MBTZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2577
•29 July 2021
MBTZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2577 (29 July 2021)
Division:General Division
File Number(s): 2020/4777
Re:MBTZ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:29 July 2021
Place:Brisbane
The decision under review is affirmed.
Senior Member Theodore Tavoularis
Catchwords
CITIZENSHIP – cancellation of approval for Australian citizenship by conferral – character test – whether Tribunal is satisfied applicant was not of good character at time of cancellation – applicant charged with foreign domestic crimes – applicant under investigation for Australian domestic crimes – failure to disclose change in circumstances – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326Zhang and Minister for Immigration and Border Protection [2015] AATA 176
Secondary Materials
Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)
Department of Home Affairs, Australian Citizenship Policy (27 November 2020)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
29 July 2021
MBTZ (“Applicant”) applied for citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (“Act”). On 30 March 2019, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Respondent” or “Minister”) approved the Applicant to become an Australian citizen under s 24(1) of the Act.[1] On 15 July 2020, the Minister, via its delegate, cancelled the approval of the Applicant’s application for conferral of Australian citizenship. This cancellation occurred pursuant to s 25 of the Australian Citizenship Act 2007 (Cth) (“Act”).
[1]T, 57.
On 5 August 2020, the Applicant sought review in this Tribunal of the abovementioned decision of the Minister’s delegate. The hearing of this application is procedurally facilitated by s 52(1)(c) of the Act.
The competitive tension between the parties derives from the determinative issue now before the Tribunal: whether this Tribunal finds the Applicant to be not of good character at the time the Minister or their delegate decided to exercise the discretion pursuant to s 25 of the Act. The Minister approaches the above determinative issue on the basis that the Applicant is not of good character pursuant to s 25(2)(b)(iii).
As best as I understood the contentions put on behalf of the Applicant, the threshold mandated by s 25 is not reached because the Applicant is entitled to a “presumption of innocence”[2] in terms of any fact, matter, or thing that could possibly engage the operational ambit of s 25(2)(b)(iii) or otherwise militate in favour of a finding that the Applicant is not of good character.
[2]See A1, 5[12]; Transcript, 12, lines 31–44.
This proceeding came before me on 16 June 2021. I have summarised the relevant material tendered by the parties into an Exhibit List, a true and correct copy of which is attached to these reasons and marked Annexure A. At the hearing before me, the Applicant gave evidence but did not call other witnesses. The Respondent did not call witnesses.
BACKGROUND AND KEY DATES
The material discloses the following timeline:
·9 July 2014: the Applicant first arrives here from India as a 30 year old citizen of that country as the holder of a student (Subclass 573) visa;[3]
[3]T, 113, 122–123.
·9 February 2017: the Applicant was granted a permanent regional sponsored migration scheme (Subclass 187) visa;[4]
[4]T, 113.
·1 August 2018: the Applicant made application for Australian citizenship by conferral;[5]
[5]T, 113.
·30 March 2019: the Minister’s delegate approved the application for Australian citizenship by conferral;[6]
[6]T, 113.
·5 June 2019: the Applicant received notification of a determination pursuant to s 26(3) of the Act that she could not take the necessary pledge of commitment before 5 April 2020;[7]
[7]T, 57.
·11 May 2020: the Minister’s delegate issued the Applicant with a notice of intention to consider cancellation of approval of citizenship (“NOICCA”) on the basis of information received by the Minister’s department suggesting the Applicant may not be of good character;[8]
[8]T, 60–65.
·11 May 2020: pursuant to the abovementioned NOICCA, the Applicant was invited to comment on:
othe fact that she had been charged with the murder of a woman and her unborn child in India in the first quarter of 2019;[9]
[9]Note: the material records an actual date as the date on which the alleged murder was committed in India. I have omitted any reference to the actual date in order to protect the identity of the Applicant.
owhy her movement records noted she departed Australia about one month before the alleged murder and returned to Australia two days after it;
owhy her passenger cards relevant to the abovementioned trip to India indicate that during the trip, she had spent most of her time in India;
othe circumstances of her being under investigation by the Australian Federal Police (“AFP”) about the extent of her involvement in a conspiracy to murder the victim of the alleged murder who was an Australian citizen;
owhy the Applicant did not declare the abovementioned AFP investigation to the Minister’s department;
owhy she failed to declare any change in her circumstances to the Minister’s department (ie in relation to the very serious charges proffered against her in India) even though she made a follow-up communication with that department in relation to her citizenship ceremony.[10]
·10 June 2020: the Applicant, through her migration agent, made written submissions to the Minister’s department in response to the NOICCA;[11]
·15 July 2020: the Minister’s delegate cancelled approval of the Applicant’s application for citizenship. The basis of the cancellation was that the Applicant was found to be not of good character pursuant to s 25(2)(b)(iii) of the Act. The department reached the threshold of the Applicant not being of good character on two primary grounds:
oeven though the Applicant had only been charged with murder in India (as opposed to being convicted), the fact of the very serious charge nevertheless satisfied the delegate the Applicant was not of good character at the time of the decision;
othe Applicant’s failure to notify the department of the AFP’s investigation was construed as a failure to inform that department of a relevant change in circumstances such that the Minister’s delegate could not reach a state of satisfaction that the Applicant was of good character.[12]
·5 August 2020: the Applicant lodged the instant application.
