Walker and Minister for Immigration and Citizenship [2010] AATA 72 (2 February 2010)

Last Updated: 5 February 2010

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1720
GENERAL ADMINISTRATIVE DIVISION )

Re

PETER WALKER

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr G L McDonald, Deputy President

Date 4 February 2010

Place Melbourne

CORRIGENDUM TO DECISION [2010] AATA 72

Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 the Tribunal directs the Registrar to amend the decision dated 2 February 2010 as follows:

(a) paragraph 17, 1st line delete respondent and insert applicant.

....(sgd. G L McDonald).....
G. L. McDonald
Deputy President

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 72

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1720

GENERAL ADMINISTRATIVE DIVISION		)
	Re		PETER WALKER

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr G. L. McDonald, Deputy President

Date 2 February 2010

Place Melbourne

Decision

The Tribunal affirms the decision under review.

.....(sgd. G L McDonald)......
Deputy President
CATCHWORDS – IMMIGRATION AND CITIZENSHIP – applicant was a child migrant – applicant applied for Australian citizenship – applicant served multiple terms of imprisonment – serious prison sentence – serious repeat offender – decision under review affirmed.

Australian Citizenship Act 2007 ss 3 and 24(6)

Ai and Minister for Immigration and Citizenship [2008] AATA 877

REASONS FOR DECISION

2 February 2010

Mr G. L. McDonald, Deputy President

1. The applicant is appealing against a decision denying him Australian citizenship under the provisions of the Australian Citizenship Act 2007 (“the Act”). The facts before the Tribunal are not disputed and the Tribunal is satisfied that they are as set out in these reasons.
2. The applicant has been a participant in a significant and troubling aspect of Australia’s history. He is one of the 10,000 children (“the child migrants”) between the ages of seven and 15 years who were sent from the United Kingdom to Australia following the second world war. Some of those children were orphans. The applicant’s circumstances were that his father had fought with the UK army in Burma in the second world war. In the applicant’s words his father returned “a damaged man” and was often drunk and abusive, including physically, to his wife and three children. The applicant’s mother, apparently unable to cope, committed suicide at home. It was the applicant, at age seven or eight years, who discovered her body. The applicant was then placed in an institution and his two younger siblings were placed in the care of a maternal aunt. In October 1949, at the age of eight years, the applicant was sent to Australia. He recalled upon arrival in Australia he was told that he and the children he arrived with were now “Australians”. He and his siblings were placed in the St John’s Boys’ Home in Canterbury, Victoria.
3. The following note appears in the Boys’ Home records:

Father and stepmother visited children once, promised to take them to live with them, if the Home would permit it? and then disappeared, leaving the children with the feeling that the Home had stopped them joining their father. Efforts to trace father were unsuccessful.[1]

He remained at the Boys’ Home for eight years. The applicant recalled the conditions:

I was unhappy and hated living there. We were abused physically, psychologically, and emotionally, and were exploited by the staff there. We were constantly reminded that we were no good and lucky to be cared by them. We constantly lived in fear as we were punished violently whenever we ever tried to defy them. I tried to escape on several occasions, however each time I was caught and brought back.[2]

4. At the age of 16 years the applicant was sent to work on a farm in Tatura. He got involved in criminal conduct and ended up being sentenced and detained at Pentridge prison. He does not dispute that he was convicted of offences and that the following terms of imprisonment were imposed:
   • (a) 13 September 1960 for two years;
   • (b) 6 July 1965 for six years;
   • (c) 1 March 1966 for 12 years;
   • (d) 18 July 1966 for 12 years;
   • (e) 5 April 2002 for three years (two years were suspended).[3]
5. The 1965 conviction was for robbing a bank at which time he was aged 23 years. He was then involved in the escape from prison as an accomplice of the notorious and ill feted Ronald Ryan. After the applicant’s recapture he was sentenced on 18 July 1966 to an additional 12 years imprisonment. He was released on Christmas Eve 1984.
6. After his release from prison the applicant married and established a successful fruit and vegetable business in Bendigo. Unfortunately his marriage broke up after about two years and he sold that business in 1987. He then worked for a time as an employee of a Woodend business erecting sheds before establishing his own business of as house restumper. He successfully operated that business for a period of 16 years. During this time he remarried and that marriage is successful and is continuing. The applicant was not convicted for any offences in the period between his release in 1984 and 2002.
7. In 2001 the applicant was apprehended and charged and in 2002 convicted of cultivating a commercial quantity of marijuana, despite his claim that he grew it for his own medicinal use. He was sentenced to a period of three years jail of which two years was suspended for good behaviour. While the exact date of his release was unknown at the time of hearing it was agreed that he was discharged from prison sometime in mid 2003. He has had no other convictions and states:

I regret what I had done and I this will be last time I ever spend time behind bars.[4]

The applicant is now retired and lives with his wife in a country town.

