Lowery and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 3087

Lowery and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3087 (24 August 2023)

Division:GENERAL DIVISION

File Number(s):      2022/7130

Re:Joseph Lowery

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:24 August 2023

Date of written reasons:        29 September 2023

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the Tribunal is satisfied that the applicant is of good character for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).             

..........[sgnd]..............................................................

Senior Member Dr N A Manetta

CATCHWORDS

CITIZENSHIP – application for Australian citizenship refused – whether applicant is of “good character” under section 21(2) of the Australian Citizenship Act 2007 (Cth) – applicant’s criminal history considered – serious offending but person’s character can change over time – majority of offending very old – last serious offending in 2014 – alcohol misuse reflected in traffic offences – applicant gave up alcohol in 1996 – applicant’s childhood and family background considered – applicant has stable marital relationship and four children in Australia – applicant has provided substantial economic and emotional support to his children and continues to provide substantial support to his two oldest children  – applicant has been self-reliant – decision under review set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Browne v Dunn (1893) 6 PR 67

KXDZ and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] AATA 175

Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430

Qarkaj and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2273

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; (2008) 103 ALD 467

Sullivan v Civil Aviation Safety Authority  [2014] FCAFC 93; (2014) 236 FCR 555; (2014) 141 ALD 540

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

Zahidy and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2431

REASONS FOR DECISION

Senior Member Dr N A Manetta

29 September 2023

1. After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I read out to the parties with minor amendments. 

2. This is an application by Mr Joseph Lowery seeking a review of a decision of the respondent’s delegate dated 24 August 2022.  By this decision, the delegate refused Mr Lowery’s application for citizenship because the delegate was not satisfied that Mr Lowery was of good character. In these circumstances, the delegate was obliged under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”) to refuse Mr Lowery’s citizenship application. Mr Lowery now seeks a review of that decision in this Tribunal.

   TRIBUNAL’S TASK

3. Hearing the matter afresh on the evidence before me, I must decide whether I am satisfied that Mr Lowery is of good character.  I am to decide the  matter by reference to the situation as at the date of my decision: see VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230. In exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[1] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error.  This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me.  Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.

   [1] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; (2008) 103 ALD 467 at [98] and [141].

4. At the hearing before me, Mr Lowery represented himself and Ms Prasad represented the respondent.  I acknowledge Ms Prasad’s very reasonable and measured advocacy, which well reflected the respondent’s model-litigant obligations.

   STATEMENT OF CONCLUSION

5. I have decided to set aside the decision under review and to substitute a decision that the Tribunal is satisfied that Mr Lowery is of good character for the purposes of section 21(2)(h) of the Act.  I now turn to explain my reasons for this conclusion.

   SPECIFIC LEGAL ISSUES

6. I begin by addressing several legal matters.  First, I accept the respondent’s submission that I must be satisfied of Mr Lowery’s good character before finding in his favour. If I am not so satisfied, I must affirm the decision under review. That follows on a plain reading of section 21(2)(h).  I set out in KXDZ and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] AATA 175 (“KXDZ”)[2] my understanding of what it means for an administrative decision-maker to be “satisfied” of a particular matter, and my reasoning in KXDZ was, I note, informed and guided by the High Court’s decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430. It is sufficient if I refer to the analysis in KXDZ without repeating it.

   [2] At paras [32]ff.

7. Secondly, I was referred by the respondent to certain departmental procedural instructions used in the assessment of citizenship applications.[3]  In KXDZ, I explained my reasons for declining to apply the instructions as a matter of law,[4] although I accept that they may be lawfully issued to departmental officers under the respondent’s direction, in effect as an instruction manual.  I refer again to that discussion, and I would also mention Zahidy and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2431, referred to and extracted in KXDZ at paras [26]ff. I shall not recapitulate the analysis in these oral reasons: it is sufficient to refer to it.

   [3] See Ex R1, 159ff.

   [4] At paras [22]ff.

