Pathan and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 589

Pathan and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 589 (10 August 2016)

Division	GENERAL DIVISION
File Number	2015/3772
Re	Naimul Haq Pathan
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	10 August 2016
Place	Sydney

The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 19 June 2015 to refuse Mr Pathan’s application for Australian citizenship is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

CITIZENSHIP - Citizenship by conferral - good character - whether the Applicant satisfies the legislative requirement to be shown to be of good character - where application has previous convictions involving fraud - whether there are any mitigating circumstances - decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2), 24

CASES

Assafiri and Minister for Immigration and Border Protection [2014] AATA 35

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President J W Constance

10 August 2016

INTRODUCTION

1. Mr Pathan applied for Australian citizenship by conferral on 30 December 2014. On 19 June 2015 a delegate of the Minister refused the application on the ground that Mr Pathan had not established that he was of good character at that time. Mr Pathan has applied to the Tribunal for a review of the delegate’s decision.

2. For the reasons which follow the decision under review will be affirmed.

   BACKGROUND

3. Mr Pathan is a 33 year old citizen of Bangladesh. He arrived in Australia in August 2006. He was granted a subclass 885 permanent visa on 4 January 2013.[1]

   [1] Exhibit R1 p.9.

4. On 8 February 2011 Mr Pathan was found guilty in the New South Wales Local Court of the offence of knowingly producing a false or misleading document.[2] He was convicted and released without passing sentence on his entering a recognizance in the sum of $500 to be of good behaviour for two years.

   [2] Exhibit R1 p.30.

5. The circumstances of the offence are set out in the Summary of Facts provided to the Court.[3] The following summary, taken from the Respondents Statement of Facts, Issues and Contentions, accurately sets out the relevant facts put before the Court. Mr Pathan does not dispute these facts.

   (a)For the purpose of an application for a permanent skilled migrant visa, the Applicant’s migration agent submitted to Trades Recognition Australia (“TRA”) a Pre-Migration Skills Assessment application for assessment of the Applicant’s skills and qualifications as a cook. In support of the application, lodged on 10 February 2009, an employment reference letter was submitted from the Applicant’s employer confirming that the Applicant had been employed by that employer as a cook since August 2006. The copy of the reference letter submitted bore a certification, by a Justice of the Peace, as a true copy of the original.

   (b)The TRA application form contained, on the front page, a warning that giving false or misleading information is a serious offence under s. 137.1(6) of the Criminal Code Act 1995 (Cth)). The applicant signed the application form to acknowledge the warning.

   (c)In the course of subsequent investigations by the TRA, it transpired that the reference letter had been altered and contained false information. The employer advised that the Applicant was employed as a kitchen assistant, not a cook, and that she had given the Applicant a 1-page employment reference not a 6-page document. The employer was sent the bogus reference letter and confirmed that it was not the letter that she had written.

   (d)Whilst initially stating that he would participate in an interview for the purpose of the TRA’s investigations, the Applicant subsequently advised that he had changed his mind and had nothing further to say.

   (e)The Applicant’s agent provided a signed statement to the TRA, indicating that he did not have any role in altering the reference letter.

   [3] Exhibit R1 p.31,

6. On 25 January 2015 Mr Pathan committed the offence of failing to stop before traffic lights at a red arrow.[4] He was issued with a traffic infringement notice and fined the sum of $415.

   FURTHER EVIDENCE

   [4] Exhibit R1 Supplementary Documents p.3.

   Mr Pathan's evidence

7. Mr Pathan provided written statements[5] and gave evidence.

   [5] Exhibit R1 p.35 (22/12/14), Exhibit A1 (10/5/16).

8. Mr Pathan expressed his remorse for his criminal conduct. He said that at the time he was working in a restaurant as a kitchen assistant learning basic cooking. At his request his employer provided a letter to assist in his application for his pre-migration skills assessment. This letter was insufficient. Mr Pathan said that “some friends” gave him the idea that he should add the additional information required, which he did.

9. Later Mr Pathan obtained a position as a cook and submitted a further application to Trades Recognition Australia. He was issued with a permanent visa.

