SRXXX and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 48 (17 January 2003)

Last Updated: 23 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 48

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/579

GENERAL ADMINISTRATIVE DIVISION )

Re SRXXX

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 17 January 2003

Place Sydney

Decision The tribunal affirms the decision under review.

[SGD]Senior Member

CATCHWORDS

CITIZENSHIP - Citizenship application - discretion re citizenship - "good character" - applicant's failure to respond correctly to questions regarding offences and penal orders on standard departmental form - Australian Citizenship Instructions and nature of offences - decision to refuse citizenship affirmed

Australian Citizenship Act 1948 ss 13(1)(a)-(j), 13(11)(a)-(g), 13(12), 13(13)

Administrative Appeals Tribunal Act 1975 s 35(2)(aa)

Drake and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALD 634

REASONS FOR DECISION

17 January 2003 Mr M J Sassella, Senior Member

APPLICATION

1. This is an application to the Administrative Appeals Tribunal ("the tribunal") by SRXXX ("the applicant"). He seeks review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the respondent") dated 2 April 2002 (T2). In that decision the applicant was refused a certificate of Australian citizenship under s 13 of the Australian Citizenship Act 1948 ("the Act") on the basis that he was not "a person of good character" as required by s 13(1)(f) of the Act.

HEARING

2. The tribunal convened a hearing in this matter in Sydney on 19 November 2002. SRXXX represented himself. Mr A Mullins represented the respondent. The tribunal heard oral evidence from SRXXX. The tribunal had access to the following documentary evidence:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T10) provided by the respondent.

Exhibit A1 - Applicant's submissions, 18 July 2002.

Exhibit A2 - Applicant's witness statement, 17 July 2002.

Exhibit A3 - Statement by Mr P Gilbert, JP, 18 November 2002.

Exhibit A4 - Statement by Ms L Holub, undated.

Exhibit A5 - Statement by SRXXX's ex-wife, 18 November 2002.

Exhibit A6 - Statement by Mr M Bayliss, 18 November 2002.

Exhibit R1 - Respondent's statement of facts and contentions, November 2002.

3. At the applicant's request the tribunal issued the following direction under

s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975:

The tribunal prohibits the publication of the name of the applicant and of any other witness whose connection with the applicant may lead to disclosure of the applicant's identity.

CHRONOLOGY

4. The applicant, a male person, was born in Guildford in the United Kingdom on 22 October 1946 (T7/43).

5. The applicant first arrived in Australia on 15 January 1957 (T5). Soon after that he went to New Zealand.

6. In 1967 SRXXX moved from New Zealand to Australia and he has been here since.

7. On 17 May 2000 SRXXX was charged with 16 counts of "make false instrument" and 16 counts of "use false instrument" (T7/49; T9/55-56)

8. On 24 July 2001 SRXXX was found guilty of the charges made against him but was not convicted (T9/55). He was discharged on a good behaviour bond running for three years pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW). The good behaviour bond will expire on 24 July 2004.

9. On 18 August 2001 SRXXX lodged an application for grant of Australian citizenship with the Department of Immigration and Multicultural and Ethnic Affairs ("the department") (T5/34). That application was in a standard form which included questions relevant to an applicant's good character. Question 37 on that form included the following sub-questions:

"...

(a) Have you ever been convicted of, or found guilty of ANY offences? (Include all traffic offences which went to court)

(b) ...

(c) ...

(d) Are you presently under a probation order, good behaviour bond, on parole, released on licence or subject to periodic detention?

(e) Are you aware of any proceeding pending against you for an offence, including by way of appeal or review?

..."

10. SRXXX answered "No" to all of these questions. Provision was made in question 38 for inclusion of further particulars by an applicant who had answered "Yes" to any question in question 37. An interviewing officer in the department obtained information about SRXXX's good behaviour bond. However, the interviewing officer was under the impression that one previous conviction in 1976 and two in 1979 had still not been declared at interview and annotated question 38 accordingly.

11. On 2 April 2002 the respondent refused the applicant a grant of Australian citizenship on the basis that SRXXX failed to satisfy the character requirements in s 13(1)(f) of the Act (T2/6-7).

