Martin and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 468
•13 March 2018
Martin and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 468 (13 March 2018)
Division: GENERAL
File Number(s): 2017/3508
Re: Colin Lee Martin
APPLICANT
Minister for Immigration and Border ProtectionAnd
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:13 March 2018
Place:Melbourne
The Tribunal affirms the decision under review
[sgd]........................................................................
Dr Damien Cremean, Senior Member
CITIZENSHIP—application for citizenship by descent—whether Applicant of good character—lengthy criminal record—risk of repeat offending—community concern—decision under review affirmed
Legislation
Australian Citizenship Act 2007(Cth) s 16(2)(c)
Cases
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132Secondary Materials
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016REASONS FOR DECISION
Dr Damien Cremean, Senior Member
13 March 2018
Introduction
Colin Lee Martin, the Applicant, applies to this Tribunal for review of a decision of the Respondent, a delegate of the Minister for Immigration and Border Protection dated 27 April 2017.
The delegate, by that decision, refused Mr Martin’s application for citizenship by descent made under section 16 of the Australian Citizenship Act 2007 (Cth) (‘the Act’) on the ground that the delegate was not satisfied that he met the good character requirement in section 16 (2)(c) of the Act.
LEGISLATION AND POLICY
Section 17(1A) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
Section 16(1) of the Act states that a person may make an application to the Minister to become an Australian citizen.
Section 16(2)(c) of the Act states that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen:
Persons born outside Australia on or after 26 January 1949
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen:
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application--the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application.
In interpreting and applying the Act, I also consider the Citizenship Policy (‘Policy’), issued by the Department. The Policy must be taken into account when considering a matter.
Relevantly, p 147 of the Policy lists the features of good character. Included in this list are the following:
·respect and abide by the law in Australia and other countries
…
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
Background
The Applicant’s mother, Tracey Lee Martin (nee Peart), was born in Carlton, Victoria, on 22 October 1965.
The Applicant’s father, Neil Martin, was born in Toronto, Canada, on 12 October 1966 and is a Canadian citizen.
The Applicant, Colin Lee Martin (Mr C L Martin), was born in Canada on 8 January 1992 and came to Australia on 21 October 1994 as an infant. He therefore falls within the opening words of section 16(2) of the Act, born outside Australia.
Neil Martin came to Australia to live with his wife Tracey Lee Martin and their two children (the Applicant and his brother Blake) in 1994. They lived as a family unit for about 10 years, until Neil Martin and Tracey Lee Martin separated. Mr Martin and his brother stayed with their mother following the separation but continued regularly to see their father.
Neil Martin is now in a new relationship with Susan, his partner of 11 years.
For some years after his separation from Tracey Lee Martin, Neil Martin says he noticed that his son Mr C L Martin had started to change his behaviour.
Neil Martin says he found out about this, in particular, via a friend whose son was a friend of Colin’s. He learned that Mr C L Martin had been in trouble with the police and had been seen at the Ringwood Magistrates’ Court a few times.
Mr C L Martin has never left Australia since arriving as a 2 year old in 1994 and has done all his schooling in Australia.
Mr C L Martin’s school record over the years is not a good one. A report from Reconnecting Youth dated 24 November 2005, for example, says that [w]hile there have been glimpses of promise it is evident from all his classes and recreational time at Reconnecting Youth, that at the moment, Colin lacks the maturity and focus required to succeed at mainstream school.
An earlier report from the Principal of Upwey High School attached to a letter dated 14 July 2005 is to similar effect. He wrote that Colin is easily distracted in class and lacks the ability and or willingness to stay on task for any length of time. He said this results in interaction with other students which leads to both verbal and physical interference. He said this also causes confrontation with teachers which heightens Colin’s aggression towards both the teacher and other students. He added that Colin is often involved in verbal and physical altercations in the playground and that some of these are caused by his ability and willingness to bully and harass other students.
Of even greater concern in the present context is that over the years also, beginning in March 2007, Mr Martin has committed numerous offences, many of them serious, and has been dealt with by the courts on many occasions accordingly.
The Applicant’s criminal record is as follows:
Court Date Offence Court Result Ringwood Magistrates Court 10/09/2015 Unlicensed Driving (2 Charges) Refuse Undergo Breath Test
Use Unregistered Motor Vehicle- Highway
20. Convicted and a Community Correction Order for 6 MONTHS.
Unpaid Community Work Perform 62 hours of community work.
