Peskett and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 650

Peskett and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 650 (23 March 2018)

Division:GENERAL DIVISION

File Number:           2017/3143

Re:Lance Peskett

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President S Boyle
Member C Edwardes

Date:23 March 2018

Place:Perth

The decision under review is affirmed.

....[sgd]................................................................

Deputy President S Boyle

CATCHWORDS

CITIZENSHIP – criminal offences – whether applicant of good character – meaning of good character – enduring moral qualities – applicant found not to be of good character – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21, 21(2)(h), 24(1), 24(1A), 52(1)(b)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy, at 1 June 2016

REASONS FOR DECISION

Deputy President S Boyle

Member C Edwardes

23 March 2018

THE APPLICATION

1. The Applicant made an application on 30 May 2017 (T2) for review of the decision of a delegate of the Minister for Immigration and Border Protection (Delegate) made on 2 May 2017 (T12) to refuse the Applicant’s application for Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. Under section 52(1)(b) of the Act an application may be made to the Tribunal for review of the delegate’s decision.

   BACKGROUND

3. The Applicant is a citizen of the United Kingdom and arrived in Australia on 25 July 2006 as the holder of a BQ 138 permanent visa (T12, page 61 and R2).

4. On 20 January 2016, the Applicant lodged with the Department of Immigration and Border Protection (the Department) an application for Australian citizenship by conferral under section 21 of the Act (T4). In his application for citizenship the Applicant answered “No” to the question: “Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia…” (see T4, page 21).

5. WA Police records show that the Applicant had been convicted of the following offences (R1, page 2):

   (a)on 29 September 2010, the Applicant was found guilty in the Joondalup Magistrates Court of failing to obey an order given by an officer for which he was fined $300 (date of offence: 28 August 2010);

   (b)on 7 June 2011, the Applicant was found guilty in the Perth Magistrates Court of disorderly behaviour in public for which he was fined $500 (date of offence: 21 April 2011);

   (c)on 4 October 2011, the Applicant was found guilty in the Perth Magistrates Court of failing to obey an order given by an officer for which he was fined $500 (date of offence: 28 August 2011); and

   (d)on 4 October 2011, the Applicant was found guilty in the Perth Magistrates Court of breach of a bail undertaking for which he was fined $750 (date of offence: 16 September 2011).

6. On 1 November 2016 a delegate of the Department wrote to the Applicant inviting him to comment on adverse information that the Department had, namely the Applicant’s criminal record which could lead to a finding that he was not a person of good character. The letter also noted that the criminal convictions had not been disclosed by the Applicant in his citizenship application (T8).

7. On 5 January 2017 the Applicant responded by email to the delegate’s invitation referred to in paragraph 6 above. In relation to his convictions the Applicant said (T9):

   … I have made mistakes in the past which has been noted on my National Police Checking Service Report. I was very young at the time and have learned from them and moved on in my life in a positive manner.

8. The Applicant provided no explanation for his failure to disclose his convictions in his application or why he answered the question of whether he had convictions in the negative.

9. On 14 March 2017 a delegate of the Department wrote to the Applicant again and asked him to comment on his past criminal convictions (T10). This letter was in the same terms as the letter from the Department on 1 November 2016. It is not clear why the same letter was sent again in March 2017. The Applicant did not respond to this second letter.

10. By the letters dated 2 May 2017 (T12) and 8 May 2017 (T13) sent to different addresses the delegate notified the Applicant that his application for citizenship was refused on the ground that the delegate was not satisfied that the Applicant was of good character under section 21(2)(h) of the Act (the reviewable decision).

11. On 30 May 2017 the Applicant applied to the Tribunal for a review of the reviewable decision. In his application, in response to the question “why do you claim the decision is wrong” he said:

    The basis of this appeal it [sic] that I strongly disagree with the findings that I am not of “good character” as found in subsection 21 (2).

    I acknowledge that back in 2010 my character was not a good one and I thoroughly regret my decisions that I made. In 2010 I was 20 years old, still a boy in some eyes and my decisions reflect that of a boy as they were careless and not of any consideration to others wellbeing but my character has sincerely changed since that time.

    I also disagree with (p7) the findings [sic] that this was a relatively recent offence. The offence as stated previously was in 2010, seven years ago, 2,555 days ago and 6, 1320 hours ago. Since then I have had no re-offenses [sic] and moved to Sydney to pursue my dream career in joining the 18,000+ airmen and airwomen serving in the Australian Air force. In moving to Sydney I sold my bike in order to buy a car to transport my tools to work and to get myself to school.

