Oganesian and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 885

Oganesian and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 885 (9 November 2016)

Division	General Division
File Number	2016/0925
Re	Goarik Oganesian
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms A Poljak, Senior Member
Date	9 November 2016
Place	Sydney

1.    The decision under review is set aside.

2.    I decide in substitution that Ms Oganesian was, at the date of the Minister’s decision, a person of good character within the meaning of s 21(4)(f) of the Australian Citizenship Act 2007 (Cth). Subject to her satisfying other requirements under the Act, she should be granted Australian citizenship. 

.................[sgd].......................................................

Ms A Poljak, Senior Member

CATCHWORDS

CITIZENSHIP - good character - enduring moral qualities - whether Applicant honest and financially responsible - whether Applicant has been untruthful and practised deception or fraud in dealings with Australian government - mitigating factors - decision set aside and substituted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 21(4)(f), 24(1), 52

CASES

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Ms A Poljak, Senior Member

9 November 2016

INTRODUCTION

1. Ms Oganesian was born in Village Atapak, Azerbaijan in 1949, and first arrived in Australia on 12 January 1996. She claims to have travelled to Australia on a passport issued by the Soviet Union, which has since expired and is not recognised by any country. She claims, and firmly believes, that she is stateless. She says that she does not have a current travel document of any kind and will not be able to travel anywhere.

2. For the past 20 years, since her arrival in Australia, Ms Oganesian has been supported mainly by her son and daughter and in return she has been the main carer for her four grandchildren.

3. She lodged an application for Australian Citizenship on 14 April 2015, received by the Department on 21 April 2015 (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”).

4. On 30 January 2016, Ms Oganesian’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that Ms Oganesian was of good character for the purposes of section 21(4)(f) of the Act (“the decision”). Ms Oganesian has applied to the Tribunal for review of that decision.

5. The issue before the Tribunal in these proceedings is whether it is satisfied that Ms Oganesian is of good character in accordance with s 21(4)(f) of the Act.

   BACKGROUND

6. Ms Oganesian first arrived in Australia on a subclass 678 Tourist Visa. In November 1996 she lodged a Protection Visa application which was refused by the Minister’s delegate on 19 June 1997. On 20 October 1998, the Refugee Review Tribunal (“RRT”) affirmed the decision to refuse Ms Oganesian’s application for a Protection Visa.

7. During the period of 1999 to 2005 Ms Oganesian applied 6 times for Ministerial intervention under section 417 of the Migration Act 1956 (Cth) (“the Migration Act”).

8. In 2005, Ms Oganesian lodged an application for review of the RRT’s decision in the Federal Magistrates Court; which was ultimately dismissed. She then appealed the decision to the Full Federal Court in 2007. Her appeal was unsuccessful. As a result of this litigation, Ms Oganesian incurred significant debts still owing to the Commonwealth in the amount of $24,000 in costs (“Debt to the Commonwealth”).

9. On 15 February 2011 the Republic of Armenia issued a Certificate of Return to Ms Oganesian, which included a reference to her being a citizen of Armenia.

10. Following the cancellation of her bridging Visa E in February 2011, Ms Oganesian applied for ministerial intervention under section 417 of the Migration Act and unsuccessfully sought review to the Migration Review Tribunal to reinstate her Bridging Visa.

11. On 10 March 2011, Ms Oganesian applied for a protection (class XA) Visa on the basis that she was stateless. However the department did not accept her application.

12. On 5 February 2012, the Minister decided to grant Ms Oganesian a subclass 838 (Age Dependent Relative) (permanent) Visa under section 417 of the Migration Act.

    RELEVANT LEGISLATIVE PROVISIONS

13. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

14. Subsection 24(1) of that Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 52 permits a person to make an application to the Tribunal for review of the decision under section 24 to refuse to approve the person becoming an Australian citizen.

15. At the time Ms Oganesian lodged her citizenship application, she was over the age of 60. Accordingly the relevant provision in this matter is section 21(4).

16. Subsection 21(4) identifies the criteria which the Minister must be satisfied of before a person is eligible for Australian citizenship. Subsection 21(4)(f) provides that the Minister must be satisfied that the person “is of good character at the time of the Minister’s decision on the application”.

    DEFINITION OF ‘GOOD CHARACTER’

17. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy (Citizenship Policy).

18. As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

    “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 whilst the latter is a review of subjective public opinion…”

19. The Citizenship Policy states the phrase “enduring moral qualities” encompasses concepts of 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. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

20. The Citizenship Policy sets out a ‘non-exhaustive’ list of characteristics of good character at paragraph 15.3(d). Relevant to this matter, a person of good character would, inter alia: be honest and financially responsible, be truthful and not practise deception or fraud in their dealings with the Australian government, or other governments and organisations.

