Kashkooli and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 105
•11 January 2016
Kashkooli and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 105 (11 January 2016)
Division
GENERAL DIVISION
File Number
2015/2980
Re
Armin Kashkooli
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 11 January 2016 Date of written reasons 26 February 2016 Place Brisbane The Tribunal affirms the decision under review.
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Deputy President Dr P McDermott RFD
CATCHWORDS
MIGRATION – visa – whether applicant is of good character – applicant had previously committed offences - failure to disclose previous offences – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 2007 (Cth) ss 24, 21
Regulatory Offences Act 1985 (Qld) s 5
Police Powers and Responsibilities Act 2000 (Qld) s 791CASES
Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422SECONDARY MATERIALS
Australian Citizenship Instructions (1 July 2014)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
26 February 2016
This is an application of Mr Armin Kashkooli (“the applicant”) under s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) for a review of the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) made on 10 June 2015. On that date the delegate for the Minister refused the applicant’s application for citizenship under s 24(1) the Australian Citizenship Act 2007 (Cth) on the basis that the applicant did not satisfy the eligibility criteria under s 21(2).
BACKGROUND
The applicant is an Iranian citizen. On 28 May 2010 the applicant was granted a XB 200 Refugee visa. On 29 July 2010 the applicant arrived in Australia.[1] On 28 November 2014 the applicant applied for Australian citizenship by conferral.[2] The application was dated 12 May 2014.[3]
[1] Exhibit A: T Documents. T15.
[2] Exhibit A: T Documents. T4.
[3] Exhibit A: T Documents. T4.
The applicant stated in oral evidence that he has undertaken some employment since coming to Australia. Over the past two years he has participated in English language classes. In early 2015 he completed a security guard course.
The applicant has been found guilty of two offences. On 2 July 2014 the applicant was found guilty of a criminal offence under s 5(1)(c) of the Regulatory Offences Act 1985 (Qld), namely, unauthorised dealing with shop goods of a value of $150 of less. The particulars of the offence recorded in the Queensland Police Service Court Brief were that on 11 June 2014 the applicant entered in to the Macarthur Chambers Woolworths and placed items which had a sale value of $77 into his personal backpack. The applicant then placed other items into a basket and proceeded to the self-serve check out. The applicant paid for the items in his basket but did not pay for the items in his backpack.[4]
[4] Exhibit C: Queensland Police Service Court Brief.
As a result of the above offence the Queensland Police Service issued the applicant with an identifying particulars notice requiring him to attend the Fortitude Valley Police Station within seven days of issue to have his photograph taken and his fingerprints recorded.[5] The applicant did not comply with these particulars between 10 June 2014 and 19 June 2014. On 12 August 2014 the applicant was consequently found guilty of an offence under s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld), namely, contravening a direction or requirement of a police officer.[6]
[5] Ibid.
[6] Ibid.
On 28 November 2014 the applicant lodged an application for Australian Citizenship.[7] The applicant had dated the application as being signed on 12 May 2014. Question 31(a) on the application form provided as follows:[8]
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
The applicant ticked the ‘No’ box in answer to that question.
[7] Exhibit A: T Documents. T4.
[8] Ibid.
On 10 June 2015 a delegate of the Minister refused the applicant’s application under s 24(1) the Australian Citizenship Act 2007 (Cth). The delegate refused the application on the basis that the applicant did not satisfy the eligibility requirement set out under s 21(2)(h) that the applicant:
is of good character at the time of the Minister’s decision on the application.
On 17 June 2015 the applicant lodged an application to the Administrative Appeals Tribunal for review of the decision of the Minister’s delegate.[9]
[9] Exhibit A: T Documents. T2.
ISSUES
The primary issue for the Tribunal to determine is whether the applicant was of good character at the time of the Minister’s decision on the application. Section 21(2)(h) of the Australian Citizenship Act provides that the applicant cannot be approved to become an Australian citizen if he was not of good character at 10 June 2015.
CONTENTIONS
The applicant contended that he has been a person of good character at all material times. There were three statutory declarations in evidence supporting the applicant’s application for citizenship.