LAW

12. Section 13 of the Act contains the following provisions of relevance:

Grant of Australian citizenship

13.(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a) the person is a permanent resident;

(b) the person has attained the age of 18 years;

(c) the person understands the nature of the application;

(d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f) the person is of good character;

(g) the person possesses a basic knowledge of the English language;

(h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j) if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.

...

(11) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1), (9), (9B) or (9E):

(a) during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person; or

(b) during any period during which the person is confined to a prison in Australia; or

(c) during the period of 2 years after the expiration of any period during which the person has been confined in a prison in Australia by reason of the imposition on the person of:

(i) a sentence of death that has been commuted to a sentence of imprisonment; or

(ii) a sentence of imprisonment for life or for a period of not less than 12 months; or

(ca) if the person is a serious repeat offender in relation to a sentence of imprisonment (within the meaning of subsection (11A))--during the period of 10 years after the end of any period during which the person has been confined in a prison in Australia because of the imposition on the person of that sentence; or

(d) if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or upon licence to be at large - during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole of that sentence, or the whole or a part of the remainder of that sentence, as the case requires; or

(e) if the person has been released by a court from serving the whole or a part of a sentence of imprisonment upon the person's giving a relevant security - during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by reason of a breach of a condition of that security; or

(f) during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings of the kind referred to in paragraph (a) in relation to the person; or

(g) if the person has ceased to be an Australian citizen - during the period of 12 months commencing on the day on which the person ceased, or last ceased, to be an Australian citizen.

...

(12) Where the Minister makes a decision under this section refusing an application and the applicant is present in Australia, the Minister shall cause to be served on the applicant a notice in writing setting out that decision. The notice may be served personally, by post or by an electronic communication.

(13) Nothing in paragraph (4)(a) or subsection (11) shall be taken, by implication, to limit the generality of paragraph (1)(f).

APPLICANT'S EVIDENCE

13. SRXXX took an oath at the tribunal hearing and gave the following evidence. He agreed that he had completed question 37 of the application form. He had not seen the responses as false because he had not been convicted by the court. The court had found him guilty but recorded no conviction. He had overlooked the part of the question that related to having been found guilty, even if not convicted. He said much the same about responding "No" in relation to being on a good behaviour bond. He had regarded himself as not convicted and so saw the questions as not applicable to him. SRXXX proceeded to explain that he did not see the offences as serious and he did not see himself as guilty as the money he accessed was "his own". He relied to an extent on comments made by the Local Court judge:

"I have taken into account on the position side, the subjective factors that you have no prior criminal record and that is strongly to your credit at 55 years of age. Clearly, someone who has not in any way previously been dishonest. These matters as I said were probably... rather than... you were certainly honest to the court and perhaps misguided but at the end of the day they end up being dishonest. I've also taken into account these are therefore, with no loss to anyone, at the lowest end of the matters that the court sees in this type of matter. I have also taken into account that you are someone who has had are... that these charges are totally out of character and that you are someone who has been of impeccable good character prior to this." (Exhibit A2/16)

14. To appreciate why the applicant made these points it is instructive to consider what SRXXX did. He and another person, whom I shall name "X" for the purpose of these reasons, were in a partnership arrangement in the building industry. They were co-signatories for cheques drawn on the firm's chequing account. On Fridays it was necessary to draw a cheque in order to pay those who worked for the firm. SRXXX ran the firm's finances. It was time consuming for him to go to X to obtain X's signature on a Friday. SRXXX and X were located on opposite sides of the city. SRXXX took to signing cheques with both his signature and X's signature (as forged by SRXXX). SRXXX explained to the tribunal that he had put up the money in the cheque account. X provided construction know-how. It appeared to the tribunal, from SRXXX's evidence, that X would not have objected to signing the cheques had SRXXX presented them to him for that purpose.

15. SRXXX now runs his own business independently of X.

16. SRXXX referred to the NSW Police Service report dated 26 March 2002 (T10) which suggested that SRXXX had criminal convictions in NSW in 1976 and 1979. SRXXX argued that these convictions were not his. These documents related to a person born on 27 December 1958 and clearly did not relate to SRXXX.

17. SRXXX told the tribunal that he was a person of good character for the following reasons:

* He is aged 56.

* He does no harm to anyone.

* He has had no police trouble in Australia, New Zealand or the United Kingdom except for the offences in 1999.

* He assists people in all walks of life. For example, he gave an ex-prisoner a chance by placing him in a position of trust.

