Merza and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 905
•21 April 2020
Merza and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 905 (21 April 2020)
Division:GENERAL DIVISION
File Number: 2019/6008
Re:Alan Merza
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:R Cameron Senior Member
Date:21 April 2020
Place:Melbourne
The Tribunal affirms the reviewable decision.
..................[sgd]......................................................
R Cameron, Senior Member
Catchwords
CITIZENSHIP – refusal of an application for Australian citizenship by conferral – whether the Applicant is of good character – failure to disclose the existence of a prior conviction in application – information supplied in application not complete, truthful and correct in every detail – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Crimes Act 1958 (Vic)
Sentencing Act 1991 (Vic)Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCFCA 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
Secondary Materials
Australian Citizenship Policy, 1 June 2016
REASONS FOR DECISION
R Cameron Senior Member
21 April 2020
INTRODUCTION.
The Applicant seeks review of a decision by the Respondent on 16 September 2019 refusing his application for Australian citizenship under the Australian Citizenship Act 2007 (“the Act”) (“the reviewable decision”).[1]
[1] The reviewable decision is document T 2 of the T documents.
THE ISSUE FOR DETERMINATION BY THE TRIBUNAL.
The issue in this proceeding is whether the Tribunal is satisfied that the Applicant is a person of good character within the meaning of sections 21 (2) (h) and 24 (1A) of the Act.
THE EVIDENCE BEFORE THE TRIBUNAL.
Both documentary and oral evidence were before the Tribunal.
The documentary evidence consisted of:
(a)the “T” documents;
(b)a bundle of documents tendered by the Applicant consisting mostly of his official records from Iraq arising from his time of government service there; and
(c)bundles of documents received in response to summonses issued by the Respondent to the Victoria Police and the Registrar of the Broadmeadows Magistrates’ Court.
The Applicant gave oral evidence by telephone after having been duly affirmed.
RELEVANT FACTS.
The Applicant first arrived in Australia as the holder of a permanent Global Special Humanitarian visa (subclass 202) on 17 May 2009.
On 5 June 2016, the Applicant was arrested and charged with negligently dealing with proceeds of crime. He was arrested after Victoria Police executed a search warrant at his address concerning a stolen 16.5 foot Bayliner Bowrider Boat. The boat had been stolen from the Hume Highway in Somerton in May 2016 and was recovered at his address in Craigieburn. The investigation was triggered after the owner observed it at the front of the Applicant’s address after seeing it for sale on “eBay”.
On 19 September 2016, the Applicant was convicted at the Broadmeadows Magistrates’ Court of negligently dealing with the proceeds of crime. He was convicted and fined $1,000.00 with $77.50 statutory costs.
On 6 March 2017, the Applicant was again arrested following an incident occurring in the Port of Melbourne on 27 February 2017, where the Applicant was found to be in possession of a boat known to be stolen.
The Applicant lodged with the Respondent an application for Australian citizenship by conferral on 10 July 2017.[2] He answered several questions in “Part G – Travel, good character and criminal offences” (paragraph 39). The Applicant provided the answer “No” by ticking the relevant box in response to each of the several questions set out in the following paragraphs.
[2] Document T 4 of the T documents.
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any “spent” convictions)? (Question 39 (a).)
Are you aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review? (Question 39 (e).)
Have you ever been charged with any offence overseas or in Australia that is currently awaiting legal action? (Question 39 (g).)
“Part M – Declaration” of the application for Australian citizenship by conferral contained the following blunt warning in bold print:
“WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.”
Under that bold warning paragraph 52 contained, amongst others, the following declaration:
“I declare that the information I have supplied in this form is complete, truthful and correct in every detail.”
The Application for Australian citizenship by conferral was signed by the Applicant.
The Applicant appeared in the Broadmeadows Magistrates’ Court on 9 October 2017. He was convicted of negligently dealing with the proceeds of crime. He was convicted after pleading guilty to this charge.[3] The Court imposed a sentence on him requiring that he serve a Community Corrections Order for a period of 12 months and perform 150 hours of unpaid community work. He was also fined $1,000.00 with $77.50 statutory costs.
