Mental Health (Criminal Procedure) Act 1990 (NSW) - section 32

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

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

Dobre Naumovski v Minister for Immigration and Ethnic Affairs No.P/20 AAT No.9815

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Re Mlinar v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 48 ALD 771

Kaur and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 228

Webb and Minister for Immigration and Multicultural Affairs [2002] AATA 199

Philipson and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 215

This is an application by Ngoc Thien Vo ("the Applicant") for review of the decision of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") dated 23 March 2005 (T2), that refused an application by Mr Vo for a grant of Australian citizenship under section 13(1)(f) of the Australian Citizenship Act 1948 ("the Act").

Mr Vo is a Vietnamese citizen who arrived in Australia as a permanent resident on 12 April 1989 (T16). On 11 October 2004 he applied for Grant of Australian citizenship (T39).

Mr Vo stated at Question 45 of his application that he had been discharged under section 32 Mental Health (Criminal Procedure) Act 1990 (NSW) for an offence of supply drugs at Liverpool Court. No other offences were notified on the form (T43).

In fact, and it was not disputed at the hearing, Mr Vo had a number of convictions, dating back to 1993 as a juvenile. The most recent offence was committed on 20 October 2003 in relation to the supply of heroin.

On 23 March 2005, the delegate refused Mr Vo's application under subparagraph 13(1)(f) of the Act because he was not satisfied Mr Vo was of good character (T15). The delegate considered Mr Vo's criminal history and noted that Mr Vo had been repeatedly charged for drug related and stealing offences since 1993. The delegate was not satisfied that Mr Vo had established a pattern of good behaviour and was not satisfied that he was a law abiding person at the time of the decision (T15-19, and particularly T18).

Australian citizenship is granted in accordance with the provisions of Part 3, Division 2 of the Act. Section 13 sets out the circumstances when a certificate of Australian citizenship may be granted to a person. There are a number of criteria to be satisfied but there was no dispute that Mr Vo met all requirements of section 13, other than as to 13(1)(f), namely that he be of good character. It should be noted that "good character" is not defined in the Act.

At the hearing before me held on 29 September 2005, Mr Vo was represented by Mr H Ledinh, solicitor of Ledinh Lawyers and the Respondent was represented by Mr A Cox, solicitor of Phillips Fox.

Mr Ho gave evidence as did his wife, Hoang Bao Tran Nguyen, and his mother, Thi Le Thu Vo.

I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence. Other documents had been filed on Mr Vo's behalf under the cover of letters. Signed copies of some documents were substituted for drafts previously filed. In addition Mr Ledinh tendered a "petition"; from a number of Cabramatta shop keepers. These documents were also taken into evidence.

In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

The Respondent's policy in relation to section 13 of the Act is contained in the Australian Citizenship Instructions ("ACI"), and the policy is set out at T4, especially at p33. Such directions are not strictly binding on the Tribunal and are policy guidelines only. Nevertheless, the settled law is to the effect that policy guidelines of this type should be followed unless there is a good reason not to (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).

To the extent relevant, the ACI are set out and discussed hereunder.

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."

The Respondent contended that Mr Vo, by reason of his criminal history and conduct, is a person who is not of good character and is, therefore, a person who does not meet the requirements of subparagraph 13(1)(f) of the Act.

Because "good character" under subparagraph 13(1)(f) is not defined in the Act, I am to have regard to the ordinary meaning of the words in making assessments.

Mr Ledinh referred me to Dobre Naumovski v Minister for Immigration and Ethnic Affairs No.P/20 AAT No.9815 where Deputy President B J McMahon noted:

"The concept of good character is not necessarily a constant. In relation to s 13(1)(f), no guidelines have been developed except for paragraphs 3.10.1 and 3.10.2 in the Australian Citizenship Instructions. The first of these indicates that 'checks are to be made for any adverse character records..."

Mr Cox referred me to Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where Davies J noted, at 87:

"It should also be observed that the term 'good character' is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute...I do not suggest that, in the context, 'good character' refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account."

Also in Irving (supra) Lee J noted as follows (at 94):

"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 while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR 455 per Miles CJ at FLR 459-60; Plato Films BLtd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138."

Mr Cox also referred me to Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 where Deputy President Wright observed at paragraph 13:

"Good character" within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community."

In Re Mlinar v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 48 ALD 771 at 776 it was accepted that the standard of "good character" in citizenship matters should be higher then that for section 501 Migration Act 1958 cases because of the "greater responsibilities and privileges attached to citizenship."

The delegate's refusal of grant of citizenship to Mr Vo was said to be based on the objective evidence of his criminal record. According to the Guidelines, where there is such evidence, it is incumbent on Mr Vo to demonstrate that he is of good character. The aggregate of Mr Vo's qualities must be weighed up against ordinary community standards of behaviour.

