Koul and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 485

Koul and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 485 (7 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/1421
Re	Rajnesh Koul
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	7 July 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Ms G Ettinger, Senior Member

CATCHWORDS

CITIZENSHIP – Whether Applicant of good character – Applicant’s wife has returned to India – family law proceedings underway in India – proceedings in civil and criminal jurisdiction – not yet resolved – Tribunal unable to find that the Applicant is of good character – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007, s 21(1), 21(2), 21(2)(h)

CASES

Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 63
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Ms G Ettinger, Senior Member

7 July 2015

SUMMARY

1. Mr Rajnesh Koul (also written as Kaul in Indian court documents), is a citizen of India, aged 37, who came to Australia in October 2008 as the holder of a BN-136 permanent visa. Both he and his wife have a tertiary education and he has been working in IT at Macquarie University in the position of ‘Change Coordinator’ since August 2010. He and Parul Kaul were married in India in February 2008.  Mrs Kaul returned to India in 2012, when the marriage appears to have broken down. In Mr Koul’s Statutory Declaration at Exhibit A9, he states his dissatisfactions with his wife, in particular in relation to financial issues.

2. Mr Koul applies to this Tribunal seeking review of a decision made by a delegate of the Department of Immigration and Border Protection, (the Department), dated 25 February 2014, refusing him citizenship by conferral. The decision made by the Department, who is the Respondent in the proceedings before the Tribunal, was to refuse Mr Koul’s application for Australian citizenship on the basis of the application of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). In her Reasons for Decision, the delegate stated:

   Information provided by you in your Application for Australian Citizenship and your legal representative confirms that you are subject to court proceedings in India. It is the Department’s responsibility to ensure an applicant is of good character at the time of decision and because you have an outstanding court case in India, the Department is unable to determine you are of good character .

   …

   Therefore I am unable to determine you are of good character.

   In light of the above assessment I am not satisfied that you are of good character.

3. Mr Koul and his representative, Mr David Stephens, a Migration Agent, sought to explain the court case in which he is involved in India, as a civil (rather than criminal case), arising out of a matrimonial dispute, and about money. Notwithstanding documents to the contrary, Mr Koul argued vigorously that there was no criminal case pending.

4. On the basis of the legislation, the ACIs, and the evidence, I have affirmed the decision under review. My reasons follow.

   ISSUES BEFORE THE TRIBUNAL

5. The issue before the Tribunal is whether the Applicant is of good character pursuant to section 21(2)(h) of the Citizenship Act at the time of the Tribunal's decision (Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147).

   LEGISLATIVE FRAMEWORK

6. The relevant legislation in this matter is the Australian Citizenship Act 2007, in particular section 21(2)(h). The Australian Citizenship Instructions, (ACIs), are also relevant. The Tribunal must take Guidelines, such as the ACIs, into account unless there is a cogent reason not to (Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634).

   WHETHER MR KOUL IS OF GOOD CHARACTER AT THE TIME OF THE TRIBUNAL’S DECISION

7. For the sake of completeness I note that a person may, pursuant to section 21(1) of the Citizenship Act, make application to the Minister to become an Australian citizen. Section 21(2) of the Citizenship Act provides eligibility, and is qualified by the requirement for good character in section 21(2)(h).

8. The Citizenship Act does not define good character. Guidance is found in Chapter 10 of the ACIs which offers guidance on policy in relation to the interpretation of, and exercise of powers under, the Citizenship Act and Regulations in relation to good character. As already stated, the ACIs are Government policy, and should be applied unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs).

9. Good character is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge, should they be approved for citizenship. In order to decide whether a person is of good character the Tribunal must consider the nature of any offences, such as the offences claimed by authorities in India to have been committed by the Applicant, the Applicant’s general conduct, any mitigating circumstances, weigh up relevant factors, and apply community standards: clause 10.1.2 of the ACIs.

10. The ACIs cite Justice Lee in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, as to the meaning of good character. 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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

11. A non-exhaustive list of characteristics that an applicant of good character would have, are at clause 10.3.4. The ACIs describe persons of good character as persons who would, amongst other things:

    ·respect and abide by the law in Australia and other countries;

    ·be honest and financially responsible;

    ·be truthful in their dealings with the Australian Government, other governments and organisations;

    ·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct;

    ·and not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.

