Twilley and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 1213

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1213

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/184

GENERAL ADMINISTRATIVE DIVISION		)
Re		COLIN PETER TWILLEY

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Deputy President Don Muller

Dr K.S. Levy, Member

Date19 November 2004

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration of the application for a grant of a certificate of Australian Citizenship with the direction that he has satisfied s 13(1)(f) of the Australian Citizenship Act 1948.

................SIGNED.............................

D.W. MULLER
  DEPUTY PRESIDENT  

CATCHWORDS

CITIZENSHIP – applicant previously not of good character – number of traffic offences and minor anti-social offences – applicant is now a person of good character – decision set aside

Australian Citizenship Act 1948: ss 13(1)(f), 13 (11),

Irving v Minister for Immigration & Ethnic Affairs (1996) 689 FCR 422

Minister for Immigration & Ethnic Affairs v Baker (1997) 153 ALR 463

Kakar and Minister for Immigration & Multicultural Affairs [2002] AATA 132

REASONS FOR DECISION

1. This is an application by Colin Peter Twilley for review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs (the Department) dated 16 February 2004, to reject an application for grant of Australian Citizenship, on the ground that he is not of good character within the meaning of that term in subsection 13(1)(f) of the Australian Citizenship Act 1948 (the Act).

2.      Mr. Twilley was found by the delegate to not be of good character on the grounds that he has a criminal record and that he may have criminal matters pending in the New South Wales court system.

3.      The matter was heard on 25 October 2004.  Mr. Twilley was represented by Mr. M. Brady of Counsel, instructed by N.R. Barbie, solicitor and the Respondent by Mr. D. Gallo, solicitor of Blake Dawson Waldron.

ISSUE FOR DETERMINATION

4.      There are two matters to be determined by the Tribunal, namely:

(a)Whether Mr. Twilley has any matters still to be resolved in the New South Wales court system, and

(b)Whether, notwithstanding Mr. Twilley’s past behaviour, he is now a person of good character.

LEGAL FRAMEWORK

5.      The relevant provisions of the Act for the purposes of this review are subsections 13 (1)(f) and 13 (11)  which provide:

“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;

…..

(11)The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1), (9), (9B) or (9E):

(a)during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person;”

6.      In determining whether Mr. Twilley is of “good character” as required by subsection 13(1)(f), reference was had to the Australian Citizenship Instructions which amplify the relevant considerations in making that determination.  Specifically, paragraphs 5.4.1 to 5.4.17 are relevant.

Evidence Before The Tribunal

7.      The following documents were tendered by counsel for Mr. Twilley as part of the formal evidence:

Exhibit 1        “T” Documents

Exhibit 2        Supplementary “T” Documents

Exhibit 3        Statement by Colin Twilley (including attachments)

Exhibit 4        Reference by Ryan Armstrong Quinn

Exhibit 5        Reference by Craig Warren

Exhibit 6        Reference by Kylie Twilley

Exhibit 7        Reference by Karen Michelle Stuart

Exhibit 8        Reference by Steve Whitmore

Exhibit 9        Reference by David Dodge

Exhibit 10     Fax from NSW Police attesting to no outstanding warrants

8.      Mr. Twilley also gave oral evidence.  The following facts were not disputed nor challenged by the Respondent’s solicitor.  The Tribunal accepts them and finds that:

(a)Mr. Twilley was born in London on 5 March 1963.

(b)He is still a citizen of the United Kingdom.

(c)His parents separated in 1970 when he was seven years old.

(d)His father migrated to Australia.

(e)He continued to live with his mother until 1979, when his mother died.

(f)In 1979, at the age of 16 years, he moved to Australia to live with his father.  He was accompanied by his two younger brothers.

(g)His father owned and operated a farm about 100kms inland from Brisbane.  He did not go to school in Australia.  He worked for his father.

(h)He then became involved in construction and road work.

(i)In 1981, he moved to Melbourne to take up an apprenticeship as a boilermaker.

(j)In 1982, he was badly injured in a motor vehicle incident.  He was unable to complete his apprenticeship and returned to Queensland to recuperate.

(k)After he recovered from his injuries he obtained work at the Tarong Power Station as a boiler-maker/welder.  He then went on to work as a pipe welder on the Queensland coal fields.

(l)In 1983, his father died in a plane crash in Bass Strait.

(m)He eventually became involved in work involving overhead cranes and rigging.  His work took him to various locations around Australia and New Guinea.

(n)From about 1991 he worked as a sub-contractor for various construction companies.  He became an expert in rigging work and, in particular, in erecting large poles.  He suffered from financial difficulties from time to time and this led to bouts of depression.

(o)He spent about four months in England in early 1992.

(p)In 1996 he set up a business, in conjunction with his wife, trading as RKC Installations.  The firm is engaged almost exclusively in the supply and installation of poles throughout Australia.

