Hou and Department of Immigration and Multicultural Affairs
[2001] AATA 855
•12 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 855
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/95
GENERAL ADMINISTRATIVE DIVISION )
Re WEI GUO HOU
Applicant
And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President)
Date12 October 2001
PlacePerth
Decision The decision under review is affirmed.
[Sgd Hon C R Wright QC]
Deputy President
CATCHWORDS
AUSTRALIAN CITIZENSHIP – "Good character" – applicant convicted of stealing from employer and placed on 2 year intensive supervision order – application heard when order still had nearly 1 year to run – evidence that applicant was well behaved and complying with order – whether application was premature.
Australian Citizenship Act 1948 –s13 (1)(f)
REASONS FOR DECISION
12 October 2001 The Hon C R Wright QC., (Deputy President)
On 28 April 1994 the applicant was granted an Executive visa pursuant to the sponsorship of CATIC, Western Australia Pty Ltd ("CATIC"). Thereafter the applicant commenced to reside in Australia. He was employed by CATIC. The Executive visa was valid until 28 April 1996. He subsequently applied for and was granted a subclass 126 independent migrant visa.
In February 1999 he applied for a grant of Australian Citizenship. In the application he indicated that he was involved in legal proceedings and had been charged with the commission of certain offences arising out of his employment. The application for citizenship did not proceed and was postponed pending the final disposition of the prosecution, which proceeded as a jury trial in the District Court in Perth, WA. On 1 September 2000 the applicant was convicted of stealing viz. That on 20 November 1996 at Perth, being the servant of CATIC, Western Australia Pty Ltd he stole the sum of $24,000 from his employer. The trial judge imposed punishment as follows:
(1)That there be a compensation order requiring the applicant to pay $24,000 to CATIC.
(2)That the applicant perform 240 hours of community service.
(3)That the applicant be subject to an intensive supervision order for a period of 2 years.
At the present time the applicant has made no payment to CATIC in reduction or settlement of the order referred to in para 2(1) above. He says that this is due to his inability to make contact with CATIC or its Australian representative. He also says that he has a legitimate counter claim for unpaid wages and bonuses due from CATIC. Civil litigation in respect of both CATIC's claim and the applicant's counter claim was in existence before the criminal prosecution was finalized and has not been resolved since. How these proceedings may be affected by the orders made in the criminal proceedings is unclear, but it seems to me that these facts cannot justify the applicant's failure to pay the $24,000 as ordered by the District Court. I think he is quite prepared to allow the matter to remain as it is unless and until CATIC or the prosecuting authorities take steps to enforce the sentencing judge's order.
The applicant's compliance officer has reported very favourably on the applicant's performance of the community service component of the order made against him (para 2(2) above). In a report dated 19 June 2001, she said:
"Mr Weigo's attendance at the community work project was excellent, such that he completed the community work hours within 10 weeks of being placed on the Order. Additionally, due to his excellent compliance with the supervision requirement of the Order and him being assessed as low risk of re-offending, he had his reporting reduced to monthly compliance as of February 2001 (this requires him to 'book report' twice in two months and the third month he has an interview with his Supervising Officer). Mr Weigo has at all times reported punctually for his appointments."
The compliance officer also attended the Tribunal hearing, confirmed the report, and stated that there had been no adverse problem with the applicant since that time. She is unaware of any further offences committed by the applicant since the order was made and generally expressed complete satisfaction with his performance.
The 2 year supervision order made against the applicant (para 2(3)) has been in operation for just over 13 months. It still has approximately 11 months to run. The sentencing Act 1995 (WA) s69 defines the nature of an intensive supervision order. Such an order provides not only for the regular monitoring and counselling of an offender; it also provides that any offender who commits a further offence or directly breaches the intensive supervision order in some other manner may be further dealt with and, if necessary punished, by the sentencing court.
