Ruxton and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 1057
•12 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1057
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/186
GENERAL ADMINISTRATIVE DIVISION ) Re JOCELYN RUXTON Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr K S Levy, Member Date12 October 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................(Sgd)..................
K S Levy
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – application for citizenship rejected on the basis that applicant is not of “good character” – applicant failed to disclose a prior criminal conviction for fraud – serious offence – applicant does not meet character requirements
Australian Citizenship Act 1948 ss 13, 14, 50
Briginshaw v Briginshaw (1938) 60 CLR 336
Irving v Minister for Immigration (1996) 68 FCR 422REASONS FOR DECISION
12 October 2004 Dr K S Levy, Member 1. The decision for review before the Tribunal was that of the delegate of the Minister for Immigration, Multicultural and Indigenous Affairs (“the Department”) dated 17 February 2004, which rejected an application for Australian Citizenship dated 21 January 2004. The application was rejected on the basis that the applicant, Jocelyn Ruxton, was not of “good character” pursuant to section 13(1)(f) of the Australian Citizenship Act 1948 (“the Act”).
2. The applicant was self represented, but was supported by her Australian husband. He assisted and clarified a number of facts on his wife’s behalf. The respondent Department was represented by Mr Mark Steele of Blake Dawson Waldron.
Issue Before the Tribunal
3. The issue before the Tribunal was whether the decision by the delegate to reject Mrs Ruxton’s application for citizenship was the correct and preferable decision.
Legislative Context
4. The relevant legislation in this matter is the Australian Citizenship Act 1948 and in particular, sections 13(1)(f), 14 and 50(1).
5. An extract of the relevant sections are:
“Section 13 Grant of Australian citizenship
(1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(f)the person is of good character;
…
Section 14 Deferral of consideration of application under section 13
(1) Subject to subsection (2), where:
(a) an application is made to the Minister under section 13; and
(b) it appears to the Minister at a particular time that:
(i)if the Minister were to complete consideration of the application at that time, the Minister would be likely to refuse the application (otherwise than by reason of the operation of paragraph 13(1)(d) or (e)); and
(ii)having regard to the effluxion of time, or to the likelihood of a change in circumstances, the Minister would be likely to grant the application if consideration of the application were deferred for such period as the Minister determines;
the Minister may, in the Minister’s discretion, defer consideration of the application until the expiration of that period.
(2) The Minister must not defer consideration of an application for a period that exceeds, or for periods that in total exceed, 12 months.
…
Section 50 False representations etc.
(1) A person shall not, for a purpose of or in relation to this Act:
(a)make, or cause or permit to be made, a representation or statement that is, to the knowledge of the person, false or misleading in a material particular; or
(b)conceal, or cause or permit to be concealed, a material circumstance.
Penalty: 12 months imprisonment. …”
6. The relevant considerations to be taken into account by a decision-maker in determining “good character”, as defined above, are amplified in the Australian Citizenship Instructions. In particular, paragraphs 5.4.2 to 5.4.17 of those Instructions are relevant in this regard.
Evidence before the Tribunal
7. The Tribunal had available to it, the following documents:
§Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents)
§Exhibit 2 Respondent’s Facts and Contention dated 9 September 2004
§Exhibit 3 Transcript of Magistrates Court proceedings, 26 November 1999
§Exhibit 4 Certificate of Disclosable Offences issued by the Queensland Police Service
§Exhibit 5 Statement indicating satisfaction of debt owed to Centrelink by the applicant.
8. The application for a grant of Australian Citizenship (Form B124) completed by the applicant on 21 January 2004 relevantly contains a section titled “Character”. Question 43 of the application form specifically requires answers to six questions about the applicant’s antecedents. Each question has an option for the applicant to tick one of two boxes – either “No” or “Yes”. Of direct interest to the decision in this matter is Question 43(a) which states:
“Have you ever been convicted of, or found guilty of ANY offences?
(include all traffic offences which went to Court)”
9. The word “ANY” within the question was highlighted in capitals on the form. The applicant ticked the answer “No”, but was not obliged to sign the form at the time of completion. The form was required to be signed only at interview in the presence of the officer from the Department. At interview, Mrs Ruxton was again asked verbally about Question 43(a) and she again answered “No”. She and her husband apparently, offered a copy of the Police Certificate at Exhibit 4, but the interviewing officer declined to accept the certificate. It was the Department’s practice to undertake its own independent check. The certificate offered by Mrs Ruxton showed there were no disclosable offences at the date of issue. The date of issue of the certificate was 30 September 2002, some 15 months prior to the date of the application for citizenship. Having completed the form and verbally answered that there were no convictions, Mrs Ruxton signed the application form in the presence of the interviewing officer on 21 January 2004.
