Kumar and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 885
•19 November 2015
Kumar and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 885 (19 November 2015)
Division
GENERAL DIVISION
File Number(s)
2014/5960
Re
Rakesh Kumar
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R Deutsch, Deputy President
Date 19 November 2015 Place Sydney The decision under review to refuse Mr Kumar's application for citizenship by conferral is affirmed.
.................................[sgd].......................................
Professor R Deutsch, Deputy President
CATCHWORDS
Citizenship – conferral of Australian citizenship – whether Applicant of good character – previous offences – similar character references – Tribunal not satisfied Applicant is of good character – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 ss 21, 24, 52
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132Rana and Minister for Immigration and Border Protection [2015] AATA 227
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Professor R Deutsch, Deputy President
19 November 2015
Mr Kumar has applied to this Tribunal for the review of a decision to refuse his application for Australian citizenship by conferral. His application was refused on 12 November 2014 by a delegate of the Minister on the ground that he was not of good character.
FACTS
The facts in this case are succinctly set out in the Respondent’s statement of facts and contentions dated 19 June 2015 and can be summarised as follows:
·The Applicant was born in India in May 1985 and first arrived in Australia in June 2006 as a 21 year old student, holding a student visa subclass TU 573.
·On 2 July 2011, he was issued an infringement notice for a traffic offence and a criminal infringement notice for offensive behaviour.
·On 7 January 2012, the Applicant was involved in an affray.
·On 7 March 2012, the Applicant was fined $650 in the Downing Centre Local Court for affray.
·On 16 May 2012, the Applicant was granted a permanent visa subclass VB-866 which visa he currently holds.
·On 22 August 2014, the Applicant applied for Australian citizenship and on 12 November 2014 that application was refused by the Respondent on the basis that the Applicant was not of good character.
·On 17 November 2014, the Applicant applied to this Tribunal for a review of the Respondent’s decision of 12 November 2014.
ISSUE FOR DETERMINATION
The issue for consideration in this proceeding is whether the Tribunal can now be satisfied that the Applicant is of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 (the Citizenship Act).
LEGISLATIVE BACKGROUND AND APPLICABLE PRINCIPLES
Section 52 of the Citizenship Act permits an application to be made to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.
Sub-section 24(1A) of the Citizenship Act provides that the Minister (and therefore the Tribunal) must not grant an application for citizenship unless the person is eligible to become an Australian citizen under sub-sections 21(2), (3), (4), (5), (6), (7) or (8) of the Citizenship Act.
Paragraph 21(2)(h) of the Citizenship Act relevantly provides that a person is eligible to become an Australian citizen if the Minister "is satisfied that the person is of good character at the time of the Minister's decision on the application".
The term "good character" is not defined in the Citizenship Act. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Irving), Lee J noted at [94] that (citations omitted):
...the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion.
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, the Tribunal stated at [8] that:
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.
In Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, the Tribunal remarked at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
Chapter 10 of the Australian Citizenship Instructions (ACIs) provides guidance to decision makers on policy in relation to making decisions on good character under the Citizenship Act.
The Tribunal will generally consider and apply lawful policy unless there are cogent reasons not to do so: Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).
Paragraph 10.1.2 of the ACIs provide that:
'Good character' refers to the enduring moral qualities of the person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and other commitments made through the pledge should they be approved for citizenship...
The ACIs also provide (at paragraph 10.3.1) that the expression 'enduring moral qualities' encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring / lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
Paragraph 10.3.4 of the ACIs relevantly note than an applicant of good character would:
·respect and abide by the law in Australia and other countries
·not be violent...and not cause harm to others through their conduct...
Paragraph 10.5.2 of the ACIs provides a series of factors to take into account in assessing whether an applicant's behaviour might indicate that they are not of good character. These include factors relating to "offences" that the applicant has committed and factors relating to the "general conduct" of the applicant.
In relation to offences, the ACIs relevantly provide:
·Has the applicant committed any offences and if so, did they admit that in their citizenship application?
...
·If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
crimes of violence...
·Minor offences include:
traffic offences which have been included in a criminal record
offences which do not lead to a conviction or a sentence.
·Were there victims of the offence?...
·How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?
a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not "uphold and obey" the law if citizenship is conferred on them.
In relation to general conduct, the ACIs relevantly provide:
·How has the applicant interacted with the Australian Government...? Have they been honest...?
