Silsby and Minister for Immigration and Citizenship
[2007] AATA 1729
•4 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1729
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600378
GENERAL ADMINISTRATIVE DIVISION ) Re WALTER EDWARD SILSBY Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member L Hastwell Date4 September 2007
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant is of good character for the purposes of the Australian Citizenship Act 1948 and should be entitled to a grant of citizenship pursuant to s 13(1) of that Act.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship – refusal on character grounds – prior criminal convictions – convictions pre-dated grant of permanent residence – Alford plea – length of time since last conviction – serious offences – wider circumstances surrounding offences considered – stable employment – stable family relationships – genuine commitment to Australia and to being a citizen – good character for substantial period since last convictions - decision set aside
Australian Citizenship Act 1948 ss 13(1),13(9), 52(1)
Migration Act 1958 s 501(1)
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Vo and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1042
Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Re Bustin and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1082
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84REASONS FOR DECISION
4 September 2007 Senior Member L Hastwell 1. Walter Silsby (the applicant) has been refused Australian citizenship by the Minister on the basis of a finding that he does not satisfy the “good character” requirement of the Australian Citizenship Act 1948 (the Act).
2. The decision was made by a delegate of the Minister on 24 October 2006. The applicant seeks review of that decision to this Tribunal pursuant to s 52(1) of the Act.
3. It is common ground that the applicant satisfies all the criteria for a grant of Australian citizenship, save for that of “good character”.
relevant legislation and policy guidelines
4. The relevant legislation is contained in s 13 of the Act. In this case the Minister’s delegate made a decision under s 13(1) of the Act which lists a number of criteria that an applicant must satisfy before the Minister may, at his discretion, approve a grant of citizenship.
5. Section 13(1) of the Act provides:
“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:
(a) the person is a permanent resident;
(b) the person has attained the age of 18 years;
(c) the person understands the nature of the application;
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f) the person is of good character;
(g) the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.”
6. Section 13(9) sets out a different basis for a grant of citizenship. That section provides:
“13(9) Subject to subsection (11), 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:
…
(c) who is a permanent resident and is the spouse, widow or widower of an Australian citizen; or
…”
7. Guidelines approved by the Minister are contained in the Australian Citizenship Instructions (the Instructions) and in particular Chapter 5.4 of those Instructions. Those Instructions are intended to assist delegates of the respondent in exercising their powers under the Act.
8. Chapter 5.4 sets out criteria by which good character can be judged. The relevant paragraphs in this case are as follows:
“5.4.1 Applicants for grant of Australian citizenship under s 13(1) are required to be "of good character":
•If an applicant fails to satisfy the Minister’s delegate that s/he is of good character, the application cannot be approved (it must be deferred or refused, as appropriate).
•For other applications under s 13, it is a policy requirement. Although policy cannot be applied inflexibly, such an applicant who is deemed to be not of good character would be approved only in the most exceptional cases.
5.4.2The term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.
5.4.3If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character. An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.
5.4.4 Assessment of good character involves:
•establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;
• according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and
• considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.
5.4.5 Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 – 5.4.16, if there is evidence that the applicant:
(a) has, at any time, been sentenced to:
- death;
- imprisonment for life;
- a term of imprisonment of 12 months or more;
- 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
(b) is a serious repeat offender (see 5.3.9 – 5.3.11);
…
5.4.7Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.
5.4.8 Convictions which pre-date the grant of a permanent visa may be given less weight than recent convictions because these convictions should have been taken into account in the character assessment for grant of the visa. Offences committed prior to the grant of a permanent visa that have been concealed from the visa decision maker should not normally be given less weight, and the fact of deliberate concealment may be an indicator of a continuing lack of good character.
5.4.9 Consider whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond. The existence of a bond may indicate that insufficient time has elapsed since the commission of the crime to establish the applicant's good character. However, there may be circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond. (Note that periods on parole or proceedings pending must be considered undress 13(11), where they come within the scope of that provision.)
5.4.10Consideration should be given to whether or not an applicant’s offence(s) would be regarded as an offence in Australia. For example, a person charged with political offences in one country may not be considered guilty of a crime in Australia.
5.4.11Consider whether a crime was a one-off occurrence that can now be considered "out of character", or whether the person's criminal record shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13 – 5.4.17).
5.4.12Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.
