Philipson and Minister for Immigration and Multicultural and Indi Genous Affairs

[2003] AATA 215

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 215

ADMINISTRATIVE APPEALS TRIBUNAL          Nº V2001/1330

GENERAL ADMINISTRATIVE  DIVISION

Re:            DEAN THOMAS PHILIPSON

Applicant

And:         MINISTER FOR IMMIGRATION

AND MULTICULTURAL AND

INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:6 March 2003

Place:Melbourne

Decision:The Tribunal affirms the decision under review.  

(sgd) G.D. Friedman
  Member

CITIZENSHIP ‑ application for registration of Australian citizenship by descent ‑ prior convictions ‑ whether applicant of good character

Australian Citizenship Act 1948 s13(1), 10C(4)(d)

Migration Act 1958 s501

Goldie v Minister for Immigration & Multicultural Affairs  (1999) 56 ALD 321

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187

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

Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

Re Patterson; ex parte Taylor (2001) 182 ALR 657

Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997)

REASONS FOR DECISION

6 March 2003  G.D. Friedman, Member

1. This is an application by Dean Thomas Philipson (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 9 October 2001 to refuse an application for registration of Australian citizenship on the grounds that the applicant is not of good character within the meaning of s10C(4)(d) of the Australian Citizenship Act 1948 (the Act).

2.      At the hearing of this matter on 13 February 2003 Mr R. Niall of counsel represented the applicant and Mr W. Mosley of counsel represented the respondent.

3. The Tribunal accepted into evidence documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (T1 to T20 and S1), together with nine exhibits (Exhibits A1 to A9) tendered by the applicant.

BACKGROUND

4.      The applicant was born in Birmingham, United Kingdom on 28 May 1970.  At the time of his birth his father was an Australian citizen by birth and his mother was a British citizen by birth.  In about 1971 his parents decided to reside permanently in Australia and they made application to migrate to Australia under the assisted passage scheme and to include the applicant and the applicant’s sister (born in Birmingham on 22 May 1967).  The applicant’s father believed that he registered the children as Australian citizens at Birmingham, but no record of this has been located.

5.      The family did not proceed with the application because of the illness of the applicant’s maternal grandmother.  After her death in 1972 the family made new applications to migrate, and they arrived in Australia on 27 October 1972 as full fare-paying passengers.  They have resided in Australia ever since.  Between 12 April 1989 and 21 June 2000 the applicant was convicted of the following offences:

Date	Offence	Sentence
12 April 1989	Assault Police	Fined $350
20 July 1989	Theft of Motor Car	Fined $500. Disqualified from obtaining licence for 6 months
31 March 1993	Trafficking Cannabis	6 months sentence suspended for 2 years
Possess Cannabis	Convicted and fined $700
Use Cannabis	Convicted and fined $700
Possess Cannabis	Convicted and fined $100
18 April 1995	Criminal damage (Intent damage/destroy)	Convicted and fined $500
24 October 1996	Wilfully damage property	Convicted and fined $150
Drunk in a public place	Convicted and discharged
19 December 1995	Drunk in a public place Use indecent language in a public place	Both charges convicted and fined aggregate $300
3 October 1996	Wilfully damage property	Convicted and fined $500.  To pay $350 restitution
8 January 1997	Intentionally or recklessly cause injury	Convicted community based order for 12 months. To perform 250 hours unpaid community work
Use indecent language in public place	Convicted and fined $200
Drunk in a public place	Convicted and fined $50
21 June 2000	Recklessly cause serious injury	18 months
Recklessly cause injury	12 months. 6 months concurrent. Total 2 years. Non-parole period of 15 months

6. On 21 June 2000 the applicant commenced his gaol sentence. On 10 October 2000 the Department of Immigration and Multicultural Affairs (the Department) informed the applicant that his visa may be liable for cancellation under s501 of the Migration Act 1958 on character grounds, which might have led to the applicant’s removal from Australia.  On 8 May 2001 the Department informed the applicant that a decision had been made by the Minister not to cancel his visa but to warn him that a cancellation may be re-considered if additional information came to notice.

7. On 26 July 2001 the applicant completed his term of imprisonment and was released from custody, with parole conditions lasting until April 2002. On 8 August 2001 he made application to the respondent for registration of Australian citizenship by descent. On 9 October 2001 the respondent refused the application under s10C(4)(d) of the Act because the applicant did not meet the good character requirement.

