White and Minister for Immigration and Border Protection (Migration)
[2016] AATA 773
•30 September 2016
White and Minister for Immigration and Border Protection (Migration) [2016] AATA 773 (30 September 2016)
Division
GENERAL DIVISION
File Number
2015/3418
Re
Dianne White
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member Tavoularis
Date 30 September 2016 Place Brisbane The decision under review is affirmed.
.........................[sgd].......................................
Senior Member Tavoularis
Catchwords
CITIZENSHIP – eligibility – where application for Australian citizenship refused – good character requirements –where Applicant has committed a number of minor offences over several years – where Applicant was addicted to pain killing medications – where offending was not disclosed – whether mitigating factors exist – where Applicant has not provided evidence of rehabilitation – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth), s 21(2)(h)
Cases
Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 411
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
I-Pei Tsai and Minister for Immigration and Border Protection [2016] AATA 411
HSXY and Minister for Immigration and Border Protection [2016] AATA 560
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Silsby and Minister for Immigration and Citizenship [2007] AATA 1729Secondary Materials
Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character
Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, 1 June 2016, Chapter 11-Character
REASONS FOR DECISION
Senior Member Tavoularis
30 September 2016
INTRODUCTION
This is an application for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) dated 18 June 2015 to refuse Ms Dianne White’s (“the Applicant”) application for Australian citizenship. This refusal was on the ground that the delegate was not satisfied that the Applicant met the “good character” requirement contained in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”). The Applicant has sought review of that decision by this Tribunal. For the following reasons, I affirm the delegate’s decision.
BACKGROUND
The Applicant is 52 years of age. Born in Liverpool, England, she arrived in Australia in late 1968.
She applied for citizenship by conferral in September 2013.
Information obtained from a police check revealed that on various dates between 2003 and 2010, she was before the Toowoomba Magistrates’ Court on five separate occasions:[1]
[1] Exhibits 7-11, Queensland Police Criminal History; Exhibit 1, T-Documents, T20, 60-61.
(a)18 July 2003: On a charge of wilful damage, to which the Applicant entered her own plea of “guilty”. By way of penalty, the Court ordered:
(i)The imposition of a fine in the sum of $200;
(ii)In default of paying the fine, the Applicant be imprisoned for four days;
(iii)That she be allowed a period of three months to pay the fine;
(iv)That the sum of $72.50 be paid by way of restitution; and
(v)That no conviction be recorded.
(b)14 November 2006: On two charges of stealing and one charge of fraud to which the Applicant entered her own plea of “guilty”. By way of penalty, the Court ordered:
(i)The imposition of a fine in the sum of $300;
(ii)In default of paying the fine, the Applicant be imprisoned for six days;
(iii)That she be allowed a period of three months to pay the fine;
(iv)That the sum of $50 be paid by way of restitution; and
(v)That no conviction be recorded.
(c)9 January 2007: On a charge of contravening a direction or requirement of a Police Officer, to which the Applicant entered her own plea of “guilty”. By way of penalty, the Court ordered:
(i)The imposition of a fine in the sum of $180;
(ii)In default of paying the fine, the Applicant be imprisoned for three days;
(iii)That she be allowed a period of three months to pay the fine; and
(iv)That no conviction be recorded.
(d)15 February 2008: On a charge of unlawful possession of weapons, to which the Applicant entered her own plea of “guilty”. By way of penalty, the Court ordered:
(i)The imposition of a fine in the sum of $350;
(ii)In default of paying the fine, the Applicant be imprisoned for seven days;
(iii)That she be allowed a period of four months to pay the fine; and
(iv)That no conviction be recorded.
(e)24 August 2010: On a charge of attempted fraud, to which the Applicant entered her own plea of guilty. By way of penalty, the Court ordered:
(i)That the Applicant be held on a period of probation for eighteen months; and
(ii)That no conviction be recorded.
On 18 June 2015, the Applicant’s application for citizenship was refused on the basis that the delegate was not satisfied the Applicant was of good character for the purposes of the Act.[2] On 7 July 2015, the Applicant lodged an application for a review of the delegate’s decision with the Tribunal.
[2] Exhibit 1, T-Documents, T20, 52-59.
