Arash Seddigh and Minister for Immigration and Border Protection

[2015] AATA 252

[2015] AATA 252  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5625
Re	Arash Seddigh
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	24 April 2015
Place	Sydney

The Tribunal sets aside the decision under review and decides that Mr Seddigh is of good character for the purposes of s 21(2) of the Citizenship Act 2007, and subject to him meeting the other requirements in the Act, his application for citizenship should be approved.

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Senior Member J F Toohey

CATCHWORDS – CITIZENSHIP – criminal record – fraud – applicant placed on good behaviour bonds – whether applicant of good character – whether sufficient time had passed since bonds expired – Tribunal satisfied in all the circumstances that applicant of good character – decision under review set aside

Legislation

Australian Citizenship Act 2007 s 21(2)

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

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

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Arash Seddigh is a 32-year old citizen of Iran.  He arrived in Australia in 2006 and has lived here since.  He has been a permanent resident since February 2011.

2. In June 2010, Mr Seddigh was convicted of two counts of making false statements to obtain money in amounts between $2000 and $5000, and two of attempting to obtain money by deception.  He was sentenced in the Ryde Local Court to six months periodic detention on each count.  In July 2010, the Parramatta District Court reduced his sentence to good behaviour bonds for four years on each of the first two counts and 15 months on each of the other counts. The bonds expired on 8 July 2014.

3. On 9 July 2014, Mr Seddigh applied for Australian citizenship.  A person is eligible to become an Australian citizen if the Minister for Immigration and Border Protection is satisfied that he or she meets the requirements in s 21(2) of the Australian Citizenship Act 2007 (the Citizenship Act). One of those requirements is that a person be of good character at the time of the Minister's decision on the application: s 21(2)(h).

4. By a decision on 1 October 2014, a delegate of the Minister was not satisfied that Mr Seddigh was of good character and refused his application. 

5. Mr Seddigh seeks review of the Minister’s decision.  He says he has not offended in nearly six years and, together with his previous unblemished record, his history of stable employment and home ownership, and references attesting to his good character, the Tribunal should be satisfied that he is now of good character.

6. For the Minister it is submitted that Mr Seddigh’s offences were very serious and pre-meditated, and insufficient time has passed since he was free of his obligations to the court for the Tribunal to be satisfied that he is now of good character.

   The circumstances of Mr Seddigh’s offending

7. In relation to the charges of making false statements to obtain money, the New South Wales Police Facts Sheet shows the following.

8. On 28 July 2008, Mr Seddigh bought home and contents insurance from CommInsure.  On 22 May 2009, he reported to CommInsure that, on 20 May 2009, unknown persons broke into his motor vehicle parked outside his workplace and stole a laptop, digital camera, gold chain, iPod, sunglasses and $220 in cash.  He reported the matter to the police.  Mr Seddigh’s claim was fabricated; the items were never stolen.  By reason of his false statement, he obtained a benefit to the value of $7444.00.

9. On 27 August 2009, Mr Seddigh left a laptop bag containing a number of items at a campsite in Wollongong.  He reported the loss to the police.  At the time, he had a home and contents insurance policy with Allianz Australia (Allianz).  On 28 August 2009, he reported to Allianz the loss of a laptop, seven DVDs, an iPod and a gold chain.  In September 2009, Allianz paid him $7717.00.  A few days later, a male person who had found the bag at the campsite returned it to Mr Seddigh’s house with all of the items reported stolen.  Mr Seddigh notified the police of its return but did not notify Allianz and kept the money he had received.

10. In relation to the charges of attempting to obtain money by deception, the Police Facts Sheet shows the following.

11. On 13 November 2009, Mr Seddigh lodged a claim with QBE insurance.  He said that, on 6 November 2009, while he was driving to Canberra to meet a friend, the jam he was carrying in his backpack broke and spilled onto his clothing.  He decided to throw out the backpack with his clothing in it, overlooking that he had left two gold chains in the backpack.  This story was a fabrication as Mr Seddigh did not travel to Canberra that day and did not lose the chains.  QBE interviewed Mr Seddigh and, as he failed to cooperate fully with them by not disclosing identity of the person he allegedly met in Canberra, QBE put his claim on hold.

