Vella and Minister for Immigration and Multicultural and Indugeno Us Affairs

[2004] AATA 184

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2004] AATA 184

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1314

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL JOHN VELLA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date25 February 2004

PlaceSydney

Decision The decision to refuse Mr Vella’s application for registration as a citizen by descent is set aside.  Mr Vella is a person of good character.  His application is referred to the Respondent for registration in accordance with these reasons.

[sgd] Mr S. Webb, Member

CATCHWORDS

CITIZENSHIP – Australian citizenship - good character – previous criminal convictions for assault – extenuating circumstances – passage of time - decision set aside

Australian Citizenship Act 1948 s. 10C

Irving  v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

WRITTEN REASONS FOR ORAL DECISION

25 February 2004 Mr S. Webb, Member        

1.      This is an application for review of a decision by a delegate of the Minister of Immigration, Multicultural and Indigenous Affairs to refuse Mr Vella’s claim for registration of citizenship by descent. 

issue

2.      The issue in this matter is whether Mr Vella satisfies the good character requirement for registration of citizenship by descent.  There is no dispute in these proceedings that Mr Vella satisfies the other statutory requirements for such registration.  There is no evidence before me to the contrary and, with the concurrence of the parties, I so find.

legal principles

3. Mr Vella’s claim is under s.10C of the Australian Citizenship Act 1948 (“the Act”)[1]..  That section provides that the Minister must register an applicant for registration in certain circumstances if the Minister is satisfied that the applicant is of good character (s.10C(4)(d)).

[1] See Schedule 1

4. As there is no definition of the term ‘good character’ in the Act, the term is to be given its ordinary meaning; see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 in which Davies J observed at 87:

“It should also be observed that 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… Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation and repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. 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. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”

In the same case Lee J made the following comments at ALR 94:

“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 while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR 455 per Miles CJ at FLR 459-60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138.”

Deputy President Wright observed in Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at paragraph 13:

“’Good character” within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community.”

5.      Policy guidelines concerning the interpretation of ‘good character’ are to be found at section 5.5, and by reference therein sections 5.4.2 to 5.4.17, of the Australian Citizenship Instructions (“the ACI”).  I pause to note that the Tribunal is not bound by such guidelines but accept that they should be given due regard to the extent that expression is given to the proper construction and meaning of the enactment in question (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). It is not necessary to set out the relevant sections of the ACI here.

6.      In a case such as the instant case where there is evidence to suggest that the applicant is not a person of good character, it is for the applicant to address the evidence and establish that he or she is of good character.  It is of relevance in such matters to consider the conduct of the person over time.  Conduct may illuminate the character of a person, but the two should not be confused.  The significance of the conduct of a person was considered, albeit in a different context in relation to section 501 of the Migration Act 1949, in the case of Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 in which the Court observed at 196:

“Of course, all of the conduct under scrutiny for the purposes of s 501(2)(a) is to be examined in order to see what light it may throw on the question whether the decision-maker "is satisfied that the person is not of good character". Even criminal conduct may not lead to that conclusion, perhaps because of the nature of the crime (certainly some absolute offences need involve no moral obloquy), or perhaps because of the lapse of time since the offence or the existence of positive evidence of reformation. The words "good character" in the section should, as Lee J pointed out in Irving (at 431-432), be understood as "a reference to the enduring moral qualities of a person". Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character. “

factual context

7.      The following facts are distilled from the evidence and are not in dispute.

8.      Mr Vella is a British citizen born on 16 September 1966.  His natural father, Mr Reuben Chadwick, is an Australian citizen of Islander descent with Army service.  Mr Vella is the issue of a brief relationship between his parents in Malaysia and was brought up in England by his mother.  He completed school and subsequently enlisted in the Royal Engineers Regiment of the British Army at the age of 18.  His career in the British Army is ongoing and he attained the rank of Sergeant in 2002.  His military service record is unblemished. 

9.      During his Army career Mr Vella developed an interest in competitive boxing and was a member of the regimental boxing team.  He undertook a boxing instructor course in or about 1997 and is currently an assistant coach.