[3] This fact was apparent from an examination of a Certified Extract of the conviction provided by the Registrar of the Broadmeadows Magistrates’ Court and an admission made by the Applicant in response to a specific question to this effect from the Tribunal during the course of the hearing.
By reason of the matters recounted above, the Applicant’s responses to questions 39 (a), (e) and (g) on his Application for Australian citizenship were false. This was because he had been convicted and found guilty of an offence, he was aware of proceedings pending against him and he had been charged with an offence that was currently awaiting legal action, at the time he completed the Application for Australian Citizenship.
Further, also by reason of these matters, the information the Applicant supplied in the Application for Australian citizenship by conferral was not complete, truthful and correct in every detail contrary to the declaration that he made in response to paragraph 52 of that form.
THE APPLICANT’S EVIDENCE.
As noted earlier the Applicant gave oral evidence by telephone after having been duly affirmed. Something should be said about the substance of his evidence concerning several matters relevant to this application. He stated that the two boats that were the subject of each of the appearances before the Broadmeadows Magistrates’ Court had been bought by him from the same person at the same time. He stated that he was naïve and did not know that the boats had been stolen. His response was that the law does not protect naïve people. When probed he conceded that he should have checked before he purchased the boats and subsequently advertised them for resale. He stated that he should have been more careful in respect of this matter. He did readily concede that when he bought the boats he was told that it was an opportunity to sell them at a profit and he described the boats as being “cheap and good value.”
The Applicant stated that, having bought two boats at the same time, he was caught again because the police recovered the second boat later in time. It should be noted that this offending only came to light when the water police came to the assistance of the second boat which had struck rocks in the lower Yarra area of Melbourne. The Applicant had been called in by the person using the boat to inspect the damage to the vessel when the police arrived to render assistance. Upon inspecting the boat, the lead investigating Senior Constable became suspicious that it was a stolen boat. He initiated enquiries which confirmed his suspicions ultimately leading to the Applicant, and the subsequent charge for which he was convicted.
The Applicant gave evidence about several matters concerning the false information contained in the Application for Australian Citizenship by conferral referred to previously. He stated that the application form itself was filled in by his wife and he then signed it. When it was specifically put to him why it was that he gave incorrect answers to questions 39 (a), (e) and (g) he stated that he was scared and afraid to give the correct answer and stated “I thought I should lie for now because I was so scared. I am a good person I don’t know why, I don’t know what happened.” He further gave evidence that at the time he was afraid of being rejected or refused citizenship but now he wished to “clear my conscience”.
GOOD CHARACTER.
The Act does not contain a definition of either good or bad character. The concept however is well known in the context of immigration law let alone the general law. Frequently, reference is made (as did the Respondent in its Statement of Facts and Contentions in this matter) to the often cited passage of Lee J concerning such concept in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs.[4] It is cited quite properly, as an accurate statement of the law. His Honour observed as follows:
“Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame 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: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
[4] (1996) 68 FCR 422 at 431. This case is apposite in that although a visa refusal case under the MigrationAct1958 that Act contained a reference to “good character” and was decided before the 1998 amendments which removed such reference and substituted the “character test”.
In assessing whether or not a person is of good character, the decision-maker should consider a range of events and conduct in connection with the person. Ultimately, this is an issue of fact.[5]
[5] For instance see the decision of Grass v Minister for Immigration and Border Protection [2015] FCFCA 44 at [60].
The Respondent also referred to several authorities which provide guidance relevant to this application. In Fenn v Minister for Immigration and Multicultural Affairs,[6] a decision of this Tribunal, it was found 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, amongst other things.
[6] [2000] AATA 931 at [8].
In Kakar v Minister for Immigration and Multicultural Affairs[7] the Tribunal observed that when criminal offences have been committed they obviously are taken into account. The extent to which criminal conduct would weigh against a finding of good character depends upon many factors including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
[7] [2002] AATA 132 at [14].