12. On 2 December 2009, Mr Seddigh called Allianz and lodged a claim in relation to the same fabricated incident, but changed his story and omitted to mention the person he allegedly met in Canberra, so as to ensure his claim would be accepted.  He then advised QBE he did not wish to pursue his claim, and cancelled his policy as well.  He was interviewed by Allianz investigators on three separate occasions and maintained his story.  His claim was rejected.  On 9 February 2010, an Allianz manager reported the matter to the police.

13. The Fact Sheet shows that, on 22 March 2010, police attended Mr Seddigh’s home where he was arrested.  He voluntarily produced a gold chain he had received from CommInsure as part of that insurance payout.  When interviewed at the station, Mr Seddigh admitted failing to advise Allianz of the return of his property from Wollongong and that he kept the payout.  He also admitted making up the story about losing two gold chains in Canberra with the intention of obtaining money.  He maintained that the story about the theft from his motor vehicle was true.  The following day, he made full admissions about the theft from his motor vehicle and said he needed the money to support his sick grandfather. 

14. The Facts Sheet shows that Mr Seddigh “showed remorse for his actions and informed police of his intentions to repay the insurance companies.” Further, that police had been informed by Allianz and CommInsure that Mr Seddigh had contacted them and informed them of his intention to repay the money obtained from them. 

15. According to a pre-sentence report by an officer of the Probation and Parole Service for the court in 2010, Mr Seddigh demonstrated insight into his offending and acknowledged his mistake; he had made efforts to make amends and had paid back the money he obtained fraudulently.  He was assessed as being a low risk of re-offending and unlikely to require, or benefit from, supervision by the Service.

16. A letter dated 30 March 2010 from Allianz to Mr Seddigh acknowledges receipt of his cheque in the amount of $7717.00 being for reimbursement of the payment made to him on his claim.  The letter further acknowledges that he had contacted Allianz’ claims unit admitting that he had submitted his claim fraudulently and that the alleged losses never occurred.

17. A letter from CommInsure acknowledges that Mr Seddigh made contact on 23 March 2010 confirming that he had been charged and advising that he would reimburse the total amount paid for his claim.  The letter acknowledges payment in full of $7444.00 on 1 April 2010.

    Mr Seddigh’s evidence about the offences

18. Mr Seddigh gave evidence that his offences were committed during a time of stress due to very difficult circumstances for his family in Iran.  His grandfather, who with his grandmother had helped raise him, was seriously ill and needed treatment which the family could not afford.  Mr Seddigh had applied for a protection visa at the time and says he could not return to Iran to see his grandfather.   Mr Seddigh has produced photographs of himself with his grandfather in Iran, and of his grandfather in hospital.  I accept they had a close relationship and that his grandfather was seriously ill.

19. Information downloaded from the credit reference website shows that Mr Seddigh made repeated applications to banks and other financial institutions between 10 January 2008 and 6 December 2010 for various kinds of loans.  He gave evidence that, each time, he was attempting to obtain money to pay for his grandfather’s treatment but he was unable to obtain credit because, at the time, he was not a permanent resident and was on a temporary visa. 

20. A document dated 7 December 2009 addressed “To Whom it May Concern” from Springex Pty Ltd, an organisation which arranges the transfer of funds to and from overseas, shows that $43,500 was transferred on behalf of Mr Seddigh to Mr Ali Seddigh in his home town, Shiraz, Iran, on 30 July 2009.  Mr Seddigh gave evidence that he cannot recall how much, if any, of this amount was money received from CommInsure following his first offence, but says the money transferred was all of his savings.  I accept what he says. He says he continued to try to fund his grandfather’s treatment through his further offences.

    Mr Seddigh’s employment history and other information submitted in support of his application

21. Mr Seddigh obtained a bachelor degree in microbiology in Iran.  He applied for a working holiday visa and arrived in Australia in September 2006.  A translated certificate from the Department of Justice in Shiraz, Iran, shows that Mr Seddigh “does not have any records of penal conviction”.  I am satisfied this document is genuine.

