Patel and Minister for Home Affairs (Citizenship)

Patel and Minister for Home Affairs (Citizenship) [2018] AATA 3466 (14 September 2018)
Division:GENERAL DIVISION
File Number: 2018/0819
Re:Pulkit Patel
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:14 September 2018
Place:Perth

The decision under review is affirmed.
...[sgd].....................................................................
Member C Edwardes
CATCHWORDS
CITIZENSHIP – criminal offences – failure to disclose criminal record – whether applicant of good character – meaning of good character – applicant found not to be of good character – pattern of dishonest behaviour – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(1), s 21(2), s 21(2)(h), s 24, s 24(1), s 24(1A), s 52(1)(b)
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)(a)
CASES
Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Lachmaiya and Department of Immigration and Ethnic Affairs, Re (1994) 19 AAR 148
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy, at 1 June 2016, Chapter 11
REASONS FOR DECISION
Member C Edwardes
14 September 2018
INTRODUCTION

This is an application for the review of a decision made on 29 January 2018 (T1 3-10)(R1) to refuse the Applicant’s application for Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The decision was made on the basis that the Applicant was not of good character at the time of the Minister’s decision.
The Application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision to refuse to approve a person becoming an Australian citizen under s 24 of the Citizenship Act.
BACKGROUND
The Applicant is a 35 year old citizen of India who arrived in Australia on 27 June 2007. The Applicant is an Australian permanent resident.
Previously, the Applicant was a holder of a Vocational Education and Training Sector (subclass 572) visa (T1 6)(R1).
The Applicant applied for a subsequent Vocational Education and Training Sector (subclass 572) visa on 25 June 2009. This was approved on 27 July 2009 (T1 6)(R1).
On 4 March 2010, the Applicant applied for a Skilled Independent (subclass 885) permanent visa and this visa application was approved on 6 July 2015 (T1 6)(R1). In this application, the Applicant answered “No” to the Character declaration “Have you or any other person in this application, ever been convicted of a crime or offence in any country?” (R2).
The Tribunal notes, however, the Applicant’s convictions on 11 February 2010. The Respondent’s Statement of Facts, Issues and Contentions (SOFIC) describes the circumstances surrounding the Applicant’s convictions in the following terms (R2 1):
6.On 7 November 2016, the Department received [sic] which indicated the applicant was convicted in the Burwood Local Court of the following two offences:

11.02.10

Larceny value, =$2000 – T2

Fined $200.

Costs – Court $76

11.02.10

Goods in personal custody suspected being stolen (not m/v)

Fined $200.

Costs – Court $76

An extract of the police report relevant to the Applicant’s conviction of “Larceny” states:
About 15:00 on Monday the 11th January 2010, the accused person… entered the ... Shoe Store…
At this time the accused has approached the store assistant … and has [sic] asked her if a pair of shoes he was holding would fit a child. The witness replied that as all children have different sized feet, the accused could purchase the shoes and return them with a receipt if they were the wrong size.
The witness has [sic] turned away from the accused momentarily to attend to another customer and a short time later noticed the box that the accused was holding was on the shelf empty. The witness looked towards the general direction of the store front and has seen the accused “walking very fast, almost running”.
The witness followed the accused and has [sic] stopped him near the front sliding doors to the Central Mall where she has [sic] sighted the shoes in the accused’s bag which was opened and exposed… (R3 14 and ST1 121)
An extract of the police report relevant to the Applicant’s conviction of “Goods in personal custody suspected being stolen” states:
…Whilst documenting the accused’s property Police [sic] discovered a Commonwealth Bank Mastercard in the name of …
…With regard to the credit card, the accused stated it belonged to a friend of his who lives in Australia but is currently on holiday in India. The accused stated that his friend said that he could use the card whenever he liked as long as he paid him back when he returns from India… (R3 15 and ST1 122)
The Applicant applied for Australian citizenship on 20 July 2016 (T6 80-99)(R1).
In the Applicant’s citizenship application, signed 18 July 2016, the Tribunal notes that the Applicant answered “no” to all questions in the “Character Declarations” section, including the question which asked if he had “…been convicted of, or found guilty of, any offences overseas or in Australia…” (T6 90)(R1).
On 25 May 2017, a delegate of the Minister (the Delegate) wrote to the Applicant requesting more information in relation to his criminal record (referred to in paragraphs 7 to 9 above). In particular, the Delegate noted that the Applicant had been convicted of “Larceny” and “Goods in personal custody suspected being stolen (not m/v)” (T9 105)(R1).
In a statutory declaration signed 5 June 2017, the Applicant supplied a character reference in response to the Delegate’s request in paragraph 12 (T10 114)(R1).
The Delegate wrote to the Applicant on 29 January 2018 advising him that his citizenship application had been refused on the basis that he had failed to satisfy section 21(2)(h) of the Citizenship Act. In other words, he failed to satisfy the character test (T1 6-10)(R1).
The Delegate stated:
If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused.
Unlike the Migration Act 1958, the term ‘good character’ is not defined in Citizenship legislation. Therefore, the Federal Court has used the ordinary meaning of the words, looking at dictionary definitions. Most cases have adopted the following definition from the full Federal Court judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs:
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.
In this context, ‘moral’ does not have any religious connotations but is concerned with right conduct, knowing the distinction between right and wrong, ethical behaviour etc. The phrase “enduring moral qualities” encompasses the following concepts:
1. characteristics which have been demonstrated over a very long period of time;
2. distinguishing right from wrong;
3. behaving in an ethical manner, conforming to the rules and values of Australian society.
Your Police Check Results Report indicates that you have been convicted of the following offences on the 11 February 2010:
• Larceny value <$2000
• Goods in personal custody suspected being stolen (not m/v)
Crimes of this nature are considered serious in the context of Citizenship Policy. I give your criminal conviction, and the nature of your offence, considerable weight.
On 20 July 2016 you lodged an electronic Citizenship application and in response to the Character declarations you answered no to being convicted or found guilty of any offences in Australia. I give considerable weight to the fact that you did not declare the offences.
On 7 November 2016 the Department received information from the National Police Checking Service· about the offences listed above.
On 25 May 2017 the Department sent you a letter to comment on the adverse information held by the Department and to provide any further information you wished to have considered in relation to your application.
On 6 June 2017 we received one character reference on a statutory declaration received by email written from a friend. I give this a little weight.
We did not receive a personal statement from you confirming that you were convicted of the above offences and your remorse for your actions. As you have not provided the circumstances surrounding your conviction or any mitigating circumstances that may have led to this offence I give considerable weight to this omission of information.
Due to your failure to declare the offence and provide a personal statement surrounding the circumstances, I am not satisfied that you have acknowledged the seriousness of the offence to justify the conclusion that you are presently a person ‘of good character’ (T1 8-9)(R1).
[Original emphasis]
On 20 February 2018, the Applicant applied to the General Division of the Tribunal for a review of the Delegate’s decision. The Applicant stated:
I am not satisfied with the decision make [sic] by department [sic] because I have submitted all correspondence reference documents for my good character certificate (T1 2)(R1).
The Applicant’s written submission offered explanations for the incorrect character declarations, the circumstances of the offending, and the factors which the Applicant believes relevant to the offending which he wishes the Tribunal to consider in making its decision.
The Tribunal notes that the Applicant is “very sorry and embarrassed” for marking