* He is prepared to admit when he is in the wrong.

* He has employed many people, teaching them trades. His staff have tended to stay working for SRXXX for lengthy periods.

* He has never been a burden to Australia. Neither SRXXX nor his children had ever been on social security.

* As an ex-professional soccer player he had assisted an amateur team in NSW to enter and play in the premier league.

18. The respondent had provided extracts from the department's Australian Citizenship Instructions ("the instructions") in ex TD1. The applicant noted instruction 5.1.4 which in part read, "If the case may be one of refusal, the information must be put to the applicant at interview or by letter before any finding of fact is made". SRXXX said that he had not been confronted with the adverse material before the adverse findings were made in the present case.

19. SRXXX addressed instruction 5.4.11 which required a decision-maker to 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 for which a conviction has been recorded and a pattern of unlawful behaviour which would suggest that the applicant is not of good character." SRXXX argued that the crimes were out of character for him.

20. SRXXX argued that since committing the crimes he had kept himself "clean". He also pointed out that the offences were committed over a period of only three months and that he had never committed any offences over his entire lifetime other than in that three-months period.

21. SRXXX argued that his reputation at the time of the hearing was very high. His employees think highly of him, as do his suppliers. He does a lot of work "on a handshake". He has had only three consumer affairs complaints in 11 years. He had conceded on these because he saw himself as, in part, in the wrong.

RESPONDENT'S CASE

22. Mr Mullins submitted that the tribunal should have regard to the instructions. In support, he cited the well-known passage by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 645:

"In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.

"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny."

23. In the present case it is not clear that the instructions have been approved by the Minister and have been exposed to parliamentary scrutiny. However, they are still worthy of consideration in as much as their contents reflect good sense and are prone to produce consistency in administrative decision-making.

24. Mr Mullins referred to instruction 5.4.7 which requires decision-makers to consider the seriousness of the offences. Indicia of seriousness are the types of crime, eg "crimes of violence, sexual abuse, drug trafficking, major fraud, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more". Mr Mullins pointed out that SRXXX had committed 33 offences in total. The offences were said to be serious. They were offences under ss 300 and 301 of the NSW Crimes Act 1900 and carried maximum sentences of 10 years imprisonment each.

25. Mr Mullins referred to certain of the judge's comments in sentencing SRXXX. In ex A2/10 the judge said that the law treats the authenticity of signatures as sacrosanct in defined circumstances to protect the integrity of the banking, legal, property and finance systems. At ex A2/15 and 16 the judge described the offences as "very serious". The judge criticised SRXXX for not adopting other means to deal with the inefficiencies involved in obtaining X's signature on cheques. For example, the signatures required could have been changed or SRXXX could have had X sign a number of blank cheques in bulk.

26. The judge considered that any person in the street asked whether another person could sign a cheque for a third party would respond that, of course, that could not be done.

27. Mr Mullins referred to instruction 5.4.9 which required a decision-maker to take account of ongoing obligations in relation to the sentence handed down. An as yet undischarged good behaviour bond was an example. "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". The instruction suggested, however, that there may be circumstances where a person could be considered to be of good character despite the existence of a good behaviour bond. This instruction reflects the policy behind s 13(11) which is reproduced above in paragraph 12.

28. As noted earlier, SRXXX's bond expires in 2004. Mr Mullins referred to the judge's express reason for imposing a bond (ex A2/16). The judge said, "I consider that you have fully learned your lesson and that the court can do sufficient justice by putting you on a bond under section 10 just to ensure that this will remain with you and you will keep reflecting on it". Mr Mullins said that the period of good behaviour needed to run its course before it would be appropriate to determine the matter of citizenship in SRXXX's favour.

29. Mr Mullins submitted that SRXXX's explanation for his inaccurate responses to question 37 (see paragraphs 9, 10 and 13 above) was not satisfactory. Mr Mullins described SRXXX as an astute businessman who should have read, and did read, the questions. The court matter was recent when he completed the application form.

30. As regards instruction 5.4.11 (see paragraph 19 above) Mr Mullins submitted that SRXXX had committed 33 offences, despite there having been only one criminal proceeding. Further, Mr Mullins submitted that SRXXX had ceased the illegal practice of forging X's signature on cheques only because X had complained and his complaint had brought about the prosecution. SRXXX challenged this version of events. He had "pulled the plug" himself when X began to demand excessive access to the funds of the partnership. SRXXX had gone to the police himself when he became aware of their interest.

