Bilouni and Minister for Immigration and Multicultural Affairs - [2001] AATA 233

DECISION AND REASONS FOR DECISION [2001] AATA 233

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1367

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SHOUHA BILOUNI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date23 March 2001
PlaceSydney

Decision      The Tribunal: 1. sets aside the decision under review and substitutes its own decision that the Applicant is of good character as required by s 13(1)(f) of the Australian Citizenship Act 1948 (the Act); and 2. remits the matter to the Respondent so that the Respondent may reassess the Applicant's application for grant of citizenship in accordance with the remaining requirements in s 13 of the Act.
  [Sgd] M J Sassellla
  Senior MemberCATCHWORDS

Application for Australian citizenship – character test – refusal of Australian citizenship – shoplifting value less than $2000 – failure to declare conviction – deliberate concealment - Australian Citizenship Instructions
Australian Citizenship Act 1948 sections 13, 50
Re Miroslav Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625 (24 August 1999)

REASONS FOR DECISION

23 March 2001 Mr M J Sassella, Senior Member

On 13 July 2000 Ms Souha Bilouni ("the Applicant") lodged a form, Application for Grant of Australian Citizenship ("Form 124B"), with the Department of Immigration and Multicultural Affairs ("the Department") (T5, P39) for consideration by a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent").
On 9 August 2000 the Applicant was sent a letter by the Respondent (T1, P5), informing her that her application for Australian citizenship had been refused. The letter stated that the officer delegated to make the decision was not satisfied, because of the Applicant's criminal history, that she satisfied s13(1)(f) of the Australian Citizenship Act 1948 ("the Act") that requires applicants for citizenship to satisfy the Minister that they are of good character.
On 21 August 2000 the Applicant lodged an application for review of this decision with the Tribunal.
Relevant legislation
The relevant legislation in this matter is the Australian Citizenship Act 1948 ("the Act"), in particular section 13(1)(f):
"13 Grant of Australian citizenship
(1)       Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
          (a)       the person is a permanent resident;
          (b)       the person has attained the age of 18 years;
          (c)       the person understands the nature of the application;
          (d)       the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
           (e)     the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
          (f)        the person is of good character;
          (g)       the person possesses a basic knowledge of the English language;
          (h)       the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
          (j)        if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
          (1A)     The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:
          (a)       the person is a permanent resident; and
          (b)       the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.
…"

Section 50 the Act provides:

"50 False representations etc.
(1)       A person shall not, for a purpose of or in relation to this Act:
          (a)       make, or cause or permit to be made, a representation or statement that is, to the knowledge of the person, false or misleading in a material particular; or
          (b)       conceal, or cause or permit to be concealed, a material circumstance.
Penalty: 12 months imprisonment."

Background

The Applicant was born in Aleppo, Syria on 18 May 1975. She was married on 6 October 1995 and she and her husband have two children, a son aged four and a daughter aged two and a half.
In October 1996 her husband completed a form, "Sponsorship for Migration to Australia" ("Form 40"). He stated his occupation as civil engineer (S2).
On 23 October 1996 the Applicant lodged a form "Application for Migration to Australia" ("Form 47") with the Department (S1). She first arrived in Australia on 12 June 1997 as a migrant under a spouse (subclass 100) visa. The Applicant stated on the application that she was educated for six years of primary school in Aleppo, being instructed in English. She stated her usual occupation as housewife.
On 12 June 1997 the Applicant entered Australia (T7, P51).
On 31 July 1998 the Applicant was caught allegedly shoplifting at a Woolworths supermarket in Bankstown. She was charged with stealing $17.69 worth of goods from Bankstown Square Woolworths supermarket. The Applicant attended Bankstown local court where she pleaded guilty to the charge. She was convicted of the offence under section 117 of the New South Wales Crimes Act and the penalty was a $300 fine with a court fee of $51 (T2).
The Applicant applied for Australian citizenship on 20 July 2000 using Form 124B and was interviewed on 20 July 2000 (T2, P6). Her application was rejected by the Respondent on the grounds that the Applicant did not answer "yes" to any of the sections of question 37 on Form 124B in relation to her shoplifting offence. One of the choices offered in question 37 was "(a) Have you ever been convicted of or found guilty of, ANY offences? (Include all traffic offences which went to court)". She should have answered "yes" to this question. The delegate became aware of the incorrect answer and therefore decided on 9 August 2000 that she did not meet the requirements of s 13(1)(f) of the Act as she was not of good character (T1, P5).
The Hearing
A hearing was held on 14 March 2001 where the Respondent was represented by Ms Paula Chadderton, of the Legal Branch of the Department. The Applicant was self-represented. The Tribunal was assisted by an interpreter fluent in the Arabic language. The Applicant and her husband, Mr Ihssan Ali Agha, presented oral evidence to the Tribunal. The following documents were taken into evidence by the Tribunal:

Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 TD1
Supplementary section 37 documents TD2
Court documents relating to the Applicant Exhibit R1

The Applicant's evidence

Upon questioning from Ms Chadderton, the Applicant stated that she was married to her husband on 6 October 1995 and that he sponsored her to migrate to Australia. She further stated that it was her husband who completed the Form 47 which was lodged with the Department on 23 October 1996.
The Applicant was asked about her conviction in Bankstown local court on 24 September 1998. The Applicant confirmed that the alleged shoplifting incident had occurred. She stated that she was with her children when she committed the offence, and that her husband was outside the store.
The Applicant was read the Police Breach Report (Exhibit R1) by Ms Chadderton, but disputed the report's statement that her husband was with her in the store at the time of the offence. The Applicant said that her husband was not with her when she took up the disputed items but that he was at work. In other respects the Applicant accepted the accuracy of the Breach Report. The Applicant stated that she was in a hurry to leave, being asked to hurry by her husband who was standing at the front of the store, and that having recently given birth to a baby, she was suffering from post-natal depression. She claimed these as mitigating circumstances in her committing the shoplifting offence.
The Applicant was referred to the security staff report (S4, pp89-93) where the Respondent again asked whether, further considering the statement contained in this report, her husband was present in the supermarket at the time of the offence. The Applicant stated that her husband was not present. She stated that he was outside the store indicating to her to come out and meet him, to hurry herself. She further stated that he came into the store after she had removed the hair product items from the shelves and placed them in her baby's pram.
The Tribunal notes that the major difference between the version of events in the Breach Report and the Applicant's evidence relates to where the Applicant's husband was while she was in the supermarket. The Breach Report speaks of Mr Ali Aghar, the Applicant's husband, joining her in a second aisle as she proceeded with her shopping. The husband's evidence was that he joined his wife inside the store as she approached the check-out area. The Tribunal considers that the Breach report and the store security record (S4, PP 89-93) can be read to mean that Mr Ali Agha did join the Applicant when she approached the check-out. The Tribunal notes that the Applicant's version of the events which suggested that her husband arrived on the scene some time later was adjusted by the Applicant as questioning proceeded. It then accorded largely with the evidence of her husband. The Tribunal accepts that the Applicant's comment that her husband was at work when she was in the supermarket refers to her understanding of his whereabouts when she began her shopping expedition. Plainly he arrived at the entrance to the supermarket while the Applicant was within.
The Applicant stated that the police arrived after the offence took place, that she pleaded guilty to the offence on 24 September 1998 at Bankstown local court and that she was fined $300, also having to pay a court fee of $51. Her husband accompanied her to the court and later paid the fine and the court fee.
In response to further questions from the Respondent, the Applicant stated that this incident was the first and only time that she had stolen or shoplifted and that she had not committed any offence since. She reiterated that she was, because of the recent birth of her daughter, in poor psychological condition at the time of the offence.
The Applicant further stated on examination by the Respondent that she applied for Australian citizenship, lodging a Form 124B (T5) on 13 July 2000. She confirmed that it was she who had signed the form, declaring "that the information I have supplied in this form is complete and correct and complete in every detail", but that it was her husband who had completed the form for her, because she does not speak English.
The Respondent took the Applicant to question 37 on form 124B, where an applicant for citizenship must answer questions pertaining to convictions, court orders, probationary or other proceedings relating to offences that are pending against that applicant. The Applicant confirmed to the Tribunal that she had answered "no" to all of question 37 even though she had had a conviction recorded against her for "shoplifting value <=$2000" (T9). She further stated that she feared the consequences for her citizenship application if she admitted on the form to her conviction.
