Kikkert and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 501
•13 July 2015
Kikkert and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 501 (13 July 2015)
Division GENERAL DIVISION File Number(s)
2014/2394
Re
Puspalatha Kikkert
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member Cunningham
Date 13 July 2015 Place
Hobart
The decision under review is affirmed.
........................................................................
Senior Member Cunningham
CATCHWORDS
Immigration and Citizenship - citizenship by conferral - cancellation of citizenship approval - measure of good character - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (The Citizenship Act)
Administrative Appeals Tribunal Act 1975
Freedom of Information Act
CASES
Zeng v Minister for Immigration and Citizenship (2011) AAT 304
Prasad and Minister for Immigration and Ethnic Affairs (1994) AATA 326
Irving v Minister for Immigration, Local Government and Ethnic Affairs (f1996) FCR 422
Milnar and Minister for Immigration and Multicultural Affairs (1997) ALD 771
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634
Shi v Migration Agents Registration Authority (2008) HCA 31
Lobo and Department of Immigration and Citizenship (25)
REASONS FOR DECISION
Senior Member Cunningham
The Applicant, Puspalatha Kikkert seeks the review of a decision of a Delegate of the Minister for Immigration and Border Protection made on 14 March 2014 to cancel the approval of her application for conferral of Australian citizenship. On 17 April 2012 Ms Kikkert was advised that her application for Australian citizenship by conferral had been approved and that in order to become an Australian citizen she would need to make a pledge of commitment at a citizenship ceremony within 12 months. Ms Kikkert’s citizenship ceremony was subsequently deferred pending an assessment of the outcome of police charges pending against her.
It is Ms Kikkert’s contention that as at the date scheduled for her citizenship ceremony, namely 15 June 2012, she had not been formally charged with any offences and there was accordingly no basis for the deferment.
The hearing of Ms Kikkert’s application for review took place over a number of days between 5 November 2014 and 28 April 2015. During this period both parties applied for additional time for the purpose of gathering further evidence and submission of further documentation following summonses that were issued by the Respondent.
Ms Kikkert appeared for herself and the Respondent was represented by David Wilson. The Respondent tendered the T documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as well as documents produced pursuant to a summons to the Australian Health Practitioner Regulation Agency (AHPRA), police and court records, university records and internet searches regarding alleged university qualifications of the Applicant. The Applicant tendered copies of documents in support of her university qualifications, various certificates, invitations to attend events, correspondence, a number of character references and internet articles.
Ms Kikkert gave oral evidence and was cross-examined by Mr Wilson. Mr Wilson called Simon Hicks, former Acting Manager of the Investigations Unit with AHPRA who was cross-examined by Ms Kikkert.
LEGISLATIVE FRAMEWORK
Citizenship can be acquired either automatically or by application. Citizenship by conferral is one of the four ways of acquiring Australian citizenship by application. The provisions relating to citizenship by conferral are contained in Part 2 D ivision 2 Subdivision B of the Australian Citizenship Act 2007 (The Citizenship Act).
Under section 20 a person becomes an Australian citizen by conferral when two elements are satisfied. Section 20 reads as follows:
“A person becomes an Australian citizen under this Subdivision if:
(a)the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b)if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.”
Subsection 21 (1) provides that an application to become an Australian citizen is to be made to the Minister. The general eligibility requirements are set out in subsection (2) subsection (h) requires that the Minister be satisfied that a person is of good character at the time of making the decision.
Subsection 24 (6) (a) provides that the Minister must not approve the person becoming an Australian citizen at a time when proceedings for an offence against an Australian law are pending.
Before a person can become an Australian citizen they are required to make a pledge of commitment (section 20 (b)). The qualification provisions relating to the making of a pledge of commitment are contained in section 26. Subsection (3) states:
“If the person is required to make a pledge of commitment and has not done so,
the Minister may determine, in writing, that the person cannot make the pledge
until the end of a specified period if the Minister is satisfied that:
(a)a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or
(b)the person has been or may be charged with an offence under an Australian law.”
Also of relevance are sub sections (4) which reads:
“The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.”
Subsection (5):
“The Minister may, by writing, revoke a determination.”
And Subsection (6):
“If a determination is in force in relation to a person, the person must not make a
pledge of commitment before the end of the period specified in the determination.
A pledge of commitment made by the person before that time is of no effect.”
Section 25 provides:
“Minister may cancel approval
(1)The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)the person has not become an Australian citizen under section 28; and
(b)either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii)not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.”