31. Mr Mullins referred to instruction 5.4.12 which invited decision-makers to consider any extenuating circumstances relating to the crimes. Mr Mullins said that none had been suggested. The tribunal considers that this may not be accurate. SRXXX had submitted that no one was defrauded of any money as a result of his actions. He had forged X's signature to access funds that were SRXXX's in the ultimate analysis.

32. Mr Mullins referred to instruction 5.4.13 which allowed account to be taken of the youth of an applicant. However, as Mr Mullins pointed out, SRXXX was aged 53 when he committed the offences.

33. Mr Mullins addressed instruction 5.4.13 which emphasised that it was an applicant's reputation as at the date of any citizenship decision that was relevant. In the tribunal context it is an applicant's reputation as at the date of the tribunal's decision that is relevant. Mr Mullins suggested that the tribunal should give less weight than might appear appropriate to the references (ex A3, A4, A5) provided by SRXXX because the writers had not been told of the applicant's guilt of the dishonesty offences.

34. Mr Mullins referred to instruction 5.4.16 which permitted note to be taken of an applicant's behaviour since commission of an offence. Mr Mullins submitted that the period of good behaviour since SRXXX's commission of offences had been too short.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

35. In accordance with the requirements of s 13(1) of the Act the tribunal finds that the applicant applied on 22 August 2001 for the grant of Australian citizenship using an approved form (T5/34).

36. The tribunal finds that s 13(11) does not apply to the applicant in that s 13(11) does not preclude the grant of a certificate of citizenship to an applicant who is subject to a good behaviour bond. However, that provision does not operate to make irrelevant the existence of a good behaviour bond.

37. The tribunal notes that the Minister, and the tribunal, have an unfettered discretion to regard an applicant as being, or not being, of good character in the light of the available facts.

38. In the present case the tribunal regards the respondent's strongest arguments as being (i) that the applicant has still to serve out a good behaviour bond; (ii) that the offences of which he has been found guilty are serious and (iii) that the applicant's explanation for giving false or misleading answers to question 37 were unsatisfactory.

39. The applicant's strongest arguments were (i) that the criminal conduct in which he engaged was out of character; (ii) that no person was directly affected in any adverse way by the criminal conduct; (iii) that he was able to produce testimonials in his favour from several independent and apparently reputable people and (iv) that the judge had decided that the applicant had "fully learnt" his lesson (ex A2/16).

40. Of these considerations the one that concerned the tribunal most is the applicant's provision of false answers to question 37 in the application form. The tribunal was largely convinced that SRXXX had learnt the error of his ways in relation to the forgery offences. The tribunal is satisfied that there is no appreciable likelihood of SRXXX re-offending. The tribunal found SRXXX an apparently frank and honest witness. However, the questions in question 37 are in plain English and are easily understood. SRXXX is a successful businessman who can be regarded as aware of the importance of completing official documentation accurately. The conclusion is inescapable that SRXXX either gave incorrect answers knowing them to be false or, at least, without due care in completing a form that was clearly a serious part of the process of achieving a grant of citizenship. The tribunal believes that SRXXX is a person of good reputation, in part as a result of the testimonial evidence. However, as SRXXX told the tribunal, the writers of the testimonials, and many other people, were unaware of his criminal history.

41. The tribunal finds that the error on SRXXX's part in answering question 37 2001 is sufficient to cause the tribunal to harbour doubts as to the applicant's good character at this time. The tribunal therefore will affirm the decision under review.

CONCLUSION

42. The tribunal, having found that the applicant is not at this time of good character as required by s 13(1)(f) of the Act, considers that the decision under review should not be disturbed. However, there is nothing to prevent the applicant from re-applying for Australian citizenship at a later date. He would stand his best chance of success if he were to do this after the good behaviour bond has expired. In a later application he would not, presumably, have to labour under the disadvantage of giving inaccurate answers to question 37.

DECISION

43. The tribunal affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

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

Associate

Date of hearing 19 November 2002

Date of decision 17 January 2003

Counsel for the applicant Self-represented

Advocate for the respondent Mr A Mullins

Solicitor for the respondent Blake Dawson Waldron Lawyers