[10]T, 60–61.
[11]T, 97–102.
[12]Note: the delegate, for reasons which are unclear, the standard which the delegate applied for the “pending charges” issue appears to differ to the standard they applied for the “failure to disclose issue”.
THE LEGISLATIVE FRAMEWORK
Section 25(1) of the Act empowers the Respondent to cancel an approval of an application for conferral of citizenship (granted pursuant to s 24 of the Act) in circumstances where the Respondent is satisfied, at the time of the proposed cancellation of the approval, that the person is not of good character. Section 25(2)(b) of the Act reads as follows:
“Eligibility criteria not met
(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.
(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:
[…]
(iii) not of good character.”
[My underlining]
Section 25(5) of the Act further provides that if the Respondent exercises the cancellation power in s 25, the original approval is taken to have never been granted.
I am satisfied that the Applicant has not become an Australian citizen under s 28 of the Act; and that she is covered by s 21(2) of the Act. Therefore, the only issue which remains is whether I am satisfied that the Applicant is not of good character.
The necessary enquiry then becomes what constitutes “good character”. The Act does not define “good character”. However, there is strong authority supporting the principle that the phrase should be used in its ordinary sense. That is, it is 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”.[13] A determination of whether someone is of good character necessitates the “consideration of an aggregate of qualities”.[14] Further, the “enduring moral qualities” of which good character speaks “must be demonstrated objectively over a sufficient period”. The length of time to be considered is not specified; rather, it turns on the circumstances of the individual case.[15]
[13]Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 (Lee J).
[14]Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald) (“Prasad”).
[15]Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] (Senior Member Toohey).
There is authority for the proposition that the Tribunal can have regard to policy documents informative of concepts, such as, for present purposes, “good character”. In Drake and Minister for Immigration and Ethnic Affairs (No 2), His Honour, Brennan J, who was sitting as President of this Tribunal, said determination of an issue as broad as good character warrants:
“[…] the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice…
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.”[16]
[16] (1979) 2 ALD 634, 645.
The Minister’s Department issued the latest version of the Australian Citizenship Policy (“ACP”) on 27 November 2020 to provide guidance to decision-makers on the scope and exercise of their powers under the Act. The ACP is supplemented by a suite of “Citizenship Procedural Instructions” (“CPIs”). The relevant CPI is CPI number 15, entitled “Assessing Good Character under the Citizenship Act” (“CPI15”).
As part of its explanation of what constitutes “good character”, CPI15 provides guidance about the nature of necessary “enduring moral qualities” required for a successful grant of citizenship:
“The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.”[17]
[17]CPI15, cl 3.3.
Clause 4 of CPI15 then sets out guiding characteristics that an applicant who is of good character should have. Relevantly, they include:
“[…]
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
o[…]
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs; […]”
[Errors in original]
CPI15 then stipulates that the nominated guiding principles about good character “[…] should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly.”[18] CPI15 also points out that these guiding principles “[…] are intended only to provide broad guidance […] about the types of behaviours which might support an adverse conclusion about a person’s character.”[19] In the final analysis, the CPI15 provides that “[…] a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.”[20]
[18]CPI15, cl 4.
[19]CPI15, cl 4.
[20]CPI15, cl 4.
CPI15 affords assistance to decision-makers involved in the exercise of weighing up a character decision by telling those decision-makers not to apply their own personal standards, but to apply community standards. More specifically, decision-makers must ask themselves the following sorts of questions:
·“Would a person of good character behave the way the applicant did?
·What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
·Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
·Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
·Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
·Are there any other factors that are relevant to an assessment of the applicant’s character?”[21]
[21]CPI15, cl 14.2.
In the final analysis, a holistic approach is required. The authorities suggest an approach whereby an applicant’s behaviour over a lasting or enduring period of time is assessed with, of course, the amount of time considered to be “lasting” or “enduring” depending on the merits of each case. This holistic exercise was the subject of discussion by this Tribunal in Prasad:
“A decision about whether a person is of good character requires the 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.”[22]
[22] Prasad, [7].
ISSUE
The issue for determination by the Tribunal is, for all intents and purposes, a singular one. Specifically, whether the Tribunal is satisfied that at the time the Minister exercised the discretion in s 25 of the Act, the Applicant was not of good character.
If the Applicant is not of good character, the delegate’s decision should be affirmed.
REVIEW OF THE EVIDENCE
As mentioned earlier, the only witness who provided oral evidence at the hearing was the Applicant. Her evidence was of relatively short compass and involved, inter alia, questions about movement records, her criminal charges in India and her failure to declare a change in her circumstances to the Respondent.
