant met the “good character” requirement contained in section 16(3)(c) of the Australian Citizenship Act 2007 (Cth) (“the Act”). The Applicant has sought review of that decision by this Tribunal. For the following reasons, I affirm the delegate’s decision.
The relevant decision is dated 28 November 2015. On 5 January 2016, the Applicant lodged an application for a review of the delegate’s decision with this Tribunal.
BACKGROUND
The Applicant is 68 years of age. He was born on 15 February 1958 in Christchurch, New Zealand. He has had numerous arrivals and departures to and from Australia on a Special Category Visa (TY – 444) with the last arrival on
7 September 2010 on this visa. He is currently on shore with an indefinite stay provision.
He applied for citizenship by descent on 18 September 2015.

The Applicant’s pattern of offending from March 1963 until January 2015 is adequately summarized at pages 1 – 7 (inclusive) of the Respondent’s Statement of Facts, Issues and Contentions[1]. My recollection of the hearing is that subject to some clarifying submissions from his representative about certain episodes of that history and similar comments by him in his own evidence (to which I will refer), the Applicant does not significantly cavil with this history.
[1] Exhibit R1: Respondent’s Statement of Facts, Issues and Contentions, p 1-7.
Prior to considering the merits of this matter, I will address the scope of the key legislative provisions for this case. The initial provision for noting is section 17(1A) of the Act which, relevantly, facilitates the decision-making process for eligibility for Australian citizenship subject to the qualifying provisions appearing at subsections 16(2) and 16(3) of the Act. Section 16(3) of the Act regulates that decision-making process by, inter alia, compelling an Applicant for Australian citizenship to satisfy the Minister (the Respondent) that he/she is of good character when the Minister decides the application. For the purposes of these Reasons, I will presume the provisions of section 16(3)(a) and (b) have been met.

THE LEGISLATIVE FRAMEWORK

Section 16(3) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied, inter alia, that the person “is of good character at the time of the Minister’s decision on the Application”.[2]

[2] Australian Citizenship Act 2007 (Cth), s 16(3)(c).

The Act does not specify the meaning of the words “good character”. However, there is strong authority supporting the idea that the phrase should be used in its ordinary sense. That is, it is 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”.[3] A determination of whether someone is of good character necessitates the “consideration of an aggregate of qualities”.[4] Further, the “enduring moral qualities” of which good character speaks “must be demonstrated objectively over a sufficient period”. The length of time to be considered is not specified; rather, it turns on the circumstances of the individual case.[5]

[3] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 (Lee J).

[4] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald).

[5] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] (Senior Member Toohey).

The Minister adopted the Australian Citizenship Instructions (“ACIs”) to provide guidance to decision-makers on the scope and exercise of their powers under the Act. Most important for present purposes is Chapter 10, which deals with assessments of character.

The ACIs are not the only policy document that is relevant to the facts of this case. The Minister’s Department issued the Australian Citizenship Policy (“ACP”) on
1 June 2016. The ACP replaced the policy guidance content previously provided by the ACIs. The relevant part of the ACP is Chapter 11.

The difficulty that arises is that the Applicant lodged his application before publication of the ACP (ie. while the ACIs were still the official policy guidance), but the hearing was held on 24 August 2016 and the decision was later reserved after the Directions Hearing on 9 September 2016. The decision of the Tribunal in HSXY and Minister for Immigration and Border Protection[6] provides some guidance on this item. In that decision, Senior Member Cotter noted that:
… notwithstanding the introduction of the ACP, the ACP and ACIs operate side by side as policy and operational instructions. In the event of inconsistency with respect to policy guidance, the ACP is to be preferred. [7]
This point was also considered by Senior Member Poljak in the matter of Tsai and Minister for Immigration and Border Protection.[8] Relevantly, SM Poljak observed:
…. I am considering this matter afresh (de novo) and although the ACIs were the relevant policy guidance at the date the decision was made, the relevant policy from 1 June 2016, and at the time of the hearing, was the Citizenship Policy [ACP]. In any event, whichever policy I consider makes very little difference to the decision I am tasked to make. Both documents are similar on the aspects relevant to this matter.[9]
As there is no inconsistency between the two instruments on the point in question here, however, the point is moot and I will refer to provisions in both the ACP and ACIs where need be.

[6] [2016] AATA 560.

[7] Ibid, [12].

[8] [2016] AATA 411.

[9] Ibid, [7].

As the instruments are a reflection of government policy, neither is binding on this Tribunal. That does not mean, however, that they should not be applied by this Tribunal. Indeed, there is considerable authority suggesting this Tribunal should apply the government’s policy unless there is cogent reason to the contrary.[10] No such reason has been brought to my attention, so I will apply the ACP and ACIs here.

[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644 – 645 (Brennan J).

