Kaur and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 228

DECISION AND REASONS FOR DECISION [2002] AATA 228

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/54

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SURJIT KAUR
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date5 April 2002
PlaceAdelaide

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
IMMIGRATION & CITIZENSHIP - refusal of Australian citizenship on character grounds – applicant convicted of Social Security offences – behaviour since the offending – applicant did not disclose convictions on citizenship application form or during subsequent citizenship interview.
Garcia v National Australia Bank Limited [1998] HCA 48
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Australian Citizenship Act 1948 ss.13, 52A.

REASONS FOR DECISION

5 April 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mrs Surjit Kaur (the applicant) for review of a decision of a delegate of the respondent dated 22 January 2001 (T2/9-10) refusing the applicant's application for citizenship on the grounds that the applicant was not of good character.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T11), together with 9 exhibits, 4 lodged by the applicant (Exhibits A1-A4) and 5 lodged by the respondent (Exhibits R1-R5), including a set of supplementary documents (ST1-ST3)(Exhibit R2). In addition, the Tribunal heard evidence from the applicant and her husband, Mr Manjit Singh, and the respondent called Mr Tony Victor, Postal Manager at Waikerie, South Australia to give evidence by telephone. Mr G. Patel represented the applicant and Ms E. Reed represented the respondent, both of counsel. At the hearing the applicant and her husband were assisted in the giving of their evidence by Ms Sharda Rewal, a Punjabi interpreter from the Interpreting and Translating Centre.
history of the application
The applicant was born in India on 19 July 1954 and arrived in Australia on 25 May 1996 as a permanent resident.
On 29 April 1999, the applicant signed a form entitled "Application for grant of Australian citizenship – Form B 124" and the form was received by the Department of Immigration and Multicultural Affairs on 31 May 1999 (T4/12-17). The applicant applied for Australian citizenship on the grounds of being the spouse of an Australian citizen (T4/13).
Question 37 of the above form is entitled "Character" and provides (inter alia) as follows:
"37 Please answer the following questions about yourself and any children included in this application
(a)Have you ever been convicted of, or found guilty of, any offences? (Include all traffic offences which went to court)
(b)Have you ever been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings?
(c)Are you presently under a probation order, good behaviour bond, on parole, released on licence or subject to periodic detention?
(d)Are you aware of any proceedings pending against you for an offence, including proceedings by way of appeal or review?
…"
The form signed by the applicant on 29 April 1999 indicated "No" to each of the above questions found in question 37 of Form B124.
On 20 July 1999 the applicant attended an interview at the Waikerie Australia Post Office with the Postal Manager, Mr Tony Victor. Mr Victor completed a form entitled "Australian Citizenship Interview by Australia Post – Form 126P" at the time of the interview (T6/21-22).
Question 6 of the above form is entitled "Evidence of Criminal History" and provides (inter alia) as follows (T6/21):
"…
? Advise the applicant

if they have been found guilty of any offence in any court no matter how long ago, they must complete question 38
a police check will be made with all Australian police jurisdictions
if they make a false statement or conceal a material circumstance, they may be prosecuted under s.50 of the Australian Citizenship Act
this may lead to loss of Australian citizenship
…"
The Postal Manager had placed a tick beside each of these points.