Movement records
During cross-examination, the Applicant agreed that movement records before the Tribunal confirmed she departed Australia on or about the third week of February 2019.[23] She confirmed that she did depart Australia on that day accompanied by her mother.[24] She further agreed that her movement records suggested she returned to Australia in a period on or about the middle of March 2019, two days after the alleged murder in India.[25]
[23]Note: in these reasons I will not be using precise dates even though such precise dates appear in the material. I do so deliberately in order to protect the identity of the Applicant. I will therefore use nomenclature the same as or similar to “on or about” or “two days after the alleged event” etc.
[24]Transcript, 4, line 27.
[25]T, 122–123.
The Applicant recalled completing an incoming passenger card upon her return into Australia on or about the middle of March 2019.[26] While she could not recall having recently sighted a copy of that incoming passenger card, she nevertheless agreed that the country in which she spent most of her time abroad was in India.
[26]R1, Annexure 4.
Criminal charges in India
The Applicant confirmed that she had been charged with three offences in India but sought to point out “[…] they are false claims. I will mention that as well.”[27] The following transpired during the cross-examination:
[27]Transcript, 5, lines 1–2.
“Mr Kyranis: MBTZ, one of the offences that you have been charged with in India is an offence of committing murder by intentionally causing death. Is that one of the offences?
Applicant: Yes, it is.
Mr Kyranis: Is another one of the offences that you have been charged with in India cause death of an unborn child?
Applicant: Yes.
Mr Kyranis: Is another of the - is the third offence that you have been charged with in India agreeing to do an illegal act?
Applicant: Yes.
Mr Kyranis: Those three offences, they relate to a murder which is alleged to have occurred on [or about][actual date removed][mid] March 2019; is that right?
Applicant: That is correct, yes.
Mr Kyranis: The murder - or alleged murder was of an Australian citizen in India; is that right?
Applicant: Yes.
Mr Kyranis: In relation to those charges in India, have you told the court in India whether you are guilty or not guilty?
Applicant: I haven’t had my say yet, but the proceedings there are going on, and due to the COVID it was - really affected the court proceedings, but now it’s on the evidences, and yes, we are not guilty, because I - we haven’t done this, because it’s against me and my sister.
Mr Kyranis: Okay. Have you told the court in India that you’re not guilty?
Applicant: Yes, I have.”[28]
[28]Transcript, 6, lines 10–32.
The Applicant was then taken to a specific document contained in the material comprising a lengthy “Charge Sheet” dating from 21 August 2019 issued by the relevant Indian court.[29] The charge sheet details the circumstances and allegations surrounding the abovementioned three charges proffered against the Applicant. During the cross-examination, certain components or passages of the charge sheet were put on a screen in the view of the Applicant who appeared to read through the passages contemporaneously with the Respondent’s representative reading them out to her. The transcript reveals that the Applicant responded with “yes” when asked whether she was reading the same thing that the Respondent’s representative was reading.[30]
[29]R2, Annexure 2.
[30]See Transcript, 7–8.
After reading a first component of the material, the Applicant was asked “Have you got any comment about what I have just read out there?” The Applicant replied “No”. At a further point during the cross-examination, after completion of reading a second portion of the charge sheet to her, she was again asked “Do you have any comment to make about that [(indistinct passage)]” to which the Applicant replied “No”.[31] She was further asked whether both she and her co-accused sister were innocent of the charges brought against them. The Applicant responded “Yes”.[32]
[31]Transcript, 7, lines 38–9.
[32]Transcript, 8, line 14.
Failure to declare change in circumstances by the Applicant
The cross-examination then proceeded to what the Applicant had told, or had failed to tell, the Australian authorities in the course of her citizenship application. This is what transpired during the cross-examination:
“Mr Kyranis: You also declared that you were not aware of any proceedings pending against you overseas or in Australia for any offence. Do you recall that?
Applicant: Yes, I do.
Mr Kyranis: Having made those declarations, you knew that whether you had a criminal conviction or whether you had pending charges would be relevant to whether you could be granted Australian citizenship, didn’t you?
Applicant: It was made before I went to India, so that my application was made before I went to India and when these false allegations were made against me.
Mr Kyranis: But you - I’m not suggesting that the declarations that you made were false in the form at that time. What I’m suggesting is that, having completed that declaration, you knew that it was relevant to your citizenship application whether you had criminal convictions or whether you had pending charges?
Applicant: Yes.”[33]
[33]Transcript, 8, lines 23–37.
The Applicant was then taken to a letter in the material dated 13 August 2018 making it plain to the Applicant that it was necessary for her to tell the Department about any changes to her circumstances “as soon as possible.”[34] The Applicant’s evidence in relation to providing any kind of credible response to the suggestion that she failed to keep the Australian authorities informed of her charges in India went no further than her purporting to say she did not recall receiving the subject letter:
[34]T, 45–46.
“Mr Kyranis: You were sent a letter by the Department of Home Affairs shortly after applying for citizenship stating that you must tell us about any changes to your circumstances. Do you recall that?