The Applicant maintained that although she untruthfully failed to acknowledge her conviction on the application form, she did tell the truth in the interview for assessment for grant of Australian citizenship (T6, P49). She stated that she and her husband assumed that if they mentioned the conviction, then the citizenship application would be refused. Ultimately in the assessment interview, after being asked "insistent questions" by an interpreter in regard to any conviction, the Applicant admitted to receiving a "warning" about her shoplifting offence "from Bankstown court in 1998." This was then added to the Form 124B by Mr Ali Agha.
It was the Applicant's submission at the end of the Respondent's questioning that, during the assessment interview, she told the assessor about the shoplifting and that she paid the fine, after an Arabic speaking official who worked for the Department asked questions specifically related to any offence.
Evidence of Mr Ihssan Ali Agha
Mr Ihssan Ali Ahga, the Applicant's husband, confirmed to the Tribunal the greater part of the Applicant's account of the shoplifting incident. He further confirmed the evidence of the Applicant in that it was he who completed Form 124B and that it was he who ticked "no" to all of question 37.
When questioned by the Tribunal as to why he was untruthful on the application, Mr Ali Agha stated that he feared that the Respondent would investigate the conviction and not grant citizenship to his wife. He also stated in response to questioning from the Tribunal that it was he who later completed question 38 of Form 124B, after the interpreter at the assessment interview asked persistently about any conviction.
When the Tribunal asked Mr Ali Agha why he and his wife believed it important to gain Australian citizenship, he replied that they wanted to feel like anyone else in this country and that they wanted to enjoy the rights and privileges that other Australians enjoy. He stated that he himself became an Australian citizen in 1993.
Mr Ali Agha made a short final statement. He stated that the offence was not initially mentioned on the form because he believed it to be a minor offence and repeated that he thought citizenship would be refused if he put this information on the form. He also stated that he was unaware that providing incorrect or incomplete information to the Respondent would render his wife liable to prosecution.
He affirmed that he would advise anyone else seeking a certificate of citizenship to record accurately any minor convictions in their application to the Minister.
Respondent's Submissions
The Respondent provided detailed written submissions to the Tribunal in addition to those submitted orally at the hearing.
The Respondent submitted that the Applicant, because of her failure to declare her conviction on her application for Australian citizenship, fails to meet the requirements of s 13(1)(f) of the Act, in that she is not a person of good character.
It was further submitted that she deliberately and incorrectly completed her Form 124B and that she later, upon further interview by departmental staff, also failed to disclose details about her conviction for shoplifting until ultimately pressed by a departmental official fluent in Arabic. The Respondent further submitted that, even after this, the admission by the Applicant in question 38 of Form 124B was less than totally truthful, because she admitted only to receiving a "warning" at Bankstown local court, rather than being convicted.
The Respondent submitted that the Department's "Australian Citizenship Instructions" series, in particular item 4.18.16, should be consulted by decision-makers in determining the ordinary use of the words "good character" in making assessments.
The Respondent further submitted that the Applicant, because of her actions in the process of applying for Australian citizenship, has shown a propensity to lie to government officials and therefore should not be granted citizenship, and further that the Applicant may be liable to prosecution under section 50 of the Act for this failure to declare details as required.
Section 50 of the Act provides for penalties of $1,000 and/or 6 months imprisonment where a person, for a purpose of or in relation to the Act, makes a representation or statement that is known to the person to be false or misleading in a material particular. The same penalties apply where the person conceals or causes or permits to be concealed, a material circumstance.
In support of these submissions the Respondent referred to Re Miroslav Mlinar and Minister for Immigration and Multicultural Affairs (unreported, 15 May 1997), where Deputy President Chappell stated that:
"The standard of good character should be even higher for citizenship cases than s501 [visa] matters because of the importance of citizenship and the greater responsibilities and privileges attached to [citizenship]."

This case, therefore, stands for the proposition that high standards should be set in assessing character in the process of considering an application for the grant of citizenship.

