Langi and Minister for Immigration and Multicultural and Indigeno Us Affairs

[2003] AATA 831

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 831

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/31

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Fine Langi

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date26 August 2003

PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with the direction that the Applicant is of good character as required by s 13(1)(f) of the Australian Citizenship Act 1948.

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

RP Handley
  Deputy President

CATCHWORDS

CITIZENSHIP – application for Citizenship – examination of the Applicant’s immigration history – examination of the Applicant’s criminal record – examination of the meaning of ‘good character’ – held that the Applicant should be considered of good character – decision of the Respondent set aside – matter remitted to the Respondent with a direction that the Applicant is of good character as required by s 13(1)(f) of the Act.

Australian Citizenship Act 1948 ss 13(1)(f)

Australian Citizenship Instructions

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

REASONS FOR DECISION

26 August 2003 Mr RP Handley, Deputy President           

1.      This is an application by Fine Hafoou Langi (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 20 December 2002 to refuse a grant of Australian citizenship to the Applicant.

2. At the hearing, which was held in Wallsend near Newcastle, the Applicant represented himself and the Respondent was represented by Kirsty Howey, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the Applicant at the hearing. Oral evidence was given by the Applicant in person and by Ray Boyce by conference telephone.

Background

3.      The Applicant, Mr Langi, was born in Tatakamotonga, Tonga, on 17 August 1953 (T p20) and is aged 50.    He arrived in Australia on 29 November 1974 and became a permanent resident on 26 August 1976 (T p21). 

4.      On 15 July 2002, Mr Langi lodged an Application for Citizenship with the Respondent’s Parramatta Regional Office.   On that application, he ticked the answer “Yes” to the question “Have you ever been convicted of, or found guilty of, ANY offence?”, but failed to provide details, as requested.  He also ticked the answer “Yes” in response to a question asking whether he had ever been confined in prison and stated that he had spent four months in Cessnock Jail for drink driving (T p23).

5.      On 7 August 2002, Mr Langi had an Australian citizenship interview conducted by Ray Boyce of  Australia Post’s Charlestown office.  (T p29).

6.      On 16 September 2002, an officer of the Respondent wrote to Mr Langi requesting that within 14 days he give reasons for not declaring all of his convictions from 1977 to 1998, provide a statement that his character had changed since last offending, and provide character references and any other information he would like the Department to consider in making its decision (T p39).  Mr Langi responded to this request by letter of 20 September 2002 (T10).

7.      Mr Langi has the following criminal history (T p33):

Court Date               Offence  Sentence

23.5.1977                 PCA/Unlicensed Drive       9 months Disqualification

12.2.1983                 Low range PCA                   Fined $400

9.2.1984  Assault  Fined $1500

3.8.1984  Assault  Fined $150

6.1.1988  Assault Female                   3 years good behaviour
  bond/fined $400

8.4.1988  Appealed against                Appeal dismissed.

conviction of 6.1.1988        In lieu 6 months periodic detention

8.4.1992  1 – Assault occasioning     Fined $300

actual bodily harm

2 – Assault occasioning     Fined $500
  actual bodily harm

23.10.1992               Indicted for Accessory        2 years supervised

before the fact to                 probation and parole

Malicious Damage

20.7.1992                 Mid range PCA  Fined $500/disqualified

4 months

21.7.1997                 Not report for periodic        On each count, a fixed

detention ( 7 counts)          term of 6 weeks

(s 80AA Warrant)

16.6.1993                 Stealing/Plates calc            Unins MV/GIC

to receive/Unreg MV/

Fail to pay for Meal

17.9.1997                 Larceny as a Bailee            Periodic Dention 12 months

8. On 20 December 2002, a delegate of the Respondent determined that Mr Langi should not be granted citizenship on the basis that he was not of good character under s 13(1)(f) of the Australian Citizenship Act 1948 (“the Act”).   On 8 January 2003, Mr Langi lodged an application for a review of this decision by the Tribunal.

Relevant Legislation

9. Section 13 of the Act provides that Australian citizenship may be granted:

13 (1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

…

(f)        the person is of good character;

10. Whilst the term “good character” is not defined in the Act, the Australian Citizenship Instructions (“the Instructions”) provide that decision-makers should be guided by the ordinary meaning of the words (Instruction 5.4.2) (T p16). The Applicant is presumed to be of good character unless there is evidence to the contrary, such evidence being in the form of a serious criminal record (Instruction 5.4.2). The decision maker must take into account whether the applicant was sentenced to a term of imprisonment of 12 months or more or two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is two years or more (Instruction 5.4.5(a)) or whether the applicant is a serious repeat offender (Instruction 5.4.5(b)).

11.     The decision-maker is also required to consider the seriousness of the offences committed by the applicant according to community standards (Instruction 5.4.7);  whether the applicant is on an existing good behaviour bond (Instruction 5.4.9);  whether the applicant’s criminal record indicates a pattern of unlawful behaviour (Instruction 5.4.11); whether the crimes were committed at a young age and the applicant may have now matured (Instruction 5.4.13); the applicant’s behaviour and reputation at the time of the decision (Instruction 5.4.14);  and the applicant’s present reputation in the community (Instruction 5.4.17).

