Rudi Waterman and Minister for Immigration and Border Protection
[2014] AATA 939
•18 December 2014
[2014] AATA 939
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1192
Re
Rudi Waterman
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 18 December 2014 Place Sydney The decision under review is set aside and the application is remitted to the Respondent for reconsideration with a direction that Mr Rudi Waterman is of good character.
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Ms N Isenberg, Senior Member
CATCHWORDS
CITIZENSHIP – eligibility – whether applicant is of good character – decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 ss 21, 24
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Haeri and Minister for Immigration and Citizenship (2009) 109 ALD 661
Re Rosales and Minister for Immigration and Citizenship [2008] AATA 518
Re Sui and Minister for Immigration and Citizenship [2008] AATA 1062Re Zhang and Minister for Immigration and Border Protection [2014] AATA 136
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Ms N Isenberg, Senior Member
18 December 2014
BACKGROUND TO THE APPLICATION
On 31 December 2013 Mr Waterman, a New Zealand citizen, lodged an application for Australian citizenship. On 24 February 2014, a delegate of the Respondent refused the application on the basis that the Applicant was not considered to be of good character as required by s 21(2)(h) of the Australian Citizenship Act 2007 (the Act). The delegate, referred to the Applicant’s criminal history, in particular, his conviction for serious drug-related offences. The Applicant seeks review of the decision.
RELEVANT LEGISLATION AND POLICY
Section 21 of the Act concerns eligibility for citizenship by conferral. Section 21(2) of the Act provides (relevantly) that:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(h) is of good character at the time of the Minister’s decision on the application.
Section 24(1A) of the Act provides that the Minister (and therefore the Tribunal) “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).”
The Australian Citizenship Instructions (ACIs) are issued by the Minister to provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Whilst in this particular case I am not bound to apply policy guidelines I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
“Good character” is not defined in the Act. The purpose of Chapter 10 of the ACIs is stated to be to provide “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’. This chapter also provides a framework for assessing an applicant under the “good character” provisions.”
Chapter 10 of the ACIs provide that: “‘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” (section 10.1.2 of the ACIs).
The ACIs, at section 10.3.4, relevantly note than an applicant of good character would:
• respect and abide by the law in Australia and other countries
• not be ... involved in drugs ...
The ACIs, at section 10.3.1, also provide that:
… The phrase “enduring moral qualities” encompasses the following concepts:
· 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 good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that 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 their migration and citizenship processes.
In relation to offences committed by a person, the ACIs outline a number of factors which should be taken into account when determining whether a person is not of good character because of their criminal offending. In particular the ACIs, at section 10.5.2, outline that the following factors are relevant:
(a)seriousness of the offence. In this context the ACIs provide that drug trafficking offences (including importation and supply) and offences which attract a sentence of more than 12 months will be considered serious offences;
(b)whether there were victims of the offence, and particularly whether they were vulnerable victims;
(c)whether the offences were pre-meditated;
(d)the length of the sentence imposed for the offending;
(e)any ongoing obligations in respect of the offending;
(f)observations in the decision of the court and the sentencing remarks; and
(g)whether there is a pattern of criminal behavior as evidenced by the criminal record.
The ACIs also list a number of mitigating factors that decision makers should consider in determining whether the person may be of “good character”' notwithstanding their conduct. Those factors include:
(a)the length of time between the date of offence or conviction and application for citizenship;
(b)whether the person has accepted responsibility and shown remorse for their conduct;
(c)how the person has behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond. In particular the ACIs state that:
it is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.
(d)whether the person has rehabilitated themselves;
(e)the person’s age at the time of offending;
(f)whether there were any extenuating circumstances; and
(g)whether there is evidence of length of employment, stable family life and/or community involvement.
EVIDENCE
Mr Waterman, who is now aged 42, gave evidence that he came to Australia when he was about six years old. He does not believe that he left Australia again until 1982. His current visa, subclass 444 visa was granted on 31 March 2004.
He gave detailed evidence in relation to a very difficult and abusive early childhood. Due to his family circumstances and lack of family support, from about age eight Mr Waterman lived in various homes and refuges. He suffered both physical and verbal abuse from his mother and was further abused after being placed in the care of a relative. He resorted to alcohol and drugs during his teens. By the age of 18, Mr Waterman was living in a government-run share house.