12. In order to decide whether Mr Koul is of good character pursuant to section 21(2)(h) of the Act, I must make the decision on the basis of all the evidence before me at the time of making that decision (Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147). I have taken into account the legislation and evidence, taken the guidance of the ACIs, and must look holistically at the Applicant’s behaviour over a lasting or enduring period of time. Mitigating factors such as the length of time between the date of a conviction and the Applicant’s application for citizenship, are relevant. The length of time required is not specified in the ACIs. However, I have noted that the amount of time considered to be lasting or enduring depends on the merits of each case, and will in most cases will go back prior to any citizenship application. The ACIs assist by indicating that an applicant’s behaviour does not need to be faultless, but that the aggregate of their qualities must be weighed against ordinary community standards of behaviour.

13. I am also mindful of the further guidance of the ACIs which has been in effect since 19 November 2013 which follows:

    Length of time since applicant was under obligation to court.

    In considering whether a person has a demonstrated pattern of good behaviour since their criminal conviction (a mitigating factor listed in chapter 10 of the ACIs), decision makers should take into account the length of time the person was subject to an obligation to a court (e.g. a good behaviour bond, sentence, disqualification of licence etc.) compared to the length of time the person was free from that obligation and has not re-offended.

    For example: if a person was subject to a 12 month behaviour bond, and the person has not reoffended for an equivalent 12 month period following the expiry of the bond, this may be a factor in favour of finding a renewed pattern of good behaviour.

14. The Applicant and his advocate insisted that the proceedings in India were essentially civil proceedings arising out of a matrimonial dispute. In his Statement of Facts and Contentions, the Applicant explains that because he is not present in India, under the Indian penal code, section 498 has given rise to Mr Koul being designated a  proclaimed offender. He submits that the proclaimed offender status emanates from a claim issued without police investigation, and that the claim under section 498 is vexatious, contradictory and is not supported by evidence.

15. In his Statement of Facts and Contentions, the Applicant states that:

    … a s 498 offence is an extraordinary anti-dowry law. The mere lodging of a complaint under s 498 leads to arrest. It is a cognizable and non-bailable offence. Cognizable is not a term used in the Australian legal system: it means that a police officer has the authority to make an arrest without a warrant and without investigation.

16. I am mindful that subsequent to the commencement of proceedings in the Tribunal, the Respondent reported that it procured evidence from the Indian authorities about the particular offence with which the Applicant is charged, and certain relevant pronouncements in Indian law relevant to the provision in question: The Respondent reported as follows with regard to the documents:

    Law Commission of India – Section 498A IPC – Report No.243 (August

    2012)

    Preeti Gupta & Anr vs State of Jharkhand – Supreme Court of India (Criminal Appellate jurisdiction) – Criminal Appeal No. 1512 of 2010 (13 August 2010)

    Arnes h Kumar vs State of Bihar & Anr – Supreme Court of India (Criminal Appellate jurisdiction) – Criminal Appeal No. 1277 of 2014 (2 July 2014)

    Non-Bail able Warrant relating to applicant (18 February 2014)

    Proclaimed Offender order relating to applicant (2 May 2014)

    Various Court documents relating to applicant's Court file (Magistrate Tyagita Singh)

17. The documents indicated that pleadings dated December 2012 had been filed in court by Mr Koul’s ex-wife seeking to restrain him and his parents from disturbing (selling) the possession (the matrimonial home), and/or creating a third party interest. Mr Koul’s evidence was that he had owned the home in his name in 2005, well before the marriage, and that he felt entitled to proceed with the sale of it contrary to a court order.

18. In Exhibit R4, a letter dated 18 June 2014 from Himanshu Anand Gupta & Naunidh S. Arora, Advocates, the section 498A matter is not mentioned. Mr Koul gave evidence that he became aware of the matter through his parents, insisted that it was in an early investigative phase, and attempted to justify his non-attendance to answer the charges in India. The abovementioned lawyers had also written a To Whomever it may Concern letter dated 17 September 2013 explaining that Mr Koul was involved in a matrimonial dispute. The section 498A proceedings were not mentioned, although they had been commenced in 2012. Mr Koul admitted at the hearing that he knew about the proceedings having been commenced.

