Tunzelman and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 528

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 528

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/568

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RICHARD TUNZELMAN

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date6 June 2005  

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and determines that the application by Richard Tunzelman for the grant of Australian citizenship should not be rejected on the ground that he failed to provide the required documentation from the New Zealand Ministry of Justice, nor on the ground that he has failed to show that he is a person of good character within the meaning of that term in subsection 13(1)(f) of the Australia Citizenship Act 1948.  

The Tribunal orders that pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, the publication or disclosure of the contents of exhibits 4 and 8, namely the transcript of the New South Wales District Court be prohibited to anyone other than the parties to these proceedings and to the staff of the Administrative Appeals Tribunal.

SIGNED

DEPUTY PRESIDENT

CATCHWORDS

CITIZENSHIP – conviction for indecent assault of a child in 1991 – has not been in trouble since – lived in Australia 28 years – now 53 years of age – now of good character – decision set aside

Australian Citizenship Act 1948 s 13

REASONS FOR DECISION

Deputy President Don Muller        

1.      Richard John Tunzelman is a citizen of New Zealand.  He made an application to become an Australian citizen but his application was rejected.  He has applied to the Tribunal for a review of the decision to reject his application for Australian citizenship.

2.      Mr. Tunzelman first applied for Australian citizenship on 25 July 2002.

3. On 14 January 2003, the State Director, Queensland, of the Department of Immigration and Multicultural and Indigenous Affairs informed Mr. Tunzelman by letter that his application for the grant of Australian citizenship had been deferred until 6 August 2003. The reason given for the deferral was an assessment that Mr. Tunzelman had not satisfied the delegate that he met the good character requirement in section 13(1)(f) of the Australian Citizenship act 1948, due to his criminal history.  He had been convicted in 1994 of the indecent assault of a child under 10 years of age.  The section reads as follows:

“13.  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:

….

(f)  the person is of good character.”

4.      On 25 May 2004, an officer of the Department, wrote to Mr. Tunzelman to tell him that New Zealand citizens who apply for  Australian citizenship must obtain a copy of their personal records from the New Zealand Ministry of Justice and provide it with their application.  He was also told that once he received such a report he should return it to the Department’s Cairns office and arrange for a further interview appointment to allow for a completion of his application for Australian citizenship.

5.      On 8 July 2004 Mr. Tunzelman re-applied for Australian citizenship.  He was also interviewed by an officer of the Respondent on the same day.  The record of interview shows that Mr. Tunzelman claimed to the officer that he had been convicted of an assault on a child upon the “concocted” story of his wife, which story the child retracted in court.

6.      On 8 July 2004, the State Director, Quensland, decided to reject Mr. Tunzelman’s application for citizenship on the grounds that he had failed to provide to the Department the documentation which he had been told about in the letter of 25 May 2004.  That is, he had failed to produce a report from the New Zealand Ministry of Justice.

7.      It is the decision of 8 July 2004, which is the subject of this review.

8.      On 26 August 2004, the New Zealand Ministry of Justice provided a report which indicated that Mr. Tunzelman did not have a criminal record in New Zealand.

9. For the purposes of this review it is the Respondent’s position that the decision under review should be varied in that the application by Mr. Tunzelman for grant of Australian citizenship should still be refused but the ground for refusal should be changed from the failure to produce the New Zealand Ministry of Justice statement to a failure to meet the good character requirements in s.13(1)(f) of the Act.

10.     At the hearing, Mr. Tunzelman appeared on his own behalf and the respondent was represented by Ms. G. Bennett of Clayton Utz.

11.     The Tribunal had before it the following documentary evidence:

Exhibit 1 – T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975

Exhibit 2 – Statement by Richard Tunzelman dated 8 December 2004

Exhibit 3 – Statement from New South Wales Police Service

Exhibit 4 – Transcript from New South Wales District Court Trial

Exhibit 5 – Report from the New Zealand Ministry of Justice

Exhibit 6 – correspondence from the respondent to the applicant dated 14 January 2003

Exhibit 7 – Copy of Applicant’s passenger card, dated 4 January 2000

Exhibit 8 – Page 8 of transcript of New South Wales District Court Trail.