His difficult background was set out in some detail in the report of the psychologist in anticipation of his sentencing. Further information was provided at the hearing but need not be repeated here.
The Applicant said he has always regarded himself as Australian because he has lived here “[his] whole life”. He knows nothing of New Zealand, other than that he was born there and his only blood sister, of whom he has fond memories, is buried there.
1992 conviction
In 1992 Mr Waterman, then a young adult, was convicted of one count of malicious damage. He gave evidence as to the circumstances of that offence. He believed he and two of his housemates were offered a lift to the shopping centre by a neighbour to lure them away from their house which was broken into during their absence. The neighbour who had offered the lift had disappeared. They complained at two different police stations about the break-in but, despite their efforts, apparently no formal report was recorded. They then noticed a bedroom window of the neighbouring house was open and that papers were strewn across the floor. Later they entered the neighbouring house through the still open window to see if the papers would provide a clue as to the possible whereabouts of the man they suspected had stolen their belongings. Due to the lack of power in the house and the diminishing light outside, some paper was ignited and placed in a jug to provide light. The jug, it transpired, was made out of plastic and consequently smouldered and burned. The fire brigade was called to extinguish the fire. Mr Waterman was charged some days later with malicious damage. It is unknown if the other housemates were charged.
When the matter came before Blacktown Local Court. Mr Waterman met with Legal Aid prior to his Court appearance but he was unrepresented at the hearing. Mr Waterman pleaded guilty and was sentenced to a 12 month good behaviour bond and was directed to pay compensation.
The ACIs state, at section 10.6.3, that a “spent conviction” is a conviction for which a person was not sentenced to more than 30 months imprisonment, it is 10 years since the date of conviction and the person has not re-offended for 10 years.
Mr Waterman submitted that the 1992 offence falls within the definition of “spent conviction”. I accept that the offence falls within the definition of spent conviction in that it did not result in any term of imprisonment, and from 1992 until 2005, a period of some 13 years, Mr Waterman did not re-offend. I note, however, that the ACIs require a person “to disclose all spent convictions in their citizenship applications because such applicants are excluded from the operation of the spent conviction regime.” Mr Waterman made that disclosure in his application.
2008 convictions
The Applicant said that between 1992 and 2004 he worked in the security industry, and, other than in relation to an assault while carrying out his duties where he was the victim, he had no further contact with Police.
In February 2004, he was the victim in a serious road rage incident. After an initial verbal altercation, the offender threatened Mr Waterman with a gun which was then fired at him a number of times while he was still at the wheel of his vehicle and over some distance before he managed to get away.
Judge Phegan who sentenced Mr Waterman in 2008 described the event as having “a devastating effect on [him]”. As a result of the road rage incident, Mr Waterman developed post traumatic stress syndrome with a chronic psychotic disorder with symptoms of both depression and anxiety. He was unable to work after the incident. Significantly, it contributed to his return to the heavy use of drugs (which he had not used since his teens) which led to a drug-induced psychosis. He has recently learned that “part of [his] brain has died off”. His drug use also ultimately brought about his involvement in the conspiracy that led to the 2008 convictions.
To alleviate his anxiety his use of cocaine had escalated to daily use, and as a consequence, he ran out of money. He said he was intimidated by his supplier when he could no longer afford to pay for his drugs. The Statement of Facts in relation to the charges that led to the 2008 convictions referred to his role in a conspiracy to import a commercial quantity of cocaine from Argentina. The Applicant, although not the organiser of the importation, recruited the couriers who were to import the cocaine. The couriers were arrested in Argentina in possession of 3.387 kg of cocaine, the wholesale value of which was estimated at the time to be $180,000 per kilogram.
He was arrested in August 2005, and was remanded in custody. He pleaded guilty and was convicted in 2008 of the following offences:
·conspiracy to import a commercial quantity of a narcotic (cocaine) into Australia; and
·possession of a prohibited drug for the purposes of supply.
The Respondent conceded that the delegate, in refusing his citizenship application had erroneously understood the Applicant to have been convicted of additional offences in relation to the same conspiracy to import. The delegate had also proceeded on the basis, it appears, that the importation had been successful and that the Applicant had been charged with importation.
He was sentenced to imprisonment for 6 years and 4 months with a non-parole period of 3 years and 2 months for the conspiracy offence, and 9 months for the supply offence, to be served concurrently. A third offence of unauthorised possession of a prohibited firearm was taken into account but no separate sentence was imposed.
