"WAI" and Minister for Immigration and Citizenship
[2007] AATA 1203
•30 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1203
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600139
GENERAL ADMINISTRATIVE DIVISION ) Re “ WAI ” Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date30 March 2007
PlacePerth
Decision The Tribunal sets aside the decision under review and directs that the matter be remitted to the decision maker with a direction that the applicant's application for Australian citizenship made on 24 October 2005 be granted. .......(Sgd. Mr A Sweidan)...................
Senior Member
CATCHWORDS
Australian citizenship – good character test.
LEGISLATION
Australian Citizenship Act 1948 (Cth) s 13(1)(F)
CASES
Akapata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Drake v Minister for Immigration and Ethnic Affairs (1979)2 ALD 60;
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (with Corrigendum 2 March 2005) [2004] FCA 774
In Re Kaur and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 228
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463
Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364
Monica Del Carmen Lillo Morales v Minister for Immigration and Multicultural Affairs [1998] 332 FCA (6 April 1998).
Nunn v Kinnon (1988) 4 WAR 459
Re Clough and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1158
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Mlinar v Minister for immigration and Multicultural Affairs (1997) 48 ALD 771
Re Naumovski and Minister for Immigration and Multicultural Affairs (1994) 20 AAR 388
Re Strangio and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 676
Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100
REASONS FOR DECISION
30 March 2007 Mr A Sweidan, Senior Member BACKGROUND
1. This is an application to the Tribunal made by the applicant seeking review of a decision of a delegate of the respondent dated 12 April 2006 refusing to grant Australian citizenship to the applicant. The delegate determined that the applicant did not meet the “good character” requirement contained in section 13(1)(f) of the Australian Citizenship Act 1948 (the Act).
2. The applicant is a citizen of the United Kingdom and New Zealand who arrived in Australia on 5 December 1983.
3. On 8 September 1997 he was convicted of 61 offences against the Social Security Act 1991. Those offences comprised 26 counts of knowingly making a false statement in connection with or support of a claim for a social security payment and 35 counts of knowingly obtaining such a payment that was not payable at all or only payable in part. The offences took place between 1993 and 1996.
4. The applicant was sentenced to 12 months’ imprisonment, ordered to be released having served 2 months and ordered to enter into a good behaviour bond for a period of 18 months following his release.
5. As a result of these offences the applicant was considered for possible deportation. However, on 30 April 1999 a delegate decided not to order the applicant’s deportation but to instead issue the applicant with a warning that further offences may lead to the question being reconsidered by the Minister.
6. The applicant applied for grant of Australian citizenship on 24 October 2005
7. On 12 April 2006 a delegate decided to refuse the applicant’s application for citizenship. The delegate found that the applicant did not meet the requirements of section 13(1)(f) of the Act that he be of good character at the time of the decision.
Legislation
8. Section 13(1) of the Act relevantly provides:
“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:
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(f) The person is of good character.”
9. The relevant policy guidelines are outlined in 4.8.15 to 4.8.28 of the Citizenship Instructions.
Good character
10. The term ‘good character’ is not defined in the Act. The decision maker should have regard to the ordinary meaning of the words in assessing good character: see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where Lee J noted at [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 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. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
11. The existence of criminal convictions is clearly relevant in determining good character. Davies J in Irving (supra) stated at [87]:
“[C]riminal 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 on the character of the applicant. If the conviction was in the last, 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.”
12. In Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 Deputy President Wright stated at [14]:
“When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”
13. The objective fact of a criminal conviction carries more weight than a review of subjective public opinion on an applicant (Re Mlinar v Minister for immigration and Multicultural Affairs (1997) 48 ALD 771).
14. In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 where Deputy President Breen stated:
“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.”
CONTENTIONS OF THE RESPONDENT
15. The applicant was sentenced to a term of 12 months imprisonment.
16. The offences were committed over a sustained period of time when the applicant was an adult. The offences were serious enough to render the applicant liable for deportation.
17. The seriousness of the offence and the applicant’s lack of remorse are reflected in the sentencing remarks of the magistrate:
“I think the seriousness of this offence and not just the offence itself but the manner in which the defendant has conducted himself and shown no remorse at all, not a scrap and has persisted in what is really only a fictitious offence which shows his attitude to the law and that concerns the court as much as the offence itself.” (T8, p66)
18. The applicant has asserted that his “crime was a one-off occurrence”. The respondent contends that the Tribunal should reject this assertion as the applicant’s offences were committed over a three year period.