Before considering the merits of this matter, I will address the scope of the key legislative provision for this case.
THE LEGISLATIVE FRAMEWORK
Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied, inter alia, that the person “is of good character at the time of the Minister’s decision on the Application.”
The Act does not specify the meaning of the words “good character”. However, there is strong authority supporting the idea that the phrase should be used in its ordinary sense. That is, it is 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”.[3] A determination of whether someone is of good character necessitates the “consideration of an aggregate of qualities”.[4] Further, the “enduring moral qualities” of which good character speaks “must be demonstrated objectively over a sufficient period”. The length of time to be considered is not specified; rather, it turns on the circumstances of the individual case.[5]
[3] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 (Lee J).
[4] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald).
[5] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] (Senior Member Toohey).
The Minister adopted the Australian Citizenship Instructions (“ACIs”) to provide guidance to decision-makers on the scope and exercise of their powers under the Act. Most important for present purposes is Chapter 10, which deals with assessments of character.
The ACIs are not the only policy document that is relevant to the facts of this case. The Minister’s Department issued the Australian Citizenship Policy (“ACP”) on 1 June 2016. The ACP replaced the policy guidance content previously provided by the ACIs. The relevant part of the ACP is Chapter 11.
The difficulty that arises is that the Applicant lodged her application before publication of the ACP (i.e. while the ACIs were still the official policy guidance), but the hearing was held, and the decision was reserved, on 2 August 2016. The decision of the Tribunal in HSXY and Minister for Immigration and Border Protection provides some guidance on this item.[6] In that decision, Senior Member Cotter noted that:
…notwithstanding the introduction of the ACP, the ACP and ACIs operate side by side as policy and operational instructions. In the event of inconsistency with respect to policy guidance, the ACP is to be preferred.[7]
This point was also considered by Senior Member Poljak in the matter of I-Pei Tsai and Minister for Immigration and Border Protection.[8] Relevantly, SM Poljak observed:
…I am considering this matter afresh (de novo) and although the ACIs were the relevant policy guidance at the date the decision was made, the relevant policy from 1 June 2016, and at the time of the hearing, was the Citizenship Policy [ACP]. In any event, whichever policy I consider makes very little difference to the decision I am tasked to make. Both documents are similar on the aspects relevant to this matter.[9]
As there is no inconsistency between the two instruments on the point in question here, however, the point is moot, and I will refer to provisions in both the ACP and ACIs where need be.
[6] [2016] AATA 560.
[7] Ibid, [12].
[8] [2016] AATA 411.
[9] Ibid, [7].
As the instruments are a reflection of government policy, neither is binding on this Tribunal. That does not mean, however, that they should not be applied by this Tribunal. Indeed, there is considerable authority suggesting this Tribunal should apply the government’s policy unless there is a cogent reason to the contrary.[10] No such reason has been brought to my attention, so I will apply the ACP and ACIs here.
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-645 (Brennan J).
The ACP defines “good character” as:
…the enduring moral qualities of a person, and is an indication of whether an applicant is likely to respect and obey the laws of Australia and other commitments through the pledge should they be approved for citizenship.[11]
[11] ACP, page 145 of 237; correspondingly to be found at Chapter 10 of the ACI, specifically, Chapter 10-Chracter, paragraph 10.3.1.
On the point of “good character” as a concept necessarily involving “enduring moral qualities”, the ACIs separate “moral” in this context from any religious connotations it may otherwise have. Instead, it is defined as encompassing:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.[12]
The requirement of good character goes to the core of the Applicant. Thus, the Applicant’s behaviour is to be regarded as a manifestation of her essential characteristics. Further, the ACIs note:
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting qualities that are evident before their visa application and throughout their migration and citizenship process.[13]
[12] Exhibit 1, T-documents, PT 20, Australian Citizenship Instructions, page 65; Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character, paragraph 10.3.1.
[13] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character, paragraph 10.3.1.
The ACIs then set out the characteristics that an applicant of good character would have, including amongst other things:
·respect and abide by the law in Australia and other countries;
·be truthful and not practice deception or fraud in their dealings with the Australian Government or other governments and organisations, for example, concealment of convictions that could lead to cancellation or refusal of citizenship; and
·not be violent… and not cause harm to others through their conduct.[14]
[14] Ibid, paragraph 10.3.4.