    Although I have passed specific medical, physical standards and practical tests I am still required to have ATAR physics and citizenship in order to achieve this dream.

    I have moved to Sydney and set up a life for myself, leaving my mother, father, younger brother and two little sisters in order to attend school and gain the qualifications at a quicker pace than if studying in WA, Perth. My immediate family live in Perth and they all have citizenship with my little sisters attending primary school. I now balance my life between school and work which doesn’t leave much time for anything else as when I’m not working I am studying and vice versa. I have attached letters from my tutors to testify and support that I am no longer of that character that I once was, I have grown up in that seven years and I have seized the opportunities that I now have and I am determined to achieve my goals in becoming a pilot in the Australian Air force.

    “I strive for excellence in all that I do, to protect our skies, our country, the land I love” – the Airman’s Code.

    I ask that you look favourably on my appeal to be a citizen and join my family and allow me to prove that with a second chance I will achieve great things. I also ask that you allow me some of your time to meet in a face to face interview so that you can see that I am no longer the person or character that was mentioned, instead I am a friendly man with a positive outlook on life and not that boy that made a bad decision 7 years ago.

    ISSUE

12. The issue for determination by the Tribunal is whether the Applicant is of good character for the purpose of satisfying the relevant eligibility criterion to become an Australian citizen.

    EVIDENCE

13. The matter was heard in Perth on 30 January 2018. The Applicant appeared in person and was self-represented. The Respondent was represented by Mr Ashley Burgess, instructed by Sparke Helmore Lawyers.

14. The Tribunal had before it the following documents:

    (a)the statement of the Applicant received 11 September 2017 (A1);

    (b)a bundle of documents provided by the Applicant, which included (A2):

    (i)a reference provided by Larnce Clifton (undated);

    (ii)a reference provided by Ian Maley dated 2 August 2017;

    (iii)Statement of Excellence Certificate for outstanding achievement in HSC Legal Studies;

    (iv)a copy of the Applicant’s Certificate III in Solid Plastering; and

    (v)a reference provided by Melissa Knudson dated 22 January 2018.

    (c)a copy of the Applicant’s potential job opportunities in the Australian Defence force;

    (d)Western Australia Police records produced under summons (R1);

    (e)the Department of Immigration and Border Protection’s Movement History of the Applicant dated 30 January 2018 (R2);

    (f)the Respondent’s Statement of Facts, Issues and Contentions dated 10 November 2017 (Respondent’s SFIC) (R3); and

    (g)T-documents, including T1 – T14 (R4).

15. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing.

    LEGISLATIVE FRAMEWORK

16. Subsection 24(1A) of the Act provides:

    (1A)     The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

17. A person is eligible to become an Australian citizen if the Minister for Immigration and Border Protection (the Minister) is satisfied that he or she meets the requirements in subsections 21(2) of the Act. These requirements include the requirement in subsection 21(2)(h) of the Act that a person be of good character at the time of the Minister’s decision on the application for citizenship.

    The meaning of good character

18. The Act does not define “good character”. Guidance is provided in the Citizenship Policy (the Policy)[1] (see T14).  Chapter 11 of the Policy provides guidance for assessing an applicant under the “good character test” under subsection 21(2)(h) of the Act.

    [1] The Citizenship Policy came into force from 1 June 2016.

19. The Tribunal, as the decision-maker, will generally apply policy unless there are cogent reasons not to do so.[2]

    [2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640.

20. Chapter 11 of the Policy cites and adopts the reasoning in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432, in which the Full Federal Court noted (T14, page 80):

    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 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… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she is reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

21. Chapter 11 provides (T14, page 80):

    ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship… (emphasis added).

22. Enduring moral qualities encompasses the following concepts (T14, page 80):

    ·characteristics which have been demonstrated over a very long period of time

    ·distinguishing right from wrong

    ·behaving in an ethical manner, conforming to the rules and values of Australian society.

23. A decision maker may be satisfied that an applicant is of good character if the applicant has demonstrated good enduring moral qualities that are evident before their visa application and throughout their migration and citizenship process (T14, page 81).