The ACP defines “good character” as:
…. the enduring moral qualities of a person, and is an indication of whether an applicant is likely to respect and obey the laws of Australia and other commitments through the pledge should they be approved for citizenship.[11]

[11] Australian Citizenship Policy, Chapter 11 - Character, page 145 of 237; correspondingly found in Australian Citizenship Instructions, Chapter 10 - Character, at paragraph 10.3.1.

On the point of “good character” as a concept necessarily involving “enduring moral qualities”, the ACIs separate “moral” in this context from any religious connotations it may otherwise have. Instead, it is defined as encompassing:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.[12]

The requirement of good character goes to the core of the Applicant. Thus, the Applicant’s behaviour is to be regarded as a manifestation of his essential characteristics. Further the ACIs note:
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting qualities that are evident before their visa application and throughout their migration and citizenship process. [13]

[12] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.3.1.
[13] Ibid.

The ACIs then set out the characteristics that an applicant of good character would have, including amongst other things:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible.....
·be truthful and not practise deception or fraud in their dealings with the Australian Government ….., for example:
o providing false personal information ….. or [doing an act of] other material deception during visa and citizenship applications …..
………..
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
……….
·not be violent, involved in drugs ….. and not to cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance).[14]

[14] Ibid, paragraph 10.3.4.

In addition to the above, paragraph 10.5 of the ACIs establishes a framework within which “good character” decisions should be made. Paragraph 10.5.2 of the ACIs provides a non-exhaustive list of factors for decision makers to take into account in making this assessment. The precise weighting of the factors is dependent on the circumstances of the case.

For present purposes, the following factors are pertinent:[15]
[15] Ibid, paragraph 10.5.2.
If the Applicant has committed an offence, was it serious or minor…..
Serious offences include but are not limited to:
·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery ….)
·fraud…
·harassment or stalking
……
·breaches of immigration law
·other offences incurring prison sentences of 12 months or more.
Minor offences include:
·shoplifting
·traffic offences which have been included in a criminal record
·offences which do not lead to a conviction or sentence
Were there victims of the offence? ...
…..
How many offences have been committed? Was it a one off or is there a pattern of criminal behaviour?
·a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the Applicant may not “uphold and obey” the law if citizenship is conferred on them.

There are two sets of considerations that are most relevant to the present facts. First, one should look to the Applicant’s behaviour to assess why he might not be of good character. Second, one should look to mitigating factors to establish if, in spite of his behaviour, the Applicant might be of good character regardless.[16] The assessment of these factors must not be made in accordance with the decision maker’s own personal standards. Rather, it is to be judged by community standards. In making this consideration a decision maker must, by examining these various factors, come to a conclusion based on the aggregate of qualities shown by the Applicant. Ultimately, the decision maker “needs to look holistically at an Applicant’s behaviour over a lasting or enduring period of time.[17] The amount of time considered to be “lasting” or “enduring” depends on the merits of the case.[18]
[16] Ibid, paragraph 10.5.2.
[17] Ibid, 10.5.4; and Australian Citizenship Policy, Chapter 11 – Character, page 150 of 237.
[18] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.4.

CONSIDERATION
The Pattern of Offending: 1963 - 2015

At the hearing, the Applicant was forthcoming about the totality of his criminal and traffic history. He conceded the possibility that his offending could be construed as conduct that was not consistent with a standard of behaviour expected by the Australian community.

It is not disputed that the Applicant’s offending would amount to a pattern of offending constituting a disregard for the law. The behavioural elements of the Applicant’s offending from March 1963 until January 2015 are clearly matters relevant to the issue of his character.