“No” on the questions about criminal offending and convictions on his citizenship application (A1 3-4). The Tribunal understands the Applicant’s position to be that it was a lapse in concentration and memory, and an expectation that he would have an opportunity to amend his application, that lead to the Applicant submitting an incorrectly completed application. In Exhibit A1 the Applicant said as follows:
SECTION 1 – Incorrect Character Declaration
Submission by [the Applicant] in relation to incorrect character declaration in citizenship application.
I am very sorry and embarrassed that in my citizenship application form in relation to Character questions, I marked as ‘No’ the question about any offence/conviction.
In Immigration forms in relation to both Character and Health matters, for me and for many others the answers mostly are all ‘NO’. Unfortunately, this tends to produce a consequent expectation [sic] that the answers will all be ‘NO’.
When I was completing my Citizenship application in July 2016 it was six-and a-half years after my conviction in February 2010. That offence being so long previous [sic] was not something about which I have constant and immediate recall. In fact, it is so long ago that it does not readily come to mind.
On the occasion on which I was completing the online Citizenship application form, I was in a hurry to start work. Unfortunately, at that same time my internet connection was running extremely slowly which was causing the process to lengthen. Additionally, I was in a hurry to complete the application before I had to go to work and to submit it. This caused me to complete the form and submit it as quickly as possible – but in doing so I created an error when I went through it too quickly and did not pick up that I needed to mark ‘YES’ at the question about offences because all the other responses were ‘NO’.
As English is my second language, I knew that I might make a mistake or two in the application. However, I thought that if I had made any mistakes I would have a chance later to correct any mistakes later on. I did not realise that I might not get the opportunity to fix up any mistakes later.
I had no intention to hide anything in relation to my offence because I know that in Australia court decisions are in the public domain and anyone can see what they are.
My situation was one of not paying sufficient concentrated attention to what I was doing and not attending to the exact wording of everything I had to read.
My lack of concentration when I was rushing to finish and submit the application and get to work on time caused me to miss that fact that the question relating to nominating any offences required a tick in the ‘YES’ box together with an explanation.
As I indicated above, I had forgotten about this incident which had occurred six-and-a-half years previously to when I was making the application. For me, it was something which I have forgotten. Recalling adverse occurrences can be both depressing and stressful and as a matter of course I seek to avoid this happening.
At the time of the offence and the conviction, I felt extremely guilty and remorseful about it and apologised to the relevant people and immediately paid the fines and court costs. Since then I have endeavoured to put the matter right behind me and to keep it from my mind because it is painful to recall and I try to avoid any reminding of it because it is stressful to do so.
Everyone has the potential to make a mistake and I have learned from mine. Consequently, there has been no repetition of any behaviour which contravenes any law or regulation at all since.
I promised myself at the time that such a thing would not happen again, and it has not and will not. Since then I have been extremely careful and attentive to all such matters. If I had had the opportunity to correct my wrong answer then I would have done so. I am sorry for what has occurred. It was due to my hurry, lack of concentration and wish to finish the task and submit the form before work when, in fact, I should have left it to a later occasion when I had more time to ensure that I had all answers correct.
SECTION 2 – Explanation of Circumstances of Conviction
At the beginning of 2010 I was a student on a student visa in Sydney where I was studying.
On or about Saturday 9 January 2010 I was at the Auburn Central shopping centre…
About three days later on 12 January 2010 I was scheduled to fly back to India for a holiday, returning to Australia on 2 February 2010. I was very excited to [sic] going back home for holidays and was thinking of the items I would buy for my family and especially for my nephew.
One of the gifts I wished to buy was a pair of black school shoes for my nephew.
I had withdrawn money from my bank account and I had more than enough for the shoes and other shopping.
Also, I was pressed for time to finish and submit student assignments before I departed. Additionally, I was excited to returning to my family and particularly my parents within a few days and was day dreaming a little and mentally preoccupied as I looked for last minute gifts.
I had seen a shoe store in the shopping centre and I went there to find a fine pair of shoes for my nephew. I found a pair of black school shoes which I believed would be very suitable and which cost, to my best recall, $19.99
However, I did not know my nephew's exact shoe size so I decided to phone him or his parents and find out the correct size and also looking for a kid inside shopping centre similar to my nephew [sic] age. At that time, I had the shoes in one hand and my mobile phone in the other and without thinking I went outside the shoe store with shoes in one hand while I phoned my nephew to ask his shoe size.
It is a fact that I took the shoes in my hand without informing or getting permission from the shop owner as I went outside to call my nephew. I was not even aware that I had the shoes in my hand.
It was to take a couple of minutes to make the phone call, confirm the correct size and go back into the store to buy the shoes. The fact that I actually had the shoes in my hand did not cross my mind as I was concentrating on the phone call and getting the information on the required size. That was what occupied my mind at that time.
However, the store lady saw me outside the store with the shoes in my hand – even though I did not realise I had them – and called shopping centre security and, in turn, the centre security called the police.
While all this was occurring, I was trying to explain that I had not realised I had the shoes in my hand and that I had only gone outside the store to phone and get the correct shoe size.
I explained that I had more than enough money to pay for the shoes and other things I might buy and police inspected my wallet and could see that I had an amount of cash. I [sic]
I was trying to say ‘sorry’ that I had had the shoes in my hand outside the shop without having any permission from the store lady. But they did not wish to listen to me at all. Consequently, I ended up at the local police station where they made some more inquiries about me but nothing came of those inquiries.
I did remember a police officer saying that I did not look like a thief. I said that I was not and that it was due to misunderstanding and miscommunication and that was due, in part, to English being my second language.