The respondent contended that the character references tendered should be given limited weight. The basis for this submission was that only one of the declarants indicated that they were aware of the applicant’s criminal history. That declarant had only become aware of the offences on the date they made the declaration.
The applicant conceded that he had committed two criminal offences. However, his contention was that they were of a minor nature and did not preclude him from being deemed to be a person of good character.
In relation to the first offence, the applicant stated in giving evidence that he had taken the items from Woolworths without paying for them by accident. He had inserted the items into his backpack because he did not have sufficient room to store them in his shopping basket. When he got to the cashier he had forgotten that he had items inside his backpack.
In relation to the second offence, the applicant stated in giving evidence that he lost the notice that the Police had sent to him so he was prevented from knowing when he was required to attend the Police station. He claimed that he went to the Police station after another notice was provided to him. When pressed in cross-examination, the applicant conceded that he attended the Police station because the Police attended his premises and asked him to go to the station. It was also conceded that he told the Police at the time that the reason for his failure to comply with the direction was that he had been sick. When questioned why he had given an alternative explanation at the hearing he then stated that both reasons were applicable.
The respondent contended that the applicant’s criminal history should weigh against him in determining whether he is of good character. The respondent contended that the applicant’s offences are not the result of an innocent mistake. The respondent further submitted at the hearing that the applicant was dishonest about his criminal history by attempting to “downplay the significance of those offences”.
CONSIDERATION
Section 21(2) of the Australian Citizenship Act 2007 (Cth) provides that:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
It was decided in Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94 at 103 that the standard of proof is that of on the balance of probabilities.
The Australian Citizenship Act does not define the expression “good character”. The expression was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 when reviewing a decision made under the former s 180A of the Migration Act. Deputy President McMahon stated (at 154-155):
“Good character” cannot have the meaning commonly attributed to it in criminal
trials. In that context, it usually means absence of convictions or, at most, absence
of adverse police notice. The distinction drawn in the two subparagraphs between
criminal and general conduct supports the view that here, good character does not
have the narrow criminal law meaning. There are many cases dealing with
prohibited references to bad character and the effect on trials when evidence of
that nature is allowed before a jury. In the present context, it is more likely that
good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as “1. the aggregate of qualities
that distinguishes one person or thing from others; 2. moral constitution, as of a
person or people; 3. good moral constitution or status; 4. reputation; 5. good
repute; 6. an account of the qualities or peculiarities of a person or thing.” In
assisting the Minister to determine whether a person has a good aggregate of
qualities, as distinct from a bad one, regard should be had to the structure and
purpose of the legislation.
The learned Deputy President had regard to the emphasis within the Migration Act to the giving of false information and provided that (at 155-156):
These are overall requirements important in the administration of immigration
procedures. The observance of truth in dealing with officials in migration matters
(particularly where the truth is known only to the person making the statement) is
of fundamental importance to the control mechanism which this country exercises
in visa applications when dealing with the many reasons for coming to Australia.
To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the
administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya is
not a person of good repute or good character. Australia can have no confidence
that he would not again transgress in matters where truth and good faith could be
deceptively withheld.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Lee J of the Full Court of the Federal Court remarked (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 their ordinary
sense, namely, a reference to the enduring moral qualities of a person, and not the
good standing, fame or repute of that person in the community. The former is an
objective assessment apt to be proved as a fact while the latter is a review of
subjective public opinion … A person who has been convicted of a serious crime
and thereafter held in contempt in the community, nonetheless may show that he
or she has reformed and is of good character … Conversely, a person of good
repute may be shown by objective assessment to be a person of bad character…
Davies J further remarked (at 427-428):
The drawing of a conclusion by a decision-maker as to whether he or she is
satisfied that an applicant for a visa is of “good character” requires the exercise of
a value judgment. There are no precise parameters which distinguish “good
character” from “bad character”. Although, in general, “good character” can be
readily recognised, in a particular case views may differ. It is for the
administrative decision-maker, in whom Parliament has reposed the function of
making that assessment, to arrive at a decision…
I am required to have regard to the evidence before the Tribunal to make a “value judgment” of whether the applicant is of good character at the time of the decision of the delegate.