Evidence

Fine Langi

12.     Mr Langi said he first came to Australia in 1974 and was granted permanent residency in 1976.  He has 10 children by four mothers in the Newcastle area, more children on the Central Coast and more in Sydney.  He expects one further child to be born of which he is the father in about six weeks time.  He maintains contact with all his children.  Until recently, he had his two youngest children living with him – a boy aged 13 and a girl aged 15.  To avoid another Family Court dispute, he agreed to his son going to live with his son’s grandparents and, very recently, to his daughter returning to live with her mother – even though Mr Langi had residence.

13.     Until very recently, Mr Langi was in receipt of the Sole Parent Pension but is now receiving Newstart Allowance.  He is living on his own..  He has not had a job since 1992 because of the need to care for his children and because of protracted Family Court disputes.  Some of the mothers were on drugs and did not care for the children properly and did not ensure that they went to school.  They only sought to keep the children in order to be able to claim the Sole Parent Pension.  Mr Langi spent his time caring for the children and making sure they were safe.

14.     Mr Langi is now looking for work with the assistance of the job network in Charlestown..  His last job in 1992 involved security work but he also did labouring work and worked in nightclubs and bars.  He said it would be difficult to obtain references from his former employers because of the length of time since he has worked and because many of them are no longer in business or are themselves receiving Social Security benefits.

15.     Mr Langi said he does not deny his criminal convictions and has not sought to hide them.  He acknowledged that he served four months periodic detention for an offence in 1988 and 12 months periodic detention for a conviction 1991.  The 1992 District Court matter involved arson at the Phoenix Night Club.  Although he was not involved in this, he was advised by his solicitor to plead guilty rather than fight the charge in court.  Similarly in 1988, the conviction for “Assault Female” was because the person with whom he lived made a complaint and he was advised to plead guilty, although he denies having assaulted her.  This person – Laurie Bell – has provided a reference for Mr Langi attesting to his good character (A2).

16.     With respect to the 1993 charges, Mr Langi said he agreed that his solicitor would plead guilty for him in respect of these charges and Mr Langi did not attend court.  He went to see the police about this in 1997 and was sentenced to 12 months weekend detention.  Mr Langi said he does not ask for sympathy.  He is stuck with his record and very much regrets it.

17.     Mr Langi said after his parents died in 2000 and he returned to Australia after attending their funerals in Tonga, he decided that because he expected to spend the rest of his life in Australia, he should apply for Australian citizenship.  Having obtained the application form, he phoned Newcastle Police Station to ask for a copy of his record because he could not remember the details he was asked to provide in answer to Question 43.  The Police told him that they did not provide copies of criminal records and that, in any event, the Department would undertake a police check and obtain a copy of his record in processing his application.

18.     Mr Langi therefore phoned the Department and told them what the Police had advised.  The departmental officer to whom he spoke told him to put down what he could remember on the form and leave the rest blank.  This is why Mr Langi inserted “A” in the box for details (of offences of which convicted) but otherwise left it blank, and against “B” (imprisonment served) stated “4 months in Cessnock Jail for drink driving”..  This was the only period of full-time imprisonment that he served – the other imprisonment involved periodic detention.

19.     Mr Langi said he believes the Department refused his application because they thought he was lying.  Yet he did exactly what he was told to do in filling out his application.  When he was interviewed about his application at Charlestown Post Office, he drew the interviewer’s attention to his answer to Question 43 and explained about his contacting the Police and then the Department.  The interviewer told him his answer was OK.

20.     On 19 September 2002, Mr Langi received the Department’s letter of 16 September 2002 (T9) asking him to respond within 14 days.  On 20 September 2002, he phoned the Department and spoke to a person called Robyn.  She told him that she would make an entry on his computer record to indicate that he had phoned and asked him to write a letter setting out the advice he received from the Police and the departmental officer.  He did this in his letter of 20 September 2002 (T10).  Mr Langi said he was surprised to find out that, at this time, the Department already knew of his convictions having received “CrimTrac” information from the Police on 21 August 2002 (T8).

21.     In early December 2002, Mr Langi phoned the Department to see how his application was progressing.  He was informed that weekend detention was treated as full-time imprisonment, which he had not known previously.  Mr Langi said the Department did not phone him as they claim – he phoned the Department.

22.     Mr Langi was asked about the character references he submitted (T10 and A1 to A8).  He said all his referees knew that he had some convictions, but did not know the specific details.  Sharee Harrison, a referee and one of his former partners, probably knew of most of his convictions.

Ray Boyce

23.     Mr Boyce said he has worked at Charlestown Post Office since 1975.  He conducts an average of 30 to 40 citizenship interviews a year and has no recollection of Mr Langi or of the specific interview.  In relation to the Australian citizenship interview form (Form 126P) that he completes as the interviewer, his practice, in accordance with the instructions given to interviewers, in respect of a person who has not completed the box requesting details in respect of affirmative answers to Question 43 on the Australian citizenship application, is to ask whether he or she wants to add anything.  He would then make a note on Form 126P against Part 7 of having done so.

