Zapata and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 170

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 170

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2001/406

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CARLOS MARIO ZAPATA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date21 February 2003

PlacePerth

Decision The decision under review is affirmed.

[Sgd The Hon C R Wright QC)

Deputy President

CATCHWORDS

Citizenship – application for Australian Citizenship – permanent resident of Colombian origin – convicted of wounding, deprivation of liberty and sexual assault – sentenced 14 years imprisonment in 1988 – was he of “good character” in 2003 -  discussion of effect upon good character of sentence for serious crimes.

Migration Act 1958 – ss55, 13(1)(f)

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

REASONS FOR DECISION

21 February 2003 The Hon C R Wright QC., (Deputy President)  

Facts

1.      The applicant seeks a review of the respondent’s decision refusing his application for Australian citizenship made on 22 October 2001.

2.      On 12 July 1957 the applicant was born in Colombia, South America.    On 20 December 1982 the applicant  arrived in Australia in order to marry his fiancée, Licinia Agudelo.   He was granted a Temporary Entry visa valid until 20 March 1983.  On 25 December 1982 the applicant married Licinia Agudelo.   On 25 December 1983 the applicant was granted a Permanent Residency Visa.  

3.      In 1987 the applicant and his wife divorced.   There was one child of the marriage, Fabio, who was born on 14 February 1984.

4.      On 10 January 1988 the applicant committed the offences of 1 count of unlawful wounding of an 18 year old male, 2 counts of deprivation of liberty and 6 counts of aggravated sexual assault relating to the abduction of an 18 year old female from Fremantle.

5.      On 8 September 1988 the applicant was convicted in the Supreme Court of Western Australia of:

·     1 count of unlawful wounding (sentenced to 18 months imprisonment);

·     2 counts of deprivation of liberty (sentenced to 18 months imprisonment on each count);

·     6 counts of aggravated sexual assault (sentenced variously to 11 or 14 years upon each count.)

The sentences were concurrent and, in total, the applicant was effectively sentenced to a total of 14 years imprisonment with parole.

On 22 December 1988 the applicant’s appeal against the sentences imposed on 8 September 1988 was dismissed.

6.      In February 1990 the applicant was informed that as a result of his convictions he may be deported upon the completion of his sentence.

7.      On 30 March 1990 whilst in prison the applicant married Debra McCarney.

8. On 11 May 1993 the Department of Immigration, Local Government and Ethnic Affairs wrote to the applicant advising that his conviction made him liable for deportation pursuant to s55 of the Migration Act 1958 (“the Act”).   However on 14 June 1993 the applicant was informed that the Minister had decided on that occasion not to order the applicant’s deportation.   On 17 June 1993, a warning was issued to the applicant at Albany Prison that if he had any further convictions, the Minister would reconsider the question of his deportation and disregard of this warning would weigh heavily against him.

9.      Whilst in prison the applicant completed several English competency and TAFE courses and attained qualifications as a cabinet maker.   On 15 April 1995 the applicant was released on parole.   The applicant’s full sentence expired on 7 September 2002.

10.     The applicant has been regularly employed as a machinist and he has not re-offended since his release from prison.

11.     On 10 November 1997 the applicant lodged an application for Australian Citizenship which was refused on 15 January 1998 on character grounds.   On 11 March 1999 the applicant filed a further application for the grant of Australian citizenship.    The applicant telephoned the Department of Immigration and Multicultural Affairs on 21 March 2001 in relation to the progress of his application saying he wanted to sponsor a relative from Colombia as the political situation there was worsening and he was anxious to become a citizen so that he could do so.

12. By letter dated 22 October 2001 the respondent’s delegate informed the applicant that his application for a grant of Australian citizenship had not been approved because the Minister was not satisfied that the applicant met the requirement of good character under s13(1) of the Act. On 19 November 2001 the applicant applied to the AAT to review that decision.

13. By letter dated 28 November 2001 the respondent’s delegate gave notice to the applicant of the respondent’s intention to consider cancelling the applicant’s permanent residency visa under s501(2) of the Act. By letter to the Tribunal dated 21 December 2001 the respondent sought an adjournment of the present proceedings until the question of the applicant’s permanent residency had been resolved.