Re Luong and Minister for Immigration and Multicultural Affairs (unreported, 24 August 1999) was also referred to as an authority. This was because the Applicant did not complete the application form herself and has in some circumstances to take responsibility for the form not being correctly completed. In the present case, the Applicant's husband had completed the Form 124B on her behalf. He had completed it dishonestly. The Applicant is legally responsible for this state of affairs.
It was finally submitted that the Applicant had been less than honest with the Tribunal in her evidence in relation to the circumstances of the shoplifting offence, thereby providing further evidence of her propensity to be untruthful.
Findings on material questions of fact and the evidence on which those facts have been found
The issue of the shoplifting conviction is not before the Tribunal as the basis for the decision that the Applicant is not of good character. The Applicant's difficulties have been caused by her untruthful answers on Form 124B. However, because the Respondent examined the Applicant and her husband at some length in relation to the shoplifting incident, the Tribunal will address it.
The Tribunal finds that the Applicant and her husband dealt in the Tribunal hearing with the circumstances of the shoplifting offence in as open and honest a manner as might be expected given their limited command of English, the time that has elapsed since the incident in July 1998 and their lack of familiarity with a tribunal environment. The husband's evidence was entirely credible and the Applicant's evidence was illogical at only one point where she seemed to misunderstand the time frame being addressed because she later appeared to correct what she had said earlier. In total, their oral evidence to the Tribunal, upon questioning from the Respondent and the Tribunal itself, was both a reasonable and a corroborated narration of the facts surrounding the incident. Taking into account the fact that the crime was committed nearly three years ago, it was also closely consistent with the account in the Breach Report of 31 July 1998 (Exhibit R1). While the conviction is not in dispute, the Tribunal is satisfied that the oral evidence in relation to it was suitably reliable.
The Tribunal finds that the Applicant's husband, Mr Ali Agha, did complete Form 124B, and did incorrectly and deliberately provide untruthful information to the Department. It further finds that incorrect information was again provided at the Department's assessment interview, with an admission to only a "warning" and no mention of a conviction being stated at question 38 of the same form. The use of the word "warning" is consistent, according to the Applicant's husband, with what was said by the magistrate in court when the conviction was handed down. The Tribunal considers it likely that the magistrate would have emphasised to the Applicant that she was not to shoplift again and this may have been emphasised more than the fairly low monetary penalty applicable to the low value of the goods in question.