22. When he first arrived in Australia, Mr Seddigh worked in a restaurant.  He has been in steady employment since.  About two months after arriving, he found employment at a medical laboratory in Sydney.  He was working at the laboratory at the time of his offences.  A letter from his former employer speaks highly of him.

23. From 2008, Mr Seddigh was also employed on a casual basis as a community nurse working with people with disabilities.  Since 2012, he has been a full-time permanent employee of the NSW Department of Family and Community Services.  He works with people with disabilities and has recently been promoted to a management position.  He holds a Certificate IV in disability care.

24. Mr Seddigh has recently bought a franchise for a juice bar.  He says he plans eventually to work in his business full-time and to engage four permanent staff and up to six casual staff.  He has recently bought his own home.  He has submitted documents including bank statements, pay slips, and confirmation of his ownership of his home and business.

25. In support of his application Mr Seddigh has provided written references, a number in the form of statutory declarations, from his former and current employers, work colleagues, friends, and the pastor from his church who attended court with him in 2010.  All attest to his good character.  He has also submitted a letter from a real estate agent stating that, in the four years he was a tenant of the agency, he never defaulted on his rent and was well-mannered and courteous.  A letter from another real estate agent is in similar terms about the three years Mr Seddigh was a tenant of that agency.  He also submitted various certificates of merit and statements of attendance and attainment as well as his organ donor card and Red Cross blood donor card.

    The meaning of good character

26. The Citizenship Act does not define “good character”. Guidance about its meaning is found in the Australian Citizenship Instructions (ACIs) the current version of which came into effect on 1 July 2014.  The ACIs are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

27. “Good character” refers to the enduring moral qualities of the person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge, should they be approved for citizenship: cl 10.1.2.

28. The statement of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 has been adopted by the Court and this tribunal as describing the meaning of “good character”:

    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…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.

29. “Moral” does not have any religious connotation; rather, the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, distinguishing right from wrong, and behaving in an ethical manner, conforming to the rules and values of Australian society: cl 10.3.1.

30. Clause 10.3.4 of the ACIs sets out a non-exhaustive list of characteristics expected of a person “of good character”.  Relevantly, it includes that a person of good character would:

    • respect and abide by the law in Australia and other countries;
    • be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds);
    • be truthful and not practice deception or fraud in their dealings with the Australian government, or other governments and organisations.

31. In considering a person’s behaviour, it is relevant to consider any offences he or she has committed and the seriousness of any offence: cl 10.5.2.  Serious offences include, relevantly, “fraud (including identity fraud)”. 

32. In relation to offences, it is relevant also to consider whether the offence was premeditated; the length of any sentence imposed; any ongoing obligations in relation to the sentence received, such as a good behaviour bond; and any sentencing remarks: cl 10.5.2. 

33. The number of offences, in particular whether there was a pattern of criminal behaviour is relevant:

    a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them: cl 10.5.2.

34. Any mitigating factors should be taken into account.  These may include the length of time between the date of the offence and the application for citizenship, whether the applicant has accepted responsibility and shown remorse for his or her conduct, and how the applicant has behaved since being released from prison or having completed any obligations such as a good behaviour bond.  In this regard, the ACIs state at 10.5.2:

    It is important to see how the [applicant] behaves when they are free from the obligations of such a sentence or bond.  A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.

35. Other relevant mitigating factors may be an applicant’s attempts at rehabilitation, his or her age at the time of the offence, any extenuating circumstances relating to the offence, and any evidence about “length of employment, stable family life and/or community involvement”: cl.10.5.2.

36. In relation to references, the ACIs recognise that referee reports can shed light on an applicant’s character but cautioned that decision-makers should note “the inherent bias in any reference which is submitted by an applicant in support of their citizenship application”: cl 10.6.5.  More weight should be given to references made as statutory declarations than those which are unsworn, and less weight should be given to references from family members because of “the societal expectation that family members would tend to support one another and play down unacceptable conduct”: cl 10.6.5.