5.4.13Crimes committed by the applicant at a young age may be given less weight depending on the nature of the crime and the applicant's subsequent record. It may be considered that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.
5.4.14A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
5.4.15Where a decision-maker is not satisfied that a person is of good character at the time they assess the application for citizenship by grant but if given a further period of time they consider that they would be likely to grant the application, the option of deferring the application under s 14A should be considered. See 3.4(d).
5.4.16The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.
5.4.17The applicant’s present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight.”
issues
9. The issues to be determined in this case are:
·whether the applicant satisfies the requirements of the “good character” test as set out in the Act ; and
·if he fails to satisfy the good character test, whether he could otherwise be considered for a grant of citizenship under s 13(9) of the Act as he is the spouse of an Australian citizen.
background
10. The applicant was born in the United States of America (the USA) on 28 April 1952.
11. He has a series of prior criminal convictions in the USA. They are as follows:
·A conviction for attempting to receive stolen property in 1984. The applicant did not serve a term of imprisonment as a result of this offence.
·A conviction for sexual imposition in October 1991. He served two months in prison as a result of this offence. The victim of the offence was his then sister-in-law.
·Convictions on three counts of gross sexual imposition in October 1994. The victim of these offences was the applicant’s infant son. The applicant was sentenced to one year of imprisonment on each count, such terms of imprisonment to be served concurrently. He served two years of the possible three year term of imprisonment.
12. The applicant has not offended since the 1990s, save for a minor traffic conviction in Australia.
13. The applicant met his current Australian wife on the internet in 1997. They established a relationship and she travelled to the USA to meet with him. They decided to continue the relationship and he entered Australia on 8 August 1998 on a visa. They married in Australia on 13 January 1999.
14. In his application for a permanent resident visa lodged on 19 January 1999, the applicant disclosed some of his criminal record. He disclosed the most serious offences relating to his son. It is not clear whether he initially disclosed the offence relating to his sister-in-law in his application. He did not disclose the 1984 offence of dishonesty.
15. On 8 May 2000 the applicant was notified of the Minister’s intention to refuse his visa application pursuant to s 501(1) of the Migration Act 1958 (the Migration Act) on the basis that he failed to satisfy the “good character” requirement of that Act. The only convictions referred to in that notice were the convictions in 1994 (T3/116-117).
16. In response to this notice, a submission was lodged by the applicant’s migration agent (T3). Material was included with this submission. An opinion of Christopher Kourakis QC, which dealt with the issue of whether the applicant’s convictions with respect to the offences involving his son would be regarded as unsafe in Australia, was also provided to the Minister. There is no mention in Mr Kourakis’ report of the 1984 or the 1991 convictions. Mr Kourakis expressed the view that the 1994 convictions with respect to the applicant's son would be unsafe in Australia.
17. The material provided by the migration agent to the delegate on this occasion included an investigation report (T3/85-115) which disclosed details of the offence against the applicant’s sister-in-law and the applicant’s discussion with an investigator about the circumstances of that offence.
18. On 31 October 2002, the applicant was granted a permanent resident visa in the Spouse (BS801) subclass of the General (Residence) class.
19. On 26 April 2005, the applicant lodged an application for grant of Australian citizenship (T6/318). At question 45 of the application, he disclosed the offence involving his sister-in-law and the offences of 1991 and detailed the terms of imprisonment that he served with respect to each. He did not disclose the earlier conviction in 1984 for receiving stolen property. He also disclosed a conviction for a minor traffic offence in Australia.
the hearing
20. At the hearing, Mr Colton appeared as counsel for the applicant and Ms Forrester for the respondent. The applicant gave evidence. His wife, Jennifer Silsby, gave evidence as did her daughter, Tracy Hardham, and a family friend, Christine Lane. The T documents and the supplementary T documents were received into evidence as Exhibits R1 and R2 respectively.
21. The applicant told the Tribunal that he holds an Associate Degree in Mechanical Engineering. His work is in the area of design drafting and he has been in regular employment since coming to Australia. He works on contracts which last for anything from a few weeks to several years because of the nature of the work. He currently undertakes lot of work for the Adelaide City Council. He is 55 years of age and hopes to remain in the workforce for a number of years.
22. He adopted his statutory declaration (Exhibit A1) as being his best recollection of the prior criminal offences in the USA.
