Koon and Minister for Immigration and Multicultural and Indigenou S Affairs

[2004] AATA 296

CATCHWORDS – MIGRATION – CITIZENSHIP

– citizenship by descent – good character – past criminal conduct – general conduct – decision affirmed

Administrative Appeals Tribunal Act 1975 s. 37
Australian Citizenship Act 1948 ss. 10B, 10C, 11, 37, 44A, 46A

Australian Citizenship Regulations 1960 r. 7H
Commonwealth Electoral Act 1918 s. 93
Migration Act 1958 ss. 13, 20, 200, 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Ridley v Secretary, Department of Social Security(1993) 42 FCR 276
Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994)

DECISION AND REASONS FOR DECISION [2004] AATA 296

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          S2002/462
GENERAL ADMINISTRATIVE DIVISION     )          

Re                MARK KOON

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  22 March, 2004
Place:  Melbourne

Decision:The Tribunal affirms the decision of the respondent dated 26 November, 2002.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 6 December, 2002, the applicant, Mr Mark Koon, applied for review of a decision dated 26 November, 2002 made by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”). The delegate refused Mr Koon’s request to be registered as an Australian citizen pursuant to s. 10C of the Australian Citizenship Act 1948 (“the Act”). He did so on the basis that Mr Koon did not meet the good character requirement as required by s. 10C(4)(d) of the Act.

1. At the hearing, Mr Koon was represented by his solicitor Mr Winter and the Minister by her solicitor Ms Reed. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence together with statutory declarations by Mr Koon and his mother, Ms Desma Rhodes, a statement by Mr Koon’s uncle, Dr George Rhodes, and his curriculum vitae, the files of Mr Koon’s attorney relating to court proceedings numbered CR-97-538 and CR-00-3270, a book containing the transcript of those proceedings and a bundle of documents including a number of references, newspaper articles and certificates. Mr Koon gave oral evidence in support of his own case, as did his mother and uncle.

THE ISSUE

1. The issue in this case is whether Mr Koon is entitled to be registered as an Australian citizen pursuant to s. 10C of the Act. As the Minister concedes that Mr Koon meets all of the requirements of s. 10C(4) other than those in s. 10C(4)(d) the only issue in this case is whether Mr Koon is of good character within the meaning of s. 10C(4)(d) of the Act.

BACKGROUND

1. There was no disagreement between the parties regarding a number of matters in this case.  In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.

1. I find that Ms Rhodes is an Australian citizen.  Dr George Anthony Rhodes, is Ms Rhodes’ brother and Mr Koon’s uncle.  Dr Rhodes, who is a plastic and reconstructive surgeon, is not married and does not have any children.  He and his sister are two of four children born to parents who emigrated to South Australia from Greece.  Their father worked hard as a glazier.  The family became members of the Mormon Church after the eldest daughter turned to that Church. 

1. Ms Rhodes met her husband, Mr Harvey Lance Koon, at the Mormon Church.  They were married in Adelaide on 31 August, 1968.   Mr Harvey Koon was a citizen of the United States of America and Ms Rhodes and her husband subsequently lived in Western Australia where Mr Harvey Koon was stationed for his work with the United States Navy (“US Navy”).  While stationed in Perth the couple had a daughter, Maria Koon, born on 12 November, 1969.  Maria Koon was recognised as an Australian citizen by descent and granted Australian citizenship on 1 August, 2002.  In April, 1971 Mr Harvey Koon was transferred to a naval base in Long Beach, California and the family moved to California where their second child, Mr Koon, was born on 22 March, 1973.

1. Dr Rhodes studied in the United States of America and visited his sister three or four times each year while she also visited him in New York with her children.  There have been many letters and telephone calls amongst all members of the family over the years. 

1. Mr Koon attended primary and high school in California and completed his studies at California State High School in 1989.  He was a member of the Cub Scouts and became a qualified Scout Leader in 1987.  In 1990 and after his father had retired from the US Navy, the family left California and moved to Idaho Falls, Idaho where his father’s extended family lived.  Mr Koon continued his schooling in 1991 at the Skyline High School in Idaho and graduated on 7 June, 1994.  While attending school Mr Koon worked part-time for a home building construction company.  On completing his schooling, he obtained a full time position at the Sandpiper Restaurant in Idaho Falls.  He started as a junior cook and then became a head cook before becoming the restaurant manager.  At the time of the hearing Mark was still employed by the Sandpiper Restaurant although an issue between the parties were periods of unemployment which I have set out below. 

1. In December, 1992 Mr Koon’s parents were divorced.  Mr Koon and his sister continued to live with their mother but had limited contact with their father.  Mr Koon no longer has any contact with his father.  His sister subsequently moved away from home and at the time of the hearing was completing her training as a nurse.  Dr Rhodes has been in regular contact with both Mr Koon and his mother.

1. In February, 2001 Mrs Rhodes was diagnosed as suffering from a serious and debilitating condition in her spine as a result of the growth of a large tumour within her spinal cannel.  The tumour, which caused nerve impingement, has been surgically removed but her previous back movement and functions have not been restored.  That has arisen because scar tissue formed at the site of the operation and the pressure on her spinal canal increased.  The pain she had previously suffered in her back and legs returned.  Consequently, she requires ongoing assistance with the daily tasks of living.  That assistance is currently provided by her son, with whom she enjoys a close relationship.  In addition to caring for his mother, he also maintains the house and attends to domestic matters.  Ms Koon is not available to attend to her mother’s care on an ongoing basis.

1. As she has been advised that there will be no further improvement in her back condition and in the level of pain from which she suffers, Ms Rhodes decided that she should return to Adelaide to be with her family.  She plans to be accompanied by her son on the journey and that they will later be joined by her daughter. 

1. Ms Rhodes and Mr Koon had understood that Mr Koon was entitled to enter Australia as he was the son of an Australian citizen.  They maintained their belief even though he had been born in California.  In Ms Rhodes’ mind, there was no difference between the circumstances of her two children despite her daughter’s having been born in Australia and her son’s having been born in California.

1. Ms Rhodes and Mr Koon only became aware of his situation when Ms Rhodes began making arrangements to travel to Adelaide.  He ultimately lodged an application for Australian citizenship by descent with the Australian Embassy in Washington in or about July, 2002.  Mr Koon’s application was refused and the decision conveyed to Mr Koon in a letter dated 26 November, 2002.  It was refused on the basis that he did not meet the good character requirement but no reasons were given in the record of decision. 

1. Mr Koon has five recorded offences in relation to his driving a motor vehicle.  Two occurred in 1996 and were described as “basic rule” and “follow close”.  A third in 1997 was described as “stop sign”.  The fourth and fifth also occurred in 1997 and were described as “no liab ins.”.. (T documents, page 49)

1. Mr Koon has been charged with several offences but has been convicted only in relation to the following offences recorded in the Seventh Judicial District Court in Bonneville County in Idaho in proceedings numbered CR-97-538 and CR-00-3270:

Date of offence	Date of sentence	Conviction (maximum penalty for offence)	Sentence
6 February, 1997 Case No: CR-97-538	22 May, 1997	Possession of a Controlled Substance – Marijuana and intent to deliver Imprisonment 5 years Fine $US15,000 (pleaded not guilty on 5 March, 1997 but changed plea to guilty on 4 April, 1997)	Court granted a withheld judgement. Placed on probation for two years with the imposition of a 90 day sentence in the Bonneville County Court at the discretion of the Court. Probation subject to following conditions in addition to usual conditions: 1.    pay $US1,000 fine; 2.    together with co-defendant, pay restitution to the State of Idaho for costs of investigation; 3.    perform 100 hours of community service and pay $US0.60 per hour for cost of worker’s compensation insurance; 4.    obtain substance abuse evaluation and undergo treatment as recommended; 5.    obtain and maintain full-time employment or study or part-time employment and part-time study; and 6.    pay $50 to the Victims’ Rights Fund, $350 to the Public Defender’s costs and $28.50 Court costs.