Ringwood Magistrates Court 05/03/2015 Intentionally Damage Property (3 charges) 21. Convicted and a Community Correction Order for 15 MONTHS.
22. Unpaid Community Work Perform 100 hours of community work.
Pay compensation $2069.30
Ringwood Magistrates Court 05/03/2015 Dishon U/take in Retention Stolen Goods
Trespass on Land Owned by Roads Corp (3 charges)
Convicted and a Community Correction Order for 15 MONTHS.
23. Unpaid Community Work
Perform 100 hours of
Ringwood Magistrates Court 05/03/2015 Intentionally Damage Property 24. Convicted and Unpaid Community Work
25. Pay compensation $2069.30
Ringwood Magistrates Court 18/08/2014 Refuse Undergo Breath Test (2 Charges) 26. ON EACH CHARGE :
27. Convicted and a Community Correction Order
28. for 12 MONTHS.
29.
30. Licence cancelled and disqualified for 2 years.
Ringwood Magistrates Court 18/08/2014 Drive Whilst Disqualified (3 charges) On each charge:
31. a Community Correction Order
32. for 12 MONTHS.
33.
34. DISQUALIFIED from driving for 6 months.
Order on licence effective
Ringwood Magistrates Court 18/08/2014 Theft-From Shop (Shopsteal) 35. Convicted and a Community Correction Order for 12 MONTHS. Ringwood Magistrates Court 18/08/2014 Carry Dangerous Article In Public Place 36. Convicted and a Community Correction Order for 12 MONTHS. Ringwood Magistrates Court 07/11/2011 Criminal Damage (Intent Damage/Destroy) (8 Charges) ON EACH CHARGE:
3 months detention in a Youth Training Centre.
Melbourne County Court 04/11/2011 Armed Robbery 2 Years Youth Justice Centre
To pay $400.00 compensation
Ringwood Magistrates Court 28/02/2011 Attempt To Commit Indictable Offence
Go Equipped To Steal/Cheat
ON EACH CHARGE:
9 months detention in a Youth Training Centre.
Ringwood Magistrates Court 28/02/2011 Attempt To Commit Indictable Offence
Drunk In A Public Place
37. Theft-From Shop (Shopsteal) Unlicensed Driving (3 Charges) Theft
38. Burglary
39.
Theft From Motor Vehicle
Theft Of A Motor Vehicle
Drive In A Manner Dangerous
Fail To Answer Bail
ON EACH CHARGE:
9 months detention in a Youth Training Centre.
Ringwood Magistrates Court 28/02/2011 Theft 40. 9 months detention in a
41. Youth Training Centre.
Pay compensation $1200.00
Ringwood Magistrates Court 28/02/2011 Traffick Prescribed Drugs 9 months detention in a Youth Training Centre. Ringwood Magistrates Court 28/02/2011 Poss pres Graffiti Imp on prop of tran co With conviction, fined an aggregate of $750.00 Ringwood Magistrates Court 28/02/2011 Take/Send Anything Into A Prison With conviction, fined an aggregate of $750.00 Melbourne Children’s Court 04/06/2010 Theft Of A Motor Vehicle
42. Reckless Conduct Endanger
43.
44. Serious Injury
45.
Unlicensed Driving
Without conviction,
46. adjourned to 10:00am on
47. 3/6/2011. The offender is released
48. upon entering a Good
49. Behaviour Bond in the amount
50. of $200.00
51. The offender is to be of
52. good behaviour during the
53. period of the Good Behaviour
Bond.
Ringwood Magistrates Court 30/09/2009 Theft Of A Motor Vehicle Theft 54. ON EACH CHARGE:
55. The defendant is convicted
56. and ordered to be detained
57. in a Youth Justice Centre
for a period of 3 months.
Melbourne Children’s Court 19/05/2009 58. Criminal Damage (Intent
Damage/Destroy)
59. The defendant is convicted
60. and ordered to be detained
61. in a Youth Justice Centre
62. for a period of 7 days.
Base sentence.
Melbourne Children’s Court 19/05/2009 63. Criminal Damage (Intent
Damage/Destroy) (24 Charges)
64. ON EACH CHARGE :
65. The defendant is convicted
66. and ordered to be detained
67. in a Youth Justice Centre
for a period of 7 days.
