Jamaldeen Vellaikuddy and Minister for Immigration and Border Protection
[2014] AATA 519
[2014] AATA 519
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6681
Re
Jamaldeen Vellaikuddy
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 29 July 2014 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
CITIZENSHIP — Application for Australian citizenship — Whether the Applicant is of “good character” — Applicant’s criminal history — Lack of evidence of good conduct — weight to be given to character references — Decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) - s 21(2)(h)
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Senior Member A K Britton
29 July 2014
Sri Lankan citizen Jamaldeen Vellaikuddy arrived in Australia in 2004. He holds a protection visa. A delegate of the Minister for Immigration and Border Protection decided not to grant Mr Vellaikuddy’s application for Australian citizenship on the grounds that he did not meet one of the statutory criteria for Australian citizenship ― to be of “good character” — on account of his conviction for the offence of “obtaining money by deception”. Mr Vellaikuddy has asked the Tribunal to reconsider the matter. For reasons I will explain, I have decided the decision should be affirmed.
STATUTORY FRAMEWORK
A person is eligible to become an Australian citizen if, among other things the Minister, or the Tribunal acting as substitute decision-maker, “is satisfied that the [citizenship applicant] is of good character at the time of the Minister’s decision on the application” (s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act)).
The term “good character” is not defined in the Act. The Tribunal must therefore be guided by the ordinary meaning of the words as interpreted by the courts.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving) the Full Federal Court considered the meaning of the expression “good character” for the purposes of the migration legislation. Davies J (with whose reasons R D Nicholson J agreed) said (at p 425):
... the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
In the same decision, Lee J said (at pp 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 omitted].
Australian Citizenship Instructions
The Australian Citizenship Instructions (the Instructions) were issued by the Minister to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. In exercising its review function the Tribunal must take the Instructions into account unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).
The Instructions (at 10.5.2) list a number of factors to be taken into account in assessing whether a citizenship applicant is of good character. These include:
Whether the citizenship applicant has committed any offences and if so, whether they disclosed that in their citizenship application
The number and frequency of offences
Whether the offence is “serious” or “minor”
Whether there were any victims of the offence
Whether the offence was pre-meditated
The length of any sentence imposed
Any ongoing obligations in relation to the sentence received, such as a good behaviour bond
The Instructions go on to list “mitigating factors” that must also be taken into account. These include:
Mitigating factors-could the applicant be of good character anyway
…
·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? …
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond? …
·Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws? ...
·What was the applicant’s age at the time the offence was committed? If the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character.
·Were there any extenuating circumstances relating to the offence? …
·Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character. Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship. …
Mr Vellaikuddy’s attitude to the offence
In November 2007 Mr Vellaikuddy committed the offence “Obtain money etc. by deception >$15,000” (the subject offence). The offence involved credit card fraud. He was convicted and sentenced to 12 months home detention. He was granted parole after six months. The District Court of NSW dismissed an appeal brought by Mr Vellaikuddy against the severity of his sentence.
Apart from the evidence given by Mr Vellaikuddy the only material before me about the circumstances of the offence is the pre-sentence report prepared in April 2008. In that report probation and parole officer, Michael O’Donnell, recorded being told by Mr Vellaikuddy that at the time of the offence he was unemployed and was approached by an acquaintance who offered to assist Mr Vellaikuddy obtain employment. Mr O’Donnell wrote that Mr Vellaikuddy “appears to have little insight into his offending behaviour and did not express remorse for his actions”.
On questioning in these proceedings, Mr Vellaikuddy initially stated he could not recall the exact amount stolen in the subject offence, except as revealed by the details of the charge, it was more than $15,000. He later said that when arrested his co-offender was holding a bag of cash of about $30,000. He stated that the subject offence took place over a period of about a week and his role was driving his co-offender to about 15 ATMs each day, at various locations.
In a statement prepared in support of his application for citizenship dated 22 October 2013 (the first statement), Mr Vellaikuddy claimed that at the time of the offence he was being treated for depression. He wrote that there were “extenuating circumstances leading to the offence in that I was unemployed and impecunious”. He submitted that the offence was not a “serious offence” stating it was not a “crime of violence or sexual abuse, major fraud, stalking, armed robbery or the like”. He also pointed out that it was a one-off offence.