8. In a case like this, the Tribunal’s function is, in essence, to make findings of fact, evaluate them, and then to ask itself whether it is satisfied that the citizenship applicant is of good character in light of the facts as found.   I now turn to the findings of fact.

   FACTS  AND EVALUATION

9. Mr Lowery was born on 13 November 1965 and was, therefore, 57 years of age at the time of the hearing before me. He was born in Durham in the United Kingdom and holds a United Kingdom passport. He travelled to Australia with his family in 1970 when he was five years of age.  In 1985, when he was almost 20 years of age, he married.  He is still married to the same woman.  They have four children together and 12 grandchildren.

10. Mr Lowery’s family background when growing up involved considerable difficulty. Both parents, he said, were afflicted by alcoholism.  His mother suffered from mental health difficulties as well; and, as I understand his evidence, she was eventually confined to an institution.  In fact, Mr Lowery left home at the age of 14 after his mother had tried to kill his father, he said. This was the evidence he gave to the Tribunal, and I accept it: it was not challenged by the respondent in cross-examination.

11. Mr Lowery first worked sporadically as a carpenter. Aged 21 or 22, he concluded that if he remained a carpenter, he would not advance himself further; and so he decided at that point to improve his situation by becoming a property developer. Despite vicissitudes along the way, he has been particularly successful in that chosen field. He established a private business in which a son also worked. He retired from the business in 2017. He and his wife are very comfortably well off.  Mr Lowery candidly accepted that he had had a drinking problem earlier in his life, but gave evidence, which I accept, that he finally gave up all drinking and smoking in 1996.  He also gave evidence, which I accept, that his marriage is stable.

12. Mr Lowery has, as I have said, four children. I am satisfied that he has assisted them substantially, in the latter part of their lives at least, and cares for them as a responsible parent. He gave evidence, which I accept, that his oldest child, who is 39 years of age, had a work accident recently and continues to suffer from a brain injury.  Mr Lowery has moved to Perth to assist the family.  This son has four children, including one with special needs whom Mr Lowery assists.

13. The second oldest child is 38 years of age and was, until recently, Mr Lowery’s business partner in the property-development business Mr Lowery established and to which I have referred. He is now very unwell indeed, and is being treated in Germany. It is Mr Lowery’s intention to fly to Germany to be with his son and to assist in his convalescence after what will prove to be gruelling medical treatment.  Mr Lowery’s third child is 36 years of age and became a single parent of three children after she was abandoned by her partner. She now has a new relationship.  Mr Lowery’s fourth child is 31 years of age. She has one child and is presently studying nursing. 

14. Mr Lowery  gave evidence, which I accept, that he is actively involved in his children’s lives. The evidence strongly supports a conclusion that he continues to support his two oldest children in a very substantial way, given their challenging health difficulties.  This help is both emotional and practical. It has included payment of very significant medical bills, as well as substantial assistance toward the purchase of a home. He assisted another child by taking in her children for one and a half years after her first partner abandoned her.

15. These are very substantial contributions to his children’s welfare.  Mr Lowery has demonstrated an ongoing commitment to his family that reflects well on him and supports his contention that he is of good character.  I might note at this point that things might easily have gone the other way. Mr Lowery’s mother was confined to a mental health facility suffering from alcoholism and schizophrenia; his brother suicided; and his other brother is also in a mental health facility.  His family has, overall, experienced severe difficulties and his own upbringing was substantially disrupted.   He has achieved much in his life all things considered.

16. I turn now to consider the less favourable aspects of Mr Lowery’s past.  Mr Lowery’s criminal record was before me.[5]  There are a large number of offences until the mid-1990s.[6] There is a further offence dealt with in the Magistrates Court sitting in Holden Hill in 2014.

    [5] Ex R1, 68ff.

    [6] There is also an extensive history of traffic infringements between 1983 and 2022: Ex R2, 399ff.