By letter dated 26 July 2000 (T9/38-39) the South Australia Police advised the Department of Immigration and Multicultural Affairs of the following details:
"Surjit KAUR, born 19/7/54
COURT         DATE            OFFENCE  RESULT
Adelaide MC   13/5/99          Obtain instalment of              )BOND $500 to be of
payment not payable            )good behaviour for 2
(8)  )years 80 hours
False statement in                )community service within
claim for social security        )12 months"
On 22 January 2001 a delegate of the respondent found that the applicant was not of good character and refused the applicant's citizenship application (T2/9-10). The applicant was advised of this decision by letter dated 22 January 2001 (T1/5). In his reasons for decision, the delegate stated (inter alia) (T2/10):
"…
ASSESSMENT
…
Under current policy (which came into effect on 23 March 1998) the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character if there is evidence that the applicant has, at any time, been sentenced to a term of imprisonment of 12 months or more.
Mrs Kaur is recorded in the indices of the South Australian Police
Nature of any offence(s).
On 13 May 1999 Mrs Kaur was convicted in South Australia of Obtaining instalment of payment not payable (8) plus false statement in claim for social security and received a bond of $500 to be of good behaviour for 2 years and 80 hours community service within 12 months.
Of prime concern is the nature of the offence (false statement) and the fact that Mrs Kaur did not declare any convictions at Question 37 (Character) on her application for grant of Australian citizenship.
DECISION
On balance I find that the applicant is not of good character and therefore her application for Citizenship is refused.
…"
On 7 February 2001, the applicant lodged an application for review with this Tribunal for review of the decision of the delegate (T1/3-4).
circumstances of offending
On 25 June 1998 an employee of Centrelink visited the applicant's home in relation to information received that the applicant had been receiving a sole parent pension whilst working for Kirriemuir Pty Ltd as an orchard hand. During a brief interview with the employee of Centrelink the applicant advised that she had recently started work for "the McPherson's" but that the work was irregular.
The employer, Mr Noel McPherson, advised the Centrelink officer investigating by telephone on 26 June 1998 that the applicant had attended his workplace and requested that he change her name, date of birth and tax file number in his records. Mr McPherson also advised the Centrelink investigator that both the applicant and her ex-spouse had worked for him.
On 30 June 1998 a Centrelink officer attended the applicant's home and had a lengthy discussion with her regarding her employment. During this discussion the applicant denied working for Mr McPherson previously, and also denied changing her name and tax file number for employment purposes.
The applicant pleaded guilty on 13 May 1999 to 9 counts on the complaint, namely obtain benefit not payable (x8) pursuant to section 147(b) of the Social Security Act 1991 and make false statement (x1) pursuant to section 1344(1)(a) of the Social Security Act 1991. She received a bond of $500 to be of good behaviour for two years and she was also ordered to make reparation to Centrelink of a total of $2,839.20 and complete 80 hours of community service work within 12 months.
legislation
Section 13 of the Australian Citizenship Act 1948 (the Act) sets out the circumstances in which the Minister may grant a certificate of Australian citizenship to a person. Section 13(1) provides as follows:
"Grant of Australian citizenship
13.      (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.
…"
The Tribunal's power to review the decision of the delegate of the respondent is found in section 52A of the Act.
The issue in this case is whether or not the applicant is of good character in accordance with section 13(1)(f) of the Act.
evidence of the applicant
The applicant was born on 19 July 1954 in the Punjab State of India. She studied in Punjab up to standard six primary education but did not study any English there. After completing her education, she took on housework duties and was married to Mr Manjit Singh in 1981. The applicant has two sons and a daughter, one of which, Sarabjit, had contracted polio in 1986. The applicant testified that she arrived in Australia in 1996. She told the Tribunal that she is currently a housewife and does some gardening. She has permanent residence in Australia.
The applicant told the Tribunal that upon her arrival in Australia in June 1996, she stayed in Melbourne for one month with her husband's family before moving to Waikerie to live with her husband. At first her relationship with her husband was good. However, there was some tension after a year and they separated. The applicant testified that her husband used to drink and she did not like it. The applicant told the Tribunal that she reconciled with her husband in September 1998 and now things are better.
The applicant told the Tribunal that whilst staying in Melbourne with her mother-in-law upon her arrival in Australia, she had to take her son Sarabjit to the Royal Children's Hospital because of his polio. The doctors put Sarabjit on a waiting list before scheduling him for an operation on 20 August 1997. The applicant referred to a letter from the Royal Children's Hospital dated 30 July 1997 which set out the details of the operation (Exhibit A3). The applicant testified that at the time of receiving this letter, she was living on her own and was receiving money from Centrelink and her husband was not paying her anything. The applicant testified that in order to finance her trip with her son to Melbourne for the operation, she used some money from Centrelink and she also managed to do some work fruit picking for Mr Noel McPherson. The applicant testified that she did not tell Centrelink that she was working for Mr McPherson because she and her family needed the money.
The applicant testified that the operation took place in Melbourne on 20 August 1997 and she stayed in Melbourne for eight to ten days in a hotel. She stated that she did not stay again with her mother-in-law in Melbourne as there was not sufficient room for her to stay there at that time. After her son's operation the applicant came back to Waikerie but subsequently had to return to Melbourne about eight to ten times for the treatment of her son. The applicant testified that the hospital told her that she had to return to the hospital within six months and an appointment would be mailed to her. The applicant gave evidence that she then had to return to Melbourne in about August 1998 for a second operation on her son. The applicant testified that she again started work as before at this time as she needed the money. Upon her return to Waikerie, she did not work again.
The applicant initially told the Tribunal that her husband did not go with her to Melbourne for the operation on 20 August 1997 but then when asked if he did not go with her why did he sign the consent form for the operation, the applicant testified that she did not remember all the details. Upon further cross-examination as to whether the applicant's husband attended at the hospital for the operation, the applicant stated: "Well, probably he did go because it was his child, but I don't remember properly." (Transcript, page 27) When asked again she stated: "I think he did go for the operation, because I – I think I requested him to come along." (Transcript, page 28). The applicant stated during cross-examination that her husband did not go to Melbourne every time but sometimes he went.
When it was put to the applicant during cross-examination that her son went to the Royal Children's Hospital for three operations and that her husband went on every occasion, the applicant agreed that he did. The applicant stated that when she went with her son to Melbourne for the first operation in August 1997, she did not stay with her husband but rather he stayed with his friends and she stayed in a hotel. The applicant stated that she was not sure where he stayed but it was not in the same hotel as her.
The applicant testified during cross-examination that she did not give the hospital the contact details of the hotel where she was staying because she did not know English. She told the hospital that she would come and visit him instead. The applicant testified that her son was only in hospital for two days but she was told by the hospital before the operation that she would have to stay in Melbourne for a week in case there were any complications following the operation. The applicant stated that she made arrangements to stay for eight to ten days because of concern for her child's health. The applicant agreed that she could have saved the expenses but she was frightened that there would be some complications. The applicant agreed that arrangements were made by the hospital for her son to see a local doctor in Waikerie two weeks after his discharge from hospital.
The applicant agreed during cross-examination that she told the hospital that she would be returning to South Australia in a few days after the operation and the hospital had no difficulties with that. The applicant stated that before she left Melbourne, she took her son for a check-up and after that she told them that she was going back to South Australia. When the applicant was shown an inpatient progress report dated 21 August 1997 from the Royal Children's Hospital (Exhibit R2, page 91) where it was stated: "family from Sth Aust and will be returning there in a few days", the applicant stated that she did not remember the dates and was "not educated enough to remember all of these things" (Transcript, page 31).
When the applicant was referred to a form entitled "Nursing History/Care Plan" dated 20 August 1997 (Exhibit R2, page 103) and specifically where it indicated the address that the Royal Children's Hospital had to contact the parents, the applicant agreed that it was the address and telephone number of her mother-in-law. The applicant explained that her mother-in-law and sister-in-law could speak much better English than her. The applicant testified that she managed to stay in a hotel because her son knew a little bit of English. The applicant did not remember the name of the hotel nor did she have any receipts from the hotel but she recalled that it was somewhere on Sydney Road, towards Thomastown.
The applicant testified that she travelled to and from the hospital with whoever was coming to visit her son – she would ask them for a ride. Sometimes it would be her husband, sometimes someone from his family and sometimes they would tell her where she could catch a bus.
The applicant testified that she got to Melbourne from Waikerie by train but might have asked for help from her husband and gone with him in the car sometimes. The applicant gave evidence that when she took the train, she would first get to Adelaide by bus and then catch the train from Adelaide to Melbourne. The applicant explained that because she was not educated enough, she always had to ask for help from her husband every time there was an operation but her husband did not help her at all with the financial aspects of the trip. The applicant stated that she might have gone with her husband in the car in 1997 because of the operation. The applicant did not agree that it was always the case that her husband gave her a ride, even in Melbourne from hospital to hotel and from hotel to hospital – there were some other people that she would ask for a ride.
The applicant told the Tribunal that she was contacted by Centrelink sometime in early 1999 and was subsequently interviewed by a Centrelink officer in respect of working while still receiving a Centrelink benefit. The applicant said that she admitted that she had worked while receiving the benefit and she was subsequently taken to Court, found guilty and put on a $500 probation bond to be of good behaviour for two years and she was required to do 80 hours of community work. The applicant said that she was also required to refund the amount that she received in benefit. The applicant testified that she had complied with the community service order and had refunded the money to Centrelink.
In relation to the applicant's form entitled "Application for grant of Australian citizenship" (T4/12-17), the applicant agreed that she had signed the form on 29 April 1999 but her husband prepared the form for her. The applicant explained that she could speak only broken English, which she learned in the first year that she arrived in Australia and she could not read and write English. The applicant testified that her husband did not go through the application by each paragraph with her but rather she relied upon him to fill in the application form.
The applicant testified that she had to attend an interview at the Waikerie Post Office in relation to her application for Australian citizenship. The applicant stated that she attended the interview with her husband and children and met with the Postmaster who asked a few questions. The applicant stated in evidence (Transcript, page 26):
"MR PATEL: Do you remember he having – asking you questions to you?
THE INTERPRETER: Yes, he did ask a few questions and my husband interpreted to me regarding some gaol sentence, but I told him that I did not go to the gaol, or I did not convict anything, so I said: no, nothing.
MR PATEL: Right, now, go slowly. Were you asked at any time whether you have been convicted of any offence?
THE INTERPRETER: He spoke most of the time with my husband and my husband asked me if I ever went to the police station, or to the gaol. I said, "No".
MR KIOSOGLOUS: Why did you say, "No"?
THE INTERPRETER: This fine means nothing to me. Did not mean much to me. Prison – if I was prisoned I would have said: yes, I went to gaol, but I did not understand what it was. It was some mistake on my part. My husband also understood the same way.
…"