8.      On 17 October 2001 the applicant lodged an application with the Tribunal for review of the decision.

EVIDENCE

9.      In a statutory declaration dated January 2003 (Exhibit A1) the applicant stated that he has resided in Australia since 1972 and regards Australia as his home.  He said that the possibility of his removal from Australia had a devastating effect on him and his family.  The applicant stated that all of his criminal convictions were related to his reliance on drugs of dependence, particularly excessive consumption of alcohol.  He told the Tribunal that he is remorseful and since his release from gaol he has given up alcohol.  He explained that while in gaol he completed several counselling and other courses such as anger management and has complied with all his parole requirements.  The applicant stated that he has the support of his family, including his daughter, parents, sister and fiancee, all of whom are Australian citizens. 

10.     The applicant noted that apart from his criminal history he has discharged his responsibilities with respect to parenting, work and family commitments with diligence and devotion, and he now wishes to be a fully-recognised member of the Australian community by enjoying the privileges of Australian citizenship and to become involved in community work.  In oral evidence the applicant stated that he is currently receiving sickness benefits, but hopes to be able to resume work in the future, perhaps as a landscape gardener or in the building industry.  He told the Tribunal that he is taking medication for depression and anxiety.

11.     Under cross-examination the applicant agreed that the two charges for which he received a gaol sentence in June 2000 were serious, but that in each case alcohol was involved and he had acted in self-defence.  With respect to drugs and alcohol he stated that he began using marijuana and alcohol at the age of 16, and still smokes marijuana every couple of months for relaxation.  He said that before commencing his gaol sentence he used heroin intravenously, as it relieved stress, and he went on a methadone program.  He emphasised that he no longer uses heroin.  The applicant stated that he does not mix socially with former friends as he does not wish to get into any further trouble, and lives a quiet life with his parents.  He said that he sees his fiancee daily and his daughter at weekends and during school holidays. 

12.     In a statutory declaration dated 28 January 2003 (Exhibit A3) Mr J. Philipson, the applicant’s father, stated that he recalled providing relevant information to Australian immigration officials in Birmingham to register both children as Australian citizens prior to the family’s departure in 1972.  Mr Philipson said that the applicant is a person of good character and deserves to be granted Australian citizenship.  He said that the applicant’s criminal activities could have happened to any person growing up in the environment in which the family lived.  He said that the applicant left school early and missed out on a good education, and has learnt his lesson the hard way.  Mr Philipson noted that the applicant no longer uses alcohol and is unlikely to be involved in violent circumstances again.

13.     Under cross-examination Mr Philipson stated that he had no knowledge of the applicant’s past or present drug use, and stated that the applicant has become somewhat withdrawn.  He said that he believes the applicant no longer has any contact with former associates, preferring to spend time around the house or with his fiancee and daughter.  

14.     In a statutory declaration dated 28 January 2003 (Exhibit A4) Mrs J. Philipson, the applicant’s mother, stated that she always assumed that the children were registered as Australian citizens before the family left the United Kingdom in 1972.  She said that she and other family members have always been supportive of the applicant, and that he is now worthy of Australian citizenship.  She stated that his criminal activities were the result of the use of alcohol and drugs.  Mrs Philipson said that the applicant’s period of imprisonment had been a life-changing event that has enabled him to come to terms with the impact of his behaviour on himself and his family.  She stated that the applicant seems genuinely remorseful and has eliminated the primary cause of the problem by abstaining from the use of alcohol.

15.      Under cross-examination Mrs Philipson stated that she became aware of the applicant’s use of heroin when he was sentenced to his gaol term, and was not aware of current drug use.  She described the applicant as an excellent father who has learnt from past mistakes.

16.      In a statutory declaration dated 25 January 2003 (Exhibit A5) Ms B. Philipson, the applicant’s daughter, stated that the applicant has always been a kind, loving and supportive parent.  She said that since his release from gaol the applicant no longer consumes alcohol and has changed for the better.  She said she knows that he learnt his lesson in gaol, and she does not believe he will get into trouble any more. Under cross-examination Ms Philipson stated that she lives with her maternal grandparents for reasons primarily related to her schooling, but she sees the applicant regularly and enjoys spending time with him.