17. I am content to approach the grouping of the offences in the same way that the respondent did in its Statement of Facts, Issues and Contentions (“SOFIC”).[7]  First, there have been dishonesty offences which are detailed at para [33] of the respondent’s SOFIC.  There are four offences dealt with in the Cobham Children’s Court in 1982 and 1983.[8]  All of these offences were committed while Mr Lowery was still a minor.  In 1988, Mr Lowery appeared in Blacktown Local Court and was convicted of two counts of stealing in relation to which he received a sentence of six months’ periodic detention together with an order to pay compensation of $5,000 and $2,100 (approx.) respectively.[9]  These were not trivial amounts.  These are serious offences committed by a young adult and the periodic detention marks the seriousness of the offending. The year 1988 is, however, some 35 years ago, and that is a factor that I must weigh.

    [7] Ex R3.

    [8] Ex R1, 110.

    [9] Ibid.

18. The respondent refers at para [31] of its SOFIC to three instances of offences involving violence.  I agree with the submission put by the respondent that violent offences are inconsistent with good character. There is no doubt that as a result of the commission of these offences, Mr Lowery was not of good character at that point in his life.  Again, however, I bear in mind that the last of these convictions dates back to September 1992, which is now approximately 31 years ago.  Indeed, the offence in question appears to have been committed in July 1989, which is now 34 years ago.[10]

    [10] Ex R2, 185.

19. Mr Lowery has also been convicted of a number of traffic offences and infringements. These are dealt with at paras [26] – [30] of the respondent’s SOFIC.  The offences referred to in para [26] (a) to (f)  range in date from 1984 to 1995. There are enough offences to make it clear that Mr Lowery must have been frequently misusing alcohol before driving, and was also defiant by driving when disqualified.  The frequency of offending of this type is important because it demonstrates the development of a pattern of antisocial behaviour. I accept that driving whilst having an excess of alcohol in the blood is especially dangerous because it exposes the community to a substantial risk of harm. As I have indicated on previous occasions, I accept that driving under the influence of alcohol can lead to serious road accidents.  These can have profound, and indeed life-altering, consequences for others.  Driving in these circumstances is very antisocial.  I do note, however, that the last of these offences was dealt with finally in the courts in June 1996, which is some 27 years ago as at the date of my decision.  I note that the absence of any alcohol-related offending since that time is consistent with Mr Lowery’s evidence that he gave up drinking completely in 1996.

20. I was also referred to the applicant’s extensive history of traffic infringements from 1983 onwards.[11]  I accept that the record is very poor up to 1996, which, as I have said, is the year Mr Lowery gave up drinking.  After that year there are a number of traffic infringements involving excessive speed, failing to give way at a give-way sign, failing to stop when required by a sign, disobeying no turn signs, driving negligently, and using a mobile phone while driving when not permitted to do so.  After January 2015, namely in the last eight and a half years, there have only been three traffic offences. The first (in 2020)[12] involved speeding by not more than 10 km an hour over the speed limit; the second (in 2021)[13] involved using a mobile phone while driving; and the third (in June 2022)[14] involved crossing a lane unsafely.  Whilst I find the traffic history overall to be of concern, I do note that in the last eight and a half years, there has been a marked drop off in offending.  This latter part of the record, when considered in isolation, does not give rise to particular concerns.

    [11] Ibid, 399ff.

    [12] Ibid, 399.

    [13] Ibid.

    [14] Ibid.

21. The next matter the respondent brought to my attention was Mr Lowery’s conviction for driving a heavy commercial vehicle on 8 April 2014 for an excessive number of hours without a rest break.[15]  This was classified under the Heavy Vehicle National Law as a “severe-risk breach”.  Mr Lowery gave evidence that he had mixed up time zones when crossing state borders, but I do not regard that as an adequate excuse or even as a matter of mitigation.  He was convicted in the Holden Hill Magistrates Court and fined $2000. Driver fatigue is a serious issue in our community. That offending took place some nine years ago, however.

    [15] Ex R1, 109.

