Robert Vernon and Minister for Immigration and Border Protection
[2014] AATA 777
•24 October 2014
[2014] AATA 777
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5127
Re
Robert Vernon
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr D Letcher QC, Senior Member Date 24 October 2014 Place Sydney The decision under review is affirmed.
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Mr D Letcher, QC, Senior Member
CATCHWORDS
CITIZENSHIP – cancellation of approval of citizenship application – whether applicant is not of good character – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 s 25
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Mr D Letcher, QC, Senior Member
24 October 2014
The applicant was born in Great Britain in 1952 and first entered Australia in 1957. He remained here until 1986 when he went with his Canadian-born wife to Canada, obtained Canadian citizenship and in 1993 began a US business and later obtained US citizenship. The applicant has citizenship of Great Britain, Canada and the USA. He has returned to Australia only for a number of short periods a month in 1995 and 2000 and then on 13 December 2007 he entered Australia on a Resident Return visa but was arrested on 6 January 2010 and extradited to the USA on 19 March 2010 to face criminal charges.
The applicant had applied for Australian citizenship by conferral on 14 December 2009, that application was approved on 9 February 2010 but the respondent’s delegate cancelled that approval on 16 August 2013 and the applicant now seeks review of that decision by this Tribunal. The applicant’s permanent resident status ceased on 23 November 2012. He is presently residing in Canada.
The delegate’s decision was made on the ground that the applicant was not of good character under section 25 of the Australian Citizenship Act 2007 (“the Act”). “Good character” refers to “the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community… 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 has reformed and is of good character” (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432). The government’s policy document, Australian Citizenship Instructions (“Citizenship Instructions”), contains directions to decision makers as to determination of character for the purposes of section 25. The good character requirement under this Act is different to the assessment under section 501 of the Migration Act 1958 where although a person may not be of good character discretionary considerations may lead to a decision to grant or not cancel a visa. Those discretionary factors are not applicable to initial approval of citizenship. Under section 25 there is a discretion whether or not to cancel.
According to the Citizenship Instructions the concept of “enduring moral qualities” encompasses:
·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.
The Citizenship Instructions provide a framework for making decisions about good character and identify factors to take into account including the nature of the offence/s, the significance of criminal association, general conduct and mitigating circumstances (such as evidence of rehabilitation).
FACTUAL BACKGROUND
The evidence was that the applicant had no criminal convictions until he pleaded guilty on 29 July 2011 to a charge of “Maliciously Attempting to Damage and Destroy by Means of Fire, a Building Used in an Activity Affecting Interstate or Foreign commerce” in the United States District Court. This was a federal offence prosecuted in the US federal system but the events occurred solely within the state of New York. On 7 November 2011 the applicant was sentenced to imprisonment for 60 months and supervised release for a further three years. He was ordered to pay restitution for damage of $US264,417.91. The applicant served time in prison but has now been released and lives in Canada although subject to unsupervised release conditions which, if violated, could lead to return to prison.
The allegation was that in December 2006 the applicant had offered two criminals $1,000 to firebomb the local Department of Motor Vehicles office and the car of a particular inspector, that on the 22 December 2006 he had driven one of the men to the Motor Vehicles office and pointed out what should be the target, that they should make sure no one was in the building, chose Christmas Eve for the event and on 24 December 2006 the building and the inspector’s car were set on fire with petrol “Molotov cocktails” as an act of revenge. The applicant was in Australia when a state grand jury (which operates secretly) found that the applicant should be charged with three related offences and at least one of the other men was convicted of the actual firebombing. A warrant was issued for the arrest of the applicant and he was extradited from Australia and held in custody until he pleaded guilty and was sentenced.
The applicant’s evidence to the Tribunal was that he opened a used car business in Buffalo, New York State, and he was approached by someone attached to the Buffalo mayor’s office seeking a bribe. He refused and he was then harassed by inspectors from the state Department of Motor Vehicles coming to his business. He said that he contacted the FBI and was asked if he would “wear a wire”. He sought a stay in the state supreme court in respect of this victimisation. On 24 December 2006 an inspector tried to take away his vehicle dealer’s licence. He stated: “I lost my temper. I made a statement to these criminals and they went and tried to burn the Motor Vehicle office”. He said that his lawyer told him that while he negotiated with the local District Attorney the applicant had to go to Canada because under the Patriot Act he could be in jail for three years before a hearing. He went to Canada for three months and then his son, Robert, said: “Come home and celebrate Christmas [in Australia]” so he came to Australia in December 2007.