23. He separated from his former spouse in the early 1990s and he was the custodial parent of his son until such time as the incident with his sister-in-law occurred. Although his son came back into his care subsequent to his two month imprisonment in 1991-1992, his son was then taken off him some months later when his former wife raised the allegations that led to the three convictions for sexual imposition on his son and the three terms of imprisonment.
24. He told the Tribunal that his wife's allegation that he had sexually abused his son was made in the context of marital breakdown and litigation associated with property settlement. Applications for divorce and property settlement were before the Ohio courts at the time. This was a jurisdiction where fault was a relevant factor. He said that he had no representation during the divorce hearing and that ultimately the settlement was weighted substantially in his wife’s favour because of his convictions.
25. He said that he was not guilty with respect to the offences against his son, but that he was advised by his attorneys to plead guilty as the particular offences with which he was originally charged held a potential sentence of life imprisonment. The lesser offences to which he pleaded guilty did not hold the potential for life imprisonment.
26. He expressed remorse and shame at the earlier offence with respect to his sister-in-law. He said that the offence occurred in the context of his excessive consumption of alcohol and that he has little memory of what happened that night. He no longer consumes alcohol to excess as he would not allow himself to fall into that situation again.
27. He claimed to have forgotten the 1984 conviction when applying for both permanent residence and citizenship. He understood it at the time to be a very minor matter that was taken care of and resolved within a day. The incident occurred many years ago. He claimed to have not really appreciated that it was a criminal matter and considered it to be more in the category of a traffic offence.
28. He acknowledged that in the letter of his migration agent dated 4 February 2001, there was no mention of the charge of sexual imposition on his 14 year old sister-in-law. He did not agree that he was deliberately concealing this event, but rather that his focus was on the more serious offences relating to his son.
29. The applicant spoke of his experience in prison. He said that on the first occasion he was sequestered in a small area in a facility that he described as “not modern”. He underwent counselling and focused on the fact that the incident with his sister-in-law occurred when he had consumed alcohol to excess. He described the separation from his wife as being traumatic and that it led him to excessive alcohol consumption for a period of some months. During the first period of incarceration he had time to reflect upon his life and that was when he decided not to drink alcohol to excess again and to monitor carefully his future alcohol consumption.
30. After that first period of imprisonment he entirely moderated his drinking and claims to have never drunk to excess since.
31. His statutory declaration deals with the reasons he pleaded guilty with respect to the offences relating to his son.
32. He described the second period in gaol as being even more frightening. He was classified as a sexual offender and he was threatened by other inmates. Nevertheless, during that time in gaol he worked as an instructor. He volunteered to teach individuals to read and write and he worked in that capacity. He enjoyed reading. It was a lonely time for him and he had visitors on only two occasions during the two years that he was imprisoned. His parents were elderly, his father unwell and he was imprisoned at a considerable distance from family. He described himself as conforming to what was required by prison authorities during that time, and he tried to make himself productive by teaching others. He served two years of a potential three year term.
33. After he was released from gaol on the second occasion, he went to Arizona where he lived with his parents and cared for them as his father was suffering from Alzheimer’s disease. He found further full-time employment. He has not had contact with his son since prior to his term of imprisonment for the offences relating to his son.
34. He described having an excellent relationship with his current wife. They have a settled and relatively quiet lifestyle. He enjoys hobbies of photography and collecting antiques and working in the garden. He and his wife are planning to build another house. They both work full-time. He enjoys playing recreational golf and takes an active interest in politics. He is regularly in contact with his remaining family in the USA, which includes his mother. He has a good relationship with both his family in the USA, his wife and the stepchildren from his current marriage.
35. He described experiencing feelings of loss associated with the relationship with his son. He feels that he had no control over what happened and he still looks forward to the day when perhaps his son will search him out. He is committed to his current marriage and his family. He is keen to be able to vote and considers it an important step forward in his integration with the Australian community to become a citizen. He sees Australia as now being his home and has a genuine desire to be a citizen.
christine ann lane
36. Christine Lane gave evidence on the applicant’s behalf. She adopted the contents of her statutory declaration (T12/344). She has children of her own. In her statutory declaration she states that she has been aware of the applicant's convictions for sexual offences against his son since approximately the year 2000.
37. She was a school teacher before becoming a legal secretary and she is aware of the requirements of mandatory reporting of any abuse of children. She was mindful of observing and watching the applicant in his dealings with children, including her own children, after learning of his criminal record. She has observed nothing inappropriate in his behaviour. She has no difficulty with her children having contact with the applicant and she is also at ease in her relationship with the applicant and his current wife.
