RTFY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 55
•19 January 2022
RTFY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 55 (19 January 2022)
Division:GENERAL DIVISION
File Number(s): 2020/6132
Re:RTFY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:19 January 2022
Place:Sydney
The Tribunal affirms the decision under review.
........................[SGD]................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – whether the applicant is of good character for the purposes of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – prior criminal record – relevant law and policy considered – relevant material considered – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Evidence Act 1995 (NSW)
CASES
Irving v Minister for Immigration, Local Government and Ethic Affairs (1996) 68 FCR 422
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Values Statement
Australian Citizenship Procedural Instructions - CPI 15 - Assessing Good Character Under the Citizenship Act
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
19 January 2022
The applicant lodged an application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (‘the Act’) on 28 January 2020. He was invited to comment on his criminal record. [1] On 14 July 2020, his application was refused by a delegate for the Minister for Immigration (‘the Minister').[2] The delegate was not satisfied that the applicant was of good character at the time of the decision, as required by paragraph 21(2)(h) of the Act.[3]
[1] See letter dated 9 June 2020: T7. See Appendix A - National Police History Check Report dated 05 June 2020: T7.
[2] T3, 13-22.
[3] Paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application. The meaning of the composite phrase ‘good character’ is not defined. It has been judicially paraphrased as referring to the ‘enduring moral qualities of a person’: Irving v Minister for Immigration, Local Government and Ethic Affairs (1996) 68 FCR 422, at 431-432.
On 2 October 2020, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.
I decided on my own initiative to make an order to anonymise the applicant’s name in these proceedings, because of his involvement in drug related activities as a young man, and his previous application for a protection visa. The respondent did not oppose this course of action.
The matter was heard by videoconference in accordance with the present pandemic protocols on 26 October 2021. The applicant was self-represented but assisted by a Mandarin interpreter. The respondent was represented by Ms Sophie Roberts of Mills Oakley Lawyers.
The respondent filed a Statement of Facts, Issues and Contentions dated 23 July 2021, various documents pertaining to the decision under review filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (164 pages), and a Tender Bundle (184 pages).
The applicant’s wife and 15 year old son provided references, as did his accountant, a church leader, and a number of friends. The references were taken into evidence and considered by the Tribunal.
The applicant and his wife gave evidence to the Tribunal.
For the reasons that follow below, I have decided to affirm the decision under review.
BACKGROUND
The applicant was born in 1977 and is a citizen of China.[4] He arrived in Australia on 10 September 2000 at the age of 23, as the holder of a Tourist (Subclass 676) visa.[5]
[4] T5, 117.
[5] T3, 13.
On 9 October 2000, the applicant applied for a Protection Visa.[6] His application was refused on 13 February 2001.[7] The Refugee Review Tribunal (‘RRT’) affirmed the decision on 26 July 2001.[8] The Tribunal has been provided with a copy of the delegate’s decision and the decision by the RRT. The applicant claimed to be part of a democracy movement (at the age of 12) and that he was persecuted on account of his religion. Neither claim was upheld.
[6] T3, 13.
[7] T3, 13.
[8] T3, 13.
On 4 May 2010, the applicant applied for a Partner Residence (BS 801) visa.[9] By notice dated 17 November 2011 the Department of Immigration and Citizenship (“the Department”) informed him that his application might be refused on character grounds.[10] The applicant was invited to comment. According to the respondent, from August 2001 until March 2010, the applicant was in Australia for about 4 years and 9 months without a valid visa.[11] The Tribunal has not been provided with a detailed summary of these irregular residence periods.
[9] Exhibit 2 (Letter addressed to the applicant dated 2 July 2012), 1.
[10] Exhibit 1 (Letter from Department of Immigration and Citizenship dated 16 May 2012), 1. Unfortunately, the precise grounds on which his application was flagged are not clear – the Tribunal has only the decision letter to go on – although both the offence history and the period of irregular residence would be grounds for concern.
[11] T3, 13.