    Consideration

37. There is no question that Mr Seddigh’s offending was serious.  Offences involving fraud are specifically included in the meaning of serious offences for the purposes of the ACIs.  Moreover, Mr Seddigh’s offences were plainly pre-meditated and, had Allianz and QBE not questioned his claims, he would have obtained money from them as well.  As it was, he obtained approximately $15,000, a substantial amount, as a result of his offences.

38. Mr Seddigh’s offending cannot be excused on the ground that he wanted to help his grandfather; many people find themselves in such circumstances but few people resort to offending to solve their problems.

39. Mr Seddigh contacted Allianz and QBE on 13 January 2010 to withdraw his claims in respect of the backpack he claimed to have thrown out on the way to Canberra.  Although he says he did so voluntarily when he recognised what he had done was wrong, in my view he gets only limited credit for doing so because it was clear by that time that both insurers were questioning, or had rejected, his claim.

40. Having said that, there are factors that in my view mitigate the seriousness of Mr Seddigh’s offending. 

41. At the time of his arrest, Mr Seddigh’s application for a protection visa was under consideration by the Department for Immigration and Border Protection.  He says, and it is not disputed, that he notified the Department of his offences when he was arrested.  He says his application was “put on hold”.  It is not clear whether his application was suspended but, in 2012, he was granted a protection visa.  His conduct in notifying the Department might be thought self-serving but it is nevertheless to his credit that he took early action.     

42. Mr Seddigh had an unblemished record prior to committing these offences; he was apparently diligent and hard-working.  Although there was a pattern of offending, it was over a relatively short period of approximately six months (though it might be thought that, had it not been discovered, his offending would have continued for longer).  Mr Seddigh made full admissions to the police, albeit he did not admit his first offence until the second day of questioning by the police.  To his credit, he repaid the money he had stolen in full within days of being arrested. 

43. Since the last of the offences in December 2009, Mr Seddigh’s record has been unblemished.  He has been in steady employment and, since 2010, been required to pass vetting procedures for working with people with disabilities.  He is evidently well-regarded by his employers. 

44. While references from friends tend to carry less weight than from some others, they should not be disregarded.  It is not unusual in these matters to see references from family and friends that can be given little, if any weight because, for example, they are unsworn, or in almost identical terms, or fail to make clear that the writer is even aware of the offences.  The considerable number of references from Mr Seddigh’s friends and associates, and from his pastor, consistently acknowledge his offending and speak highly of him, reflecting the writer’s individual experience of him.  In my view, they tend to weigh in his favour.   

45. For the Minister it is submitted that insufficient time has passed since Mr Seddigh was free of the bonds imposed by the court for the Tribunal to be satisfied that he is now of good character.  There is no guidance in the ACIs as to what might reasonably be considered to be sufficient time.  It will always depend upon the circumstances of the individual case including the nature of the offences and the nature and length of the obligations imposed by the court.  It is true that only nine months have passed since Mr Seddigh’s good behaviour bonds expired but I think it fair to consider that period in light of his otherwise good character.  The material before me strongly suggests that Mr Seddigh would not have re-offended regardless of the length of the bond period. 

1. Mr Seddigh submits that, had he not accepted advice to appeal the original sentence, and had he submitted to the periodic detention for six months originally imposed, he would by now have been free of any obligation to the court for approximately four years.  I haven’t the benefit of any sentencing remarks but it is reasonable to assume that, in imposing good behaviour bonds in place of periodic detention, the court imposed what it considered a lesser sentence, albeit one with 15 months imprisonment attached to any breach of the bond.  There is some force to that submission. There is much about Mr Seddigh’s conduct since the offences to be commended.

2. Considered in light of his whole history, I am satisfied that Mr Seddigh is now of good character for the purposes of conferral of citizenship.

   Conclusion

3. I set aside the decision under review and decide that Mr Seddigh is of good character for the purposes of conferral of citizenship and, subject to him meeting the other requirements in the Citizenship Act, he should be granted citizenship.

49.       I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 24 April 2015

Date(s) of hearing		1 April 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Mr David McLaren, Sparke Helmore