Applicant: I did not receive any letter from the Department that I remember. I do apologise if I’m incorrect here, because lately I’m taking so many antidepressant and (indistinct) which really affects my memory, but the letter I received, that was on 29 March which said that my citizenship has been approved, and I received an email on 3 April that it has been postponed for a year, and that was the last communication I had from the Department.
Mr Kyranis: I see. Senior Member, perhaps if page 45 of the T documents can be viewed for the applicant to see.
Senior Member: Sure. Yes.
Mr Kyranis: Could you scroll up a little bit, please, Mr Associate. Keep going up. Thank you. And then scroll down, and stop. MBTZ, that letter appears to be a letter sent from the Department of Home Affairs on 13 August 2018 which under the bolded heading Changes to Circumstances says:
You must tell us about any changes to your circumstances, including your name, contact details, address or information about children included in your application, as soon as possible.
Mr Kyranis: Can you see that?
Applicant: Yes, I can.
Mr Kyranis: Do you recall receiving that letter now?
Applicant: I don’t want to say this because I really don’t recall it, but if it has been sent to me, I would have received it.”[35]
[35]Transcript, 9, lines 4–32.
The Respondent’s representative then pressed the issue further in cross-examination. The Applicant’s evidence went no higher than to apportion blame for her failure to disclose the Indian charges to the Australian authorities on the basis of (1) stressful events in her life; and (2) her not having “full consciousness [at] that time”:
“Mr Kyranis: MBTZ, I put it to you that you didn’t tell the Department of Home Affairs that you had been charged by the Indian authorities or being investigated by the Australian Federal Police, did you?
Applicant: That time in the letter, if it says so, I thought it’s explain it really itself, and at that moment I was going through a lot of things, and it just skipped through my mind. I was - just imagine when your whole world just turns upside down in a - in a single night, and everyone looks at you, that you have actually done something which is not nice, and I was going through a lot of things that time.
Mr Kyranis: I put it to you that you didn’t tell the Department of Home Affairs about the Indian charges or the AFP investigation because you didn’t want your prospects of obtaining Australian citizenship to be diminished?
Applicant: No, this is not correct. If I was in my full consciousness that time, I would definitely tell Department, but I wasn’t in my normal self that time. I was going through a lot of things.”[36]
[My underlining]
[36]Transcript, 10, lines 34–46; 11, lines 1–3.
Re-examination of the Applicant
The Applicant’s representative re-examined the Applicant. With specific reference to the issue of whether or not she had failed to declare a change in circumstances, the Applicant was taken to a document in the material comprising a letter from the Minister’s department. The letter is dated 5 April 2019 and, importantly, post-dates her return to Australia in mid-March 2019 by approximately 2–3 weeks. The re-examination proceeded thus:
“Mr Cochrane: MBTZ, you have just been speaking about the notice from Immigration of the citizenship application which mentioned that you should inform the Department about changes in your circumstances. I would like to move on to the document T8, if I could. I’m sorry, I wasn’t really prepared for this, but T8 is a further notice from the Immigration Department stating that the citizenship application will be on hold for 12 months?
Applicant: Yes.
Mr Cochrane: Because in the - the Department has become aware of charges being made and an investigation. Do you remember receiving that letter?
Applicant: Yes, I do.
Mr Cochrane: And what did you make of the section where it says that the Department is putting your application on hold because of charges - or a possible breach of Australian law?
Applicant: At that point, I thought - it’s mentioned in the letter that this is - this has been going on, so there’s no need for me to say something.
Mr Cochrane: So let me just read it. It says that the - in the - the pledge can be delayed for a specific time:
…and this can happen in situations where the Minister or the Minister’s delegate is satisfied that -
And there’s a couple of bullet points here. I refer you to the second one:
The person has been or may be charged with an offence under Australian law.
Mr Cochrane: Did you find that statement was indicative that the Immigration Department already knew about the charges in India and the ongoing investigation in Australia?
Applicant: Yes.”[37]
[37]Transcript, 11, lines 21–45; 12, lines 1–3.
This evidence must be read and understood in conjunction with what is propounded in the Applicant’s Statement of Facts, Issue and Contentions (“SFIC”) dated 4 February 2021. There, the contention is made that the abovementioned letter from the Minister’s department dated 5 April 2019 has somehow put the Applicant into a state of confusion about whether or not she was obligated to tell the Australian authorities about her charges in India.
The contention seems to be that the letter convinced the Applicant that no further notification (or other) steps were required and that the Applicant was led to act on the basis that the Minister’s department would contact her in due course and that she did not have to contact or notify them about anything. Stated in full, the Applicant’s SFIC contends as follows:
“22. I refer to document T8. The Department informs the Applicant that her pledge has been delayed because the Applicant “has been or may be charged with an offence under Australian Law”. This letter comes only days after the Applicant has become aware of the charges being laid in India. The Applicant assumed that this letter is referring to the charges in India and the AFP investigation – and the Applicant was correct in assuming so. The letter tells the Applicant that the Department is aware of the charges and it then goes on to say:
“the Department will contact you after the abovementioned date to advise you of the outcome of your citizenship matter and what further action may be required. If your circumstances are resolved earlier, we will contact you before the abovementioned date”.