The Applicant’s history of offending is, on any objective view, both lengthy and, in some specific instances, quite serious. He is 68 years of age. He first offended in 1963 as a 15 year old juvenile in New Zealand. His offending began not trepidatiously but with a flourish. It culminated in respective convictions for five offences of “taking” and one each for burglary, attempted burglary and theft. There then followed some:
·33 appearances in Courts both in Australia and New Zealand for offences that are clearly capable of definition as “serious” as that term appears in the Australian Citizenship Instructions, paragraph 10.5.2 (see paragraph 17 of these Reasons);
·five traffic offences (between 2010-2015): four for exceeding the speed limit and one offence of driving while using a mobile telephone;
·40 occasions of the Applicant making false declarations on his incoming passenger cards when entering Australia;
·one instance of Police intervention in a domestic dispute in April 2005 and one charge of threatening behaviour in May 2007, both involving conduct by the Applicant that can be generously described as animated but more likely abusive and actually or potentially violent. As best as I understood the evidence, no convictions resulted from these two specific instances.
As mentioned earlier, the Applicant was born in New Zealand in 1948. He first came to reside in Australia in 1965. He returned to reside in New Zealand in 1974. During the period February 1996 until March 2000, he apparently made 17 trips to Australia. In 2004, he moved to Australia to reside here. It is an unfortunate feature of this Applicant’s pattern of offending that wherever he goes, trouble seems to go with him. Put another way, there is no convincing evidence before me to indicate that any change in residence between Australia and New Zealand over the past 50 years has served to lower his propensity to offend in one form or another.
In terms of a defined decision making process for the present application, guidance can be found at page 156 of the ACP. It is best practise for decision makers to incorporate the following steps:
·identify any offence or other reason why the person may not be of good character
·summarize the nature of the offence/ incident, its seriousness, victims, other matter
·identify any mitigating factors and summarise them
·analyse any references and identify the weight to be given to each of them
·….
The ACP also provides further guidance as to the exercise of “weighing up the character decision”.[19] The decision maker:
·should ascertain whether any mitigating circumstances and/or explanation provided by the Applicant outweigh the behaviour in question
·should not apply his/her own personal standards, but must apply community standards
·needs to look holistically at an Applicant’s behaviour over a lasting or enduring period of time.
[19] See ACP at pp 149 – 150.
Categorisation of the offending
As cited by the Respondent, the Applicant “…has a very long history of repeated offending, comprising over 35 offences (excluding traffic offences) committed on 26 separate occasions over a period of almost 40 years. He began offending when he was 15 years of age in 1963 and continued offending with regularity until June 2004, when he was 56 years of age. In addition, between 2004 and 2015, Mr Grafton committed five traffic offences (as well as an additional eight offences prior to that period).” [20]
[20] Exhibit R1, Respondent’s SFIC, p 12, [20].
The serious offences
There are 11 crimes of violence that are clearly “serious” as that term is defined in the ACI’s:
·one count of assaulting a traffic officer (convicted on 14 September 1982);
·three counts of assaulting police officers (convicted for two on 19 October 1982 and one on 16 May 1995);
·six counts of common assault on six separate occasions (convicted on 13 May 1966, 19 October 1982, 27 May 1986, 22 July 1986, 16 April 1992 and 16 December 1997). Each of these six assaults involved a different victim on each occasion;
·fighting in a public place (convicted on 26 April 1978).
There are additional offences capable of categorization as “serious” as that term is defined in the ACI’s because these particular offences incurred prison sentences of at least 12 months:
·two charges of larceny (sentenced on 2 May 1966 to imprisonment for two years on each charge);
·two charges of breaking into a building with intent to commit a felony (sentenced on 1 May 1967 to imprisonment for two years and six months such terms to be served cumulatively on each conviction);
·one count of attempting to escape from lawful custody (sentenced on 1 May 1967 to imprisonment for 18 months, such term to be served cumulatively with the two immediately preceding terms of two years and six months each).
The Applicant’s abovementioned conduct is of a very serious nature. Not only is his criminal record lengthy, but it also contains a number of repeated offences, beginning when he was of a young age and spanning the majority of his adult life. Further and perhaps more significantly, his offending has included a number of serious and violent offences. Most notable among these are a number of assault convictions both towards individual “private citizen” victims as well as law enforcement victims.
The seriousness of this offending is illustrated by the resulting sentences imposed by the Courts. In all, for this category of serious offending, the Applicant has received five sentences of imprisonment totalling some 10.5 years of sentenced custodial time.
There is a final category of serious offending that arose on 19 October 1979 when the Applicant was convicted of two fraud-related offences involving obtaining the sum of $500 with intent to defraud and obtaining accommodation through credit by fraud.
The minor offences
The Respondent has further itemised this additional offending.[21] The extent of the offending is both significant and sobering:
[21] See Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, p 13, [24].
24. …..
(a) using a hand held mobile phone while driving (30 January 2015);
(b) 3 counts of exceeding the speed limit by less than 13 km/hr (19 July 2013, 11 January 2011 and 10 April 2010);
(c) exceeding the speed limit by between 13km/hr and 20km/hr (13 July 2011)
(d) 3 counts of wilful damage (convicted on 7 October 2004, 18 June 2001 and 14 September 1982);
(e) 2 counts of offensive/disturbing use of telephone (convicted on 12 July 1997);
(f)    driving with a breath alcohol level over 400 mcgs/ltr (convicted on 27 July 1998);
(g) wilful trespass (convicted on 16 April 1995);
(h) failing to provide his correct name and place of residence to a fishery officer (convicted on 21 November 1989);
(i)    one count of burglary by night, by breaking and entering the New Zealand Railways Corporation Workshops (convicted on 13 October 1987);
(j)    possession for supply of a cannabis plant (convicted on 23 April 1987);
(k) owning a dog which had attacked a person (convicted on 15 February 1983);
(l)    resisting a police officer in execution of his duty (convicted on 19 October 1982);
(m) two counts of refusing an officer’s request for a blood specimen (convicted on 19 October 1979 and 14 September 1982);
(n) endangering / interfering (convicted on 23 July 1974);
(o) numerous traffic infringements between 1965 and 2015, including:
(i)failing to obtain a warrant of fitness for a motor vehicle (convicted on 9 December 1977);
(ii)2 counts of illegally using a motor vehicle (convicted on 15 October 1965 and 17 October 1967);
(iii)4 counts of driving under disqualification (convicted on 13 May 1966, 27 May 1966, 6 July 1966, 3 August 1966);
(iv)driving in a reckless/dangerous manner (convicted on 27 May 1966); and
(p) a number of other theft-related offences when Mr Grafton was between 15 and 17 years old (eg, several counts of taking motor vehicles, bicycles and other property), as well as other offences (eg, escaping from custody and behaving in a disorderly or offensive manner in a public place and ‘being drunk’.

