GRIMALDI AND MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 922

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 922

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0364

GENERAL ADMINISTRATIVE DIVISION		)
Re		SALVATORE GRIMALDI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date19 November 2010

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

IMMIGRATION & CITIZENSHIP – permanent residence granted – application for Australian citizenship refused because of criminal history – whether applicant is a person of good character – decision under review affirmed.

Australian Citizenship Act 2007 (Cth) s 21(2)(h)

Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84
Drake v Minister for Immigration and Ethnic Affairs [1979] 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

19 November 2010   Senior Member R W Dunne   

introduction

1.      The applicant, Mr Salvatore Grimaldi, was born in Egypt on 2 October 1962.  He arrived in Australia as a permanent resident on 13 December 1968.  He completed an application for conferral of Australian citizenship (“Application”) on 22 May 2009, which was received by the respondent on 5 August 2009.  In completing the Application, he answered ‘no’ to each of the character-related questions, which included questions relating to the charging or conviction of any offences and confinement to prison.  On 23 December 2009, he was advised that his Application had been refused because the delegate was not satisfied that he was of good character within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“Act”).  Mr Grimaldi has applied to this Tribunal for review of the respondent’s decision.

2.      At the hearing, Mr Grimaldi was self-represented and Mr Paul d’Assumpcao appeared on behalf of the respondent.  I had before me the T documents (Exhibit R1) and the supplementary T documents (Exhibit R2) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, which I received into evidence.

issue before the tribunal

3.      The only issue before the Tribunal is whether the applicant is a person of good character within the meaning of s 21(2)(h) of the Act. 

legislation

4.      The relevant legislation is s 21(2)(h) of the Act, which reads:

“21       Application and eligibility for citizenship

…

(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

…

(h)is of good character at the time of the Minister’s decision on the application.

…”

background and evidence

5.      The material facts are not in dispute and are drawn from the T documents, the supplementary T documents and the respondent’s statement of facts, issues and contentions.  Following the making of his Application, on 20 October 2009, the delegate wrote to Mr Grimaldi noting, among other things, that she had received written information from police sources which identified the applicant as a subject of an offender history report.  The delegate invited him to explain why he had failed to disclose the offences in his Application.  On 2 December 2009, Mr Grimaldi provided a response to the delegate’s query (Exhibit R2, page 41).  The response reads:

“To the question relating to character matters, particular, whether found guilty of any offence – I honestly didn’t think at the time answering the question that a traffic offence and going to court would show any criminal record that’s why I left it blank.  There was a matter over 10 years ago with my ex-partner and Centrelink.  We ended up seperating [sic] and I had to get my own lawyers to defend me.  The matter went to court and all charges where [sic] dropped against me.  Know [sic] it seems that I have a criminal record which I’ll have for the rest of my life, and which I am not happy because of someone’s elses [sic] greed.  And for your record (I have never been to gail [sic]) for anything.

And it is also a matter I am trying to forget because of all the stress and pain it has caused me any my family.”

6.      The following is a summary of the applicant’s known criminal history and dealings with the courts, which was prepared by Mr d’Assumpcao and was not challenged:

NO.	DATE OF OFFENCE	OFFENCE DETAILS	OUTCOME
District Court of South Australia – Conviction date 9 August 2000 – 5 counts
1.	06.10.1994	Imposition	Convicted on 5 counts – imprisonment 12 months – Bond 2 years from release – Released forthwith – To be of good behaviour for the period of 2 years
2.	01.01.1995	Imposition
3.	01.01.1996	Imposition
4.	01.01.1997	Imposition
5.	01.01.1998	Imposition
Magistrates Court of South Australia – Conviction date 21 March 2002 – 12 counts
6.	18.06.1998	Obtain instalment of payment not payable	Convicted on 12 counts – 6 months imprisonment – Bond 2 years – Released forthwith – Defendant to be of good behaviour for the duration of the bond
7.	01.07.1998	Obtain instalment of payment not payable
8.	03.08.19999	Obtain instalment of payment not payable
9.	17.08.1999	Obtain instalment of payment not payable
10.	31.08.1999	Obtain instalment of payment not payable
11.	09.09.1999	Obtain instalment of payment not payable
12.	14.09.1999	Obtain instalment of payment not payable
13.	28.09.1999	Obtain instalment of payment not payable
14.	12.10.1999	Obtain instalment of payment not payable
15.	25.10.1999	False statement in claim for social security payment
16.	26.10.1999	Obtain instalment of payment not payable
17.	23.11.1999	Obtain instalment of payment not payable
Holden Hill Magistrates Court – Conviction date 5 March 2007 – 1 count
18.	01.05.2006	Fail to give way to vehicle at intersection	Convicted – Fine $306

