Steele and Minister for Immigration and Multicultural Affairs

[2002] AATA 621

DECISION AND REASONS FOR DECISION [2002] AATA 621

ADMINISTRATIVE APPEALS TRIBUNAL                   Nº V2001/1216
GENERAL ADMINISTRATIVE  DIVISION  
           Re:     DAVID STEELE      
  Applicant
           And:    MINISTER FOR IMMIGRATION  AND MULTICULTURAL  AFFAIRS       

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:26 July 2002

Place:Melbourne

Decision:The Tribunal affirms the decision under review.  

(sgd) G.D. Friedman
  Member

CITIZENSHIP - application for Australian citizenship - convictions for drink/driving, driving whilst disqualified, assault, property damage - 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

26 July 2002  G.D. Friedman, Member

1. This is an application by David Steele (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as he then was) (the respondent) dated 4 October 2001 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).

2. At the hearing of this matter on 18 July 2002 in Albury, New South Wales, the applicant represented himself, assisted by his father David Steele Senior, and Mr T. Fell, a solicitor with the Australian Government Solicitor, represented the respondent.
   BACKGROUND

3. The applicant was born in New Zealand on 6 January 1958 and is a citizen of that country.  He arrived in Australia on 10 October 1977 and worked in the construction industry as a rigger.  After several months in Sydney he moved to Western Australia to seek employment in the mining industry.  He remained there until about 1980, when he moved to Albury.  He married in 1981 and has three children, now aged 17, 15 and 11 years respectively.  In about 1985 he commenced a business specialising in steel erection, mechanical installation and crane driving which he terminated in about 1993.  He and his wife separated in 1993 and are divorced.  He then worked with his father, doing various jobs in the Albury/Wodonga area.  On 30 August 2000 the applicant applied for Australian citizenship, and on 19 September 2001 he lodged an application with the Tribunal for review of the decision to refuse his application for citizenship.

4. The applicant has appeared in court in the following matters:
   DATE PLACE         CHARGES    PENALTY    
   3 July 1978    Albany,  Western Australia          Drink driving $100 fine; disqualified for 3 months           
   13 April 1981 Albury, New South Wales  Drink driving Assaulting police  (2 counts)  Resisting arrest  (2 counts) Serious affront $400 or 16 days hard labour and disqualified for 12 months sentence deferred on enter recognisance self $500 – good behaviour 2 years accept supervision probation and parole service on each count $80 or 4 days hard labour  $80 or 4 days hard labour and pay $200 for pain and suffering       
   11 December 1986  Raymond Terrace, New South Wales     Assault occasioning actual bodily harm (2 counts) Malicious injury   on each charge perform 300 hours community service order $1000 or 20 days hard labour; sentence deferred on enter recognisance self $500; good behaviour 3 years appear for sentence if called upon; accept supervision of probation or parole service for 12 months; pay compensation $1987.48     
   4 January 1993       Albury, New South Wales  Assault          $300 and court costs $45  
   5 January 1993       Albury, New South Wales  Assault          $300 and court costs $45  
   25 January 1993     Albury, New South Wales  Breach of domestic violence order          self recognisance $500 and good behaviour 2 years          
   3 May 1993   Albury, New South Wales  Assault occasioning actual bodily harm Resisting arrest  (2 counts) Malicious damage Assaulting police fined $800 on each charge fined $150 fined $150 fined $400    
   1 August 1994         Albury,  New South Wales Drink driving fined $600 and court costs $45 licence disqualified for 9 months   
   30 November 1994  Lithgow, New South Wales Drink driving Driving whilst disqualified (2 counts) Stating a false name Speeding     sentenced 3 months gaol and disqualified for 3 years for each charge sentenced 3 months gaol and disqualified for 6 months fined $600 and court costs $45 fined $200  

20 January 1997     Albury, New South Wales  Drink driving Driving whilst disqualified   fined $300 and court costs $51; disqualified for 3 months fined $800 and court costs $51; disqualified for 3 years 
EVIDENCE

1. The Tribunal accepted into evidence documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (T1-T12), together with one exhibit (Exhibit A1) tendered by the applicant.

2. The applicant told the Tribunal that the 1978 incident occurred when he had drunk to excess at a work function.  He said that the 1981 incident occurred after his "bucks night" celebration.  He stated that he was pulled over by the police and that he pushed a police officer who had verbally abused his then girlfriend.  The applicant agreed that his blood/alcohol reading was over the acceptable limit.  He stated that the 1986 incident occurred when female members of a softball team had been assaulted, and he and some friends had decided to deal physically with the perpetrators.

