Webb and Minister for Immigration and Multicultural Affairs [2002] AATA 199 (26 March 2002)

Last Updated: 27 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 199

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/709

GENERAL ADMINISTRATIVE DIVISION )

Re Jeremy John Peter WEBB

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date 26 March 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

..................(Sgnd)...................

R G Kenny

Member

CATCHWORDS

IMMIGRATION - Citizenship - refusal to register applicant as Australian citizen by descent - whether applicant of good character - Australian Citizenship Instructions

Australian Citizenship Act 1948

Australian Citizenship Act 1948 s 10C

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration and Multicultural Affairs v Shane Ali [2000] FCA 1385; (2000) 106 FCR 313

Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634

Re Hamwi and Department of Immigration and Ethnic Affairs (AAT 9639, 25 July 1994)

Re Milnar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

Re Naumovski and Minister for Immigration and Ethnic Affairs (AAT 9815, 4 November 1994)

Re PE and Department of lmmigration and Ethnic Affairs (AAT 9990, 6 February 1995)

REASONS FOR DECISION

26 March 2002 Mr R G Kenny, Member

Hearing

1. This statement of reasons relates to the hearing by the Administrative Appeals Tribunal (the Tribunal) of an application to review a decision, dated 6 July 2001, of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister and respondent) in which an application by Jeremy John Peter Webb (the applicant) to be registered as an Australian citizenship was not approved.

2. In evidence was a set of documents (the T Documents), and these included an application for review (T1), received by the Tribunal on 7 August 2001, which contained a statement by the applicant where he set out his reasons for believing that the decision was wrong. Also in evidence was a statement, dated 30 November 2001, by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

Appearances and exhibits

3. The applicant attended the hearing but was not represented. Mr D Gallo of counsel appeared on behalf of the respondent.

4. At the hearing, the following material was taken into evidence from

* the respondent:

exhibit 1 - documents prepared in accordance with section 37 of the AAT Act (the T documents: T1 - T28);

exhibit R1 - extracts from the applicant's Corrective Services File.

* the applicant:

exhibit A1 - a statement, undated, by the applicant;

exhibit A2 - a letter, dated 12 September 2001, from David Collins, Character Assessment Unit with the Department of Immigration and Multicultural Affairs (the Department);

exhibit A3 - a letter, undated, from the applicant's mother, Lynette Moody;

exhibit A4 - a letter, dated 7 July 2000, from Acting Senior Sergeant G A Evans, Officer in Charge of Police, Southbank;

exhibit A5 - a letter, dated 24 October 2001, from Samantha Marles;

exhibit A6 - a certificate from Borallon Correctional Centre for successful completion of the Cognitive Skills Course;

exhibit A7 - a letter, undated, James Marles Webb;

exhibit A8 - a letter, undated, from Mr A T McNamara;

exhibit A9 - a certificate from Borallon Correctional Centre for successful completion of the Substance Abuse Prevention and Managing Relapse Program;

exhibit A10 - Exit Report - Substance Abuse Prevention and Managing Relapse Program;

exhibit A11 - a letter, dated 25 October 2001, from Peter R Webb.

Background

5. An "Application for Registration of Australian Citizenship by Descent" was completed by the applicant on 10 May 2001 and lodged with the Department on 21 May 2001 (T25). On 6 July 2001, an officer of the Department determined that the applicant did not meet the relevant requirements for registration as set out in the Australian Citizenship Act 1948 (the Act) and advised the applicant that his application had not been approved (T2).

6. On 7 August 2001, the applicant lodged an application for review of that decision with the Tribunal (T1-4).

7. The decision not to approve the application for registration of citizenship was made on the basis that the applicant had not fulfilled the good character requirement in s 10C(4)(d) of the Act.

Issues, Legislation and Ministerial policy

8. Under the Act, Australian citizenship may be acquired by a grant under s 13, by birth under s 10, by adoption under s 10B or by descent under ss 10B, 10C and 11. In this case, the relevant process is by descent and the only potentially relevant provision in the applicant's case is s 10C. It reads:

10C Citizenship by descent for a person over 18 years old

(1) A person who is registered under this section is an Australian citizen.

(2) A person may apply to the Minister to be registered under this section.

(3) The application must be in accordance with the approved form.

