McColl and Minister for Immigration and Multicultural Affairs
[2006] AATA 340
•10 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 340
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/140
GENERAL ADMINISTRATIVE DIVISION ) Re KEVIN STUART McCOLL Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date10 April 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
CITIZENSHIP – permanent residence granted – application for Australian citizenship not approved because of criminal history – whether applicant is a person of good character – decision affirmed.
Australian Citizenship Act 1948 s 13(1)(f)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re He and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 56REASONS FOR DECISION
10 April 2006 Senior Member R W Dunne 1. The applicant (Mr Kevin McColl), who is a British citizen, was born in Scotland on 16 February 1967. He arrived in Australia on 7 April 1984 and his permanent residence took effect on that date.
2. On 24 February 2005 or thereabouts, Mr McColl lodged an application for grant of Australian citizenship (“Application”). In the Application in answer to questions relating to convictions for offences committed or confinements in prison in Australia, he gave the following details of the occurrences involved:
“Noosa Heads Magistrates
Brisbane Magistrates/District
7 weeks – (3months x 2) 5 months 10 months 1 yr
6 x incarcerated Poss of cannibus [sic]
Unlawful entry of dwelling shopliftDrug related offences”
3. On 14 March 2005, Mr McColl was advised by the respondent that he had been identified as the subject of a serious repeat offender history report and he was invited to make written comment and provide further evidence in support of his Application. In an e-mail response to the respondent on 17 March 2005, Mr McColl made the following comments:
“As pionted [sic] out in my interview I was aware of there being a long history of possession of cannibus [sic] charges for which on six occasions landed me in prison and numerous others I was fined. This is because the laws in QLD are severe for users of Marahwana [sic] and my criminal record would have been almost non existant [sic] had I been in SA instead of there….I grew up in an abusive household and was turned out by my parents at a very young age. Indeed I was a heavy smoker of cannibus [sic] for many years and was incarcerated on six occasions. I tried very hard to give this up and was in and out of detoxs [sic] 6 or 7 times and graduated the Logan House drug & Alcohol rehabilitation program but without a lasting effect. Two years ago I came to Adelaide with the idea of renewing my efforts to find recovery and successfully completed The Woolshed Drug & Alcohol Rehabilitation Program. I have followed this up by becoming an active member of Narcotics Anonymous and Alcoholics Anonymous providing my services in several positions….I have also been a volunteer worker at Mary Magdelene Centre for 15 months as a way of giving back to society. I have not committed any offence for some 4 or 5 years at least and I no longer drink alcohol or take drugs….I have accepted an offer to study psychology at the University of South Australia as an important part of my recovery and commitment to personal growth…”
4. On 21 March 2005, Mr McColl was notified by the respondent that it was intended to consider refusing him the grant of Australian citizenship on the basis that he was not a person of good character under s 13(1)(f) of the Australian Citizenship Act 1948 (“Act”). He was provided with particulars of his criminal history and invited to comment. In response, he forwarded character references from Mr Wayne Campbell and Mr Doug Boothey, a social worker with The Magdalene Centre (exhibits R1, T11 at pages 54 and 55).
5. On 28 April 2005, Mr McColl was advised that his Application had not been approved because the delegate was not satisfied that he was of good character, under s 13(1)(f), given the evidence of his criminal history. On 31 May 2005, Mr McColl applied to this Tribunal for review of the respondent’s decision.
issues for the tribunal and legislation
6. The only issue for the Tribunal is whether the applicant is a person of good character within the meaning of s 13(1)(f) of the Act. There was no contention that the provisions of s 13(11) of the Act (serious repeat offender) applied to the circumstances of the present case.
7. Section 13(1)(f) provides:
“(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;
…”
background evidence
8. Mr McColl appeared in person and Mr d’Assumpcao from the Australian Government Solicitor appeared for the respondent. The T documents and the supplementary T documents were tendered and accepted into evidence (as exhibit R1 and exhibit R2 respectively), along with the following documents:
·applicant’s unofficial academic transcript from the University of South Australia (exhibit A1);
·statutory declaration of Wayne Neil Campbell made 9 June 2005 (exhibit A2);
·statutory declaration of Matthew McDonald Knight made 19 September 2005 (exhibit A3).
9. Mr McColl’s criminal history is extensive. His offending commenced in July 1989, when he was convicted of possessing dangerous drugs. Over the ensuing 12 years he was convicted on over 40 occasions for various offences, including offences that were drug related, for breaching bail, for stealing or receiving stolen property, for possession of property suspected of being stolen, for unlawfully taking shop goods away, for being found in a dwelling house without lawful excuse and for possessing an implement of housebreaking. These convictions often involved prison sentences of up to 3 months at a time. Of particular note were the following convictions:
·20 September 1999 – entering a dwelling with intent to commit an indictable offence – sentence: 12 months imprisonment, suspended for 15 months;
·20 July 2001 – entering or in a dwelling and committing an indictable offence – stealing – attempting to dishonestly obtain property from another – sentence: on each charge, 12 months imprisonment to be served concurrently, sentence to be suspended for 3 years after having served a term of 4 months imprisonment, suspended sentence activated, imprisonment for 12 months.