In addition to the above, paragraph 10.5 of the ACIs establishes a framework within which “good character” decisions should be made. Paragraph 10.5.2 of the ACIs provides a non-exhaustive list of considerations for decision makers to take into account in making this assessment. The precise weighting of the factors is dependent on the circumstances of the case.
There are two sets of considerations that are most relevant to the present facts. First, one should look to the applicant’s behaviour to assess why they might not be of good character. Second, one should look to mitigating factors to establish if, in spite of their behaviour, the applicant might be of good character regardless.[15] The assessment of these factors must not be made in accordance with the decision maker’s own personal standards. Rather, it is to be judged by community standards. In making this consideration, a decision maker must, by examining these various factors, come to a conclusion based on the aggregate of qualities shown by the applicant. Ultimately, the decision maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.”[16] The amount of time considered to be “lasting” or “enduring” depends on the merits of the case.[17]
CONSIDERATION
[15] Ibid, paragraph 10.5.2.
[16] Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, 1 June 2016, Chapter 11-Character, page 150 of 237.
[17] Ibid, paragraph 10.5.4.
The Pattern of Offending: 2003-2010
At the hearing, the Applicant admitted the totality of her criminal history. She conceded the possibility that her offending could be construed as conduct that was not consistent with a standard of behaviour expected by the Australian community.
While no convictions were recorded against the Applicant, it is not disputed that her offending would amount to a pattern of offending constituting a disregard for the law. The behavioural elements of the Applicant’s offending from 2003 until 2010 are clearly matters relevant to the issue of the Applicant’s character.
I consider it significant that the applicant’s pattern of offending spanned a period of seven years involving the commission of seven offences, none of which involved relatively minor-level offending in the realm of traffic infringements, for example. The ACIs stipulate:
[A] pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them.[18]
[18] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character, paragraph 10.5.2.
Of particular relevance to this consideration is the Applicant’s 2010 offence of attempted fraud. Whereas her other offences largely consisted of stealing and minor property damage, fraud weighs considerably more heavily against a finding that the Applicant is of good character having the element of dishonesty at its core. The ACIs consider fraud to be a serious offence,[19] and the ACP points to deception or fraud as an indicator that someone is not of good character.[20]
[19] Ibid.
[20] Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, 1 June 2016, Chapter 11-Character, page 147 of 237.
Given the relative seriousness of the conduct and the seven year period of offending – a rate of one offence per year – I agree with, and accept, the Minister’s contention that the totality of these offences negatively impact on any assessment of the Applicant’s character.[21]
[21] See Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, dated 2 June, 2016, [17]-[18].
Mitigating Factors?
That assessment, however, has to be weighed against any mitigating factors that need to be taken into account. They include:
·the length of time that has elapsed between the date of the relevant conduct or offence and the application for citizenship;
·whether the Applicant has accepted responsibility and shown remorse for her conduct;
·how the Applicant has behaved since the expiration of the 18 month period of probation imposed upon her as a part of the sentencing regime for the 2010 offence of attempted fraud;
·whether the applicant has rehabilitated herself;
·whether there were extenuating circumstances relating to the seventh incident; and
·whether there is evidence of employment and stable and/or community involvement.
The Length of Time
It may be suggested that there has been a sufficient lapse of time since the date on which the Toowoomba Magistrates’ Court dealt with the applicant for the 2010 offence of attempted fraud, that being 24 August 2010. I am not aware of any incidents since then.
Having regard to a) the nature of the offending; b) the prolonged, seven-year duration of the offending; and c) the Applicant’s age during the relevant period (38-45 years), I do not consider that sufficient time has elapsed in order for me to be satisfied as to the Applicant’s enduring moral qualities. In particular, not enough time has passed for me to be satisfied that the seven offences were simply aberrations and out of character for the Applicant. I hold this view for the following reasons.
The long pattern of offending necessarily requires the passage of a sufficient amount of time before one can be satisfied that the person is now of good character. As observed by Senior Member Toohey:
Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
…
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes. It counts in [the Applicant’s] favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of [her] good character.[22]
[22] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] and [71] (Senior Member Toohey).