While the immediately preceding offences may be considered “minor”, when viewed holistically, the similarity and repetitious pattern of offending, with its attendant recklessness and indifference to lawful authority more than outweighs the nature of the offences[22] and, indeed, goes “to the essential safety of the community”. [23]
[22] See Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
[23] See Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] and Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7].
Deceptive behaviour in dealing with the Australian Government
The Respondent cites 40 separate occasions between 1996 and 2010 wherein the Applicant failed to declare his convictions on incoming passenger cards necessary to be completed upon arrival in Australia.[24]
[24] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, p 14, [26].
This conduct cannot bode well for his prospects in the present application. He was asked (via these passenger cards) on nine separate occasions to declare whether he had any criminal convictions for which any resulting sentence was for 12 months imprisonment or more. He replied “No” or “No change” to each of these nine questions. He was also asked (via these passenger cards) on 31 separate occasions whether he had any previous criminal convictions at all. He replied “No” to each of those 31 questions.
I agree with the Respondent’s contention that this conduct clearly demonstrates an extensive pattern of deceptively motivated non-disclosure to Australian authorities to facilitate entry into Australia.[25] This conduct is squarely within the provisions of the ACP requiring a person seeking to demonstrate his/her good character “…. to be truthful and not practise deception in their dealings with the Australian Government.”[26]
[25] Ibid [27].
[26] See ACP page 147.
It should be noted that in May 2014 the Applicant eventually made the Authorities aware of his previous false declarations on the incoming passenger cards. I have misgivings about the motivation behind this eventual disclosure for two reasons. First, it occurred nearly four years after his arrival in Australia on the basis of a false declaration(s). Second, this disclosure took place only seven months before lodgement of his initial application for citizenship by descent. To my mind, it is more than reasonable to draw the inference that his confession of providing knowingly false answers to questions appearing in the incoming passenger cards was motivated more by succeeding in his application for citizenship than a genuine intention to bring his conduct into line with community standards.
The impression to be formed from the totality of this Applicant’s offending.
I agree with the Respondent’s contention that this Applicant’s extensive offending, both of a “serious” and “minor” nature, together with his deceptive conduct in previous dealings with the Australian Government clearly demonstrate that he presently does not have the “enduring moral qualities” of a person of good character.
I consider that this Applicant has throughout the majority of his life engaged in a pattern and regularity of offending which is indicative of a disregard for Australian law and that he has “not displayed an adequate period of compliance with Australian law”.[27]
[27] Tsai and Minister for Immigration and Border Protection [2016] AATA 411 at [34]; or Sharma and Minister for Immigration and Border Protection [2016] AATA 816 at [31].
I consequently find that I cannot be satisfied this Applicant has demonstrated an adequate period of compliance with the law or that he has reformed his pattern of offending to consider him of good character for the purposes of section 16(3)(c) of the Act.

MITIGATING FACTORS?

Any assessment of character has to be weighed against any mitigating factors that need to be taken into account. They include:[28]
[28] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.2.
·The length of time that has elapsed between the date of the relevant conduct or offence and the application for citizenship.
·Whether the Applicant has accepted responsibility and shown remorse for his conduct.
·How has the Applicant behaved since his release from prison or upon completion of any obligations to a Court?
·Has the Applicant rehabilitated himself?
·What was the Applicant’s age during the period of offending?
·Were there any extenuating circumstances around the offending?
·Is there evidence of employment and stable family life and/or community involvement?
Additionally, are there any referee reports that can shed light upon the Applicant’s character, acknowledging any offences, and explaining why the Applicant is nonetheless considered to be of “good character”.[29]
[29] Ibid, paragraph 10.6.5 – References.

The Length of Time

The long pattern of offending necessarily requires the passage of a sufficient amount of time before one can be satisfied that the person is now of good character. As observed by Senior Member Toohey:
“Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
……….
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes. It counts in [the Applicant’s] favour that nearly six years have passed without any further offences. However, there is not in my view sufficient evidence yet of his good character”.[30]
[30] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 at [67] and [71] (Senior Member Toohey).
On the present facts, the Applicant was last dealt with by a Court in October 2004 (on a charge of wilful damage) and more recently by legal authorities in January 2015 (for a traffic infringement involving driving a motor vehicle whilst using a mobile telephone).