(4) The Minister must register, in the prescribed manner, an applicant for registration under this section if:

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

(b) that parent:

(i) is an Australian citizen at the time an application under this section is made; or

(ii) is dead and at the time of his or her death was an Australian citizen; and

(c) the applicant:

(i) was born outside Australia on or after 26 January 1949; and

(ii) is aged 18 years or over on the day on which this section commences; and

(iii) failed for an acceptable reason to become registered as an Australian citizen under:

(A) section 10B; or

(B) section 11 of this Act as in force at any time before the commencement of section 10B; and

(d) the Minister is satisfied that the applicant is of good character.

Note: acceptable reason is defined in subsection (5).

(5) For the purposes of subparagraph (4)(c)(iii), an applicant has an acceptable reason if and only if:

(a) an Australian passport has been issued to the applicant; or

(b) the applicant's name has been on an Electoral Roll under the Commonwealth Electoral Act 1918 ; or

(c) the applicant was unaware of the requirement of registration for the purposes of obtaining Australian citizenship by descent under section 10B or under section 11 of this Act as in force at any time before the commencement of section 10B; or

(d) the applicant has a reason for failing to become registered that is declared by the regulations to be an acceptable reason for the purposes of this section.

(6) If the Minister decides not to register an applicant under this section, the Minister must inform the applicant of that decision by written notice served personally or by post.

(7) A notice served on an applicant under subsection (6) must include:

(a) reasons for the decision; and

(b) notification of the applicant's entitlement to apply for review of the decision under section 52A.

9. As s 10C of the Act indicates, the applicant will be an Australian citizen if he is registered under that section and he must be registered if he satisfies the matters listed in subs 10C(4). It is not in dispute in this case that the applicant meets the requirements of that provision with the exception of s 10C(4)(d). The issue for the Tribunal to determine is whether the applicant meets the good character requirement as set out in that provision.

10. To assist delegates of the Minister in making decisions under the Act, a statement of Ministerial policy has been published by the Minister entitled the "Australian Citizenship Instructions" (the Instructions). The issue of character also arises under s 13 of the Act for decisions about the grant of Australian citizenship and Chapter 5 of the Instructions sets out the matters to be considered when dealing with the character requirements for that provision. Paragraph 8.4.3 of the Instructions applies Chapter 5 of the Instructions to the character test in s 10C of the Act. The relevant parts of Chapter 5 read:

5.4.2 The term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.

5.4.3 If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character. An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.

5.4.4 Assessment of good character involves establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character; according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.

5.4.5 Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 - 5.4.16(1), if there is evidence that the applicant:

(a) has, at any time, been sentenced to:

death;

imprisonment for life;

a term of imprisonment of 12 months or more;

2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

(b) may have committed, or been involved in the commission of, war crimes or crimes against humanity or human rights (in which case the decision maker is to contact Character Section in Central Office for advice);

(c) has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result been detained in a facility or institution;

(d) may have, or have had, an association with someone else, or with a group or organisation, whom the decision maker reasonably suspects has been or is involved in criminal conduct;

(e) is subject to proceedings for an offence against a law of another country, including proceedings by way of appeal or review; a person subject to such proceedings for an offence against an Australian law would come within the bar on grant in s 13(11)(a) (see 5.3.4); on release from the whole of a sentence on parole, licence or security a person; on release from part of a sentence would come within the bar on grant in s 13(11)(d) (see 5.3.9)

5.4.6 Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, 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 are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.

5.4.7 .....

5.4.8 Consider whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond. 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. However, there may be circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond. (Note that periods on parole or proceedings pending must be considered under s 13(11), where they come within the scope of that provision).

5.4.9 .....

5.4.10 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. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13 - 5.4.16(2)).

5.4.11 Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

5.4.12 Crimes committed by the applicant at a young age may be given less weight depending on the nature of the crime and the applicant's subsequent record. It may be considered that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.

5.4.13 A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

5.4.14 The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not theapplicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.

5.4.15 The applicant's present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight.

Applicant's case

11. The applicant gave the following evidence at the hearing. He was born in Guernsey in the United Kingdom of Great Britain and Northern Ireland on 28 December 1968. His mother was at that time and remains an Australian citizen. His father was British. He was issued with a British passport and he and his parents came to Australia on 9 November 1970. He has lived in Australia ever since. He has not previously made an application for Australian citizenship as he was not aware that he had to do so. He has always assumed that he was an Australian.

