VBX and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1043

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1043

ADMINISTRATIVE APPEALS TRIBUNAL          Nº V2004/1004

GENERAL  ADMINISTRATIVE DIVISION

Re:              VBX

Applicant

And:            MINISTER FOR IMMIGRATION
  AND MULTICULTURAL AND

INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:20 October 2005

Place:Melbourne

Decision:The Tribunal affirms the decision under review.  

(sgd) G.D. Friedman
  Senior Member

CITIZENSHIP ‑ application for Australian citizenship ‑ conviction for sexual offences ‑ whether applicant of good character

Administrative Appeals Tribunal Act 1975 ss 35(2)(aa), 37

Australian Citizenship Act 1948 s 13(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

20 October 2005  G. D. Friedman, Senior Member

1. This is an application by VBX (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 3 August 2004. The respondent refused to grant Australian citizenship to the applicant on the grounds that the applicant was not of good character within the meaning of s 13(1)(f) of the Australian Citizenship Act 1948 (the Act).

2. At the hearing of this matter the applicant represented himself, and Mr M. Brereton, a solicitor with the Australian Government Solicitor, represented the respondent. Under s 35(2)(aa) of the Administrative Appeals Tribunal Act1975 (the AAT Act) the Tribunal directed that publication of the names and addresses of witnesses appearing before the Tribunal be prohibited.

3. The Tribunal received into evidence the documents lodged under s 37 of the AAT Act (T1 to T12), as well as 11 exhibits (Exhibits A1 to A11) tendered by the applicant and one exhibit (Exhibit R1) tendered by the respondent.

BACKGROUND

4.      The applicant was born in Ceylon (now Sri Lanka).  He entered Australia in 1953 with his parents and siblings and was granted permanent residence on arrival.  On 20 October 1999 the applicant was convicted of a number of sexual offences against two of his children in 1972 and 1973.  He was sentenced to a term of imprisonment of three years and six months, with a non-parole period of two years.  He served two years and two months, and was released on parole from 18 December 2001.

5.      On 15 April 2004 the applicant applied to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) for Australian citizenship.  In his application the only past offences and sentences he mentioned were a suspension of his driver’s licence and a fine for another traffic matter.  He gave no details of the sexual offence convictions.  On 22 June 2004 the applicant was given a notice of intention to cancel his permanent residency.  On 3 August 2004 a delegate of the Minister refused the application for Australian citizenship.

6.      On 30 August 2004 the applicant lodged an application with the Tribunal, for review of the decision to refuse his application for citizenship.

7.      On 12 April 2005 the applicant was advised that his visa would not be cancelled, but he was given a formal warning that if he offended again, his visa would be placed in jeopardy.

8.      The issue before the Tribunal is whether the applicant is of good character.

EVIDENCE

9.      In a statutory declaration dated 6 October 2004 (Exhibit A1) the applicant stated that by about 1972 he became an alcoholic as a result of working as a security guard and trying to support his wife, who had polio, and their four children. He said that he gave up drinking in 1980 and in 1983 he ceased work to become his wife’s full-time carer after he suffered a heart attack in 1982.

10.     The applicant stated that in 1997, two of his children accused him of committing sexual offences against them, leading to charges and a criminal trial in 1999.  He said that he pleaded not guilty because at that time he did not believe that he had committed the crimes, although he said that after commencing his gaol sentence he acknowledged that he might have committed the offences, enabling him to participate in a sexual offenders’ course.  He confirmed that since the trial his first wife and all the children have refused any contact with him.  He said that he has completed his sentence and parole conditions, and has repaid his debt to society for the single mistake.

11.     In oral evidence the applicant acknowledged that he had failed to include details of his convictions on the citizenship application form, but maintained that during his interview with DIMIA he handed the delegate details of the convictions and completion of parole, which she handed back without recording details.  He said that her version of events suggesting that he had deliberately withheld the information was incorrect.

12.     The applicant conceded that the offences for which he was convicted were serious and had actually occurred, but was adamant that he was drunk at the time and had no recollection of the incidents.  He did not agree with the trial Judge’s sentencing comments that being affected by alcohol was not a mitigating factor.  He noted that he had no history of violence, no other convictions and that the children had waited twenty-five years before making the allegations against him.  He described himself as a good husband and father, and said that he has not tried to contact his children since his convictions because he did not want to scare them, although he hoped to re-establish communication with them in the future.

13.     Under cross-examination the applicant agreed that he did not lodge an appeal against the conviction or sentence and said the reason was that he did not want to subject the children to a re-trial.  He denied that he had shown no remorse for his actions.  He said that he was not aware of the contents of any victim impact statements tendered at the trial, and reiterated that he is a person of good character.

