Eli Kurban and Minister for Immigration and Border Protection
[2015] AATA 168
•24 March 2015
[2015] AATA 168
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2964
Re
Eli Kurban
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R Deutsch, Deputy President
Date 24 March 2015 Place Sydney The Tribunal sets aside the decision under review and remits the decision with a direction that the Applicant meets the good character requirement for Australian citizenship in section 21(2)(h) of the Australian Citizenship Act 2007.
..................................[sgd]......................................
Professor R Deutsch, Deputy President
CATCHWORDS
CITIZENSHIP - Whether Applicant of good character – Australian Citizenship Instructions – declaring offences on statutory declaration – gambling addiction - expired good behaviour bond – decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007, s 21(2)(h), 24
CASES
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Professor R Deutsch, Deputy President
24 March 2015
THE RELEVANT FACTS
The Applicant is a citizen of China and was born there on 13 June 1981.
The Applicant arrived in Australia on May 1 2009 and was granted a subclass XA 866 (permanent) visa on 28 August 2009.
Between early February and mid-May 2012, the Applicant committed 3 criminal offences for which he was convicted, and he received a 12 month good behavior bond in respect of each offence. The details are as follows:
19/7/2012 Receive/dispose stolen property – less than $5000
Section 9 Bond: 12 months
19/7/2012 Furnish false information/statement to Licensee
Section 9 Bond: 12 months
19/7/2012 Larceny value – less than $2000
Section 9 Bond: 12 months
On 20 January 2014, the Applicant applied for Australian citizenship by conferral under the Australian Citizenship Act 2007 ('the Citizenship Act').
On 5 May 2014, a delegate of the Minister refused the application. This was on the basis that the Applicant did not satisfy s21(2)(h) of the Citizenship Act. Central to the delegate's reasons for finding that the Applicant did not satisfy s21(2)(h) was that the Applicant had been convicted of the three offences referred to above.
The first offence related to the theft by the Applicant of a mobile phone and $200 cash from a gym locker at a Health and Fitness Centre.
The second offence arose when the Applicant pawned the stolen mobile phone at a Cash Converters outlet in suburban Sydney. In doing so he signed a declaration stating under oath that “I declare that I am the owner of the goods described above OR I am authorized to sell them.”
The third offence related to a shoplifting offence committed by the Applicant on 12 May 2012.
THE ISSUE
The only issue for determination is whether the Applicant is of good character within the meaning of the Citizenship Act.
The decision of the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31 establishes that in making an assessment the Tribunal is entitled to take into account all the facts and circumstances at the time of review.
THE LEGISLATION
Section 21(2) of the Act provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions (‘ACIs’) have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character”.
The ACIs reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are ‘cogent reasons to the contrary’: Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) ( 1979) 2 ALD 634 at [645].
Paragraph 10.1.2 of the Instructions provides, in part:
‘Good character’ refers to the enduring moral qualities of a 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.
This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 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 (citations of authorities omitted).
After referring to the judgement of the Federal Court in Irving, Paragraph 10.3.1 provides, in part:
In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
· characteristics which have been demonstrated over a very long period of time distinguishing right from wrong
· behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
In paragraph 10.3.4 of the ACIs there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. Thus, an applicant of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible;
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations – an example would include the concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;
·not be violent, involved in drugs or unlawful sexual activity and not cause harm to others through their conduct (for example recklessness exhibited by negligent driving or drink driving, excessive speeding or driving without licence or insurance;
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia;
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people;
·not have committed, being involved with or associated with war crimes, crimes against humanity and/or genocide;
·not be the subject of any extradition order or other international arrest warrant;
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia; and
·not be the subject of any verifiable information causing character doubts.
Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. It is not necessary to list them all, however reference will be made to those which may have some relevance to this case. Therefore, the factors which are relevant in determining why this Applicant might not be of good character (as set out in paragraph 10.5.2) include:
·Has the Applicant committed any offences and if so, did they admit that in their citizenship application?
·If the Applicant has committed an offence, was it serious or minor?
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or disabled, or others who trusted the applicant?
·What was the length of the sentence? A sentence in excess of 12 months should be given more weight.
·Is the Applicant associated with criminals or criminal organisations or other groups that do not uphold and obey the laws of Australia or abide by the Australian values and standards?
·Is the Applicant a risk to national security?
·How has the Applicant interacted with the Australian government and have they be been honest, or have they committed fraud, including identity fraud even if there is no criminal conviction?
·Has the Applicant engaged in conduct that potentially places children in danger?