12. He admitted that he has been convicted of several criminal offences. The first of these was in 1986 for breaking and entering a dwelling house. In 1988, he was convicted of being in possession of a utensil used in connection with marijuana. In 1994, he had convictions for being in possession of a weapon which he said was a spear-fishing device that he had when he was in New South Wales and brought with him to Queensland without knowing that it was illegal in that State. He was also convicted for other drug offences relating to marijuana and for a protected fauna offence in that year, the latter being in relation to a crocodile skin which had been given to him as a gift some years earlier when it had been lawful to keep such an item. Further convictions for receiving, for marijuana drug offences and for breach of bail offences occurred in 1995. In January 1996, he was convicted of supplying a dangerous drug and was sentenced to six months imprisonment. He remained in prison until he was admitted to parole on 3 March 1997. This was because, while in prison, he was convicted of other offences he had committed previously. These included two charges of possession of a motor vehicle with intent to deprive, for each of which he was sentenced to eighteen months imprisonment. There were also three charges of false pretences. For two of these, he was sentenced to nine months and one month imprisonment, respectively. For the other, he was sentenced to eighteen months concurrently with a conviction for receiving. He was also sentenced to eighteen months imprisonment for another receiving offence. On 24 February 1997, he was sentenced to two and a half years imprisonment for supplying a dangerous drug.

13. After he was admitted to parole, he lived with his partner and their son in Mooloolaba but experienced a degree of harassment from the police including an accusation that he had stolen certain household items that were found in his premises. He said that he decided to leave Queensland and went to Western Australia with his son. By doing so, he was in breach of his parole conditions. He returned to Brisbane in July 1999 and surrendered himself into custody where he remained until he was unconditionally released on 5 March 2002, three days prior to the Tribunal hearing.

14. During that second period in custody, he was again convicted and sentenced to imprisonment. This time it was for five stealing offences and he was sentenced to six months imprisonment. He said that the stealing offences related to the household items found in his house in 1997. He said that he had not committed these offences but pleaded guilty so that the matter could be finalised. He said that the conviction was based on his knowing about the stealing rather than on any direct involvement with the theft.

15. The applicant said that he is now in employment in Brisbane and has been for over two months. The position was obtained as part of a work release program while in prison. He stays in Brisbane during the week and returns to his partner and their two children at Golden Beach on weekends. Their oldest child is now 12 years old and their second child was born in 2001. He said that he completed many courses and obtained certificates while in prison in order to improve himself. These included certificates for fork-lift driving, work and safety, welding, small business, word processing, cooking and computer use.

16. In cross-examination, he conceded that he was found to have committed various breaches while in prison including returning from work release with a blood alcohol reading. He said that prisoners were randomly tested for this but that he had not consumed alcoholic drinks and that the reading must have reflected some other source such as cough medicine or perhaps it was that the measuring instrument was faulty. He said that, at that time, he had been admitted to the release to work program for the first time and agreed that, as a result of these readings, he had been removed from it and placed in secure custody.

17. The applicant said that he began to become involved in drug-taking in 1994 and that his doing so had been responsible for the offences he had committed. He also said that he is no longer associated with drug-taking.

18. The applicant said that he had intended to have his partner at the hearing to give evidence but said that she was unable to attend because of obligations to their two children.

19. Mrs Moody gave evidence and said that she had been in England when the applicant was born. She was aware that he had a British passport but did not realise that he needed to make an application for Australian citizenship. She said that he had been heroin-dependent and that this was the basis of all of his criminal activity. She said that, after he was released on parole in 1997, he had been the subject of constant attention from the police.

20. Mrs Moody said that the weapons offence on the applicant's record related to a spear gun purchased legally from a sports store in New South Wales. She said that the fauna offence related to a crocodile skin which had been given to him as a gift by his father who purchased it legally in the Northern Territory.

21. She said that she had spoken to the applicant prior to his surrender into custody in 1999 and was present when he explained to his son that he was doing it for the purposes of putting all of his problems behind him so that he could look after him.

Applicant's submissions

22. The applicant submitted that he had been associated with Australia for nearly all of his life. He was registered for voting in general elections and was a tax-payer. He submitted that it was unfair to deny him citizenship after all of that time especially when he was not aware that he needed to make an application for that status. He conceded that he had been of bad character in the past but submitted that his life had changed and also that he had not committed any crimes of violence. He said that he had paid the price for his drug-taking and the offences he committed in association with that practice and that they should not be held against him. He said he wanted to be an Australian citizen because he always believed he had been one and also for the sake of his children.