19. Exhibit R2/116 is a document from an Indian Magistrate dated 18 February 2014, and indicating that permission for the arrest of Mr Kaul had been obtained. A further court document, being a supplementary charge sheet dated 28 August 2014 at Exhibit R2/109 indicated that Mr Kaul had already been declared a proclaimed offender in May 2014. 

20. Mr Leerdam, who represented the Respondent, also tendered a letter from the Consulate General of India dated 24 March 2015, (Exhibit R3), in regard to Mr Koul. Relevantly it stated:

    This is to bring to your kind attention that there are several police cases pending against him in India. Also, the summons are being served on him through Attorney General’s office since 2 years. His Indian passport … has been impounded.

    …

    If Mr Rajnesh Koul has produced a Police Clearance from any Indian authorities, it may be treated as cancelled.

21. Mr Koul claimed not to know that his passport had been cancelled. He said he had not been informed.

22. In that connection Mr Leerdam also pointed out that separately from the content of the section 498A proceedings, the Applicant was found on 2 May 2014, by the Magistrate, to be intentionally avoiding the process of court, hence accused Rajnesh Koul is declared proclaimed offender. Mr Koul told me that he had been excused from attending court in India because his lawyers had filed an appeal, and further, that if he attended, he would not be able to leave India for an unknown period which would impact on his career and his employment in Australia.

23. Mr Leerdam submitted that I should not accept Mr Koul’s assertions that the prosecution of offences under section 498A in India are oppressive and unfairly administered. He also submitted that the Applicant had not given well founded reasons for not returning to India to answer the charges.

    THE APPLICANT’S SUBMISSIONS

24. In summary, Mr Stephens submitted that Mr Koul was of good character, and attempted to minimise the section 498A and other matters proceeding in the Indian courts. He stated that Mr Koul could not return to India because there were severe consequences to his family, and his work. Mr Stephens submitted that if Mr Koul attended, he may not be able to leave. He emphasised that Mr Koul would be a good citizen, he had no criminal record in Australia, and his referees were reputable professional people.

    THE RESPONDENT’S SUBMISSIONS

25. In summary, Mr Leerdam referred to the legal proceedings against Mr Koul in India as discussed above, emphasising that Mr Koul knew he was involved in those, that he should have returned to face the charges, or briefed lawyers to attend on his behalf. He submitted further that Mr Koul should not have disposed of the real property given the situation.  Mr Leerdam submitted that even now at the time of the hearing, Mr Koul did not recognise that he should not have disposed of the real property, insisting he had owned it since 2005. He submitted that accordingly, the Tribunal could not be satisfied that Mr Koul was of good character pursuant to section 21(2)(h) of the Citizenship Act.

    CONCLUSIONS

26. In coming to a conclusion regarding Mr Koul’s application for citizenship, I have had to consider whether he is of good character.

27. I am mindful that good character is not defined in the legislation, but relates to the moral qualities of the person. The various indicia relating to good character from the ACIs noted above, are not exhaustive, and the particular circumstances of each case must be taken into account.

28. This has included a consideration of the charges in India, whether there was a pattern of behaviour, whether there were extenuating circumstances, the Applicant’s age, and his behaviour in Australia. I have also considered the references Mr Koul has provided.

    Seriousness of the alleged offences in India

29. Notwithstanding Mr Koul’s insistence that the charges in India were essentially civil proceedings, arising out of a matrimonial dispute, I have noted that under the Indian penal code, section 498 has given rise to the Applicant being a proclaimed offender. I have noted his argument that the proclaimed offender status emanates from a claim issued without police investigation, and that the claim under section 498 is vexatious, contradictory and is not supported by evidence.

30. I have noted that the documents indicate that pleadings dated December 2012 had been filed in court by Mr Koul’s ex-wife seeking to restrain him and his parents from disturbing (selling) the possession (the matrimonial home), and/or creating a third party interest. Mr Koul’s evidence was that he had owned the home in his name in 2005, well before the marriage, and that he felt entitled to proceed with the sale of it contrary to a court order. He has in fact done so.