19 June, 2000 Case No: CR-00-3270	1.    Not stated 2.    18 October, 2000	1.    theft – petit (pleaded guilty) 2.    Possession of Controlled Substance – Meth-amphetamine Imprisonment for life and/or a fine of $US25,000, restitution to law enforcement for costs of investigation/ Enforcement and $US50 fine for the Crime Victims’ Compensation Fund per count. (pleaded not guilty initially but changed plea to guilty)	1.    Probation for two years with suspended term of imprisonment of 90 days.  Fined $US 63.  Ordered to serve 90 days imprisonment in Bonneville County Jail but imprisonment suspended.  (Court files do not reveal sentence and my findings are based on the Idaho Criminal History (T documents, page 50)). 2.    Sentenced to custody of the Idaho State Board of Corrections for a term of 5 years with a minimum period to 2 years to be served and an indeterminate period of 3 years provided that the sentence was suspended and Mr Koon was placed on probation for 3 years on conditions that included the usual conditions and added conditions that included the following: (1)     serve 90 days in the Bonneville County Jail.  The time could be served on the Sheriff’s Work Release Program if eligible and approved.  He received a credit of 9 days recognising the period for which he was imprisoned on remand; (2)     serve 100 hour community service and pay $US0.60 per hour for workers’ compensation insurance; (3)     complete the ARA in-patient program*; (4)     be monitored on the substance abuse case load; (5)     maintain full-time employment; (6)     completed Phase I and Phase II of the Cognitive Self-Change Program; and (7)     pay various specified costs, charges and compensation as detailed in the Judgement of Conviction and Order of Probation (Exhibit C).
1.    8 or 9 March, 2001; and 2.    17 January, 2001.	9 April, 2001	Probation Violation of the conditions that he: 1.    complete the ARA in-patient program*; and 2.    shall not … consume any … drugs or controlled substances not prescribed by a licensed physician.#	The Court ordered that Mr Koon be continued on probation with the addition of a condition that he serve an additional 90 days in the Bonneville County Jail.  If he were eligible and approved, the time could be served on the Sheriff’s Work Release Program.

^* Mr Koon had a “bed date” for the ARA in-patient program on 8 or 9 March, 2001 but was not accepted for the programme as he had not obtained his TB test in a timely fashion. 

^# On 17 January, 2001, Mr Koon submitted to an urine analysis which tested positive for Methamphetamine and Cocaine.  On 1 March, 2001, he signed a voluntary statement admitting having used Methamphetamine.

1. After completing his period of parole after his first conviction, Mr Koon was granted a dismissal and discharge on 12 August, 1999.  On 13 January, 2003, the Court found that he had satisfactorily complied with all of the terms and conditions of the probation following his second conviction for Possession of a Controlled Substance and terminated it.  It ordered that the matter be entered on Mr Koon’s record as an amended judgement and deemed a misdemeanour conviction.

1. Phase I and II of the Cognitive Self-Change Program is part of the Bonneville County Court Felony DUI/Drug Court programme.  Mr Koon first appeared in the Felony DUI/Drug Court on 23 July, 2001.  The Felony DUI/Drug Court program is made up of a four treatment phases.  Phase I lasted for 12 weeks and required Mr Koon to, among other things, attend alcohol/drug counselling and/or 12 step meetings at least once a day on each day of the week as directed by the treatment provider and probation officer, submit to random analysis or BAC tests at least three times each week or as directed, attend Felony DUI/Drug Court at least once each week and obtain a sponsor and home group within four weeks of signing the contract for Phase I.

1. Mr Koon had on 29 July, 2002 applied for registration as an Australian citizenship by descent. That application was refused on 26 November, 2002 under s. 10C(4)(d) of the Act because Mark Koon did not meet the good character requirements.

EVIDENCE

Family Life

1. Both Ms Rhodes and Mr Koon said that they enjoy a close relationship.  He has always lived with her and assisted her with her day-to-day needs and jobs around the house as well as in the maintenance of their house.  Ms Rhodes said that her divorce from her husband consolidated the already close relationship that she already enjoyed with her son.  She said that her son had gradually become estranged from his father and now rarely has any contact with him.  Ms Rhodes said that her son helps her by mowing the lawn when he gets home from work, taking her shopping and to the hospital and undertaking “chores about the house”. 

1. Mr Koon said that both he and his mother are members of the Church of Jesus Christ of Latter Day Saints.  With the way his work is at the moment, he is not able to attend services very often.  As soon as he gets a Sunday off, he goes just to keep his mother company.

1. Mr Koon said that his mother has a back injury and that it affects almost everything that she does.  It means that she suffers from severe leg and back injury and that she has to spend too much time in getting herself around and in doing things.  As a consequence, for the past two years he has had to do most of the housework and shopping.  It “is kind of like having two jobs”, he said.

1. Dr Rhodes said that he was aware that the break-up of his sister’s marriage had a significant effect upon his nephew.  His nephew no longer had a father figure or male company and Dr Rhodes said that he spent a great deal of time on the telephone with him and his sister.  He also visited them to help his nephew through his personal crisis.  In his oral evidence, he said that the divorce had a very bad effect on his nephew as he had loved his father very much.  His nephew became very despondent after his father left.  Dr Rhodes spoke with him each week and they became closer.  Two or three times each year he would visit his sister and her family. 

Employment

1. In giving oral evidence, Mr Koon said that he had been employed by the Sandpiper Restaurant for 11 years and that his employment has been continuous.  That was the case even though he had been convicted of offences.  In cross-examination, Mr Koon said that the statement made by the police officer on his first arrest was not correct.  The police officer had said the Mr Koon had said that he had lost his job at the Sandpiper Restaurant (see paragraph 24 below).  A pre-trial sentence interview was conducted with Mr Koon on 7 February, 1997, it was noted that he did not have an employer and had been unemployed for one week.  The following comment was made:

“Mr. Koon has lived in the area for six years.  He lives at home with his mother and a sister.  Mr. Koon is unemployed at this time and will be starting college in the fall.  Mr. Koon’s sister had some concerns about his drug use.  Mr. Koon would be considered a low risk at this time.  A treatment program would be a consideration.” (Exhibit C)

1. In his application for the appointment of a Public Defender, Mr Koon wrote that he had last been employed on 30 December, 1996 and that his last employer had been the Sandpiper.  No reason was given for the termination of his employment despite there being a question on the form to that effect.  In cross-examination, Mr Koon said that it was correct that he had been “laid off”..  He had been laid off for a week on vacation and had no money coming in.  Mr Koon then agreed that he had been incorrect when he had said in giving evidence that the police officer’s note that he was unemployed was not correct.  He withdrew his earlier evidence.  Mr Koon said that he had been unemployed on one other occasion and that was when he committed the second offence.  That period of unemployment lasted for two weeks.  Ms Rhodes said that her son had been unemployed for several weeks. 

1. When asked why he had said that he had never lost his employment, Mr Koon replied that he had lost it for just a short period of time.  He had never considered that as not having work and repeated that evidence when it was suggested to him that he had not told his solicitor that he was unemployed but had told the authorities.  Mr Koon denied that he was re-writing history.  Mr Koon said that he now works six days each week.  His hours are 9.00am to noon and then 3.00pm to 10.00pm.  Between noon and 3.00pm, he returns home to do a little housework for his mother, whose back injury affects everything she does. 

1. The owners of the Sandpiper Restaurant, Ms Rose Anne Coughlan and Mr Ronald W. Obendorf, wrote that:

“We are happy to highly recommend Mark Koon to any future employer he may have.  Mark has worked for the Sandpiper Restaurant for 10 years and has always been an excellent employee and a tremendous asset to our business.  He has taken on more and more responsibility over the years and learned every area of the restaurant.  Mark is an incredibly hard worker and is always willing to give 110% to both his co-workers and supervisors.

Mark’s job has included cooking three to four hundred dinners a night, ordering our products and dealing with vendors, inventorying weekly and monthly, scheduling twenty-plus employees, cutting meat daily and in general managing a very busy restaurant kitchen.  He has often willing put in sixty hour work weeks and done so without a complaint.  I think Mark would do what ever it took to get the job done.” (Exhibit F)

1. Dr Rhodes said that his nephew had been employed in the same job for the previous ten years. 

Offences - generally

1. Mr Koon said that his attorney had not shown him a copy of the police reports when he was defending him and had not told him what the police were alleging against him.  He had taken a statement from him but Mr Koon had no explanation why those statements were not in his attorney’s files.  Mr Koon said that he could not recall signing a statement. 

1. Ms Rhodes gave evidence that her son’s childhood was uneventful and that, apart from some minor regularity offences, had no problems with the law until he was 24 years of age.  She said that she believed that her medical condition and the divorce from her previous husband had had an impact on Mark.