·Has the Applicant engaged in conduct that would reasonably cause another individual to be severely apprehensive, fearful, alarmed or distressed regarding the Applicant’s behaviour towards that individual or their property or that of any other individual?
·What is the length of time between the date of the offence and the application?
·Has the Applicant accepted responsibility and shown remorse for their conduct?
·How has the Applicant behaved since they were freed from the obligations of the good behaviour bond?
·Has the Applicant rehabilitated himself?
·What was the applicant’s age at the time the offence was committed?
·Were there any extenuating circumstances relating to the offence?
·Is there evidence of length of employment, stable family life and/or community involvement?
THE APPLICANT’S STATEMENT
It is clear that in consideration of the factors and issues identified by the ACIs, and in evaluating the Applicant’s position in general, it is relevant to have regard to the Applicant’s own statement in support of their application.
The Applicant tendered a witness statement in which he sought to explain his behaviour, as follows:
I, Kurban Eli came to Australia in 2009. Then the following year 2010 my wife and kids came. In 2012 I started developing a gambling habit.
Soon after with my gambling problem I had gone into debts to my friends and relatives. I was struggling to pay the rent other bills and providing necessitates to my family also.
With the regards of shop lifting incident in 2012, in the same day it occurred I met my fellow countrymen in the street then we decided to go to sport RSL club in Liverpool to have few drinks, and when we had few drinks we ended up playing with Pokie machines then I ended up losing more than $300 that I had planned to do grocery shopping. I was quite depressed and desperate after losing my shopping money for the family. I knew that kids and my wife was waiting for me for their needs. I know that what I had done was very wrong and crime however then I had big issue which was taking over my mental conscious, under such desperate and stressful state I went and tried to take shopping that I was supposed to bring to my family. I went and took the shopping to my car. I regret so much for my behavior. It was crime it was wrong.
I can say it was the almost the same case with taking the Phone and cash from someone's locker, out of desperation after losing all the money we have received from the Centrelink for my kids and family and my wife was pregnant. I went to the change room in the gym at Liverpool after my work out and noticed that a locker was unlocked then 1 saw a phone and cash which I took and I went and pawned the phone. I am terribly sorry for what I did. It was wrong.
I am ashamed of what I did but I can assure you that I am absolutely a changed person now I have completely stopped the gambling. I am of good character. And I am working full time and paying off my debts and other bills. I would like to be an Australian citizen.
The Applicant asserts, and there is no evidence to the contrary, that he complied with the 12 month good behaviour bond imposed and that he is genuinely contrite for his actions and ashamed of what he did. He also asserts that he no longer gambles and that he has not reoffended. According to his statement he is 'absolutely a changed person now'.
THE OTHER WITNESS STATEMENTS
There are four Witness Statements from persons connected to the Applicant and it is relevant to take those statements into account as well.
Witness Statements were provided to the Tribunal by the following individuals:
·Ali Kurban (the Applicant’s brother);
·Maimaiti Bumairemu (the Applicant’s wife);
·Dilireba Dilimulati (the Applicant’s sister-in-law); and
·Talgat Abbas (a friend of the Applicant).
Ali Kurban states:
My name is Ali Kurban, I am a younger brother of Eli Kurban, I have been informed of Eli's wrong doings by himself after he has been in trouble with police and court orders.
I have also read his conviction statement from police through translator. I must tell you that it shocked me that he went so far. We are from decent parents who taught us good morals, manners and to act righteous. We had a decent living stranded in our country there for I have never known my brother stealing, cheating or acting so desperate.
From what I know that after he started playing gambling with Pokie Machine he started borrowing money from lots of people and owing money to many others, his wife use to complain to me that he had lost all the money for their groceries.
I asked him as to why he had done these stealing when I learned it after he has opened up and admitted to us that he is in trouble and he needed our help, he explained to me that he has done it out of desperation that he was depressed seeing his family suffer from his wrong actions.
My brother acknowledges that he made a big mistakes and he is very ashamed. The court order and police charging was a big shake for him to regain his conscious, he is now working full time with Brighton Australia as a training tradesman. I know also he had stopped gambling, he is looking after his five kids much better than comparing to his gambling period of years.
I am confident that he has found the right way and waken to himself to be a better person for future. I think he would be a good Australian citizen who would contribute to Australian community in future.
Maimaiti Bumairemu states:
My name is Maimaiti burairemu and I am a wife of Eli Kurban.