·Has the applicant engaged in conduct that would reasonably cause another individual to be severely apprehensive, fearful, alarmed or distressed regarding the applicant's behaviour towards that individual or their property...?
Paragraph 10.5.2 of the ACIs also lists a number of mitigating factors that decision makers should consider in determining whether the person may be of “good character notwithstanding their offences or conduct. Relevantly, those mitigating factors include:
·What is the length of time between the date of offence.. .and application for Australian citizenship, or between conviction and application?...
·Has the applicant accepted responsibility and shown remorse for their conduct?
….
·Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws? For example, have they undertaken drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other program which addresses risk factors relating to their offending? Have they moved away from bad influences, for example by disassociating themselves from a peer group?
·What was the applicant’s age at the time the offence was committed? If the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character.
·Were there any extenuating circumstances relating to the offence?...
·Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character. Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship. It is open to decision makers to contact individuals who have provided a referee report for the applicant.
In relation to considering references, paragraph 10.6.5 of the ACIs relevantly states:
Referee reports can shed light upon an applicant's character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of "good character". However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc. if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision makers should take particular care with references from victims of domestic violence. There is a risk that such statements have been coerced either directly or indirectly.
IS THE APPLICANT OF GOOD CHARACTER AT THE TIME OF THE TRIBUNAL’S DECISION?
The Applicant’s Submissions
In summary, the Applicant told the Tribunal that he acknowledges and accepts that he has behaved poorly and is remorseful for his actions. He is now a reformed man as is attested by his references. He has a strong family to which he is committed and he has steady work. For those reasons he submits that he is now of good character and should be conferred with Australian citizenship.
The Respondent’s Submissions
Due to Mr Kumar's history of offences and general conduct, the Minister contends that the Tribunal cannot be satisfied that Mr Kumar is of good character at this time for the purposes of paragraph 21(2)(h) of the Citizenship Act.
The Minister therefore contends that Mr Kumar is not eligible for citizenship pursuant to sub-section 21(2) of the Act and that the Tribunal should affirm the decision to refuse to grant Australian citizenship to Mr Kumar.
The Minister contends that the Tribunal should not be satisfied that Mr Kumar is of good character at this time having regard to his offences and infringement history. Notwithstanding any potential mitigating factors, the Minister submits that the preferable finding is that Mr Kumar is not of good character at this time.
THE OFFENCES
The affray incident (7 January 2012)
On 7 March 2012, Mr Kumar was fined $650 in the Downing Centre Local Court for affray which occurred on 7 January 2012.
While this sentence seems relatively minor, the detail from the NSW Police Report regarding this incident reveals evidence of serious and concerning behaviour from Mr Kumar. In particular, the Respondent has noted the following details from the report:
The Applicant and a companion were at a fast food restaurant in the early hours of the morning;
·the two got into an argument with three unknown females;
·the argument escalated and there was some pushing and shoving;
·in the meantime another companion of Mr Kumar's arrived at the restaurant;
·an off-duty employee at the restaurant approached Mr Kumar and his companions in an attempt to stop them from "assaulting" the females;
·the Applicant and one of his companions became more aggressive, and when two companions of the off-duty employee ran over to his aid, a brawl broke out with all of the accused pushing the three interveners and throwing numerous punches and kicks and knocking over furniture;
·the police, who were driving outside the restaurant, saw the altercation occurring;
and
·when the police entered the store, Mr Kumar fled from police and was shortly apprehended and arrested.
While it is not the Tribunal's role to "re-try" this offence, the Minister contends that the full factual circumstances and details about the behaviour of Mr Kumar underlying the incident is relevant to this matter. The Minister contends that this behaviour (i.e. violence and fleeing from police) is serious and evidences a disregard of Australian law and behaviour which does not demonstrate good character
The traffic infringement and offensive behaviour incident (1 July 2011)
On 1 July 2011, Mr Kumar was issued:
·a criminal infringement notice for "offensive behaviour" after police witnessed him urinating on a tree near a public place; and
·traffic infringement notices for leaving his vehicle unattended and stopped in a no stopping area.
While the Minister acknowledges that these incidents are relatively "minor", the Minister submits that when they are considered with Mr Kumar’s affray offence of 7 January 2012, they indicate a pattern of behaviour that evidences a disregard for Australian laws.
The nature of the incidents are also unsavoury and evidence behaviour that does not demonstrate good character.