1. In her statement, Ms Rhodes said of her son:

“Mark from my point of view has always been a good and hardworking person and a son of whom I have been proud.  Obviously I have been very disappointed by the brushes that he has had with the law but have viewed those events in perspective.  The offences have not been of the most serious nature and have arisen in circumstances which at least render his conduct understandable, if not excusable.” (Exhibit E, paragraph 21)

1. Ms Rhodes said in her statement that she believes that Mark was and is a good person who is both kind and generous and who sincerely regrets his earlier transgressions.  In cross-examination, Ms Rhodes said that her son’s conduct was understandable because he was very depressed after the divorce.  He took drugs to relieve the pressure and stress of the problems with her ex-husband.  Her son told her that drugs relaxed and comforted him.  They both attended counselling after Ms Rhodes’ divorce.

1. She knew that he had been taking marijuana and had been very upset about it.  When asked if she knew that he had used it regularly, she replied that he had told her that he used it occasionally.  She also knew from the way that he was acting that he was taking methamphetamine.  Ms Rhodes said that she went to counselling to find out the consequences of his taking methamphetamine.  She said that on one or two occasions she had been scared by the way that he was acting.  Ms Rhodes attended counselling as she did not know how to protect her son and herself.  Her son was taking drugs quite regularly but she did not know how often other than to say that it was several times each month.  She knew that he was taking cocaine.  Taking drugs and alcohol is against the teaching of the Mormon Church.  Ms Rhodes said that her son did not tell her that he was using drugs but she could see the symptoms of him changing as he did so. 

1. Over the years, Dr Rhodes said in his statement that he had generally spent half his time in the United States of America and half the time in Australia.  He now intends to live in Australia full-time.  Whilst in the United States of America, Dr Rhodes said, he has been called to give evidence in a number of malpractice suits and so has familiarity with civil processes.  He continued:

“31.     As far as the criminal law is concerned, I can say that it is common knowledge in America that a plea of guilty may be entered and accepted by a Court even though the party making the plea is not necessarily guilty of the offence.  A plea of guilty is usually entered with a view to expediting the processes and avoiding the expense of a costly trial.  A person entering a plea of guilty can later put forward a version of facts inconsistent with that guilt.  Somehow or other the Court manages to impose a penalty taking into account the Defendant’s version of what really happened.

32.      When counselling Mark in relation to his own involvement with the law, I was told by him, and believe to be true, that his lawyer told him to plead guilty even though he had a proper defence.  The advice was based upon the shear practicality of costs and the fact that the offences were not, in themselves, serious and unlikely to attract and [sic] significant penalty.  Mark, as counselled by me accepted this advice.” (Exhibit B)

1. In his oral evidence, Dr Rhodes said that he knew that his nephew occasionally smoked marijuana but his nephew never told him that he was using methamphetamine.  His nephew had told him that he had been given three years probation with a sentence of 90 days gaol suspended.  He thought that was for the possession charge.  Dr Rhodes said that his nephew had not mentioned that he had received a sentence of five years of imprisonment that had been suspended.  He did not know about that until he read the court documents that he had obtained and that were in evidence in this case.  With regard to the parole violation, Dr Rhodes said that he was aware of it.  His nephew had told him that he had smoked a little marijuana and he was so upset.  Dr Rhodes understood that his nephew had volunteered his violation from the start.  His nephew had never mentioned cocaine to him and he feels strongly that he has never had any.

Offence - conviction for Possession of a Controlled Substance – Marijuana and intent to deliver

1. In the Arrest Report dated 7 February, 1997, the arresting police officer wrote, in part:

“      I approached the driver and asked for his drivers license, registration and insurance.  I informed him that his tail light was out.  The driver who was identified as Mark Koon said he knew the light was out.  The passenger identified himself as Brien Pace.  I went back to my car and ran his drivers information.  I asked dispatch to check Koon in the computer.  He had numerous entries including burglary.  His drivers information came back clear.  I reapproached Koon and asked him to step out of the car and to the rear.  I wanted to ask him about any contraband he might have away from his passenger.  I gave Koon his drivers information and asked if he had any drugs or illegal items in his car.  Koon said he did not.  I asked if I could search the car.  Koon gave authorization for me to search.  I first started with the passenger side.  Officer Spence was on scene and kept watch on Pace and Koon.  I checked the back seat and then under the passenger front seat.  I removed some papers and behind them was a plastic baggie.  I grabbed the baggie and removed it from under the seat.  Inside the baggie were 6 other baggies which were rolled up and appeared to contain marijauna (sic)..  I checked again under the passenger seat and found another bag which was open and not rolled up.  I continued the search and did not locate any other contraband.  Both Koon and Pace were searched and no other drugs were found on their person.  I spoke with Koon who denied any knowledge of the marijuana.  Pace said he knew nothing of marijauna (sic) as well.
        Based on the way the marijuana was packaged, (7 individual baggies) the marijuana was being sold.  Both Koon and Pace were placed under arrest for possession of marijuana with intent to deliver.  I called a tow truck to take the car which will be stored inside by H and H Towing.  Officer Spence took Pace to the Leb and placed him in a holding room.  I awaited the wrecker and transported Koon to the Leb.

I placed Koon in a holding room and retrieved a miranda writes form and a statement from.  I asked him if he could read and he said yes.  I gave him the miranda warning sheet which he read and signed.  Koon told me that he knew Pace had the marijauna (sic) on him.  I asked him if the reason he took the detour through downtown (the trail from shoup to a street) was because there was marijauna (sic) in the car.  He said yes.  Koon said he believed that Pace placed the marijauna (sic) which was in his right front pants pocket under the seat when Koon stepped from the car.  Koon wrote a statement concerning the incident.  Prior to taking Koon to the jail I checked his jacket and shoes and billfold.  Koon’s billfold contained two pieces paper one that had drug weight conversions on it and the other a price guide.  I asked Koon about the paper and he said that since he lost his job and the Sand Piper that he was going to sell drugs and thought it would be a way to make easy money.  Koon also said that he never actually sold any drugs but he just had that in his pocket.  Koon said that he had changed his mind about selling drugs.  I booked Koon into jail for possession with intent to deliver.” (Exhibit C, Book 1)

1. The transcript of the proceedings shows that Mr Koon entered a not plea guilty to the charge of Possession with Intent to Deliver a Controlled Substance on 5 March, 1997.  A trial date of 6 May, 1997 was set on that day with a pre-trial conference on 4 April, 1997.  On 4 April, 1997, Mr Koon’s attorney advised that his client had changed his plea to guilty.  There was some discussion as to the precise nature of the charge.  It was clarified that it involved both possession and intent to deliver.  Mr Koon’s attorney indicated that his client pleaded guilty to possession and Mr Koon himself answered that he pleaded guilty to possession.  He later repeated the whole of the offence with which he was charged.  His attorney told the Court that he had advised his client of all or his rights, possible defences and the consequences of a guilty plea.  Mr Koon and he both indicated that they had had sufficient time to discuss the case.  Mr Koon said that nobody was forcing or pressuring him to plead guilty and no one had promised him that the Judge would be “easy on” him if he pleaded guilty (Exhibit C, Book 3, page 13).  Mr Koon told the Judge that he was driving his own car home when Brien Pace shoved a baggy under his seat.  He knew that it contained marijuana.   

1. Mr Koon said in his statement that he was driving his friend Brien Pace home at approximately 11.00pm on 6 February, 1997 when he was stopped by the police by police for a driving violation comprising an unlit tail light.  He gave the police permission to search the car and said in his statement that he “…readily gave that permission not realising that Brian [sic] Pace had hidden under his passenger seat a plastic bag which contained Marijuana” (Exhibit D, paragraph 13).  When the police carried out the search, they found a bag of marijuana hidden under the passenger seat.  When a police officer questioned him, Mr Koon said in his statement in these proceedings that the bag of marijuana did not belong to him and that, if it belonged to anyone, it must belong to Brien Pace.  When questioned whether he knew that drugs were in the car when pulled up by the police, Mark said that he knew Brien Pace had something on him but was not sure what was in the bag. 

1. In his statement, Mr Koon described subsequent events:

“… The Officer informed me that as the Marijuana had been found in my car, I had to be regarded as responsible and was subject to a strip search.

16.    I later discovered …[that] Brian [sic] denied owning the Marijuana and that the Marijuana, given the way that it was packaged (in separate bundles) provided a proper foundation for the charge of ‘possession (of Marijuana) with intent to deliver’..  This was so despite the fact that the Marijuana was not in any significant quantity.