Melbourne Children’s Court 19/05/2009 Criminal Damage (Intent Damage/Destroy) 68. The defendant is convicted and ordered to be detained
69. in a Youth Justice Centre
70. for a period of 7 days.
Pay compensation $500.00 as Martin, Colin Lee
Melbourne Children’s Court 04/03/2009 71. Breach Re 27/08/2008 Intentionally Damage
72. Property (13 Charges)
73.
74. Knowingly Deal/Conceal
75. Proceeds Of Crime
76.
77. Criminal Damage (Intent
78. Damage/Destroy)
79.
80. Wilfully Damage , Injure,
81. Trespass
82.
83. Attempt Theft
84.
85. Possess Cannabis
86.
87. Damage/Deface By Graffiti-
Ptc/Adj Prop
88. ON EACH CHARGE:
89. The defendant is convicted
90. and ordered to be detained in a Youth Justice Centre
for a period of 9 months.
Melbourne Children’s Court 04/03/2009 91. Breach Of Youth Supervision Order Proven Melbourne Children’s Court 04/03/2009
92. Breach Re 27/08/2008 Criminal Damage (Intent
93. Damage/Destroy) (2 Charges)
94. Theft Of A Motor Vehicle
95. Drive Motor Vehicle Without
Licence
96. ON EACH CHARGE:
97. The defendant is convicted
98. and ordered to be detained
99. in a Youth Justice Centre
for a period of 9 months.
Melbourne Children’s Court 04/03/2009 100. Breach Re 27/08/2008
101. Smoke Tobacco On Part Of A Carriage
102.
103. Travel On Part Rail Veh Not For Travel
104.
105. Fail Prod Valid Ticket-
106. Passenger Vehicle (2 Charges)
107.
108. Refuse/Fail To Comply With Request
109.
110. Place Feet On Furniture In Carriage
111.
112. Use Offensive Language In A Rail Vehicle
113.
114. Resist Lawful Request Of An Officer (2 Charges)
115.
116. Spit In Rail Premises
117.
118. Use Indecent Language In Rail Vehicle
119. Proven And Dismissed.
Proved And Dismissed (Cyfa s 360(1)(A))
Melbourne Children’s Court 04/03/2009 120. Theft Of A Motor Vehicle (3 Charges)
121.
122. Reckless Conduct Endanger Serious Injury
123.
124. Unlicensed Driving (2 Charges)
125.
126. Enter Building With Intent To Steal
127.
128. Theft (3 Charges)
129. Theft-From Shop (Shopsteal) (6 Charges)
130.
131. Unlawful Assault (3 Charges)
132.
133. Obtain Property By Deception (2 Charges)
134.
135. Burglary
136.
137. Handle/Receive/Retention
138. Stolen Goods
139.
140. Procure Hire Vehicle -
141. Misrepresentation
142.
143. Aggravated Burglary-
Person Present
144. ON EACH CHARGE:
145. The defendant is convicted
146. and ordered to be detained
147. in a Youth Justice Centre
for a period of 9 months.
Melbourne Children’s Court 04/03/2009 148. Consume Liquor Under 18
149. Years (2 Charges)
150. ON EACH CHARGE:
151. The defendant is convicted
152. and ordered to be detained
153. in a Youth Justice Centre
154. for a period of 9 months.
155. Proven and Dismissed.
156. PROVED AND DISMISSED (CYFA 8360(1)(A))
Melbourne Children’s Court 04/03/2009 Breach of Youth Supervision Order Proven Melbourne Children’s Court 04/03/2009 157. Breach Re 27/08/2008
158. Criminal Damage (Intent
159. Damage/Destroy)
160.
161. Intentionally Damage
162. Property (2 Charges)
163.
164. Wilfully Damage Property (2 Charges)
165. The defendant is convicted
166. and ordered to be detained
167. in a Youth Justice Centre
168. for a period of 9 months.
169. Ringwood
170. Children’s
Court
27/08/2008 171. Criminal Damage (Intent
172. Damage/Destroy)
173.
174. Theft Of A Motor Vehicle Drive Motor Vehicle Without Licence
175.
176. Fail To Wear Motor Bike
177. Helmet
178.
179. Smoke Tobacco On Part Of A Carriage
180.
181. Travel On Part Rail Veh Not For Travel
182.