19. The respondent contends that it does not appear that the applicant has accepted full responsibility for the offences. In his statutory declaration he states:
“The extenuating circumstances relating to the crime have been ventilated previously and can be summarised as loss of employment prospects prior to arrival in Australia resulting in pecuniary hardship, interacting with a social security system about which I had little knowledge, relying upon the advice of officers from the Department of Social Security about the social security benefits and receiving substandard information from the successor to the Western Australia Department of Education and Training. The evidence cited is on the public record.”
20. However, the respondent contends that this is at odds with the following findings of the magistrate:
“You knew. You know the way these things work. You are intelligent, or educated anyway. you know what they are looking for. The court takes into account not only the amount which has been overpaid to the defendant but the circumstances in which it was overpaid. There were times I said only a few weeks though where he was getting very high income and still went on doing this and his explanation that he didn’t know the exact amount he was receiving is just not at all acceptable. That must be false and the only conclusion that the court can properly infer that is he knew this and he deliberately did it so he would get the full range of benefits as well as that is the allowance under the Act as well as what salary he was earning. Whether he deliberately did it for that reason of course might be one question but the fact is he did it and he did receive his full wages when he was on full time work for a few weeks and at the same time got the benefit and so having done that for three years one would have to say that the only inference that can be drawn is that he intended to do that and that is the reason why this was done.” (T8, p65-66)
21. The respondent contends that the seriousness of the offences, the applicant’s lack of remorse and failure to fully accept responsibility for his offences all reflect adversely on the applicant’s character.
22. The respondent contends that the applicant is not of good character pursuant to s.13(1)(f) of the Act and therefore should not be granted Australian citizenship.
CONTENTIONS OF THE APPLICANT AND APPLICANT’S EVIDENCE
23. The applicant was self-represented, gave evidence and also tendered lengthy and detailed written submissions to the Tribunal from which the Tribunal sets out relevant extracts below:
“…
Contribution to Australian Community2.2In Re: Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen at paragraph 8 said:
"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."
2.3The legislation and Tribunal are silent on the matter of what is meant by the expression “values of the Australian community”. However, the Applicant contends that he upholds the values commonly described as ‘Western values’. As a school teacher he is responsible for transmitting values that include honesty and integrity to members of the school community.
2.4The Applicant contends that he has made a positive contribution to the Australian community since arriving in the country in November 1989, over 17 years ago, comfortably exceeding the “few years” referred to by the Tribunal in Re Fenn. The Applicant has remained in a marital relationship, raised three children and has performed many hours of voluntary community work for more than a decade for a number of not-for-profit organisations in Western Australia.
Good Character
2.5The term ‘good character’ is not defined in the Act and there is nothing in the Act that proscribes behaviour displayed by an individual as not being of good character, including the commission of a criminal act by a person as being evidence that such a person is not of good character.
2.6In forming an opinion as to whether the Applicant is not of good character a decision maker is guided by the relevant sections of the Instructions and case law.
2.7With reference to s 501 of the Migration Act 1958 (“the Migration Act”) the Federal Court recognised that the expression “good character” is a complex one (Monica Del Carmen Lillo Morales v Minister for Immigration and Multicultural Affairs [1998] 332 FCA (6 April 1998).
2.8In Re Kaur and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 228 (5 April 2002) the Tribunal observed (per Senior Member Kiosoglous at paragraphs 104-105):
“The Instructions set out at sub-paragraph 4.8.15 that in relation to applications decided under sub-section 13(1) of the Act, the good character requirement is a legislative requirement. Therefore, if the Tribunal finds that the Applicant is not of good character, then the application for Australian citizenship cannot be approved.
“The Instructions also set out at sub-paragraph 4.8.16 that the term "good character" is not defined in the Act and therefore decision makers should be guided by the ordinary use of the words in making assessments. Further, as a matter of policy, an Applicant may be presumed to be of good character unless there is evidence to the contrary, such as a serious criminal record, however, general conduct and associations may also be relevant.”
2.9In reviewing the character of a person under section 180A of the Migration Act in Re Strangio and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 676 it was held (at 677) that the departmental policy guidelines relating to past criminal conduct go beyond the scope of the statute and fail to leave room for flexibility where a person has been sentenced to imprisonment for more than one year. The tribunal also held that while it is incumbent on the decision-maker to have regard for past criminal conduct, this can in no way be determinative of character years after the event. The tribunal also held that the possibility of recidivism may be regarded as an indicator of character and that although the decision-maker must have regard to the past, the decision is to be made ultimately having regard to the present conditions.