Additionally, there is of course the guidance offered by the definition of “good character” contained in the current Citizenship Policy[8] (“the Citizenship Policy”). Generally, the Delegate of the Minister will apply the Citizenship Policy in the absence of good reasons not to do so.[9] The Minister is free to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute. In Chapter 11 of the Citizenship Policy, “Character” is referred to in its entirety for its full force and effect.[10] However, some aspects of the Citizenship Policy warrant reference. The phrase “good character” 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.
[8] The current version commenced on 1 June 2016. Considerable reference was made to many of its sections in the Respondent's Statement of Facts and Contentions. They need not be reproduced in their entirety in these reasons. However, a summary of several the key sections applicable to this matter have been included.
[9] See Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
[10] Document T 3 of the T documents.
It prescribes that for a decision-maker to be satisfied that an applicant is of good character he or she must demonstrate “good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.”[11] (Emphasis added).
[11] This statement is found at page 75, Document T 3 of the T documents being Chapter 11 "Character" of the Citizenship Policy.
Further characteristics of good character referred to in the Citizenship Policy include that an applicant of good character would:
·be truthful and not practise deception or fraud in their dealings with the Australian government…, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.[12] (Emphasis added.)
[12] This is found at the third dot point at page 76, Document T 3 of the T documents under the heading “Characteristics of good character".
It is noted in the Citizenship Policy under the heading “Weighing up the character decision”[13] that when an assessment about whether an applicant is of good character is being undertaken it requires the consideration of an aggregate of qualities. A decision-maker must apply “community standards” and ask themselves, amongst other things, the following questions:
·Would a person of good character have behaved the way the applicant did
·Has the applicant behaved in accordance with Australia’s community standards
[13] Pages 77 and 78, Document T 3 of the T documents.
It is then observed that a decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. It is stated that in most cases this excursion into the history of the applicant’s behaviour will commence at a point prior to any visa application being made.[14]
[14] Page 78, Document T 3 of the T documents.
CONSIDERATION.
The Tribunal cannot accept on the material before it that the Applicant satisfies the character requirements of the Act to enable his application for Australian citizenship by conferral to be granted.
There are several reasons for reaching this conclusion. The starting point is the nature and seriousness of the Applicant’s offending together with the proximity of such offending to the date that the Application for citizenship was made.
Both the Applicant’s convictions are indictable offences under the provisions of section 194 (4) of the Crimes Act1958 (Vic). They carry a maximum penalty of imprisonment for up to five years. This range of sentencing options reflects the seriousness with which the Parliament of the State of Victoria views this offending. An examination of the language used in section 194 is instructive in this instance for the purposes of assessing the Applicant’s character.[15] To succeed in a prosecution for this offence it is necessary to establish knowledge on the part of the accused to the criminal standard of proof that they were dealing with the proceeds of crime, being negligent as to whether or not it is the proceeds of crime. This is a significant burden of proof to discharge. The Applicant having been legally represented by competent practitioners, pleaded guilty to all the charges of which he was convicted. The fact that the prosecution was able to establish this level of negligence to a criminal standard on the Applicant’s part does not reflect well upon him and his character. It has the indicia of someone of bad character.
[15] Section 194 (4) provides: “A person must not deal with proceeds of crime being negligent as to whether or not it is proceeds of crime. Penalty: Level 6 imprisonment (5 years maximum).” Section 193 of the Crimes Act "Definitions" provides: " deal with includes receive, possess, conceal or dispose of”.
At his first appearance in the Broadmeadows Magistrates’ Court on 19 September 2016, the Magistrate, when imposing the sentence on the Applicant (being a conviction and fine) as he was required to do under the provisions of the Sentencing Act1991 (Vic), recorded that but for the Applicant’s plea of guilty the sentence he otherwise would have imposed was a Community Corrections Order. This observation by the sentencing Magistrate underlines the seriousness with which the Applicant’s offending was viewed by that court. One has to observe that it was not an auspicious debut by the Applicant in his dealings with courts in this country.