For reasons stated above, I find that the repetitious nature and more than 50 year duration of the Applicant’s offending is of greater relevance than the period of time since the last offence was committed (that being January 2015).
The sequence of his offending indicates that since June 2004, the Applicant has not been convicted of any violent or other serious offences. There are, of course, the two incidents in April 2005 and May 2007. In the former, Police became involved in a domestic dispute in which he appears to have been involved. In the latter, he was charged with threatening behaviour but for some apparent reason, the charge does not seem to have been finalised by the prosecuting authorities. Therefore, since 2007 and up to 2015, his category of offending has been limited to five traffic infringements.
Acceptance of Responsibility, Demonstration of Remorse and Steps to Rehabilitation
To the Applicant’s credit, at the hearing, he provided evidence that he has suffered from chronic alcoholism for most of his adult life. He recounted that his alcoholism had been brought on by the pressures of a marriage breakdown, subsequent relationships and business pressures. He was frank enough to say that his offending up to October 2004 was largely attributable to his alcoholism. There is evidence that he has voluntarily committed himself to two clinics in New Zealand on three separate occasions to treat his alcoholism and anger management issues.
Subject to my following comments, the Applicant’s participation in remedial clinics for his alcoholism and anger management issues in 1988, 1993 and 2004 goes, in some measure, to his credit. I will say three things about that rehabilitation:
(i)The Applicant completed the most recent of the above clinics well over a decade ago. It is surprising that he did not see fit to complete a similar programme or clinic closer to the hearing of this application or, at least, contemporaneous with his initial application for citizenship by descent;
(ii)Has the Applicant really been rehabilitated? It is a difficult conclusion for me to draw given (a) the twelve year period since the last clinic/programme was completed and (b) the nature of the incidents in which the Police were involved in 2005 and 2007;
(iii)An incident post this hearing has also caused me to develop significant misgivings as to whether this Applicant is genuinely in control of his alcoholism.
This matter was heard on Wednesday, 24 August 2016 at the end of which I reserved my decision. Certain conduct by the Applicant post hearing necessitated a telephone directions hearing on Friday, 9 September 2016. That conduct is described, with some particularity, in Exhibit R3 comprising an affidavit of Caroline Frances Bush, sworn 1 September 2016. Ms Bush is a partner in the firm of solicitors retained by the Respondent with primary carriage of this matter. Ms Bush deposes, inter alia, to the following:
“….
Phone calls from Mr Grafton
7.        On Thursday, 25 August 2016, at approximately 5.00pm, I received a phone call on my mobile phone from the Applicant, Mr Grafton.    This phone call lasted for approximately 13 minutes…….. During the phone call, Mr Grafton raised his voice to me. Towards the end of the call, I indicated to Mr Grafton that I intended to terminate the call due to the manner in which he was speaking to me. I then terminated the call.
8.        Shortly thereafter, on Thursday, 25 August 2016, Mr Grafton phoned me again, at approximately 5.14pm. I did not answer this call…… At the time he made this call, Mr Grafton left a voice message on my mobile phone.
9.        Over the next few hours of the evening, Mr Grafton telephoned my mobile on a further 13 occasions from a different telephone number. I did not answer any of these calls.
10.      The first of these calls was made at approximately 6.30pm……
11.      The second of these calls was made at approximately 6.36pm.    Annexed hereto ….. is a copy of a list of voice messages from Mr Grafton and their corresponding times, which refers to the 6.36pm call.
12.      The following 11 calls were made between the hours of 6.42pm and 8.26pm.    Annexed hereto ….. is a copy of a “screen shot” from my mobile phone detailing the times of these 11 calls.
13.      At the time of each of his phone calls mentioned above, Mr Grafton left voice messages on my mobile phone…..
14.      Mr Grafton’s demeanour during the recordings varies considerably throughout the various messages. In the majority of the messages, Mr Grafton is sometimes aggressive in tone, uses offence language and/or raises his voice.
15.      In a number of the messages, it is apparent, due to the slurring of his speech, that he was intoxicated. In this context, in his message left at 8.03pm on Thursday, 25 August 2016….., Mr Grafton states that he has “had a wine”, although denies being intoxicated.
16.      In a number of his messages, Mr Grafton indicates that he was recording the call and/or that he would not object to my recording of the calls……
17.      In addition, on Thursday, 25 August 2016, at approximately 6.45pm, Mr Grafton telephoned Clayton Utz’s reception and was connected to the reception desk of the Clayton Utz Perth office. I understand that Mr Grafton indicated to the receptionist of the Clayton Utz Perth office that he wished to speak with me……
18.      Again, on Thursday, 25 August 2016, Mr Grafton attempted to contact the Clayton Utz offices on two occasions at approximately 8.14pm and 8.16pm and left messages…….
19.      On Friday, 26 August 2016, Mr Grafton again attempted to contact the Clayton Utz offices at approximately 7.05am and left a message…..
20.      Also on Friday, 26 August 2016, Mr Grafton telephoned me on 2 further occasions at 5.45pm and 6.06pm.   I did not answer either of these calls….”[31]
[31] Exhibit R3, Affidavit of Caroline Frances Bush sworn 1 September 2016, pp 1 – 2.
Upon being made aware of this affidavit, I convened the abovementioned telephone directions hearing on Friday, 9 September 2016. Both the Applicant and his representative at the hearing (Ms Yvonne McMillan) participated in the telephone directions hearing. The Respondent was represented by Ms Melissa de Jongh. On 7 September 2016, the Applicant’s representative filed a certain submission[32] relevant to the forthcoming telephone directions hearing on 9 September 2016. Relevantly for present purposes, in her submission, the Applicant’s representative says, inter alia, the following things:
“…..