17.    I first came before the Court with respect to the matter on 5 March 1997.  I entered a plea of not guilty to the charge as, in fact, the Marijuana was not mine but Brian’s [sic]..  The matter was adjourned to 4 April 1997 when I returned to Court together with my lawyer and appeared before the same judicial officer.

18.    It seemed from the advice provided to me by my lawyer that if I maintained a plea of not guilty, the matter would have be to heard before a judge and jury.  This would be extremely protracted and very costly.  The lawyer could not guarantee a successful outcome.  Upon a plea of guilty to the present charge, however, the penalty was likely to be quite moderate.

19.    Given this advice I decided that I was in such a difficult position that it would be better for me simply to accept the facts as alleged by the Prosecution, receive a penalty and put the matter behind me.  The lawyer was concerned as to my position in this respect but nevertheless understood how I could see such a plea as a reasonable and practical solution in the circumstances.  I therefore told the Court that I wished to enter a plea of guilty.” (Exhibit D)

1. In his oral evidence, Mr Koon said that he told the police officer that his passenger had been holding a bag but that he had no idea what was in it.  It was his passenger’s bag and not his.  The law, though, is that he is responsible if it is in his car, Mr Koon said.  It was not correct that a billfold in his possession had drug weight conversions and a price guide.  He claimed he had not been told about the billfold and Mr Winter’s mentioning it was the first that he had heard of it. 

1. In cross-examination, Mr Koon said that he had told the police officer that anything that was in the car did not belong to him.  He had said that because he knew that Mr Pace had been carrying a bag but he had not known what was in it and certainly not that it contained marijuana.  He agreed that he had pleaded guilty and also agreed that he had told the arresting police officer that he had the weight conversions and price guide because he had thought that he would sell drugs but had then changed his mind.  Mr Koon denied, though, that he knew that there was marijuana in the car at the time that he was stopped by the police for a traffic violation.  He did not regard his evidence on this point as inconsistent with his pleading to the offence of possession of marijuana with intent to deliver and with his statement to the police officer.  Mr Koon said that he knew that Mr Pace had a bong but had not known until he was stopped that Mr Pace had marijuana. 

1. In giving his evidence, Mr Koon said that he was advised by his lawyer to enter a plea of guilty to the charge.  The advice, he said, was given on the basis that it was faster and easier to enter a plea rather than go through a court hearing that would probably result in the same conviction or something worse.  In cross-examination, Mr Koon said that it was cheaper.  Representation by the public defender for a guilty plea cost $25 per fortnight but a not guilty plea cost $50 per fortnight.  Had he pleaded not guilty, the trial would have taken more than one day.  It would also take a longer time to go through all of the processes.  Mr Koon denied that he had pleaded guilty to the offence because he was guilty and said that he had only done so because he was advised to do so.  He was not guilty of anything other than driving a car without a tail light.  His lawyer had told him that there was a good chance that he would be found guilty if he went to trial; if he pleaded guilty it would lighten his sentence.

Offence - conviction for Possession of a Controlled Substance – Marijuana

1. The Arrest Report by the police officer who arrested Mr Koon and who had spoken with the security officer at the shop, Mr Lusk, reads in part:

“Lusk observed Koon looking at some baseball cards.  He selected several packages and pocketed them.  Koon also picked up a box of baseball cards.  He then bent down and concealed the box of cards under his shirt.  Koon walked up to the checkstand.  He had a couple of pkgs of cards in his hand.  He paid for the cards, not the concealed ones, and exited the store.  Lusk detained him.  Lusk escorted Koon back to the security office.  He asked Koon to put all the unpaid merchandise on his desk.  Koon removed the box of cards and 5 pkgs of baseball cards and put them on the desk.  When Lusk asked Koon why, he said because he didn’t have the money to buy them.  Lusk explained the civil liability.  Koon said he understood.

I read Koon his rights and asked him if he understood them.  He said yes.  I asked him why.  He said he couldn’t think of a good reason as to why he stole, just that he didn’t have the money to buy the items.  I explained to Koon he was under arrest for shoplifting.  He said he understood.  I searched Koon.  I found a clear vial with some wh/brownish crystal-like substance in it.  I asked Koon if it was crystal meth. He said yes.  Koon was carrying a large blade folding knife on his belt.  I found a sm bro bottle with a wh crystal-like substance in it.  I asked Koon if it also was crystal meth. He said yes.  There was also a clear glass pipe and some baggies.  Koon said the pipe was what he used to smoke the meth.  He had used it approx. 2 hrs ago.  I asked if he sold the meth. He said no, it was all for his personal consumption. …” (Exhibit C, Book 2)

1. In the sentencing hearing, Mr Koon’s attention was drawn to the pre-sentence report and to his plea of guilty.  He said that he stood by his plea and his attorney said that there were no parts of the report that he felt needed to be corrected or clarified.  His attorney said, in part:

“Your Honor, I think that Mark is a fine young man.  I think that he probably could benefit from some counseling in the area of social adjustment, maybe some self-esteem type counseling, CSC courses again or something like that, because I just have a sense that when Mark relapsed and got back into this behavior that cause him to have this case, he pled guilty to the underlying petit theft charge right out of the chute, Your Honour, and was placed on two years probation.  So he’s taken care of that.

And I just think that Mark is an individual who just needs maybe some community support and a little bit of some positive influence in his life rather than withdrawing and being alone and then sliding back when stress comes, sliding back into substance abuse or other kinds of self-destructive behavior.

So I think that Mark will once again be successful on probation.  I appreciate the fact that the recommendation is such.  I really think that speaks well for Mark’s conduct the first time around on probation.  And I know Mark is not proud of the fact that he’s committed this offense and will do whatever it takes to again be successful in a community supervised setting, Your Honor.” (Exhibit C, Book 3, pages 35-6)

Mr Koon also addressed the Judge and said that he was very sorry for what he had done and continued:

“…I have been sober for over three months and wish to continue being sober.  I am doing so by being admitted to the ARA House for additional treatment.” (Exhibit C, Book 3, page 37)

He acknowledged that he was fully satisfied with the legal representation that he had been given.

1. In his statement, Mr Koon said of the circumstances leading to this conviction:

“23.  On this occasion I shoplifted a packed (sic) of ‘baseball cards’ from a store in Idaho Falls.  I have no idea why I did this as I had the money to pay for the cards.  I was observed by the store security officer and the Police informed.

24.I made a full admission to the Police who attended and submitted to a search.  The search revealed that I had in my possession one quarter of a gram of Methamphetamine together with a glass pipe.  The Methamphetamine was for my personal use with the pipe and acted to alleviate stress – in a similar way to Marijuana.

25.On 20 June 2000 I attended before Court charged with both shoplifting and ‘possession of amphetamine with intent to deliver’.  I entered a plea of guilty to the shop lifting charge but disputed the ‘delivery’ charge.

26.As far as the shoplifting offence was concerned, I was convicted and placed on a two year probationary period with a suspended term of imprisonment of 90 days and a fine of $US63.00.

27.As far as the delivery charge was concerned, given my plea of not guilty, it was subsequently reduced to a charge of simple possession and I entered a plea of guilty to the charge so amended on 16 October 2000. …” (Exhibit D)

1. In giving oral evidence, Mr Koon said that he was under a lot of stress and suffering depression at the time that he shoplifted the cards.  He suspected that he did not know what he was actually doing.  His mother had found out that she was suffering from a tumour just before this incident.  At the time, he did not know whether the tumour was benign or malignant and he was devastated by the news.  Mr Koon said that he thought that she would be paralysed by it or die from it.  He “just couldn’t deal with it”..  Of his use of amphetamine, Mr Koon said that it made him feel euphoric and is a real relaxant.  He would forget everything and he likened taking amphetamine to taking aspirin to get rid of pain.  “To forget everything that is going on gets rid of all problems”, Mr Koon said.

1. Mr Koon said that he pleaded guilty only to possession of amphetamine and not to possessing it for delivery.  He did not have enough to be considered as selling it.  It was for his personal use only and he had never sold amphetamine.

1. In cross-examination, Mr Koon said that the statement in the police report to the effect that he had said he did not have money to pay for the cards was incorrect.  When asked why both police reports would contain incorrect statements, Mr Koon replied that he was not present when the police officers wrote their reports.  He had no idea why they wrote what they did. 