It is in this context that I reviewed the available evidence.

The relevant extracts from Chapter 5 of the ACI provide as follows:

• 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. ....

5.4.7 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, harassment, stalking, 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.

5.4.12 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."

There was no dispute that Mr Vo has an extensive criminal history consisting of 19 offences, as evidenced in a copy of his Criminal Report. Those offences were committed over a period of approximately 11 years (T6/p58). While there are some traffic offences, there are other, more serious offences involving dishonesty and drug trafficking.

By way of extenuating circumstances Mr Vo gave detailed evidence that he had committed, some offences (at least the last, of supplying heroin), because he had heard voices coming from the television directing him to undertake undercover drug work for the Police Commissioner, who he described as his "godfather".

It was contended on Mr Vo's behalf that it was his failure to take his medication for his schizophrenia that caused these delusions. It was also clear that Mr Vo has had a heroin and/or cocaine habit.

There was evidence from Vuong Nguygen, Co-coordinator of Uniting Burnside that in June 2004 Mr Vo was attending a drug counselling program to "maintain his current progress of quitting illicit drugs". This was somewhat inconsistent with the report of Carla Armstead, Counsellor at MERIT dated 17 March 2004, that at that time, Mr Vo had not used cocaine or heroin since January 2004. In January 2004 Mr Vo told Terry Smith, clinical psychologist, that he had not used cocaine since September 2002, and heroin since 1996. While the date of the cessation of his habit is not clear, Ms Armstead reported in May 2004 that urinalysis did not detect the presence of any illicit substance.

In relation to the penultimate offence of "knowingly obtain a benefit where not payable", Mr Vo contended that the Department of Social Security had made a mistake and as "both sides" were at fault they had "negotiated", and he only had to repay half. He said he did not think he had done anything wrong at all but his lawyer told him he would have to pay back half of what he had received.

In cross-examination, in relation to the recorded driving offences, Mr Vo said he had lost his licence a long time ago because of alcohol related driving offences. Then, in 2000, while unlicensed, he gave his brother's name when he went to collect his wife and second child from the hospital. His initial evidence though, had been that he was driving his wife to the hospital, inferring that there was some reason for driving without a licence, because his wife was in labour. I observe that his second daughter was born on 15 May 2000, according to his Statement of Facts and Contentions, and the offence occurred some 2 weeks later.

With respect to age, Chapter 5 of the ACI provides as follows:

"5.4.13 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."

Mr Vo's criminal behaviour began when he was approximately 16 years of age and continued until he was approximately 27 years of age, two years ago. As a juvenile his offences included stealing and drug offences. As an adult, as already mentioned, they have included dishonesty and drug trafficking.

I attached more weight to the offences as an adult, but noted that his juvenile offences were not altogether dissimilar to those committed as an adult.

Despite his family responsibilities about which all witnesses gave evidence, I formed the view that he did not present, before me, to be a man of the maturity that might be expected. I found his evidence to be erratic and inconsistent. However, I do not know to what degree this was attributable to his psychiatric condition.

Mr Vo declared as follows in relation to the Citizenship Application form:

"I hereby declare that the information I have supplied in this form is complete and correct in every detail (T45)."

That declaration was false in that Mr Vo did not provide a complete list of his convictions. The declaration was also false in that Mr Vo did not provide correct information regarding the penalty that had been imposed on him at Liverpool Local Court in relation to the offence of supply prohibited drug (T43 & T58-T62).

The Tribunal has previously found that similar failures to disclose convictions reflect adversely on an applicant's character (Kaur and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 228).

The Respondent contended that the non-disclosure of his criminal history reflects adversely on his character.

The Tribunal has previously found that similar failures to disclose convictions reflect adversely on an applicant's character (Kaur and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 228).

Mr Vo said that he understood that by notifying the Department of one offence he knew his record would be checked and all his offences would become known. He said he did not think there was enough room on the form to note all his offences anyway.

I find Mr Vo's approach to completion of the form to be somewhat naïve. It was open to him to fully disclose his offences by providing an annexure. Nonetheless, he was correct in his observation that his record would be exposed upon checking. Although there was no evidence about Departmental procedure, I suspect this would have occurred in any event.

In addition to not disclosing all offences as required by the Citizenship application, Mr Vo also falsely stated that he had been discharged for a supply drugs offence under section 32 of the Mental Health Act 1990. In fact Mr Vo was convicted and released upon a section 9 Crimes (Sentencing Procedure) Act 1999 (NSW) Bond. That Bond was, for a period of 12 months, to be of good behaviour and to accept the guidance of the psychiatrist, Dr Thomas Matthew, to take medication as prescribed and attend for counselling as required (T61). It is curious that Mr Vo was sufficiently well acquainted with the provision of an Act that had no relevance to him.