THE REFERENCES
At the hearing in this matter the Applicant called four witnesses, two of whom appeared in person and two by phone. The two witnesses who appeared in person were Mr Amit Sharma and Mr Karmjit Singh. Mr Ranjodh Singh and Ms Jasmin Kaur Sarao made themselves available by phone. The Respondent consented to the evidence of the two witnesses being given by phone.
Mr Kumar has provided written character references to the Tribunal from:
·Ranjodh Singh (dated 9 March 2015);
·Jasmin Kaur Sarao (dated 3 March 2015);
·Amit Sharma (dated 10 March 2015); and
·Karmjit Singh (dated 10 March 2015).
These references acknowledge Mr Kumar's affray offence of 7 January 2012, and state that he is now doing well in life, that he is married with two children, works as a cab driver and is studying at TAFE where he is halfway through a 2 year diploma in building and construction.
The Minister has noted that all of these references are nearly identical and, while they acknowledge the bare facts of the affray offences, they do not appear to acknowledge the full factual circumstances of the offence (see, for example, Rana and Minister for Immigration and Border Protection [2015] AATA 227 at [27]).
In these circumstances, the Minister contends and I agree that in their current form, limited weight should be given to these references.
Mr Kumar also provided three character references in his original application for citizenship (see T8 and T11) but none of these acknowledge his affray offence and thus the Minister contends and again I agree that little, if any, weight can be given to such references.
In relation to other mitigating factors, the Minister notes: Mr Kumar has not provided evidence of extenuating circumstances surrounding the affray offence; and Mr Kumar was of a relatively mature age at the time of the offence (25 years old).
The Minister also notes that the affray offence occurred nearly 3.5 years ago. The Minister contends that the seriousness of Mr Kumar's behaviour involved in the affray offence warrants a significant passage of time to pass, and the provision of strong evidence, to demonstrate that Mr Kumar is now of good character, in order for a decision-maker to be satisfied that Mr Kumar is now of good character. For the reasons noted above, the evidence regarding rehabilitation and Mr Kumar currently being of good character is limited, and the Minister contends is not sufficient to be satisfied that Mr Kumar is currently of good character.
FACTORS OPERATING IN FAVOUR OF AND AGAINST THE APPLICANT
In my view there are a number of factors here which favour the Applicant:
·The Applicant has not sought to deny the offences in question and has admitted to them;
·The traffic infringement and offensive behaviour offences are minor when considered in the light of the whole spectrum of possible offences;
·The Police Records provided to the Tribunal from India indicate that there were no offences recorded against the Applicant’s name in India.
·The Applicant’s dealings with the Australian Government are honest and do not in any way seek to camouflage or disguise the offences committed;
·Some 3 and a half years have now passed since the last of the offences were committed;
·The Applicant has expressed remorse for his actions;
·The Applicant is married with 2 children is working and studying;
·His referees have expressed positive views of him while acknowledging the offences committed.
On the other hand there are a number of factors which are clearly against the Applicant:
·In Australia, the Applicant’s record shows offences including affray, offensive behaviour, a traffic infringement and 3 relatively minor speeding offences in December 2008, January 2009 and June 2012.
·The references were all nearly identical in wording and while they all acknowledge the bare facts that lay behind the affray offence they do not seem to acknowledge the full factual circumstances.
·The 3 references that accompanied the original application for citizenship failed to acknowledge the affray and seem to have assumed that the affray never occurred;
·The Applicant provided no evidence of any extenuating circumstances relating to the affray;
·The Applicant was of relatively mature age being 25 when the affray took place – it cannot thus be dismissed as the actions of an immature minor;
·The affray was a case of serious violent behaviour which would have caused considerable distress to the three women involved and those in the immediate vicinity;
·The Applicant fled the scene in the hope of evading detection.
CONCLUSION
Having regard to the above submissions, the Tribunal is not at this time satisfied that the Applicant is now of good character and therefore is not eligible to become an Australian citizen pursuant to paragraph 21(2)(h) of the Citizenship Act.
The Tribunal notes that the Applicant currently holds a permanent visa and may re-apply for citizenship in the future when sufficient time has passed for him to demonstrate that he is of good character.
DECISION
Accordingly, the decision under review to refuse Mr Kumar's application for citizenship by conferral is affirmed.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President ................................[sgd]........................................
Associate
Dated 19 November 2015
Date(s) of hearing 20 July 2015 Date final submissions received 21 August 2015 Applicant In person Solicitors for the Respondent Mr K Powell, Clayton Utz
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