I was not aware that Mr Grafton had contacted Messrs. Clayton Utz for the Respondent until I received the email of Thursday, 1 September from M/s [sic] de Jongh. Mr Grafton made these telephone calls of his own volition and definitely contravened my advices which are provided to all my clients. ie not to make any contact directly by any means with the parties from the or representing the Department for Immigration and Border Protection.
I was not able to make contact with Mr Grafton until late on Tuesday
6 September to receive his instructions as well as to whether or not I should withdraw from this Matter as his representative.
I must admit I did seriously consider withdrawing my services to Mr Grafton (not the Matter before the Tribunal). However, my reason for terminating my representation would have been on the grounds that Mr Grafton did not adhere to my requests that he make no contact with either Clayton Utz or the Respondent directly…….
Mr Grafton made several apologies to M/s [sic] Bush during the course of his telephone conversations/messages. Mr Grafton does admit to having had a glass or two of wine but definitely was not in any drunken rage, just a man who was so frustrated because he thought that although we had rebutted a number of matters raised. In hindsight he wished that he would have said more to rebut those allegations and this is what he attempted to do by making these telephone calls.”
[32] Exhibit A6, Letter from Yvonne McMillan to the District Registrar of AAT, dated 7 September 2016.
At the telephone directions hearing on 9 September 2016, when confronted with the inappropriateness of (a) the direct contact with the Respondent’s representatives post hearing in clear contravention of the direction he had received from his own representative and (b) the inappropriate tone and style of his language in the messages, the Applicant adopted a tone of contrition and said:
“I would like to make a sincere and heartfelt apology. I went about it the wrong way. My understanding was that things ended with the hearing.”
The Respondent’s representative at this telephone directions hearing (Ms de Jongh, Solicitor) told me her office had “…received a further 9 messages on Monday
[5 September]”. She added: “It has been an ongoing pattern of behaviour”.
It would be easy for a decision maker to form the view that the above conduct would serve to impugn any “good character” arguments that may be put on his behalf. To my mind, the aforementioned post hearing episode is more telling as to whether or not this Applicant has genuinely overcome his stated difficulties with alcohol. The obvious conclusion is that he has not.
How has the Applicant behaved since his release from prison or upon completion of any obligations to a Court?
This Applicant’s last contact with lawful authority for serious offending was in October 2004 (conviction – wilful damage). Alternatively put, it may have been in April 2005 (Police involvement – domestic dispute) and/or May 2007 (charged with threatening behaviour but charges not finalised).
It is not sufficient for the Applicant to contend that his offending during the period 2007 – 2015 relates to offences that are minor or “low level”. Arguably, they may be. The critical point about them is when they are viewed in the context of his other offending, they lead a decision maker in my position to conclude that the essence of this Applicant (insofar as the “good character” component of this Application is concerned) is such that (a) his rehabilitation from alcohol, (b) his capacity to manage his emotional responses to questions or issues he perceives as difficult, and (c) his capacity to regulate his behaviour in line with community expectations, is still a work-in-progress.
I am of the view that this Applicant does not yet demonstrate an adequately consistent and reliable capacity to distinguish right from wrong. I am also of the view that he has a propensity - when confronted with a difficult or problematic situation – to not orientate his behaviour in line with the rules and values of Australian society.
The Applicant’s age during the period of offending; his employment history and/or community involvement
The Applicant committed his first offence as a juvenile, aged 15 years. He has had a constant involvement with lawful authority until at least 2004 (when aged 56) and/or 2007 (when aged 59).
He is self-employed, operating his own mobile lawn mower repairs business. He seems a responsible corporate citizen, paying his taxes and other municipal charges. As best as I can ascertain, he has at no time been an impost or burden on the Australian community during his periods of residence in this country.
He seems to be making a gradual transition towards a family-oriented outlook on life. He told the hearing that he met his current wife (Jane Grafton) in China in 2009 and that they have been married for 6 years. There is further evidence that he supports his 90 year old mother who resides in south-east Queensland.[33]
[33] Exhibit R1, T17, p 313.
The Respondent notes[34] it is arguable that this Applicant’s age may be a mitigating factor where there is discernible evidence that he has matured since, at least, the last of his more serious offending in 2004. I have difficulty accepting such a contention in the context of this application because the sheer duration of his serious offending is such that I cannot be convinced he has demonstrated a maturity commensurate with his age or that his pattern of offending is otherwise not reflective of his current character. He first offended when aged 15 years. His last serious offence (dealt with in a Court) was in 2004. That is a period of 41 years. We are talking about a consistent pattern of serious offending for 41 of his 68 years. Put another way, if one discounts the first 15 years of his life (due to his childhood) and attributes a notional age of 53 years to him, then his period of offending has run for 41 of those 53 years. Expressed as a percentage, this amounts to 77.36% of his active adult life.
[34] Exhibit R2, p 15, [31].
While it may be arguable that a length of time has passed since his last serious offence in 2004, he has nevertheless maintained a pattern of offending, albeit for traffic-oriented breaches, as recently as 2015. I agree with the Respondent’s contention that where this Applicant “….has an extensive history of offending, to have continued to receive infringements can only be regarded as reckless. The Tribunal needs to be satisfied that Mr Grafton is [a] no longer reckless with respect to the laws of Australia and [b] be satisfied that he is likely to uphold and obey the law before it can find that he is of good character”. [35]
[35] Ibid, p 15, [32].
I am not so satisfied of either [a] or [b] in the immediately preceding paragraph.