My husband was a good man who was responsible and righteous since I have known. After he has started gambling habit everything about his has changed, he lost all the money for our rent food and so forth. He only informed me of his stealing issues after he had been charged by police. Then he explained me what happened and why he got into this mess. During his gambling period we have suffered a lot we were in constant stress. I know that what he had done was big criminal act and unacceptable, I told him that for sake of kids I will give him one more chance otherwise ill not put up with this and he acknowledged that he became something horrible.
Since then he took 360° turn and never returned to gambling, he is now working full-time, paying off debts, paying the bills and looking after my kids and myself really well.
I believe that he has come back to his previous good characteristic state now, the whole family is much happier.
I appeal to you to consider his circumstances and give him Australian citizenship.
Dilireba Dilimulati states:
My brother-in-law Eli Kurban and acknowledges his wrongdoings, he is very sorry for what he has done he has shown that he is changed person now I believe he has learned his lesson and awaken.
Talgat Abbas states:
I have known Kurban Eli since he has arrived I Australia 2009.
I am an active member of Sydney Uyghur association and get involved with our community affairs.
To my knowledge Kurban Eli is known to our community as a helpful and respectable individual. I have not witnessed any criminal behaviour or bad morals since I have known him. I was surprised to learn that he has acted in such behavior: stealing cash and a phone, pawning the phone and shoplifting.
I have personally spoken to him since then and he told me say how he was lost and ashamed. He has now showing that he is responsible and honest person.
Dear Madam/Sir, I strongly believe that Kurban Eli has repented for what he has done and that he has changed.
I believe that he will work hard to support his family in honest way and contribute to Australia in future.
Letters of reference were also provided by the Applicant’s employer, which indicate that the Applicant has worked for the company since 26 August 2013. The Site Foreman indicates that the Applicant is “very productive and punctual” and that he “is a hard working individual and is respected by all his co-workers and managers on site.”
The letters of reference were dated 13 and 25 November 2013 but no more up to date references were provided. This is regrettable.
The reference of Mr Talgot Abbas, and the oral evidence given by him during the Hearing in this matter is particularly important in this context, as a non-family member, and a member of the community who has testified as to the Applicant’s strong community links and has confirmed that the Applicant has moved away from gambling, has begun paying off his debts and is working on a regular and ongoing basis.
EVALUATING THE ACI CRITERIA AND THE STATEMENTS
In evaluating the Applicant’s position the following matters specifically referred to in the paragraph 10.3.4 of the ACI’s are relevant:
·Apart from the three offences which led to his convictions, the Applicant has had no problems with the law either in Australia or elsewhere and generally speaking appears to respect and abide by the law in Australia;
·Again, apart from the three offences in question, his behaviour has been honest. It must be conceded that his gambling addiction does to some extent bring into question the degree to which he can be described as financially responsible;
·He appears to be generally truthful. It must be noted however that in his Statutory Declaration dated 7 April 2014 he makes reference to the offence relating to the theft of the mobile phone but makes no mention of the $200 theft, the shoplifting offence or the offence relating to his sworn declaration of ownership of the phone. These are not trivial oversights and need to be given due weight in determining whether the Applicant is of good character.
·Apart from what is referred to in the previous paragraph, he has not practiced deception or fraud in his dealings with the Australian government or any other government;
·He has not been involved in any crimes or other matters involving violence, drugs or unlawful sexual activity and there have been no suggestions of recklessness exhibited by way of negligent driving, drink-driving, excessive speed or driving without a license or insurance;
·From the factual information available it does not appear to be the case that he has associated at any time with persons with a criminal record;
·From the factual information available it does not appear to be the case that he has evaded immigration control or assisted others to do so or been involved in the illegal movement of people;
·He has not been involved in war crimes against humanity or genocide;
·He has not been the subject of an extradition order or other international arrest warrant;
·He has not been involved in providing assistance to or reasonably suspected of being involved in or providing assistance to any terrorist organisation or committed any acts of terrorism overseas or in Australia;
·There are clearly character doubts raised by the information currently to hand concerning his three offences.