On 16 May 2012, the applicant was told that his application would not be denied on character grounds and the matter would be referred for further processing.[12] His visa was granted on 2 July 2012.[13] This visa allowed multiple entries to Australia until 2 July 2017.[14]
[12] Exhibit 1 (Letter from Department of Immigration and Citizenship dated 16 May 2012), 1.
[13] Exhibit 2 (Letter addressed to the applicant dated 2 July 2012), 1.
[14] Exhibit 2 (Letter addressed to the applicant dated 2 July 2012), 1.
On 10 November 2017, the applicant was granted his present visa, a Resident Return (Subclass 155) visa.[15]
[15] T3, 13.
On 1 July 2017, the applicant lodged an application for Australian citizenship under the Australian Citizenship Act 2007 (Cth).[16] This application was refused on 4 October 2019.[17]
[16] T3, 13.
[17] T3, 13.
The applicant’s second citizenship application, lodged on 28 January 2020, is the subject of the present application.
CRIMINAL RECORD
The applicant’s criminal record, as provided by the Australian Criminal Intelligence Commission, is set out in Appendix A.[18]
[18] T7,153-155.
I note that the offences were not committed in the order in which the convictions are recorded in this statement. The chronology is as follows.
The Chequers Incident (2002)
The first incident occurred almost twenty years ago.
On 10 July 2002, a 36 year old man made a complaint to the police.[19] He said that he was attacked by a group of six men as he was leaving the Chequers Health and Fitness Centre late the previous evening. He said that he retreated to the Center foyer. He claimed to have been stabbed, and that somebody threw something at him. When in the taxi going home, he realised he was bleeding and went to the hospital for treatment. He did not identify the applicant as an assailant.
[19] R2,7-32.
On 19 October 2006, the applicant was sentenced to eight months imprisonment with a six month non-parole period for his part in this incident.[20] He was convicted of assault occasioning actual bodily harm.[21]
[20] R2, 34.
[21] R2, 34,
The respondent tendered the police fact sheet (headed ‘Facts Sheet’). [22] It commences with the statement that, “The accused is currently on remand for serious drug and fraud charges. The accused is also an unlawful citizen and will be deported.” [23]
[22] R2, 3.
[23] R2, 3.
According to the police statement, a group of men entered the premises and “conducted a search of the premises”. A short while later the applicant left the premises and was seen to have a conversation with these men, and when the victim left the club the group confronted the victim and stabbed him.[24] The victim retreated to the foyer and hid behind the counter.[25] The applicant was then alleged to have thrown a heavy vase at the victim.[26]
[24] R2, 4.
[25] R2, 4.
[26] R2, 4.
The applicant told the Tribunal that he had no memory of this incident. When questioned about the incident he said that he did not remember, that it was too long ago, and in any event, he was drunk at the time. There is no indication as to the plea that was entered, or the basis upon which he was sentenced. However, he did not dispute that he was sentenced to eight months imprisonment with a six month non-parole period.
Break and Enter (2004)
The second incident is said to have occurred on 18 September 2004, some 17 years ago. The matter came before Central Local Court on 15 October 2007.[27] The applicant was charged with breaking and entering, and stealing goods from a warehouse. According to the Facts Sheet, the property stolen included, “2 leather jackets, 4 polo shirts, 1 black Zenga (sic) suit, 1 pair Christian Dior, 1 DVD burner, 1 Electric Dictator, 1 box of miscellaneous power tools and approximately 9 bottles of wine (total value of $13,785)”.[28]
[27] R4, 86.
[28] R4, 89.
At the trial on 15 October 2007, the applicant pleaded not guilty before the Magistrate and gave evidence through a Mandarin interpreter.
The case against the applicant was wholly circumstantial. It was based on DNA evidence found at the scene. The DNA pointed to the applicant being in the property at some point, but gave no indication as to when he was there. According to the owner, the break-in occurred on or around 19 September 2004. There was no confirmatory CCTV footage and no evidence apart from the DNA. The applicant was not caught with the property and the property was not recovered from his possession.