The eventual result was a conviction on having goods in my personal custody suspected of being stolen, and of larceny, and being fined $200 on each charge in the Burwood (NSW) Local Court on 11 February 2010.
The Tribunal notes the Applicant’s assertion that he was “extremely excited” about his upcoming holiday to India and that he believed this excitable mood had “clouded [his] thinking and thought processes” (A1). It is the Applicant’s evidence that he ”forgot” that he was holding the shoes when he exited the store and was distracted by thoughts of upcoming coursework for his educational course (A1). The Applicant further submitted:
Submission of factors for Consideration
In relation to this incident in which I was convicted of two offences relating to the same incident, I wish the Tribunal to take into account particular factors which I believe are totally relevant and explain why this incident occurred and that there was no premeditation or criminal intent on my part.
1) In the first instance, an excess of understandable excitement clouded my thinking and thought processes on the day and time of the offence. This was because of excitement at the fact that within three days I was departing to India for a holiday to see my family. I was extremely excited that within three days I would be seeing my family, relatives and friends again back home. My thoughts were very much on the joys of this reunion and that it would be so memorable. It was this mental outlook of anticipation, expectation and excitement which was in the forefront of my mind at the time when I was shopping.
Another part of this excitement is that I would be taking back to my family some gifts which I was buying just before departure. These gifts were a way of showing my family my gratitude for their support for my studies in Australia. In this gift buying my thoughts were centred on what I could buy for members of my family which they would most like and which they would most appreciate. With the issue of gift buying so prominent in my thoughts, I overlooked having the shoes in my hand as I stepped out of the shop because I was concentrating very much on ensuring that this gift of shoes for my nephew would be the right size.
Consequently, I briefly forgot that I had gone outside the shop premises with the shoes while I phoned for advice.
Additionally, my mind was also concerned with submitting work for my educational course before I departed for India on 12 January 2010. I was worried about getting this work done before I left Australia because I was unsure of how much time it would take and whether I would be able to complete it on time. This worry, when combined with my excitement at going home to India on holiday, caused me to be inattentive when I had the shoes in my hand in the shop and that inattention was the basis of my stepping outside the shop and inadvertently having the shoes as I was phoning to check on the correct shoe size for my nephew. Consequently, I was not paying attention to the situation when I was about to buy the pair of school shoes for my nephew in the shoe store.
2) I believe that the foregoing explains that my action in taking the shoes outside the shop while distracted with other significant personal thoughts was not premeditated or criminal. It was not the result of any intention or premeditation to steal a pair of boys school shoes valued at less than $20. It was a very human and momentary reaction to the circumstances in which I found myself. These circumstances   being excitement   and anticipation of returning, the desire to provide some joy to my family with gifts which I would take back and my wish to get the most appropriate presents which they would very much appreciate. It was with this state of mind that I inadvertently went outside the shop with the shoes while phoning to get the size information and, despite my explanations at the time, this act was seen as one of theft and not one of being mentally preoccupied with other thoughts which led to inattention and being considered to have deliberately set out to steal an item. That is not the case as I am an honest person as I believe the remainder of my information shows.
3) I am an honest person. I have never been involved in any other such matter. I am 35 years old. In all those 35 years there has never been any other matter which has contravened any law either in India or in Australia. In the first 24 years of my life in India, there was never any matter which contravened any law. My Indian Police clearance certificate attests to that. Since my conviction in February 2010, I have never come to the attention of Australian police in any way as my Australian Police Clearance certificate attests. So, in all my 35 years in both India and in Australia the only unlawful thing I have ever done is the matter of the conviction in February 2010. And   in this instance, as I have sought to explain in the foregoing, my contravention was not intentional, it was not premeditated and there was no criminal intent on my part. It was due overall to my lack of attention to the situation around me at the time due to my mind and thoughts being centred on all those matters I have described in paragraphs 1) and 2) above. My daydreaming about my forthcoming return to family and friends, my wish to give them suitable gifts and my desire to get the correct shoe size had simply captured my attention.
4) My conviction came as an overwhelming personal impact. This is something neither I nor anyone in my family had ever experienced. I found it was a matter which was very difficult to deal with on a personal level. The feelings of self-consciousness, guilt and embarrassment were very difficult to deal with. I committed myself to never allowing myself to be caught up in such an incident again. I resolved to ensure that I took all steps to avoid any circumstances which could pose any such matter in the future. I believe that the overall matter taught me a very valuable lesson in regard to conducting myself always to ensure that there could never be any suggestion of dishonesty in anything I do. My record since that occasion in 2010 demonstrates that I have ensured that everything I do is beyond reproach. This is shown in my Australian Police Clearance Certificate showing that since that occasion there has been nothing at all which I have done which has contravened the law. I have been exemplary in my life since then and will continue to be so. I made one inadvertent mistake on one occasion in 35 years for which I have been very sorry and from which I have learned to regard my reputation and status in the community as something to be protected, and I have done this in my life and my work. The statutory declarations attached attest to my being honest, trustworthy and reliable and a person of good character and reputation
I ask the Tribunal in its consideration of my appeal to take into account the foregoing matters which I believe demonstrate the behaviour of myself to be that of an honest person who made an inadvertent mistake through being inattentive to their circumstances on just one occasion in their whole life and   as [sic] learned from the subsequent feelings of embarrassment and guilt which ensure I would not contravene on any occasion again (A1 3-8).
LEGISLATION

Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Citizenship Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Citizenship Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under ss 21(2), (3), (4), (5), (6), (7) or (8) of the Citizenship Act.
Section 21(2) of the Citizenship Act sets out the general eligibility criteria to become an Australian citizen. Relevantly, s 21(2)(h) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision.
The term “good character” is not defined in the Citizenship Act. There is, however, guidance on the application of the “good character” requirement in the Citizenship Policy (“the Policy”). The Tribunal will apply Departmental policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The meaning of good character
Chapter 11 of the Policy provides guidance for assessing an applicant under the “good character” test prescribed by s 21(2)(h) of the Citizenship Act. Chapter 11 of the Policy cites Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432, in which the Federal Court noted:
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 whilst 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.
Chapter 11 of the Policy further states that “enduring moral qualities” encompasses the following concepts (see T5 68 (R1)):
·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 the Australian society.
Chapter 11 of the Policy states that the broad definition of “good character” means that (see T5 69 (R1)):
… a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes…
Chapter 11 of the Policy further provides that an applicant of good character would, amongst other things:
·respect and abide by the law in Australia and other countries
·…
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·…
·… not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)…
Chapter 11 of the Policy also provides that in weighing up whether an applicant is of good character, decision makers are required to apply community standards, not their own personal standards, and question whether any mitigating circumstances and/or explanations provided by the Applicant outweigh the Applicant’s behaviour in question. Decision makers are to consider factors including:
·would a person of good character have behaved the way the Applicant did;
·what is there to demonstrate that the Applicant has upheld and obeyed the law;
·has the Applicant behaved in accordance with Australia’s community standards; and
·does the Applicant share Australia’s democratic beliefs and respect its rights and liberties.
(see T5 72-73 (R1))
Chapter 11 of the Policy states that: “A decision maker needs to look holistically at an applicant’s behaviour over a lasting and enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application (T5 73)(R1)”.
The Policy states that “[r]eferee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application (T5 78)(R1)”.
When considering whether an applicant who has had previous criminal convictions is a person of good character, Deputy President Wright in Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 stated at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
ISSUE
The issue for review by this Tribunal is whether the Applicant was, as at 29 January 2018 (the time the Minister decided to refuse the Applicant’s citizenship application), of good character for the purpose of satisfying s 21(2)(h) of the Citizenship Act.
EVIDENCE
The matter was heard in Perth on 30 August 2018. The Applicant appeared in person and was assisted by an interpreter. The Respondent was represented by Mr Gerrard who was instructed by the Australian Government Solicitor.
The Tribunal received the following evidence:
·Exhibit A1 – Applicant’s submission dated 29 May 2018;
·Exhibit A2 – Statutory Declaration by Nitin Babubhai Satani dated 16 April 2018;
·Exhibit A3 – Statutory Declaration by Trevor Harris dated 16 May 2018;
·Exhibit A4 – Statement by Trevor Harris dated 11 May 2018;
·Exhibit A5 – Statutory Declaration by Sunny Mattu dated 22 May 2018;
·Exhibit A6 – Statutory Declaration by Nileshkumar Arvindkumar Mistry dated 22 May 2018;
·Exhibit A7 – Character reference by Dhanji Raghwani dated 22 May 2018;
·Exhibit A8 – Statement by Himanshu Jani dated 27 April 2018;
·Exhibit A9 – Applicant’s National Police Certificate dated 24 May 2018;
·Exhibit A10 – Applicant’s Indian Police Clearance Certificate dated 15 May 2018;
·Exhibit A11 – Applicant’s Statutory Declaration dated 16 April 2018;
·Exhibit A12 – Applicant’s Submission dated 26 August 2018;
·Exhibit R1 – T documents (T1-10 pp 1-114) filed with the Tribunal on 20 March 2018;
·Exhibit R2 – Respondent’s SOFIC dated 13 July 2018 and the attached application for a skilled visa;
·Exhibit R3 – Summonsed Documents from New South Wales Police Commissioner, including the police statement dated 11 January 2010; and
·Exhibit R4 – Respondent’s Hearing Certificate.
The Tribunal also received on 17 August 2018 supplementary T-documents from the Respondent containing relevant extracts from Exhibit R3.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Evidence at the hearing
The Respondent’s opening statements at the hearing reflected it’s SOFIC. The Respondent was concerned at the number of times that the Applicant exhibited dishonest behaviour. The Applicant’s dishonest behaviour extended from the nature of his convictions, the filling of his application for a permanent visa, to the filing of his application for citizenship. The Applicant’s lack of transparency was a particular concern to the Respondent.
The Applicant claimed that his offences occurred eight years ago, and that he was ashamed and sorry for his actions. The Applicant provided three witness statements attesting to his good character. He claimed that the permanent visa application was filled in by a migration agent, who made a mistake. The Applicant agreed that he completed his citizenship application.
Applicant’s evidence under cross-examination
Under cross examination, the Applicant:
·confirmed that he had two convictions, “Larceny” and “Goods in Personal Custody Suspected of Being Stolen;”
·outlined the circumstances of the offences, which appears to the Tribunal to be inconsistent with the police statement provided in Exhibit R3;
·agreed that he pleaded guilty to both offences on the basis of the facts and evidence provided by the police in relation to both offences;
·initially disagreed with some of the facts in the police statement supplied to the Tribunal (R3). After being further questioned by the Respondent, the Applicant finally agreed to parts of the police statement;
·was cross examined in relation to his conviction of “Goods in personal custody suspected of being stolen,” where the Tribunal found further discrepancies in the Applicant’s evidence and the police statement at Exhibit R3;
·was referred to a part of Exhibit R2, entitled “General Skilled Migration Applicant Form.” The Applicant claimed that this application was completed by a migration agent. The Applicant however, did not produce any evidence to substantiate this claim. The Tribunal notes the following:
oat page four of the form, the following question was asked – “Did you receive assistance in completing this form?” to which the Applicant responded “No”;
oat page five of the form, the following question was asked – “Have you or any person in this application, ever: been convicted of a crime or offence in any country (including any conviction which is now removed from official records?” to which the Applicant responded “No”;
othe Applicant could not recall what information he had provided to the migration agent;
othe Applicant agreed that he did not tell the migration agent of his convictions;
othe Applicant did not provide any evidence in the form of a contract, payments or correspondence to substantiate that a migration agent did indeed fill in his permanent visa application (subclass 885);
othe Applicant stated that he failed to disclose his conviction in his application for citizenship because he forgot about his convictions. The Tribunal notes however, in his statement at Exhibit A1 the Applicant states that he was overwhelmed with grief over the circumstances that led to his convictions; and
othe Applicant apologised for not disclosing his offences.
Mr Satani’s evidence
The Applicant called Mr Satani as a character witness. His Statutory Declaration is contained at Exhibit A2.
From evidence provided to the Tribunal, the Tribunal notes that Mr Satani:
·is a business partner of the Applicant;
·confirmed the content in his Statutory Declaration in Exhibit A2;
·has been in business with the Applicant for two years;
·has never had issues of proprietary with the Applicant during this time;
·sees the Applicant as hardworking and honest;
·has known the Applicant since 2011 (see Exhibit A2);
·stated that he set up a business with the Applicant in 2016. When registering the business, the Applicant was required to provide the relevant authorities with a police statement. The Applicant disclosed his convictions and filled in all forms required for registration accurately and comprehensively; and
·discussed with the Applicant his convictions and was satisfied with his explanation.
CONSIDERATION
The issue is whether the Applicant was of good character at the time of the decision to refuse his citizenship application (29 January 2018).
Was the Applicant of good character at the relevant time
The Respondent in its SOFIC contends (see R2):
21. The respondent contends larceny and possession of stolen goods are serious offences. Whilst it is true that the offences were committed some time ago, it is equally the case that the applicant has not accepted full responsibility for his actions. In his statutory declaration the applicant states:
I was caught in Sydney for larceny of item from store back in 2010, that time I was on student visa and wasn’t fully aware of the Australian laws. I also convicted [sic] the crime in court and I feel guilty for my offence which I have done unwittingly, I also paid the fine to court straight after the decision was accomplish. [sic]
22. The applicant’s statement that he “wasn’t fully aware of the Australian laws” and committed his offence “unwittingly” is evidence that he does not accept his culpability. This is further evidenced by the claim in his submission that he had simply left a store having forgotten that he was carrying a pair of shoes. The respondent contends that this is not a plausible explanation and should be rejected by the Tribunal.
23. It has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character (see Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Al Temimi v Minister for Immigration and Border Protection [2014] AATA 97, Beyan v Minister for Immigration and Border Protection [2015] AATA 256). That is equally clear from the Citizenship Policy cited above.
24. In his submission to the Tribunal the applicant puts forward the following explanation:
When I was completing my Citizenship application in July 2016 it was six-and-a-half years after my conviction in February 2010. That offence being so long previous was not something about which I have constant and immediate recall. In fact, it is so long ago that it does not readily come to mind.