In relation to the supply offence Police found at his home a total of 34.3 grams of cocaine packaged in small sealed plastic bags, as well as a bowl containing white powder, a set of electronic scales and other drug paraphernalia. He denied, both to the Police and before me, that he was actually selling the cocaine, and it appears the charge may have been a ‘deemed sale’ because of the quantity. He noted his own heavy use, that no money was found and that the Police had been watching him and had not observed any sale.
As to the firearms charge, a self-loading rifle with the serial number filed off and (separate) ammunition were found under his bed. He said he had the weapon because he was afraid because he had been shot at in the road rage incident and had the weapon for his protection.
Conduct since the 2008 convictions
The Applicant said he received death threats while in jail and had to be re-located. He was bashed a couple of times, but was not charged with any prison offences himself. In November 2005, he gave evidence at the trial of the road rage offender who was subsequently convicted. He then found himself in the same cellblock with that offender.
He “kept busy” in jail, working at whatever prison jobs were available.
In jail he did “every course [he] could”. He “got cleaned up”, that is, drug free. He took an English class to improve his literacy, because his education as a child had been very sporadic. He learned computing skills. He did courses on life skills to help him cope upon release. He had counselling both in jail and later because he wanted to ensure he did not “fall into [his] old ways”. On release, he was uncomfortable having to attend a support group because the other participants were also newly-released from prison and he did not want to associate with them.
On his release from jail in October 2008 he lived with a friend for a couple of years, after his girlfriend had failed to resume their relationship.
At first he worked with a friend doing floor sanding, but found he had “hit a wall” after his girlfriend had let him down, and it did not work out. He discovered there was a Centrelink waiting period to be eligible for newstart allowance. Since July 2010 he has received disability support pension on the basis of his psychological condition. He sees a psychologist at least fortnightly, and has done so since 2008.
He said Mission Australia had tried to find him work and, because he liked animals, suggested he approach an animal shelter, with whom he has now been volunteering for about five years. He spoke with some passion about his work there, and how he has been given more responsibility, albeit within his limited skill set. He does not think they know about his criminal record; he just wants to be judged on the basis of the work he does.
He attended church in jail. While he had previously been “religious” he was not a church-goer. He now attends church at least once a week. He provided a reference from a Pastor who wrote of the Applicant’s attendance at his church since February 2014, as did another parishioner, who is aware of his incarceration. The Applicant said he also attends bible study and participates in other church activities. He regards the church as a family.
He gave evidence of helping others and this was confirmed by his referees.
Ms Tot’s evidence
Helen Tot, a legal practitioner and friend of Mr Waterman, provided two statutory declarations dated 12 October 2012 and 3 June 2013, and gave evidence at the hearing, as well as assisting the Applicant. Ms Tot has known Mr Waterman since February 2009, about six months after his release from gaol. She is fully aware of his criminal background – understandably, because she assisted him to prepare this application for him. She said, though, that he had disclosed his history immediately they met. When they first met he was vulnerable and having difficulty coping. She helped him with housing issues.
She noted that his health has been an ongoing issue for him. She had initially thought he was an hypochondriac until she became aware of his frustration as a result of the inability to address his health problems and the numerous tests that have ensued in an endeavour to diagnose his conditions.
She sees him now almost daily. She has observed his helpfulness towards others and his generosity. She confirmed his volunteer work and the assistance he provides to his neighbours. Mr Waterman has also assisted her with unpaid work on her boat.
References
Mr Waterman relied on a number of statutory declarations and references from friends and associates who supported his citizenship application.
Richard Baker, a journalist and friend of Mr Waterman, provided two statutory declarations dated 3 October 2012 and 31 May 2013. Mr Baker has known Mr Waterman since mid-2010. He acknowledges his criminal background and describes him as reliable, polite, honest and helpful.
Paul Haslam, a personal trainer and friend of Mr Waterman, has provided a reference dated 15 June 2014 and a statutory declaration dated 26 September 2014. Mr Haslam has known Mr Waterman for 17 years, and describes Mr Waterman as a man of integrity and diligence, who is loyal to his family and friends and someone in whom you could place your trust. Mr Haslam acknowledges Mr Waterman’s criminal background. Mr Haslam also stated that Mr Waterman is someone who would be an invaluable resource to the Australian community as he has a genuine care and compassion for those he comes in contact with and these attributes would make him a welcome citizen and great role model for many young men.
