Gupta and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 500

Gupta and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 500 (13 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6334
Re	Mani Gupta
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	13 July 2015
Place	Perth

The Tribunal affirms the decision under review.

......(Sgd) A F Cunningham.................................................................

Ms A F Cunningham, Senior Member

Catchwords

CITIZENSHIP – immigration – good character test – decision under review affirmed

Legislation

Australian Citizenship Act 2007 – s 21 – s 21(2)(h) – s 50

Migration Act 1958 – s 97 – s 109

Cases

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

Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

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

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

Secondary Materials

Australian Citizenship Instructions – Chapter 10

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

13 July 2015

INTRODUCTION

1. The applicant, Mani Gupta seeks the review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) dated 13 November 2014 to refuse to grant him citizenship. The decision was made on the ground that the applicant did not meet the “good character” requirement of the relevant legislation.

2. The hearing was conducted by way of video link to the Perth registry. The applicant appeared on his own behalf and the respondent was represented by Mr Carroll. The applicant gave oral evidence and was cross-examined by Mr Carroll. The applicant’s written statement was tendered in evidence. Also tendered in evidence were the T-documents and a supplementary set of T-documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

   ISSUES

3. The issue for the Tribunal to determine is, whether the applicant was of good character at the time of the Minister’s decision to determine his application for citizenship.

   BACKGROUND

4. The following background facts are included in the Respondents Statement of Facts, Issues and Contentions and confirmed by the information contained in the T-documents. They were not disputed by the applicant.

5. The applicant is an Indian national who first arrived in Australia on 10 August 2007 as the holder of a Student Visa.

6. The applicant lodged an application for a skilled-independent (Subclass 885) visa on 28 June 2011. One of the documents submitted by the applicant to satisfy the “competent English” requirement for the grant of a skilled visa was an International English Language Testing System (IELTS) test report. The test had been taken in New Delhi, India on 20 November 2010.

7. On 23 November 2011, the applicant was granted a skilled visa entitling him to remain in Australia indefinitely.

8. On 23 March 2012, the British Council (Education Services) Informed the Department of Immigration and Border Protection (the Department) that the applicant’s IELTS test report was suspected of having been obtained fraudulently. The Department compared the applicant’s photograph against the photograph of the person who had taken the IELTS test on 20 November 2012 under the applicant’s name and determined that the applicant was not the person who had sat the test. The Department concluded that the IELTS test report submitted by the applicant was a bogus document under section 97 of the Migration Act 1958.

9. On 26 May 2013, the applicant lodged an application for Australian Citizenship by conferral. On 30 May 2013, the applicant signed a declaration acknowledging that it is an offence under section 50 of the Australian Citizenship Act 2007 (the Citizenship Act) to deliberately conceal circumstances in relation to an application. Further, he declared that the information supplied in the application was complete, truthful and correct in every detail.

10. On 20 January 2014, the Department informed the applicant that the Department was considering cancelling his skilled visa on the basis that his IELTS test report submitted in support of his skilled visa application was a bogus document.

11. On 4 August 2014, a delegate of the Minister decided not to cancel the applicant’s skilled visa on the basis that the hardship that would occur to the applicant and his family would be disproportionate to the general deterrence effect on others. The delegate took into account the applicant’s marriage to an Australian citizen, his wife’s medical situation and a good track record of employment.

12. On 16 September 2014, the Department wrote to the applicant and raised the false IELTS test report in relation to the good character requirement under section 21(2)(h) of the Australian Citizenship Act 2007 (the Citizenship Act). The applicant was directed to provide a written statement outlining the full circumstances of the situation that occurred as a result of his IELTS test results, three character references and any other supporting information.

13. On 13 November 2014, a Delegate of the Minister refused to approve the applicant’s application for Australian citizenship on the basis of that the delegate was not satisfied that the applicant was of good character at the time of the delegate’s decision.

    LEGISLATIVE FRAMEWORK

14. Citizenship can be acquired either automatically or by application. Citizenship by conferral is one of the four ways of acquiring Australian citizenship by application. The provisions relating to citizenship by conferral are contained in Part 2, Division 2, Subdivision B of the Citizenship Act.

15. The eligibility provisions are contained in section 21 of the Citizenship Act. The eligibility requirement that is the subject of this application for review is contained in section 21(2)(h) of the Citizenship Act which states that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Ministers decision on the application”.

    GOOD CHARACTER

16. The term “good character” is not defined in section 21 or elsewhere in the Citizenship Act. The term was comprehensively considered by Deputy President Forgie in Zheng v Minister for Immigration and Citizenship [2011] AATA 304. Deputy President Forgie referred to in a number of decisions that had considered the expression. She quoted Deputy President McDonald who said in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 [at 7]:

    “…a decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”

17. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) FCR 422 Lee J said [at 431]:

    “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 the ordinary sense, namely, a reference to the enduring moral qualities of a 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 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.”