When asked by the respondent what she meant when she stated that the fines that she was given for the offences meant nothing, the applicant stated that to her going to gaol was a real form of punishment.
When asked during cross-examination whether or not it was the case that she worked together with her husband and children from early in June 1997 through to 25 July 1997 for Noel McPherson, the applicant stated that only she worked for Mr McPherson. She did not know what her husband was doing at that time and her children always went to school and never took any days off to work with her in the farm – sometimes they came along just to accompany her or help her.
The applicant testified during cross-examination that because of the children, her husband organised for her accommodation when they separated. The applicant agreed that she was renting a unit from Mr McPherson, for whom she was also working. The applicant told the Tribunal that Mr McPherson did not come to collect the rent but rather she used to go and pay the rent. The applicant stated that Mr McPherson did come to the house once or twice if there was a problem in the house and once she called him because there were too many rats and mice in the house. The applicant agreed that her husband used to come and visit his children at the unit because he thought it was his right but he never stayed and he always used to go back to his own place. The applicant agreed that maybe her husband was there when Mr McPherson was at the unit because she would sometimes tell the children to call their father because she could not speak to the person in English. The applicant agreed that during their period of separation, her husband supported her emotionally but he did not support her financially – if he had, she would not have gone to work. The applicant testified that during the period of her separation from her husband, he might have been working for Mr McPherson on his own but he did not work for her.
The applicant testified that she continued to work for Mr McPherson when she came back from Melbourne until December 1997 because she felt insecure and she did not know when the hospital would call again for her trip to Melbourne and she was unsure about the expenses.
The applicant testified that she and her son did go to the hospital in Melbourne again in 1998 for another operation, but she could not remember when in 1998 that she went there. The applicant guessed that it was around about exactly one year from the first operation, in August or September 1998. Upon further questioning, the applicant could not remember if she was referring to a first operation in 1996 and a second operation in 1997 or a first operation in 1997 and a second operation in 1998. The applicant stated that she definitely remembered visiting the hospital in Melbourne in 1998 with her son but perhaps it was only for a check-up.
The applicant told the Tribunal that her husband came to Australia in 1989 and after obtaining permanent residence in Australia in 1995, he then sponsored the applicant and her children to come to Australia in 1996. He then applied for and was granted Australian citizenship in 1997. The applicant told the Tribunal that her daughter is now 18 years old and also applied for and was granted Australian citizenship and her eldest son is now 16 and is applying but has not had it granted yet.
The applicant agreed that the signature on her Tribunal application for review of decision was hers but she did not know who filled out the form for her.
The respondent referred the applicant during cross-examination to the fact that she had signed a bail agreement on 23 March 1999 (Exhibit R2, page 9). The applicant had attended the Magistrate's Court at Berri, South Australia and there was an interpreter present, who explained the bail agreement to the applicant. The applicant testified that her husband did help to explain the bail agreement to her. The applicant agreed that it was explained to her that if she failed to appear at the Magistrate's Court when required then she could be liable to be arrested.
The applicant first agreed that she signed an application for Australian citizenship on 29 April 1999 and on the same day she appeared in the Adelaide Magistrate's Court in relation to an adjournment application for the proceedings. However, she later changed her evidence to state that she did not do these things on the same day. She then stated that she did not remember lodging her citizenship application on that day. The applicant agreed that her husband attended with her at the Magistrate's Court proceedings, both in Berri and Adelaide.
The applicant testified that when she was first approached by Centrelink officers on 25 June 1998 regarding working and obtaining Social Security benefits she did tell them that she was working for Mr McPherson. The applicant said that she had gone to work and when she returned the people from Centrelink were waiting for her and they asked her where she was and she told them through her children that she was at work and that she was working for Mr McPherson. When asked during cross-examination whether she told them that she had only recently started working for the McPhersons, the applicant stated: "I did work little bit for them and then I stopped and I started again and then they approach, it was only a little while ago while I started." (Transcript, page 48). The Centrelink officers also asked her if her husband was staying at that place and she said "No".
The applicant agreed that when she was employed by Mr McPherson, she was employed under the name "Surjit Kaur Sidhu" and she also agreed that that was not her correct name. The applicant agreed that she gave Mr McPherson a different tax file number and a different date of birth when she first started working with him.
The applicant denied that after meeting with the Centrelink officers she had a meeting with Mr McPherson and asked him through an interpreter to sign a different employment declaration which had her actual name and a different date of birth and tax file number from the one she previously gave him. However, later in her evidence when the same question was put again, the applicant replied "Yes, I could have" (Transcript, page 81). The applicant stated that she did not remember going a second time to see Mr McPherson to again ask him to change his employment declaration. The applicant stated that she wanted to change her employment declaration because she needed the money and she used to work on somebody else's name so then she thought she would work on her own name. The respondent then put to the applicant that the applicant wanted the employment declaration changed so Centrelink would not be able to prove that she had been working with Mr McPherson in 1997, to which the applicant stated (Transcript, page 82):
"Yes, I did that – yes, I did and I have been punished for it and why do you ask me time and again this same thing?"
In relation to her interview at the post office, the applicant stated that she was not educated and did not know anything and when the people in the post office asked her whether she had any convictions, she thought that they meant whether or not she was put in handcuffs and taken to gaol. The applicant stated that she did not know the meaning of the question. When asked specifically if Mr Victor had gone through the questions in question 37 of the form (including whether the applicant had been found guilty of any offences or was aware of any proceedings pending), the applicant stated that her husband explained to her that the manager in the post office was asking about if she had committed any drink driving offices or if she had been to the goal and she said "No". The applicant stated that she did not know whether her husband also asked her about going to the police station.
The applicant stated that she believed that because her case was related to Social Security rather than a drink driving offence, going to a police station or going to gaol, it was something different altogether and was totally separate from her citizenship application. The applicant stated that everybody knew that everything you do comes on the computer so she would not have tried to hide anything but rather did not mention her offending out of ignorance. The applicant stated that at that time she was desperately in need of money and that was why she did not tell but she would not do it again and had been punished for it.
When asked by the respondent whether or not she knew she could go to gaol for the Centrelink offences, the applicant stated that she did not know that. The applicant testified that she did get legal advice regarding these offences and was represented by a lawyer at the Magistrate's Court. The applicant stated that she was not made aware by her lawyer of the possible forms of punishment for such offences and she was not aware of the risk of going to gaol. She thought that she would just have to return the money that she got from Centrelink. The applicant stated that she did not take the conviction that she had for the Centrelink offences very seriously and she thought that after all, it was money and she could return it to them. The applicant stated that she did not take it seriously that she had lied to Centrelink about her circumstances. She stated: "I thought only that if they will find it out, I will definitely return their money because I was desperate at the time, so I did." (Transcript, page 79). The applicant agreed that she returned the money because Centrelink were taking it out of their payments to her and she did not have a choice in returning the money.