On the occasion on which I was completing the online Citizenship application form, I was in a hurry to start work. Unfortunately, at that same time my internet connection was running extremely slowly which was causing the process to lengthen. Additionally, I was in a hurry to complete the application before I had to go to work and to submit it. This caused me to complete the form and submit it as quickly as possible and did not pick up that I needed to mark “YES” at the question about offences because all the other responses were “NO”.
As English is my second language, I knew that I might make a mistake or two in the application. However, I thought that if I had made any mistakes I would have a chance later to correct any mistakes later on. I did not realise that I might not get the opportunity to fix up many mistakes later.
I had no intention to hide anything in relation to my offence because I know that in Australia court decisions are in the public domain and anyone can see what they are.
My lack of concentration when I was rushing to finish and submit the application and get to work on time caused me to miss that fact that the question relating to nominating any offences required a tick in the “YES” box together with an explanation.
As I indicated above, I had forgotten about this incident which had occurred six-and-a- half years previously to when I was making the application. For me, it was something which I have forgotten. Recalling adverse occurrences can be both depressing and stressful and as a matter of course I seek to avoid it happening.
At the time of the offences and the conviction, I felt extremely guilty and remorseful about it and apologised to the relevant people and immediately paid the fines and court costs. Since then I have endeavoured to keep it from my mind because it is painful to recall and I try to avoid any reminding of it because it is stressful to do so.
25. The respondent contends that the Tribunal should not accept the applicant’s explanation as credible as this is not the only occasion where the applicant has not disclosed his criminal convictions. The applicant lodged an application for a Subclass 885 Skilled-Independent visa on 4 March 2010. In that application the applicant answered “No” to the Character declaration “Have you or any other person in this application, ever been convicted of a crime or offence in any country?”. This false declaration was made less than a month after he had received his convictions on 11 February 2010. What is equally concerning is that in support of his application for that visa he attached an Australian Federal Police Check dated 26 November 2009 which pre-dated his offences.
26. The respondent contends that the failure to disclose his convictions on two separate occasions together with his conviction reveal a pattern of dishonest behaviour that is indicative of a lack of good character. It is at the very least evidence of an inability to distinguish between right and wrong. Put simply, and in the context of the Citizenship Policy, a person of good character would not have behaved in this way”.
The Applicant submits, in A1 at pages 8-10, the following:
SECTION 3 – Good Character – Reasons
…
I submit that in terms of the ordinary meaning of good character – which is the context used by the decision-maker – I was of good character at the time of decision, 29 January 2018.
Personal Statement and Personal Confirmation:
The decision maker has noted that I did not provide a personal statement about my convictions and their seriousness and that this contributed to the negative decision. In regard to these matters, I submit that I did not provide the type of personal statement which was expected because of my general ignorance of the way in which the citizenship process worked. I did not understand – as I now do – that I should have provided a comprehensive account of all relevant matters at the earliest possible time. My failure to do so was down to a lack of real understanding of the way the process worked. Similarly, in relation to the decision maker's notation that I did not confirm my convictions, again I did not believe this was required of me. I did not believe this was required of me because these offences were clearly identified in my police clearance certificate. Consequently, I did not believe that I needed to confirm them. I considered that the confirmation in the police clearance certificate would be sufficient. I thought for me to confirm the convictions additional to the police clearance certificate description of them would be superfluous. If I had known that a decision maker would look for such specific confirmation from me then I would have included that.
Enduring Good Character – One Offence in 35 years
My contention that I was of good character at the time of decision is based on the fact that a person's moral quality in relation to the Citizenship Act relates requires their good character to be confirmed in an enduring context. My circumstances are that at the time of decision I was aged 35 and in those 35 years I had not ever been guilty of contravening any law in either India or Australia except for my conviction of two connected offences on 11 February 2010. This absence of any other offences is attested to by Police clearance certificates from the Indian and Australian police jurisdictions.
Enduring Good Character – No Offence in Eight Years
Then, from the time of those two convictions in February 2010 to the time of decision on 29 January 2018 – a period of eight years – there is not one matter on which I have contravened any law anywhere or come to attention on any matter – criminal or civil – anywhere. This is a further demonstration that my good character is of an enduring quality. Also, it demonstrates that since the time of my convictions I have demonstrated that I have ensured that I have exhibited a reformed character in relation to those convictions in that I have not since come to any attention in any capacity on legal, police, social or community matters. In other words, I believe that two convictions on the one matter in 35 years with no further criminal or other contravention in the eight years since that one occurrence is an effective demonstration of my being of good character over a very long period of time. [sic]
Good Character – Abiding by the Law
Good character also requires one to abide by the law not only in Australia but in all countries. I believe that my 35 years spent in India and Australia collectively in which I have on transgressed on only one occasion shows that I do consistently and continuously obey the laws of the countries in which I live. I believe, in particular, that having lived in Australia for a total of 11 years and in that time have contravened the law on only one occasion again demonstrates that I do have an effective and enduring obedience of the law in this country. I believe significant weight should be given in my case to the length of law-abiding time – eight years – which has elapsed since the occurrence of my two convictions and the time of decision.
Good Character – Honest and Financially Responsible
Good character also requires one to be honest and financially responsible in terms of all such matters including taxation and business affairs. In all the years in which I have been in employment I have never contravened any financial requirements. There are no matters of taxation or payments to governments or payments to any other entities in which I have made any transgressions or been guilty of any non-payment. Now, in being a joint proprietor of a business, the same applies. My good character in carrying out business activities is supported among the statutory declarations which I have attached and form part of this submission.
Good Character – No Involvement in Crime, Violence, Drugs, Anti-Social Behaviour
Good character also requires one not to be involved in violence, drugs, unlawful sexual activity or anti-social behaviour. Again, I submit that as I do not and never have had any involvement in such activities – as demonstrated by my police clearance certificates – this also supports my contention that I should be regarded as a person of enduring good character despite one blemish in 35 years.
Good Behaviour – Recognition, Remorse, Rehabilitation
Good character also requires that in the event of any conviction there should be recognition of the fact together with remorse for the offence and evidence of subsequent rehabilitation. My conviction of the two offences in February 2010 caused me acute embarrassment among my friends and associates and this feeling was even greater because it had occurred in Australia where I had been given the opportunity of furthering myself through being able to study in this country. Given my personal discomfort at these convictions, I believed that I then had to show through future exemplary conduct that I had recognised the seriousness of what I had done and that I needed to undertake activities to show that I had taken direct steps both to acknowledge remorse and to evidence rehabilitation. As evidence of my efforts in these directions I cite my membership since 2011 – one year after my convictions – of Bochasanwasi Shri Akshar Purushottam Swaminarayan Sanstha which is a global sociolspiritual organisation committed to good work in the community. I attend weekly at the Perth BAPS Swaminarayan Mandir (Temple) where I am a regular volunteer in its community assistance activities. These volunteer community activities in which I participate include blood donation, educational seminars, disaster-relief fundraising, a variety of children and youth activities as well as environmental and social activities. I believe my contributions through this organisation demonstrate my commitment to rehabilitation since 2010 and the direct steps I voluntarily have taken to achieve this. An accompanying statutory declaration from the director of BAPS Australia (Bochasanwasi Shri Akshar Purushottam Swaminarayan Sanstha) attests to this.
Good Behaviour – Lifestyle, Employment and Evidence from References I consider that my enduring good character is shown in ongoing good behaviour in my modest, law-abiding lifestyle which contains no excesses and in my record of always being employed and having previously been a successful student on student visas in Australia. Over time in Australia I have succeeded in becoming a permanent resident and now am a partner in a business – Pultin Enterprises Pty Ltd – which operates a newspaper delivery service in a Perth suburban area. In this business operation, I am known to a number of people and there have been no occasions where there has been any problem, issues or difficulties in my business dealings whether financial or non-financial. The business has a clientele of customers and, in turn, it is a client of other businesses. In none of these relationships have there been any financial problems such as non-payments, late payments or any avoidance of financial responsibilities. Additionally, accompanying this submission is evidence from referees in the form of statutory declarations which attests to my good character and qualities of honesty, trustworthiness and good reputation.
[Original emphasis]