10. The Department undertook its own police check with the Australian Federal Police. It was provided with a certificate that Mrs Ruxton had been convicted of Centrelink fraud in the Magistrates Court in Brisbane on 26 November 1999. She was convicted and sentenced to imprisonment for six months, which was suspended on her undertaking to enter into a good behaviour bond for two years. Also, she was ordered to repay $8,958.70 to the Commonwealth of Australia under section 21B of the Crimes Act 1914 (Cth).
11. At the sentence hearing on 26 November 1999, the Prosecutor stated:
“These offences occurred over a 22 month period. The offences over a period of some 21 months in that period. There is a four week break in the middle, Your Worship, where the defendant correctly declared her income to Centrelink and therefore is not being charged in respect of that period.
Enquiries revealed that between March 1997 and August 1997, the defendant had been legitimately entitled to her benefit. However, on 6 August of 1997 she commenced part-time work as a sales assistant at Fashion Fare. She was still employed there in May of this year when the investigation commenced.
…
In the period of the two charges, she was paid some $26,470 from her employer and she declared only $7,997.00 of that to Centrelink.
Your Worship, with respect to the overpayment, the defendant was overpaid the sum of $10,812.00. As at the 18th of this month, the sum of $1,853.00 has been repaid by way of garnishing from the defendant’s wages, leaving a balance of $8,958.70. A reparation is what order is sought for that amount, Your Worship.”
12. The range of penalty sought by the prosecution was 12 months imprisonment or a fine of $6,600.00.
13. The sentencing Magistrate indicated that:
“The authorities are quite clear that a strong deterrent is called for and in the circumstances, a period of imprisonment can be expected. I am prepared to – I do find that a period of imprisonment is the appropriate punishment but I will balance that against your circumstances and I will fully suspend it today.
…
The defendant is convicted and sentenced to six months imprisonment and I direct that she be released forthwith upon giving security by recognisance in the sum of $2,000 conditioned that she be of good behaviour for a period of two years.
And I further make an order under section 21B of the Commonwealth Crimes Act that you pay the sum of $8,958.70 to the Commonwealth of Australia, as per your current arrangements.”
14. Mr Ruxton, on behalf of his wife, stated that he was with her and assisted her at the Magistrates Court hearing in November 1999, and at the time of the application for citizenship and interview with the Department. He informed the Tribunal that he understood that the offences had been expunged and that that was the effect of the certificate provided by the Police. He stated that he understood that his wife and himself as her advocate, were not obliged to declare this conviction. He gave evidence that Mr Gregory Moore, the Departmental Delegate, stated that he did not want the Police Certificate offered by Mr and Mrs Ruxton. Mr Moore apparently advised that the Department does its own check and would have done it while they were in attendance at the Department on 21 January 2004, except that the system was inoperative on that day.
15. Mrs Ruxton gave evidence that it was not her intention to lie. She stated that she offered the Police Certificate as an indication that that was her belief. It was noted however, that the Police Certificate was dated some 15 months prior to the date of the application and therefore could not, in any event, provide evidence of the 15 month period between the date of the Police Certificate and the date of the application for citizenship.
16. On cross-examination, Mrs Ruxton admitted that she had doubts in her mind as to whether she was required to declare this offence. While she wondered whether she should declare it, she resolved not to do so.
17. Mrs Ruxton informed the Tribunal that she had a tertiary qualification from a University in the Philippines. She arrived in Australia at the age of 22 and was now 29. She stated that apart from the first couple of months in Australia, she had always had employment. She argued her motivation to become an Australian citizen was high.
18. Mr Steele submitted that the offence was a serious understatement of income and that it was a continuing offence for almost two years, yet the applicant took no steps to rectify this. He emphasised it was a member of the public who brought the offence to the attention of the authorities, and that it was not rectified on the initiative of Mrs Ruxton. He urged the Tribunal that the submissions of the applicant, in relation to the doubts about whether she should have declared her conviction, were “far fetched”. The respondent’s solicitor suggested that an indication of her motivation or good faith in this matter was that the debt ordered by the Court in November 1999 of $8,958.70, was only paid off in December 2003 notwithstanding that she was fully employed throughout the period. His submissions on behalf of the Department, were that Mrs Ruxton had not satisfied the high standard of integrity required by her misleading statement and therefore, was not of “good character” for the purposes of the Act.
Procedural Fairness
19. It was noted that the decision by the Delegate of 17 February 2004 to reject the application was not preceded by any further check with the applicant following receipt of the advice from the Australian Federal Police as to the applicant’s conviction. That advice was received subsequent to the date of her interview with Mr Moore. It was not that there was a significant point of procedural fairness on that issue, as the applicant admits that it is her criminal record. However, it is noted that the decision-maker may have had a different perspective of the applicant’s actions, had comment been sought on the fresh information obtained from the Australian Federal Police. The Department’s decision may not have been altered by any response to the information of her criminal record. However, the decision-maker may have seen fit to consider whether the application should be deferred under section 14 of the Act.