183. Fail Prod Valid Ticket-
184. Passenger Vehicle (2 Charges)
185.
186. Refuse/Fail To Comply With Request
187.
188. Place Feet On Furniture In
189. Carriage
190.
191. Use Offensive Language In A Rail Vehicle
192.
193. Resist Lawful Request Of An Officer (2 Charges)
194.
Spit In Rail Premises
Use Indecent Language In Rail Vehicle
195. Without conviction, the
196. defendant is released on a
197. Youth Supervision Order for a period of 12 months to
26/8/2009 .
198. Ringwood
199. Children’s
Court
27/08/2008 Criminal Damage (Intent Damage/Destroy) 200. Without conviction, the defendant is released on a Youth Supervision Order for
201. a period of 12 months to
26/8/2009.
202. Ringwood
203. Children’s
Court
27/08/2008 Intentionally Damage Property (13 Charges)
204. Knowingly Deal/Conceal
205. Proceeds Of Crime Wilfully Damage, Injure, Trespass
206.
207. Attempt Theft
208.
Damage/Deface By Graffiti- Ptc/Adj Prop
209. Without conviction, the defendant is released on a Youth Supervision Order for
210. a period of 12 months to
26/8/2009.
211. Ringwood
212. Children’s
Court
27/08/2008 Criminal Damage (Intent Damage/Destroy) 213. Without conviction, the defendant is released on a Youth Supervision Order for
214. a period of 12 months to
26/8/2009.
215. Ringwood
216. Children’s
Court
27/08/2008 Possess Cannabis 217. Without conviction, the defendant is released on a Youth Supervision Order for
218. a period of 12 months to
26/8/2009.
219. Ringwood
220. Children’s
Court
27/08/2008 Breach Of Probation Order Proven 221. Ringwood
222. Children’s
Court
27/08/2008 Breach re 28/11/2007
Criminal Damage (Intent Damage/Destroy)
Intentionally Damage
223. Property (2 Charges)
224.
225. Wilfully Damage Property (2 Charges)
Breach Of Probation. Order
Cancelled. Youth Supervision Order For 12 Months.
226. Ringwood
227. Children’s
Court
28/11/2007 Possess Liquor Under 18 Years
228. Criminal Damage (Intent Damage/Destroy)
229.
Fail Prod Valid Ticket- Passenger Vehicle
Defendant Placed On Probation For A Period Of 12 Months 230. Ringwood
231. Children’s
Court
28/11/2007 Breach Of Probation Proven 232. Ringwood
233. Children’s
Court
28/11/2007 Breach Re 21/03/2007
234. Criminal Damage (Intent Damage/Destroy)
235.
236. Intentionally Damage Property (2 Charges)
237.
238. Wilfully Damage Property (2 Charges)
Breach Of Probation. Order Cancelled . Without Conviction
Probation for 12 months
239. Ringwood
240. Children’s
Court
21/03/2007 Criminal Damage (Intent Damage/Destroy)
Intentionally Damage Property (2 Charges)
241. Wilfully Damage Property (2 Charges)
242. Without conviction, the defendant is placed on Probation for a period of 6 months to 20/9/2007. 243. Ringwood
244. Children’s
Court
21/03/2007 Travel Without Valid Ticket- Ptc Proven and Dismissed.
245. PROVED AND DISMISSED (CYPA S137(1)(A))
The Tribunal notes also that in addition to the charges outlined above, the Applicant has a further 15 or 20 charges pending. However, I do not take into account in my decision charges which are yet to go before the courts.
Perhaps the most significant of the Applicant’s convictions is that for Armed Robbery when, on 4 November 2011, in the County Court of Victoria, he was sentenced to a term of imprisonment of two years to be served in a Youth Justice Centre and to pay $400.00 compensation.
A possible result of that conviction in particular is that the Applicant, not being an Australian citizen, is facing the prospect of deportation.
While that may be so, in this review I am dealing only with an application for citizenship which has been refused and nothing else.
Hearing
At the hearing evidence was given by a number of witnesses called on behalf of the Applicant.
The Respondent called no witnesses.
The witnesses included the Applicant himself, his mother and his father and two long standing friends, Bridie McCormack and Jesse Williams.
No one in a position of authority in the community such as a police officer or community worker was called.