Similarly the matters raised in paragraph 10.5 are relevant:
·The Applicant has committed three offences which he has acknowledged;
·The offences involved shoplifting, the theft of $200 and a mobile phone, and the pawning of the mobile phone with consequential lying under oath. Clearly, these are offences which cannot and should not be ignored but at the same time, having regard to the full spectrum of possible criminal offences, they would not be described as anything other than minor;
·There were victims of his offences but from the available information it does not appear to be the case that they were vulnerable people;
·The convictions all lead to the imposition of bonds;
·From the available factual evidence it is not the case that the Applicant associates with criminals or criminal organisations or other groups that do not uphold or obey the laws of Australia or abide by the Australian values and standards;
·The Applicant is not a risk to national security;
·The Applicant has interacted with the Australian government and has not committed fraud in doing so. Having said that, it must be acknowledged that in his Statutory Declaration the Applicant failed to be fully candid in disclosing all his offences;
·The Applicant’s conduct has not placed children in any danger;
·The Applicant’s conduct has not and should not reasonably cause another individual to be severely apprehensive or fearful regarding the Applicant’s behavior;
·The offences in question all took place in the first half of 2012. It is now almost 3 years since the offences were committed;
·In the Applicant’s own statement he indicates that he has accepted full responsibility for his actions and expresses remorse for his conduct;
·The Applicant behaved legally during the imposition of his good behaviour bond and there were no problems in complying with all the requirements of the bond;
·The Applicant has behaved legally since the completion of his obligations under the good behaviour bond;
·By his own statement and those of his wife and brother-in-law the Applicant believes that he has rehabilitated himself particularly in regard to his previous gambling conviction.
It is unfortunate that there is no tangible objective evidence of steps taken to achieve such rehabilitation. It would have served the Applicant well to have at least completed a course in rehabilitation which could indicate that some third party independent of the Applicant has assisted the Applicant in his rehabilitation efforts;
·The Applicant was of mature age when he offended – youth is not an extenuating factor in this case;
·The only possible extenuating circumstance that applies in this case is that the Applicant had developed a gambling problem in Australia which appears to have a direct correlation to his reoffending. All the statements provided by persons connected with the Applicant and his general behaviour appear to suggest that his gambling days are behind him and that he has not reoffended in any way since committing the third and last of his criminal offences;
·The Applicant, according to the evidence is gainfully employed working as a plasterer which is a skilled trade that he can undertake competently. The evidence suggests that he has returned to a stable family life and is involved in his community.
CONCLUSION
Having regard to all the relevant criteria and the various statements that have been tendered as evidence before this Tribunal, it is this Tribunal’s view that in weighing up all the factors that are relevant in this case, the Tribunal is satisfied that the Applicant is a person of good character.
The Applicant has regrettably been involved in the commission of certain criminal offences, but these offences were minor in nature when looked at in the overall spectrum of criminal activity. Further, whilst they cannot be excused, they are partly at least, and possibly almost entirely due to his unfortunate gambling addiction. The available information indicates that his gambling days are now behind him and he is determined not to slip back into gambling again. While the Tribunal cannot predict the future, during the course of the last three years since the commission of these offences, it appears to be the case that the Applicant has not been involved in any further gambling activities and has not been involved in the commission of any further criminal offences. In the circumstances, I am satisfied that this amounts to sufficient time having passed since the expiry of the relevant bond to establish that the Applicant has demonstrated a reasonable pattern of good behaviour when he was no longer under an obligation from the Court.
It is also regrettable that the Applicant was less than fully candid in his Statutory Declaration dated 7 April 2014. Although the Applicant may have had some misunderstandings as to how many offences he had committed, it is difficult to describe the way he described his position in the Statutory Declaration as an oversight, when no mention was made of either the theft of $200 or the shoplifting offence. This fact clearly counts against the Applicant and there needs to be significant factors pointing the other way to overcome this deficiency. In this case I believe there are such countervailing factors as I have described above. The Applicant’s non-criminal behaviour for the last two and a half years, the solid references, especially from the community referee, Mr Talgat Abbas, his commitment to work, to debt reduction and to his family are all strong factors supporting that he is of good character.
The Tribunal notes that the requirement for the conferral of citizenship is that the Applicant be of good character. This does not suggest that the Applicant’s character must be impeccable, flawless or outstanding. The threshold required for this purpose is much lower and, after carefully weighing all the factors, the Tribunal is satisfied that the Applicant meets the standard of good character required by the Citizenship Act.
DECISION
For the reasons set out above, the decision under review, being the decision that the delegate of the Minister for Immigration and Border Protection made on 5 May 2014 refusing the Applicant’s application for Australian citizenship, is set aside. The Tribunal remits the decision with a direction that the Applicant meets the good character requirement for Australian citizenship in s 21(2)(h) of the Citizenship Act.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President ......................[sgd]...................................
Associate
Dated 24 March 2015
Date(s) of hearing 16 December 2014 Advocate for the Applicant Nigel Dobbie, Visa Immigration Specialists Australia Solicitors for the Respondent Amanda Graham, Clayton Utz
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