Rankmore and Minister for Immigration and Citizenship [2010] AATA 1079 (20 December 2010)

Last Updated: 1 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1079

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2099

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Alana Rankmore

Applicant

And

Minister for Immigration & Citizenship

Respondent

DECISION

Tribunal

M D Allen, Senior Member

Date 20 December 2010

Place Sydney

Decision

For the reasons given orally at the conclusion of the hearing of this matter, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is SET ASIDE and remitted to the Respondent with the direction that the Applicant is entitled to the grant of Australian citizenship as and from 20 December 2010.

...................[sgd].......................
M D Allen, Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP: Application for grant of Australian Citizenship refused on basis Applicant was not of good character. Applicant demonstrated reformed behaviour and is now of good character. Decision under review set aside.

LEGISLATION

Australian Citizenship Act 2007 subsection16(2)

CASES

Tho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1042.

Chen and Minister for Immigration and Citizenship [2007] AATA 1815

REASONS FOR DECISION

1 February 2010

1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: ...........[sgd]............................................

K. Lynch, Associate

Date of Hearing 20 December 2010

Date of Decision 20 December 2010

Date of written reasons 1 February 2011

Representative for the Applicant Ms Rankmore (self)

Solicitor for the Respondent Ms Collins, Clayton Utz

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN: By an application made 28 May 2010, the Applicant sought review of a decision by a delegate of the Respondent, made on 20 April 2010, denying her claim for Australian citizenship by descent. Subsection 16(2) of the Australian Citizenship Act 2007 states:

“A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

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

(b)  if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

(i)  the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

(ii)  the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

(c)  if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application--the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application.”

The reason the Respondent’s delegate refused the Applicant’s request for citizenship was purely on the basis of her character and, although the Applicant’s last offence was in February 2007, the delegate stated:

“I find that Ms Parkmore [sic] record of repeated offences require her to demonstrate a substantial period free from conviction to satisfy me that she has reformed and is a person of good character.”
Before the Tribunal today, the Minister’s representative has submitted along the same lines, namely, that given the numerous offences committed by the Applicant, there should be a substantial period in which she can demonstrate that she has changed into a person of good character.

I certainly agree that the Applicant’s offences are sustained, and at the time show contempt for the law. As an aside, they might also be said to show that there is very little to be gained by being weakly merciful in imposing penalties. There has been various bonds, suspended sentences, etcetera, all of which have been broken. Notwithstanding that, as I said, the Applicant’s last offence was in February 2007, and for the offences being committed, she was sentenced to a period of six months home detention.

She was able to successfully complete that home detention and that, in itself, I regard as a substantial factor in her favour, as it required her to remain at home, to not associate with anyone with a criminal conviction, and to abstain from alcohol.

The offences occurred in what might be said to be a discreet period commencing in 2001 and ending in 2007. The Applicant’s evidence is that at that time, she was involved in a relationship which was both violent and abusive, and that her then partner was, himself, addicted to drugs. She became addicted to amphetamines, but has now weaned herself off drugs. Importantly, she has turned her life around in that she has completed courses so that she is now employed as a counsellor with the Department of Human Services Juvenile Justice.
One can see that that is and forms a very responsible position. She has not only qualified for that position but has been assessed in that, and continues her employment. She confirmed today that were she to obtain any further criminal conviction, that would lead to the termination of that position. She is attending a college of further education and obtaining certificates leading to a diploma in counselling. She hopes to go on and then attend the University of Western Sydney and obtain tertiary qualifications in counselling. She already qualifies for admission to university, but has decided to complete her diploma first, a course which commends itself.

She has, of course, long since terminated the abusive relationship and with her courses which, I might mention, also involved attending a psychologist for some four hours, it can be said, as far as I can see, that she has totally turned her life around. And having seen and heard the applicant, for myself, I am of the belief that she will not offend in future.

I was referred to the case of Tho v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1042 where Isenberg Senior Member stated that she would accept that the standard of good character in citizenship matters should be higher than that for section 501 of the Migration Act, because of the greater responsibilities and privileges attached to citizenship. That is to say, it enables an Applicant to obtain an Australian passport and to vote.

I was also referred, in the Respondent’s statement of facts and contentions, to the decision of McCabe Senior Member in Chen v Minister for Immigration and Citizenship [2007] AATA 1815, where the learned Senior Member said:

“The wording of the test is important. It does not require that the Minister form an adverse view of the Applicant’s character. The Minister must be positively persuaded that the Applicant is of good character. Where evidence raises a question in the mind of the decision maker over the fitness of the Applicant, it is encumbered on the Applicant to adduce evidence that will enable the Minister or the Tribunal upon review to conclude that the person is of good character, notwithstanding the questions that were raised.”

In this matter, having regard to what the Applicant has now done with her life, having seen and heard her give evidence, and been aware of the support she obtains from her family, particularly her mother, I am positively persuaded that the Applicant is of good character.

It was pointed out to me that the delegate did not consider any question regarding the citizenship of the Applicant’s parent, in this case, the mother. There is, at document T4, page 33, a birth certificate pertaining to the Applicant’s mother. That clearly shows that she was born in Australia and, no doubt, would be, I can infer from that, that she has not lost her citizenship at any time, and that she is an Australian citizen by birth.

I note also that in the documents which became Exhibit A1, there is appended a document which is stated to be a certificate of Aboriginality. From that, it seems that the appropriate body, in this case, the Local Aboriginal Land Council, has confirmed for the purposes of the Aboriginal and Torres Strait Island Commission Act 1898 that the Applicant is of Aboriginal descent. In those circumstances, I think I can add, further, the inference that the Applicant’s family on one side are Australian citizens, and were at the time of her birth. I was informed from the bar table the descent is from the mother.

All in all, I am satisfied and will direct that the decision under review be set aside, and the Applicant is entitled to the grant of Australian citizenship as and from today’s date.

- END OF EXTRACT OF TRANSCRIPT -