RESPONDENT’S CASE
The Applicant’s application for Australian citizenship by conferral was approved under S 24 (1) of the Citizenship Act on 17 April 2012 on the basis that she had met the eligibility requirements set out in Section 21 (2) of the Citizenship Act. By notification sent on 17 April 2012, the Applicant was notified that her application had been approved and that to become an Australian citizen she would need to make a pledge of commitment at a citizenship ceremony within 12 months.
Further to an onshore police check on 21 May 2012, the Department was informed by Tasmania Police that the Applicant had been, or may be charged, with an offence under Australian Law. On this basis the Applicant was not invited to attend a citizenship ceremony to make a pledge of commitment to Australia. On 25 May 2012 the Applicant contacted the Department and was advised that the next citizenship ceremony in Burnie was scheduled for 15 June 2012, but that she would need to wait for a formal invitation to attend the ceremony.
On 14 August 2012 the Applicant appeared in court charged with one count of dishonestly acquiring a financial advantage and one count of perverting the course of justice.
On 14 November 2012 the Applicant again contacted the Department to request further advice and stated she had not been charged with any offences. On 16 November 2012 the Department contacted the Applicant by telephone. During that conversation the Applicant advised that she had been charged with one count of dishonestly acquiring a financial advantage and had entered a plea of not guilty. The Applicant stated that the charges related to custody issues. She was advised that she would be notified of the effect the charges may have on her ceremony attendance.
A decision was made to defer the Applicant’s citizenship ceremony until 17 May 2013 pending the assessment of the outcome of the current charges before the Court. On 16 November 2012 the Department received advice that court proceedings were underway for charges of dishonestly obtaining a benefit and that in approximately one month, the Applicant would face a charge of perverting the course of justice. Further, that a file was being handed to the DPP in relation to an arson charge and early indications were that the case will proceed.
On 18 December 2012 the Applicant was advised by registered mail that the Department intended to delay the citizenship pledge in accordance with Section 26 (3) of the Citizenship Act because the Department was satisfied that the Applicant had been, or may be charged, with an offence under Australian Law. The Applicant was advised that she could not make the pledge of commitment before 17 May 2013.
On 7 August 2013 the Applicant provided a letter from the Legal Aid Commission of Tasmania stating that the complaint of dishonestly acquiring a financial advantage had been discharged on 5 August 2013.
On 11 September 2013 the Applicant was convicted in the Supreme Court of Tasmania of one count of perverting justice contrary to S 105 of the Criminal Code (Tasmania) and sentenced to a term of imprisonment of six months, wholly suspended on condition that she commit no offence punishable by imprisonment for three years. She was also ordered to perform 200 hours of community service and pay a victim of crime compensation levy. Tasmania Police advised the Department of the conviction on the same day.
On 4 November 2013 the Applicant was sent a notice of intention to consider cancellation of the approval of her citizenship application (NOICC) because it was considered the Applicant was no longer of good character. She was given 35 days to respond. On 6 December 2013 the Applicant requested an extension of time of six weeks in which to respond to the NOICC and was granted an extension of time until 15 January 2014.
On 6 January 2014 the Applicant requested a further extension of time until 7 April 2014 on the basis she had lodged a Freedom of Information (FOI) request. The FOI request was lodged on 7 January 2014. On 28 January 2014 the Applicant was informed of the outcome of her FOI application. An extension of time until 1 March 2014 was given.
On 4 March 2014 the Applicant requested a further 21 days to respond to the NOICC on the basis that she had been unwell. As four months had elapsed since the NOICC had been given and no response had been received, no extension was granted and on 14 March 2014 the Delegate proceeded to make a decision. The Delegate determined pursuant to S 25 of the Citizenship Act, to cancel the approval given under S 24 of the Citizenship Act on the basis that the Applicant no longer met the eligibility criterion in S 25 (2) (B) (iii) of the Citizenship Act because the Delegate was satisfied that the Applicant is no longer of good character.
APPLICANT’S CASE
The Applicant maintains that the evidence supports a finding that she is of good character. She relies on her character references tendered which she contends is testament to the high regard in which she is held by a number of influential members of the community. The Applicant disputes much of the evidence led by the Respondent and essentially maintains that at the time of her application for citizenship, there was no evidence that she was otherwise than of good character and further, when she was invited to attend her citizenship ceremony, there were no pending criminal charges against her.