References: Do these assist the Applicant?

The Applicant’s character references can be grouped into three categories:
(i)Those tendered at the hearing and in respect of which the referees gave oral evidence by telephone comprising:
·         Mr Daryl Jones (friend of the Applicant) dated 27 March 2016;
·         Mr Damien Michael O’Toole (friend of the Applicant) dated
23 March 2016.
(ii)Those references (presumably) sought to be relied on by the Applicant but in respect of which no oral evidence was provided by the stated referees:
·Mr Norman James Craven (a former customer of the Applicant) dated 31 March 2016;
·Mr Philip Anthony Ryan (a friend of the Applicant) dated 24 March 2016.
(iii)Those filed previously, presumably in support of the application for Australian citizenship by descent:
·         three references from the Applicant’s wife dated 18 May 2014, 4 February 2015 and 12 September 2015;
·         one reference from Mr Nick Carter (friend of the Applicant) dated 11 September 2015;
·         three references from Mr Warwick Darren Cotton (friend of the Applicant) dated 1 May 2014, 5 February 2015 and 11 September 2015;
·         two references from Mr Geoff Sullivan (friend of the Applicant) dated 16 May 2014 and 2 February 2015; and
·         two references from Mr Graham Ernest Bate (friend of the Applicant) dated 16 May 2014 and 3 February 2015.