23. The applicant referred to references that he had provided to the Tribunal in relation to his character and he asked that these be taken into account. These were from his partner, Samantha Marles; his son, James Webb; his father, Peter Webb; a friend, Mr McNamara; and Sergeant G A Evans, Officer in Charge of Police, Southbank.

Respondent's submissions

24. Mr Gallo submitted that, in the absence of a definition in the Act of the term "good character", the decision of whether the applicant was of good character was to be determined in accordance with the policy in the Instructions. He also submitted that the term, as it is used in s l0C of the Act, should be given the same meaning as in s 501 of the Migration Act 1958 and, as authority, referred to Re Hamwi and Department of Immigration and Ethnic Affairs (AAT 9639, 25 July 1994); Re Naumovski and Minister for Immigration and Ethnic Affairs (AAT 9815, 4 November 1994); and Re PE and Department of lmmigration and Ethnic Affairs (AAT 9990, 6 February 1995). He also referred to the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432, where Lee J said that the words "good character" should be taken to be used in their ordinary sense, namely, as a reference to "the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community". Further, he submitted that, in Re Milnar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771, the Tribunal had stated that the standard of good character should be even higher for citizenship cases than for s 501 matters "because of the importance of citizenship and the greater responsibilities and privileges attached to it."

25. It was also submitted that, as several of the applicant's convictions resulted in terms of imprisonment exceeding 12 months, their seriousness met one of the criteria in the policy. He described the applicant as having shown a long pattern of behaviour with offences of dishonesty as well as those relating to drug ingestion and supply. He submitted that there was no evidence of extenuating circumstances and that, while the applicant was relatively young when he first offended, the most recent conviction related to events in 1997 when he was almost 30 years of age.

26. In relation to his present reputation in the community, Mr Gallo submitted that the applicant did not adduce evidence as to any positive contribution he has made to the broader community and that, given the seriousness of his criminal record and given the importance of the responsibilities and privileges associated with being granted Australian citizenship, he has not established that his reputation in the community has changed since his criminal convictions. He referred to the documents nominated by the applicant in support of his character and submitted that these testimonials did not indicate that the applicant has sufficiently altered or improved his character since his last conviction. Moreover, he noted that, in the main, they were family members and were within the scope of limitation referred to in paragraph 5.4.15 of the policy. He also noted that the applicant's partner had not appeared at the hearing to give evidence in support of him.

27. Mr Gallo submitted that the Australian community would not expect a person with the criminal history of the applicant to be considered of good character when weighed against ordinary community standards of behaviour; and that he had not satisfied the practical onus of establishing, through appropriate references, that his behaviour has been such as to evidence a positive contribution to the community. The practical onus rests with the Applicant to establish sufficient character references and he has not done so.

Consideration

28. The Tribunal, whilst not bound to apply policy guidelines of the kind published in the Instructions (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 at 86. Mr Gallo submitted that the Instructions should be applied by the Tribunal in the present case and the Tribunal acceded to that submission, there being no material before the Tribunal to indicate that they should not be applied.

29. Paragraph 5.4.2 of the of the policy provides that it is the responsibility of the applicant to show that he is of "good character", a term which is not defined in the Act. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Lee J said (at 431-432):

Unless the terms of the Act and regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. ...

A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

30. Those comments were made in the context of provisions in legislation pertaining to migration matters where issues of character may arise in relation to visa applications. They have also been used in the context of citizenship matters under the Act: see Re Milnar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 at 776.

31. Clearly, in assessing the enduring moral qualities of the applicant, regard can be had to his criminal record. The need to do so is specifically referred to in paragraph 5.4.4 of the policy and, in paragraph 5.4.5, it is stated that very careful consideration be given where the person has been sentenced to a term of imprisonment of 12 months or more and where there have been two or more terms of imprisonment with the total of those terms being 2 years or more.