In addition, I have carefully considered the Applicant’s contention that the duration and nature of her offending was primarily due to an unresolved addiction to pain killing medication. It is clear that the Applicant’s addiction to pain killers has been a long-standing one. However, the Applicant did not establish a particularly strong link between her addiction and her offending. Further, and more significantly, even if I were to accept that the Applicant’s offending was due to her drug use, there is little or no credible evidence before me that this addiction has resolved.
I am therefore persuaded by the Respondent’s contention that the nature and duration of the Applicant’s offending is of greater relevance than a) the period of time since the last offence was committed (that being June 2010); or b) the period of time since the expiry of the 18 month period of probation imposed upon her (i.e. April 2012); and c) the period since her apparent but unproven rehabilitation from addiction to pain-killing medication.
The Applicant’s Contentions About Mitigation
Both the Applicant and her husband, Colin, testified that the incidents constituting the offending behaviour were out of character for her. She readily accepted responsibility for her offending and said this type of behaviour was now behind her primarily as a result of two things:
(a)her relationship with Colin; and
(b)her apparent rehabilitation from an addiction to pain-killing medication.
I have misgivings about each of these contentions.
Before addressing the above contentions, I note that the Applicant contended in her oral evidence that her 2003 offending occurred before her drug addiction commenced. I recognise that her oral evidence was very inconsistent on this point, so I give it limited weight. However, if it is true, it weighs against the Applicant’s contentions.
The Stabilising Effect of Marriage
Implicit in the Applicant’s contention that her marriage put her offending days behind her is that it was a source of stability for her. The Applicant married Mr Colin White on 10 October 2009.[23] However, their relationship in fact began in 1998. By their own respective admissions, the Applicant’s relationship with Mr White is a turbulent one, with a continuing theme of domestic disputes.
[23] See Exhibit 1, T-Documents, T7, page 19.
In her evidence, the Applicant conceded:
(a)she and Mr White broke up and got back together many times over the years;
(b)she had taken a domestic violence order (“DVO”) out against Mr White; and
(c)this DVO was the cause of the police attending her residence in 2008, which resulted in her charge of unlawful possession of weapons.
In his evidence, Mr White conceded:
(a)he and the Applicant had quite a number of “ripper blues” (i.e. major fights) over the years;
(b)he and the Applicant had broken up and got back together on a number of occasions;
(c)he and the Applicant had major previous issues with fighting, bickering, and DVOs;
(d)four or five DVOs had been put in place against him with respect to his relationship with the Applicant (though there is uncertainty in his evidence as to whether the police or the Applicant applied for them);
(e)he had, on at least one occasion, breached the DVOs, most recently in 2008 or 2009; and
(f)he resided with the Applicant at the residence involved in her 2006 stealing offences.
Though the stabilising effect of a healthy relationship may be viewed as a mitigating factor by the Tribunal,[24] that is contingent on the relationship either changing, or indicating a change in, or being likely to change, the Applicant’s pattern of behaviour. The fact that the relationship did not have a calming influence on the Applicant during her period of offending is, to my mind, telling, as is the theme of major domestic disputes present throughout.
[24] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character, paragraph 10.5.2, page 180 of 278; see also Silsby and Minister for Immigration and Citizenship [2007] AATA 1729.
The Applicant was either in a relationship, or in contact with, Mr White for the entirety of her period of offending. Indeed, she continued to offend in the year following their marriage.[25] Not only that, but there is evidence that Mr White may have been present for two sets of offences. In the first, in 2006, the Applicant stole from the pre-furnished residence she shared with Mr White.[26] It is unclear on the evidence whether Mr White was involved in this, although in oral evidence, the Applicant claimed that someone else had helped her move the furniture that was the subject of the offending. In the second, in 2008, the police attended the Applicant’s house in relation to matters “which were Domestic Violence related”,[27] upon which they found a weapon, possession of which she was later convicted of. The Court Brief records that the Applicant stated she had the weapon to use “on her ex-partner, if he ever tried to assault her.”[28] From the oral evidence of both the Applicant and Mr White, it is apparent that he was at the time breaching a DVO by being at the Applicant’s residence. It can be surmised that the Applicant had obtained the mace to protect herself from him. This evidence points towards her relationship with Mr White not having the stabilising effect the Applicant claims it has had on her.