In addition to the lay witnesses called by the Applicant, two expert witnesses were called: Dr Karla Lopez, a consultant forensic psychologist; and Mr Martin Jackson, a clinical neuropsychologist.
At the conclusion of the hearing, which was held over two days, the parties each made oral submissions and handed up written submissions also.
Colin Lee Martin
Mr C L Martin gave the Tribunal an account of his difficult relationship with schooling, describing himself as having struggled in the classroom. He attended various schools and described himself as having a few friends. He also attended a behaviour management school in Brandon Park. At the school in Brandon Park, Mr C L Martin described himself and the other children as being disruptive.
Mr C L Martin also described his past issues with substance abuse, beginning with his use of marijuana as a teenager, as well as valium and heroin. He attended his general practitioner to discuss his heroin addiction and his doctor recommended a methadone programme as an opiate replacement. He is currently on the programme. His intention is to reduce the dose of methadone incrementally and eventually come off it entirely. He described himself as feeling just normal now.
In his evidence the Applicant, to his credit, acknowledged he had made many bad choices in his life so far. In his unsworn affidavit (which I accept as his true belief) Mr C L Martin says that he knows the criminal acts I was involved in were wrong. He says he feels really upset about the way that my behaviour has affected my family. He says he knows that his parents and the rest of his family will be heartbroken if I have to leave Australia, and that it will be my fault.
The Applicant also sought to clarify the circumstances of some of his convictions. He said that on the occasion of the armed robbery (of a Subway outlet) that he was not actually armed. His co-offender had a box cutter with him and held it close to the victim’s throat. The pair forced money out of the till and forced the victim to open the store’s safe. He described himself as having thought about what he had done as he was sitting in the car as the pair were driving off. He stated that he felt the sentence he received was the right punishment and that he deserved it. Even should I accept the above, I consider that he was still acting in concert as I understand the matter.
In relation to his offences involving theft and damage of motor vehicles, Mr C L Martin stated that he can’t remember why [he] stole cars. He told the Tribunal that on most occasions, he was not the one who actually stole the cars and that he was a passenger. In relation to his property offences, Mr Martin stated that he couldn’t say why he would graffiti property, which he did most often on trains. He stated that he did think about it at the time, but did it anyway.
Mr C L Martin cited drugs and alcohol as being major contributing factors to him getting involved in criminal behaviour. He experienced reduced periods of use, but not abstinence from drugs between 2013 and 2015. He described his motivation to cease his use of illicit substances as being the fact that he hurt a lot of people, including his family, himself and victims of his crimes. Mr Martin also gave evidence of a relationship breakdown with his long term girlfriend in 2015, which caused him to relapse into using illicit substances.
Tracey Lee Martin and Neil Martin
Both Tracey Lee Martin and Neil Martin –Colin’s parents—gave evidence which was entirely supportive of their son. This in a sense is not surprising but I found their evidence helpful in enabling me to understand more fully the family situation. I accept that it is distressing for them that Colin should find himself in his current situation.
Tracey Lee Martin described her son as being a very kind-hearted person, loyal and family orientated. Neil Martin described himself as having a previously strained relationship with his son, after leaving the family home when his son was 12 years old, but this had improved in recent years. He acknowledged that he was not aware at the time that his son was in trouble with the law, learning of his son’s illicit drug use when he was 19 and help[ing] him through that.
Bridie McCormack and Jessie Williams
The evidence of both Bridie Mc Cormack and Jesse Williams also was supportive of the Applicant and their evidence was able to give me insights into his character from contemporaries of his.
Ms McCormack indicated she and the Applicant had been friends since childhood. She said she believes that the separation of his parents when he was about 12 years old had a very great effect on him. She says that he was upset by the separation and made some poor decisions. She says that he then fell in with the wrong group of people.
I found the evidence of Ms McCormack a great help in giving me in yet more detail just how Mr C L Martin’s life went into a decline and has been such a troubled one. She described him as being very loyal and she said he would do anything for anybody. She gave evidence of him having been a good and supportive friend during a tumultuous period in her life.
At the hearing, Mr Williams described the Applicant as being a very genuine, honest dude who is very loyal to his friends. He told the Tribunal about the Applicant’s ambitions to work with youth, in some form of educational/mentor role in the future.
I was not as impressed with the evidence of Mr Williams, although I am satisfied he was telling the truth as he honestly sees it. But he was given it seems to me to hyperbole affecting the weight I should give to his views.
