Watson and Minister for Immigration and Citizenship

[2007] AATA 2115

Administrative Appeals Tribunal

DECISION AND  WRITTEN REASONS FOR ORAL DECISION [2007] AATA 2115

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3090

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Dave Watson

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member B J McCabe
Senior Member S Karas

Date19 December 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

......................[Sgd]........................

SENIOR MEMBER 

CATCHWORDS

IMMIGRATION & CITIZENSHIP – Citizenship – character test – serious criminal convictions – applicant not of good character – decision affirmed

Australian Citizenship Act 1948 s 13

REASONS FOR DECISION

26 February 2008 Senior Member B J McCabe
Senior Member S Karas    

1.      A decision was made and oral reasons were given at the hearing of this matter. The applicant subsequently requested written reasons. This statement of reasons has been distilled from the transcript of the hearing.

2. This is an application by Mr Dave Watson for review of a decision to refuse his application for Australian citizenship. The Minister decided Mr Watson did not pass the character test found at s 13 of the AustralianCitizenship Act 1948.

3.      The task before us is not as simple as determining whether or not, for example, Mr Watson is an ongoing risk to the community. As he pointed out at the hearing, he has done nothing since the time he came from New Zealand, and he is committed to not re-offending. The character imposed under the legislation requires that we are positively satisfied the applicant is a person of good character. That is not an easy test to satisfy.

4.      We have on the one hand the evidence of the convictions and the prison sentence imposed in New Zealand. The applicant served two and a half years of his four year sentence. As the applicant has acknowledged, that evidence calls his character into question. The convictions were some time ago and the offences themselves were even further in the past, but, nonetheless, the character question is there.

5.      The applicant referred to the absence of a criminal record in his time in Australia, which is encouraging.  He has explained a reference to another conviction that was referred to in the papers prepared by the respondent; the respondent accepts there is no evidence of another conviction. The applicant has also referred to the resolution of the custody proceedings in New Zealand, although the circumstances in which he came to Australia while those proceedings were going on is still a matter of some concern. We note the applicant appears to have led a blameless life in Australia, working hard on his farm and raising his children, and we have no reason to doubt that has been a successful process.

6.      We also note he has no significant ties to the Australian community, or other significant community involvement. While there are some limits to his opportunities for interaction — for example, he cannot become involved in his children’s school, as he pointed out — there are no other involvements which would constitute useful evidence of good character. The applicant does have a good reference from a friend, who is a solicitor, and that individual is aware of the circumstances of the earlier offences.  He has a number of other references, in particular, the principal of his children’s school, although she is not aware of the applicant’s criminal history. We understand there might be reasons why he does not want to share that information with her. There are a number of other references from other people involved in the community as well, although those references appear to be older.  The applicant told us about his attempts to make a go of his small business, and we do not make anything of the fact that it has not yet been a successful business, or the fact that he is receiving social security.

7.      There is the question about the applicant’s failure to declare the convictions when he entered Australia in 2000. That is a serious matter which of itself raises a question mark over his character. We are troubled by his explanation for failing to disclose the convictions. He does not acknowledge the seriousness of his conduct, and, as he said in his submissions, he felt it was justified to tell a lie, to ignore the law, because he felt he had good reasons for doing so. The applicant used the expression “The sanctity of law is not always appropriate”, and that there may well be good reasons for not obeying the law. That concerns us because it suggests there may be circumstances — and there have been circumstances — where he has been prepared to put himself above the law. That certainly does not suggest good character.

8.      In any event, we are simply not satisfied there is sufficient evidence that would enable us to make a positive finding of good behaviour in accordance with the Act.  In those circumstances, we have to affirm the decision under review, which means the applicant’s status in Australia will remain unchanged.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ..................................[Sgd]...................................................
  Michael Buckingham, Associate

Date of Hearing  19 December 2007
Date of Oral Decision                19 December 2007
Date of Written Reasons          26 February 2008
For the applicant  Self-represented
For the respondent                   Mr S Maycock, solicitor