38. She sees the applicant and his wife on a social basis and reasonably regularly, although not as often as she would like.
39. She considers herself to also have a friendship with the applicant now as well as his wife.
tracy hardham
40. Tracy Hardham is one of the three daughters of the applicant’s current wife. She adopted the contents of her statutory declaration (T12/346) as part of her evidence.
41. She told the Tribunal that initially she had some difficulties in her relationship with the applicant when she found out about his prior convictions. However, time has resolved those difficulties. Her daughter, who is aged 12, now regularly spends time at the home of her mother and the applicant and stays overnight there. She described herself as having “no issues” with the applicant at all. She perceives that her mother is very happy and that her mother and the applicant have a good relationship, which appears to improve over time. She described the applicant as being hardworking, helpful, kind and caring.
jennifer silsby
42. Jennifer Silsby, the applicant’s wife, gave evidence. She is a teacher and an assistant principal. She has had an open dialogue with the applicant about his prior history, including his abuse of alcohol and his criminal history. He told her of the history of his offending when she decided to travel the USA to meet with him not long after they commenced talking on the internet. She had also telephoned both his sister and his mother to obtain their perspective on what had occurred because of the seriousness of the offences.
43. She described his family in the USA as being highly supportive and that they considered that he had been “set up” with respect to the offences against his son. He had explained the offence against his sister-in-law as being in the context of excessive alcohol consumption.
44. She described the applicant as hardworking, caring, compassionate and calm. She said he always wanted to go the extra mile for someone. She described their relationship as being very stable.
other evidence
45. There was other relevant material in the T documents which was considered by the Tribunal. This included depositions upon which the prosecution had relied with respect to the offences relating to the applicant’s son, interviews with relatives and neighbours of the applicant carried out at the time, and in the context of a pre-sentencing report to the judge, a deposition of his former wife who had initially raised the allegation against the applicant, reports of a therapist who was dealing with the child and transcripts of the court proceedings.
46. At T3/49 there is the transcript of the sentencing of the applicant with respect to the offences relating to his son. The sentencing took place on 12 October 1994. The plea that he made is referred to as an “Alford plea” in the USA. A number of people provided letters of support to the sentencing Judge. There had been some confusion about the Court date and a number of people who had been available to personally give evidence to support the applicant were not available that day.
47. The transcript indicates that the applicant’s attorney stated that the decision to plead guilty was based not on the applicant’s belief that he was guilty, but on his concern that the offences as originally charged held life imprisonment and a concern that the whole matter be brought to a conclusion as it would appear that it had dragged on for some time. The relevant section of the transcript sets out a dialogue between the applicant's attorney and the sentencing judge in the following terms (T3/61):
“He made a decision that if we could … style a plea, … that he would feel more comfortable entering the plea, not subjecting himself to life imprisonment, but the last thing that concerned him was that this would be the final episode of this story involving his child, for which he denies abusing. And he said this is going to stop the investigation, and if someone injured my son, I would want that to still continue as to who did it”.
48. The opinion of Christopher Kourakis QC (T10/336), as provided in the context of the Migration Act application, is that in Australia it is unlikely the guilty plea would have been accepted in the circumstances where the applicant was effectively telling the Court that there were pragmatic reasons for entering a plea of guilty, but that he did not consider himself to be guilty. Mr Kourakis also noted that at the time of the alleged offending, the child was aged 4 years. He considered that the conviction in the USA with respect to the applicant's son could only be regarded as unsafe and dangerous by Australian standards.
49. Other material of relevance in the documents included a psychological report of Anne Williams dated 10 October 2000. This report was prepared in the context of the applicant's application for a visa. Ms Williams saw the applicant on two occasions and on the second occasion his current wife was present. Her conclusion was that the applicant's psychological state was stable and that he was highly likely to be “law abiding, gainfully employed and committed to his apparently stable caring relationship with his wife” (T3/139). She referred to his psychological state as being “stable with no signs of psychopathology”.
50. The T documents also contained a brief reference from the former manager of a company that the applicant had worked for between 2005 and 2006.
applicant’s submissions
51. The applicant submits that he does satisfy the good character test. He was found by the Minister to be of good character when he was granted a visa pursuant to the Migration Act in October 2002, and he points to the fact that nothing has changed since then. The test under the Migration Act is also one of good character. There is no different test to be applied under the Act and he is entitled to be found to be of good character for the purposes of the Act.