The applicant stated that she was aware that the citizenship application form was in her husband's possession before her appearance in the Magistrate's Court.
When asked by the Tribunal why she wanted to apply for Australian citizenship, the applicant stated that because her children were going to apply for citizenship, she thought that she could get it at the same time and as she was lacking in English her children would help her to proceed. The applicant stated that she had all the benefits she needed even before she applied for Australian citizenship.
The applicant denied that she was aware of what was in the application for citizenship and she denied feeling that if she told the truth it would have prejudiced her application for citizenship.
mr manjit singh
Mr Singh referred to his written statement and accepted it as a true and correct statement (Exhibit A4). Mr Singh told the Tribunal that he is nearly 52 years of age and has education up to standard 8. He studied English for two years and after completing his education he joined his father on the family farm. Mr Singh told the Tribunal that he came to Australia in 1989 as a refugee, was granted refugee status and sponsored his wife and children to come to Australia in the middle of 1997.
Mr Singh agreed that he assisted his wife in completing the Australian citizenship application in 1999 and agreed that the date he signed the application form was 29 April 1999 but disagreed that this was the date that the applicant attended the Magistrate's Court in Adelaide. He did not remember the dates that he attended the Magistrate's Courts in Berri and Adelaide with his wife but when he was shown Exhibit R2 he accepted that those were the dates.
Mr Singh then agreed that he had attended with his wife when she went to the Magistrate's Court on 29 April 1999 and on the same day he completed the application for citizenship and that he helped her to complete the application form. Mr Singh testified that he did not tick question 37 and was not sure who did. He thought that maybe the Postmaster had ticked it. Mr Singh said that he did not understand that question fully and that was why he left it.
In relation to the interview at Waikerie Post Office with Mr Victor, Mr Singh agreed that Mr Victor went through every question with him. Mr Singh stated that in relation to question 37 (Transcript, page 90):
"THE WITNESS: Yes. He asked about only have you been in trouble with the police, have you been going court, have you been going prison and we say no and he ticked that one no.
MS REED: He asked you – yes. If he asked you if you had been going to court, why did you answer not when you had attended three times with your wife to the Magistrate's Court.
THE WITNESS: At that time when you have this one, he not ask about that we go crime. I don't understand that's crime. I think that's only – she have a mistaken then and then she … before the same – this one happened with me too. When I filled in my copy for citizen, I did not fill that one. I say no, no, no, no and then Immigration Department send me a letter: you charged with police for drunk and you have a fight with one guy and you go in court. Why now you tell us. Then I say them: I don't understand that one so I can send you now that paper.
MISS REED: If you already had that - - -
THE WITNESS: And I sent to them that paper, then they clear that but about this statement, nothing give me any letter for this why you have not did that one. Why you have - - -
MR KIOSOGLOUS: Did that occur before your wife's application.
THE WITNESS: Sorry?
MR KIOSOGLOUS: When did that occur.
THE WITNESS: I did that one in 1997. I got – 19 - - -
MR KIOSOGLOUS: That is your wife's application.
THE WITNESS: No. My own application.
MR KIOSOGLOUS: When did you apply for Australia citizenship.
THE WITNESS: 1997, maybe April, maybe May, I'm not sure now.
MR KIOSOGLOUS: So you are saying that in 1997 you answered no to those questions and you had drawn to your attention the fact that you had been in trouble and why you have not disclosed that. Is that correct.
THE WITNESS: That's right. And they write me letter for that.
MR KIOSOGLOUS: So that when it came to these questions being asked of your wife, you understood what it was that they were asking. Is that correct.
THE WITNESS: I understood only you go for court for police, any police trouble. I mean, it's the same like drunk drive and any fight anywhere and any go to prison. I understand only that.
…"
Mr Singh agreed that he had the interview with Mr Victor in July 1999 with his wife and children and completed the forms as much as he was able to. Mr Singh agreed that in response to a question in the form which asked if overall the form was easy to understand and complete, he ticked "easy" (T6/23).
Mr Singh stated that Mr Victor only asked him: "have you trouble with police, have you trouble with – you go in court, you go in prison and we say no" (Transcript, page 94) despite the fact that the applicant had been to court three times by that stage. Mr Singh explained that at the time he thought that she had not been given a punishment and when she went to court on the day that she was convicted he had no idea that she might have gone to gaol for her offences. Mr Singh testified that he was not told what the penalties for the offences were. He stated (Transcript, page 95-97):
"THE WITNESS: We were aware of the offence to a degree but we thought since it was first time she committed this sort of offence - - -
MR KIOSOGLOUS: So were you aware that the possible penalty included gaol.
THE WITNESS: I thought she should have been forgiven because since it was committed for the first time.
MR KIOSOGLOUS: I'm not asking him what he thought. I'm asking you that the time before you went to the Magistrate's Court and at the Magistrate's Court, were you aware that she could have been sent to gaol for these offences.
THE WITNESS: I'm not there when she go in the court. I'm outside.
MR KIOSOGLOUS: Mr Singh, you are not helping your wife's case by being evasive and answering that. You know very well what I'm implying. Now, answer the question.
THE INTERPRETER: He's asking that could you put me the same question again.
MR KIOSOGLOUS: Before your wife went to court, did she seek the advice of a lawyer.
THE WITNESS: Gaol. Yes.
MR KIOSOGLOUS: Was she at court represented by a lawyer.
THE WITNESS: Yes.
MR KIOSOGLOUS: Before going to court, did the lawyer explain to you and your wife what the possible penalties for such offence or offences include.
THE WITNESS: Yes, he told us.
MR KIOSOGLOUS: Did the lawyer tell you that for this offence, a person can go to gaol.
THE WITNESS: No.
MR KIOSOGLOUS: No. So you went to court with your wife, believing that she wouldn't go to gaol but it would be some other form of penalty.
THE WITNESS: Yes, please.
MR KIOSOGLOUS: Are you sure you weren't told that a penalty also included possibly gaol by your lawyer.
THE WITNESS: As far as I remember, I was not told.
…
MR KIOSOGLOUS: Did you go to the lawyer's office at all.
THE WITNESS: Yes, I go with her.
MR KIOSOGLOUS: Were you in his office, inside his room with your wife, when he was talking to her or to you about this case.
THE WITNESS: Yes, please.
MR KIOSOGLOUS: And I'm talking about the case before the Magistrate's Court, not this one here today. Are you telling me that the lawyer did not say to you and your wife what the penalties are for this offence and that they included gaol.
THE WITNESS: He told us about money. They have a fine some, but not about gaol.
…"
However, later in his evidence, Mr Singh stated (Transcript, page 99):
"MS REED: … Going back to the questions Senior Member Kiosoglous was asking, were you aware at the time your wife was going to the Magistrate's Court that one of the penalties was that she could go to gaol.
THE WITNESS: Yes, please.
MS REED: You were given advice to that effect by the lawyer engaged, Mr Patel.
THE WITNESS: Yes, please.
…"
Mr Singh denied deliberately and knowingly misrepresenting the situation regarding his wife's offences and conviction to the postal manager, Mr Victor, when he went to the interview. Mr Singh said that if she had been punished with gaol, he would have said yes, she had some sort of punishment but otherwise no. Mr Singh denied falsely answering the question in the belief that if the truth had been known the applicant would have been deprived of her citizenship.
Mr Singh stated (Transcript, page 102-103):
"MS REED: … The other thing I need to put to you is that you understood the questions put to you by Tony Victor as outlined in this question 37 and that you explained that to your wife. Now, I put that to you.
THE WITNESS: Yes. I helped explain to her, only that he asked you go gaol or you have any bit of trouble with the police, like that.
MS REED: Yes. I put to you that you understood that it was – it wasn't gaol, just gaol, It did include the offences your wife had been convicted of and you understood that and that your wife also understood that from you explaining it to her.
THE WITNESS: No. I say only to my wife: have you any trouble with the police or any with the – you go prison so I say: no, she never go there.
…"