18. The relevant policy guidelines are outlined in Chapter 10 of the Australian Citizenship Instructions (the Instructions). The Instructions provide policy guidance in relation to the interpretation of the exercise of powers under the Citizenship Act and the Regulations. Decision makers will ordinarily apply policies such as the Instructions unless their application produces an unjust decision on the circumstances of the particular case (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

19. Included in the Instructions list of good character characteristics is the requirement to be truthful and not practice deception or fraud in dealings with the Australian Government, or other governments and organisations for example: providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during Visa and citizenship application; involvement in bogus marriage; concealment of convictions that could lead to the cancellation or refusal of a Visa or citizenship; involvement in Centrelink or Australian tax fraud; giving false names and/or addresses to police.

    THE EVIDENCE

20. The record of decision dated 4 August 2014 cancelling the applicants skilled Visa records that when the department raised the bogus IELTS report with the applicant as part of the cancellation process, the applicant acknowledged that he had allowed others to arrange an impostor to sit his IELTS test for him. He stated that he had done so through desperation because he wanted to live in Australia. He was aware that a certain English language standard was required but said that his many IELTS attempts had failed.

21. In response to the Department’s request dated 16 September 2014 to provide a written statement outlining the full circumstances of the situation that occurred as a result of the applicant’s IELTS test results, the applicant submitted a statement dated 13 October 2014 in which he stated as follows:

    “I Prikshit Gupta came to Australia on student Visa in August 2007 to complete my masters of accounting. I really like the education system in Australia and finish my masters in 2009. Then I come to know that this course is in skill occupation list that I can apply for my permanent residents.

    After that I started doing preparation for my IELTS and booked exam for IELTS. Unfortunately I couldn’t achieve the required score in IELTS. I attempted nearly 10 times IELTS exam in Australia most of the time I always miss required marks in one module. That time I got really depressed, so I thought to try IELTS in India. While I was in India one of my friend told me that he knows someone who can get me IELTS required score. That time I was so desperate to get my IELTS score because I tried for so many times so I agreed with him. That’s how this situation came about. Therefore, I admit that I have submitted a bogus document and incorrect information to the Department of Immigration in relation to a visa application. I really feel guilty the mistake I did in the past.”

22. The applicant submitted three statutory declarations in support of his citizenship application. Gareth Michael Kelly declared on 5 October 2014 that he had known the applicant who had worked for him as a shop assistant, for approximately one and a half years. The applicant had recently told him that he had provided a false IELTS report to get his permanent Visa which seemed very out of character as he had always found the applicant to be an honest and reliable person who works extremely hard to provide for his family. He understood that the applicant had admitted his dishonesty to the Department as soon as they questioned him and that he did not lie about the situation. Mr Kelly stated that the applicant “has always demonstrated great character” and that he would recommend him as a man of good character who has made a single mistake.

23. Mohamed Yousaf Kalvath declared on 5 October 2014 that he had known the applicant for about one year as a good friend. He was surprised to learn from the applicant that he had provided a false IELTS report as part of his permanent visa application as he sees him as a hard-working and honest man providing for his family. Mr Kalvath also stated that he understood that the applicant had made an admission to the Immigration Department as soon as he was questioned and did not lie about the situation.

24. The statutory declaration from Carol Lee Perry dated 7 October 2014 is in similar terms. She had known the applicant for a period of 12 months having worked with him at Coles.

25. In response to an invitation by the Department dated 5 July 2011 to comment on information obtained by the Department regarding the IELTS test certificate submitted by the applicant, the applicant stated in a letter dated 12 July 2011 that the IELTS test certificate dated 20 November 2010 in India was undertaken by him during a family visit. The applicant had seen the IELTS result on the Internet and that he:

    “Was so glad to see that this time I got IEL TS score which was not less than six in each module.… I state that the IELTS test certificate 101N 033732G UPP120G dated 20/11/2010 in India was undertaken by me except I have no facts about that the IELTS test certificate has been fraudulently altered document as you revealed that the security characteristics introduced during the document issuing process are not in tact as the background print around the image of the candidate is damaged and a reactive substance is present beneath it.” (ST4, p184)

26. At ST5 is a facial image comparison report undertaken by a facial image comparison specialist dated 28 August 2012 in which the author concludes that the two images provided were not the same person.

27. In the Department’s notice of intention to consider cancellation under section 109 of the Migration Act 1958 dated 20 January 2014 (ST6) it is stated:

    “On 23 March 2012 the British Council (Educational Services) India advised the Department that as a result of checking the IELTS records for the India region a number of suspected fraudulent assessments were discovered-included in this list was your name against your test result of 20 November 2010. As a result of the uncovered fraud the British Council has reset your test results for that day to 0.

