Stankovic and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 793

DECISION AND REASONS FOR DECISION [2002] AATA 793

ADMINISTRATIVE APPEALS TRIBUNAL                   Nº V2002/219
GENERAL ADMINISTRATIVE DIVISION
           Re:     MARKO STANKOVIC
  Applicant
           And:    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date:11 September 2002
Place:Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

CITIZENSHIP - application for Australian citizenship - numerous prior convictions - whether applicant of good character
Australian Citizenship Act 1948 s13(1)(f)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997)

REASONS FOR DECISION

11 September 2002 G.D. Friedman, Member

This is an application by Marko Stankovic (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 9 February 2002 to refuse to grant Australian citizenship to the applicant on the grounds that the applicant is not of good character within the meaning of s13(1)(f) of the Australian Citizenship Act 1948 (the Act).
At the hearing of this matter on 4 September 2002 the applicant represented himself and Mr T. Fell, solicitor, represented the respondent.
The Tribunal accepted into evidence documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (T1 to T21), together with one exhibit (Exhibit A1) tendered by the applicant.
BACKGROUND
The applicant was born in Yugoslavia on 22 December 1954 and is a Yugoslav citizen. He entered Australia on 30 May 1967 with his parents at the age of 12 years and was granted permanent residence on arrival. On 25 October 2001 the applicant applied to the Department of Immigration and Multicultural Affairs (the department) for Australian citizenship. In his application he listed his past offences and sentences as: drink driving, driving while disqualified, imprisoned for 3 months over 10 years ago, unregistered vehicle fine. On 10 December 2001 the Department wrote to the applicant and informed him that a person matching his details had been convicted of more offences than were declared on his application. In response the applicant informed the Department by letter dated 9 January 2002 that his only recollection of additional past offences was:
…
Burglary and theft in 1997-1998 thereabouts. Received 3 years good behaviour at the County Court Melbourne. There were other similar convictions to the above. But do not recollect dates or sentences as were many years ago.
On 4 March 2002 the applicant lodged an application with the Tribunal for review of the decision to refuse his application for citizenship.
According to criminal records held by Victorian and Western Australian Police the applicant has been convicted of numerous offences between 1967 and 1999. The first occurred five months after his arrival in Australia and the offences have included theft, burglary, larceny of a motor vehicle, stealing, house breaking, going equipped to steal, drink driving, resisting arrest, escaping police custody, possession of firearms, cultivating and possession of a drug of dependence, stating a false name and address and undersized fishing/taking fish for sale. The applicant has received a range of sentences, including several gaol terms, detention in youth training centres, fines, payment of compensation, loss of driver's licence, good behaviour bonds, probation and parole supervision. The most serious offence attracted a sentence of 18 months' imprisonment, and he has also received four sentences of 12 months each and lesser gaol terms. Records held by the Department show that in 1971, 1974, 1976 and 1980 the applicant was issued warnings of liability for deportation.
EVIDENCE
In his application to the Tribunal the applicant stated that the decision to refuse to grant him citizenship was made …on my past characteristic and since have maintained a good character. I answered all applicant questions honestly and truly. In oral evidence the applicant told the Tribunal that when he completed both the application for citizenship and the letter dated 9 January 2002 he listed only some of his convictions because he could not remember all of the relevant matters, and he was aware that the Department would carry out an extensive investigation of his past. He stated that he did not attempt to mislead the Department.
In relation to the offences the applicant stated that the most recent was in 1999 and there are no outstanding matters. He said that in 2000 he ended a long and unsatisfactory relationship, has put the past behind him and no longer associates with persons of bad character. The applicant spoke positively about the relationship with his fiancee and her children, and said that he is seeking employment. The applicant produced personal references (Exhibit A1) from three friends, who describe him as kind, generous, hard working, honest and responsible.
Under cross-examination the applicant conceded that the writers of the references were not aware of the nature and extent of his prior convictions when they wrote the references. He stated that the writers were not present at the hearing because one had retired and the others had employment commitments.
Ms J. Borg, the applicant's fiancee, gave oral evidence and stated that although she met the applicant in 1975, their relationship began in 2000. She said that they have been engaged for 12 months. Ms Borg told the Tribunal that she assisted the applicant to complete the application for citizenship, and that he had disclosed to her the offences that he included on the application form. She said that if she had known about all his prior convictions she would have ensured that they were included. Ms Borg stated that she now believes that the applicant was too embarrassed to divulge to her the extent of his past offences, and that he did not remember all the matters of which he was convicted over a long period.
Ms Borg said that she has taken the applicant as she has found him and that he has demonstrated to her and to her children a kind and caring nature, despite his past. She stated that he is trying to establish himself as a valued member of the community and is making every effort to ensure that he does not re-offend.
CONSIDERATION OF THE ISSUES
Under s13(1) of the Act:
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;
Chapter 5 of the Australian Citizenship Instructions (the Instructions) sets out the policy guidelines which are to be applied by delegates of the Minister in assessing applications for the grant of a Certificate of Australian Citizenship under the provisions of s13 of the Act. Mr Fell submitted that the Tribunal should have regard to these instructions unless there are cogent reasons why it should not (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
Mr Fell said that the relevant paragraphs of the Instructions are:
…
5.4.2The term 'good character' is not defined in the Act, so decision makers [sic] should be guided by the ordinary use of the words in making assessments... 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.
5.4.4Assessment of good character involves:

establishing whether or not an applicant has a criminal record…
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considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then…
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5.4.6Consider 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, 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.
…
5.4.10Consider 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…
…
5.4.13A 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 the 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.
5.4.14The 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, the 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.
5.4.15…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…

Mr Fell referred the Tribunal to Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997) in which the Tribunal stated that character is to be judged objectively against ordinary community standards of moral behaviour. The Tribunal also stated (at paragraph 22) that:
…In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Davies J (with whose reasons R D Nicholson J agreed) said (at p.425):
"…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... 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…"
Mr Fell referred to Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 in which the Tribunal said (at paragraph 17):
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"Good character" in s 13 [of the Act] should be given the same meaning as it is in s 501 of the Migration Act 1958…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...

Mr Fell submitted that in the present case the applicant has a substantial criminal record. He drew attention to the multiple terms of imprisonment served by the applicant and said that in view of the ordinary meaning to be given to good character in s13(1)(f) of the Act, the applicant's disregard for the law through his criminal behaviour demonstrated that the applicant is not of good character. Mr Fell noted that the applicant's criminal record extended for a period of 32 years, with offences including dishonesty, offences against persons and property, violations of public trust, breaches of public safety and disrespect for the law.

Mr Fell submitted that, although the applicant has provided three references attesting to his character, none of the referees was aware of the applicant's criminal record and disregard for the law over a long period. Mr Fell submitted that the references do not demonstrate that the applicant has shown any remorse or has changed his conduct. Mr Fell stated that the commission of offences at regular intervals until 1999 and the recent provision of incorrect information to the Department about prior convictions is a demonstration that the applicant remains a person who is not of good character and has not been rehabilitated.
In reaching its decision the Tribunal takes into account the relevant documents, oral evidence and written and oral submissions. In applying the guidelines outlined in Irving and Re Mlinar to relevant matters, the Tribunal is satisfied that some of the convictions represent serious breaches of the law and demonstrate a pattern of behaviour that involves a disregard for the law over a long period. Many of the offences have been viewed by the courts as sufficiently serious as to warrant lengthy terms of imprisonment. For these reasons the Tribunal accepts the submission by Mr Fell that, in applying the test set out in Irving and Steele and the ordinary meaning of good character, the convictions reflect adversely on the character of the applicant.
In determining whether the applicant has demonstrated that he is of good character, the Tribunal accepts that the applicant has had no criminal convictions since 1999 and that there are no outstanding matters involving him. The Tribunal also accepts the applicant's evidence that he has established a stable relationship with Ms Borg, he is a skilled tradesperson and he is attempting to place his past activities behind him.
The Tribunal finds Ms Borg to be an impressive and honest witness who has supported and encouraged the applicant since their relationship began in 2000. The Tribunal accepts her evidence that when assisting the applicant to prepare the application for citizenship she was not told of the extent of his criminal convictions, and that she acted in good faith on the information that he gave her. The Tribunal also accepts that the relationship has provided an excellent basis for the rehabilitation of the applicant and the development of a secure family unit involving Ms Borg and her children.
On the other hand, the Tribunal finds that the applicant knew, or ought to have known, that he was required to provide complete and accurate information to the Department in the citizenship application. Any embarrassment felt by him in not wishing to disclose all prior convictions to Ms Borg does not absolve him from his responsibilities. Further, the Tribunal finds that the three referees did not have knowledge of the applicant's prior convictions, and notes that they were not present at the hearing. The Tribunal accepts the submission by Mr Fell that little weight should be placed on these references.
The Tribunal finds that after a 32-year period of committing criminal offences, the period since the most recent conviction in 1999 is relatively short. In the absence of additional supporting material the Tribunal finds that, on balance, the applicant has not demonstrated that at the time of the refusal of the application for citizenship he was of good character. Consequently he does not satisfy s13(1)(f) of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding twenty-three [23] paragraphs are a true copy of the reasons for the decision of G.D. Friedman, Member:

(sgd) Olympia Sarrinikoloau
Clerk

Date of hearing:  4 September 2002
Date of decision:  11 September 2002
Advocate for applicant:  Self-represented
Advocate for respondent:                   Mr T. Fell
Solicitor for the respondent:               Australian Government Solicitor