The Tribunal notes that the only facts disputed in any sense at all by the Applicant relate to some specifics of the shoplifting incident itself, and that that issue is not directly before the Tribunal.
Turning now to the issue of the Applicant's alleged untruthful dealings with a government agency and its officials, the Tribunal considers that the nature of the alleged crime or conduct in question must be taken into consideration in determining whether the Applicant is of good character in accordance with s 13(1)(f) of the Act. In addition the untruthful information that the Applicant knowingly provided to the Respondent must be considered – this is an extremely serious issue which the Tribunal must treat as of great importance.
The Tribunal agrees with the Respondent that it should take note of the Department's own Citizenship Instructions in considering these matters. Instruction 4.8.15 provides that good character can be presumed of an applicant if there is no "serious criminal record" and suggests that general conduct and associations may also be relevant. In the present case the offence in question is possibly an offence or offences under s 50 of the Act. This could amount to a serious offence but, at present, the Applicant's criminal record shows only a shoplifting offence for goods of low value. There is no evidence that the Applicant or her husband have any unsavoury or criminal associations or that they conduct themselves generally improperly.
Instruction 4.8.20 instructs the decision-maker to consider the seriousness of the offence, and instruction 4.8.23 requires the decision-maker to take into consideration the number of offences committed. Instruction 4.8.26 requires that behaviour since the crime was committed be also taken into consideration by a decision-maker.
The instructions at 4.8.19 provide examples of serious offences. These include offences whereby the accused has been sentenced to death, life imprisonment or imprisonment for 12 months or more. They also include war crimes, crimes against humanity and a number of other possibilities remote from a conviction for petty shoplifting.
As regards these instructions, they do not appear to have been issued by the Minister. The Tribunal can have regard to them but is not in any sense bound by them. They are particularly useful if they provide a commonsense approach to resolving relevant issues that the Tribunal might wish to adopt. These instructions seem to fit into that category.
The Tribunal notes that the Applicant has not been further convicted of any other crimes since 1998 and considers that she is unlikely to re-offend, taking into consideration the fact that there is no evidence that there have been any further similar incidents since July 1998. The Tribunal finds that the shoplifting incident was isolated and out of character.
In relation to the completion of the form by Mr Ali Agha, with the approval of the Applicant, the Tribunal has found that he deliberately concealed the fact of the Applicant's conviction. This is not in dispute by either party in these proceedings. The Tribunal considers that this could constitute a potentially serious offence under s 50 of the Act. Lying to official departmental employees is an extremely important matter. Not only does it put at risk the Respondent's and the Department's capacity to take at face value the evidence presented by these and other applicants for the grant of citizenship, in some cases it could result in regrettable grants of citizenship to entirely undesirable applicants. The Tribunal notes, however, that, although the Commonwealth has the capacity to prosecute the Applicant under section 50 of the Act, Ms Chadderton advised the Tribunal, when asked, that no prosecution action had been taken.
This information was concealed, as admitted in evidence by both the Applicant and her husband, for two reasons. Firstly they both believed that if they mentioned the conviction, citizenship would be refused and secondly, they did not understand the seriousness and potential consequences of committing such an act.
The instructions at 4.8.21 speak of recorded convictions in the context of the grant of a permanent visa. They say that concealment of them from the visa decision-maker should be given quite some weight. "[T]he fact of deliberate concealment may be an indicator of a continuing lack of good character." They do not go so far as to say that mere concealment automatically means that an applicant is not of good character.
Conclusion
The Tribunal has taken into consideration not only the shoplifting offence itself, but the failure of the Applicant to provide full details of it on her citizenship application form. Further the Tribunal notes the initial failure to provide this information at the assessment interview. However the Tribunal has decided that a finding should not be made against the Applicant in respect of s 13(1)(f) of the Act. The shoplifting offence was relatively minor. The Applicant pleaded guilty and she appears not to have re-offended in the two and half years since. Likewise, the misleading conduct engaged in by the Applicant and her husband appears on the evidence an isolated incident relating to a relatively minor recorded offence, disclosure of which was thought by the Applicant and her husband to be likely to bring about a catastrophic consequence for them. There was also no understanding by the Applicant that a failure to disclose certain information was illegal. She and her husband merely thought that they would be able to lodge another application.
The Department's guidelines are helpful in considering discretionary decision-making. There is no serious criminal record and no evidence as to the Applicant's general conduct that would suggest poor character.
The Tribunal has referred to Re Mlinar (supra), but notes that the conviction in that matter was for assault occasioning actual bodily harm, a far more serious offence than shoplifting goods to the value of $17.96. The Tribunal further notes that the decision in that matter was deferred pending the completion of the applicant's good behaviour bond, remitting the matter for consideration to the Respondent. The applicant in Mlinar may later have been granted citizenship.
In regard to Re Luong (supra), in the instant matter the Applicant has taken full responsibility for the incomplete information provided by her husband and has admitted as much to the Tribunal in her oral evidence. The Applicant has made no attempt to shift the responsibility onto others or avoid responsibility for her actions.
The Tribunal has in all the circumstances decided that the preferable decision would be that the Applicant is of good character under s 13(1)(f) of the Act. However, it is usual in these cases for the Respondent not to have assessed the application for citizenship sufficiently fully to have ascertained whether the applicant satisfies the other requirements in s 13 of the Act. It can happen that the other aspects of s 13 are not assessed so long as one factor has been identified as not having been satisfied. Thus, after the current decision is set aside it is to be expected that a Ministerial delegate will be required to make other decisions as to the applicability of the remainder of s 13. The matter will therefore be remitted to the Respondent to permit that to be done, if it has not been done already.
Decision
The Tribunal:
sets aside the decision under review and substitutes its own decision that the Applicant is of good character as required by s 13(1)(f) of the Australian Citizenship Act 1948 (the Act); and
remits the matter to the Respondent so that the Respondent may reassess the Applicant's application for grant of citizenship in accordance with the remaining requirements in s 13 of the Act.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  14 March 2001
Date of Decision  23 March 2001
Representative for the Applicant              Self-represented
Representative for the Respondent        Ms P Chadderton