52. The applicant submits that the American convictions in relation to his son should be regarded as being unsafe in Australia and that in all other respects he is a person of good character and is a useful and law abiding citizen. The applicant argues extenuating circumstances with respect to the first conviction for a sexual offence in the USA. He continues to deny guilt with respect to the offences against his son.
53. The applicant had disclosed the most serious convictions when he was granted a visa. His counsel asserts that the failure to initially disclose the conviction with respect to his sister-in-law in the application for a visa under the Migration Act was more a matter of poor judgement on the part of his migration agent who perceived the major hurdle to a finding of good character to be the convictions involving his son. The applicant asserts that he has given a good explanation as to why initially the 1984 conviction was not mentioned.
54. The applicant argues that the Minister cannot revise the decision that was implicitly made that the applicant was of good character when he granted him a permanent visa as there is no new material that would allow that first decision to be altered.
55. The Minister’s decision fails to recognise that the applicant has made sound progress and is completely rehabilitated.
respondent’s submissions
56. The respondent argues that there is a higher test of good character for citizenship applications because of greater responsibilities and privileges attached to it. The Tribunal relies on comments of Deputy President Chappell in the matter of Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 cited with approval in Re Vo and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1042 and in a number of other Tribunal decisions.
57. The respondent asserts that there are limitations on the extent to which the Tribunal can investigate the facts upon which a conviction is based. The Tribunal must accept the fact of the conviction and the sentence imposed.
58. The respondent contends that the applicant’s criminal record is highly relevant to the assessment of good character in this case and that the applicant's failure to properly disclose his prior criminal record in his application for a visa amounted to a concealment and glossing over of the detail of these convictions in the course of the citizenship application. The respondent says that this is an indication of a continuing lack of good character.
59. The respondent points to a lack of independent character evidence adduced on the applicant’s behalf as another factor for the Tribunal to bring to account in making its decision. Only one reference from a prior co-worker was produced.
60. The Tribunal found the applicant to be a very straightforward witness. He answered questions in a direct and forthright manner. The Tribunal had no reasons to disbelieve any of his evidence or that of the other witnesses.
additional findings of fact
61. The Tribunal makes the following findings on the balance of probabilities:
§The matters set out in paragraphs 10 to 19 (supra).
§The offence in relation to the applicant's sister-in-law occurred in the context of the applicant's excessive drinking which had commenced when his relationship with his wife broke down.
§The applicant used his period in prison on this first occasion to reflect upon why the offence has occurred, as a result of which he decided to never again consume alcohol to excess and he has been a very moderate drinker since that time.
§At all times the applicant has maintained that he was not guilty with respect to the offences against his son. He was convicted on what is known as an “Alford plea” where he maintained his innocence, but elected to be convicted on a lesser charge to avoid the risk of a much longer term of imprisonment.
§The longest term of imprisonment to which the applicant has been sentenced is one year. He served two of three consecutive one year terms with respect to the offences against his son.
§The applicant's early release from imprisonment after serving only two thirds of a potential three year term would appear to indicate a release based on good behavior.
§The applicant used his second occasion in prison to teach other prisoners to read and write. It was a traumatic time for him. He lost his employment, his assets and his relationship with his son as a result of pleading guilty to the offences.
§After his release from prison in 1996, the applicant returned to reside with his elderly parents and he cared for them thereafter. Even prior to going to prison he had been a key member of his family in caring for his elderly parents. He remains close to his mother and his sister. His father is deceased.
§The applicant has always maintained gainful employment. He has skills as a design draftsman and he has had regular employment in Australia. He usually works on limited term contracts because of the nature of his employment. Sometimes those contracts are quite short and sometimes they are longer.
§The applicant failed to disclose his 1984 conviction in his application for permanent residence in 2001 because he did not consider that matter to be a criminal conviction and his recall of it was that it was more in the nature of a traffic matter.
§The applicant provided further material to the delegate of the Minister when he received the Notice of Intention to Refuse Visa. This material was annexed to the letter from his migration agent of 4 February 2002 and included specific information about the offences involving his former sister-in-law.
§The Minister found the applicant to be of good character in 2001 and granted him permanent residence.
§The applicant is of good repute in the Australian community. He has a strong desire to be an Australian citizen. He is interested in politics and would value the right to be able to vote in Australia. He considers Australia to be his home.