The Applicant further submits ( in A12):
Matter 1
[in relation to]… Answering “No” in my Citizenship application to the question of whether I had been found guilty of or convicted of any offences overseas or in Australia.
The first matter is that in my citizenship application I concealed information about two 2010 convictions. This is completely wrong. I submitted my 2015 Australian Police Clearance certificate when the Immigration Case Officer asked for it in relation to my Skilled Independent (Class VB, subclass 885) application. That 2015 AFP Police Clearance certificate showed the convictions. So, I provided formal official disclosure of those convictions by way of that police clearance certificate.
While I inadvertently in the application did not mark “Yes” in relation to two 2010 convictions through not paying due attention to what I was doing, the fact is that the application was accompanied by a 2015 AFP police clearance certificate which clearly identifies my convictions. This means that I was concealing nothing and the citizenship authorities were totally aware of my convictions.
Matter 2
In relation to the police information about the credit card which was in my possession and allegedly suspected of being stolen, that information is wrong.
That information is completely inaccurate. That CBA credit card which belonged to my friend Sarabjeet Singh and which I had in my wallet had been given to me by Mr Singh for safekeeping while he returned to India on holiday. Mr Singh had also left various household goods at my house […] because he had left his previous accommodation and had not moved to new accommodation and would not do so till he returned from India.
The police allegation in this information to the AAT that the credit card was suspected of being stolen is clearly refuted by the declaration made by Mr Sarabjeet Singh which is attached.
In this statement, Mr Singh clearly states that he left his credit card with me for safekeeping and that the transaction record for the card showed that it had not been used by me.
This shows that the police statement about the credit card being suspected of being stolen is completely wrong. Also, this credit card was never returned to me.
Matter 3
In relation to the information from the police as provided to the AAT, the police further claim that “The accused is unable to provide an address for his friend or any other contact information” is similarly totally wrong.
I was able to provide Mr Singh’s telephone contact number because that was in the contact list in my mobile phone, but police prevented me from doing this. At the police station, the police had confiscated my mobile phone and it was lodged with the custody officer while I was questioned. When I was asked about a contact for Mr Singh, I asked the police officer for my phone so that I could access Mr Singh’s phone number from the contact list in my mobile phone. However, the police refused to allow me access to my phone and I could not give them the information they asked for.
The police have completely misrepresented the situation and myself in saying that “the accused is unable to provide...any other contact information”. I could have provided Mr Singh’s phone contact details within seconds if the police had simply allowed me access to my phone which they had confiscated. But despite my representations on this, they refused to allow me access to my phone and its contact list of phone numbers among which was Mr Singh’s. The phone remained with the police custody officer and I was not allowed to access it and, consequently, could not provide the police with the requested contact information for Mr Singh even though I asked repeatedly to be allowed to do so as I was being questioned.
In reference to the police request for an “address” for Mr Singh, as I have explained above – and as Mr Singh has explained in his statement – Mr Singh had left his previous accommodation and had not yet obtained new accommodation, so I was unable to provide a residential address for him.
However, it is a total misrepresentation to say that I was unable to provide “any other contact information” for Mr Singh. I could have provided his phone contact. His number was in the contact list in my mobile phone. But the police would not allow me to access to my phone while my interrogation was taking place. Consequently, I could not give the police the phone contact for Mr Singh.
Mr Singh had left household and other goods and his credit card with me because he considered me an honest and trustworthy person.
Matter 4
Two offences in Burwood Local Court on 11 February 2010
At that period of time the shopping centre was very busy... I went outside the shop looking for a kid on whom I could check the size of the shoes. The shop lady followed me out and I went with her back into the store. But instead of listening to my explanation that I had unwittingly walked out of the store and she called the shopping centre security. She told them that I took the shoes without paying. After that, shopping centre security directly called the police and reported this. The police took me to the nearby police station.
They took my phone and wallet. At that time I had $1787.40 in cash with me in my wallet. I had withdrawn most of that from my CBA bank account that same day before the incident in the shoe store because I was just about to return to India on holiday. Additionally, I had the transaction printout from the bank for the withdrawal of the funds from my bank account and I showed that to the police. I told the police that in my wallet I had more than enough money to buy shoes, so why would I steal a pair of shoes which worth only $39.95?
Another misrepresentation is that a witness reportedly said I was “walking very vast [sic], almost running”. This is not correct. If I had been “almost running” away, then why would I have immediately returned to the store with the shopkeeper lady when she approached me in the shopping centre.
I explained that I was not running away from the shopping centre. I had immediately gone back into the shoe store as requested with the shoe store lady to explain the situation. Then, after she called the shopping centre security, I had similarly tried to explain the situation to the security guard. But, as I explained above, they directly called the police.
I felt really sorry and remorseful for what had happened because my actions were completely unwitting because I had done it unintentionally and unconsciously.
When I was convicted in court, I felt guilty, ashamed and embarrassed for my offence which I had done unthinkingly. I also paid the fine to the court straight after the court decision.
I am not the type of person to be involved in any kind of crime at any time. My previous police check history through Police Clearance Certificate from India (Submitted into my Residence visa application) shows that for all my life in India I never committed any crime whatsoever.
I have been residing in Australia for more than 10 years. I have worked at many big companies such as Brownes Pty Ltd., Lion’s Dairy, Gage Road Brewery Pty Ltd., Coca-Cola and Clontarf School working with children. At present, I work in my own newspaper delivery business and Domino’s pizza delivery. I submitted my AFP Clearance certificate in my job applications and also to The West Australian Newspaper. In these circumstances, I explained my past offence and they have also been satisfied that I am a person of good character.
I am a genuine Australian taxpayer who pays his tax on time every year. I have also started my own newspaper delivery business which I have had for 2 years. In my newspaper delivery round I have around 500 customers. I am doing conventional home deliveries at night time to them. In some places the customers have open yard-parking at their houses where there are valuable items and in my business area there are many shops where I deliver magazines and newspapers and for that I have an access key to their premises. But none of them have ever experienced any kind of misdeed or reportable activity from me.
I am doing volunteer works like Housekeeping, food preparation, Prasad veteran seva, decorating the hall on several meeting Sabha, inviting people by sending mails and also meeting them personally at their home for calling them to come at temple for Sabha at BAPS Cultural centre…
Matter 5
Answered “No” to Character declaration “Have you or any other person in this application, ever been convicted of a crime or offence in any country?” in application for Subclass 885 Skilled-Independent visa on 4 March 2010.
This is something that I was unaware of until the recent response from the Department of Immigration in relation to my appeal to the AAT.
This is because my Skilled Independent (Class VB, subclass 885) application was completed by, and lodged by, a migration agent,[…] under the business name Prudential International Education Service.
As per my best knowledge, I did provide all the information which I was meant to provide to the migration agent for the application. However, I did forget to tell him about the offence, and the explanation of what had occurred. The reason why I forgot to tell him was because I already had faced the court and paid the fine. In doing that it showed that I did accept my guilt and I made a promise to myself that I would not make this kind of mistake again in my life ever.
Although, the form was filled in and completed through the migration agent, he did not ask me about a new the police clearance. Also, he did not ask me about any past offence which is necessary to put in the application form. Another mistake that happened with the migration agent when he filled out the form was that he did fill no—offence in the form by mistake. In fact, if the migration agent had asked me any question at all about the offence, then I would definitely have told him that he should write “Yes” because I am not the sort of person to hide anything from my lawyer or migration agent.
