Ms Diptikaben Patel Mr Shaileshbhai Patel and Minister for Immigration and Border Protection

[2015] AATA 378

[2015] AATA 378  

Division

GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/2794

2014/2792 

Re

Ms Diptikaben Patel

Mr Shaileshbhai Patel 

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	29 May 2015
Place	Sydney

The Tribunal affirms the decisions under review.

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Senior Member J F Toohey 

CATCHWORDS – CITIZENSHIP – whether applicant of good character – conviction in Australia for larceny – applicant husband placed on good behaviour bond – legal proceedings pending in India concerning both applicants – dishonoured cheques – decisions under review affirmed  

Legislation

Australian Citizenship Act 2007 s 21(2)

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. The applicants, Shaileshbhai Patel and Diptikaben Patel, are husband and wife.  They are citizens of India and have lived in Australia since 2008.  In September 2013, they applied for Australian citizenship. 

2. A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Australian Citizenship Act 2007 (the Citizenship Act). One of those requirements is that a person be of good character at the time of the Minister's decision on the application: s 21(2)(h).

3. In May 2014, a delegate of the Minister for Immigration and Border Protection (the Minister) refused Mr and Ms Patel’s applications because she was not satisfied they were of good character.  Mr and Ms Patel seek review of those decisions.

4. In respect of Mr Patel’s application, the Minister refers to his conviction in Sydney in November 2011 of larceny, and to proceedings currently pending in India concerning allegations of fraud.  In respect of Ms Patel’s application, the Minister refers to the same proceedings in India.  Details of these are discussed below.

5. Although they are separate applications, and different considerations apply, for convenience I will deal with Mr and Ms Patel’s applications together.

   The meaning of good character

6. The Citizenship Act does not define “good character”. Guidance as to its meaning is found in the Australian Citizenship Instructions (ACIs) the current version of which came into effect on 1 July 2014.  The ACIs are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

7. “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 the other commitments made through the pledge, should they be approved for citizenship: cl 10.1.2.

8. The statement of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 has been adopted by the Court and this tribunal as describing the meaning of “good character”:

   Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion…A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character…Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

9. “Moral” does not have any religious connotation; rather, “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, distinguishing right from wrong, and behaving in an ethical manner, conforming to the rules and values of Australian society: cl 10.3.1.

10. Included in the non-exhaustive list of characteristics expected of a person “of good character” are: respect for and abiding by the law in Australia and other countries; honesty and financial responsibility; and truthfulness in dealings with the Australian government, or other governments and organisations: cl 10.3.4.

11. The seriousness of any offences that a person has committed is relevant.  Relevant to Mr and Ms Patel’s applications, serious offences for the purposes of the ACIs include fraud.  It is relevant also to consider whether the offence was premeditated, the length of any sentence imposed, any ongoing obligations in relation to the sentence received such as a good behaviour bond, whether it was a “one-off” offence or part of a pattern of behaviour, and any sentencing remarks: cl 10.5.2. 

12. Any mitigating factors should be taken into account.  These may include the length of time between the date of the offence and the application for citizenship, whether the applicant has accepted responsibility and shown remorse for his or her conduct, and how the applicant has behaved since being released from prison or having completed any obligations such as a good behaviour bond.  In this regard, the ACIs state at 10.5.2:

    It is important to see how the [applicant] behaves when they are free from the obligations of such a sentence or bond.  A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.

13. Other relevant mitigating factors may be an applicant’s attempts at rehabilitation, his or her age at the time of the offence, any extenuating circumstances relating to the offence, and any evidence about length of employment, stable family life and community involvement: cl.10.5.2.

    Mr Patel’s background and conviction

14. Mr Patel is 39 years old.  He and Ms Patel migrated to Australia in 2008 in the hope of providing a better life for their young son.  Their second child, a daughter, was born in Australia. 

15. Mr Patel worked as an apprentice mechanic in India and in various positions in the automotive industry.  By all accounts he was in steady, stable employment.  He worked in similar positions in Australia until 2009 when he started work installing pink batts under the former Government’s insulation scheme.  He found himself out of work when the scheme was shut down, and debts started mounting.  He started gambling, including with money borrowed from friends.  Between 2009 and 2011, he accumulated $100,000 in debt.  In June 2011, he committed the offence which led to the conviction for larceny.

16. The NSW Police Facts Sheet shows that, on 4 June 2011, Mr Patel was gambling at the casino under his own membership number when he removed 25 gambling chips worth $1000 each from two tables; he dropped one and ran from the casino with the rest.  He was identified by means of his membership number and closed circuit television footage.  Police interviewed him several days later at his home.  He made full admissions and assisted police in their inquiries.  He admitted having a gambling addiction and was remorseful for what he had done.  He said he had become depressed after losing $30,000 at the casino that day. 