12.     At the hearing, Mr. Tunzelman was the only person to give oral evidence.  His oral evidence is summarised as follows:

(a)Mr Tunzelman was born in Gisborne in New Zealand on 11 December 1951.

(b)He lived in Auckland from the time he was a few months old until he was twenty.

(c)He left school after he completed grade 10.

(d)At fifteen years of age he began an apprenticeship in cabinet making.  He went on to gain qualifications in house-building.

(e)When he was aged 22 he did basic Army training with the “territorials”.

(f)After his Army training he travelled and worked around New Zealand for about four years.

(g)In 1977 he travelled to Australia and initially settled in Brisbane, where he obtained work as a shop fitter.

(h)Thereafter he worked in Darwin as a shopfitter;  in Perth he worked on the fitting out of caravans and mobile homes;  on the Gold Coast he was employed in a kitchen factory and also in a boat building factory.

(i)In 1980 he moved to Cairns to live.

(j)In 1983 he bought a yacht.  He lived on the yacht in Cairns Harbour and worked on various construction sites in the area.  He kept the yacht for about five years.

(k)At that time he was a social smoker and drinker.

(l)On 1 February 1984 he was convicted in the Cairns Magistrates Court of the possession of a prohibited plant and fined $100.  He was in possession of one cigarette which contained marijuana.

(m)After his conviction he gave up alcohol and drugs and has not touched either of them in the last 20 years.

(n)In 1984 he became a member of a Christian group called the Assemblies of God.

(o)In 1985 he bought a share in a cattle station 800kms north of Cairns.  He lived for a time on the cattle station and worked in Weipa.  The cattle station was subsequently sold in 2002.

(p)In 1986 he attended a Bible school in a New South Wales country town for four months. He then went to India with an evangelical missionary team for three weeks, followed by a similar evangelical mission to the Philippines for three weeks.

(q)He returned to live on his yacht in Cairns.

(r)In 1988 he sold his yacht and went to live on the cattle station where he built a house.  He then developed a lifestyle where he would work in Cairns or Weipa, building kitchens, for a few months to earn money, then return to the cattle station to live alone in the house he built.

(s)In 1991 he attended a four month course at the Bible school in the New South Wales country town.

(t)He met a woman who was the secretary of the local pastor.  She had three children (one boy from her first marriage and two girls from her second marriage).

(u)He married the woman and moved into her home in New South Wales.  He lived with her for about nine months, returned to Cairns for one month and then returned to his wife for six months.  The marriage did not get off to a smooth start.  He and his wife attended counselling after he returned from Cairns.  He did handyman type work in partnership with another man while he was living in New South Wales.

(v)He then took his wife and her two daughters to live in Cairns in a rented home. (His wife’s son went to live with his father).

(w)After they were in Cairns for about one month his wife began to accuse him of sexually molesting one of her daughters.  He said, “She started going crazy with allegations about her daughter.”

(x)He went to work on the Atherton Tablelands for two months.  When he returned to Cairns he discovered that his wife and her two daughters had left Cairns and taken his car.

(y)He contacted his wife’s sister who told him that his wife had made a complaint about him to the Queensland Police.

(z)He went to the Cairns Police Station where he discovered that his wife had made a complaint to the police in Brisbane that he had raped one of her daughters.  The Cairns police told him that the girl had been medically examined and the results had shown that the allegations were not true.  The Queensland Police were not interested in the allegations.

(aa)His wife subsequently made allegations about him to the New South Wales police.

(bb)In late 1993 he was interviewed by the Queensland Police and then extradited to New South Wales.

(cc)He was charged with an indecent assault on one of his wife’s daughters.

(dd)His trial took place in the New South Wales District Court in June 1994.

(ee)The trial judge directed verdicts of not guilty on three counts.  The jury found him guilty of one count.

(ff)He was sentenced to a term of nine months imprisonment.

(gg)He served three months in Long Bay gaol and six months in Goulbourn gaol.

(hh)He still maintains that he was innocent.

