Trujillo Mesa and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 557
•20 March 2018
Trujillo Mesa and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 557 (20 March 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5053
Re:Gloria Trujillo Mesa
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:20 March 2018
Place:Sydney
The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
CITIZENSHIP – application for Australian citizenship – whether applicant of good character – serious criminal offence – mitigating factors – lack of remorse and insight – applicant found not to be of good character for the purposes of citizenship legislation – decision affirmed
PRACTICE AND PROCEDURE – confidentiality order – information already in public domain – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Australian Citizenship Act 2007 (Cth) s 21(2)(h)
CASES
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Trujillo-Mesa v R [2010] NSWCCA 201
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Senior Member A Poljak
20 March 2018
Ms Trujillo Mesa, the applicant, is a 36-year old national of Colombia, who first arrived in Australia on 3 July 2001 as a holder of a prospective marriage visa. She was subsequently granted a permanent residence visa (Subclass BS-801) on 14 April 2004. In or around May 2006, the applicant left Australia, but was returned by extradition in November 2008.
On 5 December 2016, the applicant lodged an application for Australian Citizenship (“Citizenship application”) under section 21 of the Australian Citizenship Act (2007) (Cth) (“the Act”). In her application form, the applicant disclosed that she had been convicted of an offence.
On 24 July 2017, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 21(2)(h) of the Act (“the decision”). This is the decision under review in these proceedings.
The issue before the Tribunal in these proceedings is whether it is satisfied that the applicant is of good character in accordance with subsection 21(2)(h) of the Act.
RELEVANT LEGISLATIVE PROVISIONS
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of that Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 52 permits a person to make an application to the Tribunal for review of the decision under section 24 to refuse to approve the person becoming an Australian citizen.
The Act relevantly provides, at subsection 21(2)(h), that a person is eligible to become an Australian citizen if the Minister “is satisfied that the person is of good character at the time of the Minister’s decision on the application.”
DEFINITION OF ‘GOOD CHARACTER’
The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which came into force as of 1 June 2016 (“the Policy”). Further guidance is provided by the Australian Citizenship Instructions (“the ACIs”), dated 1 July 2014, which detail operational instructions and supplements the policy guidance provided in the Policy.
The role of the Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
As to the definition of good character, the Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:
Unless the terms of the Act and regulations 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. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion…
The Policy states that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour as being a manifestation of their essential characteristics.
The Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevantly, a person of good character would, inter alia: respect and abide by the law in Australia and not cause harm to others through their conduct.
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in citizenship applications:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community. (Emphasis added)
That then leaves the question of mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Policy, the Tribunal is to weigh up certain factors, applying community standards.
Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant has; the amount of time that has lapsed since offending; whether the applicant has demonstrated that she can uphold and obey the law; whether she has accepted responsibility and shown remorse for her conduct; and any extenuating circumstances relating to the offences.
CRIMINAL OFFENCE
On 13 August 2009, the applicant was convicted of dealing in proceeds of crime of more than $100,000 (“the offence”). She was sentenced to seven years and six months imprisonment, with a non-parole period of four years and six months. On appeal, the sentence was reduced to 7 years with a non-parole period of four years and two months. The applicant was released from prison on parole in 2012. Her parole conditions expired in 2015.
The details of the applicant’s offence are set out in the decision of the New South Wales Criminal Court of Appeal in Trujillo-Mesa v R [2010] NSWCCA 201.
In short, on 23 December 2005, around 1.17 kg of a substance known as ‘Lucuma’ powder was imported into Australia from Peru. Around 30 to 34 kg of cocaine was subsequently made from the Lucuma powder. That cocaine had a street value of between $16.338 million and $22.874 million. From early 2006 the applicant was given quantities of cash from the sale of the cocaine to remit to Peru. She did so by distributing cash to students who would send the cash to Peru by Western Union, Money Gram transfers and international transfers from various banks. She recorded the transactions and relevant amounts in a diary.
In the space of around six weeks the applicant dealt with just under $800,000 in the manner set out above. She was arrested in August 2008 in the United States of America and was subsequently extradited to Australia in November 2008. She later entered a plea of guilty to the offence of dealing with proceeds of crime, and conceded she was aware that the proceeds were from the sale of cocaine.
In sentencing, the District Court judge found that there was a ‘level of sophistication’ to the applicant’s enterprise and found that she played an ‘important role’ in the criminal scheme by remitting the proceeds from the sale of the cocaine back to Peru. The sentencing judge was satisfied the offence fell within the upper range of offences of its kind.
MITIGATING FACTORS AND CONSIDERATION
The applicant’s criminal history is very serious. She was found to play an important role in the money-laundering enterprise which related to the sale of up to $22.8 million of cocaine in Australia. Her involvement in the crime was serious enough for her to be extradited to Australia from the United States of America and attracted a substantial prison sentence of 7 years imprisonment. In the circumstances, the applicant’s criminal conduct is a very strong factor indicating that she is not of good character.
The applicant has not been convicted of any crime since her release from prison in 2012. The Policy states that a reasonable amount of time will need to have passed until the applicant can be considered free of her obligation to the court to establish a pattern of good behaviour, which is sufficient to justify a conclusion that she is a person of good character. The applicant’s obligation to the court, in the form of the parole period, ended on 3 August 2015. However, having regard to the circumstances and serious nature of the applicant’s criminal offence, I am not satisfied that a reasonable amount of time has passed to establish a pattern of good behaviour. This weighs against a finding of good character.