§The applicant has a stable and happy marriage to an Australian citizen.
discussion of the cases and application of the law
62. In coming to the correct and preferable decision, I have taken into account all the evidence. The Instructions are instructions approved by the Minister and intended to give guidance to the decision-maker in making decisions under the Act. I accept that I must give proper consideration to those Instructions in making my decisions unless there are fairly compelling reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634).
63. Paragraph 5.4.2 of the Instructions provides that an applicant may be presumed to be of good character unless there is evidence to the contrary. A prior criminal record can amount to such evidence.
64. A number of the Instructions are relevant in this case. The applicant does have a criminal record (5.4.4). He has committed crimes that are considered serious by community standards and he has served terms of imprisonment that in aggregate exceed two years for those offences (5.4.7). The respondent argues that he has also concealed offences when making his application for both a visa and then citizenship (5.4.8). He has more than one criminal conviction (5.4.11).
65. The Tribunal must accept the fact of the convictions and the sentence imposed. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135, the Full Federal Court commented at page 138 as follows:
“ … There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. …”
66. The Tribunal accepts the applicant’s explanation as to why he did not mention, or even specifically remember, the 1984 conviction and in the Tribunal's view that in itself would not be sufficient to stand in the way of a grant of citizenship given that it comes into the category of a minor offence that occurred over 20 years ago. The applicant has not been convicted of an offence of dishonesty since. It would appear to have been a minor matter given the nature of the penalty imposed.
67. The applicant served two months in prison for the offence involving his sister-in-law. The information in the T documents accords with the applicant’s own evidence that this offence occurred in the context of him drinking alcohol to excess, shortly after his marriage had broken down. At the time he was the sole carer for his son and he was drinking excessively during that period of time. He was then, and remains, ashamed and remorseful at the fact of his offending. He pleaded guilty to the offence and after receiving counseling in jail he has shown discipline in his drinking habits since. The offence occurred 15 years ago.
68. The offence was significant. It involves behaviour that is not acceptable in our society. Nevertheless, there has been no further offending of this nature and the Tribunal also takes account of the overall surrounding circumstances and the applicant’s repeatedly expressed remorse at this offence.
69. The most significant hurdle that the applicant faces in his application for a grant of citizenship remains the convictions for which he served a two year term of imprisonment between 1994 and 1996. To what extent can the Tribunal have regard to the fact that the applicant maintained his innocence throughout and claims to have pleaded guilty to avoid the potential of a longer term of imprisonment?
70. In the case of Re Bustin and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1082, Deputy President Jarvis considered the issue of good character in a spouse visa application. He considered a similar situation where the applicant had been convicted of the serious offence of incest based on an Alford plea. Deputy President Jarvis expounded on what an Alford plea amounts to in the following terms:
“26. It appears that in some criminal jurisdictions within the United States, defendants may enter what is called an "Alford" plea. On the limited information before me, I understand that this plea takes its name from the United States Supreme Court case of North Carolina v Alford (1970), 400 US 25, and that it allows the defendant to actively maintain his or her innocence, and so avoid the risk of a more severe penalty following a conviction after a contested hearing, while conceding that nevertheless there is sufficient evidence before the court to produce a conviction. I understand further that the plea requires a determination by the Court that there is a factual basis for the plea, but that this inquiry is to enable the court to be satisfied that the guilty plea has been entered intelligently and voluntarily, so as not to contravene the United States Bill of Rights. The court’s inquiry does not, however, entail the making of any factual finding of guilt, as I understand it.”
71. While accepting in that case the fact of the conviction and sentence imposed, Deputy President Jarvis considered that he could have regard to the fact that an Alford plea had been used and he could look at the wider circumstances. His conclusion was that because of the circumstances of the Alford plea and the facts of the case he placed less significance on the conviction than he would otherwise have done.
72. The Tribunal has the benefit of reading the transcript of the sentencing of the applicant with respect to the offences involving his son. It confirms that the applicant did enter an Alford plea and maintained his innocence claiming that the only possible incident that he could recall that may be interpreted as an offence was to use a rectal thermometer on his son to check his temperature.
73. The material before the Tribunal indicates the wider context in which his case occurred. The material supports a conclusion that the allegations against the applicant occurred in the context of an acrimonious marital separation and at a time when proceedings for divorce and property settlement were pending. At all times the applicant maintained his innocence. There were many referees available to provide him with good references at the time. The applicant was deeply distressed by the whole process which is evident both from the transcript of proceedings at the time and from his evidence to this Tribunal.
