Cross and Minister for Immigration and Multicultural Affairs [1999] AATA 97 (22 February 1999)

Last Updated: 24 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 97

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A97/351

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL LESLIE OON HO CROSS

Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Senior Member Pamela Burton

Date 22 February 1999

Place Canberra

Decision The tribunal affirms the decision under review.

..............................................

Pamela Burton

Senior Member

CATCHWORDS

IMMIGRATION - Citizenship by descent - criminal convictions for assault arising out of one incident - suspended sentence - medical evidence that incident a consequence of post traumatic stress disorder - whether the applicant has addressed anger problem - whether the applicant is a person of good character - application of Guidelines to the Act.

Legislation

Australian Citizenship Act 1948 section 10C

Australian Citizenship Instructions, paragraphs 4.8.15 - 4.8.28.

Authorities

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

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

Re Costello and Secretary, Department of Transport (1972) 2 ALD 934

REASONS FOR DECISION

1. This is an application for review of a decision of a delegate of the respondent dated 28 October 1997 to refuse to register the applicant as an Australian Citizen by descent pursuant to the Australian Citizenship Act 1948 ("the Act").

2. The applicant was represented by Mr Boyack, his New Zealand solicitor, by telephone and video connection to New Zealand. The respondent was represented in person by Mr Vikneson and Mr Ambikapathy of the Department of Immigration and Multicultural Affairs. The applicant and his father, Mr Daniel Leslie Cross, gave evidence from New Zealand by video link.

Background

3. The applicant was born on 26 November 1972. His father is an Australian citizen, who resided in New Zealand with the applicant's mother, a New Zealand citizen, until they divorced when the applicant was 15 years old. Mr Cross senior, continued to reside in New Zealand running his business there. He said he regards Australia as his home, his residence in New Zealand being temporary. His business in New Zealand is for sale and he intends to return to Australia to live on the Central Coast (Exhibit B).

4. The applicant usually visited Australia once a year. His long held desire to move to Australia to live has until now been discouraged by his father. The applicant has a sound offer of employment in Sydney where his father's family lives (Exhibit C).

5. On 22 September 1996 the applicant was involved in an incident in New Zealand which led to him being charged with assault and a second count of wounding with intent to injure. On 6 May 1997 he pleaded guilty before the Auckland District Court. He was convicted and sentenced to one year imprisonment, suspended for a period of 18 months, and given 200 hours of community service. He has no previous record.

6. The applicant had purchased an air ticket to Australia before the commission of the offence in September 1996. He cancelled it because of the criminal proceedings. Once convicted of a criminal offence, a New Zealand citizen is required to have a visa to enter Australia. Unaware of this, the applicant flew to Sydney and on arrival was deported back to New Zealand.

7. On 11 July 1997, the applicant made an application for Australian citizenship under section 10C of the Act. The application was lodged with the Australian Consulate General in Auckland New Zealand. On the application form (T6), the applicant disclosed his recent convictions. On 28 October 1997 a delegate of the respondent denied the application for Australian Citizenship under section 10C of the Act on the ground that the applicant was not of good character. The delegate noted that at the time the application was lodged, the applicant was still serving a suspended gaol sentence.

Contentions

8. The applicant contends that he is a person of good character. He asserts that the 1996 incident leading to criminal convictions in 1997 was a "one-off" incident attributable to a chronic post-traumatic psychological stress disorder arising out of an assault on him when he was 15 years old.

9. The respondent contends that the applicant cannot be regarded as a person of good character under the Act in the presence of the recent criminal convictions. The respondent regards the application as premature and considers it appropriate for the applicant to reapply for Australian Citizenship by descent in 12 months time, and after he has addressed the psychological problems from which he suffers.

Evidence

10. The facts surrounding the applicant's convictions as presented to the Court on his plea of guilty are as follows. On 22 September 1996 the applicant accompanied his girlfriend to the Crow Bar in Auckland New Zealand. An argument took place which resulted in the applicant assaulting a barman. The applicant struck the barman (who I will refer to as the "first barman") in the right eye with a closed fist. He then punched him in the face, kicked his legs and kneed him in the stomach. The applicant and his girlfriend then left the premises.