The applicant said that he was dancing at a club in the city, which at some time after midnight was raided by about ten police officers. He believed that they were looking for illegal immigrants. He did not have a visa so he went out the back door, chased by a police officer. He says that he took refuge in an adjacent building. Other people went out the same door, also pursued by police. He found a building with a retractable iron ladder and climbed up, breaking glass to gain access to an office. He then hid inside the ceiling. The police saw him enter the building and came up looking for him. He hid for two or three hours and then left by another exit. He denied taking anything from the building. He said he went in at level three and came out at level one. There were stairs inside the building and the lights were on. He could not remember exactly when this incident occurred.
The police prosecutor put to the applicant that he had taken the items listed in the indictment and the applicant denied it.
The Magistrate was clearly exasperated that the applicant was making what he called ‘assertions’ about the police raid, the building, and the lighting that were unsupported by evidence. The Magistrate treated his explanation for being there as tantamount to an allegation that the police stole the goods. At no point during the trial did the applicant suggest that the police stole anything.
Although there is no scope in these administrative proceedings to dispute the facts on which the criminal conviction was based or suggest that the accused should not have been convicted, there are aspects of the conviction that are troubling. The Magistrate suggested that the applicant was required to subpoena police or the building owner to support his testimony.[29] This was tantamount to a reversal of the onus of proof. His Honour also said that the applicant was blaming the police for stealing the property, where no such claim was made.[30]
[29] R4, 133-136.
[30] R4, 134.
In any event, the Magistrate was satisfied that the applicant had taken the goods, and treated the explanation for being on the premises with great scepticism. A sentence of 18 months imprisonment with a 12 month non-parole period was given, commencing on 22 February 2008 and expiring on 21 August 2009, with the earliest released date of 21 February 2009.[31]
[31] R4,138.
On the resist police charge (see below) the applicant was sentenced to three months concurrent.
In passing sentence, the Magistrate stated:
[C]learly it was a very strong case against you, but you chose to plead not guilty and try and see if you could run us a yarn or a story to try and get off it. That does not do you any credit or show any remorse on your part.[32]
[32] R4,137.
During the hearing before this Tribunal, the applicant denied taking any goods from the warehouse.[33] However, for the purpose of these administrative proceedings, the Tribunal accepts that the applicant was involved in the removal of the goods from the warehouse and that he was properly convicted.
[33] Transcript, 26 October 2021, p 14.
The Drug Related Offending (2005)
The third incident involved drug offences committed during July and August 2005. In August 2004, investigators attached to the Joint Asian Crime Group, State Crime Command, commenced investigations into the supply of illegal drugs, especially MDMA (commonly known as ecstasy) and methylamphetamine (commonly knowns as ICE) throughout the Sydney Metropolitan area.
In August 2005, police executed a search warrant on the applicant’s premises, and found drugs and other goods suspected of being stolen – a total of 12.58g of 3,4 of Methylenedioxymethlamphetamine, two Visa Cards, and five separate driver’s licenses in the names of various individuals.[34]
[34] R3, 50.
The applicant was apprehended in Ballina in October 2005, and charged with various drug offences, as well as the previously mentioned matters.[35] He refused to participate in an identification parade, or in any formal interview.[36] The applicant was summonsed to appear in the Local Court on 19 October 2006.
[35] R2, 3.
[36] R2,6 (Police statement dated 30 November 2005) .
The matter was dealt with on 2 February 2007.[37] The prosecution case was based on telephone intercepts between the applicant and his wife relating to the supply of ecstasy tablets. The Tribunal has read the Statement of Agreed Facts tendered within the respondent’s Tender Bundle at the hearing, pursuant to section 191 of the Evidence Act 1995 (NSW).[38] The charges relate to the supply of 245 pills of ecstasy and an offer to supply 200 pills.[39]
[37] R3, 63.
[38] R3, 43-51.
[39] R3, 43, 51.
On 2 February 2007, the applicant was convicted before Sydney District Court of New South Wales on two counts of supply.[40] For the most serious offence of supplying a prohibited drug (commercial quantity), he was sentenced to three years, four months and two weeks imprisonment.[41]
[40] 245 pills containing 3,4 methylenedioxymethylamphetamine.
[41] R3, 40.