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2.14“ ... the "character test" for the purposes of s 501 of the Migration Act is a different concept from that of "good character" for the purposes of s 13(1) of the Act. Whereas a person is forever deemed not to pass the "character test" for the purposes of s 501 of the Migration Act if, among other circumstances, they have (like Mr Clough) been sentenced to a term of imprisonment of 12 months or more, a person who has been convicted of serious offences and thereby demonstrated that they were then not of good character may nevertheless subsequently demonstrate that they have been rehabilitated and are now "of good character" for the purposes of s 13(1) of the Act (see, in particular, para 5.4.14 of the Instructions)” (Re Clough and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1158 (22 November 2005) per Deputy President S D Hotop & Senior Member A Sweidan at paragraphs 24 to 26).
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2.20 Lee J in Irving said at 94:
“A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Cleariham per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
2.21It is open as to what Lee J meant by the expression “serious crime”, but given the comment made by His Honour that a person convicted of such a crime being “held in contempt in the community” does suggest that His Honour was referring to a crime that generates a high degree of opprobrium from members of the community in which the person lives. Such crimes could include, for example, rape, murder, manslaughter, drug trafficking and any crime against children.
2.22The Applicant contends that he has not been convicted of a serious crime and there is no evidence that he has been held in contempt by the community in which he lives. The Applicant, although not a citizen is completely absorbed into Australian society and continues to be accepted by the community in which he has resided for over 17 years. In the alternative if the crime for which the Applicant has been convicted is regarded as “serious” it was not the type that was the subject of the Court’s attention in Irving. Furthermore the Applicant contends that if the crime for which he was convicted is regarded as “serious’ he has now reformed and is not now not of good character.
2.23Lee J observes in Irving (at 94) that good character does not mean completely unflawed and was being considered by the Court in the context of the ‘public good’:
“Common sense suggests that the Act [Migration Act] and regulations are not concerned with infraction or patterns of conduct that show weakness or blemishes in character but with ensuring that the exercise of sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.”
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2.26The fact that the Applicant entered Australia under the provisions of the Migration Act on two occasions since being convicted suggests that his purported lack of good character should be regarded rather as a show of weakness or blemish in character that has no bearing on the public good. In the alternative if the Applicant was not of good character upon entering Australia since his conviction, the Respondent has used his discretion and was not persuaded that the entry to Australia by the Applicant would have a bearing on the public good.
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2.28In Re Naumovski and Minister for Immigration and Multicultural Affairs (1994) 20 AAR 388 (at 392) quoting Strangio at 184-185:
“ . .a value judgment needs to be made in each case. It is to be made upon the basis of the situation existing at the time when the decision is to be made, either by the original decision-maker or by this Tribunal. (Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; 9 AAR 255 at 258). Although one must have regard to the past as the statute requires, the decision is to be made ultimately having regard to present conditions.”
2.29“Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. . . as with consideration of criminal conduct there must be due regard given to recent good conduct.” (Godley v Minister for Immigration and Multicultural and Indigenous Affairs (with Corrigendum 2 March 2005) [2004] FCA 774 (18 June 2004) at 55 and 56).
2.30 “In having regard to the criminal conduct of the applicant the Minister has to assess the extent to which the particular offences show moral turpitude and then have regard to the absence of such conduct thereafter and the extent to which it showed that lesser weight was attached to past offences as indicators or moral worth.” (Godley at 63)
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2.34 The Applicant believes that the evidence available to the Delegate does not satisfy the view that the Applicant is not now of good character, irrespective of his past criminal convictions.
2.35 The Respondent has concentrated on the conduct of the Applicant over a three-year period out of almost 55 years of the Applicant’s life to conclude that he is now not of good character. The Applicant contends that there is ample evidence that prior to his conviction he was of good character and that he possessed the enduring moral qualities referred by Lee J and reputation referred to by Davis J in Irving. In the alternative, if the Applicant was always not of good character, the Respondent was not satisfied that the Applicant presented a threat to the Australian community and let the Applicant enter Australia on numerous occasions prior to his conviction.