In her Statement of Evidence the Applicant states that she was advised during a telephone conversation with an officer from the Department on 25 May 2012 that the next citizenship ceremony in Burnie was scheduled for 15 June 2012 and that she would be receiving a formal letter inviting her to attend the ceremony. The Applicant further contends that she was told by Emily Vernon from the Burnie City Council that her name was on the list to attend the ceremony for 15 June 2012. On 11 June 2012 she was advised by Margaret Hall from the Immigration Department that her citizenship ceremony was being deferred and that a letter outlining the reasons would be forwarded to her in the mail. She asked Ms Hall whether she was concerned about a newspaper article that appeared in April which featured Mr Kikkert confessing to arson and implicating the Applicant. The Applicant said that she had spoken with the prosecutor and was told that she would not be charged with arson or any other matter relating to Mr Kikkert’s confession. Ms Hall referred to the Citizenship Act stating that the ceremony could be deferred if there were court proceedings. The Applicant said that to the best of her knowledge there were no pending court proceedings against her at the time.
The Applicant states that on 12 August 2012 she was served with a summons to appear in court to enter a plea on 14 August 2012. On 14 August 2012 she appeared and entered a plea of not guilty to charges of obtaining a financial gain by deception and perverting the course of justice. On 18 December 2012 she received a letter by registered mail from the Immigration Department advising that under subsection 26 (3) of the Act, the Department intended to delay the taking of her citizenship pledge on the basis that she has or may be charged with an offence under Australian law. She was advised that she could not make a pledge of commitment before 17 May 2013.
The Applicant was convicted of one count of perverting the course of justice on 11 September 2013. On 4 November 2013 she received a letter advising of an intention to cancel her approval of citizenship application as she was no longer of good character and was given 35 days to respond. The Applicant maintains however, that prior to that she had received a letter inviting her to the Australia Day citizenship ceremony in January 2013. She had however destroyed the letter.
Following a request under the Freedom of Information Act the Applicant obtained documentation which raised the following issues. The Department was aware of pending charges on 21 May 2012 and yet the notes state that her citizenship ceremony was deferred until 17 May 2012 she was not advised until 18 December 2012 of the Department’s intention to delay her citizenship pledge.
At the time of the ceremonies scheduled for 15 June 2012 and 13 July 2012, the Applicant maintains that there were no pending court proceedings and there was therefore no basis for deferral of her citizenship ceremony. She maintains that she was not served with a summons to appear in court until 12 August 2012. On the basis that the Applicant had met all of the application requirements for Australian Citizenship, she maintains that she should have been permitted to make her pledge of commitment at the citizenship ceremony either on 15 June 2012 or 13 July 2012, as there were no court proceedings pending against her. Whilst she acknowledges that she was interviewed by a police officer on 21 May 2012, she maintains that she was not then advised that charges would be laid against her, in fact she contends that she was informed by Sergeant Penny that she would not be charged with any offence. The Applicant refers to a copy of the statement of interview tendered in evidence which does not record any advice of an intention to charge her.
GOOD CHARACTER
The term ”good character” is not defined in section 21 or elsewhere in the Citizenship Act. The term was comprehensively considered by DP Forgie in Zheng v Minister for Immigration and Citizenship (2011) AATA 304. Deputy President Forgie referred to a number of decisions that had considered the expression. She quoted Deputy President McDonald who said in Prasad and Minister for Immigration and Ethnic Affairs (1994) AATA 326 (at 7):
“… A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) FCR 422, Lee J said at page 431:
“Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in the ordinary sense, namely, a reference to the enduring moral qualities of a person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective 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.”
In the same decision Davies J said (at ps 427-428) that;
“… 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 judgement. 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…”
In Re Milnar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 Deputy President Chappell observed (at 776):
“… The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it…”
Counsel for the Respondent referred the Tribunal to the Australian Citizenship Instructions (the Instructions) which are given in support of the Citizenship Act and provide policy guidance in relation to the interpretation of the exercise of powers under the Act and the Regulations. It is submitted that decision-makers will ordinarily apply policies such as the Instructions unless their application produces an unjust decision in the circumstances of the particular case. (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.)
The Instructions provide a list of factors to which regard may be had in considering the effect of a criminal record on character and include:
·28.1 the seriousness of any offences,
·28.2 whether there are any ongoing obligations in relation to the sentence received such as a good behaviour,
·28.3 whether the offence was a one off occurrence or part of an ongoing pattern of behaviour,
·28.4 any extenuating circumstances relating to the offence,
·28.5 whether the Applicant has been rehabilitated,
·28.6 the age of the Applicant at the time the offence was committed.
Included in the Instructions list of good character characteristics is the requirement to be truthful and not practice deception or fraud in dealings with the Australian Government, or other governments and organisations, for example: providing false personal information (such as fraudulent work experience or qualifications documents) or other material deception during visa and citizenship applications; involvement in bogus marriage; concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship; involvement in Centrelink or Australian Tax Office fraud; giving false names and/or addresses to police.