The Applicant understandably took this to mean “don’t contact us … we will contact you.”
23. We note that these AFP charges never eventuated, but more to the point: the Department then cancelled the citizenship approval based partly on the fact that the Applicant did not contact them! We submit that the way the Respondent has used this factor as evidence of the Applicant’s “bad character” is disingenuous. The Department themselves sent the Applicant a letter acknowledging that they were already aware of the possibility of charges in the near future and the Department instructed the Applicant to wait until the Department made contact with further updates.”[38]
[Errors in original]
[38]A1, 7.
To my mind, there are two difficulties with the basis upon which this contention is put. First, I have difficulty in accepting or understanding how, if at all, the Applicant can say that she received the letter from the Respondent department (dated 5 April 2019) “only days after the Applicant has become aware of the charges being laid in India.” As best as I understood the material, she could not have possibly have become aware of charges being laid in India in April 2019. This is because the charges were not laid in India until August 2019. The relevant abovementioned “charge sheet” dates from 21 August 2019.
Second, this contention about apparently being misled is somewhat at odds with the Applicant’s oral evidence at the hearing and in the earlier submission she gave to the Minister’s department. In her evidence before me, she spoke about some type of psychological impediment or interference getting in the way of her meeting the necessary disclosure obligations to the Minister’s department. She says that she was “going through a lot of things, and it just skipped through my mind.”[39] She says that “[i]f I was in my full consciousness that time, I would definitely tell department. But I wasn’t in my normal self that time. I was going through a lot of things.”[40] There is no suggestion in this evidence that the department’s letter of 5 April 2019 led her to a point of procedural confusion.
[39]Transcript 10, line 38.
[40]Transcript, 10, line 46; 11, lines 1–2.
This second point of difficulty with the Applicant’s contention is compounded by what appears in her earlier submission to the Minister’s department dating from 10 June 2020. Once again, there is no reference to any purported procedural confusion arising from the department’s letter dated 5 April 2019 and, instead, reliance is sought to be placed upon psychological symptoms for the failure to adequately notify:
“There is a good reason why the applicant did not notify the Department of the charges: the applicant was suffering a severe mental episode after receiving news that she had been charged. The applicant was devastated. So much so that the applicant sought psychiatric treatment. This altered mental state affected her behaviour, causing her to diminish the importance of following instructions from the Department. She could not focus on this kind of thing which, in the circumstances seemed trivial.
The applicant is sorry that she did not notify the Department of the change, She is not being deliberately deceitful. In a normal state of mind she has always been cognisant of her duty to inform the Department of any changes in her circumstances.
Your notice also implies that the applicant was under an obligation to notify the Department that she was being investigated by the AFP. Again, the applicant was suffering from a severe mental episode following her learning that charges had been made against her in India. While it is no excuse, we submit that, again, her failure to inform your Department about changes to her circumstances should be understood in the context in which it occurred. The AFP have not charged the applicant and she helped them with the investigation - as was her desire to meet her obligations under Australian Law.”[41]
[41]T, 101[13]–101[15].
The only time the Applicant’s evidence ever suggested that the 5 April 2019 letter confused her was when she was prompted directly by her representative in re-examination. The representative did not raise the argument before the delegate. I conclude the argument that the 5 April 2019 letter contributed to the Applicant’s non-disclosure is contrived to “whitewash” her non-disclosure.
Report of Dr Laurel Morris: Clinical Psychologist
Dr Laurel Morris is a clinical psychologist in private practice at Southport, Queensland. Dr Morris has provided both a letter (dated 21 August 2020) and a statutory declaration (dated 11 September 2020). The latter appears to incorporate, in whole, her earlier letter. She conducted an objective assessment using the Depression Anxiety Stress Scale (“DASS”) on the Applicant. In the opinion of Dr Morris, this testing methodology:
“indicated that she was extremely distressed, with scores in the extremely severe range for depression (feeling sad, helpless and hopeless; above the 99.5th percentile), anxiety (physiological arousal and agitation; above the 98th percentile), and stress (racing thoughts and worrying; on 98th percentile).”[42]
[42]A3.
Dr Morris said that the Applicant has attended 11 sessions with her commencing from June 2019 and running through to August 2020. She is of the view that the Applicant has applied herself well to the treatment regimen stipulated by Dr Morris. Dr Morris is of the further view that the Applicant’s symptoms “[…] have remained high due to the unresolved stress and uncertainty in her life.”[43]
[43]A3.
In terms of a diagnosis, Dr Morris was of the view that the Applicant suffers from an Adjustment Disorder with mixed anxiety and depression. She thought these diagnosed symptoms “had a marked impact on [the Applicant’s] wellbeing, and were not due to a pre-existing disorder.”[44]
[44]A3.