2.36 The Applicant contends that 9 years is a sufficient period of time for his conviction to be considered in the light of the lapse of time. There is no evidence that the Applicant has not been of good character since his conviction. The Respondent has not attached the appropriate weight to the behaviour of the Applicant subsequent to being convicted who has conducted himself in accordance with the values of the Australian community.
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2.38 The only fact that disturbs the presumption of the Applicants good character is his criminal conviction. However, a criminal conviction does not necessarily of itself suggest that a person is not of good character. “There are a number of different ways whereby an applicant might not pass the character test: s 501(6) [Migration Act]. The character test is not limited to a determination that a person has a substantial criminal record.” (Akapata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 (25 March 2004) per Lander J at paragraph 101).
2.39 In Jia, Ex parte, Re MIMA P77/2000 (25 October 2000) Kirby J observed:
“It is not enough that there has been a conviction. It has to be something more. The Parliament could have enacted a provision that said, “Where there is a conviction of more that one year” or something of that kind, but it did not. It required the Minister to go in search of something that is rather more elusive, namely a person’s character.”
2.40In Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 the court considered whether a person is “not of good character” under
s 501(2)(a) of the Migration Act and remarked at page 469) :“It is not conceivable that parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of ‘general conduct’. So the words ‘having regard to’ and the disjunctive ‘or’ must not be given the effect or requiring a blinkered decision of criminal conduct considered in isolation.”
2.41 Notwithstanding the quantity and quality of the evidence before the Respondent attesting to the quality of the antecedents of the Applicant, the Respondent has not provided any evidence that the Applicant was not of good character for reasons other his convictions and has relied solely on this fact in to determine that the Applicant is now not of good character.
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2.45The Applicant contends that in the light of commonsense the evidence and experience over the past 9 years, his criminal convictions should now be afforded less weight in assessing whether he is now of good character.
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2.59The Applicant contends that each of the offences of which he was convicted are not serious as the Constitution does not recognise the expression “serious offence”, neither is the term is used in the Social Security Act or the Act. Although the expression is used in the Crimes Act it relates to an offence where the maximum penalty of imprisonment is for life or 5 or more years not a maximum penalty of 12 months imprisonment where the offences can be dealt with summarily (s 4J Crimes Act). The offences of which the Applicant was convicted are not part of a hierarchy of different and more serious criminal offences.
2.60The fact that the Applicant received a sentence of imprisonment is of itself not indicative that the offences were serious. Imprisonment commonly is imposed even for first offenders in the absence of substantial mitigating circumstances (see Nunn v Kinnon (1988) 4 WAR 459). The antecedents of the Applicant suggest that the offences with which he was convicted were out of character. Accordingly, rehabilitation is not a consideration.
The full circumstances surrounding the crime
2.61The Applicant was first granted social security benefits on 13 September 1990. The Applicant stated (p 221, T60),
“This was the first time I had applied for any unemployment benefit anywhere and my knowledge of how the system operated was poor”.
2.62The basis for the Applicant’s claim for a social security benefit arises under ss 555(1) and 635(1) of the Social Security Act:
A person who wants to be granted a job search allowance must make a proper claim for that allowance.
Section 635(1) entirely replicates this section for newstart allowance.
2.63The prosecution in Commonwealth DPP v WAI [1997] … did not submit any evidence at trial that suggested the Applicant had provided material that was false in particular to enable a claim for social security benefits to be granted. There was no evidence that the Applicant had used false names or identities (p 1, Exhibit 10) or had set up false bank accounts.
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2.94The fact that the Applicant has decided not to continue the appeal process is evidence that he has changed his behaviour in that he has satisfied himself that the matters that were heard at trial have been dealt with according to the laws of the Commonwealth and reviewed by an appellate court. The fact that the Applicant has exercised his constitutional right to seek a judicial review of his conviction and sentence, a right that can be enlivened at any time, is not an indication of the Applicant not being of good character and should not prejudice the Applicant’s application for grant of Australian citizenship.
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2.102Both Drake (supra) and Carngham (supra) do not support the view held by the Delegate that the convictions qualify as serious under Chapter 5.4.7 of the Instructions. It would have been unlawful for the applicant to have been detained any longer than 2 months after he had commenced serving his sentence and a sentence of one year’s imprisonment simpliciter is quite different from a sentence of one year’s imprisonment coupled with an order for conditional release after two months.