mr noel mcpherson

The respondent tendered a statement of Mr Noel McPherson to the Tribunal dated 29 October 2001(Exhibit R3) and Mr McPherson was not required by the applicant's representative for cross-examination. In his statement, Mr McPherson stated that he ran a business called Kirriemuir Pty Ltd which involved running an orchard property and rental of units amongst other things. Mr McPherson stated that the applicant worked for him for the periods 26 July 1997 to 19 August 1997, 20 October 1997 to 15 December 1997, and 30 January 1998 to 30 June 1998 as a seasonal orchard hand, vine pruner, vine trainer and orange-picker. He stated that together with her husband Manjit Singh and her children, she worked on his property at various times during 1997 and 1998.
In his statement, Mr McPherson stated that on 30 May 1997, the applicant became one of his tenants and he recalled speaking to Mr Manjit Singh regarding the rental arrangements for the applicant and Mr Singh telling him that he was living in a property in a suburb of Waikerie called Golden Heights because he had split up from his wife. However, Mr McPherson said in his statement that during the time that he interacted with the applicant and her husband, he did not observe any indication that they were separated. Mr McPherson stated (Exhibit R3, page 1-3):
"…
Both Manjit Singh and Surjit Kaur worked on the property together and interacted in a very friendly way. In addition I would, on occasion, have to go and maintain the flats that Mrs Kaur lived in and collect rent from them. On occasions when I would go there, Manjit Singh's car was adjacent to the flat or on other occasions I actually observed him in Mrs Kaur's home. On one occasion I spoke to Mr Singh through the bedroom window of the flat, and on another occasion I observed Mr Singh sitting on a mattress which had been set up in the lounge-room of Mrs Kaur's unit. During the time I knew Manjit Singh and Surjit Kaur, it was clear to me that they were not a separated couple. It became obvious to me that he was living at Mrs Kaur's for part, if not all, of the time.
Although Mrs Kaur's English was not very good (I would describe it as poor), we could understand each other when communicating. She knew what she wrote on forms that she submitted to me and when she was renting from me, she understood how much money was owed and she understood the processes involved in renting and employment. I had no real difficulty in communicating to her as to what I needed her to do on the orchard, and if it was something that required a greater level of English, Mrs Kaur would bring her husband or another interpreter to explain things. However, most of the time, as stated above, I was able to communicate with her to a level where she could understand what I was talking about.
I recall that I was either contacted or approached by an officer of Centrelink in or about the middle of 1998 regarding the employment situation with Mrs Kaur. Prior to this, Mrs Kaur had approached me, along with an interpreter, with a new employment declaration from the one she previously provided to me. The first employment declaration Mrs Kaur provided to me had the name 'Surjit Kaur Sidhu' with a date of birth being 20 January 1954, and an address of PO Box 1040, Waikerie SA 5330. The second declaration which she wanted me to sign had Mrs Kaur's full name as just 'Surjit Kaur' and her date of birth as 19 January 1954. Her address was the unit that I had rented to her, i.e. 2 Burns Street, Waikerie, and PO Box 1040, Waikerie SA 5330. I refused to sign the second declaration as it appeared to me to be misrepresenting the actual situation. I recall saying to her that she was still the same person and that I was not prepared to change the form. I recall she was very upset and then came back sometime afterwards with another person, who spoke even better English, and tried to convince me to change her name again. On the second visit, she told me what the situation was with Centrelink investigating her for overpayments, and I again refused to change her employment declaration, as it did not seem to be an appropriate thing to do. She resigned soon after.
I do recall Manjit Singh and Surjit Kaur had three children – two daughters and one son. I cannot recall their names. All of the children worked for me at some stage with their parents. Some weeks I would pay the children rather than Manjit Singh or Surjit Kaur. I was not aware during my employment of Mrs Kaur, until advised, that she was in receipt of Centrelink benefits."