One example of this is in his sworn Affidavit, where he states that If Colin were to be equipped with the right tools and support around him and be amongst his family and friends, and where he is able to access the support of social services, I believe that not only will this young man become an upstanding citizen but he will benefit the broader society as a well–functioning member of the community. I regard this observation as simply unsupported in objective evidence, especially given Mr Martin’s history. It seems to be the sort of aspirational statement a loyal friend would say but without much objectivity to it.
Dr Karla Lopez
The evidence of Dr Lopez I thought was impressive. But much of it, while informative, went beyond my present needs.
In evidence Dr Lopez confirmed her report dated 10 February 2018. In that report, she said that the Applicant lacked a strong male role model in his early years and appears to have been easily influenced by peers partaking in drug use, which quickly became a significant factor in his life. Many of his post-school issues occurred she said in a context of low average intellectual functioning.
She further told the Tribunal that there is a possibility of Cluster B personality factors being present in Mr Martin’s neuropsychological assessment. She described there as being some aspects around an anti-social personality disorder, but stated that this has not been diagnosed and that there was a notable absence of a clinical disorder.
Dr Lopez further articulated that the Applicant has a capacity to change and has expressed a willingness to do so.
However, Dr Lopez said that in the absence of intervention, [his] failure to address his drug use,, intra-personal problem (self-esteem) and anti-social influences would place him at risk of further offending. This was corroborated by Dr Lopez’s oral evidence during the hearing, where she described there as being some outstanding factors that the Applicant would have to address in order to mitigate his risk of further offending, including; drug and alcohol issues, interpersonal problems, self-esteem issues and peer influences and a lack of professional support. She did note though the presence of mitigating factors such as the support of his family and his willingness to undertake intervention.
I found that a troubling reference. I therefore asked her whether Mr C L Martin’s risk of re-offending could be put at high, medium or low. After some thought , she said she put the risk of re-offending as medium.
Martin Jackson
I also heard the evidence of Mr Jackson. He confirmed his very detailed and lengthy report dated 12 December 2017.
That report notes that the purpose of the Applicant’s neuropsychological assessment is to support the contention that he is of sufficiently good character and will not present a threat to the community if released from detention.
Mr Jackson made many detailed points in response. Some, however, seem to be wide of the mark of the good character criterion. They make for interesting reading but are not directly relevant to my task on this review.
I do note though that Mr Jackson in his report specifically rejects the notion that the Applicant suffers from any intellectual disability and also that he specifically questions his remorsefulness before arrest, incarceration or detention. As to the latter he says that the Applicant has a long history of not taking responsibility for his offending and behaviour and that this goes all the way back to school. These points I consider are not without significance.
Another point Mr Jackson also makes is that the Applicant must be considered at this point of time as having a high likelihood of re offending. But then he says from a neuropsychological perspective [,the Applicant] does not have a neuropsychological profile that would make him a high likelihood of reoffending in that he does have the cognitive abilities to work out solutions to problems , learn new behaviours and carry them out.
I am unable to understand how these two statements are consistent. By one it seems the Applicant has a high risk of reoffending while by the other the risk is not high. In oral evidence, when pressed, Mr Jackson sought to say the risk is low.
However, I was not helped, by his statement in his report that: I am of the opinion that it is far more likely that it is on the basis of potential personality issues and criminogenic need that he has a risk of reoffending. I do not consider this to have a clear meaning.
Additionally, for Mr Jackson then to add after this that This would need to be formally assessed by a forensic psychologist seems to weaken his overall position to the extent I am able to discern what that position is.
Analysis
I accept the Applicant acknowledges that in the past he has made very bad choices and has hurt people. I accept that he knows that the criminal acts he has been involved in were wrong. Further I accept that he is determined not to go back to drugs and criminal activity. These matters I accept, however, are subject to a misgiving I express below arising from his convictions for offences involving dishonesty.
However, I am unable to say how far this expression of remorse is due to him having been arrested and imprisoned and then placed in detention. Certainly, Mr Jackson seems to raise this as an issue. That is not to say though that the remorse is not now genuinely felt.
It is clear to me that the Applicant has suffered an unfortunate life to this point, from about the age of 12, and following the separation of his parents. His father, Neil Martin, even became aware of a change in his son’s behaviour shortly after this time.