Whether the crime was a one-off
2.116The Applicant has never disputed that he was found guilty of 61 separate offences. “The theory of criminal law is that several charges which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident . . . Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminality involved.” (Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 per Burchett and Lee JJ at paragraph 12).
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The Respondent’s Discretion
2.118The Delegate has produced evidence of the Applicant’s movement in and out of Australia from 12 November 1983 (p 30, T3) to 30 August 1990 (p 35, T3). A minute from the Criminal Deportations Section dated 25 March 1999 (T40) reads, “Question of Deportation – Section 200/201 of the Migration Act 1958 –WAI – British citizen – Issue a Warning”. . . .Date of initial arrival: 12 November 1983.” In fact the Applicant first entered Australia on a British passport in January 1979, yet evidence of this movement has not been supplied by the Delegate. Subsequent to the Applicant having a criminal conviction recorded against him he entered Australia on two occasions, 22 September 2000 and 20 January 2006. Section 32(2)(a) of the Migration Act requires that a person applying for a Special Category (Temporary) (Class TY) visa give an officer or a clearance officer a New Zealand passport that is in force and the Applicant is neither a behaviour concern non-citizen nor a health concern non-citizen. On each of the two occasions a port and date stamp was placed in the New Zealand passport of the Applicant thereby granting him a Special Category (Temporary) (Class TY) visa.
2.119It would appear that the Applicant is a behaviour concern non-citizen as defined in s 5 Migration Act. The Respondent has the statutory power to refuse to grant the Applicant a visa on character grounds, not simply those visa classes for which the character test is a prescribed criteria (ss 65(1)(a)(iii), 501(1), 501(2), 501(3) Migration Act). Yet on two separate occasions respectively approximately three years and eight years five months after the Applicant’s conviction the Respondent was satisfied that the Applicant’s application for grant of a visa was valid and that the behaviour of the Applicant was not sufficient for the Respondent to refuse to grant the visa (s 65(1)(b) Migration Act). The behaviour of the Respondent in issuing a visa to the Applicant subsequent to conviction being recorded against the Applicant has been the same as the ten other occasions the Respondent has granted the Applicant a visa from 12 November 1983 to 30 August 1992 when presented with a valid New Zealand passport. As the last two of these dates are subsequent to the Applicant’s criminal conviction, logically the Respondent must have approved the entry into Australia of the Applicant in the knowledge that according to the Delegate the Applicant was not of good character (T10, T11, T12, T14; section 12, p 78, T15; paragraph 1, p 86, T15; section 12, p 91, T16; T27, paragraph 2, p 119, T28; p 120, T28; T29, T33, T36; paragraph 3, p 154,T38; p 158, T38, T39, T40; pp 165, 170, 176, 177, 180, 181, T41, T44, T45, T46).
2.120The Applicant is a permanent resident for the purposes of the Act as a temporary resident of Australia, under subclass 444 of the Special Category (Temporary) (Class TY) visas (paragraph 11, p7, T2).
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2.124Senator The Hon Kay Patterson informed the Applicant on 9 December 1998 (paragraph 2, p 176, T41) that, “Where a person has become liable for possible deportation, a comprehensive submission must first be made by the Department to the Minister or his delegate for consideration and decision of whether or not to proceed to a Deportation Order”. In a letter dated 30 April 1999 (p185, T44) the Respondent advised the Applicant that, “The delegate of the Minister for Immigration and Multicultural Affairs decided on 29 April 1999 not to order your deportation from Australia on the basis of your convictions in the Court of Petty Sessions at Joondalup on 8 September 1997 . .” It must therefore follow that the Respondent or his delegate did not believe that if the Applicant were allowed to remain in Australia, there would be a significant risk that the Applicant would:
·engage in criminal conduct
·harass, molest, intimidate or stalk another person in Australia,
·vilify a segment of the Australian community,
·incite discord in the Australian community or in a segment of that community,
·represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. (see s 501(6)(d) the Migration Act).
2.125It also follows that the Respondent or his delegate did not consider as serious those offences for which the Applicant was convicted as those examples of serious offences listed in the Policy Statement by the Minister for Immigration, Local Government and Ethnic Affairs, Australia’s Criminal Deportation Policy (section 12, p 175, T41). It also follows that the Respondent or his delegate did not consider that the Applicant has seriously abused the privilege of residence accorded to him by the Australian community (section 6, p 175, T41). By not seeking the deportation of the Applicant the Respondent on behalf of the Australian community has exercised the Australian Government’s “right to decide who will be accepted for permanent residence in Australia and, ultimately, for absorption into full membership of the community by way of Australian citizenship,” (Introduction, p 174, T41) in the Applicant’s favour.