I was mentally satisfied with the application for Skilled Independent (Class VB, subclass 885) visa. Because it was lodged through my migration agent, therefore, it should not have had any mistakes in it.
But when the response from the Department of Immigration came to the AAT in relation to my appeal over the refusal of my citizenship application, that was the first time that I came to know of this mistake in the application form of the Skilled Independent (Class VB, subclass 885) visa application.
Matter 6
Immigration has said:
PAGE 4:
Point 22 - The applicant’s statement that he “wasn’t fully aware of the Australian laws” and committed his offence “unwittingly” is evidence that he does not accept his culpability.
The Department of Immigration’s linking (above) of my use of the word “unwittingly” in describing my action with the claim that this use of it is “evidence” non-acceptance of “culpability” is mischievous at best and a total semantic misrepresentation at worst.
“Unwittingly” means “unknowingly”, “unconsciously”, “inadvertently”, “unplanned”.
As a word, it has no connection with culpability or relationship to culpability. For the Department of Immigration to state that because I described my action as “unwittingly” it meant that I did not accept my culpability is an outrageous slur.
It is totally wrong to say that I do not accept culpability. I have consistently said that I am very sorry and remorseful for what has happened. It is unfair and unreasonable to take my explanations of events as somehow indicating that I do not accept culpability. My public acceptance of my culpability was shown when I pleaded guilty in open court to the offence. Then at every opportunity since then I have sought not just to explain what happened and the circumstances but also to express remorse, regret and embarrassment as is shown in what I have previously tendered.
Firstly, I would like to apologise on behalf of my migration agent and myself and would like to say sorry for the mistake in the application form for the Skilled Independent (Class VB, subclass 885) visa.
I would like to request the Department of Immigration to please give me the chance to make amends for my mistake in that application. What happened was by mistake.
Moreover, as I did plead guilty and pay the fine I have moved forward and committed myself to not repeating this kind of mistake in my life ever. This has been evidenced in the 8 years from February 2010 to the present time in which 8-year period I have done nothing at all wrong. I am happy to provide references in order to prove my good character.
This current 8-year unblemished period – and all my previous unblemished life – demonstrates that I am an honest person, a person of good character and that the offence that happened was by mistake and totally out of character. I was day dreaming when I was in the shoe store as I was going overseas to India in a couple of days and the thought in my mind was to buy a pair of shoes for my nephew.
As I had other bags in my hand, unwittingly I took the shoes with me when I was leaving the shop. Immediately I realised that I was, in fact, returning to the shop to give them back. Unfortunately, the lady who was working at the shop thought that I was stealing. I tried to explain to her that it was a mistake and I was bringing them back but she did not give me any chance to explain. Instead, she called the shopping centre security guard. As a result the police came and took me the police station. The result was an appearance in court and a fine which I paid immediately.
Since then and for the future, I am extremely careful not to do anything that is wrong and promise not to make any mistake mistakes in the future.. To prove my good character, I am happy to provide the references.
In future, with what has happened with my mistakes I would like to say to the Department that I am extremely sorry and please accept my apologies and give me a chance to prove myself.
I am not trying to hide anything from the department related to by past convictions. The tendering of my 2015 AFP police clearance which shows by 2010 convictions with my citizenship application is evidence that I was not hiding anything with my application because that clearance certificate clearly evidences to the Department my convictions. I also feel guilty, remorseful and embarrassed for my actions.
Summary
Section 21(2) (h) of the Australian Citizenship Act on citizenship eligibility says that eligibility requires the Minister to be satisfied that I am of good character at the time of the Minister’s decision on the application. For the refusal of my application, emphasis has been put on the fact that I did not identify in my application that I had a conviction. It appears to be implied that I was hiding this.
However, nothing can be further from the truth because the fact is that in 2016 when I applied for citizenship, I attached with the application a 2015 Australian police clearance certificate which evidenced my convictions.
So, accompanying my citizenship application was the clearest evidence in the form of an Australian police clearance certificate that I had been convicted of two offences. My convictions were there clear to see and to know by the citizenship authorities. I had concealed nothing.
I have explained how omissions were made, but there is no omission about my convictions in my citizenship application documentation because the 2015 police clearance certificate from the Australian Federal Police clearly shows my convictions. So, they were not concealed in any way by me and it is a misrepresentation to suggest that given that that evidence was submitted with my citizenship application.
Consequently, given that the Police clearance information showing my 2010 convictions was given to the Department with my citizenship application it is totally clear that I had not concealed those convictions from the Department.
Also, given that those convictions were 8 years previously, and all my unblemished life since then and before then, I submit that at the time of the Minister’s decision I was, in fact, a person of good character as required in Section 21(2)(h).
Having considered the latest statement of the Applicant (A12, see paragraph 45 of this decision), the Tribunal is concerned that the Applicant on two occasions failed to disclose his criminal record in respect to significant applications, one for his permanent visa application, and the second being an application for Australian Citizenship.
Whilst the Tribunal notes that the Applicant has attempted to explain the circumstances surrounding his lack of attention to the disclosure of his criminal convictions the Tribunal is not satisfied that the misunderstandings or the speed at which the forms were filled in were a sufficient excuse for not declaring his convictions.
Nor is the Tribunal persuaded by the explanation relating to his permanent visa application, that the Applicant’s permanent visa application was a mistake that was made by a migration agent. The Tribunal is not persuaded that a migration agent completed the Applicant’s visa application. In any case, the Tribunal is of the opinion that the responsibility for the declaration made in the permanent visa application rested with the Applicant and not his migration agent.
It is not clear to the Tribunal why the Applicant has consistently, and in the view of the Tribunal deliberately, failed to declare his criminal record when required to do so. One thing is clear to the Tribunal; it is not due to carelessness or being generally sloppy in filling out forms.
The Tribunal has been told, in references provided, that the Applicant is diligent, has good attention to detail and understands business operations. The Tribunal notes that the Applicant has worked for large companies, runs his own newspaper delivery business and pizza delivery business. According to the Applicant’s own evidence, he pays his taxes regularly and on time.
The Tribunal was also advised by Mr Satani that in 2016, the Applicant completed all the forms required to register his business. In this process, the Applicant was required to include a police clearance statement.
The Tribunal finds that the disclosure of information relating to the Applicant’s convictions represents a critical piece of information to both his visa and citizenship applications. The Tribunal finds that the Applicant’s non-disclosure of information is unlikely to be an accident and can only be described as a pattern of dishonesty, which, in the Tribunal’s opinion, is deliberate.
The Applicant’s evidence before the Tribunal has consisted of a range of explanations. The Tribunal finds that the Applicant changes his storyline often. This is particularly in relation to the circumstances which led to his convictions. The Tribunal also notes that the Applicant changes his excuses as to why he failed to disclose his convictions to the Respondent.
Two matters in the behaviour of the Applicant have led to the Tribunal being dissuaded that the Applicant satisfies s 21(2)(h) of the Citizenship Act. The first relates to his permanent visa application. One month after his convictions, he attached a predated police clearance statement which contained no offences. This was plainly dishonest.
The second matter comprised of the Applicant’s application for citizenship. When asked why he did not disclose his offences, the Applicant said that his offences occurred a long time ago and that he had forgotten about them. This was clearly not truthful as evidence before the Tribunal shows that only two months earlier he attached a police clearance statement disclosing his convictions for the purpose of registering his business. This police clearance statement resulted in discussions between the Applicant and his business partner Mr Satani about his relevant convictions.
The Tribunal finds that the Applicant’s explanations were untruthful and are reflective of a pattern of dishonest behaviour.