17. On 4 November 2011, Mr Patel was convicted in the Downing Centre Local Court of larceny in an amount greater than $5000 and less than $15,000.  He was placed on a good behaviour bond for 18 months and required to undertake “psychiatric/psychological counselling as directed” and to “continue in therapy for gambling addiction with Khoa Tran, psychological (sic)”.

18. Letters dated 7 September 2011, and 18 October 2011 from Mr Tran show that Mr Patel completed a course of eight sessions in gambling counselling at Sydney University’s Gambling Treatment Unit and a further three sessions of a ten-session program of cognitive therapy for gambling problems.  In a letter dated 2 August 2014, Mr Tran states that he followed up with Mr Patel by telephone in July 2012 at which time he reported no further gambling.

19. In a letter dated 29 October 2011 to the Local Court, Dr Michael Bishop stated he had been treating Mr Patel for the past year, and for the past six months for depression and anxiety and an associated gambling addiction; he had made good progress with both; he no longer required medication and had been “successfully rehabilitated from the gambling problem”.

20. In 2014, Mr Patel saw a psychologist, Mr Malcolm Desland, on four occasions on the advice of the solicitor who was assisting him with his application for citizenship.  In a report dated 19 December 2014, Mr Desland outlined Mr Patel’s background and the financial difficulties that led to his gambling, and associated depression and anxiety.  Mr Desland reported that Mr Patel stopped gambling after he was charged with the casino offence.  He administered a range of psychometric testing and concluded that Mr Patel’s problems with gambling and depression had been in remission for three years.

21. There is no evidence that Mr Patel has suffered from depression or anxiety, or has gambled, since 2011.  He has been in steady employment with the same employer for three years.  A Police Clearance Certificate issued by the Consul General of India in Sydney on 10 December 2013 shows there was “nothing adverse” against Mr Patel’s name which would have rendered him “ineligible for grant of travel facilities including visa/immigration/any other service for/in Australia”.  The Consul General issued a similar certificate in respect of Ms Patel.

    Legal proceedings in India concerning Mr and Ms Patel

22. According to information provided by the Australian High Commission in Delhi, legal proceedings were commenced in May 2012 against Mr and Ms Patel under the Negotiable Instruments Act 1991 (India).  It is not clear how the information came to the attention of the High Commission.  Mr and Ms Patel say it was provided by the complainant in the proceedings as part of an effort at blackmail.  They say the complainant is known to have commenced proceedings against numerous people including other members of their family.

23. Documents provided by the Australian High Commission show that a complaint was lodged against Mr and Ms Patel in the magistrates’ court at Bharuch, in Gujarat in May 2012.  The complainant alleged they had given cheques in relation to a business arrangement which were subsequently dishonoured.  Mr Patel estimates the amount in question is approximately $130,000.  If proven, it appears that conduct would breach s 138 of the Negotiable Instruments Act 1991 (India) which renders an offender liable to imprisonment for up to one year and to a fine or compensation equivalent to twice the value of the dishonoured cheque.

24. Mr and Ms Patel say they cannot return to India to defend the proceedings because the complainant would only try to extract more money from them and they could be drawn into protracted legal proceedings that could involve their passports being taken from them until the proceedings conclude. 

25. Mr and Ms Patel have obtained detailed written advice from two lawyers in India.  Copies are in evidence.  I accept that each document is genuine. 

26. Mr Jatin Vakil provided written advice addressed to the Tribunal to the effect that the Negotiable Instruments Act 1991 (India) only applies where a cheque is presented within six months from the date it is drawn or within the period of its validity, whichever is earlier.  His advice describes the procedures and time limits for bringing a complaint and advises that it does not appear the complainant has followed any of the statutory procedures.  In particular, the cheque was said to have been dishonoured on 1 March 2012, well after Mr and Ms Patel left India.  On this basis, Mr Vakil advised “if a petition for summarily dismissing the complaint is filed under section 482 of the Code of Criminal Procedure, then there is a strong likelihood of success and the complaint to be summarily dismissed/quashed and the same should be attempted”.

27. Speaking to the Tribunal by telephone from India, Mr Vakil confirmed his written advice.  He also advised that Mr and Ms Patel would not have to be present for an application for dismissal to be made.

28. There is no independent expert evidence available about the operation of the Negotiable Instruments Act 1991 (India) but Mr and Ms Patel understand, and Mr Vakil confirmed, that although a form of civil claim, criminal penalties including imprisonment for up to one year attach to a finding against an accused.

29. Mr Acharya Shrikrishna provided similar advice dated 5 November 2014 to the effect that the complaint cannot be sustained.  He suggests that “the accused need (sic) to file a petition for quashing of complaint under the provisions of s.482 of the Code of Criminal Procedure”.

30. An original statutory declaration sworn by Mohmednasir Jenuddin Shaikh before Mr Vakil is in evidence.  Mr Shaikh’s name and purported signature appear on the complaint as a co- complainant.  He states that he knows Mr and Ms Patel and has worked with them.  He states, in some detail, that nothing in the complaint is true and the signature purporting to be his is not.  He states he believes the complainant is acting out of revenge.  As best as one can tell, the statutory declaration appears to be genuine.    