3. The applicant told the Tribunal that the 1993 incident occurred after he was refused entry to a nightclub, and an altercation occurred, resulting in assault of a police officer and damage to a seat at a bus stop.  He said that in a separate incident in 1993 he pushed his then wife after an argument and inadvertently breached an apprehended violence order obtained by her.  The applicant stated that in 1994 his drink-driving conviction occurred after he had been drinking and a minor collision had occurred.  He said that in the separate 1994 incident at Lithgow he was apprehended on alcohol-related offences after an outing at the races, and he served a three-month custodial term in Goulburn Gaol plus a disqualification from driving for three years.  He stated that in 1997 he again drove while disqualified and when drunk.

4. In relation to the offences the applicant stated that he now recognises that he has had an alcohol problem for a number of years.  He said that his difficulties were exacerbated by a head injury suffered at work in 1982, which led to a diagnosis of bipolar disorder.  He admitted that most of the incidents occurred when he was unstable, had been consuming alcohol and had not taken prescribed medication.  He told the Tribunal that there might have been psychotic episodes involved.  The applicant produced a number of references (Exhibit A1) from various friends and former employers, who spoke highly of his integrity, honesty, reliability and character.  The applicant's father told the Tribunal that the applicant has demonstrated that he has changed and is now of good character.  

5. Under cross-examination the applicant agreed that his convictions have involved an abuse of alcohol, anger management problems and confrontation with authority.  He assured the Tribunal that he has matured and learned his lesson.  He stated that since 1997 he has received counselling, has moderated his drinking, does not drink and drive, takes medication as prescribed by his doctor, and has had no further convictions.  He said that he lives with his parents and helps them operate a motel, and he has a good relationship with his children, whom he sees regularly.  The applicant said that he has been receiving disability support benefits since 1997 and has tried unsuccessfully to find full-time employment.  The applicant conceded that the referees might not have been aware of the nature and extent of his prior convictions when they wrote the references.  He stated that he did not see any necessity for the referees to appear at the hearing, and that the respondent should have contacted them if there were any areas of the references that required clarification.  He said that his former wife and the children, with his parents, have supported his application for Australian citizenship.    
   CONSIDERATION OF THE ISSUES

6. 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:

7. 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).

8. 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…

  ….

• considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then…

  …

  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.  Whether 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…

1. 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.  …"

2. Mr Fell referred to Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 in which the Tribunal said (at p776):

   …
   "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 criminal record, and he drew attention to the term of imprisonment served by the applicant in 1994. Mr Fell said that in view of the ordinary meaning to be ascribed to the reference to good character in s13(1)(f) of the Act, the applicant's disregard for the law through his violent behaviour on numerous occasions, especially that directed against police officers coupled with his numerous drink/driving offences, demonstrate that the applicant is not of good character. Mr Fell noted that the applicant's criminal record extended for a period of 29 years, with offences being committed at regular intervals involving repeat offences of violence, drink driving and driving without a licence. He said that this demonstrates a pattern of unlawful behaviour which suggests that the applicant is not of good character and has not been rehabilitated.

1. Mr Fell submitted that, although the applicant has provided a number of 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.  The references do not demonstrate that the applicant has shown any remorse or has changed his conduct.  On this basis, Mr Fell submitted that objectively the applicant is not of good character.

2. 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 Mlinar to relevant matters, the Tribunal is satisfied that the convictions represent serious breaches of the law and demonstrate a pattern of behaviour that involves violence against persons and property.  The offences involving drink/driving and driving whilst disqualified have placed at risk the well-being of the applicant and other users of the roads and have been viewed by the courts as sufficiently serious as to warrant a term 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.

3. The Tribunal accepts that the applicant has had no criminal convictions since 1997 and that he has moderated his drinking habits.  The Tribunal also accepts that the applicant is taking his medication on a regular basis.

4. In determining whether the applicant has demonstrated that he is of good character, the Tribunal takes into account that the referees did not have full knowledge of the applicant's prior convictions, and that they were not present at the hearing.  The Tribunal accepts the submission by Mr Fell that less weight should be placed on these references than would otherwise be applicable.  The Tribunal also takes into account that, in the absence of medical evidence, no conclusion may be reached about the applicant's claims concerning bipolar disorder and the effects of failing to take prescribed medication at the time of various offences.

5. For these reasons the Tribunal finds that, on balance, at the time of the primary decision, the applicant has not demonstrated that he is of good character, and he does not satisfy s13(1)(f) of the Act.
   DECISION

6. The Tribunal affirms the decision under review.   

I certify that the preceding twenty [20] paragraphs are a true copy of the reasons for the decision of G.D. Friedman, Member:

(sgd)         Catherine Thomas
                 Clerk

Date of hearing:  18 July 2002
Date of decision:  26 July 2002
Advocate for applicant:  Self-represented
Advocate for respondent:                   Mr T. Fell
Solicitor for the respondent:               Australian Government Solicitor