In sentencing the applicant, Judge Norrish said that it was not in dispute that “they were involved over a period of some weeks or months in the business of supplying ecstasy tablets and were otherwise involved in the drug supply industry.”[42] The learned Judge stated:
It would appear to me self-evident that the prisoner was involved in the commission of these offences over this period of time, particularised in the facts, for the purposes of financial benefit. He said that he did this for financial gain in the Probation and Parole Service interview. There is reference to him having a gambling problem at the relevant time and he was himself a user of the crystal methamphetamine drug, otherwise known as ice, but claimed in his case that it was infrequent and he was not addicted. [43]
[42] R3, 66.
[43] R3,71
A number of additional charges were taken into account in the applicant’s sentencing for the drug supply offences.[44] The additional charges included a further two counts of supply prohibited drug, a single count of goods in custody suspected of being stolen, and five counts of custody of a false instrument (false driver’s licences).[45]
[44] R3, 63.
[45] R3, 64-65.
Hindering Police (2007)
The last incident occurred on 26 February 2007, and relates back to the 2004 ‘break and enter’ offence.
The applicant was in prison, having been convicted of the drug supply offences on 2 February 2007. Detectives investigating the 2004 break and enter offence obtained authorisation to take a DNA sample, to see whether it matched the DNA found at the scene of the offence. The applicant was brought down from the cells to an interview room and was asked to self-administer a buccal swab, but refused to do so. He was provided with an opportunity to consult with his lawyer and did so. His lawyer told the police that he intended to challenge the process in court.[46] The applicant was then forcibly restrained so that approximately 20 strands of his hair could be obtained. He resisted and was restrained by a number of Corrections Officers. For this the applicant was convicted of resisting or hindering a police officer in the execution of duty.
[46] R4, 121.
When this matter came to court in October 2007, the applicant was asked by the prosecutor:
Q. Do you agree that you were spoken to by police at Silverwater Gaol on 26 February this year?
A. INTERPRETER: Do I agree.
Q. It’s up to you, do you remember speaking to police on that day?
A. INTERPRETER: Do you mean the day that DNA was taken.
Q. The day the police came and tried to take a hair sample from you?
A. INTERPRETER: I didn’t agree they force on taking it.
Q. I’ll make a suggestion to you and you can either agree or disagree. I suggest to you that when the police tried to take a hair sample, you hindered them in doing that?
A. INTERPRETER: I didn’t agree, they force to take it.[47]
[47] R4, 135.
One is left with a sense of disquiet as to the degree of understanding that the applicant had at the time he was confronted by the request to take a DNA sample. He did not speak English, there is no evidence that a translator was present, and he had just been incarcerated. Apparently, about a dozen Corrective Services Officers were required to subdue him.
LEGISLATION AND POLICY FRAMEWORK
I note the latest iteration of the Citizenship Procedural Instruction (“CPI”) 15 - Assessing Good Character under the Citizenship Act (“the Instruction”) was issued on 26 February 2021.[48] This statement replaces the previous version issued on 17 April 2019.[49] References below are to the latest version.
[48] R6,159.
[49] T4,95.
Paragraph 3.3 of the Instruction provides:
3.3 What is good character?
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
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 has 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.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application…
Community standards
In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act could provide assistance in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character.
The Preamble to the Act sets out the meaning of Australian citizenship:
Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.
After considering the text of the Preamble, DP Forgie stated:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as signiÕcant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do…
…
Australian values statement
Another identification of community standards can be found in the Australian values statement in visa applications, which requires applicants to confirm that they will undertake to act in accordance with the values of Australian society during their stay in Australia and obey the laws of Australia.
The values statement signed by most applicants for permanent visas also acknowledges that, if in the future the applicant goes on to meet the legal qualifications for becoming an Australian citizen, they will need to pledge their loyalty to Australia and its people.
While a values statement will not have previously been made by all citizenship applicants in a previous visa application, the wording of it is mirrored in the declaration contained in citizenship application forms that applicants must agree to in order to lodge a valid application.
Paragraph 4 of the Instruction provides:
4. An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
Paragraph 6 of the Instruction provides:
6. Assessing good character under the Act
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
A good decision-maker does not seek out and only consider information that supports the decision that they want to make. All relevant information must be considered. This includes all information before the Department whether or not that information was provided for the purposes of a citizenship decision. Information such as character references provided by people who know the applicant must also be considered.