In cross-examination, the applicant said:
They [the other 2 men charged with the attack] were at the dealership buying a vehicle. I came back furious from the inspection centre. I said: “I wish they would go to hell. I wish that something would happen to that building.” They decided they would help me out I had no benefit from it. I had no reason to destroy that building.
This was the fullest explanation the applicant gave of how he came to be charged with the offence. At the Tribunal he denied every aspect of the charge. He said that he did not commit any crime although he had pleaded guilty. He said that he was a victim of the American plea bargaining system and the long delays in obtaining a trial date for those pleading not guilty. He said that he told “everyone” (meaning the court and probation officials) he was responsible for the offence, said exactly what his lawyers told him to say and that his instructions to them were: “I’ll plead guilty to anything. Get me out of here”. He said that “after two years in the county jail” he was prepared to agree to any facts that would allow the judge to accept a plea of guilty. He now says that he had nothing to do with the criminal actions and that he could have defended the charge successfully. He said that he was told by his lawyers and the judge that after sentence he would be transferred to an Australian prison and released after a shorter term than the sentence imposed. He said that it was only after sentencing that he was told that a prison transfer could not be done because he was an American citizen and also because there was an outstanding restitution order.
The applicant said that he was of extremely good character, had not committed any crime in the whole of his 62 years and since 2006 his main thought had been to return to Australia to live out his years with his family.
DISCUSSION
The applicant’s change of approach from a plea of guilty in the US court to a vigorous assertion before the Tribunal that he had never done anything wrong makes it difficult to accept that he is a person who values truth and adherence to the law in line with Australian values. His own lawyer in America prepared a Sentencing Memorandum approved by the applicant including the words “He blames only himself. He accepts full responsibility. His actions were regretful and impulsive… But he well knows he lost control; he acted irrationally, selfishly, stupidly and recklessly. He knows someone could have been hurt; luckily no one was”.
On 31 March 2012, four months after being sentenced, the applicant wrote to the person in the Australian Department of Immigration and Citizenship (as it was then was) considering whether to cancel his citizenship approval:
After years of harassment, I lost my cool. I did what they (the court) said happened, because, yet again, everything I owned and had worked so hard for was being threatened. But it was clearly the wrong way to handle this. By the time my mind cleared, it was too late – the despicable act was attempted, and thank God, no one was hurt, and the building only slightly damaged…
Before the Tribunal the applicant was completely unequivocal – he had done nothing wrong, none of the facts to which he pleaded guilty were true and he was entirely innocent. Despite the applicant’s plea while fully represented he now denies any argument in the Motor Vehicles office, denies promising anyone $1,000 to firebomb the office and denies any knowledge of the intention to burn the building. He alleges that he was forced to plead guilty because to have a trial would involve three years waiting in jail, required finances he did not have and he could predict that government witnesses would not be truthful.
I believe the applicant in one respect. I think he was given incorrect information about the possibility of a transfer to an Australia prison. His lawyers’ Sentencing Memorandum contained that request and noted that “[t]he government agrees not to oppose this request”. The lawyer discussed the matter with an Australian consulate officer who agreed to assist. The sentencing judge also referred to a possible transfer, said he would not oppose it and noted that if the applicant was outside mainland USA the three years’ supervised release would be unsupervised. Clearly the consulate, defence and prosecution lawyers and the judge were all unaware that transfer was not possible. To that extent the applicant was misled.
I do not believe that the applicant is innocent of the crime to which he pleaded guilty. Instead, I believe that he has told the story that he believed suited his interests best in the two different situations. In the USA, I think he believed he could obtain a relatively light sentence and obtain earlier release in Australia. In the case of what he told the Australian Department of Immigration and Citizenship official, I think he believed that his tale of coercion into a plea of guilty would be accepted. I think the applicant lacks insight into how his story and actions would be regarded. I note that in that same email of 31 March 2012 he invited the official to read the sentencing judge’s remarks saying: “… I know that Judge Skretny’s comments will be favourable to me, in the assessment of my character”. In fact, what the judge said was:
You know, frankly, Mr Vernon, we could beat the horse to death, but the actions speak for themselves. And, you know, you listen to you, and you’re – you know, while you’re self-made, you’re a very bright guy, very savvy. You know, you’ve been involved in things before that, frankly, are borderline. You know it. And, you know, you’re fortunate enough not to have a criminal history, and nevertheless, as the prosecutor said, I mean, we’re talking about violent acts here.