(ii)Upon his release from prison in 1995 he returned to Cairns to live.

(jj)He discovered that there had been a change in the legislation relating to the building trade while he was away.  He found that he was no longer able to work as a sub-contractor and he was also not eligible for a grant of a builders licence.

(kk)He has worked at odd jobs and fruit picking since.

(ll)At the end of 1999 his father was in poor health.  He travelled from Australia to New Zealand on 19 December 1999.  His father died and he spent some time with his mother.  He returned to Australia on 4 January 2000.

(mm)Upon his arrival back in Australia he incorrectly filled out his incoming passenger card.  He ticked the “No” box in answer to the question about criminal convictions.  He cannot remember what he did – but he has never been any good with paper work.

(nn)He has not been in any trouble with the law since his experience in 1994.

13.     The New South Wales Police Records and the New South Wales District Court transcript reveal the following:

(a)Mr. Tunzelman was arrested in Queensland on 13 October 1993.

(b)On 16 October 1993, Mr. Tunzelman was charged with four counts of assault involving a person under the age of ten years, and at the time of such assault did commit an act of indecency on her.

(c)He was in custody from 13 October 1993 until 27 October 1993 when he was released on bail.

(d)The dates upon which the assaults were alleged to have occurred were:

22 June 1991 when the complainant was 7 years

February 1992 when the complainant was 8 years

April 1992 when the complainant was 8 years

July 1992 when the complainant was 8 years

(e)Mr. Tunzelman’s trial began in the District Court of New South Wales on 14 June 1994 and continued until the jury verdict on 17 June 1994.

(f)At the close of the Crown case the trial judge directed the jury in the following terms:

“having analysed the evidence I am satisfied that there isn’t evidence in respect of the second, third and fourth counts which could cause you to return a verdict of guilty ----- That being so I propose to direct you to return a verdict of not guilty in respect of the second, third and fourth counts.”

(g)On 17 June 1994, the jury returned with a verdict of guilty on count 1.

(h)Mr. Tunzelman was remanded for sentence to 12 August 1994.

(i)Mr. Tunzelman was sentenced to a “minimum term of 9 months imprisonment plus 3 months additional term from 17 June 1994”.

14.     Mr. Tunzelman maintains that he was wrongly convicted and imprisoned.  Whilst I accept that it would be a terrible thing for a person to be wrongly convicted and imprisoned, I do not intend to embark on an attempt to go behind the conviction.  I accept that he has been convicted of a crime which I believe most Australians would consider to be repugnant.  He was not a person of good character in 1991.

15.     The question to be determined by the Tribunal is whether Mr. Tunzelman’s character has improved to the point where he is now a person of good character.  I take the following matters into account in determining this question:

·Mr. Tunzelman has lived in Australia for 28 years.

·He came to Australia from New Zealand when he was 26 years of age.

·He had no criminal history in New Zealand.

·His conviction for possession of a marijuana cigarette occurred 21 years ago.

·He claims to have not touched drugs or alcohol since 1984.  There is no evidence to the contrary.

·His conviction for the indecent assault related to an incident which occurred in 1991, 14 years ago.

·He has not been in trouble with the law since.

·His first application for citizenship, in July 2002, was not initially rejected, it was deferred until 6 August 2003.

·His second application for citizenship, 8 July 2004, seems to have overtaken his first application, and was rejected on the ground that he had not supplied the necessary police report from New Zealand.

16.     I am satisfied on the material placed before the Tribunal that Mr. Tunzelman is now a person of “good character” within the meaning of that term in s.13(1)(f) of the Act.

17.     I am also satisfied that he has supplied the necessary documentation from the New Zealand Ministry of Justice.

18.     The Tribunal sets aside the decision under review and determines that the application by Richard Tunzelman for the grant of Australian citizenship should not be rejected on the ground that he failed to provide the required documentation from the New Zealand Ministry of Justice, nor on the ground that he has failed to show that he is a person of good character.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  16 December 2004  
Date of Decision  6 June 2005
Applicant   Mr. Tunzelman, himself
Solicitor for the Respondent      Clayton Utz Lawyers