In an undated statement prepared for these proceedings (the second statement), Mr Vellaikuddy wrote that at the time of the offence he was very depressed and he “now realise[s] that engaging in unlawful acts is very wrong”, that he has learnt his lesson and “regret[s] being involved in the incident”. He wrote that he sometimes does voluntary work to “compensate the time and money the Australian Government spent for me in the past”.
Medical records produced in these proceedings support Mr Vellaikuddy’s claim that he was admitted to hospital for several days shortly after the offence for depression/PTSD.
In these proceedings, Mr Vellaikuddy denied as asserted by the Minister that the expression of remorse and acknowledgement of the serious nature of the subject offence, contained in the second statement, were disingenuous. He denied that the reason he included those comments in the second statement was because when it was prepared he was on notice that one of the stated reasons for the decision to refuse his application for citizenship was his apparent lack of contrition. He claimed that because of his poor English skills he asked a friend to prepare both statements. He denied telling the friend that the offence was of a “light character” and not a “serious crime” and claimed that he did not carefully read the first statement before signing it. He testified that when told that statement was “not correct” he sat next to his friend when he prepared the second statement and told him what to write. He agreed that the friend read the reasons given by the Minister’s delegate for rejecting his application for citizenship before preparing the second statement.
History of gambling
Shortly after his arrest Mr Vellaikuddy was referred for treatment to a clinical psychologist. In notes of a consultation with Mr Vellaikuddy the psychologist recorded — “problem gambling” … “reports has large debt to pay off”. When questioned in these proceedings Mr Vellaikuddy denied ever having had a gambling problem or carrying a large debt. He said at the time of the subject offence he had incurred a debt of about $1,000 to fund his living costs during a period of unemployment. He admits that at that time he was gambling but denies having a “gambling problem”. He claims he stopped gambling sometime in 2008.
Conduct since the offence
Mr Vellaikuddy’s claim that he has had no contact with the police since his sentence expired, is uncontradicted.
Mr Vellaikuddy commenced work as a casual employee at a metal production company in mid-2008. On his account, he continued to work at that company on a reasonably regular basis until a few months ago when told no further work was available due to a downturn in business. In a reference dated 27 September 2013, the company’s manager, Matthew Vallance, stated that Mr Vellaikuddy is “a hardworking, polite individual” whose attitude to work is “exemplary”. Mr Vellaikuddy’s direct supervisor also provided a reference which echoed those views. The director of the labour-hire company, which employed Mr Vellaikuddy, endorsed Mr Vallance’s opinion. Mr Vellaikuddy is currently looking for work and in receipt of Newstart Allowance.
According to Mr Vellaikuddy from time to time he has worked as a volunteer for various community organisations. He is unsure when that involvement started but thinks it might have been in 2012. He denies that his involvement coincided with his decision to apply for citizenship and was motivated by a desire to bolster his application for citizenship. In a letter dated 25 September 2013, the co-ordinator of the community group, Community and Cultural Connections, thanked Mr Vellaikuddy for the time he gave to the organisation “over the past few months”. She commended Mr Vellaikuddy for his hard work, commenting that the clients of the service enjoyed his cooking and sense of humour.
In a character reference, the president of the Austra-Lanka Muslim Association stated that Mr Vellaikuddy had been a member of the Association for many years and is involvedin the Association’s activities.
Reputation in the community
In support of his application for citizenship Mr Vellaikuddy relies on 14 character references provided by a range of people: employers, medical practitioners, friends, flat mates and persons involved in community organisations.
About half of Mr Vellaikuddy’s referees made no reference to the subject offence. The remainder refer to the offence in general terms, such as “some unlawful activities”. According to Mr Vellaikuddy those referees who knew of the offence were aware that he had been involved in credit card fraud but not the amount stolen.
Is Mr Vellaikuddy now a person of “good character”?