It should be noted that upon his second appearance and conviction at the Broadmeadows Magistrates’ Court on 9 October 2017, the penalty imposed was to place the Applicant on a Community Corrections Order for a period of 12 months, and required him as a condition of such Order to perform 150 hours of unpaid community work. The seriousness of this penalty must surely reflect the gravity with which the Magistrates’ Court viewed the Applicant’s further offending. It is at the higher end of the scale.[16]
[16] Once again, the sentencing Magistrate on this occasion noted that but for the plea of guilty the sentence she would otherwise have imposed would have been a more onerous Community Corrections Order with conviction.
It is also consistent with this observation to note that in both instances the Applicant dealt with stolen boats. One would have expected during and/or after his first encounter with the police and subsequent appearance at Broadmeadows Magistrates’ Court he might have learned his lesson, and at the very least understood the seriousness of what he was doing. It might have been expected when he was first apprehended that he would have alerted the police to the fact that he had purchased two boats from the same person at the same time, offering a consistent explanation as to his version of the events. It is telling that he did not do so, and the Tribunal infers that he probably was not candid with the police on the first occasion that he came to their attention. The further offending on the part of the Applicant for which he was subsequently convicted only came to light when police carried out further investigations following the boat in question becoming stranded on rocks whilst being used in the lower Yarra region of Melbourne. Had the investigating police officer not been as diligent as he was on that night, the Applicant’s further offending may never have been dealt with.
Whilst it is not within the remit of the Tribunal to make any findings as to whether the Applicant has a propensity for this sort of behaviour, the nature and seriousness of such offending, together with its frequency, do not reflect well on his character in the relevant sense as identified in several authorities referred to previously, and in the relevant provisions of the Citizenship Policy. They are not consistent with someone demonstrating over a very long period of time in the ordinary sense, that they have enduring moral qualities of a good character. They do not bear the hallmarks of someone who has demonstrated over a very long period of time that they can distinguish right from wrong. They are inconsistent with behaving in an ethical manner, and conforming to the rules and values of Australian society.
Another reason for reaching this conclusion was the failure to disclose the existence of the prior conviction when the Application for Australian citizenship by conferral was made. Further, it must be viewed seriously by the Tribunal that the Applicant made false statements in response to questions 39 (a), (e) and (g). Coupled with these false responses made to question 39 was the false declaration made at paragraph 52 of the Application for conferral of Australian citizenship. It should not be lost sight of that the false declaration was made in the face of a very clear and boldly printed warning to the Applicant of the consequences of deliberately making or causing to be made a false or misleading statement or otherwise concealing circumstances in relation to an application.
It also seems inconceivable to the Tribunal that the Applicant did not disclose in his Application for Australian citizenship by conferral the fact that he was facing a hearing in the Broadmeadows Magistrates’ Court, having been charged with negligently dealing with the proceeds of crime. It will be recalled that the Applicant was convicted of this offence in that court 9 October 2017 after his Application for Australian citizenship by conferral had been lodged, having been arrested for this offence in March of 2017. He was found to be in possession of a boat known to be stolen. Whilst the Tribunal acknowledges the Applicant’s explanation for giving the incorrect and false answers and making a false declaration, in the Application for Australian citizenship by conferral, it finds such an explanation difficult to accept. By the time he made such application he had lived in Australia for over eight years. He had gained an appreciation of the integrity of the Australian system, and was well aware of his obligations of truthfulness and candour when dealing with government agencies. He made a conscious and deliberate decision to give false and incorrect responses. These responses were made in the face of his actual knowledge of the true state of affairs concerning one conviction and a pending court appearance.
Once again the Applicant’s failure to mention in the Application for Australian citizenship by conferral that he was facing a pending hearing in the Broadmeadows Magistrates’ Court was not consistent with someone demonstrating over a very long period of time in the ordinary sense, that they have enduring moral qualities of a good character. It also did not bear the hallmarks of someone who has demonstrated over a very long period of time that they can distinguish right from wrong. Such failure by the Applicant was also inconsistent with behaving in an ethical manner, conforming to the rules and values of Australian society.
The Respondent’s representative in closing submissions referred to an often cited passage from a decision of Deputy President McMahon of this Tribunal in Lachmaiya v Department of Immigration and Ethnic Affairs.[17] In that passage the Deputy President noted that:
“the observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia”.