The Tribunal is of the opinion that the Applicant’s pattern of behaviour goes to the core of the Applicant’s character assessment and therefore weighs against him for the purpose of this review.
The Applicant’s offences
As discussed above the Applicant has two criminal convictions:
·Larceny; and
·Goods in personal custody suspected being stolen.
The Tribunal notes that the Applicant pleaded guilty to both offences and paid the related fines accordingly. The Tribunal considers the Applicant’s offences in a serious light in the context of a pattern of dishonest behaviour that has followed.
Larceny
The Applicant was convicted of this offence in 2010.
At the time of the offence, he claims that he felt extremely guilty and remorseful.
He claimed the offence was a result of a lack of concentration and excitement about securing a gift for his nephew.
In addition, the Applicant claimed that his lack of English at the time contributed to confusion in communication with the store employee.
The Tribunal also notes that the Applicant refutes some of the police evidence that has also been supplied to the Tribunal (see R3, and paragraph 39 of this decision). The Tribunal is not in a position to re-examine the evidence that resulted in the conviction of this offence.
Goods in personal custody suspected being stolen
The Tribunal notes the Applicant’s submission that the credit card that he had in his possession belonged to a friend who had agreed that the Applicant could use the credit card whenever he liked. This was provided that the amount of money owed was returned accordingly.
Having read the contents of the Applicant’s submission and noted the changes to his storyline, the Tribunal is not altogether satisfied that the Applicant understands the seriousness and the gravity of the two offences he committed.
The Applicant states:
I ask the Tribunal in its consideration of my appeal to take into account the foregoing matters which I believe demonstrate the behaviour of myself [sic] to be that of an honest person who made an inadvertent mistake… (A1 8)
The Tribunal views the Applicant’s omission of his criminal convictions in his visa and citizenship applications as serious errors of judgment which go to the core elements of character and not as an aberration in human behaviour as he would like the Tribunal to believe.
Character References
The Tribunal notes that the Applicant has provided a number of references in support of his character (A2 – A8).
The references essentially state the following:
·he is an honest and trustworthy business partner;
·he has a good reputation in his business operations;
·he successfully runs the business;
·he has a good attitude, is honest, and trustworthy; and
·he is involved in social volunteering activities and is an active volunteer of an international spiritual and social organisation.
The Tribunal notes the above in support of the Applicant’s citizenship application, in particular, that the Applicant has tried to redeem his earlier behaviour that was not reflective of a law abiding person. The Tribunal is concerned that during the hearing the Applicant failed to convince the Tribunal that he is an honest person.
The Tribunal notes that the Applicant believes his convictions arose from genuine mistakes, and that he has apologised for his mistakes.
The Tribunal accepts that the Applicant may be involved in some community activities and the Tribunal acknowledges that the Applicant’s community engagement is an important aspect to consider as part of the rehabilitation of his character.
CONCLUSION
The Tribunal accepts that the Applicant has a genuine desire for Australian citizenship and a commitment to Australia.
The Tribunal notes, however, and accepts that a certificate of Australian Citizenship is a legal document of considerable significance (Beyan and Minister for Immigration and Citizenship [2015] AATA 256).
Having considered all the evidence before it, the Tribunal is not reasonably satisfied at this point in time that the Applicant is of good character for the purposes of s 21(2)(h) of the Citizenship Act.
DECISION
In view of the reasons outlined, the decision under review is affirmed.

I certify that the preceding 77 (seventy–seven) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.....[sgd]..................................................................
Administrative Assistant Legal
Dated: 14 September 2018

Date of hearing: 30 August 2018

Applicant: In person: self-represented

Representative for the Respondent: Mr Arran Gerrard

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 3466

14 September 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

11.02.10	Larceny value, =$2000 – T2	Fined $200.	Costs – Court $76
11.02.10	Goods in personal custody suspected being stolen (not m/v)	Fined $200.	Costs – Court $76

Date of hearing:	30 August 2018
Applicant:	In person: self-represented
Representative for the Respondent:	Mr Arran Gerrard
Solicitors for the Respondent:	Australian Government Solicitor