Orsag and Minister for Immigration, Multicultural and Indigenous Affairs
[2002] AATA 1334
•24 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1334
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/575
GENERAL ADMINISTRATIVE DIVISION )
Re IVAN ORSAG
Applicant
And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr O Rinaudo, Member
Date24 December 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with a direction that the applicant satisfies the requirements of section 13(1)(f) of the Australian Citizenship Act 1948.
...................(Sgd)......................
O Rinaudo
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – character – whether the applicant is of "good character" – prior poor conduct – whether applicant has reformed
Australian Citizenship Act 1948 s 13(1)(f)
Australian Citizenship Instructions
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Hamwi and Department of Immigration and Ethnic Affairs (AAT 9639, 25 July 1994)
Re Maumovski and Minister for Immigration and Ethnic Affairs (AAT 9815, 4 November 1994)
Re PE and Department of Immigration and Ethnic Affairs (AAT 9990, 6 February 1995
Re Milnar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
REASONS FOR DECISION
24 December 2002 Mr O Rinaudo, Member
Decision under Review
Mr Ivan Orsag appeals the decision to refuse the grant of a certificate of Australian citizenship to the applicant, pursuant to section 13(1)(f) of the Australian Citizenship Act 1948 ("the Act").
FactsMr Orsag, who is 39 years of age, was born in Yugoslavia on 4 November 1962. On 16 December 1964, at the age of two, he was brought to Australia by his parents.
Mr Orsag has resided in Australia since that time.
From 1981 to 1997, Mr Orsag was before the Courts on a number of different charges which eventuated in his being fined, his driver's license being disqualified, his being ordered to pay compensation and restitution; and, on 28 April 1997, he was convicted in the Cairns District Court of causing grievous bodily harm and imprisoned for four years with a recommendation that he be considered for parole after serving fifteen months.
On 21 April 2001, Mr Orsag had completed his prison term and his parole period expired. By then he was employed by CEC Group Pty Ltd and remains in that employment to date. During his imprisonment and probation, Mr Orsag completed courses in substance abuse education; a cognitive skills programme and an anger management programme in Townsville. He commenced employed with CEC Group on 4 January 1999.
These facts are largely uncontested.
LegislationSection 13 of the Act relevantly provides:
"13 Grant of Australian citizenship
(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; …"
The respondent also provided a copy of its Policy with respect to "good character" which is contained in paragraph 5.4 of the Australian Citizenship Instructions and which reads as follows:
"5.4 Good Character Requirement s 13(1)(f)
5.4.1 Applicants for grant of Australian citizenship under s13(1) are required to be 'of good character':
If an applicant fails to satisfy the minister's delegate that s/he is not of good character, the application cannot be approved (it must be deferred or refused, as appropriate). …
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.
5.4.3 If 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.
5.4.5 Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 – 5.4.15, if there is evidence that the applicant:
(a) has, at any time, been sentenced to:…- a term of imprisonment of 12 months or more; …
5.4.7 Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud, 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.
…
5.4.11 Consider 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 for which a conviction has been recorded 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).
5.4.12 Consider 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.
5.4.13 Crimes committed by the applicant at a young age may be given less weight depending on the nature of the crime and the applicant's subsequent record. It may be considered that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.
5.4.14 A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
…
5.4.16 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.
5.4.17 The 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 t 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."
Issue
The issue to be determined by the Tribunal is whether Mr Orsag satisfies the "good character" requirement such that he be issued with a certificate of Australian citizenship pursuant to section 13 of the Act.
EvidenceMr Orsag was represented at the hearing by his de facto partner's brother, Mr M Whiting. The physical evidence provided at the hearing was as follows:
Exhibit 1 "T" Documents and Supplementary "T" Documents
Exhibit 2 Comments in support of Mr Ivan Orsag relating to Preliminary Visa Review and Citizenship Application Refusal
Exhibit 3 Copy Birth Certificate
Exhibit 4 Letter dated 27 August 2002 from the Hon Warren Entsch MP to the Hon Philip Ruddock MP
Exhibit 5 Schedule of Child Support Deductions – 12 August 2002.
Mr Orsag gave evidence. His evidence was largely that he admitted that over a long period of time he had had a problem with drink, particularly when he had been resident in Mt Isa where drinking had been a large part of his life. He had had relationship problems which had been frustrating. In particular, he had been denied access to his two daughters by another relationship but had custody of his son until he went to jail. He said that there were many frustrations in his life and that this had been manifested in his bad behaviour and his having been brought before the Courts.
Mr Orsag gave evidence that his jailing for the offence, which he realised was a very serious offence and for which he pleaded guilty, shocked him and had changed his life. He said that before prison he felt as though he had been stuck in a box.
He stated that the issue of his deportation had come up while he was in jail. He indicated that he was now in a loving and stable relationship, that he had bought a home in Cairns to accommodate his children, that he intended to remarry and that he had a stable job which he enjoyed tremendously and wanted to keep. He stated that he wanted to become an Australian citizen before he got married.