CONSIDERATION
The issues for the Tribunal to determine are whether the Applicant is of good character and if not, whether the approval of her citizenship application should be cancelled.
It is the Respondent’s contention that the Tribunal should be satisfied that the Applicant is not a person of good character because of the following:
(a)she fabricated evidence of an offence against another person and used it to make a false complaint against that person. When police investigations discovered that the evidence had been fabricated, she then falsely accused her teenage son of having fabricated that evidence.
(b)she was found guilty by a jury of perverting justice contrary to S 105 of the Criminal Code (Tasmania).
(c)the offence was serious enough to warrant a sentence of six months imprisonment. It could have resulted in charges being laid against a person for an offence she had not committed. It caused distress to that person and to the Applicant’s teenage son.
(d)the Judge noted the offending had considerable ramifications, noting the effect on the Applicant’s teenage son and that it undermined the Australian system of Justice.
(e)no extenuating circumstances in relation to the offending were identified by the Judge in her comments on passing sentence.
(f)the Applicant was not a young person at the time of offending, being about 40.
(g)that the Applicant was not required to actually serve time in prison does not derogate from the seriousness of the offending which warranted the custodial sentence imposed. The sentence was suspended in large part because the Judge took into account that the Applicant was responsible for the care of two young children.
(h)the Applicant remains under an obligation to the Court until 11 September 2016.
(i)notwithstanding that the Applicant was convicted of a single offence, it should not be excused as being “out of character” because her lack of good character is further demonstrated by ongoing behaviour after the offence had been committed. In particular, her misleading or false statements: to the police when seeking to implicate her son; to the court in relation to her alleged educational scholarship and qualifications; to the Department by denying that she had been charged in the first place, then by only admitting to one charge and by implying that all charges had been dropped by providing a letter from the Legal Aid Commission of Tasmania advising that the charge of dishonestly obtaining a financial advantage had been withdrawn without indicating that she had also been charged with perverting justice which had not been withdrawn or that she had been convicted of that charge.
The Respondent contends that the Tribunal should be satisfied that it is appropriate to cancel the approval to become an Australian Citizen which was given to the Applicant under S 24 on the following grounds:
(i)the Applicant continues to be subject to an ongoing obligation to the Court in respect of her suspended sentence and will not be free of that obligation before 11 September 2016.
(ii)the Applicant’s ongoing behaviour of a dishonest or misleading nature after the offence had been committed, and the lack of any reference to remorse or rehabilitation by the Judge in her comments on passing sentence, indicates a lack of rehabilitation.
(iii)it would be premature to conclude, and there is no evidence by which the Tribunal could be satisfied, that the Applicant has demonstrated that she has been rehabilitated and has re-established her good character.
It is the Applicant’s contention that at the time of her application for citizenship there was no evidence that she was otherwise than of good character. She disputes the Respondent’s contention that she was not honest in her dealings with the Department and maintains that there were no pending criminal charges against her at the time when she was invited to attend her citizenship ceremony.
The Applicant’s focus was on the timing of the citizenship ceremony for she contended that at the time she had not been charged with any criminal offences. She maintains that there was no justification in the deferral of her citizenship ceremony scheduled for 15 June 2012.
Subsection 21 (2) (h) of the Citizenship Act requires that the Minister be satisfied that the person is of good character at the time of the Minister’s decision on the application. The Tribunal’s remit is to review the Respondent’s decision and decide what is the correct or preferable decision according to the law and on the basis of the available evidence. After referring to the Tribunal‘s consideration of the High Court’s decision in Shi v Migration Agents Registration Authority (2008) HCA 31 as discussed in Re Lobo and Department of Immigration and Citizenship (2010) AATA 596, Deputy President Forgie said in Zheng v Minister for immigration and Citizenship (2011) AATA 304 (at para 25:)
“Section 21 (2) (h) is not a provision that directs me to follow any different path. Although expressed to be assessed at the time that the Minister makes his decision, good character is clearly intended to be assessed from time to time until the application is finally determined on its merits. This is consistent with the approach taken by the authorities that preceded Shi for the decision under review can broadly be characterised as an entitlement decision. Entitlement is determined from time to time on current material as Davies J explained in Freeman. The approach is also consistent with that in Shi.”
There are a number of elements to the Respondent’s contention that the Minister could not be satisfied that the Applicant was of good character as required by the Citizenship Act and as that term is commonly understood. The Respondent maintains that the Applicant provided false information to the Department in stating that she was not aware of the impending charges at the relevant time.