The applicant's claim for citizenship is governed by the Australian Citizenship Act 1948 (C'th) ("the Act"), section 13(1)(f) of which provides:
"Section 13(1)(f)
Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the minister that:
(f) The person is of good character."After sentence was imposed upon the applicant he made a fresh application for Australian Citizenship in February 2001 following a number of unrewarding attempts to activate his original application. The new application was considered by a ministerial delegate who rejected it on 7 March 2001. Written reasons for this decision were provided on 8 May 2001. (See T documents, Exhibit R1, pages 22-24).
The applicant is a well presented young man, now aged 32 years, who represented himself upon his application to review the delegate's decision. He has tertiary and other qualifications and is plainly intelligent. He gave oral evidence and presented a reasoned argument. He also prepared and presented a brief of relevant documents (Exhibit A1). Part of this brief consisted of a 15 page statement recounting his history since arriving in Australia and explaining his involvement with CATIC. Unfortunately it became clear that this document had formed the basis of his defence evidence at the criminal trial, and was inconsistent both with the verdict of the jury, and the findings of the trial judge when she passed sentence upon him. The applicant made it clear that he fully accepted the validity and correctness of his conviction. In these circumstances the personal history document is of little assistance to me and a great deal of it may be rejected as untrue.
The applicant's brief also contained a Newsletter from Port Community High School (October 2000), and a letter from south Lake Childcare Centre, both of which documents contained glowing tributes to the work performed by the applicant for each institution during his court ordered community service. There were also written references favourable to the applicant provided by his wife, Victor Li, a former business partner, Anni Hu Spire, a senior executive member of the Western Australian Chinese Chamber of Commerce and Wang Jin, Chief Secretary of Student Affairs at the Narjing University where the applicant studied between 1988 and 1991.
The application to review is based on two primary contentions (see the applicant's letter to the AAT Registry dated 19 March 2001, a copy of which is at pp.30-32 in Exhibit A1).
These contentions are:
(a) That he is now of "good character" within the meaning of the Act.
and(b) That DIMA procedures as disclosed by his evidence suggested that his case had not been "handled properly".
As to the latter ground, it was explained to the applicant that a review hearing constituted a consideration of the issues de novo upon the basis of the material currently available to the Tribunal, but it should be said that in any event I am unable to see that the matters referred to by the applicant give any cause for concern that his citizenship application was considered other than fairly and appropriately by an impartial ministerial delegate.
As I see it the central question for determination in these proceedings comes down to an assessment as to whether or not the applicant is of "good character" within the meaning of the legislation. The Australian Citizenship Instructions "Criteria for Grant", Chapter 4, issued for the assistance of officers performing this task was referred to in some detail during the proceedings, and, in particular, paragraphs 4.8.15 to 4.8.28 were referred to and individually discussed by the applicant. Those criteria are reproduced in Exhibit R1, pp.36-38, and need not be quoted in extenso in these reasons. The instructions are not binding upon the Tribunal, but they provide a very useful and sensible set of criteria and I see no reason to dissent from or modify any of the principles which they set forth.
The applicant argues that at the time he committed the stealing offence against his employers he was a young man working in a foreign county who had been given duties which were beyond his experience and placed heavy burdens upon his time and capacities. He also claimed that he was poorly remunerated and had ongoing problems with his employers. He is now self-employed running a small private internet based organisation. He says that his language and business skills have improved substantially over the past 5 years and that he has now matured, has seen and understands the errors of his earlier behaviour and wishes to make a contribution to Australia, a country which he has grown to love and in which he has settled comfortably with his wife and young son.
The Minister's delegate who assessed his case took the view that it was too soon to make a finding that the applicant meets the good character requirements of the Act. This view was maintained by counsel for the respondent in opposing the applicant's application. It was pointed out that the intensive supervision order had run just a little over half its course as it was only 13 months since the applicant had been sentenced by the District Court.