Evidence was also received from Mr Orsag's de facto partner, Patricia Whiting. She gave evidence of a very stable and loving relationship with a person who had a good job and who was very honest and straight with her. She indicated that they were intending to marry and that her children had taken to Mr Orsag and everybody was very happy with the relationship. She indicated that if the application were unsuccessful then she would still marry Mr Orsag and if he were deported she would leave with him. She stated that whilst she was fully aware of his previous criminal history she did not know him back then so could not say whether he had changed. All she could say was that now he was a very honest, straight, mature and responsible person and that she could not believe that he would do anything like what he had done in the past, that he had never been violent to her or in her presence and that their relationship was built on a relationship of trust, that Mr Orsag was calm and thinks things through and that he was self-disciplined.
A number of other witnesses were called on behalf of Mr Orsag. These included Mr Murray Mouille, Mr Colin Wood and Mr Bruce Williams, who was the General Manager of the company employing Mr Orsag. The other two witnesses were executive staff of that company. Each of these people had travelled from Cairns to Townsville to give evidence.
The Tribunal was most impressed with the evidence provided by each of these persons. They spoke in glowing terms of Mr Orsag and his responsibility and commitment to their employment. The Tribunal was told that CEC is a large company with a substantial turn-over, approaching $30m a year, and many, many employees. The Tribunal was impressed that the General Manager had seen fit to come to the Tribunal and give evidence on behalf of Mr Orsag.
Further evidence was given by Mr Ivan McConaghie who lived across the road from Mr Orsag and Mr Syd Young who also lived in the same street as Mr Orsag. Again, these witnesses gave glowing references of Mr Orsag's character and his honesty and reliability.
Discussion and DecisionThe submission on behalf of the applicant was that the applicant, notwithstanding his past history, had now become a model citizen and was entitled to Australian citizenship. The submission focused on the glowing references given in evidence by the witnesses and the substantial number of other statutory declarations that had been provided by persons who knew Mr Orsag who spoke of his good character.
The Tribunal could not be other than impressed by the level of commitment shown to Mr Orsag by these witnesses. The Tribunal was also impressed by Mr Orsag's evidence with respect to his remorse at the events leading up to his being jailed and the fact that he had undertaken self-help courses with a view to improving his character.
On behalf of the respondent it was submitted that it was simply too early to tell. In particular, the respondent referred to a number of decisions with respect to the definition of "good character".
In particular, the respondent referred to the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 in which Lee J made the following comments at page 94 with respect to "good character":
"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 Australia Capital Territory (1999) 122 ACTR 25."
The Tribunal was further referred to the decisions in Re Hamwi and Department of Immigration and Ethnic Affairs (AAT 9639, 25 July 1994) and Maumovski and Minister for Immigration and Ethnic Affairs (AAT 9815, 4 November 1994) and Re PE and Department of Immigration and Ethnic Affairs (AAT 9990, 6 February 1995).
In Re Milnar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771, Deputy President Chappell stated:
"The standard of good character should be even higher for citizenship cases than s501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it."
And further, the Tribunal was referred to the matter of Irving v Minister for Immigration, Local Government and Ethnic Affairs (supra) in which Davies J commented at page 87:
"criminal convictions or the absence of them and character references are likely to be an important source of primary information."
It should be remembered that this is a case in which the applicant was brought to Australia by his parents when he was two. He is, for all intents and purposes, an Australian. He has never been out of the country since he arrived in Australia some thirty-seven years ago. In fact, the Tribunal could not help but note that his appearance in the witness box before the Tribunal was almost quintessential Australian outback.
Having said this, there is no doubt that Mr Orsag has had a long history of association with the law. The offence leading to his jailing was a particularly serious offence. Mr Orsag is aware of this.
It is clear from the authorities referred to that "good character" is a term which defines a person's life rather than necessarily any particular period in their life (refer Irving's case above).
In this case, however, the evidence supporting Mr Orsag's good character was simply overwhelming. There is no doubt that he had a period in his life when factors affected his actions. He paid the ultimate price for this when he was jailed. He completed his jail term, sought to rehabilitate himself and has been working for almost two years for a company of considerable size. There is no doubt from the evidence provided that he is now regarded as a person of good character by his employers and his neighbours and by many others. The issue is, is he likely to revert to poor conduct?
The Tribunal is satisfied that the evidence does not support a reversion by Mr Orsag to his previous life. He is now living in a stable relationship with a woman he intends to marry. He has purchased a home and therefore has the responsibility of maintaining the home and paying the mortgage. He has provided for a safe environment for his children so that he may re-acquaint himself with them. He has excelled at his job.
In all of the circumstances, the Tribunal considers that Mr Orsag now displays all of the elements of "good character" which will make him a valuable member of the Australian community. Accordingly, a certificate of Australian citizenship should be issued to Mr Orsag.
DecisionThe Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with a direction that Mr Orsag satisfies the requirements of section 13(1)(f) of the Australian Citizenship Act 1948.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 22 October 2002 (at Townsville)
Date of Decision 24 December 2002
For the Applicant Mr M Whiting
For the Respondent Mr B Cramer, Messrs Blake Dawson Waldron
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