8. A reference to a sentence of imprisonment extends to any time during which the sentence is directed to be suspended. His sentence was therefore greater than 12 months and constitutes for the purposes of the Act a ‘serious prison sentence’.
9. After release from custody on mid 2003 the applicant wanted to return to the UK for a visit. He applied for a passport then thinking, on the basis of what he had been told upon arrival in Australia, that he was an Australian citizen. His application was unsuccessful. The applicant was in fact a permanent resident. If he was granted a visa to leave Australia as a permanent resident he may not be readmitted as the result of his previous convictions. He wants to have the security of knowing that if he leaves Australia he will be readmitted. To do this he requires an Australian passport. To acquire a passport a person must be an Australian citizen. The applicant applied for citizenship on 3 December 2008. His application was declined because he failed to meet the requirements of s 24(6)(d) of the Act which is in the following terms:

The Minister must not approve the person becoming an Australian citizen at a time:
...
(d) if the person is a serious repeat offender in relation to a serious prison sentence – during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence;[5]

Section 3 of the Act contains the following relevant definitions

serious prison sentence means a sentence of imprisonment for a period of at least 12 months.
serious repeat offender: a person is a serious repeat offender in relation to a serious prison sentence if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence.

THE ISSUES

10. The applicant does not deny his criminal record. It is claimed on his behalf that the wording of s 24(6)(d) is unclear and that it is capable of being interpreted in ways which would result in different outcomes.
11. The first interpretation confines the provision to those cases where an applicant has been sentenced to two periods of imprisonment, each amounting to more than 12 months imprisonment, within a 10 year period. Support for this interpretation is found by what the Tribunal said in the decision of the Tribunal in Ai and Minister for Immigration and Citizenship.[6] That case concerned an application for review by a person who had been sentenced to two periods of imprisonment each for a year or greater within 10 years of each other. What was said by the Tribunal in that case is restricted to facts in that case and cannot be used to mount a general proposition that constrains the definition ‘serious repeat offender’ only to those cases where a ‘serious prison sentence’ has been imposed for offences occurring within a 10 year period of each other.
12. The second interpretation on which the respondent primarily relies is that no matter what the time lapse between the imposition of terms of ‘serious prison sentences’ an application for citizenship is mandatorily excluded until after the expiration of a 10 year period from his/her release following the most recent serious prison sentence.
13. If the first interpretation is accepted then the applicant would be entitled to an immediate grant of citizenship. Under the second he would only become entitled after the expiration of the 10 year period commencing from his release in mid 2003.
14. The Tribunal is satisfied that the meaning of s 24(6)(d) is clear from its terms.
15. The opening words of s 24(6) prohibit the Minister from approving a person as an Australian citizen if any one of the sub-paragraphs apply ‘at a time’. The time referred to is the time specified in the each of the sub-paragraphs. In s 24(6)(d) the time is specified as a period of 10 years after a ‘serious repeat offender’ has been released following the imposition of a ‘serious prison sentence’. The definition contained in s 3 of the Act of ‘serious repeat offender’ does not mention any time limit. The time limit referred to in the definition of ‘serious prison sentence’ is to the term of that sentence and is unrelated to when the sentence was served.
16. Applying those definitions to the applicant’s circumstances in the opening words of s 24(6)(d) results in a finding that the applicant became a serious repeat offender as the result of five sentences of imprisonment, each for a period greater than one year, in 1960, 1965, two in 1966 and finally with respect to the sentence imposed on 5 April 2002. The reference in the closing words of the sub-paragraph ”because of the imposition of that sentence” is clearly a reference to the ‘serious prison sentence’. There is no implication that arises to permit an interpretation which constrains the application of the sub-clause to the imposition of a ‘serious prison sentence’ to two such sentences imposed within a 10 year period of each other. For these reasons the Act is clear and there is no need to refer to extrinsic material to aid in its interpretation. The decision under review must be affirmed.
17. A final comment is warranted. The respondent included extensive documentation in respect of the plight of the child migrants sent to Australia after the conclusion of the second world war including the Senate report entitled “Lost Innocents: Righting the Record” dated August 2001.[7] That report recorded the highly unsatisfactory manner in which the child migrants had been treated after their arrival in Australia. The report recommended as follows:
    • confer automatic citizenship on all former child migrants, with provision for those who do not wish to become Australian citizens to decline automatic citizenship; and
    • that a special ceremony conferring citizenship be conducted for former child migrants.[8]
      

The recommendations were not accepted for inclusion in the Act when it was introduced in 2007.

18. The applicant filed a copy of the Prime Minister’s apology to the child migrants for their mistreatment in Australia given in the Great Hall of the Parliament on 16 November 2009. While the applicant accepts responsibility for his criminal past it is not too great a step to link his less than satisfactory childhood experiences, including the very unsatisfactory manner of his treatment following his arrival in Australia, to his subsequent offending. Given his age and the current stability of his lifestyle it is unlikely that he will offend again. Despite the combination of these most unfortunate circumstances the law continues to deny him the benefits of Australian citizenship, including the right to vote and acquire an Australian passport.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G. L. McDonald, Deputy President

Signed: ...........(sgd G Horzitski)............

Grace Horzitski Associate

Date of Hearing 22 January 2010

Date of Decision 2 February 2010

Counsel for the Applicant Mr G. Gilbert

Solicitor for the Applicant Mr E. Rodan,

Erskine Rodan & Associates

Solicitor for the Respondent Ms M. Gangemi,

Australian Government Solicitor

---

[1] T documents, T5(i)(iv), page 93.
[2] Applicant’s Statement of Evidence, filed 14 December 2009, page 1.
[3] Respondent’s Statement of Facts and Contentions, filed 24 December 2009, paragraph 8.
[4] Applicant’s Statement of Evidence, page 2.
[5] Tribunal’s emphasis.
[6] [2008] AATA 877.
[7] T documents, T5(j)(iv), page 109.
[8] T documents, T5(j)(iv), page 145.