    Character references

31. Mr and Ms Patel have provided written references from Mr Patel’s past and current employers, friends and neighbours, some of whom knew them in India, and the Minister at their church. 

32. In relation to references, the ACI’s recognise that referee reports can shed light on an applicant’s character but cautioned that decision-makers should note “the inherent bias in any reference which is submitted by an applicant in support of their citizenship application”: cl 10.6.5.  More weight should be given to references made as statutory declarations than those which are unsworn, and less weight should be given to references from family members because of “the societal expectation that family members would tend to support one another and play down unacceptable conduct”: cl 10.6.5.

33. Mr Hardik Vaghela provided a statutory declaration and gave oral evidence in person.  Mr Kekinkumar Patel provided a written reference and gave oral evidence by telephone. Mr Stanley Selvedurai also gave oral evidence by phone.  Mr Vaghela was aware of Mr Patel’s conviction; Mr Patel had some knowledge of it; Mr Selvedurai was not aware of it.  Each spoke highly of Mr Patel, and Mr Selvedurai who is a neighbour, spoke highly of Ms Patel.

34. Written references from the managers at Mr Patel’s former and current workplace speak highly of him.  His former manager writes that he is aware of his court appearance in 2011 but does not expand.   Other references from friends and neighbours speak highly of Mr and Ms Patel but do not refer to Mr Patel’s conviction or the complaint in India.  Again, I accept what the writers say but it is of limited assistance in helping me to determine whether Mr and Ms Patel are of good character for the purpose of these proceedings.

    Consideration

35. In relation to Mr Patel’s conviction of larceny, the Minister contends that it is relevant that Mr Patel had been in Australia less than three years when he committed the offence at the casino.  Further, that insufficient time has passed since the expiry of his good behaviour bond in May 2013 for Mr Patel to have demonstrated a pattern of good behaviour that would justify a finding that he is now of good character and is upholding Australian laws in accordance with cl 10.5.2.

36. The Minister also refers to Mr Desland’s and Dr Bishop’s reports which indicate that Mr Patel was suffering at the time of his offence from depression and anxiety and an associated gambling addiction.  The Minister refers to cl 10.5.2 of the ACIs, which states that claims of mental illness should be supported by a psychiatrist’s report.

37. I do not understand Mr Patel to rely on any formal diagnosis of a gambling addiction as a mental illness as a mitigating factor in his offending.  I read those reports, and accept what they say, as evidence that Mr Patel took steps to deal with his gambling problem, albeit that continued treatment was a condition of the good behaviour bond.

38. Taking into account the relatively short time that Mr Patel had been in Australia before he committed the larceny offence, the seriousness of the offence, and that barely two years have passed since he was free of the good behaviour bond, I think that insufficient time has passed in order to be satisfied that he is now of good character.  That said, there is much in Mr Patel’s favour: except for the pink batts period, which was not his fault, he has a history of steady employment in India and Australia; he had an unblemished record before and since the offence; and he has apparently rehabilitated himself such that the prospects of re-offending appear very low; and his referees speak highly of him.   

39. However, even if I were satisfied that sufficient time had passed since Mr Patel’s conviction, the claims in the complaint in India against him and Ms Patel cannot be ignored.  They are in the nature of allegations of fraud and, if there is any basis to them, would constitute serious offences for the purposes of the ACIs.  I accept the possibility that the complaint has no foundation but it nevertheless remains on foot and Mr and Ms Patel have not challenged it in any way.  I accept that they understood they had to be present in India to do so but Mr Vakil’s advice is that their presence is not required.

40. While it is not for me to judge the merits of the complaint against Mr and Ms Patel, there seems some reason to think it might be vexatious.  The complainant apparently relies on a cheque or cheques that were said to be dishonoured in March 2012, approximately three years after Mr and Ms Patel left India for Australia.  Furthermore, the statutory declaration of Mr Shaihkh, which appears to be genuine, suggests that his details, as they appear on the complaint, might not be genuine. 

41. Giving evidence, Mr Vakil was confident an application to have the complaint dismissed would be successful.  Whether or not his assessment is correct, Mr and Ms Patel need to take some steps to challenge the complaint, either by applying to have it dismissed or by defending it. Until that happens, it remains untested. 

    Conclusion

42. I have sympathy for Mr and Ms Patel.  In Ms Patel’s case, there is no reason, other than the proceedings in India, to suggest she is not of good character.   To resolve their situation, they need to take action that could cost considerable time and money.  However, if there is any substance to the complaint, it would be inconsistent with finding each of them to be of good character at this time. 

43. For these reasons I affirm the decisions under review.

44.       I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member. 

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Associate

Dated  29 May 2015

Date(s) of hearing		4 May 2015
Representative for the Applicants		Self-represented
Representative for the Respondent	Mr Tom Saunders, Clayton Utz