Postiglione and Minister for Immigration and Multicultural Affairs [2002] AATA 37 (22 January 2002)

Last Updated: 23 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 37

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/648

GENERAL ADMINISTRATIVE DIVISION )

Re Mario Postiglione

Applicant

And Minister for Immigration and Multicultural Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date 22 January 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

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

Mr R P Handley

Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP - Loss of Australian citizenship - application for declaration of resumption of citizenship - where Applicant returned to Italy and ceased to be an Australian citizen on re-acquiring Italian citizenship - where Applicant had criminal record for drug-related offences committed in both Italy and Australia

Threshold issue - whether Applicant aware that on re-gaining Italian citizenship he would cease to be an Australian citizen

Exercise of discretion to register declaration for resumption of citizenship - relevant considerations for Tribunal - regard to policy "Direction No. 21-Visa Refusal and Cancellation under s 501" - protection of the Australian community - expectations of the Australian community - Applicant's conduct whilst in jail - effect of deportation on relationship with only son in Australia

Australian Citizenship Act 1948: ss 13(1), 23AA

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Nolan v Minister for Immigration and Multicultural Affairs (1988) 165 CLR 178

R v Australian Broadcasting Tribunal (1979) 144 CLR 13

REASONS FOR DECISION

22 January 2002 Mr R P Handley

1. This is an application by Mario Postiglione ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 19 May 1998 to refuse to register a declaration of resumption of Australian citizenship lodged by the Applicant on 18 March 1997.

2. At the hearing, Louise McManus, of Counsel, represented the Applicant, and Andreas Markus, Solicitor, of the Australian Government Solicitor's Office, represented the Respondent. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given in person by the Applicant and his son, James Postiglione, and by telephone, by Wayne Kuhne.

Background

3. The Applicant was born in Rome on 10 June 1942 and is aged 59. He migrated to Australia arriving on 19 November 1962 and was granted Australian citizenship on 16 October 1970. He married an Australian citizen, Pirjo Okkola in 1972 by whom he has a son, James, who was born on 28 September 1979 and is aged 22.

4. In January 1978, Mr Postiglione returned to Italy and, on 21 March 1978, he resumed his Italian citizenship in order to be able to work in Italy. He claims that he was advised that this would not affect his Australian citizenship. In December 1980, Mr Postiglione was convicted by an Italian Court of conspiring to traffic in heroin between September 1979 and January 1980. He was sentenced to 14 years imprisonment and fined. This 14 year sentence was later reduced by 2 years by Presidential decree in December 1981, and the Criminal Court in Rome reduced the sentence to 12 years and a fine on 17 June 1983. Mr Postiglione lodged a further appeal with the Supreme Court of Appeal in Rome. Because this appeal had not been disposed of within the time required under Italian law, Mr Postiglione was provisionally released from custody in September 1984. On 4 October 1984, he applied to renew his Australian passport at the Australian Embassy in Rome. This was issued on 19 November 1984 and Mr Postiglione returned to Australia arriving on 15 December 1984. Mr Postiglione did not subsequently attend the Supreme Court for the hearing of his appeal, and on 23 October 1986, the Supreme Court rejected Mr Postiglione's appeal and he was required to serve the remainder of his sentence amounting to 5 years, 4 months and 2 days. A warrant for his arrest was issued in Rome on 12 December 1986.

5. On 9 March 1987, Mr Postiglione was arrested in Australia and pleaded guilty to charges of being knowingly concerned with the importation of a commercial quantity of heroin. He was sentenced to life imprisonment by Justice Roden in the Supreme Court of New South Wales on 28 June 1988. On appeal, that sentence was reduced to 12 years with a non-parole period of 9 years. Whilst in prison serving the sentence for his 1988 conviction, Mr Postiglione was charged and pleaded guilty to conspiring to import cocaine. He was sentenced to 21 years imprisonment with a non-parole period of 16 years and 10 months by Justice Mathews in the Supreme Court of New South Wales on 7 May 1993. On appeal, the Court of Criminal Appeal reduced the sentence to 14 years with a non-parole period of 10 years and 6 months, ending on 6 May 2003.