Decision-makers must guard against making erroneous assumptions…
Paragraph 11 of the Instruction sets out the factors that may be taken into account when assessing good character, including how the applicant has behaved in their interactions with government officials.
Paragraph 12.2 of the Instruction refers to the assessment of the relative seriousness of the offending and identifies factors such as:
·the length of the sentence
·ongoing obligations such as a good behaviour bond
·sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing.
·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
·Any victims of the offence, especially children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant.
ANALYSIS
The applicant is now 44 years of age. Much of his offending occurred when he was in his mid to late twenties. The applicant’s criminal record contains a number of serious offences, committed between 2002 and 2007, some of which attracted lengthy periods of imprisonment, as detailed above.
Given that most of the offending occurred many years ago, and that the applicant now has a family, consisting of his wife and four children, and runs his own business, his claim to be of good character warrants close consideration. There has been more than enough time for him to have changed his ways and matured into a person of good character. The applicant has provided several references from family members, and additionally from a past employer, his accountant and other community leaders. I have taken all these into account. I place limited reliance on the references from his wife and 15 year old son. In the case of his wife, as she was his partner in crime in relation to the most serious drug offending.
The respondent draws attention to some prior interactions with the Department. First, the applicant made a false protection visa claim when he first arrived in Australia, claiming a fear of persecution in China on religious grounds. He told the Tribunal that this was suggested to him by a lawyer as his best means of remaining in Australia. He admitted that his claimed fear of religious persecution was false. Secondly, at one point the applicant remained in Australia for almost five years without a valid visa.
While these matters are to some extent ‘historical’ and the Department was aware of them when the applicant was granted his partner visa, each is a matter of concern. The false protection visa matter is especially troubling. False claims in protection visa applications create serious problems for the equitable administration of the visa protection system. His claim to have suffered religious persecution in China was palpably false. During the present Tribunal hearing the applicant admitted that those claims were false.
In terms of the present citizenship application, the applicant failed to provide a complete list of his offences in his application for a partnership visa and in his citizenship application. The applicant failed to disclose the assault offence in his visa application, although he did disclose that he had been convicted of other more serious offences relating to supply of prohibited drugs. The applicant said substantial disclosure has been made and he just did not realise that he had to disclose every single matter. He said he did not intend to downplay his criminal record. The question 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)?
No
Has the applicant been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia?
Yes
Give details:
In 2005 I was arrested for supplying prohibited drugs and was sentenced to 3 years and when I was released I was on probation for 6 months. It's been 10 years since prison and now I have 4 Beautiful kids, a loving and supportive wife and own my own Painting company.[50]
[50] T5, 130
I regard this failure to disclose as a relatively minor lapse, given his disclosure of the most serious drug offending and the fact that he had served time in prison.[51]
[51] T5, 130
It may well be that all of these matters may be sanitised by a period of good citizenship, but the gravamen of this application relates to the applicant’s attitude to his earlier offending, when he appears to have lived for a period in his twenties on the wrong side of the law. The applicant has been convicted of serious offences for which he served a long term of imprisonment. Even allowing some residual doubt in relation to the conviction for assault occasioning actual bodily harm, or the circumstantial nature of the conviction for breaking and entering, and allowing for language difficulties in connection with the offence of hindering a police officer in the execution of duty (which must have been a very frightening experience), one is left with the clearest of convictions in relation to drug supply on a commercial level.
In his evidence to the Tribunal, and giving some allowance for the mode of hearing, the applicant came across as vague and evasive. In some cases, he denied all recall, saying simply that he was drunk.[52] His lack of candour about and contrition for some of his past offending has troubled the Tribunal. For example, he said that he and his wife were concerned only with providing drugs to their friends, but this was clearly not the case. His evidence was that they were “not like other people, who do the drugs everywhere”, but they just sold “a little bit” to their friends.[53] This is clearly at odds with the intercepted telephone conversations. He suggested that the numbers were the result of adding the tablets up a few times. He did not deny that he was motivated by financial gain but said that because it was twenty years ago he couldn’t remember it clearly.[54]
[52] Transcript, 26 October 2021, pp 14-15.