14. By letter to the Tribunal dated 30 January 2002 the respondent indicated that he had decided not to cancel the applicant’s visa under s501 of the Act at that time and withdrew his request for an adjournment of these proceedings.

Law

15.     An applicant for Australian citizenship must satisfy the Minister that he is of good character (s13(1)(f)).   If he is unable to do so, he is not entitled to a certificate of citizenship.

16.     The meaning of “good character” in such a context has been discussed in many decisions of the Tribunal and the courts.    Perhaps the best known definition is to be found in the judgment of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where he said @ p.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.”

17.     It is particularly apt to remember this definition in the circumstances of the present matter because a substantial part of the applicant’s case consists of favourable references, both written and oral, provided by persons who are friends or relatives of the applicant expressing their personal assessments of his present character.   Whilst such evidence is by no means irrelevant as it may provide useful factual material from which the Tribunal may draw appropriate inferences, their subjective assessments of his good standing are of limited value to the proceedings.

18.     Guidance as to factors to be taken into account in making a character evaluation is to be found in the Australian Citizenship Instructions.   The Tribunal should have regard to these instructions unless there are strong reasons why it should not (see Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634.

The Applicant’s Conduct since January 1988

19.     In the early hours of the morning on 10 January 1988, the applicant and a male friend, Atilio Vergara, committed a series of dreadful criminal offences in Fremantle.   Both had been drinking heavily.   The applicant was a passenger in Vergara’s car.   The applicant was aged 31 years at the time and Vergara was 30 years old.

20.     The relevant sequence of events and a description of their shocking crimes can best be told in the words of Mr Justice Seaman who sentenced them both upon their convictions for the respective offences upon which they had been jointly charged.

His Honour said:

“Stand up, please.   Now, you Vergara by your pleas of guilty and you Zapata by your pleas to some of the counts and the verdict of a jury upon others, have been found guilty of one count of unlawful wounding, two counts of deprivation of liberty, and six counts of sexual penetration, and a judgment of conviction on each count is entered against each of you accordingly.   The circumstances of these series of offences is that in the early hours of 10 January this year, an 18 year old girl was sitting in her car talking to her 18 year boyfriend in the car-park outside a Fremantle night-club which they had recently left.   You had both been drinking heavily, and on arriving in Fremantle in Vergara’s car, one of you asked a passing couple where to go at that time of night, and one of you asked if there was a brothel in town.   Vergara was driving when his car entered the night-club car-park and collided slightly with the girl’s car, and Mr Bowden has persuaded me that I should not treat what then followed as something that was premeditated before that time.

When the young couple got out because of the accident, you Vergara, invited the young man to sit in your car to take down the details, whereupon you put a neck lock on him and held a knife to his throat, and you Zapata, forced the girl into the back of the car where the seat was folded down.

The boy struggled with you, Vergara, and you wounded him in the arm with the knife.  The girl struggled with you Zapata, and you covered her head with a sheepskin rug to stop her screaming.   The car doors were shut and you Vergara held the knife to the boy’s throat and forced him to strip, threatened to kill him, tied his hands behind his back, blindfolded him and pushed him out of the car, before driving off to some place where you changed places with Zapata who by this time had a bleeding thumb, bitten by the girl.   Then you, Vergara, held a knife to the girl’s throat and made her strip, then you hit her in the stomach, blindfolded her, stripped yourself, and penetrated her with your penis while you, Zapata, drove the car.   Then you, Zapata, changed places and penetrated her with your penis while you, Vergara, drove.   At some later stage, the car was stopped and you Vergara, lay on your back, pulled the girl on top of you and penetrated her vagina while you, Zapata, lay on top of the girl and penetrated her anus with your penis despite her cries of pain.   Then you, Zapata, drove the car while you, Vergara, forced oral sex on the girl and then penetrated her vagina with your penis, hitting her with your fists because she, a virgin until you raped her, “wasn’t doing it right”..    You also hit her across the face and knowing from his belongings the address of the boy, threatened to kill him if the girl contacted the police.   Throughout, the girl’s shirt was covering her face, you tied her hands behind her back and pushed her out of the car, making her lie down in the grass.   You both then drove away, together vandalised the car and abandoned it and you, Vergara, reported it to the police as stolen because the girl had told you she had memorised the number-plate.   You told your wife to lie about your whereabouts on that night.   Only intensive police work eventually identified your involvement, despite your denials and ultimately, after much lying, each of you made a record of interview, which admitted your activities.  The nine joint counts constitute an appalling set of crimes against two young people.  Because of the please of not guilty by Zapata they had had to relieve that experience in the witness-box and it was plain to me that they found it very difficulty to have to speak of it.   They were both subjected to a life-threatening and terrifying experience; they were both physically harmed, and the extent to which this 18 year old girl’s life is damaged, remains to be seen, but I proceed upon the basis that you have put her at risk of permanent emotional harm.