(q)The business has become highly successful.  He now employs 10 full-time staff and two part-time.  It is currently contracted to do work “all over Australia”.

(r)The annual turn-over of the business last year was just over $1M.  Mr. Twilley expects to increase the turn-over this year to about $1.5M.  (This evidence was supported by the tendering of relevant tax returns.)

(s)He is married to an Australian citizen and he has three children who are Australian citizens.

9.      Mr. Twilley’s application was supported by references from business associates and from a number of a junior sports organisations sponsored by Mr. Twilley.  One referee drew attention to the fact that Mr. Twilley makes a point of giving employment to disabled/disadvantaged persons.

10.     The material placed before the Tribunal indicates that Mr. Twilley had a long history of interaction with legal authorities from about the age of 18, where, about one year after receiving a driver’s licence, he was convicted of driving with a blood alcohol content above the legal limit.  The summary of his offence history is as follows:

·Drink driving offences – 2 convictions recorded in 1980 and 1990.

§Approximately 10 speeding offences between 1980 and 2001.  One of these was for speeding in excess of 30 klms an hour over the speed limit and the remainder were for speeding between 10 – 15 klms per hour over the limit or 15 – 20 klms per hour over the limit.

§Other traffic offences in 2000 and 2001 such as failing to wear a seat belt and driving while using a mobile phone.

§2 offences of resisting arrest or hindering Police in 1988 and 1991.  It seems these two offences occurred when Mr. Twilley was drunk.

§2 offences of possession of drugs, one in NSW in 1992 (where, it appears, Mr. Twilley was charged but not formally convicted), and one in 1996 (where he was convicted in the Supreme Court of Queensland in 1997).  Of the drug offence in 1992 in New South Wales, Mr. Twilley has stated that the drugs found belonged to a friend with whom he was travelling, and he was unaware of the presence of the prohibited substances.  In relation to the offence in 1996, he states that the drugs were not his, although he knew they were being grown on his property.

11.     Most of these convictions involved fines of relatively small amounts.  However, in the case of the offence in 1996 of possessing a dangerous drug (cannabis sativa), Mr. Twilley was convicted and sentenced on 7 March 1997 to a term of imprisonment of 9 months.  This sentence was wholly suspended for a period of 2 years.

12.     With the exception of the less serious traffic violations in 2000 and 2001, Mr. Twilley has had no convictions for any offences since he was charged with allowing cannabis to grow in his yard in March 1996 (that is, for almost eight years).

13.        In relation to completion of the application for citizenship, Mr. Twilley completed the application (Form 124) at his home on 27 July 2003.  The form requires that the declaration be signed at the time of completion but that a further declaration as to the correctness of the application not be certified until interviewed by the officer or agent of the Department of Immigration, Multicultural and Indigenous Affairs.  Mr. Twilley, after submitting the application, was called for interview through one of the Department’s agents at Australia Post.  This occurred on 25 September 2003 when Mr. Twilley attended for interview and then completed the declaration on the form as required at item 48 of the application form.

14.     Of particular concern was Mr. Twilley’s answers to question 44 under the heading “Character”.  This question has 8 subsections which require an applicant to answer the relevance to him or her of various offending behaviours within Australia, or war crimes, people smuggling or terrorist acts.  Mr. Twilley answered “No” to each of the questions except question 44(a).  That question is:

“(a)Have you ever been convicted of, or found guilty of, ANY offences? (include all traffic offences which went to court).”

15.     Mr. Twilley ticked the answer “Yes” to this question.  Below the question there is provision for an applicant to provide details relevant to any of the questions in item 44.  Mr. Twilley included the following details:

“Brisbane Magistrates Court

Traffic offence.”

16.     When criminal history checks were done by the Department, it became apparent that Mr. Twilley had other offences.  He stated in evidence that after completing all of the questions, he looked back to question 44(a), saw references to all traffic offences and provided reference only to traffic offences.  He stated that he did not realise that the question required the provision of details of all offences which went to court.

§  Respondent’s Case

17.     The respondent’s solicitor emphasised that Mr. Twilley’s contention that he did not realise that all offences were required to be disclosed was fanciful.  He submitted that because Mr. Twilley admitted that he had read every question, saw the context of the seriousness of other questions and referred back to question (a) to see the detail required, his response was not a logical one.

18.     The respondent also cross-examined Mr. Twilley about his willingness to present as required by the Department to have his fingerprints taken.  There was clearly some delay in his provision of fingerprints as requested.  However, he also provided evidence that he had attended on three occasions at the Goodna Police Station, and provided fingerprints on two of those occasions.

19.     The respondent also questioned Mr. Twilley about the drug offence with which he was charged in 1992 in New South Wales.  However, no evidence could be produced as to whether the applicant had ever been convicted.  He admitted being charged but it appears from the evidence available, that the Police or Director of Public Prosecutions in New South Wales did not proceed to prosecute the applicant in respect of that matter.  Exhibit 10 shows that there are no outstanding warrants, nor any pending proceedings, against Mr. Twilley in New South Wales.