74. In all the circumstances the Tribunal attaches less significance to those three convictions than it may otherwise have attached to them.
75. The Tribunal notes that the applicant served only two of a possible three year term of imprisonment at the time which suggests that he was released on the grounds of good behavior.
76. In this case all convictions well pre-date the grant of a visa for permanent residence (5.4.8), with the most recent conviction being 13 years ago. The applicant has not offended since, apart from a minor traffic matter in Adelaide that the Tribunal does not consider to be of relevance in the context of the character test.
77. Consideration can be given as to whether an applicant’s offence would be regarded as an offence in Australia (5.4.10). Regard must be had to Mr Kyriakos’ opinion that the convictions with respect to the applicant’s son would be considered highly unsafe in Australia because of the basis upon which the applicant told the sentencing judge he was pleading guilty, and because of the nature of the evidence that the prosecution would have had to rely on had the matter proceeded to a trial.
78. The applicant has no ongoing obligations with respect to a bond or a sentence (5.4.9).
79. The applicant has given a good account of himself and the Tribunal accepts that he did not in deliberately conceal his convictions when applying for a spouse visa. He acted on the advice of his migration agent who had taken the view that the most significant obstacle to his application for a grant of visa was the convictions involving his own child. These were the only offences that had carried significant prison sentences and if the migration agent had been considering the Instructions or the Act, he could be forgiven for having regard for example to the definition of a serious prison sentence in the Instructions and in the Act which define a serious prison sentence as being for a period of 12 months or more (s 13(11A)(e) of the Act).
80. The applicant has been severely punished for whatever occurred between him and his son. He has lost his relationship with his son, he served a significant term of imprisonment which was a traumatic experience and he sustained loss of reputation. It was a lonely time for him in prison and he used the time to assist others by teaching them to read and write. He made the best of a very difficult situation
81. The sole issue to be determined is whether the applicant is of good character. The term “good character” is not defined in the Act. However, the comments made by Davies J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 have been adopted in subsequent cases:
“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's reputation or repute. See 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. If 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.”
82. The applicant presents as a genuine person who has committed himself to Australia and sees Australia as his home. He has been living in our community for eight years and has never offended. He does have prior criminal convictions, but the Tribunal is of the view that those convictions must be viewed in the context of the explanations given and in the context of the events that were happening in his life at the time, and in particular the trauma surrounding his marital breakdown. The applicant is not a serious repeat offender.
83. He has married an Australian citizen who holds a respected position in the community and who has now lived with him for almost 10 years and has seen no sign of inappropriate behavior. She supports him in his application, as do her family.
84. The applicant presents as a quiet and reliable person who is respected and liked by his immediate family and friends and is considered a caring person. He has held regular and skilled employment since coming to Australia. He looks to his future as being in Australia. He has weathered well the traumatic events in his life in the 1990s and is to be respected for his ability to move on with his life.
85. The Tribunal is satisfied that for the purposes of the Act the applicant is a person of sufficiently good character to be entitled to a grant of citizenship under the Act. When the story of the applicant’s offending is seen in context, then the Tribunal considers that the convictions do not show a pattern of repeat offending, and although serious, they can have less weight attributed to them than may otherwise be the case.
86. The length of time since the applicant offended and his good character since then are all matters of significance. In the circumstances, the Tribunal is of the view that the applicant is of good character for the purposes of the Act.
87. The respondent asks the Tribunal to find that there is a different and higher standard for a test of character under the Act even though the words used in the Migration Act and the Act are identical. The Tribunal is satisfied that it is not necessary for the Tribunal to address that legal question given the Tribunal’s findings.
88. In the circumstances the Tribunal sets aside the decision under review and substitutes a decision that the applicant is of good character for the purposes of the Act and should be eligible for a grant of citizenship pursuant to s 13(1) of the Act.
89. In the circumstances the Tribunal does not need to consider the provisions of s 13(9) of the Act.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
L HastwellSigned: ..........J Coulthard............................................
AssociateDate of Hearing 7 June 2007
Date of Decision 4 September 2007
Solicitor for the Applicant Mr A Colton (Coltons Solicitors)
Solicitor for the Respondent Ms D Forrester (AGS)
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