This was hardly a favourable assessment of character. The applicant was asked what the judge was referring to but he professed to not know what the “borderline” activities were. I do not draw an unfavourable inference from this remark which I doubt an Australian judge would have made except that the applicant misled himself about the favourable nature of the judge’s view.
The power to cancel the initial approval of the application for citizenship arises because the applicant has not taken the citizenship oath. The applicant is not a permanent resident. That status ended on 23 November 2012. (The earlier short trips to Australia at five year intervals in 1995 and 2000 can be seen as efforts to keep renewing that status).
The applicant remains under obligations to the American court during the three year period of supervised or unsupervised release following completion of his jail term. That period, whether calculated from his actual prison release or from the end of a 60 month period will expire not earlier than more than two years in the future. Under section 24(6) (e) and (f) of the Act, if that situation occurred under Australian law, the Minister would be precluded from approving a person becoming an Australian citizen. This is a factor to be taken into account and does not assist the applicant because it means that he is not able to demonstrate rehabilitation while free of the court’s constraints.
The Citizenship Instructions direct attention to aspects of the offence and other matters:
(a)seriousness of the offence. The offence involved an attempt to burn a building which the judge characterised as an act of violence, it involved damage of over $US250,000, it was directed at a government function and the path and progress of a fire is unpredictable. The American penalty was mandated at a minimum of 60 months’ imprisonment. This was a very serious offence.
(b)pre-meditation. The judge accepted that two days before the fire the applicant had driven the co-conspirator to the Motor Vehicles office to show him the target. The essence of the offence was offering money in advance for others to do the act of firebombing. This shows pre-meditation.
(c)length of sentence. The sentence of 60 months’ imprisonment is greatly above the 12 months’ sentence which is defined in the Act as a serious prison sentence.
(d)ongoing obligations in relation to the sentence received. As noted above, the applicant remains subject to supervised release and faces possible re-imprisonment if there is violation of conditions.
(e)sentencing remarks. The judge noted that he considered the sentence to be “fair and just and reasonable” and that the offence included “[b]ad judgment, bad acts, violative of your oath to this country, all of the above.”
(f)remorse and rehabilitation. The applicant denies every aspect of the offence, has no remorse and no sense of responsibility, but rather tries now to divert any blame to others and refuses to accept the consequences of his actions.
(g)time since offence. The applicant shows no evidence of altering his attitude to authority or the law in the seven years since the offence and three years since sentence was passed. To him, it is all the fault of the government and the legal system. It seems that there has been no change in the applicant.
(h)other mitigating circumstances. Given that the applicant denies any role in the offence, it is difficult to discern any further matters to mitigate the seriousness.
(i)family and community ties. The applicant has two adult Australian children from his first marriage, two adopted children from his Canadian marriage and two step-children from an American marriage now being dissolved. He has lived abroad since 1986 but produced character references from Australian, Canadian and American sources. He appears to have been in business in Canada for about seven years, America for about ten years but has no business or community ties to Australia. His Australian children gave evidence on his behalf at the hearing. He made no attempt to obtain Australian citizenship until after he left America following the offence in question.
CONCLUSIONS
The applicant committed a serious offence which, although his only offence in over 50 years, was an offence of violence with premeditation and the applicant denies all culpability or responsibility despite his plea of guilty and surrounding statements which support that plea. He shows attitudes inconsistent with enduring moral qualities of responsibility, respect and obedience to the law, concern for the rights of others and recognition of his own faults. I believe his sworn evidence to the Tribunal concerning the offence was false and deliberately so because he thought it would assist his case. The applicant is not of good character within the meaning of the Act, has not shown good reasons why any discretion under section 25(1) should be exercised on his behalf and the proved negative objective considerations outweigh any positive subjective character references obtained by the applicant.
DECISION
The decision under review is affirmed.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher, QC, Senior Member ...................[sgd].................................................
Associate
Dated 24 October 2014
Date of hearing 24 September 2014 Applicant By telephone Solicitors for the Respondent Mr L Leerdam, DLA Piper Australia
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