31. I also noted that at Exhibit R2/116 there was a document from an Indian Magistrate dated 18 February 2014, indicating that permission for the arrest of Mr Kaul had been obtained. A further court document, being a supplementary charge sheet dated 28 August 2014 at Exhibit R2/109 indicated that Mr Kaul had already been declared a proclaimed offender in May 2014.

32. I noted further that Mr Koul has not returned to India to face charges and does not intend to do so, and that he has not briefed lawyers to appear for him.

33. There was also before me a letter from the Consulate General of India informing that Mr Koul’s passport had been cancelled.

34. Noting the above, I cannot therefore be satisfied that until the charges in India are resolved, that Mr Koul can be held to be of good character. He appears to have disposed of real property in contravention of a court order, and continues to maintain that that action is appropriate. He has neither travelled to India to face charges, nor briefed lawyers to represent him there.

    Whether the offences were ‘one-off’ or part of a pattern of behaviour

35. I am unable to say whether the alleged offences in India are one-off. I note from the documents before me that Mr Koul has not committed any crime in Australia.

    Whether there were any extenuating circumstances

36. Extenuating circumstances were argued by Mr Koul. They included his dissatisfaction with his wife because of her interest in money, and the fact he could not return to India without being detained there. I give little weight to those circumstances.

    The Applicant’s age at the time of the alleged offences in India

37. Mr Koul is 37 years old, and has been married since 2008. He has been in Australia since 2008, and has held responsible jobs.

    Referees

38. A number of persons provided references for Mr Koul and some gave oral evidence at the Tribunal.

39. Mr Craig Small, who holds the position of Operations Systems Team Leader for the Informatics Departments, provided a statement dated 7 January 2014 and gave oral evidence at the hearing. He stated that he had known the Applicant for approximately three and a half years and had almost daily dealings with him, in that the Applicant holds the position of Change Coordinator for the Informatics Department. He described the Applicant as a calm, laid back and thoughtful person who dealt with all in a courteous and professional manner. He referred to Mr Koul’s court action in India, which he described as spurious claims against his character which were sent by his ex-wife’s uncle who works as a police officer back in India.

40. Ms Sonal Razdan who did not provide a statement, gave oral evidence at the Tribunal. She told me that Mr Koul had lived with her family for a time, and that he assisted with her son. She approved of his respect for elders. She did not know details of the court action in India, but was aware, she said, that he was supposed to attend.

41. Mr Vikas Garyali provided a statement date 30 September 2014, and gave oral evidence at the hearing. He is Mr Koul’s brother’s brother-in-law, and stated that he had known the Applicant for more than a decade. He stated that he knew details of the court action in India, and praised Mr Koul as being of good character and trustworthy.

1. Mr Sudhanshu Tiwari provided a statement date stamped 6 November 2014 by the Tribunal, and gave oral evidence. He stated that he was in Mr Koul’s circle of close friends, and was dismayed to hear allegations regarding dowry, harassment and physical abuse made by Mrs Kaul. He stated: Don’t know what to say as these complaints regarding dowry and physical assault make no sense and looks a big drama to me.

2. The following provided statements but did not give oral evidence.

3. Mr Bushan Lal Garyali whose statement was dated 30 September 2014, stated that he is a retired Senior Superintendent of Police, and had worked with the police force in India for 40 years. He stated that he had known Mr Koul and his family for ten years, and that the Applicant is his son’s brother-in-law, and his father a close friend of Mr Garyali. He praised the Applicant as hardworking and loving, and referred to the proceedings in India against him as fake and with intensions (sic) to harm his reputation.

4. Ms Natasha Chaku Kaul & Mr Rohit Kaul provided a joint statement dated 2 October 2012, and mentioned a number of persons they said they valued due to their good conduct and friendship including the Applicant, whom they have known since 2005.