24. The Policy contains examples of characteristics of good character, which include that an applicant of good character would (T14, page 82):

    ·Respect and abide by the law in Australia and other countries

    ·Be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)

    ·Be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example… concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship…

25. In weighing up the various factors the decision maker must apply community standards, decision makers may ask themselves (T14, pages 84-85):

    ·would a person of good character have behaved the way the applicant did

    ·what is there to demonstrate that the applicant has upheld and obeyed the law

    ·has the applicant behaved in accordance with Australia’s community standards

    ·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.

26. The decision maker (Tribunal) should look “... holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.” (T14, page 85)

27. The decision maker (Tribunal) may also have regard to references provided they “shed light upon an applicant’s character” however, “[d]ecision makers should give very little weight to references which do not acknowledge the offence or incident…[and] decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.” (T14, page 90).

    CONSIDERATION

28. The Applicant in his application for review (see paragraph 11 above), in his written submissions and evidence given during the hearing, maintained that he had made an “accidental error on [his] application form when selecting [he] had no criminal offences under [his] name” (A1).

29. The Applicant in his written submissions (A1) gave the following explanations for his criminal convictions, in relation to:

    (a)the convictions of 4 October 2011 for breaching his bail undertaking and failing to obey an order given by an officer, he said:

    It was a friend’s birthday party and I had been eagerly anticipating it for many months. All my friends were socially drinking before heading out to the club, but I had to work late and ended up driving into the city to meet them ,I [sic] was sober and hadn’t had a drink whereas they were all intoxitacted.so [sic] you can tell my displeasure and amazement at being told I was too intoxicated to get into the venue after seeing all my friends get let in right in front of me.I [sic] then argued with the security [sic] who told me to go and get a drink of water and come back. I was then given a move on notice by a police officer at the scene, I then went to the shop got a drink of water even though I hadn’t had a drink and returned forty five minutes later, to which I was told no again I was then arrested as the same police officer explained he gave me a move on notice and I have ignored this request [sic]. I was then taken to the police station and granted bail. I breached my bail because I failed to attend court as I was back in England visiting family at the time as there was [sic] family issues back home. I Immediately [sic] attended court when I returned and the matter was dealt with .I apologise for this and am deeply sorry but I hope this shines some light on the incident in question

    (b)the conviction of 7 June 2011 for disorderly behaviour in public, he said:

    I was out in the city centre having a few drinks with friends when I was caught urinating in public down a back alley. There was no public toilet nearby and I was intoxicated and made the immature selfish decision as I couldn’t hold it to go in the backstreet and was caught in the act. Having grown up I see this as being disgusting immature behaviour and something I am very ashamed happened.

    (c)the conviction of 29 September 2011 for failing to obey an order given by an officer, he said:

    It was another incident where I was given another move on notice for being drunk and disorderly and told to leave the area, to which I thought it would be a good idea to stay in the vicinity with friends and keep drinking. I was given a on the spot caution and then got a cab home.

30. The Respondent contends that the weight of the evidence does not support a finding that the Applicant is, at this point in time, a person of good character for the purpose of subsection 21(2)(h) of the Act.

31. Relevantly, paragraphs 26 to 32 of the Respondent’s SFIC submit that:

    26. The applicant’s offences weigh against his being of good character.

    27. The applicant was charged on two occasions for the same offence of failing to obey an order given by an officer, following incidents on 28 August 2010 and 28 August 2011; he was found guilty of the offences on 29 September 2010 and 4 October 2011 respectively. In his statement received on 14 August 2017, the applicant has attempted to play down the significance of the offences that he was found guilty of and to shift blame from himself to the arresting officer and the security guard who refused him entry into the venue.

    28. Notwithstanding the applicant’s attempt to explain the offence, the applicant was found guilty of the offence. It is well-established that the Tribunal cannot go behind a conviction and examine the facts on which it is based. The Minister contends that the applicant’s attempt to downplay the significance of the offence demonstrates that the applicant is yet to accept responsibility for his conduct.

    29. The Minister [sic] contention that the applicant is not of good character at this time is also supported by his conviction for breaching bail conditions when he failed to attend Court proceedings. The Minister contends that the applicant’s conduct demonstrates that the applicant did not accept the significance of his offending and that the applicant does not respect the laws and processes of Australia.

    30. The applicant also failed to declare his criminal offending when applying for citizenship. The applicant answered no to a question which asked “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)? The applicant has provided no explanation other than that he made a “simple accidental error” in filling out the form.