17.      In a statutory declaration dated 24 January 2003 (Exhibit A6) Ms S. Philipson, the applicant’s sister, stated that she and the applicant have a close relationship and grew up in Australia believing that they were Australian citizens.  She said that the applicant had a difficult time as a young person, and that excessive alcohol consumption was the cause of his violent outbursts and criminal history.  In oral evidence Ms Philipson stated that since the applicant’s incarceration he has reformed and has acted responsibly, and would discharge his duties as a citizen, towards his family and the community with the utmost respect and diligence in the future.  Under cross-examination she stated that the applicant has matured and no longer associates with previous friends in the Dandenong area, preferring to spend time with family.

18.      In a statutory declaration dated 28 January 2003 (Exhibit A7) Ms N. Fairbairn, the applicant’s fiancee, stated that she has known the applicant for a number of years and has been engaged to him since about mid-1998.  She stated that there has been a significant change in the applicant’s attitude since his release from gaol, and he has abstained from the use of alcohol.  Ms Fairbairn said that he is a kind and considerate partner and a good and loving father, who is capable of helping the community with his skills.  In oral evidence she told the Tribunal that she and the applicant see each other every day, and intend to marry in the future.

19.     Under cross-examination she stated that she and the applicant are now closer than ever.  She said that the applicant takes methadone daily, as prescribed by his doctor, for heroin withdrawal, and takes no drugs other than prescribed medication for anxiety.  When informed of the applicant’s evidence Ms Fairbairn said that she was unaware of his continuing use of marijuana.  She stated that she and the applicant have contact with friends whom the applicant has known for a long time, and that no alcohol is consumed on these occasions.  She explained that marriage or the possibility of living together has been discussed from time to time, but that financial constraints are an impediment at this stage. 

20.     In a statutory declaration dated 29 November 2002 (Exhibit A8) Dr K. Teo, medical practitioner, stated that he has known the applicant as a patient since 1994 and that, to the best of his knowledge, the applicant does not consume alcohol.  He confirmed the contents of a written statement dated 28 December 2001 in which he said that the applicant is illiterate and has learning difficulties, which have contributed to his poor impulse control and substance abuse.  Dr Teo supported the application for citizenship.

21.     In a statutory declaration dated 24 January 2003 (Exhibit A9) Ms O. Bannister, program worker, Salvation Army Positive Lifestyle Centre, confirmed the contents of a written statement dated 11 January 2002 in which she said the applicant attended counselling at the Centre as part of his parole requirements.  She said that he completed the 12-step program on 30 October 2001 and had completed two steps of the Relapse Prevention Program.

22.     In an undated statement (Exhibit A2) Mr G. Talbot, Community Corrections Officer, said that he supervised the applicant after the applicant’s release from gaol in July 2001.  He stated that the applicant successfully completed a three-month intensive parole period, the drug and alcohol programs conducted by the Salvation Army and an anger management program.

CONSIDERATION OF THE ISSUES

23.     Under s10C of the Act:

…

(4)          The Minister must register, in the prescribed manner, an applicant for registration under this section if:

…

(d)the Minister is satisfied that the applicant is of good character.

24.     Mr Niall conceded that there was no documentary evidence that the applicant’s father had registered the applicant or the applicant’s sister for citizenship before the family migrated to Australia in 1972.  Mr Niall submitted that the main issue is the question of good character as stated in s10C(4)(d) of the Act. He referred the Tribunal to Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 in which the Full Federal Court stated at paragraph 8:

Section 501 [of the Migration Act 1958] does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of "good character" in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within s501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

He said that the Act establishes the context of good character.  He noted that on the basis of the High Court decision in Re Patterson; ex parte Taylor (2001) 182 ALR 657 the applicant is a non-alien non-citizen, and cannot be removed from Australia. Mr Niall submitted that, in this context, there is no concern as to the protection of the Australian community. He said the true test is not the highest standard of moral qualities, but whether the applicant has sufficient moral qualities to formalise his relationship with Australia, particularly as his mother, father, sister, and daughter are Australian citizens.

25.     Mr Niall said that the offences that led to the gaol sentence were serious but were reckless acts committed in a social context rather than intentional acts.  He noted that the trial Judge referred to the need to impose a sentence that would act as a deterrent for the applicant and others.  He submitted that deterrence has succeeded in that the applicant has ceased using alcohol and has maintained and developed his relationship with his daughter and his fiancee.  Mr Niall stated that the applicant has made significant advances towards rehabilitation, and that this demonstrated enduring moral qualities as well as a depth of character.   