I find it hard to accept, as was suggested by Dr Lopez in particular, that this change in behaviour and later criminality is due to a lack of a strong male role model in the Applicant’s early years. Many young people must surely experience the trauma of marriage break ups yet not go on to lead a life of crime.
Moreover, Neil Martin did not disappear from his son’s life after the separation. Neil Martin continued to see both his sons every second weekend. This is not consistent with saying the Applicant lacked a strong male role model in his life after the separation.
Nonetheless I consider that his parents’ separation has had a profound ill-effect on the Applicant’s ’s life as all the witnesses indicated and that this is so as far back as his school days, as his school principal reported early on, and of course subsequently..
I consider also that there are many positive things now to be said in the Applicant’s favour in terms of his character. In particular, I note once more that he has undertaken a methadone programme, and he has been doing gym work whilst in detention.
It is no easy matter to form the resolve to undertake a methadone programme and regular gym work requires a good deal of resolve and also self-discipline These are promising personal developments, even if brought about by arrest and imprisonment or detention.
There is also the Applicant s expressed desire to a follow career path towards working with troubled young people. Children apparently respond well to him. The evidence of Bridie McCormack who has a young child impressed me greatly in that regard.
It was put to me that the Applicant may be mentally or cognitively impaired, which was said to affect his capacity to make decisions in life. Alternatively, it was put to me that he may suffer from Attention Deficit Hyperactivity Disorder (ADHD) or Oppositional Defiance Disorder (ODD) and that he has received no treatment for these conditions.
As to the former, mental or cognitive impairment, I refer to the evidence of Mr Jackson who specifically rejected the notion that Colin suffers any intellectual disability. I am unable to see how it can be submitted that he may be mentally or cognitively impaired yet not suffer any intellectual disability according to a neuropsychologist’s expert opinion.
In his evidence Mr Jackson explained how Mr C L Martin would have trouble with matters of memory but he at the same time said that his memory is now on the improve. This did not to my mind indicate what is sought to be conveyed by a submission that Mr C L Martin is mentally or cognitively impaired. If he has had memory difficulties they obviously do not equate to intellectual disability if I follow the evidence of Mr Jackson.
As to the latter, ADHD and ODD, it does not necessarily follow that sufferers end up in trouble with the law and with serious criminal records. If the Applicant has suffered from these conditions, and I am not satisfied the evidence leads directly to that conclusion, they provide no excuse for his wrongdoing in my view.
Nor does it follow in my view that someone who has a diminished capacity to make decisions, should that be so, will be induced thereby to engage in criminal conduct or will be unable to resist the impulse to do so.
I am unable to make a finding on the evidence that young persons who have a diminished capacity to make decisions, if and when that is so, go on to engage in criminal behaviour and may, for that reason, be excused for doing so.
Moreover, the evidence before me does not support a finding that the Applicant’s criminal history should be disregarded because of any supposed diminished decision making capacity. So far as I am aware no defence of that kind either was raised or succeeded in any of the cases which constitute his criminal history. There is also the specific point made by Mr Jackson that Colin does not suffer from any intellectual disability.
The Applicant’s criminal history, in my view, is appalling. It is lengthy and extensive and goes beyond merely street crimes into much more serious offences.
I agree there are some less serious offences which form part of that history. I would include in that category for instance some of the traffic offences and placing feet on furniture in a railway carriage.
Nonetheless, most of the traffic offences are of a serious nature clearly indicating an attitude of mind on the Applicant’s part. I include in that regard the various driving whilst disqualified convictions and the various unlicensed driving and refuse breath test convictions These show a wilful disregard of society’s legal rules and court orders. Moreover, they are repeat offences, several times over.
Of special concern are the Applicant’s driving offences involving other road users, such as driving in a manner dangerous and reckless conduct endangering serious injury convictions, because these directly implicate the Applicant in conduct on roads which is completely unacceptable.
The Applicant also has a record for violence including convictions for unlawful assault and aggravated burglary with a person present and, of course, the armed robbery conviction I have already mentioned. Even accepting the Applicant’s explanation, that armed robbery must have been a terrifying experience for the young Subway employees, one they may not be likely to forget for a long time.
It is to be noted as well that many of the Applicant’s convictions are for offences of dishonesty. These include numerous theft of motor vehicle offences but they include other thefts also and going equipped to steal/cheat.