    31. In looking at whether someone is of good moral character, the Policy explains that a person of good character would

    a.be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example, concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.

    32. The Minister contends that this failure to declare the offences, of itself casts significant doubt over whether the applicant is currently of good character and the Minister contends that the failure to disclose demonstrates that the applicant has not yet reformed.

32. During cross-examination the Applicant was questioned on his failure to declare his criminal convictions as follows (Hearing Transcript, page 10):

    MR BURGESS: You were asked on that occasion "Has" - this is the character declarations - "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.  You state "No"?‑‑‑Yes, that's not correct.

    No.  Now, you didn’t just forget that you'd been arrested on four occasions did you, Mr Peskett?‑‑‑No, you can't forget that.  It was simple mistake, and that's all I can put it down to, a simple mistake.  I'd never lie or deceive, because I knew since my parents had gone for it - I knew there'd be a criminal record check, so I'd be stupid to lie or deceive, because I know what'll be coming later.  So it'd be stupid to do that.  It was a simple mistake.  For whatever reason I haven't read it right or I basically ticked the wrong box, or - but I'd be stupid not to know that a criminal record check would be taking place, knowing the application process through the rest of my family.  It'd be silly not to.  So I mean, there'd be no point in lying or deceiving, in my opinion anyway.

1. The Tribunal agrees with the Respondent’s submission that the failure to declare the offences casts doubts over whether the Applicant was of good character at the time of his citizenship application.

2. During cross-examination the Applicant said the following with regard to the 2011 offence of breach of his bail undertaking (see Hearing Transcript, pages 8 – 10):

   MR BURGESS: … And you were required to appear at the Perth Magistrates' Court at 8.45 on 16 September 2011, weren’t you?‑‑‑Yes.

   Now, you've provided in your statement reasons for not attending the court?‑‑‑Yes.

   Can you explain those reasons?‑‑‑Obviously it was very important to attend the court, but I did fly back to England to see my granddad.  He was very ill at the time and has since passed this year actually, so you know, I - you know, that's the last time I seen him, was when I flew back to see him, because he was very sick, so you know.  But the court was very, very important.  It was a family matter.  I just couldn’t leave.

   Because your grandfather was sick?‑‑‑Yes.

   That is back in England?‑‑‑Yes, and that's the only time I've been back to England since I've been in Australia, was then, just because it was so important.

   Well, Mr Peskett, the police records in relation to that offence, page 5, note that you told police that you were an apprentice plasterer and you thought you might lose your job if you didn’t go to work on that day.  You didn’t tell them you were back in England, did you?  So why are you telling the tribunal now that you were back in England?‑‑‑I came back to England and I went straight to the courts, and the morning I flew back from England I went straight to court and I walked into the Crown Court and said - because there was a warrant out.  I walked straight into the Crown Court and said I've just been back to England, and then I was given a court.  I had to wait, I think it was three days.  I was given a new court date because I'd missed it, but I flew in that morning and went straight to the court because it was so important.

   And this was in - - -?‑‑‑That was September.

   September 2011, and your - you were charged in the - this is 16 September 2011 you were required to appear?---Yes.

   And you were charged on the - the result date is recorded as 4 October.  Was that the date that you attended the court?‑‑‑I'm not too sure.  I think it was, but I know I flew back during September, and I know I did miss the first court date, because I was in England, and then I flew straight back, and then the morning I flew back I just went in on my own accord, when to the courts and said I've been back to England, and then it was - the matter was dealt with there and then and I was given a new court date. 

   Well, Mr Peskett, I put it to you that you are again lying to this tribunal.  You weren’t in England in 2011, were you?‑‑‑I was.

   Well, can the witness be shown a copy of his movement records?  I believe the tribunal has a copy.

   …

   MR BURGESS:  Well Mr Peskett, this - the Department's movement records clearly show that 2010 you were in England.  You left Australia on 21 September 2010, returned on 20 October 2010?‑‑‑Yes.

   And then you didn’t depart Australia again until 2015.  So you weren’t in England at the time you were meant to appear at your bail - at your court hearing, were you?‑‑‑I'm pretty sure I was.  Maybe that was for the last offence, the fourth offence, but that still doesn’t make sense to me.

