WEBB and MINISTER FOR IMMIGRATION AND CITIZENSHIP - [2011] AATA 343

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 343
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2588

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT WEBB

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date19 May 2011
PlaceBrisbane

Decision The Tribunal:
1. sets aside the decision under review;
2. remits the matter to the respondent with a direction that the applicant satisfies the good character requirement of s 29(2)(b) of the Australian Citizenship Act 2007 (Cth); and
3. certifies that the proceedings have terminated in a manner favourable to the applicant.
..............Signed.................
Deputy President

CATCHWORDS
IMMIGRATION & CITIZENSHIP – resumption of citizenship – whether applicant is of “good character” – decision under review set aside and terminated in a manner favourable to the applicant
Australian Citizenship Act 2007 (Cth) s 29
REASONS FOR DECISION

19 May 2011 Deputy President P E Hack SC

Mr Robert Webb was born in Australia in 1947. By virtue of his birth he became a British subject. In 1949, and by operation of s 25 of the Nationality and Citizenship Act 1948 (Cth), he became an Australian citizen, a status introduced by that Act.
Mr Webb lost his Australian citizenship in 1973 when he applied for, and was granted, British citizenship.
In December 2009 Mr Webb applied to again become an Australian citizen. On 29 May 2010 a delegate of the Minister for Immigration and Citizenship refused the application because the delegate was not satisfied that Mr Webb was “of good character”. That view was taken because, in 1999, Mr Webb was convicted of criminal offences of, in effect, defrauding the United Kingdom revenue and was sentenced, eventually, to imprisonment for a term of 18 months.
Mr Webb seeks a review of that decision. As will appear, I consider that his application ought succeed and the decision ought be set aside.
Much of the factual background is uncontroversial. Mr Webb left Australia in 1967. Whilst he went initially for a holiday he eventually made his life there. In 1973 he applied for British citizenship. It was granted with the consequence that he ceased to be an Australian citizen by operation of s 17 of what was then called the Citizenship Act.
Mr Webb went on to build up a thriving business in the United Kingdom, promoting, selling and providing vocational educational courses. However he, with the assistance of an accountant, set up a clumsy scheme to evade tax. It is a sufficient description of the scheme to say that it involved a purported assignment of copyright in the teaching programmes to a company incorporated in the Bahamas but which ought, for the purposes of the scheme, have been a Belgian company. The judgment of the Court of Appeal of 30 October 2000 records that the loss to the revenue from the scheme between 1992 and 1995 was £1,979,808 and that Mr Webb received a personal benefit of not less than £500,000.
Mr Webb and others were prosecuted. In October 1999, following a lengthy trial in the Crown Court, Mr Webb was convicted on two counts of making a false declaration to the prejudice of the Crown with intent to defraud (described in the judgment of the Court of Appeal as “cheating”), one count of conspiracy to defraud and two counts of false accounting. Mr Webb was fined £694,000 and a confiscation order was made in the sum of £1.6m. Mr Webb and his co-accused appealed the convictions and the Attorney-General applied for leave to appeal the leniency of the sentences imposed.
The appeal against conviction was successful only to the extent that the conviction for conspiracy was quashed. The sentence appeal was successful and Mr Webb was sentenced to a term of 18 months’ imprisonment. The monetary penalties were unchanged except that the fine imposed for the quashed conviction was set aside. Mr Webb was released from prison after serving seven months and served the balance of his sentence under some form of restriction. The fines and pecuniary penalties were paid.
Mr Webb resumed the running of this business following his release. He sold the business for a considerable sum in 2003 and then started a business of operating restaurants, again with considerable success. Mr Webb says, with some support from letters from his accountants, that he has complied with the revenue laws since his release and that the taxation affairs of his companies are regular and in order.
As I have said, in December 2009 Mr Webb applied, under s 29 of the Australian Citizenship Act 2007 (Cth) to become an Australian citizen again. It is common ground that, in Mr Webb’s circumstances, eligibility for resuming Australian citizenship is governed by s 29(3) of that Act. It provides, relevantly:
“(3) A person is eligible to become an Australian citizen again under this Subdivision if:
(a) the person ceased to be an Australian citizen under:
(i) section 17 (about dual citizenship) of the old Act; or
(ii) …
(b) if the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.”
The delegate was not satisfied that Mr Webb was of good character and the application was refused.
The case for the Minister was that I also ought not to be so satisfied. The fact of the convictions, the seriousness of the criminal conduct and the period of time over which the fraud was practised were particularly relied upon as pointing to the conclusion that insufficient time had elapsed from the convictions. That submission picks up a statement in the Australian Citizenship Instructions, a policy document adopted for the purpose of considering applications where a question of good character is involved. That document proceeds on the footing, sensibly, that serious criminal conduct can provide evidence that a person is not of good character. It says, in relation to persons with a criminal record,
“A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good behaviour.”
Mr Webb says that a reasonable time has passed. He points to the fact that by virtue of the Rehabilitation of Offenders Act 1974 (UK) and the passage of time he is what that Act describes as a “rehabilitated person” and thus, in the United Kingdom, is entitled, subject to some exceptions, to be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences. Commonwealth statute law provides a similar mechanism, in Part VIIC of the Crimes Act 1914 (Cth), by virtue of which those whose convictions are spent are not required to disclose to any person, for any purpose, the fact of having been charged, or the fact of having been convicted: see s 85ZV(2) . However one of the exceptions to that regime, provided for in s 85ZZH of the Crimes Act, is in relation to the disclosure of information, or the taking into account of information, in relation to a decision under the Australian Citizenship Act.
There is a further irony, relied upon by Mr Boccabella, counsel for Mr Webb, and that is that if Mr Webb had obtained citizenship of the United Kingdom after April 2002 no application for resumption of citizenship would have been necessary because s 17 of what was, at that time, called the Australian Citizenship Act 1948, had been repealed and the acquisition of another nationality no longer had the consequence that Australian citizenship ceased.
Mr Webb has provided an impressive array of character references from friends and business associates that attest to knowledge of the fact of his criminal conduct but yet regard him as a person of good standing. It was said of them by Mr Moloney, the solicitor for the Minister, that they do not, on their face, demonstrate a detailed understanding of the circumstances of the offence. That may be right but, as it seems to me, they demonstrate knowledge that Mr Webb was convicted and sent to gaol for 18 months for tax fraud. That, I would have though, is all one needs to know.
There is no doubt that Mr Webb’s offences are serious and that the conduct was maintained over a considerable period of time: the judgment of the Court of Appeal suggests that a sentence of four and a half years imprisonment would have been called for but for some particular matters of mitigation. That said, I am satisfied that Mr Webb has since then complied with his obligations under the law and that he has learned from the experience of the convictions and subsequent gaoling. In my judgment sufficient time has elapsed. Mr Webb’s conduct since then, and in particular, the absence of any further wrongdoing, is such as to persuade me that the convictions were out of character.
It is, I consider, relevant that Mr Webb, in the country in which he resides, is regarded as not having committed the offences. That said, the fact and circumstances of the offences cannot be ignored and must be considered as part of any determination whether Mr Webb is a person of good character. And I also consider it relevant that Mr Webb is required to make this application because his Australian citizenship ceased by operation of a provision which the Parliament has now chosen to repeal.
In the result, and having regard to Mr Webb’s circumstances, I am persuaded that he is of good character, notwithstanding his earlier criminal conduct. I would set aside the decision under review and remit the matter to the respondent with a direction that the applicant satisfies the good character requirement of s 29(2)(b) of the Australian Citizenship Act.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         ...........Signed............................................................
  Associate
Date of Hearing  19 May 2011
Date of Decision  19 May 2011
Counsel for the Applicant         Mr L Boccabella
Solicitor for the Respondent     Clayton Utz