The fact that the Applicant stands convicted of serious dishonesty offences does bring into question the worth of his claim that he realises his conduct in the past has been wrong, that he knows he has made bad choices and has hurt people and that he is determined to change. When he has shown repeatedly a propensity to act dishonestly, I am left to question why I should now accept that the claims he is making are not the products of yet even more dishonesty.
There are as well a number of convictions for offences of a distinctly anti–social nature. I am referring in this regard to the Applicant’s propensity to damage public property. The offences in question include criminal damage, damage/deface by graffiti, possess prescribed graffiti implement on property of a transport company, intentionally damage property and trespass on land owned by the Roads Corporation. In evidence, the Applicant freely admitted one of his pastimes had been to graffiti trains on the public network.
As I have outlined above, Mr C L Martin also admitted in evidence that he had been a heavy drug user including the drug ice. But he has convictions for possess cannabis and trafficking in prescribed drugs.
This brief survey of the Applicant’s criminal convictions demonstrates not only the serious nature of the various crimes he has committed but also the range of crimes he has committed. These range from crimes against the person to crimes against property, to theft and deception, to armed robbery in concert, to crimes which affect road users and to crimes which cost the public money.
The Applicant’s criminal record is inescapable yet I am asked nonetheless to make a finding that he is of good character sufficient to qualify as an Australian citizen.
I reject the notion I should make such a finding.
In determining whether the Applicant satisfies the good character requirement in accordance with the Act, I also have regard to Lee J’s decision in the matter of Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. The Federal Court in that decision considered the meaning of good character and determined (at 431-432):
…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…
Furthermore, it is true that the Full Federal Court in Goldie v Minister for Immigration and MulticulturalAffairs [1999] FCA 1277 at [8] did say that the concept of good character is not concerned with whether an applicant for entry meets the highest standards of integrity but with a less exacting standard than that and that the concept is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities and with whether that is so deficient as to show it is for the public good to refuse entry.
My rejection of the notion that I should find the Applicant is of good character is entirely in accordance with those rulings.
In light of his extensive criminal record, I am unable to make any finding that the Applicant has enduring moral qualities which make him of good character for the purposes of section 16(2)(c) of the Act. In making this point I refer also to the Tribunal’s decision in Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, where Deputy President Wright considered the weight that ought to be given to criminal offences committed by an applicant in determining a finding of good character (at [14]):
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
The Applicant’s criminal record as I have said is in my view appalling. In reality, I can see no excuse whatsoever for his anti-social conduct over the years. His youthfulness is no excuse; nor is intellectual disability, or diminished responsibility –any excuse. As I have articulated above, his criminal activity has included convictions for offences which are very serious in nature, including armed robbery. His latest recorded conviction was less than three years ago, in 2015. Applying Kakar and also p 149 of the Policy, I consider that any mitigating circumstances or explanation provided by the Applicant does not outweigh the extensive criminal conduct I have outlined.
In my view, his moral qualities are demonstrably so deficient that it is for the public good, or in the public interest, which is the same thing, that he be denied citizenship.
The Applicant may have the best of intentions now to reform and change his ways but his intentions are one thing whereas the reality of his past is quite another.
More worryingly still is the evidence of Dr Lopez, which I accept that there is a risk of the Applicant re-offending. That risk is not low but is regarded by her as medium and I make a finding that is so.
That is a circumstance of great concern. In my view, given the right circumstances the risk of the Applicant re-offending is neither fanciful nor unreal.
In my view, if there is a risk of the Applicant reoffending, as I find there is, then he is a risk to public order and safety and, as such, is, I consider, a danger to society especially given the kinds of offences that make up his criminal record.
Even applying a most minimal standard, in my view, the Applicant is not of good character.
Conclusion
In light of the above I am not satisfied the Applicant is of good character within section section 16(2)(c) of the Act..
It follows that the decision under review must be affirmed.
96. I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the written reasons herein of Dr Damien Cremean, Senior Member
[sgd].....................................................
Associate
Dated 13 March 2018
Date of hearing 23 January 2018 & 20 February 2018 Counsel for the Applicant
Solicitors for the Applicant
Mr Lionel Wirth
Mr Chris Harrison, Rothwell Lawyers Pty Ltd
Solicitors for the Respondent Ms Eleanor Cannon, Clayton Utz
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