mr tony james victor

Mr Victor gave evidence by telephone from Waikerie, South Australia and referred to his signed statement dated 24 October 2001 (Exhibit R4). Mr Victor is the Postal Manager at the Waikerie Post Office. Mr Victor told the Tribunal that he did not specifically remember the interview that he carried out with the applicant as it occurred quite some time ago in 1999 but he did have a standard procedure which he followed with these types of citizenship interviews. Mr Victor agreed during cross-examination that he had never met the applicant and her husband before the interview and that they would have probably been in his office for 15 to 20 minutes.
Mr Victor stated that he dealt quite regularly with people from India in his post office and once or twice a week he would deal with people who do not have English as a first language or do not speak English very well in relation to passports, citizenship and mail-related matters. Mr Victor stated that he would do approximately twelve Australian citizenship applications per year.
Mr Victor gave evidence that the framework of an Australian citizenship interview was pretty straightforward using Form 126P, which was a checklist to see that the original application was filled out correctly. The form required him to check the questions and if there were any problems in the form, Mr Victor would break it down further and ask questions such as: "Have you changed your address since applying for the application, have you changed your name?"
Mr Victor testified that if the applicant presented with poor English skills, he would still establish a direct communication with her so that she could actually understand him. He emphasised that he tried to make every applicant comfortable and as he was in a position to try and help people, he would try to break it down in layperson's terms so that people could understand what he was asking.
Mr Victor stated that he established an applicant's understanding of English during an interview by ascertaining their ability to respond to the questions in basically a yes/no fashion and hold some sort of conversation. Mr Victor emphasised that it did not have to be fluent speech in English or actually being able to read and write fluently but rather looking for a basic understanding of English. Mr Victor told the Tribunal that he always attempted to deal with the applicant irrespective of whether husband or wife – he directed his questions at the applicant and if they had a communication problem, they could seek help from their partner.
Mr Victor testified that he had never had a matter where he considered that there was not that basic understanding of English in the citizenship application and therefore in this application, the applicant would have had to have some basic understanding of English during the interview.
Mr Victor agreed during cross-examination that if he came across something that the applicant was not able to understand, then he would use an interpreter - either the spouse or a qualified interpreter if necessary. Mr Victor agreed that the level of explanation he might give to the applicant and the interpreter regarding any term in the Form 126P would depend on their level of comprehension of English.
Mr Victor explained during cross-examination that question 6 of Form 126P (T6/21) requires him to advise the applicant that if they have been found guilty of any offence in any court, no matter how long ago, they must complete question 43 of their application for Australian citizenship, that a police check will be made with all Australian police jurisdictions and that if the applicant made a false statement or concealed a material circumstance, they may be prosecuted under the Act and it may lead to loss of Australian citizenship. Mr Victor stated that it was very important for him to go through those questions with the applicant and make sure that they had a thorough understanding of them. Mr Victor agreed that if the applicant did not understand a term like "conviction" he would try to explain the term by breaking it down to examples such as whether the applicant has been in trouble with the police, has been picked up for drink driving, or has been to prison.
When asked by the Tribunal during cross-examination how he could be sure that a person understood the question that was being put to them after breaking the question down, Mr Victor stated that a person had actually filled out the original application which had been sent in to the Department and therefore they had actually read the document and filled it in. The interview was then to give them a second opportunity to say that they have had trouble with the police, etc. Mr Victor stated that he did not think he could always be 100% sure that the applicant had understood the questions.
Mr Victor told the Tribunal during cross-examination that the process that he has gone through with applicants is the standard framework that has been set up by the "Department of Multicultural Affairs" to ensure that the applicant has an understanding of what they are applying for and that they have filled out the application form correctly. Mr Victor stated that in order to try to help these people further by identifying if there might be a difficulty in comprehending English, he always tried to find a way to break through in his communication with them and he hoped that they understood.
submissions of the applicant
Mr Patel submitted on behalf of the applicant that the real issue in this matter is whether or not the applicant is of good character. Mr Patel submitted that it was necessary for the Tribunal to examine the Australian Citizenship Instructions ("the Instructions") in relation to the good character requirement. Mr Patel explained that the instructions are a policy manual for immigration officers to use when they are assessing applications.
Mr Patel referred the Tribunal to paragraph 4.8.20 of Instructions, namely the nature of any offences, and submitted that one has to look at the nature of the applicant's offence and the circumstances under which the offence was committed. The fact that the learned magistrate put the applicant on bond of $500 for two years for good behaviour indicated that having regard to all the facts he did not regard the offence as warranting a serious penalty and the sentence could reflect a leniency because of the extenuating circumstances involved in the offences committed.
Mr Patel then referred the Tribunal to paragraph 4.8.22 of the Instructions and submitted that the applicant has been of good behaviour for two years and there has been no repetition of a similar kind of behaviour nor any breach of other law in that two year period, nor is there anything outstanding against her. The applicant has served her community service for 80 hours and the amount that the applicant was overpaid has been recouped by the Department. Mr Patel submitted that even if the sentence was not completed in the sense that the good behaviour bond has not yet been fully served, that does not stop the Tribunal from looking at the applicant's situation and assessing whether the applicant is of good character – the existence of a good behaviour bond is only a factor to be taken into account and there may be circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond.
Mr Patel submitted in relation to paragraph 4.8.24 of the Instructions, namely the circumstances leading to the crime being committed, that in the applicant's case, the offending commenced after the applicant received a letter stating that she was required to go to Melbourne for her son's operation. At the time, the applicant was separated from her husband who was not supporting her, and she had to raise money for the trip. Mr Patel submitted that that was taken into account by the learned magistrate and some allowance was made in the penalty.
In relation to paragraph 4.8.26 of the Instructions, namely, behaviour since the crime was committed, Mr Patel submitted that the applicant was a person who had been put on bond for two years, has behaved, and has no further offending. Mr Patel submitted that whilst it may be argued that there is subsequent offending in the sense that the answer in the application form for Australian citizenship was incorrect or false and the answer to the interviewing officer at the Post Office was also incorrect, it was important to note that such a view assumed that the application form was prepared and filed by a person who knew what was in the application. Mr Patel submitted that it was clear from the evidence of the applicant that she could not read or write English. The information in the application form was translated to her by her husband and what the post master wanted to put to her was put to her also through her husband. Mr Patel submitted that no matter what impression the Tribunal formed of the applicant's husband's knowledge or understanding, the problem arose in the way the explanation was put to the applicant. Mr Patel submitted that the explanation of the word "conviction" which was put to the applicant was: have you been in trouble with the police, have you been picked up for drink driving or have you been to prison? Mr Patel submitted that if you take each of these questions literally in the applicant's case, the answer is correctly "No". The error occurred in asking and explaining that question properly. Mr Patel submitted that it would be a different matter if the postal officer had explained that "conviction" meant any offending, whether with the police involved or in some other way the applicant was prosecuted for an offence.
Mr Patel submitted that there is a legal principle which excuses people from acts if they are not the author of those acts, for example where the person is acting due to a misinterpretation, where a person is acting under duress, where a person is acting under undue influence or is under some disability which prevents her from comprehending what she is doing. Mr Patel referred the Tribunal to the High Court decision in Garcia v National Australia Bank Limited [1998] HCA 48 as standing for the proposition that no person should be penalised for things that happened which are not their own actions. Mr Patel submitted that the applicant had no understanding of English of the level that would be necessary to understand the meaning of the word "conviction". Her husband was translating the document for her and filling it in and she trusted him as his wife. Mr Patel submitted that the evidence of Mr Singh was that he understood "conviction" to be something to do with police and this is what he told the applicant. Mr Singh did not understand that merely because Social Security took the applicant to court to recall this money that this would amount to a conviction. Mr Patel submitted that even if Mr Singh did understand what "conviction" meant, it was Mr Singh who misrepresented the meaning to the applicant. Mr Patel submitted that even if Mr Singh knew the full meaning of "conviction" and did not represent the truth to the applicant, the applicant is not to be blamed and it cannot be implied that she has a propensity to commit further offences. In this case rightly or wrongly the blame rests with the husband and that cannot impart a bad character onto the applicant. The applicant believed what she was told and acted accordingly. Once one removed the application form and interview from the equation, that leaves only the offence which she committed and she has served out her two year good behaviour bond.
Mr Patel submitted that in relation to what happened in Melbourne, it was significant to note that the respondent had put no question to Mr Singh who was with the applicant as to where the applicant stayed or other matters and the respondent is asking the Tribunal to draw an inference that the applicant is untruthful simply from the fact of giving a contact address.
Mr Patel submitted that the only thing that remains now is the offence that she committed which she admits and the only question is what is a reasonable time. Mr Patel submitted that the magistrate who passed the sentence held that two years was a reasonable period to allow her to redeem herself and rehabilitate. The two years have now passed and as there is no further offending, then the applicant is now of good character and should be welcomed into the community.
Mr Patel further submitted that although there are some intangible benefits of becoming an Australian citizen, there is no monetary benefit of becoming a citizen.
submissions of the respondent
Ms Reed made submissions on behalf of the respondent. Ms Reed submitted that this is an application for review of the decision dated 22 January 2001 to refuse to grant Australian citizenship to the applicant and the Minister takes the view that pursuant to section 13(1)(f) of the Act, she is not of good character at the present time. Ms Reed submitted that the applicant continues to be not of good character at the time of the Tribunal hearing.
Ms Reed submitted that the Instructions are to be regarded in assessing whether or not an applicant is of good character. In relation to paragraph 4.8.18 of the Instructions, which indicates that a criminal record or other information may suggest whether an applicant is of good character or not, Ms Reed submitted that the applicant has a criminal record.
In relation to paragraph 4.8.20, the nature of the offending, Ms Reed submitted that the offences in this matter are twofold: firstly, committing the offences of fraud with Social Security; and secondly, failing to disclose her convictions when interviewed and when she made her Australian citizenship application.
Ms Reed submitted that whilst it may be accepted that the magistrate's sentence of a two year good behaviour bond and 80 hours community service would have taken into account the seriousness of the offence, the Tribunal could not discount what the applicant actually did. Ms Reed submitted that the reason why it went to court was because of the deliberateness on her part in committing the acts. The actual amount of money involved was not large but it was the nature of the offences that really was quite crucial.
Ms Reed submitted that the continual misrepresentations to government departments were really crucial in this matter. In relation to paragraph 4.8.24 of the Instructions, which relates to the circumstances leading to the crime being committed, Ms Reed submitted that the applicant argued that her offences of defrauding Social Security were committed in strenuous circumstances in which her son required an operation in Melbourne due to his polio, the fact that she was separated from her husband and she was in difficult financial circumstances.
Ms Reed submitted that the applicant was attempting to mislead the Tribunal as to the circumstances of her obtaining work. Ms Reed submitted that it was clear from the applicant's evidence that she was not truly separated from her husband. Ms Reed submitted that the applicant stated that she emotionally relied upon her husband during this period of separation, and the evidence of Mr Noel McPherson was that Mr Singh was working at the same place with the applicant and Mr Singh was observed with the applicant as a couple, both outside and inside her unit.
Ms Reed submitted that it was also clear from the hospital records that the applicant's husband, Mr Singh, attended with the applicant at Melbourne in 1997. Whilst the applicant initially denied this in evidence, it was only when it was clear that she could not get around it that she accepted that Mr Singh was there. The applicant then explained that he was only there because it was his son and he did not provide her with any assistance. Ms Reed submitted that the applicant clearly relied a great deal upon her husband during this period. Ms Reed submitted that the fact that the applicant failed to disclose it initially and it was only when she had no choice that she actually admitted it again indicates that her character is such that she only admits to things when there is no other choice.
Ms Reed submitted that whilst the applicant had asserted that she had to work to obtain money for accommodation in Melbourne, the evidence indicated that the applicant has also attempted to mislead the Tribunal on this point. The medical records indicated that when she first arrived in Melbourne in 1996, she stayed at her mother-in-law's place (Exhibit R2, page 30), as evidenced in the details she gave to the Royal Children's Hospital. When she returned to Melbourne in August 1997 the contact address given again to the hospital was the mother-in-law's place (Exhibit R2, page 103). Ms Reed submitted that the applicant did not stay in a hotel as she asserted in extremely vague detail but rather she stayed at her mother-in-law's place with her husband and family.
It was further submitted that the applicant's evidence regarding the visit to Melbourne in August 1997 was not consistent with the documentary evidence. For example, the length of the stay in Melbourne – the applicant stated that she had to stay for eight to ten days in Melbourne and she had to pay for all the accommodation and other expenses. The hospital records indicated the son was only in hospital for two days and the son was then discharged into his parents' care to be taken back to South Australia.
Ms Reed submitted that despite the applicant asserting that she had to work in June 1998 to pay for an operation at the Royal Children's Hospital, there are no medical records available indicating that the applicant did attend in 1998 and the applicant accepted that it was possible the only attendances she had were in 1996, 1997 and 2000. Ms Reed submitted that the applicant did get the dates wrong and the true dates are 1996, 1997 and 2000 and her excuse for working in 1998 for Noel McPherson was not that she had to pay for another polio operation. Ms Reed submitted that the applicant was still misrepresenting the true circumstances of her offending to the Tribunal, and this was a clear indication that the applicant has the propensity to misrepresent her situation to authorities and has yet to prove she is of good character.
Ms Reed submitted that the Tribunal could not find the applicant to be a witness of credit on the key issues of the motivation for the offences of defrauding Centrelink and also of her understanding of the questions regarding her previous offences in the citizenship application. Ms Reed submitted that whilst it is accepted that the applicant ultimately pleaded guilty to the offences as charged, when she first was approached by Centrelink officers, she told them that she was working but had only started to work for Noel McPherson recently, ignoring the six months of work she had done for him in 1997. She then compounded this by trying to get her employer, Mr McPherson (as evidenced in his statement, Exhibit R3), to change her employment declaration when clearly the intent was to avoid Centrelink discovering that she was working. Ms Reed submitted that this propensity for making fine distinctions between truth and lies also became apparent in her evidence regarding her understanding of "conviction" – she stated that she knew it was drink driving and gaol and police but not other offences.
Ms Reed submitted that the applicant had stated in evidence that she did not think the offences she committed were that serious. Ms Reed submitted that misrepresenting one's situation and taking money from the Commonwealth were serious offences and in the absence of an understanding that what she had done was wrong and in not taking it seriously, the applicant was not of good character and should not be granted Australian citizenship. Ms Reed submitted that the applicant only pleaded guilty because there really was no other choice in that the employer had evidence that she had been working there.