It should be noted that Dr Morris was not made available for cross-examination, and thus the Tribunal did not have the benefit of her evidence being tested in cross-examination. Be that as it may, while Dr Morris’ opinions are to be respected as those of a suitably qualified clinician, her report has nothing to say about the extent to which the Applicant’s psychological symptomatology precluded her from disclosing her change in circumstances (ie the charges in India) and the AFP investigation in Australia to the Australian authorities.
It is one thing for the Applicant to say she has psychological symptoms. It is quite another for this Tribunal to be satisfied those psychological symptoms precluded her from making the requisite disclosure.
Other evidence – Documents
The material contains two references. They may be summarised thus:
·the statutory declaration of Ms K V A made on 20 August 2020. Ms K V A has become known to the Applicant on the basis of meeting her as a customer of the local post office where the Applicant was working. Ms K V A describes the Applicant as “a person of exceptional character”. The level of trust is said to reach the level of Ms K V A entrusting the care of her newborn children to the Applicant “on many occasions.” Ms K V A regards the Applicant as “part of my family”.[45]
·the statutory declaration of Mr S S who is the Applicant’s husband. He has provided a statutory declaration made on 14 December 2020. After meeting the Applicant in late 2008, they married in April 2009. He describes the Applicant as “a great partner who look after my parents as her own parents” [errors in original]. He says her parenting skills make her a “wonderful mother to” [error in original]. In terms of her personal disposition, he says “[s]he is a person a kind heart” [errors in original].
[45]A2.
Neither witness says anything about the Applicant’s difficulties with the law in India, nor anything about the ongoing AFP investigation in Australia. It is by no means certain that, despite their apparently close relationships with her, the Applicant has told them anything about these matters. It would thus be unsafe to allocate any measure of weight to either statutory declaration in relation to the analysis of whether the Applicant is not of good character. If they do not know all of the variables (or they do not want to talk about them), it is difficult to safely attribute any determinative measure of weight to what they say. Further, neither of these witnesses were called to give oral evidence and their evidence was not tested in cross-examination.
CONSIDERATION
The nature of the Ministerial Discretion
For the purposes of the instant application, the Tribunal assumes the role of the Respondent and must satisfy itself that at the time of cancellation – for the present purposes of determining this application this means 15 July 2020 – the Applicant was not of good character.[46]
[46]Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; See also R1, 4[10].
In Grass v Minister for Immigration and Border Protection the Full Court has (relatively) recently described the relevant power to be exercised pursuant to s25 of the Act, specifically, the revisitation or revoking of a citizenship approval that has been previously granted:
“58. Section 25(1) to be read with s 25(2) and (3), is designed to empower the Minister to revisit the citizenship approval previously granted. Relevantly, s 25(1)(b), read with s 25(2), is designed to empower the Minister to revisit a person’s satisfaction of the eligibility criteria, presumably because of the receipt of new or different information, or to correct administrative error in the approval process…
59. The third matter (and the one relied on by both delegates in respect of the appellant) – whether at the time the Minister proposes to cancel the approval the Minister is satisfied that the person is not of good character – is also a criterion which allows for changes of circumstances in between the granting of an approval and a person in fact taking the pledge of commitment. There may be a genuine change in circumstances, for example, prosecution for a criminal offence, or there may be new information available to the Minister, or an error in the way material was considered at the time of the grant of approval may have come to light. It seems to us the text and context of the provision do not suggest any narrow approach should be taken to the circumstances which might give rise to a reconsideration of the “good character” of a person holding a citizenship approval. Whether, after full and proper consideration, affording natural justice and determining the matter according to law, the approval is, in fact, cancelled is another question altogether. For the moment, the only concern is how the scheme is intended to operate, not the outcomes which might be delivered on any particular set of facts.
60. Another indication of the breadth is that the term “good character” is not defined in the Act […] No doubt some of the matters in the eligibility criteria in s 21 of the Act may inform the construction of the term “good character”, but Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…it is important to note the absence of a definition and, again, the legislative decision to leave room to the repository of the cancellation power to reconsider a range of events and conduct connected with the person who has been granted a citizenship approval.”[47]
[My underlining]
[47] (2015) 231 FCR 128, [58]–[60].
Fundamentally, consideration and determination of this matter revolves around whether the Tribunal is positively satisfied of a negative proposition. That is, the Tribunal must reach a point of satisfaction that this Applicant is not of good character. In oral submissions, the Respondent’s representative contended the evidence is such that this Tribunal should find itself so satisfied. I will now recount each of those reasons in support of my finding that the decision under review must be affirmed.