6. Mr Postiglione also has the following convictions for less serious offences:

* 15 July 1966 - break, enter and steal - 2 year good behaviour bond.

* 15 October 1970 - offensive behaviour (hitting women in street) - fined $15 or 8 days hard labor.

* 17 April 1997 - assault occasioning actual bodily harm - $500 fine.

7. On 24 June 1988, the Department of Immigration, Local Government and Ethnic Affairs realised that Mr Postiglione had ceased to be an Australian citizen when he re-acquired Italian citizenship on 21 March 1978. Mr Postiglione claims it was at this time that he first learned of his loss of Australian citizenship. On 12 September 1994, Mr Postiglione signed a Declaration of Desire to Resume Australian Citizenship under s 23AA of the Australian Citizenship Act 1948 ("the Act"). This seems to have stimulated departmental discussion of Mr Postiglione's legal status in Australian while, at the same, Mr Postiglione was pursing an appeal to the High Court with regard to the sentence for his 1993 conviction. As a result, it appears that the processing of Mr Postiglione's Declaration of 12 September 1994 did not proceed. On 18 March 1997, Mr Postiglione lodged a further declaration (T79) with supporting letter (T80). On 10 February 1998, a delegate of the Respondent wrote to Mr Postiglione inviting him to provide a statement in relation to his criminal history (T94). Mr Postiglione replied by letter dated 17 February 1998 (T95). On 13 May 1998, a delegate of the Respondent refused Mr Postiglione's application for resumption of Australian citizenship (T106) and, on 1 June 1998, Mr Postiglione lodged an application for review of this decision by the Tribunal.

applicable law and issues

8. The relevant section of the Act, s 23AA states:

Persons may resume citizenship lost in certain circumstances

23AA. (1) Where:

(a) a person:

(i) has done a voluntary and formal act, other than marriage, by virtue of which the person acquired the nationality or citizenship of a country other than Australia; or

(ii) has done any act or thing:

(A) the sole or dominant purpose of which; and

(B) the effect of which;

was or is to acquire the nationality or citizenship of a foreign country;

being an act or thing that resulted in the person ceasing to be an Australian citizen;

(b) the person furnishes to the Minister a statement, in writing, to the effect that:

(i) if the person had not done the act or thing, the person would have suffered significant hardship or detriment; or

(ii) at the time when the person did the act or thing the person did not know that he or she would, as a consequence of doing the act or thing, cease to be an Australian citizen;

and also stating that the person:

(iii) has been present in Australia (otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed territory) for a period of, or for periods amounting in the aggregate to, not less than 2 years;

(iv) intends that:

(A) if the person again becomes an Australian citizen and is residing in Australia at the time when the person so becomes an Australian citizen, the person will continue to reside in Australia after so becoming an Australian citizen; or

(B) if the person again becomes an Australian citizen and is not residing in Australia at the time when the person so becomes an Australian citizen, the person will commence to reside in Australia after so becoming an Australian citizen and before the expiration of the period of 3 years commencing on the day on which the statement is made; and

(v) has maintained a close and continuing association with Australia; and

(c) the person furnishes to the Minister together with the statement a declaration in the prescribed form that the person wishes to resume Australian citizenship;

the Minister may, in the Minister's discretion, if the Minister is satisfied:

(d) as to the truth of the matters contained in the statement; and

(e) in a case where the person has claimed that, if the person had not done the act or thing that resulted in the person ceasing to be an Australian citizen, the person would have suffered hardship or detriment of an economic nature - that the person's circumstances were such as to compel the person to do that act or thing;

register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen.

9. There is no dispute that Mr Postiglione by a voluntary and formal act re-acquired Italian citizenship. He thereby satisfies sub-section (1)(a). He has also furnished the Minister with a statement as required by sub-section (1)(b). Mr Postiglione claims that when he reacquired Italian citizenship on 21 March 1978, he was unaware that a consequence of his doing so would be that his Australian citizenship would cease, pursuant to sub-section (1)(b)(ii). The Respondent contends that the Tribunal should not be satisfied of this. The Tribunal must, therefore, make a determination on this matter as a threshold issue. Otherwise, there is no dispute that the other preconditions in sub-section (1)(b) are satisfied.