1. At the hearing, Mr Koon agreed that he had taken three packets of baseball cards.  When asked why he had referred to “a” packet of cards in his statement, he said that he had no reason.  In answer to Mr Winter’s question in re-examination, Mr Koon said that he had paid for one packet of cards.  He had intended to sell the other packet of cards so that he could obtain additional spending money.  At the time, he was not employed. 

Breach of probation

1. The Report of Violation by Mr Koon’s Probation/Parole Officer dated 19 March, 2001 noted that:

“On January 17, 2001, Mr Koon submitted to an urinalysis which tested positive for Methamphetamine and Cocaine.  On March 1, 2001, Mr Koon signed a voluntary statement admitting to using Methamphetamine.” (Exhibit C, Book 2)

Her recommendation was:

“On October 18, 2000, Mr. Koon appeared before the Court for Possession of a Controlled Substance.  He was given a suspended sentence and three years probation.  Before this, Mr. Koon had been on felony probation for Possession With Intent to Deliver.  He was placed on probation for two (2) years.  He was granted a dismissal and discharge on August 12, 1999.  Mr. Koon has a chronic drug problem.  He was given plenty of advance notice as to when he needed to report for in-patient treatment at ARA.  Mr. Koon did not follow through with what he needed to do.  Currently Mr. Koon is incarcerated in the Bonneville County Jail on an agent’s warrant.  …” (Exhibit C, Book 2)

1. At the hearing of his alleged parole violation on 26 March, 2001, Mr Koon denied that he had intentionally avoided going to ARA.  He admitted that he had submitted on 17 January, 2001 to a urinalysis which tested positive to cocaine and methamphetamine and that he had, on 1 March, 2001, signed a voluntary statement admitting to his use of methamphetamine.  At a further hearing on 9 April, 2001, Mr Koon’s attorney said that his client acknowledged that he had not entered the ARA program because he had not had the TB test.  He was not accepted into the programme because he had not had that done and not because he did not intend to get treatment.  When asked by the trial judge whether he wished to make any additional statements or provide any further information, Mr Koon said that he did not.

1. Of his breach of probation, Mr Koon said in his statement:

“29.  Unfortunately, I breached my three year probationary period or bond.  On 16 January 2001 I was told that my mother was required to undergo dangerous spinal surgery in consequence of a ‘tumour’ having been detected in her spinal canal.  My mother and I are very close and I found the news very distressing as it was my impression that the situation was very grave and that I could lose my mother.  I gave way to the emotional stress at the time and used a Methamphetamine pipe for relaxation purposes.  I had never before done so since the imposition of my sentence.

30.After I had used the pipe I regretted my actions and went to my Probation Officer and told him what had happened.  He immediately reported the matter and I was charged with violating my probation.” (Exhibit D)

1. In his oral evidence, Mr Koon said that his breach of his parole occurred right after his mother had undergone surgery for her tumour.  The stress he experienced and his not knowing what was going on was just too much for him to handle, he said, and so he smoked a bit of methamphetamine.  He confessed to his parole officer that he had done so. 

Discharge from parole

1. A letter signed by Lanny J Taylor, the Senior Probation/Parole Officer noted that Mr Koon had been placed on felony probation on 18 October, 2000 and was subsequently placed on the Bonneville County Felony DUI/Drug Court Program in July, 2001.  After almost fifteen months on the course, Mr Koon graduated from it on 6 November, 2002.  Lanny J. Taylor wrote:

“…He completed all treatment and cognitive restructuring courses required; paid all fees, fines, and other costs; and passed a substantial number of drug and alcohol tests. 

Participants do not graduate from this program unless the Drug Court Team is confident they are ready to be successful citizens in the community.  Mark Koon has demonstrated that he has the ability and the desire to be such a citizen.” (Exhibit F)

A letter dated 16 December, 2002 from Mr Ron Baune noted that Mr Koon was the first person admitted into the Bonneville County Drug Court Program (Exhibit F).  Mr Baune confirmed Lanny J. Taylor’s comment.

1. An extract from a newspaper report dated 6 November, 2002 said in part:

“      For Mark Koon, it was an easy choice.

Go to prison or enroll for 16 months in Bonneville County’s Felony Drug Court program to try to overcome a history of drug abuse.
        ‘Basically, it was a last chance’, Koon said of his decision to try the drug court. 
        On Wednesday, the Idaho Falls man became one of the first two people to graduate from the program.
        Koon, convicted in 2001 of possessing a controlled substance, has been drug free for 16 months.  In lieu of going to prison, he’s spent his time taking drug tests, meeting weekly with probation officers and court personnel, going to court and attending counseling and treatment sessions.  He’s also held a job and paid court fines.

‘They give you chances to change’, Koon said.” (Exhibit F)

Drug Use

1. Mr Koon said that he had smoked marijuana eight times before his arrest and had used methamphetamines approximately four or five times.  In addition, he had used cocaine twice but had not used any other drugs.  He had used cocaine in December, 1992 when his parents divorced and just before he confessed to his parole officer that he had used it.  He said that he had confessed to the parole officer his use of both cocaine and methamphetamine.  Mr Koon denied that he had a chronic drug problem.  That is not a description he would use, he said.  If he had a chronic drug problem, he would be dead  by now.  He would call himself as being “a little immature” and not knowing what to do or how to make the right decisions.  Mr Koon said that he had not told his uncle about his having used cocaine but he had told him about his having used marijuana.  He did not think that his uncle needed to know about the cocaine, he said.

1. In re-examination, Mr Koon said that he had told his attorney that much of his problem was due to his long term drug use.  He had said that because his drug use had been spread out over a long period of time and because he did not want to be thought of as a dealer.  When asked whether it would have been better had he just said that he was not a dealer, Mr Koon replied that the worst is assumed when a person is caught with drugs.  If a person is caught with them, then in the eyes of the authorities he or she will keep using them.  The authorities do not pay attention to what a person wants to say, Mr Koon said.  The truth would not have mattered to them because in their eyes he was a chronic user.  It was not true though, he said.  He agreed that he said whatever they wanted to hear but said that he did not deserve to be punished. 

1. In giving evidence, Mr Koon said that he drank alcohol in the past but did not have any problem with it.  He no longer drinks it.  With regard to marijuana and amphetamines, Mr Koon said that he did not have any problem with them before his brushes with the law.  When asked why he had given it away when he felt that he did not have any problem with marijuana in the past, Mr Koon replied that he had used it as a form of relaxant to rid himself of stress and to calm himself down when he was depressed.  Nothing has changed in his mother’s situation that is any less stressful but he has learned to control himself.  He no longer dwells on the past but now looks forward to the future.  His stress is now greater because he has taken more on with a bigger workload.  Mr Koon said that he now enjoys the pressure where once he used to try to hide from it. 

1. Mr Koon said that he has changed his life.  Whereas he used to be angry, depressed and out of control he has become calm and relaxed.  He does not think about problems being severe.  Mr Koon said that he goes to Church, cares for his mother and goes to work.  His friends are those with whom he works.  They go to late movies after work.  His other social activities include fishing, hiking and water skiing and he does them as often as he can.

1. When questioned about Mark’s drug use and whether she was aware he was using drugs Ms Rhodes said that she was aware of his occasional drug use.  When further questioned why she had decided to send Mark to counselling if his drug use was occasional she replied that she could not handle a person on drugs as Mark changed.  She was concerned for her protection as well as her son’s.  Ms Reid questioned the amount of drug use and whether Mark told her about the use of drugs.  Desma said that Mark was taking drugs several times a month and she saw how he changed.  She said that she saw “actions and consequences” as a result of Mark’s drug taking. 

1. Dr Rhodes said in his statement:

“24.  As time progressed, following the divorce of his parents, Mark became withdrawn, insecure and lacking in confidence.  I believe that it was because of this that he began to occasionally smoke Marijuana and to take the occasional drink of alcohol.  This was against the tenets of the Mormon Church and caused great distress to Desma and, I believe even Mark himself.

25.    When Mark got into trouble with the Police he told his mother all about it and also frankly confided in me.  Again, I helped him through the situation by advising him and giving him as much support as I could both by telephone and in person whenever I could make the trip from New York.  I followed the proceedings closely and urged Mark to act on the advice of his lawyers.  He did so without question and the penalties imposed for the offences reflect the lack of serious criminality involved.”