Submissions

Respondent

24. Ms Howey, for the Respondent, noted that the phrase “good character” is not defined in the Act but that good character requirements are discussed in the Instructions. She said Mr Langi committed a number of serious offences, some involving violent behaviour, between the age of 23 and 40. The fact that he continued to offend until the age of 40 suggests rehabilitation is unlikely although the Respondent concedes that it is 10 years since Mr Langi last committed an offence.

25.     Ms Howey contended that Mr Langi failed to disclose his convictions in his Australian citizenship application form and submitted that the Tribunal should not accept his evidence about this, especially in the light of Mr Boyce’s evidence of his practice of asking applicants about their answers to Question 43 of the application form.  Ms Howey said it is not credible that Mr Langi could not recall any details of his convictions.

26.     Ms Howey submitted that the character references supplied by Mr Langi were from friends and ex-girlfriends and were, therefore, likely to be favourable to Mr Langi.  She noted that Mr Langi has been unemployed since 1992 and suggested that had he been employed, this might have assisted his family.  In conclusion, Ms Howey said the Respondent contends that Mr Langi does not pass the character test.  Citizenship is a privilege not to be bestowed lightly: ReFenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at para 8.

Applicant

27.     Mr Langi said Mr Boyce had Mr Langi’s application form with him at the interview and must have seen how Mr Langi had answered Question 43.

28.     Mr Langi said his main point is that he did not lie.  He was truthful at all times in his dealings with the Department.  He does not deny his criminal record although he does regret it.  It is now 10 years since his last offence.  He has not had a job since 1992 because he has been looking after his children.

Consideration of the Law and Findings

29. The issue for the Tribunal to decide is whether Mr Langi satisfies the good character requirement set out in s 13(1)(f) of the Act. The Tribunal notes the guidance afforded by the Instructions, cited above, in particular in relation to a person’s criminal record. The tribunal finds that Mr Langi has been convicted of a number of offences in the Court of Petty Sessions/Local Court for which he has been fined and on one occasion has been convicted in the District Court and fined and placed on probation. Mr Langi has on two occasions been sentenced to periodic detention in the District Court. A number of offences involved assaults for which Mr Langi was fined.

30.     Mr Langi claims that on several occasions he pleaded guilty on the advice of his solicitor and did not actually commit the offence with which he was charged.  In particular, he denies the offence of “Assault Female” noting that the person whom he was supposed to have assaulted, Laurie Bell, had provided a reference as to his good character (A2).  However, he did not seek to deny his record, for which he expressed his regret.  The Tribunal notes the last offence with which he was charged occurred 10 years ago in 1993.  In the Tribunal’s opinion, most of the offences of which Mr Langi was convicted were of a less serious nature, judging by the fines received.  The more serious offences seem to be indicated by the two periods of periodic detention.

31.     The Tribunal accepts Mr Langi’s evidence that he has not been employed since 1992 as a result of the need to care for his children of whom he has a large number, and with the additional commitments arising from Family Court proceedings.

32.     The Tribunal found Mr Langi to be a credible witness and believes his account of the events in relation to his completing his Australian citizenship application.  The Tribunal finds that he did not deliberately seek to misrepresent his criminal record in that application – relying on advice from the Police and a departmental officer that details of his convictions would be obtained by the Department and that he had only to include what he remembered.  The Tribunal places no weight on Mr Boyce’s evidence given, understandably, that he had no recollection of interviewing Mr Langi, and since he made no note on the Form 126P of having discussed with Mr Langi his incomplete answer to Question 43 of his application.

33.     Mr Langi has produced a number of character references.  These include a reference from his landlord (A1), the son of his former landlady (A4), the President of a Bowling Club who is a Justice of the Peace (A3), Mr Langi’s local newsagent who is also a Justice of the Peace (A6), two former partners (A2 and A7) and three other friends (A5, A8 and T11).  All attest to his good character.  A number refer to Mr Langi being an honest and caring person and having “turned a new leaf” (A2).  Three make reference to Mr Langi’s past problems with the law and Mr Langi said all his referees were aware of his having had criminal convictions although not, in most cases, of the specific offences.

34.     The Tribunal had regard to the Instructions, noting that decision-makers are referred to the ordinary meaning of the phrase “good character” (Instruction 5.4.2).  As the Full Federal Court recognised in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at para 8, the concept of good character is concerned with a person’s “enduring moral qualities”. As para 5.4.3 of the Instructions state, this does require that a person’s behaviour has to be faultless; rather it is matter of considering the aggregate of the person’s qualities against ordinary community standards of behaviour.

35. Having heard Mr Langi’s evidence, considered his criminal record and the fact that it is now 10 years since the last offence was committed, and having had regard to his character references, the Tribunal is satisfied that Mr Langi has rehabilitated and should be considered of “good character” according to ordinary community standards. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that Mr Langi is of good character as required by s 13(1)(f) of the Act.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  5 August 2003
Date of Decision  26 August 2003
Representative for the Applicant               Self represented

Representative for the Respondent        Ms K Howey, Solicitor