11. Two other barmen, hearing the commotion entered the foyer. Seeing the first barman slumped on the floor, they ran outside and confronted the applicant. One of them (to whom I refer as the "second barman") ran up to the applicant and a fight ensued. The applicant produced a knife with which he stabbed the second barman three times. After an exchange of words with the other of the two men, the applicant left the scene. When spoken to by police, the applicant admitted becoming involved in the fight with the first barman and admitted stabbing the second barman.

12. The applicant's version is that on the evening of 22 September 1996 he drove his fiance to the Crow Bar as she wanted to speak to the first barman. She was pregnant and the applicant was alarmed when he saw the first barman push her. He went to her aid. The applicant said that the first barman pushed him, whereupon the applicant became involved in an altercation in which he assaulted the first barman. The applicant and his fiance left the premises, but on reaching their vehicle, two other men confronted them. The second barman assaulted the applicant. The applicant said that a knife was attached to his car keys and he used it against the second barman in self-defence.

13. The applicant said that the police were not interested in his account of events. Counsel for Mr Cross said he had difficulty obtaining the applicant's statement from police. A plea bargain was arranged, and the applicant was advised to accept it rather than go through a trial. The applicant said that he wanted to avoid any risk of being found guilty and going to gaol. He said he was scared and wanted to get the matter over with.

14. The tribunal accepts the applicant's evidence as to the circumstances of the incident. The applicant gave evidence that he does not frequent nightclubs. He does not believe that if he was placed in the same situation again, he would fight back. He accepts that what he did on the evening of 22 September 1996 was wrong. He has been to anger management classes on at least three occasions and intends to resume those classes or seek counselling. He says he will never carry a pocket knife around again. He and his fiance still plan to marry.

The medical evidence

15. The medical evidence before the tribunal is that at the time of the incident the applicant suffered from chronic post-traumatic stress disorder. After being charged with assault, the applicant of his own volition referred himself to Mr Nic Beets, clinical psychologist, for counselling. Mr Beets took a history from the applicant. He noted that the applicant had no history of violence or trouble with the law. However, the applicant had been assaulted at the age of 15, in an incident where he was beaten and kicked unconscious for no apparent reason by 6 young men. The applicant reported to Mr Beets that he experiences intense psychological distress and physiological reactivity when exposed to events which evoke the occasion on which he was assaulted. This might simply involve being in a crowd. According to Mr Beets, the applicant continues to show signs of increased physiological arousal, which were noted by him as hyper-vigilance and sleep disturbance, despite the fact that ten years have passed since that trauma. In Mr Beets' opinion the applicant's symptoms clearly meet the criteria necessary for a diagnosis of Chronic Post-Traumatic Stress Disorder (PTSD) as defined by DSM-IV. Mr Beets states:

It is my view that someone with these symptoms is likely to perceive any threat that evokes the original trauma as life-threatening and I hope that this be taken into consideration when he is being held accountable for his behaviour (Exhibit C).

The applicant indicated to Mr Beets that he recognises that this is a problem that he needs to address.

Legislation

16. The relevant subsection of the Act states that:

10C Citizenship by descent for a person over 18 years old

(1) A person who is registered under this section is an Australian citizen.

(2) A person may apply to the Minister to be registered under this section.

(3) The application must be in accordance with the approved form.

(4) The Minister must register, in the prescribed manner, an applicant for registration under this section if:

(a) a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and

(b) that parent:

(i) is an Australian citizen at the time an application under this section is made; or

(ii) is dead and at the time of his or her death was an Australian citizen; and

(c) the applicant:

(i) was born outside Australia on or after 26 January 1949; and

(ii) is aged 18 years or over on the day on which this section commences; and

(iii) failed for an acceptable reason to become registered as an Australian citizen under:

(A) section 10B; or

(B) section 11 of this Act as in force at any time before the commencement of section 10B; and

(d) the Minister is satisfied that the applicant is of good character.