The Applicant never conceded that the offences with which she was charged and subsequently convicted were sufficiently serious such as to justify a finding that she was not of good character. It was the Applicant’s contention that she had not misled the Department with respect to her knowledge of the impending charges and that there was no basis for deferring the citizenship ceremony at the time. She contends that she had two opportunities to attend citizenship ceremonies on 15 June 2012 and 13 July 2012 at which times she had not been charged with any offences.
The Applicant referred to a Statutory Declaration of Sergeant Penny made on 15 September 2012 in which Sergeant Penny stated that she had advised the Applicant that she would be charged with perverting the course of justice. The Applicant notes however that the transcript of the interview on 21 May 2012 does not record such advice.
The T documents disclose that on 14 November 2012 the Applicant stated that she had not been charged with any offences and would like to receive an update regarding her citizenship ceremony. Yet some two days later, on 16 November 2012 there is a file note stating that the Department had returned the Applicant’s phone call and that she had “claimed she had one charge of financial gain before the court and she had pleaded not guilty. She claims the alleged offences relate to custody issues…”. On that same date a further file note advises that the Bellerive CIB had confirmed that court proceedings were underway for charges of dishonestly obtaining a benefit and that in approximately one month the Applicant would face a charge of perverting the course of justice.
A file note of 28 June 2013 records that two charges had been laid, namely perverting the course of justice and dishonestly obtaining fraud and that the cases had been committed to the Supreme Court. On 8 August 2013 the Applicant advised that she had received advice from the Legal Aid Commission that the charge alleging dishonestly acquiring a financial advantage would not proceed and would be dismissed.
The Applicant’s pledge of commitment was delayed by the Minister in accordance with the provisions of subsection 26 (3) (b) on the basis that the Minister was satisfied that “the person has been or may be charged with an offence under an Australian Law.” The decision was made following advice received by the Department on 21 May 2012 that the Applicant may be charged with an offence under Australian law. Whilst the Applicant contends that she had been invited to attend a citizenship ceremony in Burnie in June 2012, the Respondent’s file notes state that she had not been scheduled to attend that ceremony. There was no evidence presented to the Tribunal to confirm the Applicant’s contention. She also maintains that she was invited to attend a ceremony on Australia Day 2013 but had destroyed the invitation. This evidence was disputed by the Respondent.
The Applicant was subsequently charged with the offence of perverting justice contrary to s 105 of the Criminal Code to which she pleaded not guilty. Following a trial she was found guilty and sentenced to serve a term of six months imprisonment albeit suspended on condition of good behaviour for a period of three years. Justice Tennent’s comments on passing sentence have been referred to above and indicate the seriousness of the offence.
Although one of the offences of which the Applicant was originally charged did not proceed, the serious offence of perverting justice did and resulted in a conviction. The Applicant was advised by letter dated 18 December 2012 of the decision to defer the taking of her pledge of commitment until 17 May 2013 on the basis that the Department was satisfied she may be charged with an offence under Australian Law. The evidence supports the making of a decision pursuant to subsection 26 (3) of the Citizenship Act.
On 4 November 2013 a decision was made pursuant to sub section 25 (2) (b) (iii) to cancel the Applicant’s approval for citizenship because it was considered that she was no longer of good character. In confirming this decision the Delegate took account of the fact that on 7 August 2013 the Applicant had advised the Department that the charge of dishonestly acquiring financial gain had been dismissed however she failed to advise that a second charge, that of which she was subsequently convicted in the Supreme Court was still pending. The Delegate considered that the Applicant had not provided an explanation for the offence nor had she shown any degree of remorse for having perverted justice. The Delegate did not consider that there were any mitigating factors and noted that the Applicant was still subject to the terms of a suspended sentence. The Delegate did not consider that at the time of her decision, the Applicant was a person of good character for the purposes of meeting the eligibility requirement for conferral of Australian citizenship.
It was the Delegate’s finding that the Applicant had mislead the Department by only declaring that she was facing one charge of dishonestly acquiring a financial advantage to which she had pleaded not guilty and omitting to advise that she had also been charged with perverting the course of justice. In her evidence to this Tribunal the Applicant has not satisfactorily explained her failure to disclose the second offence. The Applicant was instead focused on the fact that at the time when the citizenship ceremony was scheduled in June 2012, she had not been charged with any offence.
Although this may be the case, the citizenship ceremony conferral was legitimately deferred for the reasons outlined above. The issue for the Tribunal to determine in this appeal is the Applicant’s eligibility for Australian citizenship and in particular, whether the Applicant is of “good character”.
