CITIZENSHIP - good character - whether Australian Citizenship Act 1948 s.13(11)(e) applies when no conviction is recorded and probation is ordered.

R v Brown Ex Parte the Attorney-General (1994) 2 QR 182

1. This was an appeal against a decision made by a delegate of the Minister for Immigration and Multicultural Affairs dated 2 October 2000 to refuse to grant the applicant, Mr Moefaauo, Australian citizenship under Section 13 of the Australian Citizenship Act 1948.

2. The matter was heard by me in Brisbane on 20 March 2001. The applicant represented himself and Mr P O'Higgins, Solicitor of Messrs Blake Dawson Waldron represented the respondent Minister. The following documents were taken into evidence:

* Exhibit 2 Sentencing remarks of Judge Robertson

3. An oral decision was given at the conclusion of the hearing. The following are edited reasons for that decision.

4. Mr Moefaauo was born in Western Samoa on 31 October 1972 and came to Australia on 3 June 1994.

5. On 9 March 2000, Mr Moefaauo appeared before Robertson J in the Brisbane District Court on a charge of assault occasioning bodily harm contrary to Section 139(1) of the Criminal Code in respect of an incident on 11 June 1999. No conviction was recorded by the District Court and a probation order was made for a period of two years with the usual general conditions required by the Penalties and Sentences Act 1992 and, in addition, a special condition that Mr Moefaauo attend such programs relating to anger management and proper parenting as directed.

6. On 26 June 2000 the applicant applied for the grant of Australian citizenship. To an extent, his completion of that form was not of assistance to the original decision-maker and may have misled him because, in answer to a question in the application - "Had the applicant been convicted of or found guilty of an offence", he answered "yes" and provided the details "Brisbane District Court. Domestic Violence Probation Order March 2000. 2 years. Setu Moefaauo"

7. The application for grant of citizenship was refused on the basis of the existence of the probation order. The decision-maker in his Statement of Reasons given on 7 December 2000 said:

"I was under the belief that as Mr Moefaauo was under a two year probation order and was required to attend programs relating to anger management and proper parenting that he would fall under s13(11)(e) and could therefore not be granted a certificate of Australian citizenship."

8. The Statement of Reasons appears at pages 5 and 6 of the "T" Documents, Exhibit 1. Section 13(11)(e) does not apply to a case where no conviction is recorded pursuant to a power given by Section 12(1) of the Penalties and Sentences Act 1992 and a probation order is made pursuant to Section 90 of that Act, as was the case here. This was an error on the part of the decision-maker, as has been pointed out to me by Mr O'Higgins.

9. No other provision of Section 13(11) of the Australian Citizenship Act 1948 applies to the applicant's circumstances and, whilst I accept Mr O'Higgins' submissions about the correct approach to this application, the applicability of Section 13(1)(f) and the test for character, I am of the view that no inference can be drawn from the order of the District Court to lead to a conclusion that the applicant is not of good character for the purposes of Section 13(1)(f) of the Australian Citizenship Act.

10. As I have said, I accept Mr O'Higgins' submissions, but any inference to be drawn from the District Court's order may well be to the contrary given that the two principal matters to be taken into account under Section 12(2) of the Penalties and Sentences Act 1992 are the nature of the offence and the offender's age and character. In an older person, one no longer entitled to be regarded as a youthful offender, character will be an important consideration - see, for example, R v Brown Ex Parte The Attorney-General (1994) 2 QR 182, in particular per Macrossan CJ at page 184 and Lee J at page 193.

11. My view about this is reinforced by Robertson J's comments on passing sentence which were tendered by Mr O'Higgins and became Exhibit 2. Robertson J said at page 2 of his comments:

"This was an example of grossly irresponsible behaviour on behalf of both of you. You have an enormous responsibility, as I am sure you understand when you are the parent of a child. Now, on this occasion there was a quite heated argument going on between the two of you.

The way in which the Crown Prosecutor described it to me, very fairly as far as you are concerned, is that you were attempting to disengage, so to speak. You were obviously extremely angry. Your de facto partner, Christian's mother, who was cradling him in her arms was swearing at you. She was shouting. She was telling you to get out. And I think I can infer that you snapped and you delivered this single punch that was directed at her arm and of course in your anger and in the tension and violence of the situation you did not consider the safety of the child and he was struck obviously quite a heavy blow..." [my emphasis]

12. Robertson J said a little further down page 2:

"It is clearly one of those very unfortunate situations that arise when two people lose control and act irresponsibly_._

You were very concerned immediately and you did everything in your power to get Christian to proper medical care. Not surprisingly, given his age, he suffered quite severe injuries but remarkably he has recovered fully. His prognosis is excellent." [my emphasis]

13. In the circumstances, I am not satisfied that as a result of this one unfortunate incident it could be said that Mr Moefaauo's enduring moral qualities are so deficient as to show that it is for the public good to refuse citizenship. I am satisfied that, notwithstanding this incident, the applicant can be said to be of good character.

14. Accordingly, the decision of the Tribunal is that the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with a direction that the applicant is not to be refused Australian citizenship on character grounds solely on the basis of the matters leading to the applicant's appearance before the District Court in Brisbane on 9 March 2000.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President SP Estcourt QC

Rep. for the Applicant Applicant appeared in Person

Solicitor for the Respondent Mr P O'Higgins, Messrs Blake Dawson Waldron