Issues

17. It is agreed that the applicant is eligible to be registered as an Australian citizen by descent if the Minister is satisfied in accordance with subsection 10C(4)(d) of the Act that the applicant is of good character. The issue for this tribunal is to decide whether the applicant is a person of good character notwithstanding his criminal convictions for assault. If the tribunal is not so satisfied, the Act allows no discretion to grant the application for citizenship by descent. Questions arise as to what matters should be taken into account when assessing the applicant's character.

Guidelines

18. In assessing applicant's good character, the tribunal accepts that the Guidelines should be followed unless there is good reason not to (Re Drake and Minister for Immigration (No 2)(1979) 2 ALD 634). With this in mind, the tribunal refers to the Australian Citizenship Instructions (the "Guidelines") as a guide in assessing whether the applicant is a person of good character.

19. I set out the relevant parts of the current Guidelines which were effective from 23 March 1998:

4.8.15 Applicants are also required to be of "good character":

* For applications decided under s 13(1), this is a legislative requirement [refer s 13(1)(f). Therefore, if an applicant is not of good character, the application cannot be approved (it must be deferred or refused, as appropriate).

* For other applications, it is a policy requirement. Although policy cannot be applied inflexibly, such an applicant who is not of good character would be approved only in the most exceptional cases.

4.8.16 The term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. As a matter of policy, an applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.

4.8.17 If there is evidence to suggest that an applicant may not be of good character, the application must address this evidence and establish whether he/she is in fact of good character. An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.

4.8.18 Assessment of good character involves:

* establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;

* according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 4.8(a)); and

* considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.

4.8.19 Under current policy (which came into effect on 23 March 1998) the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 4.8.20-4.8.28 below, if there is evidence that the applicant:

(a) has at anytime, been sentenced to

- death;

- imprisonment for life;

- a term of imprisonment of 12 months or more;

- 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

...

(f) is on release from the whole of a sentence on parole, licence or security (- a person on release from part of a sentence would come within the bar on grant in s 13(11)(d): see 4.8.13).

4.8.20 Nature of any offence(s). Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing judge if available.

...

4.8.22 Consider whether there are any ongoing obligations in relation to the sentence received, such as the existence of a good behaviour bond. The existence of a bond may indicate that insufficient time has elapsed since the commission of the crime to establish the applicant's good character. However, there may be circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond. (Note that periods on parole or proceedings pending must be considered under subsection 13(11).)

4.8.23 Number of any offence(s) committed. Consider whether a crime was a one-off occurrence that can now be considered "out of character", or whether the person's criminal record shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been re-habilitated (see 4.8.26-4.8.28 below).

4.8.24 Circumstances leading to the crime being committed. Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

...

4.8.26 Behaviour since the crime was committed. A person's behaviour as evidence by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision which has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. Policy does not establish any specific time requirement for finding good character. However, a reasonable amount of time will need to have passed since the last crime was committed to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

4.8.27 The applicant's behaviour since the commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors which may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.

4.8.28 Present reputation in the community. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to change in character since, should be given considerable weight.

20. The current paragraph 4.8.19 is different in its effect from its predecessor which reflected the policy prior to 23 March 1998. This was not appreciated by the tribunal or the parties at the hearing, only the earlier Guidelines being available. In subsequent submissions the respondent indicated its reliance upon current paragraph 4.8.19. The applicant urged the tribunal to disregard paragraph 4.8.19 and instead take into account the previous paragraph 4.8.19 which was in effect at the time of the reviewable decision. That paragraph reads as follows:

Ministerial policy - imprisonment totalling 1 year in the last 5. In 1983 the then Minister for Immigration decided that, as a matter of policy, an applicant will not normally be regarded as being of good character for two years since completing the most recent sentence if the applicant has, in the 5 years before applying, spent one year or more in custodial sentences. All the periods spent under custodial sentence in that 5 year period should be added together this purpose. Periods spent under bonds and other non-custodial sentences, fines and recorded convictions, are not to be counted for this purpose.