During the course of her evidence and submissions the Applicant demonstrated a total lack of understanding of the seriousness of the circumstances that gave rise to her conviction in the Supreme Court of Tasmania. She disputed many of the findings of Her Honour as recorded in Justice Tennant’s comments on passing sentence. For instance, she denied that she had ever claimed to work for Mental Health Services or that she had received a scholarship or graduated from the University of Tasmania. She maintains that she received a scholarship from the University in Singapore to attend the University of Tasmania. The Applicant maintains and that these facts had been misrepresented by her counsel. Tennant J noted that Counsel for the Crown had taken issue with the accuracy of the information provided as to the Applicant’s qualifications. Counsel had obtained information that indicated that the Applicant did not have a scholarship from the University of Tasmania and had not obtained an Arts Degree from that institution. The Applicant’s Arts Degree, Masters and PhD were all from the Buxton University which Tennant J described as “a mail-order university” and not generally recognised. Tennant J commented that “the court was clearly misled to a degree about your qualifications.” Tennant J considered that the Applicant’s entitlement to use the title “Dr” is questionable given that it arises from the Buxton University qualifications.
The question of the Applicant’s claimed qualifications was explored in detail by Counsel for the Respondent at the appeal hearing. The only evidence produced at the hearing with respect to these qualifications were photocopies of various certificates, including 3 from Buxton University. The Applicant claimed that all other documents relating to her qualifications had been stored in boxes at a friend’s house which had been infested by rats.
A summons was issued and served on the Applicant which required:
“…All documentation relating to your enrolment and study at Buxton University, including all enrolment applications and enrolment acceptances, receipts for payment of tuition fees, all course outlines and course notes provided by Buxton University, all assignments and dissertations submitted to Buxton University for assessment, marked copies of assignments, all comments by your teachers on your coursework, all comments by your supervisor on your dissertation and your published dissertation.”
It was the Applicant’s evidence that she had obtained a Bachelor of Arts, a Master’s Degree in Science and a PhD from the Buxton University.
On 3 December 2014, the first return date of the summons, the Applicant advised that she had endeavoured to obtain the documents requested but had not received a response from the Buxton University in England or the Camford Institute/International College in Singapore. She produced copies of correspondence including a registered mail receipt which she said had been forwarded to the Buxton University.
On the second return date of the summons, 5 February 2015, the Applicant informed the Tribunal that she had been informed by Australia Post that her registered mail letter of request was in transit to England. Neither of the summonses were responded to in that the Applicant was not able to produce any documentation either from the Buxton University or the Camford Institute/International College to verify her claimed qualifications. Evidence was later produced that Buxton University had ceased operation in either 2011 or 2012. Other evidence was produced by the Respondent that Buxton University was not included in a list of recognised higher learning institutions in the UK.
The Applicant claims to have written to Buxton University on 28 November 2014 stating that she had enrolled in 1993 through the Camford Institute/International College. The Respondent’s enquiries revealed that the Camford International College was formerly known as Camford Business School and was established in the year 2000. Whilst the Applicant claimed that she had obtained counselling qualifications from the Camford College, the Respondent’s enquiries revealed that the courses offered by the College were in the fields of business, finance, hospitality, entertainment and food and beverages. Despite the Applicant’s claims, there was no evidence on the Camford International College websites that it acted as an agent for Buxton University enrolments.
A Wikipedia search for Buxton University states that it did not hold a Royal Charter which is required for an institution in the United Kingdom to call itself a university as per the Further and Higher Education Act 1992 that it uses a commercial (instead of academic) Internet domain name – Buxton University.co.uk. The domain is registered to a “Camford Institute Subang Jaya” in Singapore. The Wikipedia website goes on to refer to an instance where a Texas television station employee ordered a degree from instant degrees.com website and within a few days received a Buxton University Master’s Degree by mail. A similar experience was reported by another US television station employee who ordered a PhD which he obtained just five days after paying $160 from Buxton University.
Internet searches conducted on behalf of the Respondent of courses offered on the Buxton University website produced a number of advertisements but no course information. The Applicant maintained that this was because the University had ceased operating in 2011, however this did not explain why she still wrote to the University following the issue of the Respondent’s summons for her course information.