7.      It was Mr Grimaldi’s evidence that he had applied for citizenship so that he could obtain a passport and travel to Egypt to see his cousin who was seriously ill.  His other family members are citizens and he also wanted to obtain citizenship to contribute to Australia’s future.

8.      In cross-examination by Mr d’Assumpcao, Mr Grimaldi said that he had looked quickly through his Application before lodging it and had tried to contact the delegate to gain an understanding of some of the character-related questions that were included.  He said he had signed the Application, but had not read Question 36 closely, particularly the declaration that the information he had supplied in the Application was “complete, truthful and correct in every detail”.  As to the reference to “spent” convictions, he did not think that past criminal convictions needed to be disclosed.  When referred to the charges in the District Court, Mr Grimaldi admitted that he had been convicted of social security fraud.  He could not recall committing the offences, but had been threatened by his de facto partner at the time, seeking to deny him access to the children born out of their relationship.  As to certain of the matters set out in the offender history report, he said that one of the convictions had been wrongly recorded, and another charge had been withdrawn, without conviction.

consideration

Is the Tribunal satisfied that the applicant is of good character under s 21(2)(h) of the Act?

9.      In Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815, it was necessary for Senior Member B J McCabe to consider the question of “good character” under s 13(1)(f) of the Australian Citizenship Act 1948. The same approach applies to the question of “good character” under s 21(2)(h) of the Act.  In considering the character test under the Act, the Tribunal must be “positively persuaded that the applicant is of good character”: Re Chen at [18].  Further, where evidence raises a question in the mind of the decision-maker (or the Tribunal, standing in the shoes of the decision-maker) over the fitness of the applicant, it is encumbent on the applicant to adduce evidence that will enable the decision-maker (or the Tribunal) to conclude that the person is of good character, notwithstanding the questions that are raised.  It may not be possible to answer the allegations directly, but the decision-maker (or the Tribunal) must be provided with a level of comfort about its decision: Re Chen at [21].  

10.     The presence or absence of criminal convictions is important in determining whether the character test is satisfied.  As Davies J pointed out in Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84 at 87:

“"It should also be observed that the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute...I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.” (emphasis added)

11.     Ministerial directions relating to grants of Australian citizenship are found in the Australian Citizenship Instructions (“Citizenship Instructions”).  The provisions relating to assessments of good character under s 21(2)(h) of the Act are contained in Chapter 10 of the Citizenship Instructions.  The directions are not binding on the Tribunal and are policy guidelines only.  However, they are useful to the extent that they aid in the construction of the Act (see Drake v Minister for Immigration and Ethnic Affairs [1979] 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

12.     In Mr Grimaldi’s case, I consider the following Citizenship Instructions in Chapter 10 to be apposite:

“The term ‘good character’ is not defined in the Act. Decision makers must therefore be guided by the ordinary use of the words in making assessments.

…

An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. However, general conduct and associations may also be relevant. If there is evidence to suggest that an applicant may not be of good character, the applicant should be given the opportunity to respond to this evidence. An applicant's behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.

…

Assessing good character involves:

•      establishing whether or not an applicant has a criminal record, and the nature of that record, if any

•      establishing whether or not there is other information relevant to the issue of character

•      according procedural fairness to the applicant where there is credible, relevant, and adverse information which the decision maker intends to take into account and

•      considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicant's behaviour.