    The Department then conducted its own further checks into this result and on 28 August 2012 the Identity Resolution Centre, having compared a photo of you with that of the person who sat the 20 November 2011 IEL TS test, determined that they were not the same person. That is to say that someone else took the test in your name. The results obtained for the test are not yours. As you have submitted (via your migration agent) a certified copy of this test result, I consider that you have submitted a “bogus document” to the department in relation to a Visa application. It is considered to be a bogus document under part (a) of the S 97 definition of a bogus document-that is to say it is bogus because “it purports to have been issued in respect of a person but was in fact not…”

28. The applicant’s evidence to the Tribunal about the arrangements to take the IELTS in India was inconsistent and at times very difficult to follow. Initially the applicant said that he went to India to undertake the IELTS test because he thought that a different environment and the support of his family would assist him to pass the test. He then agreed that he had travelled to India specifically to arrange his IELTS results through the brother of a good friend. He understood that this man, who the applicant consistently referred to as “his friend”, had successfully arranged previous IELTS test exams for other students. He understood that this man had contacts in the British Consulate but he was not sure of the exact arrangements.

29. It was the applicant’s evidence that he was told that would receive a “legal document” from his friend. His friend assured him that he would not do anything illegal. The applicant said that he believed in him and he trusted him because he was his friend. His friend had told him that he had links with the British Consulate and that other students had not had any previous problems with the test results. The applicant agreed in cross-examination that his friend would arrange for a pass result despite the fact that he had not achieved the required score after sitting the test. He thought this could be arranged through his friend’s contact in the British Consulate.

30. The applicant stated that he had paid his friend between $2000 and $5000 for the documentation. The applicant claims that his friend had taken advantage of him and that he was an in innocent victim who took “full responsibility” for his “error of judgement in providing a false document”. He maintains that it was an isolated incident and out of character.

    CONSIDERATION

31. The applicant’s acceptance of responsibility appears to be limited to the submission of a bogus document and there was no indication that he accepted or recognised that the arrangement that he had entered into with his friend in India was fraudulent or in any way dishonest. The applicant did not state that he regretted his actions in contacting this man for the purposes of securing an acceptable IELTS test result for the purposes of his visa application. It seems that the applicant did not enquire as to the process involved in obtaining an acceptable IELTS test result. He was mainly concerned to ensure that the document that he would receive would be “legal” in that it would be accepted by the Immigration Department. It is apparent that the applicant’s only regret is that the fraud was discovered in that the IELTS certificate proved to be an “illegal” document.

32. The applicant stated that he feels guilty and was foolish to trust “his friend”, and that he would not repeat such a mistake. However in the absence of an acknowledgement from him that his actions in arranging for an acceptable IELTS pass result were dishonest and fraudulent, the Tribunal cannot be assured that the applicant would not engage in similar conduct in the future if he could be assured that he would not be “found out”.

33. The Tribunal places little weight on the three statutory declarations submitted by the applicant. All of the declarants have only known the applicant for a short period of time. Their statements are brief and made on an understanding that the applicant had admitted his dishonesty to the Department as soon as he was questioned, which was not the case. The statements are repetitive and do not appear to be true accounts of the declarants’ independent knowledge of the circumstances.

    CONCLUSION

34. As stated in clause 10.3.4 of the Instructions, a person of good character would respect and abide by Australian law and will be truthful and not practice deception or fraud in their dealings with the Australian government, including providing false personal information, qualification documents or other material deception in visa and citizenship applications. The Instructions also make it clear that different considerations apply when considering an application for citizenship as opposed to cancellation of a visa. Falsification of IELTS exam results is specifically referred to in clause 10.4.1 of the Instructions as an example of a circumstance that, while not necessarily resulting in cancellation of a visa, will indicate that a person is not of good character for the purposes of the Citizenship Act because the person has committed a fraud and deceived the Australian government.

35. By procuring and submitting a bogus document, the applicant has consciously engaged in an extended period of dishonesty in his interactions with the Department which is clearly contrary to the standards expected of a member of the Australian community. The submission of this false documentation lead to the applicant being granted a permanent visa in circumstances where had he not submitted the false documentation, he would not have been eligible. He made no reference to his dishonest conduct in his May 2013 citizenship application. It was not until the Department raised the bogus IELTS report with the applicant on 20 January 2014 that he admitted to having submitted a false IELTS report. The applicant had knowingly deceived the Department for over two and a half years from June 2011 to January 2014.

36. The applicant failed to give a full account of his actions despite being invited to do so on a number of occasions.  Despite his repeated expressions of regret and stated acceptance of responsibility, the Tribunal is not satisfied that the applicant meets the definition of “good character” as this term is understood and has been interpreted by the authorities. He repeatedly stated that he was wronged by “his friend” who he trusted and that he was an innocent victim. This indicates a complete lack of appreciation of the seriousness of his actions and disregard for the laws of Australia and falls short of the standard of honesty that is expected of an applicant for citizenship.

1. For all of these above reasons the Tribunal affirms the decision under review.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Cunningham

..(Sgd) A Tran......................................................................

Associate

Dated 13 July 2015

Date of hearing

25 May 2015

Applicant

Representative for the
Respondent

In person

Mr D Carroll

Solicitors for the Respondent

Australian Government Solicitors