The ongoing prosecution against the Applicant in India; the currently active AFP investigation in Australia
It is not in dispute that the Applicant faces an ongoing and unresolved prosecution in relation to four separate charges in India. In the relevant charge sheet, they are, on an abbreviated basis, referred to thus:
(i)that in the month of March 2019, the Applicant “agreed to do an illegal act, viz- to abduct [victim] with an intent to commit her murder and viz abducting and her murder as well as to cause death of her quick unborn child […]”;
(ii)“[…] on the same date and place, […] [the Applicant] […] did commit murder by intentionally causing the death of [victim]”;
(iii)“[…] during the above said time and place you [the Applicant] murdered [victim] and at that time she was pregnant and died and also caused death of her quick unborn child […]”;
(iv)“[…] during the above said time and place you […] [the Applicant] dishonestly misappropriated the property ie gold ornaments etc of [victim] in possession of deceased [victim] at the time of her death […]”.[48]
[48]R2, Annexure A, 4–5.
The Applicant’s difficulties with the legal process arising from what has been alleged against her in India has engaged the attention of the AFP. A Detective Sergeant in the AFP has provided a written statement and, while that evidence was not tested in cross-examination, two things can be said about it. First, the Detective Superintendent is obviously a senior and experienced member of the AFP and his statement must be received on that basis. Second, while his evidence was not tested in cross-examination, I do not recall any significant issue being taken in relation to it by or on behalf of the Applicant. I thus accept what the Detective Superintendent says to be truthful and accurate.
In his statement, the Detective Superintendent makes two things clear. First, he confirms that the Applicant “[…] was charged with the murder of the deceased at [court], India on 21 August 2019 and the prosecution is ongoing.”[49] Second, he confirms the AFP is conducting its own investigation into the death of the victim in India who was an Australian citizen at the time of her death. The relevant portion of the statement reads thus:
“I can confirm that the AFP is investigating the death of Australian citizen [victim] (the deceased), born [date of birth redacted]. The offence under investigation is Conspiracy to commit murder of an Australian citizen or resident of Australia, contrary to section 115 Criminal Code (Cth) (scheduled to the Criminal Code Act 1995) by virtue of section 11.5 (conspiracy) punishable by a maximum term of life imprisonment. [The Applicant] is aware that she is a person of interest in this investigation which remains active.”[50]
[49]R2, 2[7].
[50]R2, 2[5].
During the hearing, the Applicant was provided with the necessary warning against self-incrimination. Further to that, the Applicant exercised her right to refrain from giving any particularised or detailed evidence about the factual circumstances of the charges that have been brought against her in India even though details of the circumstances of the Indian offences have been given in great detail in the abovementioned charge sheet. While the Applicant has lawful right to refuse to provide evidence of the factual circumstances surrounding the alleged offences in India, this does not preclude this Tribunal from taking the totality of the evidence into account in reaching a point of satisfaction about the Applicant not being of good character.
The basic state of the evidence is this. In India, it is clear that (1) the Applicant has been charged with very serious offences; and (2) the Indian prosecution is ongoing. In Australia, the AFP has a live investigation into whether or not the Applicant has offended against the Commonwealth Criminal Code for conspiring to commit the murder of an Australian citizen. We are told “this investigation […] remains active.” The other significant point is that the laying of the charges in India and the ongoing AFP investigation are contemporaneous with (or otherwise very close in time to) the decision to cancel the Applicant’s approval for Australian citizenship.
Failure to declare change in circumstances by the Applicant
I have sought to understand the abovementioned contended basis of the Applicant’s failure to notify the Minister’s department of the change in her circumstances involving the very serious charges proffered against her in India. There are various difficulties with this contention.
The first difficulty arises from the reality that as a result of completing her original application for citizenship and the subsequent letter she received from the Minister’s department on 13 August 2018, she was, for all intents and purposes, “on notice” to tell the department of any change in her circumstances that could possibly impact upon her application for citizenship. There can be no avoiding the reality that the very serious charges proffered against her in India were relevant and had every prospect of impacting on her application for Australian citizenship. During cross-examination, the Applicant accepted that in completing her application for citizenship, she answered questions about whether she then had any criminal convictions or pending criminal charges. She also accepted the relevance of any criminal convictions or pending charges, either overseas or in Australia to her citizenship application.
The second difficulty is a temporal one. I have misgivings about the nature of the following contention and the basis upon which it is put. It is said the Applicant somehow received the department’s letter dated 5 April 2019 “only days” after she became aware of the charges in India. The charges in India were not particularised until four months later in August 2019. This is confirmed by the date on the charge sheet. As best as I understood the material, there is little or nothing to suggest the Applicant was formally charged with her offences in India in either late March or early April 2019.
The third difficulty derives from the more recently asserted state of confusion said to have been caused by the department’s letter of 5 April 2019 and, in particular, whether she was obligated to tell the department about her charges in India. The evidence around this contention lacks credibility because it is not propounded in the Applicant’s earlier written submission to the department dating from 10 June 2020, nor was it propounded during her evidence given in cross-examination. In both her earlier submissions and in cross-examination, the Applicant sought to apportion blame for her failure to notify on the basis of intervening psychological symptoms. In the evidence she gave in cross-examination and in the statement to the Minister’s department dating from 10 June 2020, there was no suggestion that the department’s letter of 5 April 2019 caused her any confusion at all. The more likely explanation was, as put to her in cross-examination, that she did not want to tell the department anything about her charges in India in order to not jeopardise her application for Australian citizenship.