The future

1. If he were permitted to move to Australia, Mr Koon said, he would have to search for employment on the Internet and then apply for vacancies.  He agreed that he had often turned to drugs in the past when he had been short of money.  Money could also be short if he were to come to Australia but Mr Koon did not consider that he would react in the same way.  That is to say, he would not become stressed and turn to drugs again.  There is a possibility that he would become stressed and low on money but drugs are not the answer. 

1. Ms Rhodes said that she would probably return to Adelaide on her own if her son could not accompany her.  She needed help from her brother and sister. 

1. Dr Rhodes gave evidence to the effects of the break up of the marriage between his sister, Desma, and her previous husband and the impacts it had on Mark.  Dr Rhodes said that Mark no longer had a father figure or male companion in the house and was lost without one.  This was increased by the reduced contact he had with his father. “I spoke to him every week on the phone and Mark turned to me for guidance and I became a substitute father”, Dr Rhodes said.  As he had said in his statement, Dr Rhodes said that he believes that Mark became withdrawn, insecure and lacked confidence.  It is why, Dr Rhodes believes, Mark started smoking marijuana and to drink alcohol occasionally.  Mark did this even though it was against the teachings of the Mormon Church to which Desma and her children belonged.  This distressed Desma and even Mark himself Dr Rhodes said.

1. When questioned whether he had a drug problem Mark said “no”.  He said he had in the past used drugs occasionally for relaxation and to get rid of stress. 

CONSIDERATION

Framework of the Act

1. Part III of the Act sets out when a person acquires Australian citizenship. In general terms, Australian citizenship may be acquired by birth, adoption or descent or by a grant. In this case Australian citizenship acquired by descent is relevant and that is the subject of ss. 10B, 10C and 11. Of these, only s. 10C is relevant in this case.  It provides that a person who is registered under it is an Australian citizen.  A person may apply for registration and the Minister must register an applicant for registration if:

“(a)   a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and

(b)that parent:

(i)      is an Australian citizen at the time an application under this section is made; or

(ii)    is dead and at the time of his or her death was an Australian citizen; and

(c)the applicant:

(i)      was born outside Australia on or after 26 January 1949; and

(ii)    is aged 18 years or over on the day on which this section commences; and

(iii)   failed for an acceptable reason to become registered as an Australian citizen under:

(A)section 10B; or

(B)section 11 of this Act as in force at any time before the commencement of section 10B; and

(d)the Minister is satisfied that the applicant is of good character.” (s. 10C(4))

Section 10C commenced on 15 January, 1992.

1. Beginning with s. 10C(4)(c)(iii), the expression “acceptable reason” is defined in s. 10C(5), which provides that:

“… an applicant has an acceptable reason if and only if:

(a)an Australian passport has been issued to the applicant; or

(b)the applicant’s name has been on an Electoral Roll under the Commonwealth Electoral Act 1918; or

(c)the applicant was unaware of the requirement of registration for the purposes of obtaining Australian citizenship by descent under section 10B  or under section 11 of this Act as in force at any time before the commencement of section 10B; or

(d)the applicant has a reason for failing to become registered that is declared           by the regulations to be an acceptable reasons for the purposes of this         section.”

Only one reason is declared to be an acceptable reason by the Australian Citizenship Regulations 1960 (“Regulations”). That is found in r. 7H, which provides that a person has an acceptable reason not to have become registered as an Australian citizen under ss. 10B or 11 of the Act where there is a reason to believe that he or she applied but his or her application was not processed.

1. Section 10C provides for the acquisition of Australian citizenship by descent through an avenue different from that adopted in s. 10B.  Section 10B applies to a person who was born outside Australia and whose birth was registered for the purposes of the section at an Australian consulate within 18 years of his or her birth.  Such a person is an Australian citizen if one of his or her parents was an Australian citizen who had acquired that citizenship otherwise than by descent or was a person who had acquired citizenship by descent and who had, at any time before the registration, been present in Australia for periods amounting in aggregate to not less than two years. 

1. In any form in which it was drafted before the commencement of s. 10B, s. 11 has been concerned with citizenship by descent through a person’s natural mother where the person was born outside Australia or New Guinea before 26 January, 1949.  As Mr Koon was born after that date, the section clearly has no application to him.

Good character – the Australian Citizenship Instructions

1. Although used in several sections in the Act, the term “good character” is not defined by the Act. It is, however, the subject of Chapter 5 of the Australian Citizenship Instructions (“ACI”). The ACI “contain approved policy guidance in relation to the powers of the Act” and have “been prepared for the guidance of all officers who carry out citizenship functions in Australia and overseas” (ACI, paragraph 1.1.3).  Where good character is to be considered in the context of an application for Australian citizenship by descent, Chapter 5 directs decision-makers to paragraphs 5.4.2 to 5.4.17 and, if the applicant for citizenship is offshore or has spent considerable time overseas, to paragraph 5.1.3. 

1. Paragraph 5.4.2 of the ACI state that decision-makers should be guided by the ordinary use of the words “good character” and the ACI continue:

“… It is the responsibility of the applicant to show that they (sic) are of good character.  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.

5.4.3    If there is evidence to suggest that the applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character.  An applicant’s behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.”

1. All the relevant circumstances of a person must be considered but the ACI deals separately with a person’s convictions.  In so far as convictions are concerned, the following paragraphs of the ACI are relevant in this case:

“ 5.4.5 Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6-5.4.15, if there is evidence that the applicant:

(a)has, at any time, been sentenced to:

…

-     2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

(b)…

(c)…

(d)…

(e)…

(f)…

(g)…”

“5.4.7  Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards.  For example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment.  Alternatively, less serious offences would be reflected by the leniency of a sentence and possibly, in the remarks of the sentencing Judge, if available.”

“5.4.9 Consider whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond. The existence of a bond may indicate that insufficient time has elapsed since the commission of the crime to establish the applicant’s good character. However, there may be circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond. (Note that periods on parole or proceedings pending must be considered under ss 13(11), where they come within the scope of that provision.)

5.4.10Consideration should be given to whether or not an applicant’s offence(s) would be regarded as an offence in Australia.  For example, a person charged with political offences in one country may not be considered guilty of a crime in Australia.

5.4.11Consider whether a crime was a one-off occurrence that can now be considered ‘out of character’, or whether the person’s criminal record shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character.  Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13-5.4.17)

5.4.12Consider whether there were any extenuating circumstances relating to the crime being committed.  For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist.  The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

5.4.13Crimes committed by the applicant at a young age may be given less weight depending on the nature of the crime and the applicant’s subsequent record.  It may be considered that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.

5.4.14A person’s previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person’s behaviour and reputation at the time of the decision that has greatest relevance.  Decision-makers must be satisfied that a person is of good character at the time of decision.  A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

5.4.15…

5.4.16The 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, his or her 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 his or her character since last offending.

5.4.17The applicant’s present reputation in the community should also be considered.  The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship.  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.”

Good character – the authorities

The authorities regarding “good character”

1. The concept of “good character” is adopted in both s. 10C of the Act and s. 501(6)(c) of the Migration Act 1958 (“Migration Act”) as well as in other sections such as s. 13 of the Act. In past cases in the Tribunal, the two have been treated as raising similar issues (e.g. ReMlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 (Deputy President Chappell) and cases cited in that decision. The concept has been considered in a number of cases considering s. 501(6)(c) and I will set out a sample of them in the following paragraphs. Before doing so, I note that the test in s. 501(6)(c) and that in s. 10C are slightly different. Whereas s. 501(6)(c) requires that the Minister consider whether a person is “is not of good character”, s. 10C requires that the Minister be “satisfied that the applicant is of good character”.  Although expressed in slightly different terms, the practical result is the same. 

1. In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon said that:

“`Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)

1. After considering the structure and purpose of the Migration Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:

“These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.” (pages 155-156)

1. A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994) and Deputy President McDonald in Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Re Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137. In Prasad, Deputy President McDonald added:

“A decision about whether a person is of good character requires a consideration of an aggregate of qualities.  It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)

1. What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:

“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 …

…

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)

1. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:

“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance.  The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.” (page 324)

“… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis.  However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (page 327)

1. With regard to the last aspect raised by the Full Court, Deputy President Chappell in Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 the Tribunal said that:

   “… The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it …” (page 776)

While there can be no doubt that the acquisition of Australian citizenship is important and, it is to be hoped, treasured, the responsibilities and privileges attached to a person’s being an Australian resident and being permitted to remain in Australia on a permanent basis do not greatly differ.  A major difference between the two relates to the entitlement to vote under the Commonwealth Electoral Act 1918.  The effect of s. 93 of that legislation is that, in so far as persons who come to Australia now are concerned, only those who become Australian citizens are entitled to vote.  Another difference lies in the freedom with which an Australian citizen may enter and leave Australia.  In many other areas, such as an entitlement to social security benefits, a person who is not an Australian citizen but who is a permanent resident will generally have the same entitlements as an Australian citizen although there may be some waiting period before he or she does so.  With these matters in mind, I do not consider that there is much difference in the “standard of good character” to be applied in ss. 501 and s. 10C cases.  Applicants in both instances are ultimately seeking to remain in Australia on a permanent basis.  Regardless of the precise detail of the responsibilities and privileges they enjoy, that means that their applications, and so their characters, must be considered against a backdrop of the level of harm to the public good that would be engendered if they were to be permitted to do so.