10. If Mr Postiglione satisfies sub-section (1)(b)(ii), then the issue for the Tribunal is whether to exercise the Minister's discretion to register the declaration in the prescribed manner, whereupon Mr Postiglione would again become an Australian citizen.

EVIDENCE

Mario Postiglione (The Applicant)

11. Mr Postiglione is currently serving his sentence in a Special Purpose Centre in Long Bay Jail. After arriving in Australia on 19 November 1962 at the age of 20, he had various jobs, including pouring concrete, working in restaurants and as a machine operator for Arnott's Biscuits. Prior to coming to Australia, he had worked in restaurants in Italy and had undertaken a catering course which required that he learn another language. Because his sister had come to Australia in 1955, it was decided that he should come to Australia to learn English. Mr Postiglione said he has no other direct relatives in Australia although the brother of his brother-in-law lives two doors away from his sister.

12. Mr Postiglione was vague about exact dates, but recalled that he returned to Italy in 1977 by himself, travelling on his Australian passport, because his mother was sick. Mr Postiglione needed to remain in Italy because his mother was dying, and, therefore, he had to find work. However, in order to obtain work, he either had to obtain permission to work, which would take some time, or resume his Italian citizenship, which he was advised was only a matter of making the necessary declaration. He was advised by the Italian authorities that this would not affect his Australian citizenship. Mr Postiglione said he first learned that he had lost his Australian citizenship at the time of his committal hearing in Australia in 1988.

13. Having re-acquired his Italian citizenship on 21 March 1978, Mr Postiglione was able to obtain work in a restaurant. Later in 1978, he returned to Australia and, in early 1979, he and his wife went back to Italy, where they lived in one of his brother's apartments. His son, James, was born in Italy on 28 September 1979. When his wife returned to Sydney in 1981 with James, Mr Postiglione stayed in Italy because he was in prison, having been convicted of conspiring to traffic in heroin. He and his wife were divorced either later in 1981 or in 1982. Mr Postiglione said he had pleaded not guilty to the charge of conspiring to traffic in heroin. He pointed to flaws in the Italian criminal trial process as a result of which his lawyer was not permitted to cross-examine the principal witness for the Prosecution, even though this witness made a number of contradictory statements. Having served 4 years and 7 months in prison, Mr Postiglione was provisionally released on 29 September 1984 pending the hearing of his appeal to the Supreme Court in Rome. On his release from prison, he collected his clothes and personal property and signed a book acknowledging his release. He was not asked to sign anything else and was advised by his lawyer that he could leave the country, travelling on his Australian passport. His family had put up the equivalent of $20,000 in bail as an assurance of his attending the Supreme Court proceedings on his appeal, but otherwise there were no restrictions upon him. His lawyer advised that he would phone Mr Postiglione's sister in Australia to advise when the appeal was to be heard, so that Mr Postiglione could return to Italy. However, the lawyer subsequently "fell in to disgrace" and did not notify him of the Supreme Court hearing which Mr Postiglione did not therefore attend. Mr Postiglione assumes that the bail money put up by his family was forfeited.

14. Because by September 1984, Mr Postiglione's Australian passport had expired, he applied to renew that passport at the Australian Embassy in Rome. He produced his birth certificate, his citizenship papers and his old passport when making this application. He recalls that the old passport was later returned to him with a cut across the bottom corner to indicate that it had been cancelled. The Embassy did not inform him of any problems with the issue of a new passport which he received about two weeks later. He then returned to Australia on 23 December 1984.

15. Mr Postiglione said he had pleaded guilty in relation to the 1987 charges of being knowingly concerned with the importation of heroin. He noted that the sentence of life imprisonment imposed by Justice Roden had been reduced on appeal. Mr Postiglione acknowledged that whilst he was in prison, he was charged with conspiracy to import cocaine to which he also pleased guilty. He said his involvement in this conspiracy was as a result of being "induced to do so by heavies in the prison". He made a statement to the Australian Federal Police to assist in their investigation of the offence and co-operated with them by giving evidence as a crown witness at the trial. As a result, he has since been in special protection which has meant that he had only limited access to work release, day release and other privileges. Even when he is released from prison, he will still be at risk as a result of his giving evidence as a crown witnesses.