10.     Mr Vella married in 1991 and has two children.

11.     Mr Vella was convicted of property offences as a juvenile in 1980 and 1981.  In 1984, at the age of seventeen, he was convicted of assault occasioning actual bodily harm.  He was fined forty pounds and both parties were bound over for a twelve-month period.  In 1988 he was convicted of assault occasioning actual bodily harm and was ordered to pay compensation of one hundred pounds.  In 1996 he was convicted of common assault.  He was ordered to pay compensation of one hundred and fifty pounds and was fined one hundred pounds.  In 2000 he was convicted on two counts of assault occasioning actual bodily harm and was fined seven hundred and fifty pounds on each count.

summary findings

12.     Mr Vella has five criminal convictions for assault offences, being the result of four incidents over a sixteen-year period.  He pleaded guilty to each charge and has not offended since 2000. 

13.     Mr Vella has not been sentenced to a term of imprisonment.  The penalties imposed by the court in relation to each of Mr Vella’s convictions reflect the nature and seriousness of those offences.  In each case there are extenuating circumstances.

14.     The assault offences for which Mr Vella was charged are offences with equivalence in Australia. 

15.     The offences for which Mr Vella was charged and convicted do not reflect his enduring moral qualities.  Those qualities are evident in his stable family life, in his unblemished military career, in his work as a supervisor and trainer, in his ability to work in situations of significant personal risk, in his willingness to help others and in his remorse for past actions.

decision

16.     Despite his convictions for assault and the paucity of evidence concerning those incidents, careful consideration of the available evidence persuades me to the requisite degree of satisfaction that Mr Vella is a person who is of good character.  Mr Vella’s record is not without fault and his judgement is not impeccable.  These flaws do not diminish his enduring moral qualities. 

17.     It follows that the decision under review must be set aside and the matter remitted to the Respondent.

reasons for the decision

18.     In making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.  Mr Vella, Mr Chadwick and Mrs Chadwick gave oral evidence at the hearing. 

criminal record of assault

19.     It is a fact that Mr Vella has a criminal record for assaults committed in four incidents over a twenty year period. 

20.     I am satisfied that Mr Vella’s criminal record of assault on its face does not reflect his enduring moral qualities or the attributes of his character, which are in issue in this matter.  Careful consideration of Mr Vella’s conduct in the circumstances that gave rise to his criminal convictions, on the available evidence, does not reveal a man who poses a threat to those around him or the community at large.  

21.     Mr Vella stated that he did not seek to defend the charges brought against him and pleaded guilty in each case.  It appears that Mr Vella accepted that he had done wrong despite the existence of extenuating circumstances in each case.  I accept that his expression of remorse for his past actions was genuine and note that Mr Vella has no continuing obligation to any Court in relation to his previous convictions. 

22.     Assault occasioning actual bodily harm is a serious offence.  Mr Vella has four convictions for such offences.  The level of penalty on conviction indicates the magnitude and seriousness of the offence in the particular circumstances. The incidents in relation to which Mr Vella was convicted were not of sufficient magnitude or seriousness to warrant the imposition of a custodial sentence or high financial penalties in the judgement of the relevant Courts.

23.     As the case for the Respondent is essentially hinged upon Mr Vella’s criminal offences involving assault it is necessary to consider in some detail the circumstances in which it is alleged those offences occurred.  Mr Vella’s evidence concerning the circumstances of those events stands alone before me.  However, the absence of corroboratory evidence is not fatal to his case.  I am mindful of the evidence concerning the penalties imposed upon him in each case.  I am also satisfied that Mr Vella is essentially a witness of truth.  It is possible that his accounts were tailored to suit his purpose in these proceedings as asserted by Mr Cramer.  However, there is no evidence or contradictory fault to support such a conclusion.  I note that the evidence from Mr Vella’s commanding officers points to him being a person of integrity and truth. 

24.     Mr Vella’s evidence was that the 1984 assault occurred in circumstances of provocation.  He stated that a youth whom he had known since the age of nine bullied him as a child.  Over a period of years threats were made against his person, money was extracted from him and he was in fear of the perpetrator’s two older brothers.  On the day in question, the bully verbally abused him in front of others, making threats and demanding money.  Mr Vella gave evidence that he could stand the abuse no more and a fistfight ensued from which he emerged the victor in consequence of which the bully’s mother complained to the police and he was charged.  It is significant to note that while Mr Vella was fined for his part, both youths were bound over by the court for a period of twelve months, and subsequently became good friends.