The Applicant claims that she is entitled to use the title Professor because she had been awarded an Honorary Professorship from the Buxton University. This was in addition to the PhD in Science that she claimed she obtained in 1999 after having graduated with a BA in 1993 followed by a Master’s degree. Therefore within a period of just six years, the Applicant claims to have obtained three degrees. The Buxton University’s own website states that a Master’s degree comprises a six-year course requiring 150 standard college credits or equivalent and that a Doctorate is an eight year course requiring 180 standard college credits or equivalent. Both parties to the appeal produced evidence that the Applicant had held herself out on numerous occasions as Dr Kikkert and had a business card from the Buxton University using the title of Prof Puspa Kikkert.
An email from the Legal Office at the University of Tasmania dated 13 August 2013 stated that their records indicate that the Applicant had not graduated with a Degree or Diploma from UTAS.
Mr Wilson issued a further summons to Australian Health Practitioner Regulation Agency (AHPRA) for documents:
“All documents and records relating to Puspalatha Kikkert, date of birth 4 February 1972, including any complaints received about her and any correspondence with her.”
The Applicant objected firstly, to the issue of the summons and secondly, to the production of the summonsed documents. The Tribunal being satisfied that the documents were relevant to the issue of the Applicant’s character, dismissed the objections. The summons documents related to an investigation by AHPRA following a complaint received regarding the legitimacy of the Applicant’s claimed qualifications. Despite the fact that a number of names had been redacted from the documentation, the Applicant was able to identify some of the names by holding the documents in front of a light. She informed the Tribunal that she had contacted one of the named persons and asked whether he had made a complaint against her. The Tribunal subsequently made a confidentiality order prohibiting both parties from disclosing any identifying information in the summons documents to which the Applicant consented.
The Applicant disputed many of the contents of the documents produced under summons to AHPRA and in particular, file notes recorded by Simon Hicks following a claimed conversation with her when she attended the Agency with documents relating to her claimed qualifications following a request to do so by AHPRA. In Mr Hicks’s file note he recorded that the Applicant had stated that she had completed three years of an MBBS at Nheapatim University, South India that her documents had been destroyed in a typhoon. Further that, she did not have copies of the qualifications with her because they were not applicable to Australia. Because she did not complete her last year of MBBS, she was not qualified as a medical practitioner. It is recorded that the Applicant said she holds a Bachelor of Arts in Psychology from Singapore University and qualifications from Buxton University comprising a BA in 1994, Master Of Science (Counselling) 1995, PhD (Dr of Counselling) 1999.
There was a further file note of Simon Hicks dated 20 February 2012 relating to a telephone call to Jan Kikkert. The file note states that in 2004 his ex-wife Puspa had purchased qualifications from Buxton University in the UK over the Internet for a few hundred dollars for a Bachelor Degree, Masters and Doctorate, including all the subjects/scores – all of which were invented.
The Applicant denied having had an interview with Mr Hicks. She maintains that she visited the office and handed him her blue folder but did not sit down for an interview. She disputed having had a conversation about her visits to Singapore and also maintained that she had not said that she had completed an MBBS at a University in South India. She maintains that she has never been to India. The Applicant claimed that this information may have been obtained from her sister.
The Respondent was able to contact Mr Hicks who attended the appeal hearing to give oral evidence and was cross-examined by the Applicant. It was Mr Hick’s evidence that he commenced work as a Federal Agent in 1998 with the Australian Federal Police followed by work with the Anti-Corruption Commission Western Australia. After this he worked in his own investigations business and later for the Medical Board of Tasmania which later became APHRA and where he continued to work until February of this year. Mr Hicks maintained that his file note was a contemporaneous record of a conversation that he had with the Applicant however he was not able to specifically identify her at the hearing. The conversation related to the allegations about her qualifications and the absence of some documents in her folder. Mr Hicks said that no formal interview was conducted which would have been recorded, but instead a casual conversation which took place over some 20 minutes or so. Mr Hicks’s evidence was unshaken during cross-examination by the Applicant and given his position and professional experience, the Tribunal has no reason to doubt the evidence of this independent witness which is supported by the tendered AHPRA file notes.
FINDINGS
The Applicant maintained in her evidence to the Tribunal that she clearly recalled telling the Department on 31 July that she had not been charged with any offences. This evidence however is inconsistent with the Department’s file notes which record that it was on 14 November 2012 that the Applicant advised that she had not been charged with any offences and would like an update for any confirmation of her citizenship ceremony. This was in fact not the case because the Applicant had been served with summonses to attend court in August 2012. A copy of a summons and the record of proceedings were tendered in evidence which disclosed that on 14 August 2012 the Applicant was committed for trial in the Supreme Court on 22 October 2012 and granted bail. The Departmental file note of 31 July 2012 simply records that the Applicant attended the Hobart office enquiring as to the current situation. A further file note dated 16 August 2012, some two days after it was recorded that the Applicant had advised that she had not been charged with any offences, records that the Applicant claimed that she had one charge of financial gain before the Court and had pleaded not guilty. Further, that the alleged offences related to custody issues. This evidence was untrue and misleading.