2.126The fact that the Respondent has not cancelled the Applicant’s visa and has not ordered his deportation one can conclude that the Applicant passes the character test as defined by subsection (6) of s 501 of the Migration Act. In the alternative if the Applicant does not pass the character test under s 501(6) of the Migration Act and it would seem that this may be so with the instant case (s 501(6)(a)), the Respondent has exercised his discretion for the Applicant to remain in Australia as a permanent resident as the Applicant still has valid visa. It is difficult to envisage a situation where having failed the character test under s 501(6)(c)(i) or s 501(6)(d) of the Migration Act the Applicant would be permitted to remain in Australia. It therefore seems that the Respondent determined that even if the Applicant does not pass the character test by virtue of s 501(6) of the Migration Act the Applicant was considered not to be a threat to the wellbeing of the Australian community as to warrant his deportation. The action of the Respondent also gave credibility to the prospect that ultimately the Applicant would become an Australian citizen.
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Grant of Australian citizenship to members of Applicant’s immediate family
2.128Subsequent to the Applicant being convicted, the Respondent granted Australian citizenship to the Applicant’s spouse and his three children at various times. The Respondent must have been satisfied that each member of the Applicant’s immediate family passes the character test under s13 of the Act as each was not a “ . .person [who] has or has an association with someone else . . . .with whom the Minister reasonably suspects has been . . .involved in criminal conduct” (s 501(6)(b) Migration Act). Logically the Respondent must have accepted that either the strength of the association between the Applicant and members of his immediate family was insignificant or that the criminality that grounds any association was insufficient to reject the grant of Australian citizenship for each member of the Applicant’s immediate family.
General conduct
2.129According to Lee J in Irving the words “good characters” are “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” (emphasis added). In Irving the Full Court of the Federal Court, Davies, Lee and Nicholson JJ “each rejected the notion that good character referred to a person’s reputation or repute ...” (Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100 (3 February 2005, at paragraph 76).
2.130Yet in arriving at its decision the Delegate has placed great weight upon the Applicant’s response to paragraph 5.4.17 of the Instructions that reads inter alia:
“5.4.17The Applicant’s present reputation in the community should also be considered. The Applicant could demonstrate a good reputation in the community . . .” (emphasis added)
2.131The Delegate has relied upon Irvin and the comments by Lee J about character which are diametrically opposite to the elements that guide the assessment of character in the Instructions. The Applicant therefore submits that the Tribunal should depart from the provision of the Instructions with regard to the element of reputation and instead follow Lee J in Irvin (Drake v Minister for Immigration and Ethnic Affairs (1979)2 ALD 60; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
2.132According to the Delegate (paragraph 5, p 11, T2) the Instructions recommend that any credible and relevant information be considered when assessing an individual’s general conduct.
2.133Evidence before the Delegate comprised four letters from reputable Australians, namely a Justice of the Peace and Member of the Parliament of Western Australia; a barrister of the Supreme Court of Western Australia and Warden of Convocation, The University of Western Australia; the Executive Director of a not-for profit training organization; and a principal of a Western Australian public school. Each of the letters is printed on the respective letterhead of the organization with which the writer is associated and bears the signature of the writer and the date of the letter. A reasonable person would regard these persons as being capable of providing credible information about the Applicant.
2.134The Delegate considers the contents of these letters as being of limited worth in providing information about the Applicant’s general conduct because, according to the Delegate, each of the written references:
· did not contain statements in support of the Applicant’s application for Australian citizenship;
· does not contain a reflection of character;
· only contain lists of organisations of which the Applicant is a member;
· does not address the criminal history of the Applicant;
· does not address any change that may have occurred (since the commission of the offences);
· is not in the form of a statutory declaration.
2.135The last offence commissioned by (sic) the Applicant occurred on 10 April 1996, approximately nine years and six months before the Applicant made application for a grant of Australian citizenship. Each of the letters refers to events and actions of the Applicant during this period of time. Each of the letters refers to at least one body with which the Applicant has an active association. Membership of each of these bodies is voluntary – there is no requirement for the Applicant to be associated with any of these bodies and he receives no pecuniary advantage in so doing. In this regard the Applicant is being altruistic and the Applicant contends that this is credible evidence that the Applicant possesses a moral quality.