In relation to repeated offences, Chapter 5 of the ACI indicates:

"5.4.11 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 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 - 5.4.17):

The Respondent contended that Mr Vo's criminal record shows he has repeatedly committed a significant number of offences. In Webb and Minister for Immigration and Multicultural Affairs [2002] AATA 199, the repeated offences were taken into account by the Tribunal when finding an applicant was not of good character.

Although I have placed little weight on his offences as a juvenile, there are offences of dishonesty and drug trafficking over the entire 11 year period.

In regards to the time period since the last offence, Chapter 5 of the ACI notes:

"5.4.14 .... 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."

The Respondent contended that the time since Mr Vo's most recent conviction is not a sufficient period of time to establish a pattern of good behaviour.

After an 11 year history of offences, Mr Vo's latest offence occurred relatively recently, in 2003, for which he was convicted in 2004, less than 12 months ago.

In Philipson and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 215, to which I was referred by Mr Cox, a similar period of committing a similar pattern of drug offences and a similarly short time since the most recent conviction were factors in finding that an applicant was not of good character.

BEHAVIOUR AND REPUTATION AT THE TIME OF DECISION

In relation to the behaviour of an applicant, the Guidelines indicate:

"5.4.14 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....

5.4.16 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 the applicant 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.

5.4.17 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."

Mr Ledinh submitted that the appropriate test was to consider Mr Vo as he is now: a stable, committed family man who is in full time employment

Each element of the submission was considered in turn.

Mr Ledinh submitted that Mr Vo had suffered a "mental illness but is now recovered". Somewhat inconsistently it was also submitted that Mr Vo's medical condition is "under control" with medication.

Mr Vo's wife and mother gave evidence in relation to Mr Vo's illness.

His mother said she became aware of his schizophrenia in 2000, and was very upset. She did not know what to do to help him.

Mr Vo's wife said she became aware of his condition in 2001-02. She placed this in time as after the birth of their second child in May 2002. She said his condition created a lot of stress, especially as she had to look after him as well as 2 small children.

In cross-examination she said that the family took care of him, and after he was diagnosed (and presumably medicated) he was "a changed man". She said she dated this change from 2002. It was pointed out that his "change" was before he committed the drug supply offence in October 2003. She said he had not been taking his medication properly, and in any event, the initial medication was incorrect.

A condition of Mr Vo's Bond was that he submitted himself to attend counselling, rehabilitation or educational development in accordance with medical advice. The nominated psychiatrist was Dr Thomas Matthew. Mr Vo told me that he had, last year he had been seeing Dr Mathew twice a week.

Mr Vo told me, when I asked him directly as to how often he now sees Dr Mathew, that he sees him every fortnight. He said he sees his GP when he runs out of his medication, so he is seeing both Dr Mathew and his GP. In submissions, however, and clarified by instructions, it appears that Mr Vo has not consulted Dr Mathew since May. No report was forthcoming from Dr Mathew, who, at least since October last year, was Mr Vo's treating psychiatrist. What inference should I draw from that omission?

Various medical reports were, however, provided by Mr Vo. According to the report of Terry Smith, Clinical Psychologist, dated 12 January 2004 (which appears to have been prepared for the purpose of a plea in mitigation), Mr Vo's schizophrenia was not considered responsible for the offence of October 2003 (the supply drug offence). Had that been the case, Mr Vo, it seems, would have been entitled to a discharge under section 32 of the Mental Health (Criminal Procedure) Act 1990.

Rather, Mr Smith had observed that Mr Vo had "argued" that his offence was a "response to non-compliance with [his medication regime]". Mr Smith had been 'unable to disprove' the contention. He considered that "if he continues to offend in a similar manner then his claims will lose credibility". I found Mr Smith's report to contain a degree of scepticism about Mr Vo's contentions.

Mental illness is not a ground for denying a person citizenship, or indeed for finding a person is not of good character. I wish to make it clear that my observations about Mr Vo's condition do not form part of my decision, but may be relevant as to his credit, where there has been some inconsistency in his evidence. It is this demonstrated inconsistency which can form the basis of a perceived unreliability.

Mr Vo's wife's evidence was, understandably, very supportive. I accept that she and her husband are trying to rebuild their family life, following his drug rehabilitation and the diagnosis and proper treatment for his psychiatric condition.

I note with some concern, however, in that she did not mention that she and her husband separated in 2002, "because of the anxiety and fear producing effects of his delusions". It was only after his arrest and subsequent release into his wife's care that they resumed co-habitation. This is the history taken by Terry Smith, Clinical Psychologist, referred to in his report of 12 January 2004.