Tribunal’s Deliberations

20.     The question for the Tribunal’s determination is whether the applicant is of “good character”.  From the evidence presented of the applicant’s history of traffic and criminal convictions, there were times in his life when that question would have undoubtedly have been answered in the negative.  However, an examination of the principles and guidelines relevant to this legislation is required. 

21.     The following parts of the Australian Citizenship Instructions are relevant to evaluate the above question within the scope of paragraph (f) of subsection 13(1):

“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.

5.4.3….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:

§  …..

§  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.

5.4.5Under 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 – 5.4.15, 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.

……

5.4.11Consider 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).

…..

5.4.13Crimes 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.

…..

5.4.16The 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.”

§  Is the Applicant of Good Character

22.     As required by paragraph 5.4.2, “good character” should be viewed using the ordinary meaning of those words.  That instruction entitles Mr. Twilley to a presumption that he is of good character, unless there is evidence to the contrary.  This term has also been judicially considered in Irving v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 422 at 431-432. There, Lee J said that the words “good character” refer to the “enduring moral qualities” of the person seeking Australian citizenship, and does not refer to “the good standing, fame and repute of that person in the community”.  His Honour also stated that this assessment must use an objective test and not a subjective test as the use of referees provided by the applicant is likely to produce a biased result owing to the selection process involved.  He further differentiated “enduring moral qualities” from reputation and stated that those of poor reputation could be shown to have been reformed and to be of good character and “conversely, a person of good repute may be shown by objective assessment to be a person of bad character”. 

23.     The reference to “enduring moral qualities” has also been defined as involving “….a comparison between his attributes and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community” (Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132). General conduct or behaviour also must be considered and there are times when good conduct “….displayed but once or twice may lay character bare very tellingly” (Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 at 470).

24.     In this case, Mr. Twilley’s behaviour, as evidenced from his criminal and traffic convictions, has demonstrated irresponsibility and disregard for the law for a considerable period of time.  However, those offences, particularly the more serious offences, have now not occurred for 8 years.  This follows approximately 17 years of instability commencing almost 12 months after the applicant arrived in Australia at the age of 16.

25.     The Tribunal was not entirely convinced that Mr. Twilley was not disingenuous in omitting the more serious of his criminal offences on his application for citizenship.  However, the Australian Citizenship Instructions provide that the applicant’s behaviour need not be faultless in order to be of good character.  It requires a weighing of all of the person’s qualities against ordinary community standards.

26.     Mr. Twilley has never been convicted of a serious offence as defined in subsections 13(11) and 13(11A) of the Act.  Also, he has never been convicted and imprisoned for a term of 12 months or more and is not a serious repeat offender as referred to in paragraph 5.4.5 of the Australian Citizenship Instructions.  However, while the pattern of offences by Mr. Twilley seem to have been characteristic of him for a significant period of time, there does seem to be evidence of his rehabilitation or greater stability for the past 8 years.  This seems to have coincided with the establishment of his business in 1996 and a more stable family life over that time.  Equally, a considerable number of offences occurred at a young age, that is, in his teenage years or in young adulthood, following upon an unsettled childhood.

27.     On balance, the Tribunal must decide about Mr. Twilley’s behaviour and reputation at the time of the present decision.  The Tribunal would need to be satisfied that sufficient time has passed to demonstrate a pattern of good behaviour if a conclusion of “good character” was to be justified in favour of him.  This assessment can be aided by his present reputation as evidenced by referees, particularly employers.  While there were a number of referees who provided testimonials on behalf of Mr Twilley, none were employers although some were business associates.  Equally, none referred to knowledge of his criminal background and therefore, on the one hand, they might be given less weight.  However, there is also evidence that he has provided employment and support for those with disabilities and who are particularly unskilled.  This demonstration of altruism, together with a changed pattern of offending behaviour (both criminal convictions and traffic violations) has demonstrated behaviours which are more consistently or predictably law abiding.  The Tribunal is satisfied that the types of offences previously recorded against him have subsided sufficiently to be satisfied that he has integrated effectively within society, and has a stable family and business environment.

28.     His enduring moral qualities, which have not previously been shown to be of a high standard, are now such that the Tribunal is satisfied that he should be regarded as being of good character.  The Tribunal has accepted that, on balance, the applicant satisfies the statutory provisions and the criteria in the Australian Citizenship Instructions, such that he should be entitled to be favourably considered for an award of an Australian citizenship.

29.     The decision of the Tribunal is therefore that the decision of the delegate should be set aside.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .....................................................................................
           B. Hitchcock, Pers Asst

Date/s of Hearing  25 October 2004 
Date of Decision  19 November 2004
Counsel for the Applicant           Mr M. Brady
Solicitor for the Applicant            Mr. N.R. Barbie
Solicitor for the Respondent       Blake Dawson Waldron