26.     Mr Niall referred the Tribunal to Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, in which the Federal Court stated that a person’s conduct may make the person’s enduring moral qualities visible, but it should never be confused with them. The Court noted that in each case, having had regard to the conduct, the decision-maker must still come to a further conclusion, whether to be satisfied that the person is not of good character. Mr Niall said that the applicant had given evidence in a frank and candid manner, had acknowledged his wrongdoing and was now accepting his responsibilities, and was already a part of the Australian nation and community. Mr Niall submitted that for these reasons the applicant had demonstrated sufficient character to formalise his relationship with Australia, and deserved to be granted citizenship.

27. Mr Mosley submitted that under s10C(4)(d) of the Act there is no discretion to grant the application and that the respondent must be satisfied that the applicant is of good character. He noted that the term good character specified in 10C(4)(d) of the Act is not defined in the Act.  However he said that decision-makers are to be guided by the policy contained in the Australian Citizenship Instructions that came into effect on 1 July 2002 (the ACI).  Mr Mosley submitted that the Tribunal should have regard to the ACI unless there are cogent reasons why it should not do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). He said that Chapter 5 of the ACI sets out the policy guidelines which are to be applied by delegates of the Minister in assessing applications for the grant of a Certificate of Australian Citizenship under the provisions of s10C and s13(1) of the Act:

…

5.4.2The 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.

5.4.4Assessment 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 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(1l)(a) (see 5.3.4); or

(g)is on release from the whole, or a part, of a sentence on parole, licence or security

5.4.6    …

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, 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.

5.4.8…

5.4.9Consider whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond…

5.4.10…

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 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).

5.4.12Consider 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.

5.4.13Crimes 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.

5.4.14A 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.

5.4.15Where a decision-maker is not satisfied that a person is of good character at the time they assess the application for citizenship by grant but if given a further period of time they consider that they would be likely to grant the application, the option of deferring the application under s 14A should be considered.  See 3.4(d).

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.

5.5      CHARACTER REQUIREMENTS FOR CITIZENSHIP BY DESCENT

5.5.1A person aged of 18 years or over applying for Australian citizenship under slOB or sIOC is required to meet good character requirements before their application can be approved.  To determine whether or not a person meets the character requirements see paragraphs 5.4.2 - 5.4.17.

28.     Mr Mosley referred the Tribunal to Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997) in which the Tribunal stated that character is to be judged objectively against ordinary community standards of moral behaviour.  The Tribunal also stated (at paragraph 22) that:

…In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Davies J (with whose reasons R D Nicholson J agreed) said (at p.425):

“…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... 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 upon the character of the applicant…"

29.     Mr Mosley referred to Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 in which the Tribunal said (at paragraph 17):

"Good character" in s 13 [of the Act] should be given the same meaning as it is in s 501 of the Migration Act 1958…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 Mosley stated that there is no distinction in the legislation between the requirements of s10C(4)(d) and s13(1) regarding good character, so whether the applicant falls into a class of persons described in Re Patterson; ex parte Taylor as a non-alien non-citizen who cannot be removed from Australia, or into any other class of persons, is not relevant for the purposes of determining whether a person is of good character.

30.     The Tribunal was told that the applicant has a substantial criminal record of fifteen convictions involving offences of violence and damage to property, as well as a relatively recent period of imprisonment for crimes committed whilst using alcohol.  Mr Mosley said that the numerous offences demonstrate a pattern of criminality by a repeat offender since 1989.  He noted that the most serious offences were committed in 1997, 1998 and 1999, and were similar, in that assaults were committed in a social environment.  He drew attention to the description by the trial Judge of the latest two offences as serious crimes of violence and submitted that and these matters strongly suggest that the applicant is not a person of good character.

31.     Mr Mosley noted that the applicant still smokes marijuana, knowing that it is an unlawful activity.  He also referred to the evidence from Ms Fairbairn that the applicant takes methadone regularly, and questioned why the applicant had concealed this information.  He said that the applicant was 28 years old at the time of the most recent offence, and that at the hearing the applicant claimed he acted in self-defence during the serious assaults, yet he pleaded guilty to one of the offences in the County Court of Victoria.  Mr Mosley noted that the only material supporting the applicant’s claims of good character were from close family members, and there was no evidence of any contribution to the community.  He stated that at some point in the future the applicant might be able to demonstrate that he is of good character.