25.     I am satisfied that Mr Vella’s actions in the 1984 incident were provoked and that he lashed out in anger.  While such conduct is unacceptable it is clear from the penalty imposed by the Court that both youths were found to be at fault.  Considering this I am persuaded to accept that Mr Vella’s conduct was the impetuous action of an immature youth, suffering a lapse of judgement at the end of his tolerance.   The attributes of Mr Vella’s character and the temper of his moral qualities are not truly revealed by this one incident alone. 

26.     Mr Vella’s evidence concerning his second assault conviction in 1988 was that the assault occurred in a public bar during a period of leave from his Army unit in Germany and involved a degree of provocation.  He asserted that a man in the bar gave him a “cold stare” and commenced making offensive comments about his colour (Mr Vella has a dark skin, being of Islander descent).  Mr Vella claimed he attempted to ignore the man, but the man became more aggressive and menaced him with a bar-stool.  His evidence was that he made to leave the bar but was prevented from leaving by the man with the stool.  He stated that he “palmed off” the man on his way out, causing the man to fall and chip a tooth on the corner of a stage in the bar.  Mr Vella claimed that he did not intend to hurt the man and the fact that he fell and chipped a tooth was unintentional.  In cross examination Mr Vella stated that he did not lash out but agreed that he could have acted with greater consideration and care when dealing with the man in order to exit the premises.

27.     I note, at the time, Mr Vella was in his second year of service in the British Army and had completed basic training.  I accept his evidence that he felt threatened in a strange place but, nonetheless, thought about his options and attempted to avoid conflict by leaving.  I accept that the impediment to his departure was not a matter of his choice.  Nonetheless that impediment tested his resolve to avoid conflict.  Mr Vella accepted that he could have exercised greater care when effecting his exit and demonstrated appropriate remorse for his ‘palming off’ action and its consequence.  He stated that it was for that reason that he pleaded guilty to the charge and paid the financial penalty imposed by the Court.

28.     Considering this evidence and the penalty imposed by the Court, I am satisfied that Mr Vella’s actions in 1988 demonstrate that he did not lash out in anger in the heat of the moment as he had done in 1984.  I am satisfied that Mr Vella was a physically fit and robust individual after two years of Army service, who was well capable of inflicting significant damage upon a person had he so chosen.  His claim that he did not is supported by the small compensatory penalty imposed by the Court.  I am satisfied that Mr Vella demonstrated his capacity for moral judgement in the circumstances – he knew it was wrong to engage in violent conflict and sought to avoid it.

29.     For eight years thereafter Mr Vella progressed without incident in his Army career.  He married in 1991 and in or about 1996 undertook a second job as a doorman in a bar to support his young family.  It was as a consequence of this employment that Mr Vella became involved in an incident in relation to which he was charged and convicted of common assault.  Mr Vella’s evidence concerning the circumstances of the incident was not substantially challenged.  He stated that in the course of his duties he was struck on the back of his head by a person who was acting erratically, as if under the influence of drugs.  Mr Vella claimed he took action to remove the person from the premises in accordance with his duties and in the ensuing tussle “caught him with a punch” and tore his shirt.  Mr Vella stated that he did not defend the charge because he felt his actions may have been heavy handed and the man’s shirt had been ripped as a result. 

30.     I note that at the time of this incident Mr Vella had completed ten years service in the British Army, including commando combat training, and was a member of his Regiment’s boxing team in the heavy weight division.  There is no doubt that Mr Vella was physically capable of inflicting considerable harm.  Considering the charge and the penalty imposed by the Court I am satisfied that he did not.  I accept Mr Vella’s opinion that his actions may have been heavy handed in the circumstances.  I also accept that he was doing his job by removing a person he considered to be a potential threat to the patrons of the public bar where he was employed.

31.     Four years later, in 2000, Mr Vella was charged and convicted on two counts of assault occasioning actual bodily harm.  At the time he was a corporal with responsibility for the supervision of up to 40 people in his unit, including junior ‘sappers’.  Mr Vella described the circumstances of the incident that gave rise to the charges and I must rely on his evidence as no other evidence concerning the incident was adduced.

32.     Essentially, it appears that Mr Vella and a group of his friends had a night out in June 2000, during which they attended greyhound races in Peterborough, had a meal and afterwards went to a nightclub.  His evidence was that within 10 to 15 minutes of arriving at the nightclub, having paid the entrance fee, an altercation developed between a US serviceman and a member of Mr Vella’s group who was punched above his right eye.  Mr Vella stated that he stopped the altercation and his party left, albeit unhappily, when asked to do so.  They left by the back door of the nightclub as many of the patrons were US servicemen, and telephoned for transport back to their base.  While waiting for the transport to arrive they proceeded to a nearby kebab shop.  After approximately twenty minutes a group of US servicemen, including the “troublemaker”, approached and threatened them.  The US servicemen appeared to be drunk.  A fight ensued, part of which was recorded by a closed circuit television camera. 

