Wheeder and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 30

Wheeder and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 30 (14 January 2020)

Division:General Division

File Number(s):      2019/0842

Re:George Wheeder

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr N A Manetta, Senior Member

Date:14 January 2020  

Place:Adelaide

The Tribunal affirms the decision under review.

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Dr N A Manetta
(Senior Member)

Catchwords

CITIZENSHIP – whether applicant of good character – where convictions for fraud – where applicant knowingly made false assertion in statutory declaration in support of his citizenship application –– decision under review affirmed.

Legislation
Citizenship Act 2007 (Cth)

Statutory Declarations Act 1959 (Cth)

Cases

Wheeder v. Verity [2015] NTSC 34
Irving v. Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

REASONS FOR DECISION

1. This is an application by Mr George Wheeder seeking a review of a decision of the Respondent’s delegate that he was ineligible to be granted citizenship because he was not of good character when his citizenship application came to be considered in February 2019: see s 21(2)(h) of the Citizenship Act 2007 (Cth).   At the hearing before me, Mr Wheeder represented himself; Mr Retallick appeared for the Respondent.

2. Hearing the matter afresh on the evidence before me, I am required to decide one issue only; namely, whether Mr Wheeder was of good character at the time his application was considered.[1]  The proceeding is a de novo hearing on the merits; that is, I must reach the correct or preferable decision on the evidence before me. I need not find any error in the Respondent’s delegate’s decision before reversing it.  Equally, I may affirm the decision, if that is the appropriate course to take, notwithstanding any error in it.  

   [1] The legal question of whether the Tribunal should make its assessment as at the date of the hearing (as opposed to the date of the Minister’s consideration of the citizenship application) was not relevant in this case and was not the subject of submissions by either party.  

   STATEMENT OF CONCLUSION

3. I have decided to affirm the decision under review. Below I set out the salient background facts and my reasons for the conclusion I have just stated. As Mr Wheeder was not represented, I shall express myself as plainly as possible.

   FACTS

4. Mr Wheeder gave evidence before me.  He was born in Liberia in West Africa in 1980 and emigrated to Australia in February 2010.  Mr Wheeder came to Darwin with the intention of studying Civil Engineering at Charles Darwin University. He commenced his degree in 2010 but did not finish it.

5. Mr Wheeder’s partner at that time was an Australian citizen he had first met in east Timor while they were both working there. They lived together in Australia.  I understand from Mr Wheeder’s evidence that he and his partner separated in 2012.  Since that time, Mr Wheeder has met and married a new partner and continues to live in the Northern Territory.  He is a stepfather to two daughters, aged 15 and 22.

6. Mr Retallick raised two instances of criminal offending that he submitted justified a conclusion that Mr Wheeder was not of good character. One of these involved a fight at a soccer field. This incident occurred in 2012. Mr Wheeder was charged with assault and found guilty, but no conviction was recorded. In the circumstances, I do not need to consider this behaviour further.

7. The second instance of offending comprised two acts. Mr Wheeder defrauded the Darwin City Council, his employer, on two occasions in 2012 by transferring a large sum to the bank account of a person with whom he was sharing rented accommodation.  The sums in question were $3,000 and $8,150.

8. The frauds arose in the following circumstances.  Mr Wheeder was responsible for authorising the payment of invoices rendered by contractors engaged by the Council to perform infrastructure work.  Mr Wheeder, having authorised the payment of a bogus invoice, was convicted of deliberately securing the transfer in 2012 of $3,000 to his co-tenant’s account in circumstances where no work for that sum had been invoiced by the contractor.  On the second occasion, a month later, a sum of money, $8,150, was again authorised to be paid by electronic transfer to Mr Wheeder’s co-tenant’s account for work said to have been performed by a contractor but where no such work for that sum had been performed by the contractor.

9. Mr Wheeder represented himself in the criminal trial in the Magistrate’s Court and pleaded not guilty. His evidence was that the two amounts in question were in fact owed by the Council to the two contractors and were mistakenly authorised by him to be paid to his co-tenant.  This explanation was rejected by the Magistrate, and Mr Wheeder was found guilty of having intentionally defrauded the Council.[2]  

   [2] The charge on each count was “obtaining by deception a benefit for another” from the Council.

