Davies and Minister for Immigration and Multicultural Affairs [2000] AATA 509 (23 June 2000)

Last Updated: 3 July 2000

DECISION AND REASONS FOR DECISION [2000] AATA 509

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N99/932

GENERAL ADMINISTRATIVE DIVISION )

Re BEN DAVIES

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date 23 June 2000

Place Sydney

Decision The decision under review is affirmed.

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

BJ McMahon

Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP - citizenship - whether applicant of good character - deception of Australian authorities on numerous occasions - disregard for Australian laws.

Australian Citizenship Act 1948 - s 13(1)

Migration Act 1958 - s 501

Irving v Minister for Immigration (1996) 139 ALR 84

Minister for Immigration v Baker (1997) 153 ALR 463

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

1. This is an application to review a decision of a delegate made on 22 May 1999 refusing Mr Davies' application for Australian citizenship. Subsection 13(1) of the Australian Citizenship Act 1948 sets out the matters upon which the Minister should be satisfied before, in his discretion, he grants a certificate of Australian citizenship. Paragraph (f) provides that the Minister is to be satisfied that the applicant is of good character. Mr Davies' application was refused on this ground. The issue, therefore, is whether he is a person of good character for the purposes of the Australian Citizenship Act.

2. He was born on 8 May 1967 in Liberia. He left his home country in 1989 and eventually arrived in Ghana in 1992. He was to stay in that country for some two years until he left in October 1994. At first, he was confined to refugee camps. He later obtained employment as a cleaner in a city hotel. He held this job for one year and three weeks.

3. While cleaning one of the rooms, he found a passport issued by the Government of Ghana to a person named Francis DeHeer. Endorsed on the passport was an Australian visa issued in Accra and valid to 9 December 1994. Mr Davies realised that if he was in possession of this visa, all he needed was the money to pay for a flight to Australia in order to enter this country. He soon found the money and arrived here on 28 October 1994. He used the name Francis DeHeer to gain entry. Although in evidence before me Mr Davies said he had informed his employers of his find and that they had agreed Mr DeHeer might return, Mr Davies nevertheless retained the passport and used it for his own advantage. This was clearly stealing by finding. Certainly Mr Davies made no effort to find Mr DeHeer. On the contrary, he appropriated this found property for his own purposes. Prior to acquiring the passport, Mr Davies had no plans to come to Australia. The fact that the passport was taken from a guestroom by a cleaner who had a particular duty of honesty, increases the degree of culpability in my view. The incident was the first of a number of situations in which Mr Davies behaved dishonestly to Australian officials.

4. Once in Australia, he applied for a protection visa on 18 April 1995. This was not granted until 2 April 1996. The account of the stolen passport was accepted by the delegate only after some marked reluctance.

5. On the same day, Mr Davies was issued with a provisional driver's licence by the relevant New South Wales Department. On 1 December 1996 he was detected while disobeying traffic lights and was subsequently fined $195. On 3 February 1997, he committed a further offence of negligent driving for which he was subsequently fined $152. On 2 December 1997, he was caught speeding and was fined $112. The following month, he was again caught speeding on 3 January 1998 for which he was fined $179. Ten days later, he was again speeding and was fined a further $179. On 6 April 1998, his driver's licence was cancelled because of the accumulation of demerit points. Although he was eligible to apply for a further driver's licence after 5 August 1998, he did not do so.

6. On 9 October 1998, he was driving a motor car in Kings Cross when he was involved in a traffic accident. He was subsequently charged with driving a motor vehicle whilst his licence was cancelled. The conviction did not take place until 3 August 1999. On that day he was fined $1000 and he was disqualified for a further two years from driving until 2 August 2001.

7. Whilst that charge was pending, he was again stopped on 30 October 1998, while driving in Mascot. When asked to produce his driver's licence, he gave the apprehending officer a licence belonging to another person, which he subsequently said that he had found one month previously in Surry Hills. He stated that he was not aware that he was required to return this licence to the Road Traffic Authority or to the Police. The explanation he gave to the Department was contained in a letter of 7 May 1999 which, omitting formal parts, was in these terms:

"Regarding our conversation in regard of an incident took place on the 30/10/98 at brighton le sands in the state of new south wales involving the new south wales police officer'. The nature of the whole incident was the cause of driving a motor vehicle registration number SHI-114 silver holden commodore registered in new south wales, The name of the charges might appeared serous to you but the incident was not serous I explain as follows:

On the 30/10/98 I was driving the above vehicle at about 6pm on the grand parade brighton le sands and I was stopped by a police officer who has been following me, after stoping the officer asked me for a driving licence I took a licence from my wallet and handed it to him he than walked to his radio a short time latter he returned to me and said that my registration of my vehicle was cancelled I said that I was not aware of it, he than asked if the licence handed to him was mine I answer yes because I usually carried my licence in my wallet, but not known that I have handed to the officer of driving licence which I have found.