[53] Transcript, 26 October 2021, 38.
[54] Transcript, 26 October 2021, 38.
Admittedly, the applicant and his wife were small players in a larger drug supply network. But his attempt to minimise what was obviously profit motivated drug supply, on the basis that they were merely providing some MDMA tablets for friends was untenable in light of the clear evidence provided by the police at the time of his conviction. This lack of candour stands out as a significant feature in this case. I note that before the Tribunal his wife came across as more forthcoming and accepting of the wrongfulness of their joint conduct.
Cross-examination on historical offences is almost guaranteed to be an unpleasant experience. The applicant’s response to the respondent’s confronting line of questions was often defensive and evasive. The Tribunal has made allowance for the forensic nature of this process and the linguistic and cultural challenges for the applicant in the setting of a Tribunal hearing, and the fact that it was conducted by videoconference. Nevertheless, the applicant’s lack of candour and lack of forthrightness was disappointing. His evasiveness was apparent throughout the hearing. In the past, his offending was sufficiently serious to attract long custodial sentences. The Tribunal needs to be positively satisfied that there has been a complete change of heart before finding that he is a person of good character.
I do not think that the applicant demonstrated sufficient insight and understanding so as to offset the serious character concerns raised by his past behaviour.
The applicant is not precluded from making another application for citizenship. He should not regard this as a hopeless exercise. It is his present attitude that stands in the way, not the objective nature of his past record. Coming to terms with the past and having the courage to face it is required.
CONCLUSION
The Tribunal is not able to find that the applicant is a person of good character at this time, and therefore affirms the decision under review.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.............................[SGD]...........................................
Associate
Dated: 19 January 2022
Date of hearing: 26 October 2021 Applicant: RTFY Solicitors for the Respondent: Ms S Roberts APPENDIX A
NSW CENTRAL
LOCAL COURT15/10/2007 Break and enter building (steal) value<=$15000-T1 IMPRISONMENT: 18 MONTHS COMMENCING 22/02/2008 NONPAROLE PERIOD WITH CONDITIONS: 12 MONTHS RELEASE SUBJECT TO SUPV NSW CENTRAL
LOCAL COURT15/10/2007 Resist or hinder police officer in the execution of duty IMPRISONMENT: 3 MONTHS COMMENCING 22/02/2008 NSW CENTRAL
LOCAL COURT08/02/2007 Have false instrument w/i to use (x 5) TAKEN INTO ACCOUNT ON FORM 1: AT SYDNEY DC ON 020207 NSW CENTRAL
LOCAL COURT08/02/2007 Goods suspected stolen in/on premises (not m/v) TAKEN INTO ACCOUNT ON FORM 1: AT SYDNEY DC ON 02/02/07 NSW SYDNEY
DISTRICT COURT02/02/2007 Supply a prohibited drug IMPRISONMENT: 1 YEAR 3 MONTHS COMMENCING 23/02/06 CONCLUDING 22/05/07 NSW SYDNEY
DISTRICT COURT02/02/2007 Supply a prohibited drug >= commercial quantity-SI INDICTED FOR IMPRISONMENT: 3 YEARS 4 MONTHS & 2 WEEKS COMMENCING 23/02/06 CONCLUDING 05/07/08 NSW SYDNEY
DISTRICT COURT02/02/2007 Supply a prohibited drug TAKEN INTO ACCOUNT ON FORM 1: THIS FILE NSW SYDNEY
DISTRICT COURT02/02/2007 Supply prohibited drug >indict. Quantity (not cannabis)-SI TAKEN INTO ACCOUNT ON FORM 1: THIS FILE
NSW CENTRAL
LOCAL COURT19/10/2006 Assault occasioning actual bodily harm-T2 IMPRISONMENT: 8 MONTHS COMMENCING 06/12/2005 NON PAROLE PERIOD WITH CONDITIONS: 6 MONTHS RELEASE SUBJECT TO SUPV
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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