32.     In reaching its decision the Tribunal takes into account the relevant documents, oral evidence and written and oral submissions.

33.     The Tribunal agrees with Mr Niall that as there was no documentary evidence that the applicant’s father had registered the applicant or the applicant’s sister for citizenship before the family migrated to Australia in 1972, the main issue is the question of good character.  The Tribunal notes that in Goldie the Federal Court referred to the enduring moral qualities of a person rather than the highest standards of integrity.  The Tribunal takes into account that the words good character in s10C(d)(4) of the Act are the same as in s13(1) of the Act and are not defined in the Act. There is no legislative or other basis for the proposition by Mr Niall that the standard should somehow be lower because the applicant is a non-alien non-citizen who is seeking to comply with a requirement that he formalise his relationship with Australia. The Tribunal agrees with Mr Mosley that the test is one of enduring moral qualities in the context of the policy guidelines of the ACI and the circumstances of the particular application.

34.     In applying the guidelines outlined in Irving and Re Mlinar to relevant matters, the Tribunal is satisfied that the convictions represent serious breaches of the law and demonstrate a pattern of behaviour that involves a disregard for the law over a substantial period.  The most recent two offences have been viewed by the courts as sufficiently serious as to warrant terms of imprisonment.  For these reasons the Tribunal accepts the submission by Mr Mosley that, in applying the ordinary meaning of good character, the convictions reflect adversely on the character of the applicant.

35.     In determining whether the applicant has demonstrated that he is of good character, the Tribunal applies paragraphs 5.4.2-5.4.17 of the ACI.  The Tribunal accepts that the applicant has had no criminal convictions since his release from gaol in July 2001 and the completion of his period of parole in April 2002, and that there are no outstanding matters involving him.  The Tribunal also accepts the applicant’s evidence that he has ceased consuming alcohol and that he has a close relationship with Ms Fairbairn and immediate family members, whose evidence was strongly supportive of his efforts to rehabilitate himself and to put the past behind him.

36.     On the other hand, the Tribunal finds that the offences, particularly those committed in 1997, 1998 and 1999 were not one-off matters but were part of a pattern of offending over a considerable period, so could not be considered out of character..  The Tribunal notes that the applicant was 28 years old at the time of the latest offence, so his crimes cannot be given less weight, as they might if committed at a young age.  In the written material there are references to an intention by the applicant to undertake community service, but the Tribunal is not aware of any evidence that he has attempted such service since his release from gaol.  The Tribunal takes into account that the applicant lives a quiet life in a small town and his activities largely involve family members.  However, the applicant gave evidence of social contact with other people, and the Tribunal notes that there is no objective evidence from persons outside the immediate family (such as friends, neighbours, members of the community or former employers) concerning his reputation and status in the community in which he lives.  The material regarding his attendance at courses while in gaol and during parole, and from Dr Teo, does not address these issues.

37.     The Tribunal finds that after a considerable period of committing criminal offences, the period since the most recent conviction and completion of parole in April 2002 is relatively short.  The Tribunal agrees with Mr Mosley that the evidence by the applicant that he had acted in self-defence in committing both offences that resulted in the gaol sentence raises questions about his acceptance of responsibility for his actions and whether he has shown genuine remorse.  Similarly, his admissions of continuing use of marijuana, and his failure to mention in his evidence his regular methadone medication, raises questions about his drug use and the extent of his rehabilitation.

38. For these reasons the Tribunal finds that, on balance, it is not satisfied that the applicant is of good character. Consequently, he does not satisfy s10C(4)(d) of the Act and is not eligible for registration of Australian citizenship.

DECISION

39.     The Tribunal affirms the decision under review.   

I certify that the preceding thirty-nine [39] paragraphs are a true copy of the reasons for the decision of

G.D. Friedman, Member:

(sgd)       Catherine Thomas

Clerk

Date of hearing:  13 February 2003
Date of decision:  6 March 2003
Counsel for applicant:               Mr R. Niall
Solicitor for applicant:                Chris Gunasekera
Counsel for respondent:            Mr W. Mosley
Solicitor for the respondent:       Australian Government Solicitor