I try to explain to the officer but he did,nt want to listerned to me he arrested me and charged me with namerous offences relating to the driver licence, the reason why I kept that driver licence with me is that I was going to asked some african friends if they knew the owner because the licence photo appeared to be an african.

I came to Australia in 1994 and I have never been in any problem untill I mistakefully handed to the officer the wrong licence instead of mine.

Further for you information I was unrepresented in court, if I was to be represented in court I personally believe those charges would have been thrown out from court"

8. This account of the incident with the arresting officer differed from the version given by the police at the hearing of charges brought against Mr Davies. That version was as follows:

"At about 5.40pm Friday 30 October 1998 the defendant was driving a 1982 Silver Holden Commodore sedan bearing NSW registration SHI-114 south upon General Holmes Drive MASCOT.

A RTA check vide police radio revealed that the vehicles registration had expired 12 September 1998. The vehicle was subsequently stopped and the driver spoken to. Police asked him why he was driving an unregistered vehicle, to which he replied that he did not own the car, it belonged to a friend.

He was asked to produce his licence. He produced a NSW Drivers Licence in the name of Peter MINTAH-OWUSU, licence number 12678157. When police asked him to state his full name and place of abode he stated "Peter OWUSU, I live in Marrickville, I'm nervous and can't remember the address." Police then questioned him further in relation to the details on the licence he had produced. He could not answer when asked his date of birth and tried to grab the licence out of the hand of police. S/Con JACKSON then explained to him that it is an offence to state a false name and place of abode when driving a motor vehicle, and again asked him to state his full name and place of abode. He insisted that he had given the correct details and the drivers licence was his.

Police then asked him to remove any other identification from his wallet in the same name appearing on the licence. He was very apprehensive. Police observed a Commonwealth Keycard in the defendant's left hand and asked to see it. It was the name of Mr Ben DAVIES. Police were already aware that Mr DAVIES was a Cancelled Driver due to information received from police radio when the initial registration check was made.

The defendant was then placed under arrest and officially cautioned. Police then asked him how he had come into possession of the New South Wales Drivers Licence. He stated he had found it about one month ago in Surry Hills. When asked why he had not returned the licence to the RTA or handed the licence into a police station he claimed that he was not aware he had to.

He was then conveyed to Maroubra Police Station where he was charged with the matters now before the Court.

The defendant's licence has been cancelled due to demerit points to commence on 04-05-1998, and an application for a further Unrestricted licence will be considered on or after 05-08-1998. The defendant is the registered owner of the motor vehicle.

Mr Peter MINTAH-OWUSU was contacted by telephone and he stated he had no knowledge of the defendant and had lost his licence about 1 year ago and has since had a replacement licence issued."

9. At the hearing of charges arising out of this incident, the applicant was legally represented and pleaded guilty. The version of facts given by the police, therefore, must be taken to be admitted by Mr Davies. This means that there were a number of untruths in the subsequent letter which he wrote to the Department, as well as untruths which he told to the police. Mr Davies admitted at the hearing before me that the reason he offered the stolen licence was because at the time he was unlicenced and did not have appropriate documentation for himself. The statement that the car was not his could not have been correct if the police established his name and the fact that he was licenced at the time they made the radio check. The various statements made to the arresting officer were obviously untrue. The statement that Mr Davies had found the stolen licence about a month ago, whereas it had been lost one year previously, is also probably untrue.

10. Not only does Mr Davies' version in his letter differ from that given by the police, his version in the letter also differs from other versions he has since given. For example, the letter appears to indicate that the stolen licence was carried in his wallet, whereas in evidence before me, he insisted that the licence was in a separate place in his vehicle. In any event, the explanations he gave do not explain why he had retained the stolen licence for one month (at least), nor does it explain why he gave a false name to the arresting officer. Before me he said that he was confused when the police interviewed him and "I came out with anything".

11. He was charged and later convicted on 18 December 1998 in the Downing Local Court of six offences as follows:

* Fraudulently altering or using a licence - fine $500

* Larceny of the driver's licence - fine $300

* Stating a false name and address - fine $300

* Driving a vehicle which was unregistered - fine $300

* Driving after a licence was cancelled - fine $500

* Using an uninsured motor vehicle on a public street - fine $300

12. On 23 December 1998 (five days after these convictions were entered and fines imposed) he applied for Australian citizenship. Question 37 required him to answer this question: "Have you ever been convicted of, or found guilty of, any offences? (include all traffic offences which went to court)". To this question he answered "no". He was subsequently interviewed by the Department on 11 February 1999 and again failed to mention the convictions of 18 December 1998. Although given an opportunity to do so, he also did not admit the outstanding charges relating to the accident of 9 October 1998 which were not dealt with by the Court until the following August.

