Shukure and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 63

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 63

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/353

GENERAL ADMINISTRATIVE DIVISION		)
Re		MUNTHER SHUKURE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date27 January 2006

PlaceSydney

Decision The decision under review is affirmed.

(Sgd)  M D Allen
  ..............................................

Senior Member

CATCHWORDS

CITIZENSHIP – applicant’s application for citizenship refused on the ground that he was not of good character – what constitutes “good character” – applicant’s conviction for aggravated act of indecency – applicant’s lack of contrition – decision under review affirmed.

Australian Citizenship Act 1948 s 13

Migration Act 1958 s 501

Criminal Records Act 1991 (NSW) s 7

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

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

Incorporated Law Institute of New South Wales  v Meagher (1909) 9 CLR 655

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136

In Re Davis (1947) 75 CLR 409  

REASONS FOR DECISION

27 January 2006 Senior Member M D Allen

1.      The Applicant is a deserter from the Iraqi Army who was granted refugee status arriving in Australia on 7 February 1995 via Turkey.

2.      On 25 February 2005 a Delegate of the Respondent refused the Applicant’s claim for Australian Citizenship on the ground that he was not of good character. An application to review that decision was lodged with the Administrative Appeals Tribunal on 21 March 2005.

3. Section 13 of the Australian Citizenship Act1948 states inter alia that:

“The Minister may in his discretion grant a certificate of Australian citizenship to a person who satisfies the Minister that he or she is, amongst other things, of good character.”  

4.      The term “good character” in s 13 Australian Citizenship Act has been given the same meaning as that term in s 501 of the Migration Act 1958: see Deputy President Chappell in ReMlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 at paragraph 17 and the cases there cited. Deputy President Chappell added:

“The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it.”

5.        In Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at 425 Davies J said:

“It should also be observed that the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense it refers to the individual reputation or repute: see the Oxford English Dictionary, meanings 11, 12 and 13; the Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. It there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account”.

Cf Lee J at p 431:

“Unless the terms of the Act and regulations would 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 to the good standing, fame or repute of that person in the community.”

6.        The basis upon which the Respondent’s delegate found that the Applicant was not of good character was the Applicant’s conviction in 1999 for the offence of “aggravated act of indecency with a person under 16 years of age.”

7.        It would appear from the remarks of the trial judge Nield DCJ upon imposing the sentence that the offence was committed upon a child under 10 years of age. Apparently the child who knew the Applicant and referred to him as “uncle”, accompanied the Applicant to his flat at Auburn and there, as Nield DCJ found, the Applicant “put his penis between the cheeks of the complainant’s backside and ejaculated.”     

8.        For this crime the Applicant was sentenced to a term of two years imprisonment with a minimum of one year and six months, to be served by way of periodic detention.

9.        That term of periodic detention was served by the Applicant although five weeks of that term was served by a period of full time detention because of a failure to attend periodic detention.

10.      The serious nature of the offence was stated by Nield DCJ upon sentencing the Applicant. His remarks upon sentencing include the following passages:

“…the prisoner conducted himself towards the complainant so as to commit the offence of indecent assault, which, in the circumstances in which this offence was committed, and the age of the complainant upon whom it was committed, make the indecent assault a very serious one.”

His Honour later stated:

“The prisoner has committed a serious offence against a young boy. A young boy has been traumatised. The young boy will need appropriate counselling to overcome the trauma.”

His Honour also specifically commented that the Applicant had not shown any contrition for what he did to the complainant.

11.      Before me the Applicant still denied the essential facts of the offence. Notwithstanding that, part of the Crown’s evidence was the finding of semen consistent with the offender on the complainant and his clothing, in a statement to an officer of the Department of Immigration considering whether his refugee visa should be cancelled following conviction and sentence, the Applicant claimed that all he had done was hug the boy. To me he stated all he had done was hug and kiss the child. I am satisfied this evidences a lack of contrition and awareness of the enormity of his crime. To my mind it cannot be claimed on behalf of the Applicant that he has been rehabilitated while he still refuses to acknowledge the facts of his crime.

12.      Additionally I have doubts as to the Applicant’s veracity. To the immigration officer he stated that there would be hardship if deported as he and his wife were from different sects of Islam.  His wife told me in evidence that both she and the Applicant were Sunni.

13.      On 4 December 2001 the Applicant was convicted upon his plea of guilty in the Liverpool Magistrate’s Courts of two offences of dishonesty and fined $250 on each count.

14.      Several references were tendered in the Applicant’s favour. None of those referees refers to or address the conviction for indecent assault. As they do not address this important issue they are of limited worth. As Griffith CJ said in Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 677:

“With regard to the numerous certificates of character, some on oath, by which the application is supported, apart from any question of the weight of such testimonials in general, I cannot suppose that the gentlemen who gave them were aware of the facts now disclosed. If they were, and thought that such conduct is right and proper, their opinion is of no value… If they were not, the foundation for their opinion is gone.”

15.      Currently the Applicant is married with three children. A submission was made by his counsel that in determining this matter I should have regard to the “best interests of the children” as exemplified in Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

16. I regard that submission as misconceived. The best interests of the children would be very relevant if it were decided that the Applicant’s protection visa be cancelled pursuant to s 501 of the Migration Act 1958 and he be subject to deportation. However on 3 February 2005 a decision was made not to cancel his visa.

17.      No doubt both the Applicant and his family would have a greater sense of security and stability if he were to be granted citizenship. However he has a permanent resident’s visa and will not be in danger of deportation unless he again re-offends against the criminal law. I note that the Applicant’s counsel submitted that his client is not a recidivist.

18.      In assessing whether the Applicant is of good character regard must be had to the behaviour of the Applicant since his conviction. As was stated in Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 141:

“It is not conceivable that Parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of ‘general conduct’.” 

19.      That is not to say however that past conduct, even if an isolated incident may not be regarded as disqualifying regardless of subsequent rehabilitation: see the facts of in Re Davis (1947) 75 CLR 409 especially the remarks of Dixon J (as he then was) at p426 namely:

“House breaking for the purpose of theft is not a crime the effect of which as a disclosure of character can be considered equivocal. It is not so easy to imagine explanation, extenuation or reformation sufficiently convincing or persuasive to satisfy a court that a person guilty of such a crime should take his place as counsel at the Bar.”

20.      Here the Applicant has, after committing what was properly described by the trial judge as a very serious offence and one which in my opinion would cause feelings of revulsion amongst most members of the community, committed offences of dishonesty thereafter and failed to comply strictly with the terms of his periodic detention.

21.      The seriousness of the Applicant’s offence is further illustrated by the fact that it is of the class of offences regarding which convictions cannot become “spent” pursuant to the Criminal Records Act 1991 (NSW) see s 7 of that Act.

22.      I am conscious of the fact that the Applicant apparently suffers from a Post Traumatic Stress Disorder following his experiences in the Iraqi Army. However as Nield DCJ said in sentencing:

“As I commented, the relationship, however, between what happened to him in Iran and Iraq and what he did towards the complainant is not so easy to see.”

23.      More importantly however is that even at present the Applicant has not shown any contrition for his crime or acknowledgement of it. He is still maintaining, contrary to the Jury’s verdict that the offence did not occur.

24.      Given all the circumstance detailed above, I am satisfied that the Applicant is not of good character and the decision under review is affirmed.   

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         (E.Pope)           .....................................................................................
  Associate

Date of Hearing  10 January 2006
Date of Decision  27 January 2006
Counsel for the Applicant         Mr I N Asuzu
Solicitor for the Respondent     Mr A Chand, Clayton Utz Lawyers