16. Mr Postiglione acknowledged his prior offences for breaking and entering in 1966 and for offensive behaviour in 1970. He said his most recent conviction for assault in April 1997 was a result of his reacting when he was no longer able to tolerate the standover tactics by "heavies" in the prison. Mr Postiglione said the judge had recognised his reason for committing the assault which was reflected in Mr Postiglione only being fined $500.

17. Mr Postiglione said he was brought up a Catholic and has never himself taken drugs. While he was in Berrima Jail, in about 1998 he became involved with some Jehovah's Witnesses. He began to study the Bible and started to live his life according to its principles. Having become a Jehovah's Witness, he has realised his previous life was an "error" and he has become a different person: he avoids violence, he does not salute any flag and he has learned to live his life according to the Scriptures. Since 1998, Jehovah's Witnesses have continued to visit to Mr Postiglione to assist him with the study of the Bible. Apart from his Bible study, Mr Postiglione has also undertaken courses in carpentry and music. While he was in Berrima Jail he was also able to undertake some charity work.

18. Mr Postiglione said he wants no further contact with his ex-wife. He is keen to resume his relationship with his son, whom he has not seen for about 12 months. Contact with his son has been difficult because he is not allowed to phone his son on his son's mobile from the Special Purpose Centre at the prison. Prior to his being imprisoned, Mr Postiglione used to see his son on a regular basis. Then, when he was first imprisoned, his ex-wife brought his son to the jail and they also kept in contact by phone. When Mr Postiglione started studying to be a Jehovah's Witness, whilst in Berrima Jail, his son also became interested and started studying the Bible. Mr Postiglione said if he is not able to stay in Australia, the relationship he has with his son is likely to be destroyed.

19. Apart from his son, Mr Postiglione's sister still lives in Australia, although she is very sick, having had a second heart operation and last month suffering a stroke. He also has a lot of friends, some of whom have stayed away whilst he has been in prison, and others with whom he has maintained contact. Mr Postiglione emphasised that Australia is where he wants to live and that he is now a totally different man as a result of his becoming a Jehovah's witness. He has no intention of re-offending.

James Postiglione (the applicant's son)

20. Mr Postiglione confirmed that his statement dated 25 September 2001 (A1) is true and correct. He said he is now aged 22 and has been employed as a refrigeration apprentice since October 1999 by Absolute Airconditioning. His job involves fixing airconditioning units.

21. Mr Postiglione said he loves his father but acknowledges that he does not really know him. He had regular contact with his father until the age of about 8 but thereafter contact was sporadic. He has been able to speak to his father on the telephone on a few occasions, but not in the last few years. About 3 or 4 years ago when his father was in Berrima Jail, Mr Postiglione would visit him about once every 3 months. He has not seen his father in the last 12 months since he was moved from Berrima Jail and he only recently discovered that his father is now in Long Bay Jail. Mr Postiglione said he wants to re-establish his relationship with his father when he is released from prison. He needs his father's help to study the Bible because he is interested in the religion of Jehovah's Witnesses. If his father is deported, this will probably be the last time he sees him. It would be very hard for Mr Postiglione to save up to pay for a visit to Italy to see his father.

22. Mr Postiglione said he spoke on the phone yesterday to his father's older sister who has recently been sick. They agreed to keep in touch. Mr Postiglione used to see her at Christmas and on birthdays.

Wayne Kuhne

23. Mr Kuhne confirmed the truth of his statement dated 12 December 2001 (A2). He is a plasterer living in Bowral who is an approved Minister of the Jehovah's Witnesses faith for the purpose of visiting Berrima Jail. Mr Kuhne said he met Mr Postiglione in the course of his visits to Berrima Jail on Wednesday evenings when Mr Postiglione attended the classes which Mr Kuhne undertook with prisoners. Mr Kuhne acknowledged that he knew little of Mr Postiglione's past but said that he was aware that Mr Postiglione has made major changes in his life in order to become one of Jehovah's Witnesses. During their meetings, Mr Postiglione engaged in Bible studies and study of the principles by which Jehovah's Witnesses live their lives.