Mr Vo's wife's evidence was that she said that if her husband could obtain citizenship he would be able to get a passport and they would be able to travel.

Mr Vo provided a letter from a former employer being Manpower Services (Australia) Pty Ltd. That letter states that Mr Vo is a hard working and reliable employee.

Mr Ledinh served a copy of a petition containing the signatures of 8 employees of Stanley Printing Pty Ltd ("the Stanley petition"). They stated:

"...Ngoc has started working with us about two months ago, during this time, we found that he is a good character, witty, friendly and helpful kind of person".

The petitioners, with whom Mr Vo had worked for 2 months, did not indicate any knowledge of Mr Vo's criminal history. The Respondent submitted that the petition may have been made in ignorance of that criminal history, and should therefore be given no weight. I note that the Respondent had taken this position in its Statement of Facts and Contentions filed and served on 21 September 2005. Nonetheless the petition remained in its original form, and no evidence was led in relation to what information had been provided by Mr Vo to his workmates about his criminal past.

In addition, Mr Ledinh tendered at the hearing a copy of a petition by shop owners in Cabramatta that Mr Vo:

"Is a kind, funny, honest, trustworthy, and had a good characters [sic], he is very polite person and is easy to get along with others."

Mr Cox made a similar submission in relation to that petition.

Mr Ledinh had also supplied 2 letters from Mr Vo's employer, Mr Gould of Stanley Printing Pty Ltd. One was undated but supplied on 14 June 2005, and the other was dated 23 September 2005. Mr Gould wrote, respectively:

"...he has proved to be an honest, punctual and easy to get along with employee."

"To date he is punctual, courteous, conscientious, hard working and has fitted in well with the other employees here.

He appears to be a good family man of good character and on this basis I would recommend him".

The first letter was provided prior to the Respondent's Statement of Facts and Contentions. No comment was made there in relation to that letter, but in my view the observation in relation to the Stanley petition equally applied to Mr Gould's first letter as well. Notwithstanding this, his second letter, provided in support of Mr Vo's application for review, also did not address Mr Gould's level of knowledge of Mr Vo's background.

Mr Gould was not called, although he was available at his place of work.

I accept that Mr Vo's employer and workmates (of the last few months) find him agreeable in the workplace. However, I view their very positive comments with some reservation. There is no evidence of their knowledge of Mr Vo's criminal past, and in particular, his recent criminal past. Evidence of their knowledge could have been led before me, but it was not. I am entitled to draw an inference as to why that might be.

Similarly, I observe that the proprietors of the businesses who have written of their high regard for Mr Vo, also have made no reference to their knowledge of Mr Vo's criminal history. Further, they have furnished their comments in the context of his being one of their customers. As such I am dubious that business people, when approached by a customer would be likely to make anything other than positive remarks.

I have applied the Guidelines outlined in Irving (supra) and Re Mlinar (supra) to the facts in this matter and I am satisfied that Mr Vo's convictions, especially those of 2001 and 2004 represent serious breaches of the law. He does not appear to have accepted responsibility in relation to those offences. His evidence in relation to the circumstances of the 2000 driving offence was unconvincing. I also have some reservations about his explanation for his failure to disclose all offences and his erroneous description of the outcome of the last offence. For these reasons I accept the Respondent's submission that, in applying the ordinary meaning of "good character", the criminal history reflects adversely on Mr Vo's character.

I accept that he is endeavouring to re-establish his family life and has been in stable employment for some months. I accept that he is well thought of in the workplace and in the community. I have reservations, however, if his background has not been disclosed to those who are apparently so supportive.

Against this current picture, however, I must observe that his offences, in my view, were not aberrations in conduct, but were part of a pattern of behaviour that involves a disregard for the law since Mr Vo was aged 17. It is only since July of this year, at the expiration of his Bond period, that Mr Vo has not been subject to Court scrutiny. I find that after so many years of committing criminal offences, the period since the most recent conviction to represent only a short period of time.

It also remains unclear if Mr Vo is still free from drugs. Even if he were free from any form of drug use, I am not confident, on the available evidence that this could be before May 2004. In that event, I find his period of being drug-free also to be disproportionably short, considering he started his drug usage as a youth.

For these reasons I am not satisfied that the applicant is of good character. Consequently, he does not satisfy s10(1)(f) of the Act. He is therefore not eligible for a Grant of Australian Citizenship.

The Tribunal affirms the decision under review.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, MEMBER

Signed: Associate

Date of Hearing 29 September 2005

Date of Decision 20 October 2005

Representative for the Applicant Mr H Ledinh

Representative for the Respondent Mr A Cox