32. In evidence was a copy of the applicant's criminal record (T8). It confirms the evidence given by the applicant. He has had several convictions where he was fined or admitted to probation and also the following which involved the imposition of terms of imprisonment:

30 April 1996:-

* possession of a motor vehicle with intent to deprive: 9 months imprisonment

* receiving: 18 months imprisonment

* false pretences: 9 months imprisonment

* possession of a motor vehicle with intent to deprive: 18 months imprisonment

16 July 1996:-

* false pretences: 1 month imprisonment

26 August 1996:-

* receiving: 18 months imprisonment (reduced to 3 months on appeal)

* false pretences: 18 months imprisonment (reduced to 3 months on appeal)

24 February 1997:-

* supply dangerous drug to another: 2 ½ years imprisonment

11 July 2000:-

* stealing: 6 months imprisonment

33. Although the most recent conviction was in 2000, no offences have been alleged to have been committed by the applicant since 1997. Nevertheless, the offences on his criminal record are serious in nature and reflect poorly on his character. That is particularly the case with those offences associated with dishonesty. In relation to the most recent of these, the applicant said that he was not involved in the theft of goods which were the subject of proceedings in 2000. In Minister for Immigration and Multicultural Affairs v Shane Ali [2000] FCA 1385; (2000) 106 FCR 313, Branson J reviewed the authorities on the issue of whether a Tribunal is able to go behind a conviction. That case was concerned with deportation provisions in the Migration Act 1958 and her Honour concluded that a conviction and sentence, not being the conviction and sentence upon which the power to deport is based, should be treated as "strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted" (at 325). She also said that this "heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing" (at 325).

34. In this case, the applicant pleaded guilty to the five counts of stealing but gave no cogent explanation to the Tribunal of what was the nature or extent of his involvement in the commission of the offences such as would displace the acceptance by the Tribunal of the appropriateness of the convictions. In any event, as his criminal record reveals, these are not the only offences of dishonesty for which the applicant has been convicted and imprisoned.

35. Also, the applicant has been convicted of breaches of bail, of probation and of fine option orders for non-completion of community service obligations. He was also in breach of parole when he left Queensland in 1997. Further, the extracts from his Corrective Services File (exhibit R1) confirm that the applicant was removed from his first release to work program on 14 March 2001 after he was breached for returning positive alcohol readings on a breath analysis. These offences and breaches are also relevant in an assessment of the applicant's moral qualities. They indicate an unwillingness to accept responsibility and to comply with orders made in relation to him.

36. The applicant requested that consideration be given to the letter from Sergeant Evans (exhibit A4) which confirmed that he had surrendered himself into custody in 1999. The Tribunal accepts that this was appropriate conduct by the applicant. Nevertheless, it was no more than he was lawfully obliged to do. He had left Queensland in breach of his parole and his surrender marked the end of an unlawful absence.

37. In the applicant's favour are his willingness, while in prison, to improve his educational and work prospects by undertaking various courses and the letters of reference from family members ie his partner, his father and his son. Ms Marles referred to the applicant as having been punished for his offences and asked that these not be taken into account. The applicant's father was critical of the manner in which the applicant had been dealt with by prosecuting authorities especially in relation to the spear gun and crocodile skin prosecutions. The applicant's son referred to his love for his father. Mr McNamara described himself as a friend of the applicant's mother and referred to the strength of character demonstrated by the applicant in surrendering himself to the police in 1999. Also in the applicant's favour are the more settled home and work situations that he is now in.

38. None of those matters alter the view that the Tribunal has taken of the applicant because of his criminal history. He has committed a significant number of offences. They have been serious offences as indicated by the length of terms of imprisonment imposed. He has demonstrated unwillingness in the past to comply with court orders relating to bail, probation, parole and the performance of community service. Also, at the time of his application and as at the date of the decision under review, he was still in custody. As at the date of the hearing, it was only a matter of days since he had been out of the prison system. In time, his circumstances may change and he may be in a position where his criminal history will be overtaken by more positive aspects of his life so that, as Lee J said in Irving v Minister for Immigration, Local Government and Ethnic Affairs (above), he may be able to show that he has reformed and is then of good character. However, as at the time of his application to be registered as an Australian citizen and until the present time, the Tribunal is reasonably satisfied that he does not meet the good character requirement of s 10C(4)(d) of the Act.

Decision

39. The Tribunal affirms the decision under review.

I certify that the thirty-nine (39) preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

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

Associate

Date of Decision 26 March 2002

Date of Hearing 8 March 2002

The Applicant appeared in person

Solicitor for the Respondent Mr D Gallo, Blake Dawson Waldron