5. Ms Priya Mangal whose statement is date stamped 6 November 2014 at the Tribunal, stated that she has known the Applicant and his wife for some four years, and have spent time together approximately 2 – 3 times a week. She said that she found Mr Koul very polite and humble natured. She expressed shock to have heard that Mrs Kaul had returned to India, and was dismayed in regard to the allegations.

6. Mr Siddhartha Kaul provided a statement which was date stamped 6 November 2014. He stated that he had known the family of the Applicant for 7 – 8 years, and had become close social and family friends. He described the Applicant in warm terms including I have always witnessed his behaviour to be most gentlemanly and family orientated.

7. Ms Geetanjali Mehta provided a statement date stamped 6 November 2014. She said that she and her husband are Australian citizens and have been living in Melbourne for eight years. She said that she had known Mr Koul and his wife since their arrival in 2008, and had spent holidays together. She expressed surprise at the alleged actions Mr Koul is alleged of having been involved. She stated that: all this sounds very strange to us … we found Parul being pampered and very happily enjoying her stay at her sister-in-law’s place. 

8. Ms Sorabh Mangal provided a statement date stamped 6 November 2014. She described the Applicant and his wife as close friends, and said she had known them for four years. She expressed surprise at the allegations made regarding Mr Koul and described him as loving towards his wife and with all his friends.

9. Mr Kapil Razdan provided a statement date stamped 6 November 2014. He said that he had known the couple since they came from Melbourne to Sydney. He expressed surprise to hear Ms Kaul had returned to India, and stated: I perceive Rajnesh as nice gentleman with good moral and ethical values … He is trustworthy individual.

10. Ms Neha Shukla provided a statement date stamped 6 November 2014. She stated she was close friends with the couple, and often socialised and spent weekends away together. She described Mr Koul as a peaceful, friendly, patient and docile person, and stated however, that she had seen Mrs Kaul using abusive language.

11. Ms Monika Batra provided a statement dated 7 October. It is likely to have been 2014 as the statement is date stamped 6 November 2014 by the Tribunal. Ms Batra stated that she was aware of all the charges against the Applicant. She confirmed that he is of good character, and a kind, affectionate, honest and hardworking man.

12. Ms Sandra Athihe provided a statement date stamped 6 November 2014. She described Mr Koul as a family friend, said she was aware of court proceedings in a matrimonial dispute, and praised Mr Koul as having many good qualities.

13. Mr Geoff Newton provided a statement date stamped 6 November 2014. He stated that he had known the Applicant as a work colleague at Macquarie University for four years. He provided no detail about his knowledge of court proceedings in India, although he stated he had been contacted regarding Mr Koul’s alleged character. He stated that he found Mr Koul of good character and that he would make a good citizen and be an asset to Australia.

14. Mr Joseph Rizzo provided a statement date stamped 6 November 2014. He stated that he had known Mr Koul since 2010, and that he reported to Mr Rizzo in his position as Change Coordinator. Mr Rizzo stated that he was aware of matrimonial action in India, but emphasised Mr Koul was a very responsible person who had never exhibited any signs of aggressive behaviour.

15. It is only to be expected that referees chosen by a person would provide favourable references. All the referees praised Mr Koul’s character.

16. A certain number of the witnesses did not mention the court action in India in their correspondence. Therefore the statements are of limited value, and I find that those statements carry little weight. The references from family members also carry little weight. None of the referees seemed to be aware of the full extent of the legal action pending. It was clear they only had Mr Koul’s version.

17. However, in deciding this case, notwithstanding the referees who hold Mr Koul in high esteem, I must be satisfied that he is of good character within the terms of the legislation, in order to make a decision that citizenship be conferred. I cannot be so satisfied due to the outstanding court action in India as noted above.

18. Ultimately, I am not satisfied that Mr Koul can presently be held to be of good character within the terms of the legislation, and application of the ACIs. Mr Koul can reapply for citizenship, and convince the Minister that he is of good character if his situation changes.

    DECISION

19. The Tribunal affirms the decision under review.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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Associate

Dated 7 July 2015

Date of hearing	5 May 2015
Advocate for the Applicant	Mr David Stephens, Australasian Immigration Services Pty Ltd
Solicitor for the Respondent	Mr Lenny Leerdam, DLA Piper