In relation to paragraph 4.8.26 of the Instructions, concerning behaviour since the crime was committed, Ms Reed submitted that at the time the applicant was convicted, she was misrepresenting her situation to another government authority, the Department of Immigration and Multicultural Affairs in her application for Australiana citizenship. It was further submitted that in her evidence before the Tribunal, she has sought to evade questions, misrepresent the situation and has lied to the Tribunal regarding her knowledge of whether she could go to gaol for her offences and what her solicitor had told her and also regarding her understanding of what the Australian citizenship application asked of her. Ms Reed submitted that the applicant's defence in failing to disclose her offending, that she was reliant upon her husband and he did not put down the right information, was untenable and unbelievable. Ms Reed submitted that the applicant clearly had knowledge of the fact that she could have gone to gaol and that she clearly applied for citizenship at the same time that she was involved in the Magistrate's court proceedings. Ms Reed stated that it was an extraordinary proposition for a husband and wife not to have discussed the fact that she was facing criminal proceedings and at the same time her husband was completing the citizenship application form and not discussing the offending with her. Ms Reed submitted that it was inappropriate for the applicant to be hiding behind her husband when at the end of the day it was her application.
Ms Reed submitted that the applicant attended the interview with Mr Victor, the postal manager, and Mr Victor's evidence was that he deals with people from non-English speaking backgrounds all the time and he always ensured that he tried to explain things to them as clearly as possible. Mr Victor also said that he had to establish that she had a basic knowledge of English as one of the requirements of the 126P form, even though he could not independently recall the applicant. Ms Reed submitted that the Tribunal did have before it the form 126P which was Mr Victor's record of what happened at the citizenship interview. Ms Reed submitted that whilst Mr Victor stated in evidence that he could not be 100% sure he also stated that as far as he could be aware, he tried to make the applicant understand what she was applying for. Ms Reed submitted that although Mr Victor did go through the applicant's husband, it was clear from his evidence that he also would have made sure that it was clear the applicant was understanding it.
Ms Reed submitted that there just could not be a misunderstanding about the form particularly given that this came at the end of three visits to the court including less than two months before the interview an actual conviction in the Magistrate's Court.
Ms Reed submitted that the applicant has committed a similar type of offence – she failed to complete the forms correctly with Social Security and she has failed to complete the application for citizenship correctly. Ms Reed submitted that the applicant was using her non-understanding of English as an excuse when at the same time the effect of what she is doing is very serious.
Ms Reed submitted that whilst there are cultural differences here, the applicant cannot seek to hide behind her husband in such a serious issue as the grant of Australian citizenship. Ms Reed submitted that citizenship is a privilege which is not granted lightly by the Australian people. She referred the Tribunal to the case of Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President Breen stated (at paragraph 8):
"8. The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home."
Ms Reed submitted that the grant of citizenship carries with it rights and obligations such that the applicant must take responsibility for correctly completing forms with government authorities and that is what she has continually failed to do. It was submitted that the seriousness of the applicant's behaviour in the two examples before the Tribunal in relation to dealing with government authorities, was her deliberate failure to disclose information. Ms Reed submitted that in her evidence before the Tribunal, the applicant clearly attempted to hide information from the Tribunal. Therefore, her character has not changed and at the present time, citizenship should not be granted.
In relation to paragraph 4.8.27 of the Instructions (Exhibit R5, page 3) which concerns the applicant's behaviour since the commission of the crime, Ms Reed submitted that it was clear from the applicant's evidence that she has no respect for the law of this country and she does not think that her offences were that serious. Ms Reed submitted that the applicant has not led any evidence to indicate that she has performed within her community any services or has in any way changed her character. While she has repaid the money to Centrelink, this money was only repaid because it was taken out of her Centrelink benefits. Ms Reed submitted that further evidence that the applicant's character had not changed was evidenced by the way she has misrepresented the situation to the Tribunal during her evidence.
Ms Reed again referred the Tribunal to paragraph 8 of Deputy President Breen's decision in Fenn:
"…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year's time when he can demonstrate a longer period of positive contribution to the Australian community."
Ms Reed submitted that this paragraph is very applicable to the applicant's situation and at the present time she is not of good character and fails to satisfy section 13(1)(f) of the Act. It was submitted that a further period of time needs to elapse whereby she can accept the true nature of her convictions and offences and learn to fully disclose her situation to authorities in a truthful and forthright manner which at the moment she is clearly unable to do. Ms Reed submitted that therefore, the respondent's decision should be affirmed.
discussion and findings
The Tribunal would indicate at the outset that it has had regard to the whole of the evidence and the parties' submissions.
The only issue to be considered by the Tribunal is whether or not the applicant is of "good character". Sub-section 13 (1)(f) of the Act requires that an applicant for citizenship must satisfy the Minister that he or she is of "good character". Policy guidelines to assist in this assessment are contained in the Instructions, clause 4.8.15 and following (Exhibit R5).
The Instructions set out at sub-paragraph 4.8.15 that in relation to applications decided under sub-section 13(1) of the Act (as in the applicant's case), the good character requirement is a legislative requirement. Therefore, if the Tribunal finds that the applicant is not of good character, then the application for Australian citizenship cannot be approved.
The Instructions also set out at sub-paragraph 4.8.16 that the term "good character" is not defined in the Act and therefore decision makers should be guided by the ordinary use of the words in making assessments. Further, as a matter of policy, an applicant may be presumed to be of good character unless there is evidence to the contrary, such as a serious criminal record, however, general conduct and associations may also be relevant.
The relevant sub-paragraphs of the Instructions go on to state:
"…
4.8.17If there is evidence to suggest that an applicant may not be of good character, the application must address this evidence and establish whether he/she is in fact of good character. An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.
4.8.18Assessment of good character involves:

establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;
according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 4.8(a) above); and
considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.
4.8.19Under current policy (which came into effect on 23 March 1998) the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 4.8.20 – 4.8.28 below, if there is evidence that the applicant:
(a)has, at any time, been sentenced to:
·death;
·imprisonment for life;
·a term of imprisonment of 12 months or more;
·2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
…
4.8.20Nature of any offence(s). Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge if available.
…"