22. Pausing here, I do note that Mr Lowery’s offending, taken as a whole, is serious; and, as I said, it is clearly the case that at an earlier stage in his life, Mr Lowery was not a person of good character.  I also felt that much of Mr Lowery’s oral evidence indicated that he had failed, at least to some degree, to appreciate that his offending was unjustified and antisocial.   There was also, I believe, a too-ready willingness to excuse the behaviour as unintended or, in one case involving what he said was a third party’s assault upon his wife, as justifiable or excusable.  Mr Lowery’s evidence did not demonstrate a particularly high degree of insight into his offending or in the consequences it had for his victims, or, in the case of his driving offences, into the risk to which he exposed community members.  But the last serious offence dates from April 2014, which is nine years ago.  Apart from the offending in 2014, there is no recorded conviction against Mr Lowery’s name since 1996 in his official criminal record, which is 27 years ago.

23. There is another aspect of Mr Lowery’s character which I need to consider.  This concerns answers Mr Lowery gave on three application forms. On two applications (each for a resident return visa in 2016 and 2022),[16] Mr Lowery answered “no” to the following question:

    Has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

    [16] See annexure B to Ex R3.

24. On the third application, which is the citizenship application itself, Mr Lowery, was required to answer the following question:

    Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any “spent” convictions)?[17] 

    [17] Ex R1, 47.

25. To this question, Mr Lowery answered “yes” and in the “Give Details” section, he answered “use mobile while driving”.

26. The respondent submitted that each of these questions was answered incorrectly, and further submitted that deliberately incorrect answers were given.

27. I am prepared to act on the basis that the answers on the resident return visa applications were incorrect.  But I do note that the question is somewhat oddly phrased.  Mr Lowery indicated that he thought it referred to offences committed overseas. That is a plausible construction in context because one would have thought that if the expression “any country” in the question had been intended to include Australia, a clearer indication would have been given.  On Mr Lowery’s construction, the answer was correct; but I proceed on the basis that the better construction is that the question also intends to seek information relating to offences in Australia, and I am also prepared to assume that Mr Lowery ought to have appreciated that fact.

28. The answer to the question in the citizenship application form is clearly incorrect on a proper construction of the question.  Mr Lowery has given various explanations for his answer to this question.  First, he indicated that he suffered from a form of dissociative amnesia as a result of significant psychological trauma during his childhood teens and early adult life.  Secondly, he has said that the Department would have had full access to his criminal history, and it was not his intention to deceive or obstruct.[18]  In his oral evidence, Mr Lowery referred to the inconvenience of completing the form via an app on his phone and to his not giving sufficient consideration to the question, and he also gave evidence of an assumption on his part that the question required him only to refer to convictions in the last five years or so (as is the case, he said, with insurance forms he has filled out in the past).  This explained his reference to the relatively recent offence of driving while using a mobile phone.  He also maintained in his evidence that he could not have included all his offences because the space allowed for in the electronic form was too small.

    [18] Ibid, 13.

1. The respondent submitted that the answers given by Mr Lowery in respect of the three forms were deliberately false.  It is, therefore, necessary for me to address that matter.  I note that the respondent put this contention clearly in its SOFIC. The cross-examination of Mr Lowery in this regard did not extend very far, however, and it was not directly put to Mr Lowery that he had been deliberately deceitful on his forms and was lying to the Tribunal in maintaining that his answers were honestly given.

2. I have approached the evaluation of Mr Lowery’s oral evidence and of the written evidence before me as follows.  There was no obligation on Ms Prasad in this case to put to Mr Lowery a direct question impugning his truthfulness.  The so-called rule in Browne v Dunn (1893) 6 PR 67 does not apply to the Tribunal: see Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 236 FCR 555; (2014) 141 ALD 540 (“Sullivan”) at para [46], and paras [149] - [151]. In weighing the evidence, however, I should bear in mind that the respondent has asked me to make a finding that Mr Lowery deliberately provided false information to the Department on each of the three applications, which is a criminal offence (and, inferentially, that he lied to the Tribunal in his oral evidence having taken an oath to tell the truth). These are serious findings of fact to make. In Sullivan, for example, the plurality of the Court said at [111]:

   Some findings of fact, however, have been long-recognised as calling for considerable caution before being made and for care being exercised in respect to (sic) the evidence upon which the finding is made.  Findings as to a party or a witness having engaged in fraud or having lied are but examples.