2.136Lee J in Irving maintains that “the words “good character” should be taken to be used in their ordinary sense, namely, a reference to enduring moral qualities of a person”. The word “moral” is defined in the Macquarie Dictionary as “relating to or concerned with right conduct or the distinction between right or wrong,” and in the Australian Concise Oxford Dictionary as, “concerned with goodness or badness of character or disposition, or with the distinction between right and wrong.”
2.137The word “enduring” is defined in the Macquarie Dictionary as, “1. lasting; permanent. 2. long-suffering; patient.” The word “quality” is defined in the Macquarie Dictionary as, 1. a characteristic, property, or attribute.
2. character or nature, as belonging to or distinguishing a thing” and in the Australian Concise Oxford Dictionary as “degree of excellence, relative nature or kind of character”.
2.138Though the Delegate admits (paragraph 7, p 13, T2) that the written references provided support the Applicant’s claim of personal achievement, the Delegate has failed to recognise that the Applicant has volunteered his time to improve the quality of life for members of the Australian community. A reasonable assessment of the Applicant’s achievement in this regard would suggest that such conduct by the Applicant is “good” and not “evil”. Such an assessment is “an objective assessment apt to be proved as a fact” (Irving per Lee J), i.e. the Applicant has been and is currently involved in community-based organisations.
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2.140T56 is dated 29 November 2005 and contains inter alia the following, “The efforts of WAI in taking on a number of roles within the school community, in my mind, shows a dedication and commitment that would stand him in good stead for his chosen profession.” T57 is dated 21 November 2005 and contains inter alia the following, “A most reliable and trustworthy person who possesses highly developed communication skills . . . I have no hesitation in recommending WAI as a person of high character who would be a valuable asset to any employer”.
“It is difficult to reconcile how the phrases such as “dedication and commitment” and “high character” accord with the assertion of the Delegate (paragraph 6, p 12, T2) that “the written statements are not a reflection of character”.
2.141In her letter of 17 November 2005, L Ward, Citizenship Section, DIMA, Perth (T53) included a copy of paragraph 5.4.17 of the Instructions and invited the Applicant to submit “whatever other information you feel may be relevant to your case in support of your character. This may include references from members of the community who can vouch for your good character. Considerable weight is given to statutory declarations.” Even though the Applicant provided the Delegate with a statutory declaration (T60) it would appear that it did not attach the weight to which L. Ward asserted it would. As there is nothing in paragraph 5.4.17 of the Instructions that requires the Applicant to only submit deposed material, it was open to the Applicant to provide evidence that was not deposed meo periculo.
2.142There is no requirement that the Applicant elocutes to his convictions neither is there any requirement that he has to inform persons about his convictions prior to requesting written character references from each of them. Transcripts of the Applicant’s trial on 8 September 1997 and appeal on 26 February 1998 are in the public domain as are the judgements of these cases and the decisions of the Social Security Appeals Tribunal, Administrative Appeals Tribunal and Federal Court. Most of these cases are reported in electronic form and freely accessible. Any of the persons requested by the Applicant to provide a written statement about his character was at liberty to interrogate the public record prior to writing his or her statement. Given the fact the two of the referees are persons who are both qualified and skilled in legal matters it is open whether each interrogated the public record prior to writing their letter.
2.143Though it is true that the Applicant did not apprise the authors of each written statement about his convictions, the Delegate has produced no evidence that suggest that each of them did not interrogate the public record. Neither is their any evidence that the Applicant informed his referees that he did not have convictions. There is nothing to suggest that the Delegate satisfied itself that each of the writers of the statements did not interrogate the public record prior to writing their letter. It seems a though the Delegate is of the view that the only method by which a referee could have been made aware of the Applicants convictions is from the Applicant’s own mouth. Indeed the Delegate states (paragraph 2, p 13, T2) that, “The referees . . . were not made aware of WAI’s criminal background.” with no evidence to support such a statement.
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2.148The view of the Delegate is predicated on the view that someone (“a reputable Australian”) should have known about the Applicant’s convictions. Such a view assumes that persons other than family members, are reputable, are Australians and knew about the Applicant’s convictions. That no one fitted into this category should not be a reason to diminish the worth of the written statements from those persons who were the next best choice. The fact that the Applicant did not “burden[ed] any of these persons with knowledge about my criminal record” (paragraph 5, p 229, T60) in and of itself does not necessarily diminish the worth of each written statement submitted by the Applicant. Each is still “credible information”.