33.     Mr Vella’s evidence was that his group was attacked and those involved had to defend themselves.  He stated that he counselled them to stick together and act with restraint.  In the course of the ensuing melee Mr Vella claimed that he punched a US serviceman twice in defence and then moved away.  In consequence, the man fell hurt and Mr Vella directed a “medic” in the group to attend to him, placing him in a three-quarter prone position until the police and an ambulance arrived.  Mr Vella stated that he had sought to avoid conflict, but they were attacked and had to defend themselves.  He stated that he had a duty of care to look after the younger and less experienced members of his unit.

34.     I note that Mr Vella pleaded guilty to both charges and, on his evidence, was represented by a Captain and a Major from the Army.  Mr Vella stated that he felt the outcome was unfair as no US servicemen were charged.  He asserted that his actions were appropriate in the circumstances but conceded that his action hitting a man twice was excessive.  Considering this uncorroborated evidence I am satisfied that Mr Vella’s concern to protect members of his unit from harm, his attempts to avoid conflict and exercise restraint, and his concern to provide medical care for injured parties were genuine.  These factors demonstrate his capacity for moral action.  That capacity is not negatived by actively defending himself and his fellows under attack.  However, the extent and force of the defensive action is a matter of judgement and I accept Mr Vella’s concession that he should not have hit the serviceman twice.  While that concession reveals an error of judgement in the heat of the moment, it also reveals a frank honesty on Mr Vella’s part.  That honesty is consistent with his pleas in relation to each charge.  Mr Vella has repeatedly demonstrated his capacity to identify and admit error in his actions, and accept  consequences without shirking.

35.     There is no evidence before me to either corroborate or contradict Mr Vella’s account, which I am persuaded to accept.  I note that Mr Vella’s commanding officers were aware of his convictions during service and that those convictions did not impede his military career.

good character

36.     Mr Vella’s criminal conduct must be considered in the context of his conduct overall.  Mr Vella has eighteen years service in the Royal Engineers Regiment of the British Army, during which time he has attained the rank of sergeant.  He has an unblemished military service record and has seen active service in the Balkans.  He has served in bomb-disposal and anti-terrorist units and has represented his regiment in sporting and voluntary activities.  Examination of his conduct during service, on the available documentary evidence, reveals a man who is dedicated, honest and stout-hearted with appropriate concern for the well-being and training of men under his supervision.  His enduring moral qualities appear to have been recognised by his commanding officers, as evidenced by the references provided by Regimental Sergeant Major Turley and Lieutenant Colonel Kedar.

37.     There is scant evidence before me concerning Mr Vella’s conduct in civilian life.  I accept, however, that he is an active father to his children and in a stable marriage.  I note that Lieutenant Colonel Kedar has commented upon Mr Vella’s “desire and willingness to help other people, both on the charity front and recently, as another example, as the prime supporter for the family of a close friend who died”..  Such conduct points to moral qualities and positive attributes in a person that are respected and applauded in Australian communities.

38.     In Mr Cramer’s submissions for the Respondent, Mr Vella’s criminal record, when viewed as a whole, suggests a disregard for the law over a number of years and a pattern of unlawful behaviour which suggests that he is not of good character.  I do not agree.  On the evidence I am satisfied that Mr Vella has demonstrated his capacity to exercise moral judgement in difficult situations and to take moral action.  His evidence persuades me that he is an honest man who is not afraid to face the consequence of his actions.

39.     I am satisfied that the incidents in question were not of Mr Vella’s making even though there was fault in his exercise of judgement in the heat of the moment.  The fact is he offended and accepted responsibility for his wrong-doing and was punished.  I am not satisfied that the incidents in question, each occurring in particular and different circumstances, reveal a pattern of criminal behaviour in Mr Vella.