[25] Exhibit 11, QPS – Court Record Brief for 2010 Offence.
[26] Exhibit 8, QPS – Court Record Brief for 2006 Offences.
[27] Exhibit 10, QPS – Court Record Brief for 2008 Offence, page 2.
[28] Ibid.
In light of this evidence, I cannot conclude that the Applicant’s relationship with Mr White has been a catalyst, effecting a change in her pattern of behaviour to any positive extent.
Rehabilitation
Based on the paucity of the evidence before me, I am not satisfied that the Applicant has successfully completed a course of rehabilitation for her addiction. At the hearing, the Applicant and Mr White both contended that she had completed a residential course at the Royal Brisbane Hospital. However, I have been presented with no other evidence supporting either her full participation or due completion of that course or any other.
The only medical evidence regarding the Applicant’s addiction is a report from the Applicant’s then local medical officer, Dr Leanne Drew, dated 2 November 2014. It is evident that the Applicant did not present to Dr Drew for assistance with her drug problem. Further, this report does not disclose the commencement or completion of any programme of rehabilitation. There is only a reference to a “frank discussion re [the Applicant’s] previous history and the need for honest communication”, and the Applicant agreeing to only see Dr Drew to obtain medication.[29] There is no mention in the report of any rehabilitation program or ongoing monitoring or support from Dr Drew.
[29] Exhibit 1, T-documents, T17, page 43.
Though Dr Drew said the Applicant was only coming to see her for prescriptions that observation is both two years old, and difficult to substantiate. Dr Drew pointed to the fact the Applicant had not sought to obtain more painkillers from her before each course was due to finish to justify her conclusion. However, the Applicant has a history of “Doctor Shopping”, and attempting to gain medication by fraud.[30] In view of this history and the fact that Dr Drew was not called to give evidence at the hearing, I can only give limited credit to Dr Drew’s letter/report and the testimony of the Applicant regarding her addiction.
[30] Exhibit 11, QPS – Court Record Brief for 2010 Offence.
The Applicant has admitted to having a decades-long addiction to pain killers. I am sceptical that she would be able to kick this addiction on her own and without outside assistance. On the basis of the lack of evidence of outside help, or indeed of the Applicant rehabilitating herself, I am unable to reach the conclusion that the Applicant has either been successfully rehabilitated or is seriously engaging in a rehabilitation process.
In light of this, I find it difficult to conclude that the Applicant has accepted responsibility for her actions, even though she presents as being remorseful for them. Rather, it seems to me that she has tried to lay blame for her offending on factors not fully in her control, but has taken no serious steps to address those factors. I therefore find that these factors have no mitigating effect.
Extenuating Circumstances?
The ACIs consider extenuating circumstances to include duress or periods of psychological disturbance including the effects of medication, but not including under the influence of recreational drugs.[31] Though the Applicant’s drug use was not recreational per se, her addiction pushes this drug use out of the realm of medication and towards being recreational use. There has been no evidence of other extenuating circumstances, so I do not consider this a mitigating factor.
[31] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character, paragraph 10.5.2, page 180 of 278.
Employment, Family Life and Community Involvement
I have already discussed some of the Applicant’s family life considerations. In addition to Mr White’s oral evidence, the Applicant has submitted written character references from:
·Mr Allan Burgoyne, dated 5 November 2015;[32]
·Ms Kellie Saville, dated 28 October 2015;[33]
·Mr White himself;[34] and
·Ms Mary Ellis, dated 15 May 2016.[35]
I note that none of these references is in the form of a statutory declaration and only Mr White was called to give evidence at the hearing. This adversely affects the weight I can attach to these references.
[32] Exhibit 3, Mr Allan Burgoyne Letter dated 5 November 2015.
[33] Exhibit 4, Ms Kellie Saville Letter dated 28 October 2015.
[34] Exhibit 5, Mr Colin White Letter dated 26 June 2015.
[35] Exhibit 6, Ms Mary Ellis Letter dated 15 May 2016.