Policy and the Tribunal

1. In accordance with the principles expressed in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (Brennan J), a decision-maker:

“… is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute.” (page 640)

The reason for a person such as the Minister adopting a policy in relation to his or her decision-making under certain provisions of the Migration Act was explained by Brennan J:

“… It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another.  Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy.  By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.” (page 640)

1. As Brennan J also said in Re Drake (No. 2):

“Of course, a policy must be consistent with the statute.  It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created.  A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; Drake’s case, supra, at 589, and the cases there cited). …” (page 640)

1. There are occasions on which the Tribunal may think it appropriate to depart from policy but it should only do so after very careful consideration and after bearing in mind principles such as those summarised by Brennan J:

“      When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.  Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.” (page 645)

CONSIDERATION

Policy Statement 24 – does it guide the Tribunal’s discretion?

1. One of the difficulties with the ACI is that they do not contain any statement as to the person who has approved them.  Paragraph 1.1.3 is written in the passive voice which states that:

“The … ACI contain approved policy guidance in relation to the powers of the Act. The ACI has been prepared for the guidance of all officers who carry out citizenship functions in Australia and overseas.

1. Under most provisions of the Act, the power to make the decision clearly rests with the Minister. Where, as in ss. 44A and 46A, another person is given decision-making power, that is clearly stated.  Section 37 of the Act provides for the Minister to delegate his or her powers. There is no question in this case that the Minister’s power to make decisions under s. 10C has been delegated.  Even so, the Minister is not prevented from exercising the powers that he or she has delegated (s. 37(3)).  For all that, there is no statement that the ACI have been approved by the present Minister or her predecessor.  The directions in paragraph 1.1.4 of the ACI to decision-makers in need of advice are limited to directing them to officers of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).  In the context of Chapter 5, however, reference is made to the Minister.  That is that she has directed that very careful consideration should be given to good character in accordance with paragraphs 5.4.6 to 5.4.15 of the ACI.  In view of that statement, those paragraphs at least would seem to have Ministerial imprimatur. 

1. Having considered s. 10C and the cases that have considered the concept of good character both in the context of that section and of s. 501 of the Migration Act, I have concluded that paragraphs 5.4.6 to 5.4.15 of the ACI are consistent with the power that has been given by Parliament to the Minister. As they have the approval of the Minister and in view of the principles in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2), they must be given considerable weight in guiding the exercise of the discretion given in s. 10C.

Is Mr Koon of good character?

1. I will begin with Mr Koon’s convictions.  The evidence of the convictions and the penalties that had been imposed were clear from his attorney’s files.  On one view, it could be said that, in giving his evidence, Mr Koon sought to explain the circumstances of the offences.  The extent to which I may have regard to such evidence has been the subject of consideration in several cases.  These include Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ), Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354 (Fisher, Davies and Lockhart JJ), Minister for Immigration and Multicultural Affairs v Gungor (1982) 63 FLR 441 (Fox, Fisher and Sheppard JJ), Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 (Spender, Gummow and Lee JJ) and Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578 (Davies, Lockhart and Beaumont JJ).

1. These cases were reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313. Her Honour recognised that some legislative provisions operate by reference to the fact that a person has been convicted of a criminal offence. Section 200 of the Migration Act is such a section for it permits the Minister to deport persons to whom Division 9 of Part 2 of the Act applies. Such a person is a person who, as well as meeting other criteria, has been convicted of a criminal offence and sentenced to a period of imprisonment of not less than one year. In those circumstances, Branson J concluded, “… the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ([General Medical Council v] Spackman [[1943] AC 627]), Daniele, Gungor and SRT).”  By way of contrast, where a legislative provision does not operate by reference to the fact of a conviction and a conviction is merely one aspect of the evidence in the case, proof of the conviction is not regarded as proof of the essential facts upon which that conviction was based.  As Davies J said in Saffron v Commissioner of Taxation (Cth) (No 2):

“      A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of certain crime.  If the person has been convicted of a felony, it establishes that the person is a felon.  Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction.  In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth.  But of course the taxpayer does not seek to do so and the fact of conviction itself is irrelevant.  As is stated by G S Bower and A K Turner, The Doctrine of Res Judicata (2^nd ed, 1969), p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction.

… where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based.  But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based.  In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279.” (pages 581-582)

1. Even though it is regarded in these circumstances as part of the evidence and not determinative of the grounds on which the conviction was based, caution should be exercised in considering whether to reach a conclusion that runs counter to those grounds.  Branson J set out the policy considerations that underpin that caution when she said in Minister for Immigration and Multicultural Affairs v Ali:

“… although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a)recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and

(b)limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).” (page 325)

1. Applying these principles to s. 10C of the Act, it is clear that the convictions are not the foundation of the exercise of the Minister’s power. Those convictions are just one part of the evidentiary material against which a person’s good character is determined. The convictions to which reference has been made do not result from proceedings in Australia’s criminal courts but from a court in the United States of America. That a person has been convicted of an offence in another country may, conceivably and in some circumstances, itself be part of the evidence that must be weighed in determining what occurred. There may be occasions when there is very little evidence as to events, procedural or substantive, leading to that conviction.

1. Dr Rhodes queried the system of criminal justice that prevails in the United States of America.  Such queries may be justified in some instances but this is not such an instance.  There is evidence of the convictions themselves but also evidence of procedural aspects and of the matters alleged against Mr Koon.  That is found in the attorney’s notes, the sentencing remarks and the transcripts of the various proceedings.  There is evidence also from Mr Koon both in his written statement and in his oral evidence.  There are inconsistencies amongst the evidence but, when it is examined more closely, I find that the material in the attorney’s file and the court transcripts are consistent with each other.  There are, though, inconsistencies between the attorney’s file and the court transcripts on the one hand and Mr Koon’s evidence on the other.  Furthermore, there are inconsistencies between Mr Koon’s written statement and his oral evidence.  I refer, for example, to Mr Koon’s evidence regarding the circumstances of his first arrest and ultimate conviction for Possession of a Controlled Substance (Marijuana) with Intent to Deliver.  The court transcripts show that Mr Koon told the Judge that Brien Pace shoved a baggy under his seat and that he, Mr Koon, knew that it contained marijuana.  In his written statement to the Tribunal, he said that he had not realised that Brien Pace had hidden a plastic bag containing marijuana.  When he gave oral evidence, Mr Koon said that he knew Mr Pace had been holding a bag but had no idea what was in it.  In relation to the second set of convictions, the evidence in the police reports was that Mr Koon had taken three sets of baseball cards whereas he referred only to “a” packet in his written statement.  He is reported in the police reports as saying that he did not have the money to pay for the cards but he denied that was the position in his oral evidence.

1. Mr Koon’s evidence was also inconsistent in other aspects.  In relation to his first conviction, the reasons he gave for entering a plea of guilty contradicted his statement recorded in the transcript of the court’s proceedings to the effect that no-one was pressuring him to plead guilty and no-one had promised him that the Judge would be easy on him if he did so.  With regard to his breach of probation, Mr Koon said in his statement that he had reported to his probation officer that he had used methamphetamine.  His oral evidence was consistent with his written evidence but it is not consistent with the other written evidence.  The reports of the probation officer show that his use became apparent in a urinalysis.  It was some six weeks later that he signed a voluntary statement admitting that he had used methamphetamine.

1. Having taken all of the evidence into account and having regard to the discrepancies in that given by Mr Koon, I prefer the evidence to be found in the attorney’s files and in the court transcripts.  I find, therefore, that Mr Koon was aware that Brien Pace had marijuana in the car on the first occasion just as he was aware that he possessed methamphetamine on the second occasion. 