With regard to the group of references at sub-paragraph (iii) in the immediately preceding paragraph 60 of these Reasons, I attach little or no weight to them because they lack any acknowledgement or reference to Mr Grafton’s offending or, at best, any reference to his offending is expressed in cursory terms. As well, none of those referees were called to give evidence at the hearing.
Particular caution should be exercised with references provided by family members, in this case, Mrs Jane Grafton, the Applicant’s wife. Page 155 of the ACP specifically provides that less weight should be given to references provided by family members “…because of the social expectation that family members would tend to support one another and play down the unacceptable conduct”.
With regard to the group of references at sub-paragraph (ii) of paragraph 60 of these Reasons, it is notable that although the references of both Mr Craven and Mr Ryan are given by way of statutory declaration, neither of them made themselves available for cross-examination at the hearing.
Mr Craven speaks of the Applicant as an “agreeable and an honest man and know him to be of good sober behaviour in all my dealings with him. He operates a mower repair service here in Hervey Bay and he is held in high regard by all who know him.” Earlier in his reference, he mentions that he and the Applicant “….. have often spoken about alcoholism and the effect that it has on people”. In terms of what he knows of the Applicant’s offending, he deposes to having “…. being given and acknowledged receipt of the full New Zealand Criminal Conviction Report and the Australian Federal Police Clearance (I have signed the first page of each of the Certified Copies attached).” In an earlier reference dated 15 September 2015 Mr Craven says the Applicant, to his knowledge, had not re-offended “….. in the last 20 or so years ….”.[36]
[36] Exhibit R2, T Documents, T5, p 181.
The reference of Mr Ryan is more difficult to assess. He says he has known the Applicant for seven years, meeting him mainly at social meetings and that their discussions have revolved around business and travel. He says the Applicant is “….honest, hardworking and considerate of other people.” He adds “I believe he has proven himself to be a solid man, a person one can trust and have confidence in.” His reference makes no comment about his history of offending other than to say “…His past is not a reflection on the character of this man today.” Although his reference annexes, inter alia, a National Police Certificate dated 18 December 2014 and a Criminal Convictions Report dated 22 January 2015, he makes no reference to having any knowledge of the detail of the Applicant’s offending.
Taken in totality, I have difficulty in attaching any measure of weight to the respective references of Mr Craven and Mr Ryan. They both speak well of the Applicant’s social attributes. However, neither reference, to my mind, adequately addresses the specific requirements of page 155 of the ACP:
“Referee reports can shed light upon an Applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the Applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.”
In my view, neither the reference of Mr Craven or that of Mr Ryan meet this threshold and, accordingly, I am not disposed to afford any great weight to either of them.
With regard to the two references at sub-paragraph (i) of paragraph 60 of these Reasons, I note that both Mr O’Toole and Mr Jones gave evidence at the hearing. Curiously, in his oral evidence, Mr O’Toole said he had the body of his statutory declaration before him but not any of its attachments. In cross-examination, he said he had a vague recollection that the Applicant told him “….. something about his prior offending”. His primary basis of interaction with the Applicant has been on a “social-business-work activities ….” basis. He regards the Applicant as “…. honest and truthful with special abilities and business marketing and as a mechanic, he has many friends and clients in the mower industry and is well regarded I have no hesitation in stateing [sic] that Bill (William) is a good man to be around. I hope is [sic] Application for citizenship is successful”.
The evidence of Mr Daryl Jones in support of his reference was equally unconvincing and lacking in detailed knowledge of the Applicant’s offending as that of Mr O’Toole. He told the hearing that he was “…. familiar with the character of Mr Grafton”. He said there was a connection between them because “… both of our wives are Chinese”. When pressed in cross-examination about any detailed knowledge regarding the Applicant’s criminal history, particularly his criminal history in New Zealand, Mr Jones said he had never seen it.He conceded that he may not have read the Applicant’s criminal history in detail when preparing his reference. Mr Jones seemed confused when discussing or when requested to recall detail about the Applicant’s previous history. Interestingly, there is no reference to the Applicant’s history of offending in the reference of Mr Jones. In the reference, Mr Jones says he has known the Applicant for 4½ years and that he shares interests such as “fishing and mechanical developments etc” with the Applicant. He says he has found the Applicant to be “strong in his beliefs on fairness and portraying strength of character that is seldome [sic] seen today. He is also reliable and a good person. I would not hesitate to recommend Bill’s positive ability to anyone”.
Once again, I have difficulty in attaching any measure of weight to both the references and oral evidence of Messrs O’Toole and Jones. What they say (or what they do not say) about the Applicant’s history of offending leads me to a conclusion that neither reference (or the supporting oral evidence from either of them) adequately (or at all) informed the hearing as to why this Applicant is – despite his extensive history of offending - still considered by these two referees to be of “good character”.
I therefore concur with the submission of the Respondent that the inherently subjective nature of the particular references of Messrs O’Toole and Jones must be contrasted with the objective factual reality of the Applicant’s history of offending.[37] This Tribunal put it aptly in Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022:
“References are subjective views of persons having contact with [the Applicant], and should not be given the same weight that should be accorded to [the Applicant’s] own actions and conduct ….”.[38]
[37] Exhibit R1, Respondent’s SFIC, [39].
[38] Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022 at [109] (Deputy President Dr D Chappell).
Candid though these references from Messrs O’Toole and Jones may be, I have concluded that the Applicant’s pattern of offending and the extended period over which his offending has occurred outweigh the positive and subjective comments of his referees.
Extenuating Circumstances?
The ACI’s consider extenuating circumstances to include duress or periods of psychological disturbance including the effects of medication, but not including under the influence of recreational drugs.[39] I cannot, therefore, find any such circumstances of extenuation in the present case. At the hearing, the Applicant attributed some of his offending to his issues with alcohol. Be that as it may, I do not consider the totality of the evidence tendered endorses a finding of alcohol as the emergent reason for his pattern of offending.
[39] See Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.2 – Mitigating factors.
A final point
As is recorded earlier in this decision, two primary conclusions can be formed from the evidence:
(i)when viewed holistically, the Applicant has displayed a consistent disregard for the law and an inability to moderate his conduct in line with the expectations of the Australian community; and
(ii)his persistent pattern of offending (as recently as January 2015) also indicates he has “not displayed an adequate period of compliance with Australian law”.[40]

[40] Tsai and Minister for Immigration and Border Protection [2016] AATA 411 at [34] (Senior Member Poljak).

Any finding that this Applicant is not of good character now is not determinative of a finding of whether or not he is of good character in the future.

CONCLUSION

I am not satisfied that the Applicant is of good character under section 16(3)(c) of the Act. Consequently, I do not believe he is presently eligible to become an Australian citizen.

Accordingly, I affirm the decision under review.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis

.....................[sgd]..................................
Associate
Dated 1 December 2016

Date of hearing

[Date of Directions Hearing

24 August 2016

9 September 2016]

Applicant

Advocate for Applicant

In person for hearing

Yvonne McMillan, Better Life Australia Visas

Solicitors for the Respondent Lea Christopher, Clayton Utz

[2016] AATA 981

1 December 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Division	GENERAL DIVISION
File Number	2016/0066
Re	William Grafton
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Senior Member T Tavoularis
Date	1 December 2016
Place	Brisbane