Further, the applicant has provided numerous character references in support of her claimed good character in these proceedings. Under the Policy, the applicant’s present reputation in the community should be considered. The applicant demonstrated good reputation in the community by providing numerous character references attesting to her good character. However, I note that many good personal qualities can be outweighed by a single serious incident; see Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
The majority of the applicant’s referees attended the hearing and gave evidence orally. It became apparent following the cross examination of each referee, that nearly all were unaware of the exact circumstances and details of the applicant’s criminal history. The referees provided conflicting details regarding the applicant’s involvement in the offence. In addition, no witnesses could provide details of the applicant’s conduct during the period 2005 to 2006, when the applicant’s offending occurred. As a result, the weight which I attribute to the character references is limited.
While I accept that the referees speak highly of the applicant’s personal attributes and character, such declarations are made out of context. The referees appear to put aside and/or separate the applicant from her past criminal behaviour in their assessment of her character. For example, Ms Gonzalez, Ms Diaz, Ms Ramirez, Ms Devia and Ms Jennings didn’t know the details surrounding the applicant’s criminal history and said at hearing that they never talked to the applicant about it because it seemed to upset her; Ms Jennings said at hearing that the applicant told her she was innocent and didn’t commit the crimes she was convicted of; Ms Correa said at hearing that she was not aware of the applicant’s crime but said that she is completely innocent based on her “as a person” and because she has “known the family for a long, long time”’; Ms Jimenez said at hearing that she was friends with the applicant as children in Columbia. She said she knew the applicant was “not involved in anything” because she is the “best person”.
At hearing, the applicant expressed that she was “very remorseful with what happened”. She said she “made a mistake in her life; this affected a lot of my friends and family”. When pressed for more details about what “mistake” she made, the applicant said that she got involved with a man who is dealing/involved in an illicit business which she didn’t know anything about. She said she was young and she made a mistake when she did what her boyfriend asked and wrote names down for him and amounts of money in a diary as it was this piece of evidence which ultimately led to her arrest and conviction. The applicant said she was mistreated in her relationship and in regards to the crime of which she was ultimately convicted she said “I didn’t do it, because it was nothing to do with me”.
The applicant was questioned about why she entered a plea of guilty, to which she responded that she did not understand all aspects and that she never went through the details of her case. She said that up until now; she didn’t know what her charge was. This evidence of the applicant is inconsistent with the fact that she was present at sentencing, she gave evidence in court to the sentencing judge, and she was actively involved in the appeal of the sentence, and had Legal Aid assisting her with her appeal.
Since her conviction, it is apparent that the applicant has downplayed her involvement in her crime and has maintained her innocence on occasion. It also appears on the evidence, that she provides a different version of events and circumstances around her involvement in the crime to people, including prospective employers. This is completely at odds with the sentencing judge’s description of the applicant’s involvement with the money-laundering operation. The sentencing judge found that the applicant played an important role in the money-laundering operation she was involved in and remarked that there was a level of sophistication to her methods.
I accept the factual basis of the court’s decision on sentencing and on appeal. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative Tribunal. Branson, Lindgren and Emmett JJ said at [45] and [46]:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns a Tribunal reviewing a decision that takes the conviction and sentence as its starting point…
For these reasons, I’m not satisfied that the applicant is remorseful or has insight into her criminal history. This factor weighs heavily against a finding of good character.
DECISION
In considering all of the relevant circumstances and weighing the available evidence I am unable to make a positive finding of good character for the applicant. For this reason, she does not satisfy subsection 21(2)(h) of the Act.
The decision under review is affirmed.
CONFIDENTIALITY
Prior to the commencement of the hearing, the applicant requested a confidentiality order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). In support of the application, the applicant said that she had a trauma of what happened in the past and that she would not feel well if her name and details related to her criminal past are released to the public.
The respondent opposes the application.
In considering whether to make a non-disclosure/non-publication order, subsection 35(5) of the AAT Act provides:
…the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties;
…
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
There are a number of cases that have held that the Tribunal may depart from this approach if it is satisfied that there are proper and cogent reasons for doing so; see Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. Embarrassment caused to a party is not a compelling reason to grant such an application.
In support of her application for a confidentiality order, the applicant provided a letter from Ms Helen Maxfield, psychologist, dated 24 February 2018. Ms Maxfield states:
“Considering the level of control and abuse involved in the relationship, [the applicant] guards her privacy as a matter of safety. The prospect of drawing the attention of this ex-partner to herself is, rightly, and unimaginable. [The applicant’s] trauma and anxiety have been most severe and she is still coming to terms with what has happened. She has worked very hard to rebuild her life. From incidents that [the applicant] has related, I simply do not believe a public court case to be appropriate for a woman who has been involved with a man of such character. [The applicant] said that she feels physically unwell at the prospect of a public court case…”
Ms Helen Maxfield was unavailable for cross examination.
At hearing, the applicant was questioned about the evidence of Ms Maxfield, particularly her comments regarding the applicant’s privacy as a matter of safety. The applicant stated that she was not fearful for her safety in a physical sense, but did not want to draw attention to her past for the sake of her employment. She said she didn’t want work to hear about the details of her offence because she was trying to move on with her life. For the abundance of caution, the applicant was questioned again about whether she had any fears for her physical safety; to which she answered “no”.
I do not consider the applicant’s reason for her request for confidentiality is sufficient to depart from the usual approach, that hearings of proceedings before the Tribunal should be held in public. Additionally, information about the applicant and her criminal history is information that is already in the public domain; see Trujillo-Mesa v R [2010] NSWCCA 201.
On this basis I refuse the application for a confidentiality order.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 20 March 2018
Date(s) of hearing: 2 March 2018 Applicant: In person Solicitors for the Respondent: J Hutton, Australian Government Solicitor
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