3. On the evidence before me, I am not prepared to make a finding of fact that Mr Lowery lied on any of his forms or that he lied to the Tribunal.  I do accept that there is a degree of inconsistency and quite some self-justification in the explanations offered by Mr Lowery as to why the citizenship-application question was answered in the way it was. But an honest person, when thinking about an answer in retrospect, frequently engages in thought processes that speculate as to why a particular answer was given, without being able to recall the reason.  Of course, dishonest people do fabricate excuses.  I am mindful of that.  But I do not regard the inconsistencies in this case or Mr Lowery’s measure of self-justification as firm indicators of a dishonest mindset; although it is possible that they were.   I bear in mind the caution I should exercise before finding that Mr Lowery lied in his answers in the forms, as the plurality in Sullivan suggests I should.  All in all, I am not prepared on the evidence before me to make that finding.

4. I am prepared to proceed, however, on the basis that the answers Mr Lowery gave are both wrong and careless.

   CONCLUSION

5. I now ask myself whether or not, as at the date of my decision today, I am satisfied that Mr Lowery is of “good character” having regard to the findings I have made.  I refer again to what I put in KXDZ as to when an administrative decision-maker can be said to be “satisfied” in respect of a particular matter.  I should have an “actual persuasion” of the matter in issue,[19] in this case of the goodness of Mr Lowery’s character as at the date of my decision.

   [19] See KXDZ and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] AATA 175 at [33]ff.

6. The case-law in this area makes it clear that even serious criminal offending is not an insurmountable obstacle to a decision-maker being satisfied of a person’s current good character when that offending is many years old.  I recently made certain observations in this regard in Qarkaj and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2273 that I believe are pertinent. I said in that case at para [30]:

   The concept of “good character” has been discussed in a number of decisions including the Federal Court authority of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; [1996] FCA 663. As has been made clear, over time the correct characterisation of a person’s character within the two categories of “good” and “not good” can change. The effluxion of time coupled with the absence of behaviour that negatively impacts character, together with the presence of positive character traits and contributions to Australian society, can result in an applicant becoming a person of good character.

7. I must weigh the entirety of the evidence, of course.  The offending has been serious but for the most part it is very old, and the 2014 offending involving the driving of a commercial vehicle for excessive hours, while serious, is also nine years old.  On the findings I have made with respect to the forms, I take into account the carelessness with which Mr Lowery approached their completion; but, as I have said, I do not find that they were dishonestly completed.

8. I weigh also the family responsibilities and tasks of which Mr Lowery has acquitted himself over a number of years.  I accept that he was still offending at a time when he had young children.  His decision to stop drinking, a necessary one, was made in 1996.  His two oldest children would have been teenagers at that stage, however, and the children could well have been exposed to disruption caused by Mr Lowery’s behaviour.  But there is no doubt in my mind that since 1996, he has done what is expected of responsible Australian community members; namely, to offer moral and practical support to their children and to attempt to maintain a stable family environment.  He has also worked hard over his life and has been substantially self-reliant.

9. In all the circumstances, I am satisfied ‒ that is, I have an “actual persuasion”[20] ‒ of Mr Lowery’s good character as at the date of my decision today.  It follows that I should set aside the decision under review and substitute a decision that the Tribunal is satisfied of the applicant’s good character for the purposes of section 21(2)(h) of the Act.    

   [20] See KXDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 175 at [33]ff quoting from Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430 at [38].

   I certify that the preceding thirty-seven (37)

   paragraphs are a true copy of the reasons

   for the decision herein of Senior Member

   Dr N A Manetta

   …[sgnd]…………………………..

   Associate

   Dated: 29 September 2023

   Date of hearing:  22 August 2023

   Advocate for the Applicant:      Self-represented

   Advocate for the Respondent:  Subasha Prasad,
     Minter Ellison