10. Mr Wheeder appealed his sentence (but not apparently his conviction) to the Supreme Court of the Northern Territory.  Acting Justice Mildren dismissed the appeal in the event.[3] The Judge referred to the fact that all the circumstances of the case pointed to Mr Wheeder’s having conspired with his co-tenant to defraud the Council.[4]  He had referred earlier in his reasons to the fact that his co-tenant had withdrawn the transferred sums very soon after they were deposited in her account[5] even though, on Mr Wheeder’s case, she would not have been expecting them to be there.  Mr Wheeder’s defence also impugned the honesty of the two contractors, who denied that they had rendered the invoices attributed to them. 

    [3] Wheeder v. Verity [2015] NTSC 34.

    [4] Ibid, p. 23.

    [5] Ibid, p 4.

11. In connection with his application for citizenship, Mr Wheeder took the formal step of making a statutory declaration under the Statutory Declarations Act 1959 (Cth).[6]  In his declaration, Mr Wheeder specifically denies any intent to defraud the Council.[7] He says that he pleaded not guilty to the charges because he felt there had been a mistake and says further that there was “no way I had intentionally planned to rob my employer”.[8] Mr Wheeler does acknowledge in his declaration that he was in fact convicted, but he clearly declares that he is innocent of deliberate wrongdoing.

    [6] Ex R1, pp 83-85.

    [7] Ibid, pp 83 to 84.

    [8] Ibid, p 84.

    REASONS

12. I accept Mr Retallick’s submission that the circumstances in which this Tribunal should question a conviction will be rare; but I would note that there is nothing in the evidence before me in any event to suggest that the convictions were wrong. 

13. It is a well-established principle that offending over time may cease to impinge negatively on the question of “good character”.  A person may demonstrate a significant period of non-offending, so as to reduce, or eliminate, the negative impact of past criminal behaviour on his or her character assessment. As is pointed out in one authority:

    “A person who has been convicted of a serious crime and thereafter held in contempt in the community may show that he or she has reformed and is of good character…”[9]

    [9] Irving v. Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 432 (Lee J).

14. In normal circumstances, therefore, one question that would have arisen is whether at the time the Minister’s delegate considered the application, Mr Wheeder was of good character, notwithstanding the frauds he perpetrated in 2012, because the significant lapse of time between his last offence and the date of his application proved he had reformed himself.

15. I need not consider this question, however, because there is a further factor which is, in my opinion, decisive.  Mr Wheeder’s statutory declaration raises serious concerns.   The declaration repeats the implausible defence of mistake Mr Wheeder raised in his trial and which was rejected by the Magistrate. I have referred to the terms of the declaration at para [11] above. In the circumstances of this case, I find that Mr Wheeder deliberately made the declaration knowing it to contain a false assertion; that is, I do not believe he genuinely believes he is innocent of the charges of which he was convicted.  I also note that Mr Wheeder did not seek to resile from the falsity of the declaration in his submissions to me: to the contrary, he reiterated the position stated in the declaration.

16. Accordingly, I act on the basis that Mr Wheeder deliberately chose to make a false declaration to support his citizenship application.  This factor affects the question of Mr Wheeder’s good character.  That the making of a false declaration knowingly is a serious criminal offence is referred to in the text immediately above Mr Wheeder’s signature and in the notes to the form. In my opinion, the decision by Mr Wheeder to support his application for citizenship by making a false statutory declaration is a significant matter that has proved decisive of his application to the Tribunal.

17. I have considered, and taken into account, Mr Wheeder’s submissions that he has reformed his life and that he has not been convicted of any offences other than those to which I have referred.  I have also taken into account the character references he asked me to consider;[10] but the making of the false statutory declaration in 2018 in support of his citizenship application has proved, as I say, decisive.

    [10] Exs R1 (pp 87-92), A2, A4, and A5.

    FORMAL DECISION

18. The Tribunal affirms the decision under review.

I certify that the preceding   eighteen (18) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member

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Administrative Assistant Legal

Dated  14 January 2020

Date of hearing:   29 November 2019

Applicant’s Representative:               In person

Respondent’s Representative:          Mr C Retallick, Australian Government Solicitor