10. In introducing his case, Mr McColl referred to his application for review (exhibit R1, T1 at page 1A) and to the character references he had furnished to the respondent. He said that he had updated two references and had results available from his study at the University of South Australia. He was concerned that the respondent’s delegate had not given due weight to the character references that had been furnished.
11. When questioned by the Tribunal about his application for review, Mr McColl said:
“The main reason that I have applied for citizenship was basically because the Government recently changed the laws for applying for HECS fees at university - one must be an Australian citizen. Now, I had already accepted an offer to enrol at University of South Australia to study psychology and, unfortunately, because my application wasn’t processed in time really, and when it was refused I had to pay up front fees, so I had to drop several subjects.”
He said he had been able to save up enough money to pay the University fees for psychology. He had gone through the year with distinction averages in psychology and had been to rehab. He had been heavily involved in the narcotics anonymous fellowship and was in the third year of doing volunteer work as well. He said he had made significant changes and he was hoping that the character references he had furnished would be accepted as evidence of the changes. He referred to the results he had obtained from the University in 2005 in psychology 1A and psychology lB (exhibit A1).
12. Mr McColl also referred to the references, expressed as statutory declarations, from Mr Campbell and Mr Knight (exhibits A2 and A3). The Tribunal noted that the declarations had been sworn in June 2005 and September 2005. When questioned further by the Tribunal about the character references in the T documents (exhibit R1, T11 at pages 54-56 and at pages 59-60) and in the statutory declarations and why, apart from only one, no reference had been made to the applicant’s criminal history, Mr McColl said:
“Yes, they aware but they were not. Only in the aftermath of it. Like I have informed them why I need the character reference, but they were not known to me – these people were not known to me during my – when I was in substance abuse because I actually left – I was living in Queensland when all them crimes were committed and I was in substance abuse and I actually came to South Australia as part of my recovery. So when I came here I was starting fresh and everyone – you know, I haven’t committed any crimes whilst down here, so I’ve been of good character the whole time that I’ve been in South Australia so they don’t know the ‘old me’ sort of thing.”
13. Mr d’Assumpcao cross-examined the applicant about his Application for citizenship and the limited information he had provided concerning his criminal history (exhibit R1, T5 at page 35). The Tribunal is satisfied that the applicant was being frank and honest in the manner he had described his criminal history in the Application and relied on the assurance by the officer at his interview that the respondent would be conducting a police check on his past convictions as part of the process of considering his Application. Mr d’Assumpcao referred the applicant to his past criminal convictions over the period of 12 years from 1989 to 2001. In particular, in July 2001, he had been convicted of various offences, had a suspended 12 month sentence re-instated, was sentenced to a further 12 months imprisonment and was released in 2002 with a 3 year suspended sentence that ran until mid-2004. Mr d’Assumpcao put to the applicant that it had been a relatively short time since he had been freed of any obligation to a court. Mr McColl acknowledged that he was once an “undesirable poor character”, but that was no longer the case. He had committed no offences since 2001 and the period of his 3 year suspended sentence until mid-2004 should not be taken into account in reviewing his past conduct.
14. Mr McColl’s evidence was that there had been opportunities for him to take drugs whilst in prison. However, he had not done so on the occasion of his last incarceration. At that time, he had taken part in an 8 week intensive drug treatment program which he had voluntarily attended and he thought this was the turning point in his rehabilitation. When cross-examined about his reason for coming to South Australia, he said that he had a brother and friends in Queensland who were all addicted and he felt that he had to get away from it all. When he was released from custody in Queensland he travelled south and continued his University studies. He wanted to get into counselling and was told that the counselling course in South Australia was the best in Australia.
consideration
15. The term "good character" under s 13(1)(f) is not defined in the Act. The decision maker is to have regard to the ordinary meaning of the words in making assessments: see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where Davies J noted, at page 87:
"It should also be observed that the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute...I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”
16. At page 94 in the same case, Lee J further noted that:
"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: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994)122 ACTR 25; 117 FLR 455 per Miles CJ at FLR 459-60; Plato Films BLtd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138."
17. In Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771, Deputy President D Chappell said at paragraph 17:
“Good character” in s 13 should be given the same meaning as it is in s 501 of the Migration Act 1958 (Cth) (the Migration Act): Re Hamwi and Department of Immigration and Ethnic Affairs (AAT, No 9639, D P McMahon, 25 July 1994, unreported); Re Naumovski and Minister for Immigration and Ethnic Affairs (AAT, No 9815, D P McMahon, 4 November 1994, unreported) and Re PE and Department of Immigration and Ethnic Affairs (AAT, No 9990, D P Breen, 6 February 1995, unreported). 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. Mr Smith conceded that hardship to the applicant (as noted in the ACI) is a relevant factor when exercising discretion, but is not strong enough here to warrant prejudging the final outcome of the criminal matter by granting citizenship.”
18. Deputy President C R Wright observed in Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at paragraph 13:
“‘Good character’ within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community."