21. In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in citizenship applications:

    “The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s time when he can demonstrate a longer period of positive contribution to the Australian community.” (my emphasis)

22. In determining whether Ms Oganesian is of good character, the Australian Citizenship Instructions (“ACIs”) are also relevant. While the Citizenship Policy replaced the policy guidance content and prevails over the ACIs, they do operate side-by-side when there is inconsistency and provides additional guidance, particularly in regards to mitigating factors.

    HONESTY AND FINANCIAL RESPONSIBILITY

23. The Minister contends that Ms Oganesian has not been “honest and financially responsible” in managing her Debt to the Commonwealth and in her dealings with the Australian Government.

    Ms Oganesian’s Debt to the Commonwealth

24. As already stated, Ms Oganesian has an unpaid Debt to the Commonwealth totalling $24,000. The debt comprises of $6000, owed since February 2007 and $18,000, owed since 2009.

25. It is plain on the evidence before me that the Department sent numerous letters to Ms Oganesian between March 2007 and February 2009 advising her of her debt and seeking payment. There does not appear to be any correspondence from the Department to Ms Oganesian in regards to payment of the debt since February 2009.

26. I accept that there is no evidence before me that Ms Oganesian never made payments to reduce the debt until after her application for citizenship was refused. On 14 April 2016, Ms Oganesian accepted the Department’s proposal of paying $100 per month.

27. At hearing, Ms Oganesian said that she didn’t know about her Debt to the Commonwealth until after her application for citizenship was refused in January 2016. She was represented by Legal Aid at the time of appealing the RRT’s decision to the Federal Magistrates Court and to the Full Federal Court and said that she did not realise that the amount had to be paid, back in 2007 and 2009, because her “matter was still ongoing”.

28. The Minister submits that a person of good character would not have acted as Ms Oganesian has over the past nine years in respect of the debt, and that Ms Oganesian’s behaviour in respect of the debt is not in accordance with the standards of the Australian community. I find that there is little force to this argument given that the Department has not contacted or pursued Ms Oganesian for payment of the debt since 10 February 2009. It was Ms Oganesian who contacted the Department in October 2015, on her own volition, to organise payment.

29. On 14 April 2016, Ms Oganesian accepted the Department’s proposal of paying $100 per month in an effort to pay her Debt to the Commonwealth.

    Providing false personal information

30. The Minister contends that Ms Oganesian has provided false personal information to the Australian Government on a number of occasions for her own benefit and interests and submits that a person of good character would not provide false information to the Commonwealth as she has (allegedly). I do not agree for the following reasons.

31. The Minister submits that Ms Oganesian provided false information in her application for a Protection Visa on 10 March 2011 (“Protection Visa Application”). In that application Ms Oganesian declared that she did not have debts to the Commonwealth or to a public authority and then declared that information she supplied was “complete, correct and up-to-date in every detail”. The Minister contends that this information was clearly false because at the time she owed $24,000 to the Commonwealth and had been notified of the debt on multiple occasions.

32. At hearing, Ms Oganesian stated on numerous occasions that at the time of making the Protection Visa Application, she didn’t understand that she had a Debt to the Commonwealth. She said that because she did not borrow money from the Government or receive any money from the Government in the form of benefits, she believed she did not owe any money at that time. At hearing she stated that she did not understand that the legal fees from 2007 and 2009 were a debt owed to the Commonwealth.

33. Having regard to Ms Oganesian’s language difficulties and the lack of correspondence from the Minister to Ms Oganesian regarding her debt since February 2009, I am not satisfied that the provision of false or incorrect information in her Protection Visa Application was intentional and for her own benefit and interests. In any event, I am satisfied that a significant period of time has passed since Ms Oganesian completed and lodged her Protection Visa Application in 2011. In all the circumstances, I am not inclined to characterise Ms Oganesian’s provision of false information as evidence of her not being honest in her dealings with the Australian Government that suggests something about her character.

34. The Minister also takes issue with Ms Oganesian’s statements on the same Protection Visa Application and in her submissions, dated 1 June 2016 and 29 April 2016, that she was stateless. The Minister relies on the findings of the RRT and submits that Ms Oganesian was a citizen of Armenia.    

35. At hearing, Ms Oganesian explained how she was born in Village Atapak in Azerbaijan. She vehemently said that she was not a citizen of Armenia and that she was stateless. She travelled to Australia in 1996 on a passport issued by the Union of Soviet Socialist Republics (“USSR”). The passport was valid for five years and expired on 31 August 1999. A copy of the passport was provided to the Tribunal at hearing and I have no reason to suspect that it is fraudulent in any way. Her claim of being stateless is also supported by her Certificate of Identity, issued by the Australian Government on 21 February 2014, which states that her nationality is “unspecified”, and the Certificate of Evidence of Resident Status, issued by the Australian Government on 1 March 2012, which states that Ms Oganesian was born in the Russian Federation.