SUBMISSIONS

The Applicant

24. With regard to the threshold issue, Ms McManus for Mr Postiglione, contended that he did not know that the effect of his resuming his Italian citizenship would be that he would thereby lose his Australian citizenship. Ms McManus said Mr Postiglione's recollection of the events at that time in March 1978 was good because this was a significant incident. He has a clear memory that he was advised by the authorities that he would not lose his Australian citizenship.

25. With regard to the exercise of the Minister's discretion in s 23AA, Ms McManus noted that Mr Postiglione was not advised of his loss of Australian citizenship until 1988. By that time, amendments to the Australian Citizenship Regulations in 1987 had introduced references to character in relation to the exercise to the Minister's discretion. Previously, under the 1984 provisions, there had been no requirement to provide character information. Ms McManus said while the current legislation must be applied in this case, nevertheless, the disadvantage suffered by Mr Postiglione as a result of his application being dealt with under the revised legislation could be taken into account in exercising the Minister's discretion. Ms McManus noted the Respondent's contention that similar sections in the Migration Act 1958 refer to character, but she said that the subject matter of these powers - the grant of visas - was significantly different from that involved in citizenship. If Parliament had intended that similar provisions should apply in the case of citizenship, this could easily have been stated in the legislation. Thus, Ms McManus contended, character should not be an overriding consideration in applying the provisions of the Act.

26. However, Ms McManus said that if character is relevant, then it should be noted that Mr Postiglione's character is totally different today from that at the time the offences were committed. With the exception of the 1997 assault conviction, where the penalty of $500 indicates that the Court recognised from the circumstances in which the offence was committed that the matter was not serious, the serious offences, to which he has pleaded guilty were committed 21 years and 11 years ago respectively, even though Mr Postiglione is still serving a term of imprisonment. Ms McManus referred the Tribunal to the circumstances in which the offences had been committed noting the reduction of sentence on appeal in respect of both serious offences.

27. Ms McManus referred the Tribunal to the documentary evidence as to Mr Postiglione's behaviour in jail, including his prison records (A3), which indicates that he is co-operative and hardworking, that he has undertaken charity work and that he has strong community ties. Ms McManus said there is every reason to believe that Mr Postiglione will not re-offend.

28. Ms McManus referred the Tribunal to a number of other factors that should be taken into account in exercising the Minister's discretion:

* Mr Postiglione's personal situation - that Australia has been his home since 1962 and that he identifies as being Australian. He has excellent English language skills and has only a limited on-going connection with Italy.

* Mr Postiglione's immediate close family is in Australia, in particular his son James. Both Mr Postiglione and James wish to re-establish their relationship. James has lived in Australia since he was a small child and does not have the means to visit his father in Italy if he were to be deported.

* Mr Postiglione's community ties, especially as a Jehovah's witness.

* Mr Postiglione is now aged 59. His ties are with Australia and his connection with Italy is limited. For him to have to return to Italy would cause great hardship.

* The unfairness of Mr Postiglione not being aware of losing his Australian citizenship in 1978 and thereby not being able to utilize the more favourable legislative regime pre-1987. The Tribunal should also take into account the more favourable legislative regime pre 1987.

* Mr Postiglione is now a different person who has accepted a new way of life through his following the faith of a Jehovah's Witness.

* The significant period of time since the last serious offence was committed.

the respondent

29. With regard to the threshold issue, Mr Markus, for the Respondent, said that although Mr Postiglione has furnished a statement in accordance with the requirement in s 23AA(1)(b), the Tribunal must also be satisfied as to the truth of the matters contained in the statement. The standard of satisfaction should be "on the balance of probabilities". The Respondent contends that the Tribunal should not be satisfied as to the truth of Mr Postiglione's story concerning his re-acquiring Italian citizenship. In particular, Mr Markus referred to a 1988 cable-gram from the Australian Embassy in Rome to the Department of Immigration and Ethnic Affairs in Canberra dated 23 June 1988 (T34) which indicates that when Mr Postiglione applied for the renewal of his Australian passport, he did so on the basis of submitting his certificate of Australian citizenship and an extract of birth. Mr Markus deduced from this that Mr Postiglione did not submit his old passport. Mr Markus noted that the advice Mr Postiglione claimed to have been given - that his re-acquiring Italian citizenship would not affect his Australian citizenship - was inconsistent with Italian law (Foundation Act No. 555/1912 Article 9 (R1)). Mr Markus suggested that Mr Postiglione's account lacked credibility: he had embellished his account in order to favour his application.