A list of factors to which consideration should be given is at Attachment A - Character summary. They include:

…

Repeat convictions for the same offence indicate a serious repeat offender.

Repeat criminal behaviour over time - when different offences occur.

Concealment of any offences - may be an indicator of a continuing lack of good character.

Length of time between last offence and application for Australian citizenship.

…

A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person’s behaviour immediately prior to the making of a decision.

…

The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, their status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights.

The onus is on the applicant to demonstrate that there has been a change in their character since last offending.

…

Decision makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight.

…”

13.     Mr Grimaldi’s criminal history has been outlined briefly in paragraph 6 of these reasons.  He has a long history of offending, with 18 offences committed between 1994 and 2006.  Five offences were committed between 1994 and 1998.  These offences related to fraudulent claims for social security benefits (Job Search/Newstart Allowances) amounting to $24,224.82.  The District Court described the offending as “a serious case of sustained and deliberate fraud” and occurred at the time the applicant had commenced employment with Masonic Homes Incorporated.  He was sentenced to imprisonment for 12 months, but was released to be of good behaviour for 2 years.  Twelve offences were committed between 1998 and 1999.  These offences again related to fraudulent claims for social security benefits (Sickness Benefit) amounting to $2,615.99.  In relation to the latter offending, having reviewed the offences that occurred between 1994 and 1998 and the significant overpayment of social security benefits during that period, the Magistrate said (Exhibit R2, page 37):

“… Why in circumstances where he had been caught out over a substantial overpayment would the defendant knowingly take the risk again for such a small amount as $2615.99 …?  Is it possible that I am wrong in assessing him as a reasonably intelligent person who has the capacity to understand and respond appropriately to the written word.  I think not.  I do not believe there is any hypothesis consistent with innocence which is not excluded by the prosecution evidence.  For whatever reason the defendant knowingly and deliberately decided to take a risk in acting as he did. …”

14.     The last offence, which was not as serious as the prior offences, was committed in 2006 and involved failure to give way to a vehicle at an intersection.  However, in relation to the social security fraud offences, I note that the applicant had proceedings in the District Court at the time he committed the 1998-1999 offences, particularly the latter offences in 1999.

15.     Mr Grimaldi provided a character reference in the form of a statement from Mr Jamie Andrews, a business manager.  The statement was presented as a photocopy only and, in my view, was insufficient in its content.  In accordance with the Citizenship Instructions, I give the statement only minimum weight.

16.     In completing his Application, Mr Grimaldi answered ‘no’ to character-related questions where the true answer was ‘yes’.  He said he misunderstood the nature of the questions and was embarrassed to tick ‘yes’.  However, ticking the answers to the questions correctly would not have been an obstacle to the delegate’s consideration of the Application.  His conduct in answering all the questions in the negative mirrored the approach he took to the fraudulent claims for social security benefits.

17.     Mr Grimaldi put to me that, having regard to what is said in the Citizenship Instructions, there had been a change in his character since his offending in 1998 and 1999.  However, there is no evidence that he has reformed.  In fact, in answer to the delegate’s questioning (Exhibit R2, page 41) in 2009, he denied that he had been convicted of the social security fraud offences and all the charges against him had been dropped.

conclusion

18.     On the evidence, there is sufficient material before me to draw the inference that Mr Grimaldi is not of good character for the purposes of s 21(2)(h) of the Act.  I say this because his offences are clearly of a nature that reflect poorly on his character.  It appears that he deliberately failed to disclose his offences and convictions in his Application and, when prompted by the delegate as to the reason why he failed to disclose his convictions, his response was evasive and misleading.

decision

19.     The applicant does not meet the character requirements of s 21(2)(h) of the Act and, accordingly, the decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member RW Dunne

Signed:         ..............J Coulthard........................................
  Associate

Date of Hearing  10 September 2010
Date of Decision  19 November 2010
Advocate for the Applicant       Self-represented
Advocate for the Respondent   Mr P d'Assumpcao
Solicitor for the Respondent     AGS