36. The Minister relies heavily on the decision of the RRT made on 20 October 1998 and a document titled Certificate of Return from the Republic of Armenia, issued in February 2011. The Certificate of Return appears to give Ms Oganesian permission to return to the Republic of Armenia. It states that the holder of the certificate is a citizen of the Republic of Armenia. The remainder of the document is not in English and no interpretation has been provided. However, the document does appear to state that Ms Oganesian is a citizen of Armenia.

37. The RRT, in its decision dated 20 October 1998, accepted that Ms Oganesian was born in what is now Azerbaijan and that she was issued with an Armenian passport in August 1995. The RRT said that this demonstrated that she was a person to whom Armenia had protection obligations and that she was recognised as an Armenian citizen. The RRT stated that it had a copy of the passport on the departmental file, and that it was issued by the Armenian government, in 1995, and was clearly stamped that it was the property of the Armenian government. I do not have this document before me and the description does not correspond to the passport from the USSR issued in 1994, which Ms Oganesian provided at hearing. It does not appear to be the passport of which the RRT refers to.

38. Having regard to the RRT’s decision in the entirety, and the evidence provided by Ms Oganesian at hearing, it is plain that she came to Australia to escape conflict between Azerbaijan and Armenia and that the government of Armenia actively assisted the displaced population. This may explain the inconsistency in the documentation before me. I am satisfied that Ms Oganesian came to Australia in difficult circumstances. I found Ms Oganesian to be an honest and frank witness and I am not persuaded by the submissions of the Minister that she intentionally provided false information about being stateless for her own benefit and interests.

39. The Minister also contends that Ms Oganesian provided false information in her Statement of Financial Details signed on 5 December 2015. In that document she stated that “I had no working permit for the past 17 years in Australia, nor got received (sic) government help...” The Minister submits that Ms Oganesian was granted a permanent Visa on 5 February 2012, which allows her to work, and that she had been eligible for Centrelink benefits since February 2014.

40. At hearing, Ms Oganesian confirmed that she couldn’t work prior to obtaining permanent residency and that she was allowed to work for three years. She said that prior to 2012 she did not have a working permit. Having regard to the fact that it took approximately 16 years for Ms Oganesian to be granted a permanent Visa, her language difficulties, and that she did not receive any Centrelink benefits until after 2014, some 18 years since her arrival in Australia, I am not inclined to find that the information she provided in her Statement of Financial Details was intentionally false and given for her own benefit and interests.

41. Finally the minister submits that Ms Oganesian has provided false information in claiming that she pays $180 per week in rent to her son and daughter-in-law. There is no evidence before me to suggest that this is false. I accept her evidence that she has lived with her son and/or daughter since her arrival in Australia. She states that the rent is a contribution to the household and I have no reason to disbelieve this.

    MITIGATING FACTORS

42. Ms Oganesian has provided a number of character references in support of her application for review. I have read and considered these statements carefully. They all speak very highly of Ms Oganesian’s character. In particular:

    (a)Kripa Shivamurthy states in a letter dated 22 April 2016, that Ms Oganesian possesses many fine qualities such as kindness, determination and patience and that she is a person of very good moral character. It is also stated that she is hard-working and tends a helping hand whenever needed. 

    (b)Michael Ghougassian from the St Gregory’s Armenian school says in a letter dated 16 August 2005 that Ms Oganesian has voluntarily worked in the school canteen since February 2004 for at least two days per week and that she is involved in many functions and is generally supportive and caring of the children at the school.

    (c)Aza, Sam states in his letter dated 1 June 2016, that Ms Oganesian is a selfless and beautiful person who deserves much love and support.

43. I also accept Ms Oganesian’s evidence that she has provided significant care to her four grandchildren over many years. She has significant ties to Australia and currently resides with her son and daughter-in-law.

44. I am satisfied that these mitigating factors outweigh any, misgivings about her alleged provision of false information to the Australian government.

    CONCLUSION

45. The decision under review is set aside. I decide in substitution that Ms Oganesian was, at the date of the Minister’s decision, a person of good character within the meaning of s 21(4)(f) of the Australian Citizenship Act 2007. Subject to her satisfying other requirements under the Act, she should be granted Australian citizenship. 

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Ms A Poljak, Senior Member.

.................[sgd].......................................................

Associate

Dated 9 November 2016

Date of hearing	29 August 2016
Applicant	In person
Solicitors for the Respondent	Mr T Aviram; Clayton Utz