The circumstances of your respective sexual penetrations were both brutal and depraved and it is a particular sorrow that an 18 year old virgin should have been the victim of them accompanied as they were by threats of death.  The only appropriate disposition of your crimes is a substantial custodial sentence.”

21.     His Honour also reviewed material relating to the present applicant’s character and antecedents which he took into account when passing sentence.  This is part of what he said:

“Now you, Zapata, are just 31, have no convictions and were supporting your small son.   You came here from Colombia in 1982 to join your fiancee whom you married and who divorced you.   All your family remain in Colombia, where you were trained as a maintenance fitter.  Except for a period when you were learning English you have been fully employed in a number of fairly menial tasks in Australia.   Your counsel has produced references which show you as hard working and a well-liked man, and some care has gone into obtaining your references and I give some weight to the reference from your divorced wife and your former mother-in-law as to your character, during your marriage and before.   You are not a citizen here, and your future, upon release from prison is a matter for the Commonwealth authorities.   Mr Luckman has persuaded me that there is some difference, although small, between your participation and that of Vergara.   He used somewhat more violence; it was he who had the knife, and he who made the threats to kill.   Furthermore, you are first offender with some reasonable evidence that you have in the past been a hard working man of good character.”

22.     There can be no dispute that although Seaman J’s task was very different from mine he was correct in saying that up until the applicant’s conviction he was a man of good character.   However such an assessment is now otiose.   Past good character may weigh heavily in the scales when sentencing an individual for a crime, but when it comes to obtaining Australian citizenship an applicant must be able to show that at the time of application and assessment he is of good character.   It is not a question of giving him another chance or exercising a discretion in his favour.   He must demonstrate that he is a person of good character.

23.     I listened carefully to the evidence presented in the applicant’s favour at the hearing on 6 February 2003.   I have no doubt that the applicant is held in good, if not high, regard by those who gave evidence on his behalf, although it was clear that none of the 3 viva voce witnesses had a full knowledge of the details or the seriousness of the crimes of which he was convicted.

24.     I accept their evidence that he is not a heavy drinker and is of a gregarious and sociable nature.

25.     Prior to his imprisonment the applicant had been in a relationship with Ms Debra Carney.  She supported him after his conviction and visited him in prison.   They were married in the prison on 30 March 1990, but were divorced in 2002.  He visited Colombia to see his sick elderly mother and stayed away for 11 months.   In the meantime his wife formed another relationship and on his return they separated.

26.     His son Fabio, now 17 years old, live with the applicant until December 2002 when he (Fabio) moved into a flat with a friend.

27.     The applicant is now living alone although he has a good and supportive neighbour Gonzalo Ramirez Cardona who sees quite a lot of him.   Mr Cardona who gave oral evidence says that the applicant is respectful and properly behaved in the presence of the female members of his family, and he has no qualms about their being alone in the house with the applicant.

28.     Mr Jorge Soria gave similar evidence.

29.     During his sojourn in prison the applicant undertook a sex offenders treatment programme under the guidance of Mr Graham Emery, a psychologist, employed by the WA Department of Corrective Services.   Mr Emery has given two written assessments of the applicant dated 15 June 1992 and 4 May 1993 respectively.  The substance of each report is as follows:

“15 June 1992

Carlos Zapata has undertaken a sex offenders treatment programme at Albany Regional Prison.