Mr Burgoyne’s letter is brief, unsigned, and, though it mentions the Applicant’s drug use, does not mention her offending. Further, as Mr Burgoyne is a family friend, he is not well-placed to independently assess the Applicant’s character. Accordingly, I give it little weight in assisting to determine whether or not the Applicant is of good character.
Ms Saville’s letter is the most detailed and the most credible of the four. It is signed and provides a detailed discussion of the Applicant’s drug use and its impact on those around her. Ms Saville reaches the conclusion that the Applicant has changed. However, it does not mention the Applicant’s offending. On balance, I accord moderate weight to Ms Saville’s observations, limited though they are.
Mr White and Ms Ellis are, respectively, the Applicant’s husband and mother. Both downplay her offending, though, unlike the other two references, they do acknowledge that offending has occurred. I am of the opinion that Mr White and Ms Ellis are altogether too close to the Applicant to provide a sufficiently objective, balanced and accurate perspective of her character. Indeed, as the ACIs note:
It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct.[36]
[36] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character, paragraph 10.6.5, page 190 of 278.
Accordingly, I give little weight to the references of Mr White and Ms Ellis.
In conclusion on this point, I do not consider any of the references to effectively mitigate the Applicant’s history. For the various reasons I have outlined above, I give them little weight. Further, to the extent that any of them are deserving of weight, they do not adequately or at all describe the Applicant’s role in the community to have any mitigating effect.
Other Matters
There are two further matters worthy of comment.
First, I have misgivings about certain representations the Applicant made in her application for citizenship. As discussed above, the Applicant has committed a number of offences over recent years. However, on her application form, she did not disclose that she had committed any. To substantiate this claim, she produced a “National Police Certificate” obtained whilst in Western Australia.
To my mind, this was disingenuous. The relevant question reads “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia…?”[37] Though no conviction was recorded for any of her offences, that does not mean she was found “not guilty” of them. However, when pressed about this at the hearing, the Applicant claimed that she thought that, as no conviction was recorded, there was no record disclosable to an inquiring party.
[37] Exhibit 1, T-Documents, T4, page 14.
Given she had appeared before the Toowoomba Magistrates Court on five separate occasions, I have difficulty accepting that the Applicant thought she did not have to disclose she had been found guilty of anything. Rather, I find that at the very least, she deliberately downplayed and misreported her criminal record based on what appeared on the face of the “National Police Certificate” she obtained in Western Australia. Even if the Applicant did not know that criminal history reporting operates on a state-based paradigm, I consider she is stretching the bounds of credibility to suggest she was not compelled to disclose her Queensland-based offending to a question dealing with “…ANY offences overseas or in Australia”. Given also that this conduct occurred after her period of offending (and, indeed, after her period of probation in April 2012), this points towards the Applicant continuing to be not of good character.
The second consideration is that any finding that the Applicant is not of good character now is not determinative of a finding that she is of good character in the future. She could apply again in the future and, provided enough time has passed and she has not reoffended, there is every possibility of her becoming an Australian citizen. Nor does an adverse finding here impact on her current permanent residency status. Consequently, I do not consider that this weighs against a potential finding that the Applicant is not of good character.
CONCLUSION
I consider and find that the following factors compel me to not be satisfied that the Applicant is of good character for the purposes of s 21(2)(h) of the Act:
(a)her pattern of offending since 2003;
(b)her less than cogent or credible evidence about successful rehabilitation from an addiction to pain killing medication;
(c)her (put at its highest) questionable conduct in the lack of disclosure of her past offending; and
(d)the less than credible evidence about an asserted absence or alleviation of domestic violence in her marital relationship, a relationship which she cited as a source of stability.
I further consider and find that none of the purported personal references tendered at the hearing carry sufficient weight or otherwise have sufficient particularity on which to ground any finding of mitigation or extenuating circumstances.
I am therefore not satisfied that the Applicant was of good character under s 21(2)(h) of the Act. Consequently, I do not believe she is presently eligible to become an Australian citizen.
I accordingly affirm the decision under review.
I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis ................[sgd].................................................
Administrative Assistant
Dated 30 September 2016
Date of hearing 2 August 2016 Advocate for the Applicant Colin White (Husband) Advocate for the Respondent Matthew Hawker Solicitors for the Respondent Sparke Helmore Lawyers
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