14.     The applicant’s wife gave oral evidence that she has known the applicant for 51 years.  She said she was present at the interview with DIMIA and supported his version of events.  She stated that she does not believe that the applicant committed the offences, even after hearing his evidence to the Tribunal that he did so.

15.     The applicant’s sister gave oral evidence that she and other family members do not believe the applicant committed the offences.  Under cross-examination she stated that one year ago the applicant told her that he did not, so the family has continued to support him.

16.     In support of his application the applicant produced numerous letters from family members and friends (Exhibit A2) which describe him as kind and caring, friendly and peaceful.  Some of the letters acknowledge the offences.

CONSIDERATION OF THE ISSUES

17.     Under s 13(1) of the Act:

13(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;

18.     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 s 13 of the Act.  Mr Brereton 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).

19.     Mr Brereton 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.

5.4.4Assessment of good character involves:

·   establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character…

…

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

…

20.     Mr Brereton 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…"

21.     Mr Brereton referred to Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 in which the Tribunal said (at paragraph 17):

…

"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(Cth)…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 Brereton submitted that in the present case the applicant’s criminal record suggests that he is not of good character.  He said that the applicant breached the trust of his children and committed sexual offences which are viewed with great repugnance by the community.  He stated that the term of imprisonment was more than 12 months (Instruction 5.4.5), and noted that the County Court considered the offences to be serious (Instruction 5.4.7).  Mr Brereton drew attention to the Individual Management Plan dated 22 January 2002, prepared by the Department of Justice after completion of the sentence, which states that the applicant denied the commission of the offences.  He submitted that the applicant has shown no responsibility or remorse for his crimes (Instruction 5.4.10); and therefore there are concerns about his rehabilitation.

22.     Addressing other relevant factors, Mr Brereton said that as a reasonable time since the completion of the applicant’s parole has not elapsed, he has not established a pattern of good behaviour (Instruction 5.4.13). He said the applicant has not demonstrated a change in his character since the offences (Instruction 5.4.14); and has not provided references from reputable persons other than family members attesting to his good character (Instruction 5.4.17).

23.     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 the convictions resulting in a term of imprisonment of three years and six months represent serious breaches of the law.  In applying the test set out in Irving and Re Steele for the ordinary meaning of good character, the convictions reflect adversely on the applicant’s character.

24.     In respect of the interview with DIMIA, the Tribunal acknowledges that an applicant for citizenship has the responsibility for ensuring that all relevant material is included on the application form.  However, in this particular case the applicant may have believed that he was complying with DIMIA’s requirements by handing the relevant documents to the delegate.  In any event the Tribunal does not consider this issue to be significant in determining whether the applicant has demonstrated that he is of good character.

25.     The Tribunal accepts that the applicant has had no criminal convictions since completing his sentence, 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 his wife, and he has a supportive family as shown by the large number of letters of support written by family members.

26.     On the other hand, the Tribunal is not persuaded that the applicant has shown genuine remorse for his crimes or that he has accepted responsibility for the offences he committed.  In Exhibit A1 the applicant conceded that at the trial he did not believe he had committed the offences.  However, he said that in gaol that he had to acknowledge that he might have committed the offences, in order to participate in a sexual offenders’ program and complete his parole.  The applicant’s oral evidence at the hearing that he accepts that the events actually occurred, lacks credibility in the context of his earlier views.  The Tribunal notes the evidence from the applicant’s sister that he told her a year ago that he did not commit the offences.

27.     The Tribunal agrees with Mr Brereton that the applicant has made no demonstrable effort to consider the effect of his crimes on the victims; has not attempted to express regret to them; and seems to have blamed the children for revealing the offences.  The Tribunal also agrees that the applicant has not established a pattern of good behaviour or a change in character in the relatively short time since his parole.  There are no references from reputable people in the community, such as representatives of charitable organisations, community groups or similar institutions.

28. For these reasons the Tribunal finds, on balance, that 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 s 13(1)(f) of the Act.

DECISION

29.     The Tribunal affirms the decision under review.

I certify that the preceding twenty-nine [29] paragraphs are a true copy of the reasons for the decision of

G.D. Friedman, Senior Member:

(sgd)         Lydia Zozula

Associate

Date of hearing:  3 October 2005

Date of decision:  20 October 2005
Advocate for applicant:  Self-represented
Advocate for respondent:                   Mr M. Brereton
Solicitor for the respondent:                Australian Government Solicitor