1. The sentence imposed on the first occasion indicates that the offence was regarded as being at the lower end of the scale of seriousness.  Mr Koon received a 90 day sentence but it was suspended on his completing a two year probationary period.  The aspects of the sentence other than that of detention indicate a wish by the court to ensure that Mr Koon establish and maintain a healthy and productive life.  I make that finding in light of the condition imposed in the sentence that he obtain substance abuse evaluation and undergo treatment as recommended as well as that he obtain and maintain either full-time employment or part-time employment and part-time study.  The sentence imposed for Mr Koon’s second offence indicates that the court regarded it as a much more serious offence.  The custodial part of the sentence was five years, with a minimum of two to be served.  The conditions that were imposed as part of that sentence were also more arduous than in relation to the first conviction.  They included a custodial sentence of a further 90 day period that could be served on a work release programme and 100 hours of community service.  The conditions relating to his return to a healthy lifestyle were also more closely specified.  Having regard to these matters, I am satisfied that the sentencing Judge considered Mr Koon’s second conviction in relation to methamphetamine as being more serious than the first.  Certainly, he suspended the five year custodial part of that sentence on the conditions that I have specified above but that does not take the offence from being one that has some gravity to being a minor infringement. 

1. I accept that Mr Koon has completed his probationary periods and has no ongoing obligations as a result of his sentences.  On the evidence that I have, there are no outstanding charges pending.  How should I view those offences?  On one view, they could be said to be part of a pattern extending only over a four year period and at a time of stress in a young man’s life.  On the other, they could be said to be part of a wider pattern.  Weighing against the narrower pattern, is the fact that the first offence occurred when Mr Koon was almost 24 years of age and at a time over four years after his parents divorced and four years before his mother’s back condition was diagnosed.  The second occurred at or about the time that his mother’s condition was diagnosed.  While it is natural that he would be upset and even anxious before and after the divorce of his parents, there must be a question as to whether it was still affecting him four years later to an extent where he turned to drugs.  It seems a little unusual that he would have coped for four years and then succumbed to taking marijuana and methamphetamines on a few occasions only.

1. There were only two convictions between 1997 and 2000 but one of Mr Koon’s two probation violations involved the use of methamphetamine.  It was after his conviction for use of methamphetamine, I find, that he was placed on the Bonneville County Court Felony DUI/Drug Court programme.  He first appeared in that court on 23 July, 2001.  Mr Koon denied that he had a chronic drug problem.  On his evidence, he had smoked marijuana only eight times before his arrest and had used methamphetamines approximately four or five times.  His evidence regarding cocaine use was limited to two examples.  Mr Koon’s evidence paints a picture of limited drug use and is supported to a limited extent by his mother’s evidence that she was aware of his occasional drug use.  On closer questioning, she acknowledged that she had seen him taking drugs several times a month.  Her concerns as to their effect on him had led her to take him to counselling.  In view of all of her evidence, I find that Ms Rhodes was at least concerned that her son could be using drugs regularly even if she did not actually know that he was or the extent of his doing so.  When I weigh that evidence with Mr Koon’s evidence that he told his attorney that many of his problems were due to long term drug use and the note in a pre-trial sentence interview that his sister had some concerns over his drug use together with his being placed on the Bonneville County Court Felony DUI/Drug Court programme, I find that Mr Koon was a long term drug user.  He began well before he was arrested on the first occasion and it extended, at one level or another, through his probation period.  Although I accept that journalistic licence may have been used, I note that my finding is consistent with what he is reported in the newspaper to have said regarding his drug use.

1. I accept that Mr Koon has been under stress while caring for his mother and, earlier, by his parent’s divorce.  He attributes his drug taking to those stressful experiences and yet states that he will not resort to taking drugs in the future in order to alleviate any stress.  Certainly, there is no evidence that he has being taking them since.  Some of that evidence is Mr Koon’s own evidence.  I have already commented upon discrepancies within it.  I find that his uncle, Dr Rhodes, was of the view that he had frankly confided in him regarding his drug-taking and yet, I find on the basis of their evidence that he had not told his uncle of his having used methamphetamines or later using cocaine.  Mr Koon has not been open with his uncle who, I find, has given great assistance to him and his family over the years. 

1. Mr Koon, I find, has a tendency to “downplay” what he considers unpleasant or unhelpful to the position he wants to adopt.  The edited information he gave his uncle is one example and the discrepancies in his evidence to which I have already referred are others.  So too are the descriptions he gave of the sentences that he gave his uncle.  On the basis of Dr Rhodes’ evidence, I find that Mr Koon did not mention that he had received a five year custodial sentence.  Regarding his employment, I prefer the evidence in the pre-trial sentence interview that he was unemployed to that of Mr Koon that he was not.  I do so on the basis that it is consistent with the statement in the police officer’s report in relation to the first conviction that he was not employed.  It is also consistent with the condition imposed by the court that he either “either obtain and maintain full-time study or employment” or part-time employment and study.  Had he been employed already, there would have been no requirement that he “obtain” employment and only that he “maintain” it.

1. On the basis of his mother’s evidence, which corroborates that of Mr Koon, I find that he has made a significant contribution to her care since she has suffered from a debilitating back condition.  He has undertaken general housekeeping duties to maintain the house and garden and has done so while maintaining full-time employment.  The hard work and dedication that he has demonstrated in this regard are reflected in the work that he has undertaken for the owners of the Sandpiper Restaurant, Ms Rose Anne Coughlan and Mr Ronald W. Obendorf. 

1. Mr Koon’s hard work and dedication to his mother and to his employment are fine qualities.  They are indicative of a person of integrity and generosity of spirit.  During the Bonneville County Felony DUI/Drug Court Program, he demonstrated strength of character.  I accept that he passed a substantial number of drug tests during the fifteen months of the programme and graduated with a record free of violations.  These are fine qualities but, sadly, in this case, they are outweighed by other aspects of Mr Koon’s character.  Those other aspects are his tendency, as displayed in his evidence to the Tribunal, to give inconsistent evidence and to “downplay” what had happened to the extent that he did not give a fair account of the sentences that had been imposed as a result of his convictions.  This tendency also led him to state that he had signed a voluntary statement that he had taken methamphetamine but to omit to state that he had undergone a urinalysis some weeks before and that his use had been revealed by that test.

1. In the context of the Act, a person’s character must be considered against those traits that the Australian community expects of those who are permitted to live in Australia permanently and to come and go as they please. When I do that, I am not satisfied that Mr Koon is of good character. Even if I were to accept that his drug taking is in the past and that his convictions are matters that should be left in the past as well, his tendencies to give inconsistent evidence and to “downplay” matters that do not show him in a good light are not matters in the past. Those tendencies are very much in the present and were evident at the hearing. They are not tendencies that are compatible with the character of a person who will respect Australia’s laws, treat its people with integrity and consideration. They are not compatible with a person who is of good character as that term is used in s. 10C of the Act. Taking these tendencies into account and weighing them with his past criminal convictions as well as his very favourable work reports and his great assistance to his mother, I am not satisfied that Mr Koon is a person of good character.

1. There is a question whether s. 10C gives the Minister any discretion.  It provides that the Minister “must register” a person who meets all of its requirements but does not say that he or she must not if not all of its requirements are not met.  This is not a question that was raised at the hearing and I will not attempt to answer it.  Should there be a discretion, though, I would not exercise it in Mr Koon’s favour.  Certainly, I accept that Mr Koon’s mother needs his assistance and relies upon him.  At the same time, she desires the companionship and assistance of her brother and sister in Australia.  Mr Koon’s not being able to gain Australian citizenship will restrict his ability to care for his mother should she decide to move to Adelaide to live.  It is a serious matter for him and his mother and for their extended family.  Even when considered with their misunderstanding that he was always an Australian citizen, I do not consider that Mr Koon’s personal situation and that of his mother and family outweigh the general
   considerations that relate to the Australian community. If there is a discretion, I would not register Mr Koon as an Australian citizen under s. 10C even though I am not satisfied that he is of good character.

1. For the reasons I have given, I affirm the decision of the respondent dated 26 November, 2002.

I certify that the one hundred and one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie

Signed:           ................................................................
  R. Crook  Associate

Date/s of Hearing  29 May, 2003
Date of Decision  22 March, 2004

Solicitor for the Applicant            Mr W. P Winter

Winters Solicitors

Solicitor for the Respondent         Ms E. Reed

Australian Government Solicitor