Mr Vellaikuddy’s convictions give rise to the presumption that he is not of good character. Whether that presumption has been rebutted requires consideration of all the available evidence including the nature of the offence, whether it was a one-off, the penalty or sentence imposed, the passage of time since the offence was committed, evidence of remorse and rehabilitation undertaken, Mr Vellaikuddy’s conduct since the offence was committed and the opinions of persons of good character who are able to comment on his reputation.
Mr Vellaikuddy argues that consistent with the opinions of the many people who provided references in support of his application for citizesnhip, he can now be considered to be a person of good character. In support of that claim he points to his employment record, involvement in community associations, the passage of time since the subject offence was committed and the absence of evidence of further offending or bad character.
The Minister contends that Mr Vellaikuddy is not genuinely remorseful for his involvement in the subject offence. He contends that the first statement is a more reliable indicator of Mr Vellaikuddy’s real attitude, namely that the subject offence not serious in nature and a victimless crime. The Minister urges the Tribunal to give little weight to the character references submitted by Mr Vellaikuddys because none of his referees knew of the details of the subject offence and many were apparently unaware of Mr Vellaikuddy’s criminal history. Further, the Minister contends that there is no evidence to support Mr Vellaikuddy’s claim that he no longer has a gambling problem.
The Minister placed significant emphasis on the discrepancy between the statements prepared by Mr Vellaikuddy. He contends that the use of the words “not a serious crime” in the first statement is revealing and consistent with the observation made by the probation and parole officer in 2008 that Mr Vellaikuddy was not remorseful for his offending conduct.
In my opinion the Minister’s characterisation of that evidence is overly harsh. It is apparent from the form and content of the first statement that it was prepared using the Instructions as a template to address the factors listed (at 10.5.2) relevant to the assessment of the nature of the offence. Read in that context the description of the offence as not being a “serious crime” takes on a different flavour. Given some of the examples of “serious offences” listed in the Instructions — war crimes, terrorist activity, child pornography, murder and violent robbery — it is not surprising that the subject offence was described as not a “serious crime”. The characterisation of the seriousness of an offence requires consideration to be given to the nature of the particular offence and where it falls on the spectrum of offending conduct. As reflected by the decision made by the sentencing magistrate not to award a custodial sentence, on the scale of seriousness, the subject offence can in my opinion properly be regarded as falling at the low end of that scale.
I am also unable to accept the argument put for the Minister that a finding of good character is not available because of Mr Vellaikuddy’s “gambling habit”. The only available material about that purported “habit” is a two line entry in clinical notes made over seven years ago. Mr Vellaikuddy’s claim that he stopped gambling in 2008 is uncontradicted. Given the range of people who provided character references on his behalf, which include a long term flat mate who attested to Mr Vellaikuddy’s reliability in among other things, paying rent on time, I think it improbable Mr Vellaikuddy now has a “gambling problem”.
Mr Vellaikuddy’s first language is not English. In preparing his application for citizenship he was reliant on the assistance of a friend who he claims misunderstood what he asked him to put in his first statement. He claims that the reason for the discrepancies between his two statements was because he had not carefully read the first statement before signing. While plausible, absent some supporting evidence I am unable to accept that explanation. Further while these is some evidence to support Mr Vellaikuddy’s claim of being of good character I agree in broad terms with the submission put for the Minister that the supporting evidence lacks the necessary detail to safely make that finding. While I accept that there is evidence of Mr Vellaikuddy having some involvement in community organisations it is not entirely clear from the available material the durtaion and nature of that involvement. It is also unknown whether those persons who attested to his good character would have done so had they known the details of the subject offence.
I have considerable sympathy for Mr Vellaikuddy. He believes unless granted citizenship it would be unsafe for him to visit his elderly mother in Sri Lanka. Whether as the Minister suggests there is no rational basis for that belief, I accept that that belief is genuinely held. Nonetheless a decision to grant citizenship can only be made if I am positively satisfied that Mr Vellaikuddy is of good character. On the available material I could not be so satisfied and therefore must affirm the decision under review. This decision does not prevent Mr Vellaikuddy in the future making an application for citizenship. Any future decision-maker will be required to make an assessment of Mr Vellaikuddy’s character on the basis of the material available at that time.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ..........[SGD]..............................................................
Associate
Dated 29 July 2014
Date(s) of hearing 21 July 2014 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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