2.149The Applicant was advised by the letter of L.Ward (T53) and copy of the Instructions that the Applicant could provide references from “reputable Australians”. The term “reputable Australians” is not defined in the Instructions and the Applicant surmised that persons in positions of trust who have got good character would be acceptable. Unfortunately none of those persons chosen by the Applicant was known to the Applicant prior to 10 April 1996, the date of the last offence being commissioned by the Applicant. Accordingly, even if the Applicant had apprised each of the writers of his convictions none would have been capable of attesting to a change in character since that date, making any statutory declaration of limited value.
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Employment
2.151The Delegate states that it is unclear from the Applicant’s statutory declaration whether he has been in stable employment (paragraph 3, p13, T2). It is neither a statutory requirement nor is it part of the Instructions that in assessing a person’s character, stable employment per se is a factor to be considered, which is why the Applicant did not submit his employment history. In any event the Delegate is incorrect in asserting that the Applicant’s statutory declaration is unclear about his employment history.
2.152The Applicant has stated (paragraph 3, p221, T60), “as there were no full-time teaching positions available I commenced work as a relief teacher and have done so ever since and have taught at over 45 school in the state, the vast majority being public schools administered by the Department of Education and Training.” and, “In 1998 I formed a management consultancy business . . “ (paragraph 3, p 228, T60) and “Since the trial I have continued working at a large number of schools, some in the private sector, as a relief teacher or fixed term contracts. I have executed my professional duties since 8 September 1997 in exactly the same way as I have done since first qualifying as a teacher in 1974 and being recognised as a teacher by the Western Australian Director General of Education in October 1990.” (at p 227, T60).
2.153If stable employment is a requirement to assess the character of a person, it places at a disadvantage those who do not need to have employment, those who may have their own businesses, those who are retired and those who cannot work due to health reasons. It is incorrect for the Delegate to interpolate the lack of a full employment history as failure to demonstrate a pattern of “good behaviour” and thereby an adverse reflection upon the character of the Applicant.
Teacher Registration
2.154On 10 September 1994 the Applicant was advised by Greg Ryan-Gadsden, Manager, Promotions Recruitment, Housing and Transport, Western Australia Department of Education and Training (“DET”) that his request for a relief teacher’s licence had been approved and that his clearance would remain current until 3 September 2007 (T58).
2.155On 19 April 2006 Janet Rodgers, Director, Western Australian College of Teaching (“WACOT”) advised the Applicant that it had received his application for Foundation Membership with WACOT and awaited the results of a criminal record check for which the Applicant had applied with the DET on 19 March 2006. The assessment criteria for continued employment in the education sector include, nature and seriousness of the offence, relevance of the offence to employment or placement in a school, age of the applicant when the offence a committed, recency of the offence, and the number of years since the last offence and any mitigating circumstances. On 5 September 2006 DET cleared the Applicant for Appointment in the education sector.
2.156It is evident that even when the Applicant’s criminal record was provided by the police to the Western Australian Department of Education and Training that it considered the Applicant was not a person not of good character thereby permitting him to register as a teacher with the WACOT. Had the Western Australian Department of Education and Training not considered the Applicant suitable for working in the educator sector in the state it would not have cleared him.
3 CONCLUSION
3.2The Applicant contends that the Tribunal should reject the assertion of the Respondent that the Applicant is not of good character, find that he satisfies
s 13(1)(f) of the Act and directs the Respondent to grant the Applicant Australian citizenship.”
TRIBUNAL’S FINDINGS
24. The Tribunal is of the view that contrary to the respondent’s assertions the applicant has demonstrated remorse and has also accepted responsibility for his actions.
25. The Tribunal is further of the view that the applicant has shown that he had rehabilitated himself and was of good character at the time of the decision.
26. The Tribunal accordingly sets aside the decision under review and directs that the matter be remitted to the decision maker with a direction that the applicant’s application for Australian citizenship be granted.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: .....................(Sgd. Ms R Riberi)........................
AssociateDate of Hearing 11 December 2006
Date of Decision 30 March 2007
Representative for the Applicant Self-represented
Solicitor for the Respondent Mr Arran Gerrard
Australian Government Solicitor
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