The applicant lodged three statutory declarations in evidence supporting his application for citizenship. The first declarant, Darren Rosetta (“first declarant”), provided that he had known the applicant since May 2014. They declared as follows:[10]
I had no knowledge of Mr Kashkooli’s two recorded minor offences, but beyond these two incidents I see no reason to believe that he is to be considered a risk to our nation.
I have no difficulty in endorsing Mr Kashkooli’s application to the Dept [sic] of Immigration...
[10] Exhibit A: T Documents. T13.
The second declarant, Vimal Deep Saimi (“second declarant”), provided that he had known the applicant for one year. They declared as follows:[11]
He’s a nice guy with [a] jolly nature.
[11] Exhibit A: T Documents. T14.
The third declarant, Behrani Behrani (“third declarant”), provided that they had known the applicant for three years. They declared as follows:[12]
I have no difficulty endorsing Mr Kashkooli’s application to department of immigration…
[12] Exhibit B: Statutory Declaration.
These excerpts are the most pertinent passages from the statutory declarations relating to the character of the applicant. None of the declarations made express mention of whether the applicant was of good character.
The statutory declaration of the first declarant indicates that he only became aware of the offences on the date of executing the statutory declaration. The second and third declarants do not make reference to the offences. Therefore, these depositions do not carry significant weight.
The first and second declarants declared that they had known the applicant for approximately one year. This would limit their ability to give a comprehensive determination of the applicant’s character.
In 2014 the applicant was found guilty of two offences which have been outlined above. While the tenor of the submission of the applicant was that both of these offences were minor in nature, all offences are relevant to the determination of whether an applicant for Australian citizenship is of good character.
Subsequently to these findings of guilt the applicant lodged an application for Australian Citizenship. As stated above, question 31 of the application form required the applicant to indicate whether he had ever been found guilty of any offences in or outside of Australia. The applicant answered that a finding of guilt had not been made against him.
At the hearing of his application the applicant asserted that he did not understand the questions on the application. This is despite the fact that he has had English language classes for two years and has undertaken a security course in Australia. I do not accept the explanation of the applicant that he was unable to comprehend the questions on the application.
The application itself was dated 12 May 2014. This date is prior to 12 August 2014 when the applicant was found guilty of the offences. The applicant lodged the form on 28 November 2014 and did not disclose his offences on that occasion. He had the opportunity to correct the application prior to lodging the form.
I have had regard to the Australian Citizenship Instructions.[13] These instructions provide guidance and are not binding upon this Tribunal. There was no contention that the application of the instructions would produce any injustice to the applicant. Paragraph 10.3.4. of the Instructions provides as follows:
[13] Exhibit A: T Documents. T16: Australian Citizenship Instructions (1 July 2014).
An applicant of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
oinvolvement in bogus marriage
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship…
I regard the lodgement of the application at a time after the applicant had been found guilty of two offences as a material deception and an attempt to conceal findings of guilt from the Minister.
After my review of the offences I conclude that the applicant was not of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) at the time of the decision of the delegate. I respectfully agree with the conclusion of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 that the expression “good character” has a broad meaning in considering citizenship legislation. To be of good character the applicant would respect and abide by the laws of Australia. I regard the offences of unauthorised dealing with shop goods and contravening a lawful direction of a police officer to indicate that the applicant was not of good character when the delegate considered his application for citizenship. I am mindful that these offences are recent. I also find that the applicant had attempted to conceal the offences from the Minister
I affirm the decision under review.
DECISION
For the reasons I have given, I affirm the decision of the Minister dated 10 June 2015.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ..................[Sgd]........................................
Associate
Dated 26 February 2016
Date of hearing 11 January 2016 Advocate for the Applicants Mr Armin Kashkooli
Solicitors for the Respondent Mr Ben Dube, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Reliance
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Natural Justice
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