   Well I put it to you, Mr Peskett, that you are misleading this tribunal.  You've provided a statement that clearly says you were in the UK and you attempt to explain your reason for not attending court by stating you were visiting your ill grandfather?‑‑‑Yes, I was

   It is completely made up, isn’t it?‑‑‑It's not completely made up.  If you check on the offence date for the Joondalup Magistrates' Court, 28 August, and I was back on 21 September 2010 for the Joondalup Magistrates'.

   Yes, but you weren’t required to attend the court on that occasion, were you?‑‑‑There wasn't - it's not made up.  No way.  I did go back to England and there was a warrant out.

   Well I put it to you, Mr Peskett, that you didn’t attend but you also were not in England at that time, and you've made that up for the purpose of these proceedings… 

3. The Tribunal finds that the Applicant gave misleading evidence to the Tribunal during the hearing as to his reason for failing to attend court (see in paragraph 34 above). The Department’s movement records show that the Applicant departed Australia on 21 September 2010 and returned to Australia on 20 October 2010 (R2), and that the Applicant did not leave Australia again until 21 April 2015 (R2). The Tribunal accepts these were the dates of the Applicant’s travel movements.

4. The Tribunal therefore finds that the Applicant, both in his written and oral submissions, misled the Tribunal as to the circumstances surrounding, and the details of, the offences.

5. Accordingly, the Tribunal finds that the Applicant has not demonstrated good enduring moral qualities during the citizenship application process or before the application process (see paragraph 22 above). As set out in paragraph 24 above the Policy provides that an applicant of good character would be truthful and not practise deception or fraud in their dealings with the Australian government. The Applicant has not been truthful and his evidence at hearing in relation to his breach of bail in 2011 was deceptive (see above in paragraph 34).

6. During the hearing the Deputy President asked the Applicant whether he accepted responsibility for all the offences. In reply the Applicant said:

   I do accept responsibility for them and I've made mistakes.  I accept that, and, yes, accept what's happened.  (Indistinct.)  That's the only way you can sort of get out of that, is by accepting responsibility and by accepting - that's the only way you can change and accept what's happened.  I don’t bear - there's no grudges or nothing.  It's just - that was the past.

7. In Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14], Deputy President Wright said:

   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.

8. The Tribunal finds that in light of the Applicant’s misleading evidence referred to in paragraph 34, the Applicant’s supposed acceptance of responsibility for the offences referred to in paragraph 38 should be given little weight, as should the considerations of length of time since the commission of the offence and degree of rehabilitation.

9. The Applicant provided several references as to his good character as follows:

   (a)Mr Clifton said: “There were a few hiccups in 2010 when Lance did get into some trouble with the police. I have to admit it was really out of character and I can only say that youth and stupidity where the reasons behind this trouble, but Lance is not that person now and it would be sad to see him judged on some mistakes he made as a young man.”;

   (b)Mr Maley said: “I have always found Lance to be hard working, trustworthy and loyal as both an employee and friend. I believe he was young and immature when he found himself in trouble and I will vouch for his good character.”; and

   (c)Ms Knudson said: “Lance is diligent, reliable and personable student. He was respectful of both teaching staff and fellow classmates and is open to instruction… Lance was a calm but active member of class and will be an asset to those for whom he works for and studies with in his future endeavours…”

10. Although the letters from Mr Clifton and Mr Maley make reference to the Applicant finding himself in “trouble” they do not properly acknowledge the relevant offences. In accordance with the Policy as set out in paragraph 27 above, the Tribunal notes the inherent bias in the references provided and gives little weight to these reports.

    CONCLUSION

11. The Tribunal accepts that the Applicant has a genuine desire for Australian citizenship.

12. However, having considered all the evidence and for the reasons given at paragraphs 28 to 42 above, the Tribunal is not reasonably satisfied that the Applicant is of good character for the purpose of subsection 21(2)(h) of the Act.

13. The Tribunal finds that the Applicant has a not insignificant criminal record but, more importantly that he has not been truthful and has not demonstrated good enduring moral qualities during the citizenship application process.

    DECISION

14. The decision of the delegate of the Minister, dated 2 May 2017, to refuse the Applicant’s citizenship application is affirmed.  

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle, and Member C Edwardes

...[sgd]...............................................................

Administrative Assistant - Legal

Dated: 23 March 2018

Date of hearing:	30 January 2018
Applicant:	Self-represented
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers