He and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 56
•17 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 56
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1060
GENERAL ADMINISTRATIVE DIVISION DIVISION ) Re GUANG CHENG HE Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Bell, Senior Member. Date17 January 2005
PlaceSydney
Decision The decision under review is affirmed. ......................................
Ms N Bell
Senior Member
CITIZENSHIP – Permanent Residence Granted – Application for Citizenship Rejected due to Criminal History – Whether Applicant Satisfies Good Character Test
Australian Citizenship Act 1948
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
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
17 January 2005 Ms N Bell, Senior Member 1. Mr He was born on 9 July 1954 in China, and arrived in Australia on 27 November 1889. On 12 April 2000 he was granted permanent residence.
2. On 15 August 2003, Mr He lodged an application for Australian citizenship, declaring a conviction in April 2002 for which he was sentenced to 6 months imprisonment. Following investigations by the Department of Immigration and multicultural and Indigenous Affairs (“DIMIA”) and the provision by Mr He of further information about his criminal convictions, Mr He’s application for a grant of citizenship was refused on 23 July 2004 because the delegate was not satisfied that he was of good character, under s13(1)(f) of the Australian Citizenship Act 1948 (“the Act”), based on his criminal record.
3. There is no dispute that Mr He has the following convictions:
7 June 2001
Convicted in Sutherland Local Court of obtaining money by deception. He was fined $800;
20 July 2001
Convicted in Brisbane District Court of credit card fraud. He was given a 12 months suspended sentence and required to pay compensation totalling $10,227.55;
8 October 2001
Convicted in Blacktown Local Court of 2 counts of obtaining money by deception. He was ordered to perform 150 hours of community service, fined $1,000 and required to pay compensation of $1,705.90;
2 April 2002
Convicted in North Sydney Local Court of obtaining money by deception and sentenced to 6 months imprisonment. He was also convicted of having a false instrument with intention to use and sentenced to 6 months imprisonment;
21 August 2002
Convicted in Parramatta Local Court of 2 counts of obtaining money by deception. He was given a 9 month suspended sentence for the first count, a 6 month suspended sentence for the second count and placed on a good behaviour bond.
4. There is one issue before the Tribunal: does the Applicant satisfy the test of good character under s13(1)(f) of the Act? There is no contention that the provisions of section 13(11) of the Act (serious repeat offender) apply to the circumstances of this application.
5. The term “good character” under s13(1)(f) is not defined in the Act. The decision maker is to have regard to the ordinary meaning of the words in making assessments; see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where Davies J noted, 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.”
At ALR 94 in the same case, Lee J further noted that:
“Unless the terms of the Act and regulations require some other meaning be applied, 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. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25;117 FLR 455 per Miles CJ at FLR 459-60; Plato Films BLtd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138.”
Deputy President Wright observed in Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at paragraph 13:
“’Good character” within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community.”
6. Ministerial directions relating to grants of Australian Citizenship are found in the Australian Citizenship Instructions (“the ACI”). Those provisions relating to assessments of good character under s13(1)(f) are in part 5.4 of the ACI. 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).
7. According to the policy guidelines, where there is such evidence that an Applicant is not of good character, it is incumbent on an Applicant to demonstrate that he or she indeed is of good character. To do this, it is his or her responsibility to point to any extenuating circumstances relating to the convictions, demonstrate that the offences were a ‘one-off’ and do not represent a pattern of behaviour, and that a reasonable amount of time has lapsed since he or she was last free of an obligation to any court.
8. Mr He’s criminal history, as outlined above, involves 8 convictions over a period of approximately 12 months.
9. Mr He gave evidence of having established and worked in a takeaway food business from 1990 to 1999 and of having accumulated some savings from that work. He lived with his then wife in rented premises above the business. Having decided to sell one of his businesses, he was approached in 1998 by a prospective buyer who encouraged him to apply the proceeds of the sale he proposed to the joint purchase of land, with the buyer and one other, at the Gold Coast. Mr He paid a total of $175,000 to an agent on the Gold Coast towards the purchase of the land and after some four months found that the prospective buyer (who had not purchased Mr He’s business), his partner and the agent could not be located. Consequently he lost his money, $80,000 of which he had borrowed. He later learnt that 18 people had been similarly defrauded by the same syndicate.