Libing Zhao, a friend of Mr Waterman, provided an undated reference and a statutory declaration dated 28 July 2014 in identical terms. Ms Zhao has known Mr Waterman for ten years. She described him as a really nice guy and gentle, caring and considerate, patient and caring. She said he teaches her English and gives her a hand when she needs help. She referred to Mr Waterman’s criminal record but says “[p]ast is past, everyone deserve the second chance no matter what happened in the past.”
Chong Chao Zhao, the daughter of Libing Zhao, provided a reference dated 25 June 2014 and a statutory declaration dated 28 July 2014 in identical terms. She has known Mr Waterman for approximately ten years and describes him as a gentle and caring person who “does not hesitate to offer help to his friend when he is asked to”. She stated that Mr Waterman helps her mother in her plastic bag manufacturing company with deliveries and some technical jobs. She also stated that she can see Mr Waterman’s potential to be a valued employee as he is a fast learner and has a positive attitude. She acknowledges his criminal record.
Ning Dong JP, a friend of Mr Waterman, provided a reference dated 16 June 2014. Ms Dong has known Mr Waterman for six years. She describes him as humorous, gentle and caring and he teaches her English. She said he does not smoke or drink alcohol and does not gamble. She described him as a considerate and loyal friend.
Michele McClelland is Mr Waterman’s eldest sister and provided a reference dated 26 September 2014. She wrote that Mr Waterman has worked hard to become a valued member of society since the “incident” and continues to work as a volunteer at the animal shelter as he has done for several years. She also confirmed that he attends church and is highly regarded in his parish.
The Applicant said that those of his referees who know he has been in jail are aware of the reason for his incarceration.
CONSIDERATION
When determining the meaning of good character, the ACIs refer to the Full Federal Court judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, which considered the meaning of good character at 431-432 as follows:
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 whilst 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.
It is well established that a grant of Australian citizenship is “a privilege given to persons who demonstrate good character”: Re Haeri and Minister for Immigration and Citizenship (2009) 109 ALD 661.
In this regard the Respondent referred to the remarks in Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (cited with approval in Re Rosales and Minister for Immigration and Citizenship [2008] AATA 518 and Re Sui and Minister for Immigration and Citizenship [2008] AATA 1062) where the Tribunal stated:
[8] The grant of Australian citizenship is a privilege not bestowed lightly… That [the applicant] is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive [the applicant] of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s time when he can demonstrate a longer period of positive contribution to the Australian community.
The Respondent noted that Mr Waterman has only been free of obligations to the court for his 2008 convictions, including supervision on parole, for three years and contended that Mr Waterman is unable to demonstrate that he has been of good character for a long period of time as required by the ACIs, as he has not been without the supervision of Australia’s criminal justice system for a long period of time since his offending.
In considering this submission it is useful to note that the conduct giving rise to the convictions was between May and August 2005. Presumably the Applicant was not released on bail following his arrest in August 2005 because, after his sentence in March 2008, he was released in October of that year. He was supervised by Probation and Parole until October 2011 and his parole ceased completely in December 2011. He has not offended since his release in October 2008. Of course, he was under threat of return to prison if he breached his parole from that time until December 2011, but it remains that he did not come to notice during that period. Further, since he has been unsupervised – since October 2011 to date – now some three years – he has also not come to attention.
I was referred to the Tribunal’s recent decision in Re Zhang and Minister for Immigration and Border Protection [2014] AATA 136. I do not accept that the Tribunal in that case intended to provide a benchmark of a minimum requirement of five years following release from jail before a person can be considered to be of good character for the conferral of citizenship. If that were the case, the ACIs would serve no purpose in the consideration. Similarly, I was referred to Re Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 where, notwithstanding that six years had passed without further offences, the Tribunal did not, in that case, consider sufficient time had elapsed. Each case is different, and the consideration does not lend itself to a formulaic approach.