30. With regard to the exercise of the Minister's discretion under s 23AA(1) of the Act, Mr Markus submitted that the extent of the Minister's discretion has never changed. The discretion is not subject to any express limitation although it must be exercised having regard to the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40, per Mason J. Mr Markus submitted that given the significance of citizenship as "the exclusive criterion for admission to membership to the community constituting the "body politic of Australia" (Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 190, per Gaudron J), character must be seen as a relevant matter in the exercise of the Minister's discretion with regard to citizenship. Mr Markus noted that Mr Postiglione's criminal history reveals a number of serious drug-related convictions demonstrating a continuing tendency to re-offend. While Mr Postiglione has consistently played down the seriousness of his involvement in these offences, nevertheless it is clear that he was a major player in the offences. Mr Markus referred the Tribunal to the findings of Justice Roden (T40), noting that although Mr Postiglione's sentence was subsequently reduced on appeal, it was not for the reason of any disagreement with the Judge's findings. Mr Markus said the fact that Mr Postiglione is trying to minimise the seriousness of his involvement, in itself indicates that he is not a reformed person as he claims to be. Mr Markus suggested that Mr Postiglione's motivation might be related to the fact that he has an outstanding warrant against him in Italy and still has 5 years 4 months and 2 days to serve of the sentence imposed there in December 1980, subsequently reduced on appeal.

31. Mr Markus submitted that Mr Postiglione has shown no respect for the laws of Australia, has made very little contribution to the Australian community and, indeed, has caused significant harm to the community. Furthermore, there is insufficient evidence that he has reformed or that he will make a positive contribution to the community in the future. Mr Markus said that the fact of Mr Postiglione following the faith of a Jehovah's Witness is not necessarily relevant: what is of fundamental significance is his enduring moral qualities.

32. With regard to other relevant considerations, Mr Markus noted that Mr Postiglione's son, James, has been a victim of his father's criminal history. While James may now wish to establish a relationship with his father, James is now an adult and this desire by itself should not outweigh the interests of the Australian community.

Consideration of the Law and Findings

33. As stated above, the threshold issue for the Tribunal to determine is whether pursuant to sub-section 23AA(1)(b)(ii), at the time when Mr Postiglione regained his Italian citizenship by signing the Citizen's Book in Rome (T80) on 21 March 1978, he was aware that by doing so he would cease to be an Australian citizen. Mr Postiglione's evidence is that when he went to discuss his situation with the Italian immigration authority, ANAGRAFE in Rome, he was assured "that by regaining Italian citizenship, I would not lose my Australian citizenship as I was able to hold a dual citizenship"(T80). He also confirmed this in oral evidence stating that he was not aware that he had lost his Australian citizenship until the committal proceedings on the conspiracy charge in 1988.

34. The Respondent contended that Mr Postiglione must have been aware of his loss of Australian citizenship by virtue of the fact that when he sought renewal of his Australian passport in November 1984, the documentation from the Australian Embassy records that he submitted his certificate of Australian citizenship and extract of birth as supporting documentation. There is no mention of his having submitted his Australian passport. Mr Markus suggested that Mr Postiglione's old Australian passport might have been confiscated by the Italian authorities when he was imprisoned in 1980. Mr Markus also pointed to Mr Postiglione's conveniently selective memory, noting that he claimed to have a clear recollection of the events surrounding his re-acquiring his Italian citizenship in March 1978, while, in giving evidence, it was apparent that his memory concerning travel dates was vague.