10. Mr He said he finally sold his business in 2000 for $150,000 to someone else and, after repaying his loan, he purchased a townhouse for $160,000. The property was mortgaged. He sold the property last year for $230,000 and purchased, in his former wife’s name, a house in Pendle Hill for $385,000.
11. Mr He said he had been approached by a friend who had a business “buying things for other people with a credit card” to work as a driver for $300 per day. He said he never used a credit card himself and all he did was drive. He said that at the time he was driving he simply wanted the $300 per day and thought that whatever his friend was doing had nothing to do with him. He conceded, however, that he pleaded guilty to the offences, with legal representation, because he realised that what he had done was wrong.
12. Mr He said that all but one of the offences related to the same person for whom he drove but one of the offences was with another person to whom he had been introduced who paid him a fee of 10% of the proceeds of a $20,000 loan for attending at a bank, signing under a false name and collecting the loan moneys. He said he knew it was against the law but he was “desperate” for the money.
13. He said when he was charged with the early offences he didn’t realise it was serious because he only received a fine or community service. He went on to commit further offences after he had been convicted of the earlier offences. He said that when he was sentenced to six months imprisonment he realised it was serious.
14. Mr He said he committed the offences because he was in financial difficulty arising out of being defrauded and could not accept it after having worked so hard. He said he “couldn’t stand having nothing”.
15. Mr He is estranged from his wife but sees his two daughters, aged five and six, from one to three times per week. He said he wants to become a citizen because his daughters and former wife are citizens and it is appropriate for him to be a citizen as well, having been here for fifteen years. He considers his life would be more stable if he were an Australian citizen rather than simply having permanent resident status.
16. Mr He said repeatedly that he realised what he did was wrong and he will never commit a crime again. He said it is no good for him, for his family or for the country.
CONSIDERATION
17. In forming a view in relation to the ‘enduring moral qualities’ of Mr He, I have had regard to his evidence, which I accept, of the circumstances in which he committed the crimes of which he was convicted; his previous unblemished ten years conducting his own business, his assurances that he has changed and will not offend again and his close relationship with his daughters. I am also mindful of the pattern of behaviour shown by the eight convictions, the fact that, while he had been defrauded of a large amount of money, he still had a substantial asset in the townhouse he had purchased from the proceeds of the sale of his business and yet, ironically, involved himself in the defrauding of others. I am also mindful that only some twenty months have passed since the expiration of Mr He’s obligations to the Court.
18. Mr Elliot, for Mr He, urged me to consider the provisions of the International Convention on the Rights of the Child and to consider the effects on Mr He’s daughters of the relative instability of his continuing status as a permanent resident. Ms Petre, for the Minister, noted that the revocation of his permanent resident status had been considered after his convictions but the Minister’s delegate had decided some two years ago not to revoke. There is thus no current threat to his remaining in Australia and no consequent effect on his relationship with his children.
19. The only evidence of Mr He’s good character in this matter, apart from his own assertions, are the statements provided by his former wife, Ms Yang, and a friend, Mr Zhang. I am not satisfied that these references displace the shadow cast on Mr He’s character by his serious and recent convictions.
20. The degree of disregard for the laws and legal processes of Australia demonstrated by Mr He’s crimes is undesirable to the greater Australian public. Of course, this finding does no irremediable prejudice to his application in the long term; on his own admission he is or at least has been unaware of Australian law. His understanding of his obligation as a prospective Australian citizen to obey and respect the laws of this country will, I believe, best be encouraged by a finding against him in this application.
21. Mr He will suffer no prejudice from having his application for citizenship refused. He can always re-apply in the future, and the refusal of the grant this time around does no prejudice to any further applications he wishes to make when, for instance, his criminal convictions are further behind him and he has made a demonstrable positive contribution to his Australian community.
DECISION
22. The decision under review is affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ........[Linda Blue].............................................
AssociateDate of Hearing 12 January 2005
Date of Decision 17 January 2005
Solicitor for the Applicant Mr G Elliot
Solicitor for the Respondent Ms C Petre
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