The course continued for approximately 12 months with ongoing counselling. Zapata proceeded very well with most aspects of the course, however there was a fundamental denial of his crime which he was unable to come to terms with.   This plateau was overcome by discontinuing counselling for a number of months until he became angry enough to confront the issue.

The denial was passive in that Zapata admitted he had committed the crime and that he was genuinely sorry but the discount was that he was really a good man who been led astray by others.

When counselling recommenced his anger allowed him to accept personal responsibility for the crime and he acknowledged that he was a rapist.

Following this breakthrough Zapata moved through the remainder of the programme in a positive and constructive manner.   He has resolved many issues in his marriage as well as issues around his offending behaviour.

Zapata has developed good communication skills and has a good rapport with his wife and two step children.   He is moving towards a lifestyle which will reduce his contact with high risk situations.   However, if he does come into contact with high risk situations he has positive solutions to help him deal with them.

Zapata has successfully completed sex offenders treatment programme and has, in my opinion, a low risk of reoffending.”

“4 May 1993

In relation to Zapata’s chances of reoffending, a number of factors appear relevant.

The offence was uncharacteristic and it does not reflect a personality disorder or an ongoing offending cycle.

Zapata has a quiet demeanour and is well suited to pursuing a family life with his wife and step children.   His wife has a strong and stable personality and their relationship is a long term one which has strengthened during Zapata’s imprisonment.

Zapata has undertaken and successfully completed a relapse prevention programme and as a result is able to identify problem areas and high risk situations.

Bearing these factors in mind I consider Carlos Zapata has a very low risk of reoffending.”

30.     It will be noted that Mr Emery’s assessment of the applicant’s prospects of re-offending are coloured to a significant degree by his understanding of the ongoing relationship between the applicant and his second wife and her children.   Those relationships have now broken down and in light of this, I doubt that Mr Emery’s prognosis would be as sanguine now as it was in 1993.

31.     On the other hand it must be emphasised that the applicant has not re-offended since his release from prison in 1995.

32.     The applicant remains on good terms with his first wife Licinia, but despite her wishes that they remarry he has declined to do so.

33.     The applicant portrays himself as a normal man living a quiet life, enjoying food fellowship and the company of his friends.

34.     However, as I have pointed out the essence of good character is to be found in the enduring moral qualities of an individual.   He does not have to be a saint and may have the normal character blemishes of an ordinary adult Australian male.   Fifteen years ago the applicant committed a prolonged series of offences of unspeakable depravity against an 18 year old virgin and severely assaulted her 18 year old male companion.   He was a mature man at the time.  His only explanation is that he was drunk and under the influence of his aggressive companion.

35.     Mr Justice Seaman adjudged that he should be imprisoned for 14 years – a sentence which in the event of parole and other remissions would reduce by about half.   The Court of Appeal dismissed an appeal against that sentence and, in my own respectful opinion, it was not a day too long.

36.      The nominal duration of the sentence did not come to an end until September last year, about 4 months ago.   I do not lose sight of the fact that the applicant has been at large in the community since 1995, but in my opinion sufficient time has not yet passed for him to be regarded as a man of good character.   Such a time will not come in my opinion for several years yet.

37.     It may well be that he will never be regarded as a person of good character by right thinking Australians.   A reminder of his evil and depraved conduct on 10 January 1988 may well cause fear and disgust to any objective and fair minded person called upon to assess his character.

38.     Such conduct cannot be put aside as past history or a “spent” conviction to be disregarded or ignored.   It is a permanent and indelible stain on his character which in my opinion will only be overcome, if at all, by constant and exemplary conduct over a very long time.

39.     In reaching this conclusion I note that the applicant is not under threat of deportation and has not had his permanent visa cancelled.   The Minister has already considered the prospect of deportation and decided against it.   The applicant has permanent residency still, so my decision deprives him of nothing but his actual expectation of Australian citizenship.

40.     In my opinion the decision under review should be affirmed.   I so determine.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:   K L Miller  (        Administrative Assistant)

Date/s of Hearing  6 February 2003
Date of Decision  21 February 2003
Applicant represented by          Umberto Hernache        
Counsel for the Respondent     Ms Wallwork 
Solicitor for the Respondent     Blake Dawson Waldron