13. In his letter of 7 May 1999, Mr Davies asserted unequivocally that he was unrepresented in court and added that if he had been represented, he believed that the charges would have been "thrown out from Court". In fact, a transcript of proceedings since obtained by that Department shows that on 18 December 1998, he was represented by a Mr Rogers and that he pleaded guilty to all the facts as alleged by the police. In the proceedings on 3 August 1999, he was represented by Mr Sahade and again pleaded guilty.

14. Mr Davies seemed to be under the impression that his application for citizenship had been refused because (as he put it in his statement) of:

"a driving infringement in 1998/99 for which I am deeply sorry and now sincerely apologise. This has been the only infringement and I have been of good character since that time".

The basis for the decision was not that the applicant had been guilty of a "driving infringement" (although the matters alleged against him were serious enough). Rather, the refusal was based upon an absence of good character illustrated by a number of aspects of the applicant's behaviour including the untruths which he told in relation to these driving infringements. There were also other matters taken into account.

15. Ruby Clerk, a Ghanaian, arrived in Australia on 21 October 1996 with a visa which expired on 21 November 1996. She came to visit her sister who lived in Sydney and who was known to Mr Davies. He met her some time after her arrival. His evidence was that he was attracted to Ruby. He knew that she had been previously married and had young children living in Ghana. However, he could not remember their names and, as far as I can see, has never been in contact with them. Whatever the truth, the fact is that he married Ruby in Sydney on 17 January 1997. The following day she returned to Ghana where she applied for a spouse visa on the basis of her marriage to Mr Davies. Records of the interview with her and with Mr Davies certainly raised the suspicion that theirs was no more than a marriage of convenience. They certainly did not live together after the marriage. Mr Davies was not even sure whether they lived together before the marriage. The children were not included in Mr Davies' sponsorship form.

16. The delegate was bound to be satisfied that both Ms Clerk and Mr Davies were in a spouse relationship as defined in the regulations. These require, among other things, that the parties have a mutual commitment to a shared life as husband and wife, to the exclusion of all others, and that the relationship is genuine and continuing. He concluded that the marriage may have been contrived in order to enable Ms Clerk to join her sister in Australia. The delegate added that he was not satisfied that Mr Davies had demonstrated an understanding of Ms Clerk's circumstances that could reasonably be expected between persons who had a commitment to a life together. Mr Davies, in evidence before me, agreed that appearances suggested that it had been a marriage of convenience but he insisted it was not so at all.

17. He has not seen Ms Clerk since she left Australia three and a half years ago. He has not been in touch with her for the last six or eight months. Prior to that, their contact seems to have been desultory. It is possible that Mr Davies was unwittingly used by Ms Clerk in an endeavour to gain entry into Australia. It is also possible that Mr Davies was a willing and compliant participant in the arrangement.

18. In my view, the balance of the evidence available points to the fact that Mr Davies was a conscious party to an arrangement intended to deceive the Department. The vagueness of Mr Davies' responses to questions about where his future wife was living at the time, about her children and about their plans for the future point inevitably to the unreality of the marriage ceremony. There was an appeal to a Tribunal available from the decision of the delegate. Had there been an appeal, it would have been possible to investigate the circumstances more closely and in detail. Neither party took advantage of this opportunity. The inference is open, therefore, that neither party wished to have the surrounding circumstances investigated more closely.

19. Another unresolved question relating to Mr Davies' credibility concerns the alleged misuse of his visa evidence card. This was a document issued to him to prove acceptance of his protection visa application. This document was, at one stage, in Mr Davies' possession and indeed was produced by him to the Tribunal on the day of the hearing before me. A copy of it was attached to his sponsorship application for Ms Clerk.

20. Nevertheless, it was used to obtain a United Nations Convention Travel Document valid from 8 July 1999 which was issued in the name of the applicant and which correctly set out his date and place of birth. The applicant for the travel document also gave the name of Mr Davies' mother as Esther. That was her correct name although it does not appear on the visa evidence card.

21. Travelling with this UN Convention Travel Document, a person described as Ben Davies went to New Zealand and returned to Australia on two occasions late in 1999. Mr Davies says that it was not him. He says that he did not become aware of these details until they were alleged in the Department's statement of facts and contentions. When he did become aware, he said that he went to premises at Lakemba, where he used to live, and where he had, for some reason, left his papers and records. He asserts that some person unknown abstracted his visa evidence card from an envelope amongst his papers, used that card to obtain the UN document and returned the card to the envelope after the UN document had been issued. Mr Davies said he knew nothing about the proceedings and did not know the person responsible.