In passing sentence Kennedy DCJ made a number of observations which appear to me to have a bearing upon the present question. I set out hereunder the more telling observations which were made:
"There was a course of dealing that led up to the point where you took this money, and really I think that it has to be said that you were very dishonest. There were a number of things that you did that were quite dishonest. I accept what the witnesses from the company have said, that you didn't tell them you were buying that car. Had you told them, they may very well have advised you not to get it on hire purchase.
Then there is the matter of putting yourself back into the signing of the documents, and I'm sure you were keeping documents from Mr Chen, and basically I accept the crown case that there is a good deal of deviousness in what you have done. Then the ultimate thing, of course, is stealing the $24,000 when you were in a position of trust and when you're employed, and you're employed to look after people's money. Obviously commerce cannot continue if people cannot be trusted, if your employees can't be trusted. That's why often, or generally speaking, people stealing as a servant go to gaol for it because they're in a position of trust and because it's necessary to protect the fabric of our commercial system. So it is ordinarily the case that a gaol sentence would be imposed.
…
Even though it's serious and the way in which you did it all was serious, the amount of money in the scale of matters that we deal with in this court is not at the top end. You have a prior good record. You have never been in any trouble before and no doubt if you had stayed in China you would never have got into trouble.
I take into account that to some extent it was contributed to by the situation in which you found yourself in that you were only 24, you were too young. I mean, reading between the lines, it was obvious from the documentation that you weren't doing the job up to the standard the company wanted, and that's why they wanted you to go home, even though they were trying to help you to save face. That's not your fault, and that doesn't mean to say that you are not of managerial quality. It's just that you were only 24 at the time and you were put into a foreign country; you were too young; it was a mistake that the company made.
…
I'm gratified that Mr Fiannaca has told me of the attitude of the company, which I think is very just and fair, and in the circumstances this offence is not serious enough to warrant you being destroyed for it. I think it was circumstances. I think you were completely out of your depth, that it was a one-off situation caused by the temptations of our system.
I would have preferred it of course if at some stage you had demonstrated some little remorse or regret toward these people, particularly toward Mr Chin because you were lying about Mr Chin, but you did not. However, you are very young and no doubt you are very desperate and we have to take that into account.
…
As I say, it is highly unlikely you will ever get yourself into trouble again, or that you will get yourself into this position again."Assessing these remarks (which are plainly of great significance) and the other evidentiary material, against Criteria for Grant and the legislative concept of "good character" as discussed in a number of relevant decisions (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 in particular), it is quite obvious that at the time when the applicant stole from his employer he was not of good character.
A number of questions therefore arise. Has he shown that his character, as it was at that time, has changed to such an extent that he may now be regarded as a person of good character? Has this "very dishonest" man who has engaged in a "good deal of deviousness" to defraud his employer of $24,000 shown that his enduring moral qualities have been transformed? It may be said that he has certainly shown that he is on the path towards reformation, but in my view the stage has not yet been reached where he is entitled to the trust and respect of a man of good character.
The sentencing judge put him at risk of further punitive action for a period of 2 years, and in my respectful opinion that is the very minimum period that should elapse before one could say that the applicant's changing pattern of behaviour has been sufficient to expunge the present stain on his character. This comment should not be taken as a pre-emptive decision that if he keeps out of trouble until September 2002 he will automatically meet the statutory criteria for citizenship. Whether he passes the test or not will be up to those whose duty it is to assess him after that time.
In my opinion, the decision under review should be affirmed. I think it inappropriate to simply defer the application for citizenship until a later date although I have that power. In my opinion the application should be refused. It will be up to the applicant to decide if and when he will make a further application.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: ...........K L Miller.................................................
Personal AssistantDate/s of Hearing 8 October 2001
Date of Decision 12 October 2001
Counsel for the Applicant Applicant appeared for himself.
Solicitor for the Applicant
Counsel for the Respondent Ms Ria Vavakis
Solicitor for the Respondent Aust. Government Solicitor
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