Tribunal’s Deliberations
20. The question for determination here is whether, on balance, the decision by the Department was reasonable.
21. The reasonableness of the decision relates to the misrepresentation. Section 50 of the Act provides that a person is prohibited from concealing information or making a misrepresentation of a material particular. This is a mandatory requirement. The seriousness of this is reflected in the penalty provision within that section which provides that the penalty is 12 months imprisonment. It was clear that by omitting the conviction from the application form that a further offence had been committed.
22. In this case, the difficulty is determining the weight to be accorded to the various parts of evidence presented. However, some guidance is clearly available from the Australian Citizenship Instructions. In addition, regard has been had to the evidence on the balance of probabilities. In doing so, I have considered and applied the dicta of Sir Owen Dixon of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, where he said that the standard of the burden of proof will vary from question to question to take into account the seriousness of the particular question upon which satisfaction is to be reached and the consequences to the person of an adverse finding.
23. In determining “good character” as defined in the legislation, this has been held to refer to the “enduring moral qualities” of the person who is being assessed for citizenship. It refers to the relative attributes and standard of behaviour of the applicant compared to those which are regarded as acceptable within the community in Australia (Irving v Minister for Immigration (1996) 68 FCR 422). In that case, Lee J referred to this assessment being an objective test rather than a subjective test of a person’s reputation. This approach is clearly of value in an assessment such as that required in the present case, as an assessment based on reputation would be likely to be influenced only by the opinions of those whom the applicant chooses to tender as referees. Such persons would presumably be those who are sympathetic to him or her. It would not necessarily be verifiable as a balanced or objective assessment. As His Honour alluded to in that case, some persons of poor reputation could be shown to be of good character, while, on the other hand, others of excellent reputation could be shown not to be of good character.
24. Therefore, “good character” refers to the “enduring moral qualities” or characteristic traits which a person demonstrates in the self regulation his or her conduct. In other words, it is the likely consistency or predictability of the person’s behaviour at a particular standard. In assessing this, the Australian Citizenship Instructions are particularly informative. At the outset, paragraph 5.4.2 places the onus on the applicant to show that she is of good character. An applicant is entitled to a presumption of “good character” unless there is evidence to the contrary. This will usually be a serious offence which has been defined as 12 months imprisonment or more or one of specified serious offences.
25. These Instructions also make it clear that a person’s behaviour does not have to be faultless. However, it is the aggregate of her qualities which need to be distilled together to be weighed against the ordinary acceptable standards of behaviour within the community (paragraph 5.4.3). But in 5.4.5, there is a Ministerial direction that decision-makers are required to give careful consideration to paragraph 5.4.6 to 5.4.15 of the Australian Citizenship Instructions.
26. Para 5.4.7 defines serious offences to include “major fraud” and sentences totalling 12 months or more are ordinarily considered to be serious. But extenuating circumstances can be considered (paragraph 5.4.11). In paragraph 5.4.14, it is made clear that while the criminal record is relevant as a consideration, it is the person’s behaviour and reputation at the time of the decision which is of the greatest relevance. Related to that point, is the guidance that
“…a reasonable amount of time will need to have passed once the applicant has been free of obligation to the Court to establish a pattern of good behaviour and to justify a conclusion of ‘good character’.”
27. In all the circumstances, a balance must be struck in this case between the previous less serious offence and the later more serious offence, committed contemporaneously when the application was completed. It is whether the later offence was committed innocently or whether it demonstrates recalcitrance.
28. In making this judgment I think there is sufficient doubt that Mrs Ruxton did not reasonably believe that she was obliged to report her previous offences. This was undoubtedly an embarrassing matter for her. However, she demonstrated a genuine desire to be an Australian citizen. Her mother and brother both live in Australia and she had married an Australian. There would have been, understandably, a high degree of anxiety about declaring the conviction, as she obviously valued highly her ambition for citizenship. The avoidance of her obligation and her apparent deliberate presentation to the interviewing officer to create an impression of no previous convictions, despite the wording of the application form and her admitted doubt about her obligation, has reduced her credibility.
29. Her enduring moral qualities, or the consistency or predictability of her character have become less certain with the recent weakness or aberration in behaviour.
30. In my opinion, the decision of the delegate should be affirmed although any application for citizenship should be eligible for reconsideration after 21 July 2005.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member
Signed: Sarah Oliver
AssociateDate of Hearing 17 September 2004
Date of Decision 12 October 2004The Applicant appeared in person
Solicitor for the Respondent Mr M Steele, Blake Dawson Waldron
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