19. In referring to the privilege associated with the grant of Australian citizenship, Deputy President D P Breen observed in Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at paragraph 8:
“The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. While Mr Fenn may have made a contribution to the community before these offences and since 1995, he significantly detracted from the community for over 4 years and deprived a number of Australians of their savings and other monies rightfully theirs. That Mr Fenn is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year's time when he can demonstrate a longer period of positive contribution to the Australian community.” (emphasis added)
20. Ministerial directions relating to grants of Australian citizenship are found in the Australian Citizenship Instructions (“Citizenship Instructions”). The provisions relating to assessments of good character under s 13(1)(f) of the Act are contained in Part 5.4 of the Citizenship Instructions. The directions are not binding on the Tribunal and are policy guidelines only. However, they are useful to the extent that they aid in the construction of the Act (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
21. As was said by Senior Member N Bell in Re He and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 56 at paragraph 7:
“According to the policy guidelines, where there is such evidence that an Applicant is not of good character, it is incumbent on an Applicant to demonstrate that he or she indeed is of good character. To do this, it is his or her responsibility to point to any extenuating circumstances relating to the convictions, demonstrate that the offences were a ‘one-off’ and do not represent a pattern of behaviour, and that a reasonable amount of time has lapsed since he or she was last free of an obligation to any court.”
22. In the applicant’s case, the following Citizenship Instructions are considered by the Tribunal to be apposite:
“5.4.1 Applicants for grant of Australian citizenship under s 13(1) are required to be "of good character":
·If an applicant fails to satisfy the Minister’s delegate that s/he is of good character, the application cannot be approved (it must be deferred or refused, as appropriate).
·For other applications under s 13, it is a policy requirement. Although policy cannot be applied inflexibly, such an applicant who is deemed to be not of good character would be approved only in the most exceptional cases.
5.4.2 The term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they 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.
5.4.3If there is evidence to suggest that an 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.
5.4.4 Assessment of good character involves:
·establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;
·according procedural fairness to the applicant where there is credible, relevant, adverse information on their character(see 5.1); and
·considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.
5.4.5Under 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:
- death;
- imprisonment for life;
- a term of imprisonment of 12 months or more;
- 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
(b) is a serious repeat offender (see 5.3.9 – 5.3.11);
(c) may have committed, or been involved in the commission of, war crimes or crimes against humanity or human rights (in which case the decision maker is to contact Character & Cancellation Section in Central Office for advice);
(d) has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result been detained in a facility or institution;
(e)may have, or have had, an association with someone else, or with a group or organisation, whom the decision maker reasonably suspects has been or is involved in criminal conduct;
(f) is subject to proceedings for an offence against a law of another country, including proceedings by way of appeal or review;
- a person subject to such proceedings for an offence against an Australian law would come within the bar on grant in s 13(11)(a) see 5.3.4; or
(g) is on release from the whole, or a part, of a sentence on parole, licence or security
…
5.4.7Consider 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.
…
5.4.11Consider 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.
…
5.4.16 The 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.”
23. Mr McColl’s criminal history has been outlined briefly in paragraph 9 of these reasons. He frankly admitted that he was once an “undesirable character”, but he believed that was no longer the case. He had suffered significantly from drug addiction and he said there was a relationship between that addiction and his offending. However, since his release from prison and his coming to South Australia, away from the drug related environment that he had experienced in Queensland, the applicant had continued with his University studies and he had become involved in volunteer and service work with Narcotics Anonymous and Alcoholics Anonymous. With this experience, it was his hope that he could become engaged in counselling as a psychologist in those areas.
24. Mr McColl furnished several character references which, he believed, supported his contention that he was now a person of good character within the meaning of the Act. However, it is pertinent to note that the character references furnished by Mr McColl make only one reference to his “criminal past” and provide little assistance in demonstrating that he is now a person of good character. It is also pertinent to note that his main reason for applying for Australian citizenship was to enable him to obtain the benefit of the HECS fees arrangements that are now only available to Australian citizens. Such an attitude seems inconsistent with the privilege that comes with the grant of citizenship and the enduring moral qualities that are expected from persons seeking the grant.
25. The Tribunal is mindful of the considerable number of offences committed by the applicant and by the pattern of behaviour shown by those offences. The Tribunal is also mindful that, realistically, only two years have elapsed since the expiration of the applicant’s obligations to the court in relation to his past convictions. Although he has provided references from colleagues with whom he has associated in his volunteer and fellowship works, the Tribunal is not satisfied that these references displace the shadow cast on the applicant’s character by his serious and relatively recent convictions. The obvious disregard for the laws and legal processes of Australia that have been demonstrated by the applicant’s crimes over a lengthy period would be undesirable to the majority of the Australian community. As was observed by Senior Member N Bell in Re He (supra) in similar circumstances, the applicant will suffer no prejudice from having his Application for citizenship refused. He can re-apply in the future and the refusal of the grant on this occasion should not dissuade him from making a further application when he might be better able to demonstrate that he is a person of good character.
decision
26. The decision under review is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ...........J Coulthard...........................................
AssociateDate of Hearing 20 January 2006
Date of Decision 10 April 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent AGS
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