22. This account of the circumstances is so unlikely as to be unbelievable. Mr Davies did not explain why he left his personal papers in envelopes in an address where he no longer lived. There was no evidence to corroborate his account of the circumstances. There is no evidence to identify the card thief. There is no evidence to explain how such a thief would know the name of Mr Davies' mother, when it did not appear on the stolen card. The use of this card strangely echoes the use of the false passport and the use of the false driver's licence. I simply do not believe Mr Davies' account. It would not matter except that he denied to the Department that he had been out of Australia since his arrival saying that his Liberian passport had expired and that he had had no other travel document. It could well be that he gave this false account believing that his status as a refugee might have been imperilled if it was known that he had left this country since his status was recognised.

23. There are four main areas in which the applicant has deceived or attempted to deceive Australian authorities. Firstly, he arrived in this country and presented a false document in the form of a stolen passport and completed entry procedures under a false name. Secondly, he made false statements to the police when he was arrested and presented the stolen driving licence. Thirdly, he has falsely denied prior convictions in his application for citizenship.

24. Fourthly, the statements made in connection with the visa application of Ms Clerk and the statements made in connection with the wrongful use of the United Nations Travel Document were, in my view, false. These false statements to various authorities are part of a pattern of conduct. None of them can be viewed in isolation. Taken together, they are a clear indicator of the applicant's lack of good character.

25. He has also certainly shown a disregard for Australian laws. The repeated traffic offences led to the loss of his driving licence. Notwithstanding this, he continued to drive and even drove an unregistered vehicle. The convictions of 30 October 1998 constitute a catalogue of deliberate violations of applicable laws.

26. In Irving v Minister for Immigration (1996) 139 ALR 84 at 94 Lee J said that the words "good character" were to be understood as a reference to the enduring moral qualities of a person. In Minister for Immigration v Baker (1997) 153 ALR 463 at 470, a Full Court observed that:

"Some instances of general conduct... displayed but once or twice may lay character bare very tellingly."

27. It was submitted by the respondent that a significant difference existed between character assessments under section 501 of the Migration Act (or rather, to be more precise, assessment of whether an applicant passed the character test) and section 13(1)(f) of the Australian Citizenship Act. It was submitted that whilst there was a discretion under section 501, there was no corresponding discretion under section 13. This does not appear to me to be in accord with the opening words of subsection 13(1). The Minister is bound to be satisfied as to certain statutory criteria. In addition to that, however, he has a discretion, once satisfied, whether or not to grant a certificate of citizenship. He does, however, need to be satisfied that an applicant is a person of good character before the residual discretion arises.

28. References were tendered by Mr Davies. Mr Beltran wrote:

"Ben has also confided with me about his traffic offences and of the remorse he is suffering for the regrettable offences. We have had long discussions about the dangers involved and Ben realises how very fortunate he is that no injury was caused to another person or himself. He has thought long and hard about his actions and of the imposition he has caused others and himself. I feel that Ben has most definitely learnt a very hard lesson and it is not a lesson that will need to be repeated."

29. It is clear that Mr Beltran is under the impression that refusal of citizenship is based merely upon the applicant's traffic offences. Similarly, Mr O'Brien says that he was "aware of the details of his Court case but I find this to be out of character and a situation Ben will not find himself in again". Mr O'Brien also appears to be under the impression that the Court case (or one of them) is the only obstacle between Mr Davies and citizenship. Ms Patrick found Mr Davies to be "a generous, kind, caring and respectful man. It is my belief that his unfortunate dealings with the police which led to the cancellation of his drivers licence and subsequent court case is an experience which Ben duly regrets and wishes to put behind himself. He is now committed to placing his energy into developing his business and is determined not to jeopardise these efforts".

30. Ms Patrick is again under the wrong impression as to the cause of Mr Davies' difficulties. Mr Davies runs a shop dealing in African arts and crafts during the day and, at night, works for a transport company at Bankstown Airport as a dock hand. His operation supervisor stated that he had found Mr Davies "to be diligent, honest, and hardworking at all times. He performs all tasks required in a professional manner and has a mature outlook and positive attitude towards his work and fellow work colleagues". For the purposes of determining whether the applicant is a person of good character for statutory purposes, this reference is not particularly helpful. I am therefore not satisfied that the applicant meets the requirements of paragraph 13(1)(f) by reference not only to his criminal convictions but also to his disingenuousness with authorities.

31. Accordingly, the decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed: .....................................................................................

Dominika Rajewski, Associate

Date of Hearing 19 June 2000

Date of Decision 23 June 2000

Representative for the Applicant Self-represented

Representative for the Respondent Mr Jennan Ambikapathy (DIMA)