In her application for a review of the Department’s decision by email dated 14 May 2014, the Applicant claims that that she had been honest with respect to her application for Australian citizenship and questioned the Department’s decision to defer her citizenship ceremony scheduled for 15 June 2012. The Applicant included two annexures, titled Annexure A and Annexure B containing copies of Departmental file notes that she had obtained through an FOI request. The first file note is not dated and the second file note refers to a conversation which occurred on 31 July 2012. It appears that the Applicant assumed that the notation of 31 July 2012 related to the first file note and that is why she has maintained that it was on this date she had advised the Department that she had not been charged with any offences. These file notes are reproduced in the T documents at T6 which shows that the annexures attached to the Applicant’s email were out of order and that Annexure B should have preceded Annexure A.
The documentary evidence contained in the T documents confirms the Respondent’s contentions that the Applicant clearly misled the Department by claiming that she had not been charged with any offences during her several contacts with the Department regarding her attendance at a citizenship ceremony for the purposes of making a pledge of commitment. The Tribunal accepts that it was not until 16 November 2012 that the Applicant admitted to a “charge of financial gain” to which she said she had pleaded not guilty, claiming that it related to custody issues. The file notes show that two days earlier the Applicant stated that she had not been charged with any offences. This is despite the evidence that in August 2012 she had been served with summonses to attend court.
The Tribunal found much of the Applicant’s evidence contradictory, evasive and on the whole lacking credibility. Her evidence and cross-examination of Mr Hicks was incredulous. Initially she had claimed that she had never had a conversation with him as alleged by the respondent. However when Mr Hicks was located and called to give evidence, the Applicant adjusted her account of the meeting with Mr Hicks largely “on the run”. The Tribunal totally rejects the Applicant’s suggestion that this conversation may have taken place with her sister. Where the Applicant’s evidence differs from that of Mr Hicks, the Tribunal prefers the evidence of Mr Hicks which is confirmed in his file notes.
The Tribunal accordingly accepts Mr Hicks’ evidence that the Applicant claimed in her conversation with him that she had completed three years of an MBBS degree at a university in South India and that her documents had been destroyed in a typhoon. She maintained her qualifications from Buxton University and that she completed the required study time. Despite the Applicant’s claimed attempts to obtain documentation in support of her qualifications and coursework, none was provided. The Tribunal is not persuaded that the Applicant made any serious attempts to obtain the documentation particularly in light of the fact that the Buxton University ceased operation, in whatever form that was, in either 2011 or 2012 The photocopied documents produced by the Applicant as confirmation of her qualifications from Buxton University have no semblance of legitimacy and the Tribunal does not accept them as confirmation of the Applicant’s claimed qualifications.
The Tribunal accordingly finds that the Applicant has falsely misrepresented her qualifications and misled the public, the Department and this Tribunal in holding herself out as Dr Kikkert and Prof Kikkert, on account of having been bestowed an honorary professorship from Buxton University. Further, the Tribunal places little, if any weight, on the referee’s statements tendered by the Applicant who have also presumably been misled with respect to her qualifications.
Nor was the Tribunal impressed by the Applicant’s endeavours to discover the identity of persons whose names had been redacted in the documents received pursuant to a summons issued to APHRA. With the knowledge that the names had been redacted for a purpose, the Applicant then contacted one of those persons during the course of these proceedings. In the Tribunal’s opinion such behaviour is no indication of’ good character.
The Applicant’s evidence to the Tribunal demonstrated a lack of appreciation of the seriousness of the offence of perverting justice contrary to the Criminal Code. The statements made by Justice Tennent in passing sentence clearly confirm the serious nature of the offence as does the sentence imposed. It is relevant that the Applicant is still subject to the terms of the suspended jail sentence.
In summary and for the above reasons the Tribunal accepts the Respondent’s submissions as outlined in paragraphs 38 and 39 above as to why the Tribunal should affirm the decision that the Applicant was not of good character at the time of the decision and that it was appropriate to cancel approval of her Australian citizenship. The Applicant has failed to persuade the Tribunal otherwise.
The Tribunal accordingly affirms the decision under review.
I certify that the preceding 78 (seventy eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 5 November 2014, 3 December 2014, 28 April 2015 and 29 April 2015 Applicant In person Solicitors for the Respondent Mr David Wilson, Australian Government Solicitor
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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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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