40.     The test to be applied requires a decision-maker to be satisfied that the applicant is of good character at the time of the decision.  I am so satisfied. In the Respondent’s submission there is an onus on Mr Vella to demonstrate that there has been a change in his character since last offending, that he is now of good character.. On balance the fact of his convictions does not persuade me to conclude, in the circumstances, that Mr Vella is not possessed of enduring moral qualities and character attributes that may justify his registration for Australian citizenship.  The available evidence persuades me to conclude that he is indeed possessed of such moral qualities and attributes. Mr Vella’s accomplishments, training and responsibilities in service and the evident regard in which he is held by his commanding officers supports that conclusion.

41.     In the Respondent’s submission “the best that can be said is that the Applicant has demonstrated that he is not of “bad character” since committing the [last] offence.  That is not the same as showing that the Applicant is of good character.”  However, to find for the Respondent I must be satisfied that Mr Vella is not of good character.  Such a conclusion would not be consistent with the evidence in this case.  I place significant weight on the evidence of Mr Vella’s military commanders and documents concerning his character, his conduct and his career.  I am also mindful of the extent and nature of the penalties imposed by the Courts handing down Mr Vella’s convictions.  I note the evidence of Mr and Mrs Chadwick but accept that their knowledge of Mr Vella is of very limited scope, and therefore of little weight in these proceedings.

conclusion

42.     The test of good character does not require an unblemished record or the complete absence of fault.  What is to be established is the good character of the person being assessed.  His or her conduct is a relevant consideration as are factors such as any record of criminality or evidence of turpitude.  Any such factors must be considered in the context of the entirety of the evidence concerning the applicant’s enduring moral qualities and character attributes up to the date of the decision.  All those factors must be assessed in relation to the generally accepted standards of behaviour in Australian communities. 

43.     Applying the rules of procedural fairness, an applicant must be given the opportunity to address any evidence suggesting he or she is not of good character.  Mr Vella has addressed such evidence in this case.  Evidence must be adduced that is sufficient to persuade the decision-maker to the requisite standard.  Mr Vella has produced relevant evidence from his employer and his regimental commanders in Britain.  There is no basis for excluding or disregarding that evidence.   

44.     Considering all of the evidence and the submissions of the parties I am satisfied to the requisite degree that Mr Vella is a person of good character.  It follows that the decision under review is set aside and his application for registration of citizenship by descent must be remitted to the Respondent for finalisation in accordance with these reasons.

Schedule 1

Australian Citizenship Act 1948

AUSTRALIAN CITIZENSHIP ACT 1948 - SECT 10C
Citizenship by descent for a person aged 18 or over on 15 January 1992

(1)      A person who is registered under this section is an Australian citizen.

(2)      A person may apply to the Minister to be registered under this section.

(3)      The application must be in accordance with the approved form.

(4)      The Minister must register, in the prescribed manner, an applicant for registration under this section if:

(a) a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and

(b)      that parent:

(i) is an Australian citizen at the time an application under this section is made; or

(ii) is dead and at the time of his or her death was an Australian citizen; and

(c)      the applicant:

(i)       was born outside Australia on or after 26 January 1949; and

(ii) is aged 18 years or over on the day on which this section commences; and

(iii) failed for an acceptable reason to become registered as an Australian citizen under:

(A)      section 10B;or

(B)section 11 of this Act as in force at any time before the commencement of section 10B; and

(d)                  the Minister is satisfied that the applicant is of good character.

Note: acceptable reason is defined in subsection (5).

(5) For the purposes of subparagraph (4)(c)(iii), an applicant has an acceptable reason if and only if:

(a)        an Australian passport has been issued to the applicant; or

(b) the applicant's name has been on an Electoral Roll under the Commonwealth Electoral Act 1918 ; or

(c) the applicant was unaware of the requirement of registration for the purposes of obtaining Australian citizenship by descent under section 10B or under section 11 of this Act as in force at any time before the commencement of section 10B; or

(d) the applicant has a reason for failing to become registered that is declared by the regulations to be an acceptable reason for the purposes of this section.

(6) If the Minister decides not to register an applicant under this section, the Minister must inform the applicant of that decision by written notice served personally, by post or by an electronic communication.

(7)      A notice served on an applicant under subsection (6) must include:

(a)      reasons for the decision; and

(b) notification of the applicant's entitlement to apply for review of the decision under section 52A.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

Signed:  Guy Moloney           .......................................................................................
  Associate

Date/s of Hearing  3 February 2004
Date of Decision  25 February 2004
Solicitor for the Applicant          Michael Jones
Solicitor for the Respondent     Ben Cramer