He stated that to lie consistently is to subvert the administration and, in the context of the Act, to demonstrate that the maker of such statements is not a person of good repute or good character. The passage is apposite to the matters under consideration by the Tribunal in this case. Whilst the Tribunal acknowledges that the Applicant admitted that he had lied in completing the Application for Australian Citizenship by conferral, such an admission cannot relieve him of the responsibilities for his actions in this context.
[17] [1994] AATA 27 at [35].
Another matter of concern to the Tribunal with respect to the explanation that the Applicant gave in the witness box also arises from his prior dealings with the Respondent. On 30 October 2018, the Respondent, having found out about the Applicant’s convictions, sent to him what is described as a “Natural Justice Letter.”[18] In that letter the author has referred to the convictions, and amongst other things, invited the Applicant to provide a statutory declaration providing the full nature and details of the offences committed, including an explanation of the circumstances surrounding the commission of the offences, any mitigating factors, and why he did not declare the offences on his application form, or during his test appointment.
[18] The letter is Document T 6 of the T documents.
In response to the Natural Justice Letter of 30 October 2018 the Applicant produced a statutory declaration which was very brief.[19] He stated that he purchased the boats not knowing they were in effect the proceeds of crime and expressed his apologies for it stating he had learned a lesson. There was no explanation for the failure to declare the offences on the application form or during the test appointment. One would have expected a comprehensive response and certainly a response that contained the level of detail requested in the Natural Justice Letter and to have largely accorded with the evidence given before the Tribunal at the hearing of this application. Overall, this extremely thin explanation contained in the statutory declaration, and its variance from the evidence given during the course of the hearing of this application before the Tribunal do not reflect well upon him. It is another reason why the Tribunal cannot find the Applicant is of good character within the meaning of the relevant sections of the Act.
[19] Document T 7 of the T documents.
The Tribunal has taken into account two references submitted by the Applicant which are contained in the T documents.[20] The first reference is from Archdeacon Hirmiz of the Ancient Church of the East. The second reference is from Mr Al-Ashi. Whilst these references do depose to what each of the makers of them consider to be the Applicant’s good qualities, they do not say that they are aware of the Applicant’s criminal history or his making of false and incorrect declarations in his Application for citizenship by conferral. As was pointed out by the Respondent’s delegate in its letter to the Applicant of 30 October 2018, this does of necessity limit the weight that the decision-maker, in this case the Tribunal, can attach to such references.
[20] The references are to be found in Document T 7 of the T documents.
Notwithstanding these references, a person of good character would not have behaved in the way that the Applicant did at the relevant time, or over the time span applicable. To adopt the language of the Citizenship Policy, looking at each of the individual facts relied upon by the Respondent, the Applicant’s behaviour holistically over many years reflects badly on him. Also adopting the language from the Citizenship Policy, he did not demonstrate good enduring/lasting moral qualities that have been evident before his visa application and throughout the migration and citizenship process when he engaged in it.
The Tribunal accepts the Respondent’s contention that there is limited evidence supporting the proposition that the Applicant has rehabilitated, reformed and re-established his good character. As noted above, this is established by the pattern of the Applicant’s offending over a relatively short time frame, the failure to disclose the pending court appearance which led to his second conviction, the provision of false answers to the questions contained in paragraph 39 of his Application for Australian Citizenship by conferral, together with the making of the false declaration at paragraph 52 of that document.
He has not established to the satisfaction of the Tribunal that he is a person of good character within the meanings of sections 21 (2) (h) and 24 (1A) of the Act. In the circumstances, the Tribunal finds that the Applicant’s conduct overall does not meet the expectations of the Australian community and in such a setting it would be expected that Australian citizenship would not be conferred upon him at this time.
CONCLUSION.
The Tribunal affirms the reviewable decision.
I certify that the preceding 49 (forty - nine) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
.....................[sgd]...................................................
Associate
Dated: 21 April 2020
Date of hearing: 14 April 2020 Applicant: By telephone Solicitors for the Respondent: Mr Brinley, Clayton Utz
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