As to the relevant factors in the ACIs in regard to “enduring moral qualities”, the Respondent submitted that Mr Waterman had not only been convicted of conspiracy to import drugs but, separately, had been found in possession of cocaine in his home, so that the conspiracy to import should not be regarded as an isolated incident. The sentencing remarks record the collaboration the Applicant undertook with his co-offenders between May and August 2005, demonstrating, the Respondent submitted, that his criminal conduct was planned over an extended period of time. Further, the sentencing remarks refer to considerable planning which involved the use of secret code communications and covert meetings with co-conspirators, which, the Respondent contended, suggests the Applicant’s willingness to engage in conduct which he knew was both illegal and very serious.
The Respondent submitted that the Applicant’s conduct also demonstrates a disregard for the laws of Australia and suggests he does not possess the requisite enduring moral qualities expected of a person who is of good character.
There was no dispute that Mr Waterman’s criminal conduct is very serious. In this regard the Respondent referred to the comments of the sentencing judge:
It goes almost without saying, although it needs to be said for the record, that this is a very serious offence. One which is visited by a maximum penalty under the legislation of life imprisonment, which says more than enough for how seriously the offence is regarded by the community as reflected in the legislation.
The importation of a substantial quantity of cocaine of the proportions involved in this case carry the prospect of social consequences of the most devastating kind. It is difficult for me to overstate the seriousness of the implications of the importation of a drug such as cocaine in such a large quantity.
I note that Mr Waterman pleaded guilty to the offences although the sentencing judge observed that “there were some signs on the part of Waterman, certainly in the witness box before me and to some extent in the interviews conducted following his arrest by Federal Police, of a reluctance to acknowledge fully the role which he played in the commission of these offences”. His Honour however observed that “there is evidence in the [psychiatrist/psychologist] reports ... [of] a real sense of remorse ...”. The Statement of Facts also referred to the Applicant’s readily made admissions both before and after caution. His Honour also considered there to be reasonable prospects of rehabilitation; his optimism, it appears, was well-founded.
The Applicant’s evidence was that those referees who knew he had been in jail, knew why. The Respondent noted that while most of the referees disclose some knowledge of the Applicant having spent time in goal, they do not demonstrate understanding of the extent of his criminal conduct. I agree with this observation. In those circumstances the Respondent contended, and I agree, that with the exception of the statements of Ms Tot and Mr Baker, limited weight should be placed on the other references provided. I do however accept that, at some point, an ex-prisoner need not disclose his criminal history to all those with whom he comes into contact; a prison term should not forever define a person’s character.
CONCLUSION
There is no doubt that in 2005 the Applicant committed serious offences, in particular, conspiring to import a large quantity of drugs, that resulted in his 2008 convictions. He served a significant sentence for his offences. For three years after his release from jail he was supervised by Probation and Parole without apparent incident. Since that time – now an additional three years – he has also not come to attention. Further, the evidence is that he remains drug free.
I do not accept that the Applicant had a “pattern of criminal behaviour”. The only previous criminal conduct resulted in the 1992 conviction, 13 years before the offences that led to the 2008 convictions. The events which gave rise to his incarceration were, as accepted by the sentencing judge, all triggered by the road rage incident. The sentencing judge specifically found him to be a person of good character. Significantly, there is no evidence of any criminal conduct since his release from jail.
I accept that in the past the Applicant did not demonstrate that he had the required enduring moral qualities expected of a person who is seeking to be conferred the privilege of Australian citizenship. To consider “enduring moral qualities” one must carefully look at the conduct not only surrounding his offending but his conduct since that time and, reach a view about whether his past or his present conduct, is more likely to “endure”. In the Applicant’s case it is clear that for the last six years – since he has been released from jail – he has resumed a contributing role in the community to the extent of his skills, and this appears to be quite different to immediately before his incarceration. His evidence, which I accept, is that now he does not take drugs, gamble, drink or smoke. He is a church-goer, he undertakes volunteer work and is kind and generous towards others. That change, together with the observations of those referees upon whose evidence I placed some weight, suggests that this conduct will continue.
In all the circumstances, I am satisfied that Mr Waterman is at this time of good character for the purposes of s 21(2)(h) of the Act.
DECISION
Accordingly, the decision under review is set aside and the application is remitted to the Respondent for reconsideration with a direction that Mr Rudi Waterman is of good character.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ................[sgd]..............................................
Associate
Dated 18 December 2014
Date of hearing 10 October 2014 Applicant In person with assistance from Ms H Tot Solicitor for the Respondent Ms A Graham, Clayton Utz
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