The Tribunal is mindful that the applicant was convicted on 13 May 1999 of eight charges of obtaining instalment of payments not payable plus one charge of making a false statement in a claim for social security and that she received a bond in the sum of $500 to be of good behaviour for two years and was to perform 80 hours of community service within 12 months. The Tribunal is mindful that the offences with which she was convicted are not as serious in themselves as, for example, crimes of violence or drug trafficking, and the fact that she was released without receiving a sentence of imprisonment indicates that the learned Magistrate considered her offences to be at the less serious end of the scale. However, as submitted by Ms Reed for the respondent, the applicant was guilty of fraudulent behaviour and this must be taken into account in assessing her character, and in particular whether or not she continued this fraudulent behaviour by misrepresenting her situation on the Australian citizenship application form and in her subsequent interview at the Post Office.
"4.8.22Consider whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond. The existence of a bond may indicate that insufficient time has elapsed since the commission of the crime to establish the applicant's good character. However, there may be circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond. (Note that periods on parole or proceedings pending must be considered under subsection 13(11).)
…"
At the current time, the applicant is no longer subject to a good behaviour bond, which expired on 13 May 2001. The applicant has also completed her 80 hours of community service and has made reparation to Centrelink in the amount of $2,839.20. Therefore the applicant no longer has any ongoing obligations in relation to the offending.
"4.8.24Circumstances leading to the crime being committed. Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.
…"
Mr Patel has made submissions in relation to the applicant's offending to the effect that the offences were committed at a time when the applicant was under great pressure both emotionally and financially due to the separation from her husband and the necessity for her to travel to Melbourne to obtain treatment for her son's polio. Whilst the Tribunal can understand the concern of a mother for the health of her child and the difficulty in trying to meet medical and travel expenses, the Tribunal found the applicant's evidence in relation to her trips to Melbourne to be quite vague and in some parts evasive. For example, she told the Tribunal firstly that her husband did not accompany her on her trip to Melbourne in 1997 for the operation, but later in her evidence when shown a medical consent form signed by her husband at the time (Exhibit R2, page 89) she stated that he did accompany her then and on some other occasions. In addition is the applicant's initial evidence that a further operation upon her son in Melbourne in 1998 was the cause of her offending at that time but there is no objective evidence before the Tribunal that any such further operation took place in 1998 and the applicant conceded later in her evidence that the visit might have just been for a check-up.
4.8.26Behaviour since the crime was committed. A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision which has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. Policy does not establish any specific time requirement for a finding of good character. However, a reasonable amount of time will need to have passed since the last crime was committed to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
…
4.8.27The applicant's behaviour since the commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors which may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.
…"
Mr Patel submitted on behalf of the applicant that since the offences for which she was convicted the applicant has committed no further crimes and has not done anything else indicating contempt, disregard or disrespect for the law.
The Tribunal notes that upon her offending being discovered by Centrelink, the applicant did not admit to the offending but went to her employer and asked him to change her employment declaration and tax file number. Despite the applicant's assertions as to why she did this, the Tribunal can only come to the conclusion that she did so to try to cover up the fact that she had worked for the MacPhersons previously.
Ms Reed submitted that the applicant's behaviour has indicated disregard for the law in her deliberate failure to disclose information, in that she did not admit to being involved in criminal proceedings on her citizenship application form nor did she admit her subsequent convictions at the citizenship interview at the post office. Ms Reed further submitted that in evidence before the Tribunal, the applicant has continued to attempt to hide information.
In relation to the citizenship application and subsequent interview, the Tribunal is mindful of the submission of Mr Patel that it really depends upon whether or not the applicant had any understanding of what information the form was asking of her. The Tribunal is satisfied upon hearing the evidence from Mr Victor, Postal Manager from Waikerie that at all times he does his best to assist people with limited knowledge of the English language to understand and complete their Australian citizenship application forms. Whilst he does not recall the applicant in particular, he has also filled out his checklist which indicates that in his opinion the applicant understood the nature and contents of the form that she had filled out. However, as he stated during his evidence, he can never be 100% sure that the person has completely understood the nature of the questions put to them. His evidence in the types of examples he gives to people to "break down" what a particular question is asking was also consistent with what the applicant and her husband told the Tribunal that he asked them, ie, drink driving, going to gaol, trouble with the police.
However, despite this finding, the Tribunal does not believe that the applicant's husband, Mr Singh, would have considered the question to be so limited, particularly in light of the fact that the Australian citizenship form was signed by the applicant on the same day as one of her Magistrates Court appearances, which Mr Singh attended with her. Further, it was Mr Singh's evidence that he had had trouble with that particular question before. In addition, whilst the applicant asserts that she relied upon her husband to interpret the form and the interview questions at the Post Office to her detriment, the Tribunal is of the opinion that the applicant cannot hide behind her husband and plead ignorance. The Tribunal believes that the applicant would have understood that the proceedings in the Magistrates Court were serious criminal proceedings, especially in light of the fact that her solicitor did advise her and her husband that she could go to gaol for her offences. Therefore, as these proceedings would have been fresh in her memory, it is unlikely that she would not have considered them to be serious enough to warrant mentioning them on the form or subsequently at interview. It is the Tribunal's opinion that the applicant did not mention the offences because she was concerned that she would not get Australian citizenship if she did mention them.
The evidence of Mr Singh as to what he told the applicant must be called into question in the light of his contradictory evidence regarding the advice given to him and the applicant by their solicitor at the time of the applicant's appearance before the Magistrate's Court regarding whether or not the applicant could go to gaol for her offences. Clearly Mr Singh did not wish to reveal to the Tribunal that he and the applicant had been warned about the serious nature of the applicant's offending at the time because it then made it more implausible that he and the applicant would not have considered the applicant's offending to be of the nature mentioned at Question 37 of the Australian citizenship application form. In addition, Mr Singh gave evidence that he had had problems with that question on the citizenship application form before and therefore the Tribunal is of the opinion that it is likely that he would evaluate the question carefully in future, rather than considering that it only had the limited application he proposed, ie, only going to gaol, going with the police or drink driving.
The Tribunal is of the opinion that the applicant's evidence before the Tribunal was at times extremely vague and evasive. Whilst there are always difficulties whenever an applicant is assisted by an interpreter, the Tribunal is satisfied that the inconsistencies and vague answers present in the applicant's evidence were not the fault of the interpreter, who at all times did her best to interpret the evidence given by the applicant. It is the opinion of the Tribunal that the applicant's character continues to be such that she will state whatever she thinks will be beneficial to her case, and will only admit certain facts if the objective evidence leaves her with no other option.
4.8.28Present reputation in the community. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight."

The term "good character" was recently discussed in this context by Deputy President Wright in his decision in Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at paragraph 13:
"'Good character' within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community. In the present context the words of Lee J in Irving v Minister for Immigration (1996) 68 FCR 422 @ 431-432 are of particular relevance. His Honour said:
'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 and 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: see Clearihan v Registrar of Motor Vehicle Dealers (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 at 416 per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.'
…
The Tribunal is in agreement with this interpretation of the term "good character" and is mindful that therefore, the fact that the Tribunal has no evidence before it as to the applicant's good reputation in the community is not fatal to her application for review. The Tribunal's role is to examine her enduring moral qualities in its assessment of her character.
After carefully examining all of the evidence before it, the submissions of counsel and the relevant Instructions, it is the Tribunal's opinion that the applicant is not currently of good character and so finds. After committing the offences for which she was convicted, she compounded this by not admitting that she was currently involved in criminal proceedings on the citizenship application form and by not admitting her subsequent conviction during the citizenship interview at the post office. Further, as stated previously in these reasons, the applicant was very evasive in her evidence before the Tribunal and would only admit to certain facts after objective evidence was produced that she could not deny. The Instructions state that the onus is on the applicant to demonstrate that there has been a change in his or her character since last offending. Based upon the above evidence, the Tribunal is not satisfied that there has been a change in the applicant's character since committing the offences.
Accordingly for the above reasons the decision of the Tribunal is that the decision under review is affirmed.

I certify that the 120 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  29-30 October 2001
Date of Decision  5 April 2002
Counsel for the Applicant        Mr G. Patel
Solicitor for the Applicant         Patel & Co.
Counsel for the Respondent    Ms E. Reed
Solicitor for the Respondent    Sparke Helmore