35. Having considered the evidence and the contentions of the parties, the Tribunal finds on the balance of probabilities that Mr Postiglione was not aware that he would lose his Australian citizenship when he re-acquired his Italian citizenship in March 1978. The Tribunal accepts Mr Postiglione's evidence as to what occurred when he visited the Italian immigration authority and what occurred when he signed the Citizen's Book. This seems consistent with Mr Postiglione's desire to maintain his immigration status with the Australian authorities. Thus, in the Tribunal's view, Mr Postiglione satisfies the requirements of s 23AA(1)(b) with regard to the statement to be furnished to the Minister, and the Tribunal must therefore proceed to consider whether to exercise the Minister's discretion to register Mr Postiglione's declaration with the result that he would again become an Australian citizen.

36. The Tribunal notes that there are no express limitations imposed upon the discretion afforded to the Minister in s 23AA of the Act. However, as the High Court has recognised in a number of decisions, the discretion must, nevertheless, be exercised having regard to "the subject-matter, scope and purpose of the statute": Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40, following R v Australian Broadcasting Tribunal (1979) 144 CLR 13 at 49. The Tribunal notes that the power of the Minister to grant Australian citizenship to permanent residents pursuant to s 13(1) of the Act is subject to the person satisfying the Minister of having met a number of criteria including under s 13(1)(f) that "the person is of good character". The Tribunal has no doubt that given the significance which attaches to citizenship as the exclusive criterion for admission to membership of the Australian Parliament, a person's character is a relevant matter which the Minister may consider in exercising his discretion under s 23AA of the Act.

37. Mr Postiglione has an extensive criminal history. After arriving in Australia in 1962, he was convicted of relatively minor offences in 1966 (break, enter and steal) and 1970 (offensive behaviour). However, he has been convicted of a number of serious offences in connection with drug trafficking: on 5 March 1983 in Rome, he was convicted of criminal conspiracy to traffic heroin and sentenced to 14 years imprisonment, later reduced on appeal to 12 years; on 28 June 1988, he was sentenced to life imprisonment for being knowingly concerned in the importation of heroin, a sentence which was reduced on appeal to 12 years with a non-parole period of 9 years; on 7 May 1993, he was sentenced to 21 years imprisonment for conspiracy to import cocaine, a sentence which was reduced on appeal to 18 years imprisonment with a non-parole period of 13 years and 10 months. Mr Postiglione also has one other seemingly minor conviction for assault occasioning actual bodily harm for which he was sentenced to a fine of $500 on 17 April 1997. The Tribunal accepts Mr Postiglione's explanation that the relatively low penalty imposed by the magistrate for this most recent offence was in recognition of the circumstances of the incident, when Mr Postiglione reacted to standover tactics by another prisoner.

38. While Mr Postiglione gave evidence that his trial in Italy in 1980 was unfair by reason of his lawyer being unable to cross-examine the principal witness who gave evidence against Mr Postiglione because of the then Italian trial procedure, nevertheless, the Tribunal assumes that the inquisitorial procedure adopted pre-trial would have revealed the main facts in relation to the relevant offence. The Tribunal also notes that Mr Postiglione having been provisionally released on 29 September 1984 pending his appeal being heard by the Supreme Court of Appeal in Rome, nevertheless did not attend that hearing in breach of the conditions of his bail. The Tribunal finds his explanation for this somewhat implausible: he explained that his lawyer fell into disgrace and was not in a position to contact him in Australia to inform him of the forthcoming trial. In the Tribunal's view, it was not unreasonable to expect Mr Postiglione to maintain contact with the authorities in Rome to ascertain the date of the forthcoming hearing. The Tribunal notes that there is an outstanding warrant for Mr Postiglione's arrest for non-appearance at the hearing, and that he has a further 5 years 4 months and 2 days of his sentence to serve.

39. With regard to the other serious offences, the Tribunal notes that Mr Postiglione pleaded guilty and, with respect to the 1993 conviction, he assisted in providing information to the authorities and in giving evidence as a Crown witness. By doing so, he placed himself at risk and has been in special protection ever since.