CONCLUSION
The Applicant’s contention that she is entitled to a presumption of innocence, is, in the context of a criminal trial, correct. But for present purposes, that contention is misconceived principally because it is not the role of this Tribunal to determine the Applicant’s guilt or innocence for offences allegedly committed in India, or Australia, or elsewhere. This Tribunal’s function is purely administrative – that is, to determine, on the basis of a merits review, whether the decision under review is the correct or preferable decision.
The Applicant’s guilt, innocence, or other level of culpability in whatever charges have been brought against her in India, or which may be brought against her in Australia are not matters determinative of the issue now before this Tribunal. This Tribunal must have regard to the reality of (1) an ongoing and unfinalized prosecution in India in relation to some very serious charges now before the courts in that country; and (2) an ongoing AFP investigation into a possible very serious offence in breach of the Australian criminal law.
I am of the view that these two factors alone are sufficient for this Tribunal to reach the requisite state of satisfaction that the Applicant was not of good character at the time of the cancellation of the approval for the purposes of s 25 of the Act.
The present case is, to my mind, analogous with Zhang and Minister for Immigration and Border Protection. In that case, the applicant was being investigated by Chinese authorities at the time this Tribunal was determining that Applicant’s eligibility for citizenship pursuant to s 21(2)(h) of the Act. While the starting point of the consideration in a decision under s 25(2)(b)(iii) of the Act is different to the starting point in a s 21(2)(h) decision, there is a key point of similarity: serious unresolved charges. In other words, analogous to the instant case, the Chinese authorities had not concluded their investigations into the alleged fraud at the time this Tribunal was asked to make its determination about whether the Applicant then before it qualified for the grant of Australian citizenship. Deputy President Tamberlin QC said the following:
“The important consideration is that the allegations and warrant are still current and the position is clearly that the Chinese authorities wish to investigate the allegations of fraud made against him. The alleged fraud involved a very substantial amount of money and extended over 10 months and 96 transactions. It was planned and not a casual or one-off deception or misleading incidence of misconduct. The evidence falls short of satisfying me that the applicant is of good character such as to qualify for the grant of Australian citizenship.”[51]
[51]Zhang and Minister for Immigration and Border Protection [2015] AATA 176 [36].
While adverse to the Applicant, this decision will not preclude her from making a future application for Australian citizenship. Were she to do so in the circumstances of her actual legal difficulties in India and possible legal difficulties in Australia having been resolved or finalised, it would, to my mind, facilitate a more ready satisfaction of the criteria in the Act necessary for the grant of Australian citizenship.
Adopting a holistic approach to the totality of the evidence, I am of the view (and I find) that this Applicant is not presently eligible to become an Australian citizen.
DECISION
The decision under review is affirmed.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
..........................[sgd]....................................
Associate
Dated: 29 July 2021
Date(s) of hearing: 16 June 2021 Advocate for the Applicant: Mr Rhys Cochrane (Migration Agent) Agents for the Applicant: OzVisa Group Pty Ltd Advocate for the Respondent: Mr Jake Kyranis (Senior Associate) Solicitors for the Respondent: Sparke Helmore Lawyers ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
T1
Section 37 T-Documents
(T1-T18, paged 1-171)
-
27 Aug 2020
R1
Respondent’s Statement of Facts, Issues and Contentions (paged 1-10) with Annexures:
· Annexure 1: Australian Citizenship [Policy Statement] (paged 1–10);
· Annexure 2: CPI 15 – Assessing Good Character under the Citizenship Act (paged 1–26);
· (Annexure 3 marked R2)
· Annexure 4: Incoming Passenger Card (1 page)
6 April 2021
6 April 2021
R2
Police Statement of AFP Detective Superintendent (pages 1–3) with Annexures:
· Annexure A: certified copy of charge sheet (pages 4–5);
· Annexure B: “challan” (statement of facts) relied on by prosecution (pages 6–43)
Various
6 April 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (paged 1-8)
4 Feb 2021
8 Feb 2021
A2
Statutory Declaration of Ms K V A (3 pages)
20 Aug 2020
28 Aug 2020
A3
Letter from Clinical Psychologist, Dr Laurel Morris (1 page)
21 Aug 2020
28 Aug 2020
A4
Statutory Declaration of Dr Morris (1 page)
11 Sept 2020
16 Sept 2020
A5
Statutory Declaration of Mr S S (husband of the Applicant) (1 page)
14 Sept 2020
16 Sept 2020
A6
Australian Federal Police Check (1 page)
30 Oct 2020
9 Nov 2020
A7
Statement of Employment - Previous Employment (1 page)
19 Oct 2020
8 Nov 2020
A8
Statement of Employment – New Employment (9 pages)
8 Jan 2021
8 Feb 2021
0
4
0