21. The tribunal stands in the shoes of the decision-maker and the exercise of the review jurisdiction is the occasion of a fresh exercise of administrative power (Re Costello and Secretary, Department of Transport (1972) 2 ALD 934 at 943). If I were to apply the previous Guidelines, it would be appropriate to apply them to the factual situation that applied at the time the respondent's delegate made the decision. The applicant was then subject to a suspended gaol sentence. By the time of the hearing, the applicant had fulfilled his obligations to the court. In my view the proper approach is to have regard to the current Guidelines in respect of his current situation.

Discussion

22. Paragraph 4.8.16 of the Guidelines presumes an applicant to be a person of good character unless there is evidence to the contrary, for example, a serious criminal record. The current paragraph 4.8.19 directs that if a person has been sentenced to a term of imprisonment of 12 months or more, careful consideration should be given to whether an applicant is of good character. I note that as a consequence of being of good behaviour for a period of 18 months, the applicant avoided any time in gaol. Nevertheless, careful consideration needs to be given to the issue of whether the applicant is of good character.

23. In considering this matter it is necessary to assess the degree of risk the applicant poses to the community in Australia. In Irving v Minister for Immigration and Ethnic Affairs (1996) 139 ALR 84 at 87, Justice Davies in a decision of the Full Federal Court stated:

It should also be observed that the term 'good character' is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and reputation and repute rather than to detailed analysis of the person's inherent qualities. I do not suggest that, in the context, 'good character' refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

In the same case at p.94, Justice Lee said:

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 fact whilst the latter is a review of subjective public opinion.

Findings

24. The applicant provided evidence in support of his good character. I accept that he is of good standing, well regarded, and that his character is not in doubt so far as his honesty is concerned. He is a frank and honest young man with a supporting and loving father and fiancee. While the offence appears to be "out of character" (see Guideline 4.8.23), according to Mr Beets the applicant remains susceptible to erupting into violence on provocation. I am therefore not satisfied that the crime in respect of which the applicant was convicted occurred under a period of "temporary psychological disturbance" of the kind described in paragraph 4.8.24 of the Guidelines.

25. The applicant shows awareness of his problems. He has resolved not to carry a pocket knife or frequent nightclubs. I accept his evidence that he has learnt a lesson and would not intentionally act in such a way again. However, there is nothing before me by way of medical evidence to satisfy me that the risk of the applicant being provoked in a similar way has been minimised. Mr Beets provides an explanation for the applicant's behaviour in 1996, and importantly he highlights the necessity for the applicant to address his psychological problems. The applicant attended counselling on three occasions. He says he would like to continue counselling or complete his anger management course. So far, he has done neither.

26. Paragraph 4.8.27 of the Guidelines places the onus on the applicant to demonstrate that there has been a change in his character since offending. He has not satisfied me that he has reformed. Once the applicant has better addressed his problem, he may be in a position to provide a more persuasive psychological report in relation to the degree of risk of being involved in another episode of violence.

27. Having regard to paragraph 4.8.26 of the Guidelines, a further period of 6 to 12 months from the date of the hearing would allow the applicant sufficient time to undertake appropriate counselling or anger management courses. He will then be in a position to establish a pattern of good behaviour to justify a conclusion that he is of good character.

Decision

28. The tribunal affirms the decision under review.

I certify that this and the 12 preceding pages are a true copy of the decision and reasons for decision herein of Senior Member Pamela Burton

Signed: Daryl Clarke .....................................................................................

Associate

Date of Hearing 11 December 1998

Date of Decision 22 February 1999

Counsel for the Applicant Mr James Boyack

Representative for the Respondent Mr Vik Vikneson Mr Jenan Ambikapathy