40. Drug-related offences of the nature of those in respect of which Mr Postiglione has been convicted, are abhorrent to the Australian community, especially because of the damage caused to vulnerable members of the community by hard drugs. Certainly, the provisions of the Migration Act 1958 and the policy adopted by the Minister in relation to the grant or refusal of visas, emphasises the need to protect the Australian community from those who commit serious crime (See for example, Direction 21 - Visa Refusal and Cancellation under s 501). It is not unreasonable to assume that the Australian community would have the expectation that those who commit serious crime, such as that related to drug importation and trafficking, should not be permitted to benefit from the rights of Australian citizenship. Such offenders have been shown to abuse the trust imposed, when allowing those persons to reside in Australia. Thus, in the Tribunal's view, Mr Postiglione's history of serious drug related crime must be a primary consideration in considering whether or not to exercise the Minister's discretion under s 23AA of the Act.

41. However, other considerations must also be taken into account in considering the Applicant's character. The Tribunal notes that Mr Postiglione has been imprisoned since 9 March 1987, a period of approximately 14 years and 9 months, and that his non-parole period finishes on 6 May 2003. The Tribunal has examined a number of reports contained in the documents produced pursuant to a summons served on the New South Wales Department of Corrective Services in relation to Mr Postiglione. These reports indicate that Mr Postiglione is "generally polite to all officers and staff and other inmates and conforms to prison routine": Progress Review dated 23 May 1997 (A3). The reports indicate that he is co-operative and has a good work ethic. The Tribunal also notes that, having worked in prison wood workshop, Mr Postiglione donated children's toys, which he made from materials that he purchased personally, to the Children's Cochlear Implant Centre at Gladesville Hospital in February 2000.

42. The Tribunal accepts Mr Postiglione's evidence that he has converted to the faith of a Jehovah's Witness and that this has changed him and his attitude to life. The Tribunal also notes the support forthcoming to him from the community of Jehovah's Witnesses. Mr Postiglione wishes to re-establish his relationship with his son, James, who is aged 22, and James gave evidence of his desire to do likewise. While James was born in Italy, he has spent virtually the whole of his life in Australia, is an Australian citizen and is committed to life here. Apart from James, Mr Postiglione has a sister living in Sydney. The Tribunal notes that James had no contact with his father in the past 12 months until the day of the hearing and has had very little contact with him since Mr Postiglione was detained on 9 March 1987. As Mr Markus acknowledged, James is essentially a victim of his father's criminal history and, while it may be difficult for them to maintain a relationship if Mr Postiglione has to return to Italy, nevertheless, contact of the type which they have experienced in recent years is still possible and it may be possible for James to visit his father in Italy at some stage. Mr Postiglione gave evidence that he was divorced in about 1981/1982 and wants no further contact with his ex-wife.

43. Ms McManus contended that it would be unfair to Mr Postiglione to deny him citizenship given that he was unaware that his re-acquiring Italian citizenship in March 1978 would result in his losing his Australian citizenship. It was implied that he might have decided not to re-acquire Italian citizenship had he been aware of this or might have sought to resume his Australian citizenship after returning to Australia in late 1984. Ms McManus also pointed to the hardship which Mr Postiglione might suffer if he was denied Australian citizenship with the result that he would be liable to deportation on the expiry of his sentence. The Tribunal notes that, on being returned to Italy, Mr Postiglione would presumably be arrested under the terms of the outstanding warrant issued in 1986: he has more than 5 years to serve of the sentence imposed by the Italian courts for the offence committed in late 1979 and early 1980.

44. Weighing up these considerations, in the Tribunal's view, it is reasonable for the Minister's discretion under s 23AA(1) of the Act to be exercised to refuse registration of Mr Postiglione's declaration with the effect of denying his resumption of Australian citizenship. The pre-eminent considerations are the need to protect the Australian community and the community's expectations and, in the Tribunal's view, these outweigh the other considerations referred to above. Thus, the Tribunal affirms the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

Signed:

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

Associate

Date of Hearing: 12 December 2001

Date of Decision: 22 January 2002

Counsel for the Applicant: Ms L McManus

Solicitor for the Respondent: Mr A Markus, Australian Government Solicitor