10. In 2013 Mr Pathan commenced work as a taxi driver on a full-time basis. He says that he has always been honest in this work and has returned all items that passengers have accidently left in his cab.

11. Mr Pathan has not been convicted of any other offences.

    Character References

    Mr Islam

12. Mr Islam provided a statement dated 25 November 2015[6] and gave evidence.

    [6] Exhibit A2.

13. Mr Islam has known Mr Pathan for almost 10 years. In his opinion Mr Pathan is honest and conscientious. Mr Islam was aware of Mr Pathan's conviction at the time he made his statement.

    Mr Ahmed

14. Mr Ahmed provided a statement dated 25 November 2015[7] and gave evidence.

    [7] Exhibit A3.

15. Mr Ahmed has known Mr Pathan for almost 5 years and believes him to be an honest, trustworthy and respected person. He too was aware of Mr Pathan's conviction when making his statement.

    ISSUE FOR DETERMINATION

16. The issue before me is whether, at the time of my decision, I am satisfied that Mr Pathan is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

    LEGISLATION

17. Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth). Section 24 of the Act provides:

    (1)    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.

    (1A)    The Minister must not approve the person becoming an Australian citizen

    unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

18. Section 21(2) of the Act establishes the requirements for eligibility of the grant of citizenship. It provides in part:

    (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (f)is of good character at the time of the Minister’s decision on the application.

19. This is the only subsection that is in issue in the present application. As the Tribunal stands in the shoes of the decision-maker these requirements of the law are applicable to the decision that I must make.

    CITIZENSHIP POLICY

20. The Citizenship Policy has been adopted by the Minister to guide those making decisions under the Act. Chapter 11 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.

21. The Citizenship Policy reflects government policy and is not binding on the Tribunal. However the Tribunal should apply the Policy unless there are “cogent reasons to the contrary”[8]. I am satisfied in this matter that there are no reasons why I should not apply it.

    [8] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

22. Chapter 11 provides in part:

    ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.[9]

    [9] P.145.

23. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[10]

    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. ... 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. (citations of authorities omitted).

    [10] (1996) 68 FCR 422 at 431-432.

24. After referring to the judgement of the Court in Irving, Chapter 11 provides, in part:

    In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:

    § characteristics which have been demonstrated over a very long period of time

    § distinguishing right from wrong

    § behaving in an ethical manner, conforming to the rules and values of Australian society.

    The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.[11]

    [11] At p.145.

25. In considering the Citizenship Policy I have taken into account that it refers to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[12] in which the Tribunal said:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

    [12] [2011] AATA 304 at [120].

26. The Policy goes on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in his or her dealings with the Australian Government.[13] All of these authorities along with the Citizenship Policy make it clear that abiding by Australian laws is a very important factor that I need to consider.

    CONSIDERATION

    [13]  At p. 147.

    Characteristics of a person of good character

27. Chapter 11 provides a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of the Chapter. They include:

    ·     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... for example:

    o   providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications

    …

    ·     not have evaded immigration control …

28. It is a matter of weighing up the various factors in the evidence before me. Under the heading of Weighing up the character decision, the Policy provides:

    Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    •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

    •does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[14]

    I note that, once again there is a reference to the question of whether an applicant for citizenship has upheld and obeyed the laws of Australia.

    [14] PP. 149-150.

    Weighing the various factors

29. In Re Lachmaiya and Department of Immigration and Ethnic Affairs[15] the Tribunal said:

    The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications.

    [15] (1994) 19 AAR 148 at [36].

30. Mr Pathan created a false document and then used it to endeavour to obtain an advantage under Australian immigration law, to which he was not entitled. His conduct involved fraud and was a serious breach of the law. It demonstrated that he was prepared to disregard the laws of this country in order to advance his own interests.  He attempted to further mislead the Minister’s Department by blaming his agent for altering the letter.[16]  These are not the actions the Australian community expects of a person of good character.

    [16] Exhibit R1 p.32-33.

31. In taking the time to talk to his friends and then to alter the document, Mr Pathan had ample time to consider his actions.  It was not something done on the spur of the moment.  I do not accept his explanation that he was “quite young to understand the law and condition of this country”.[17] Mr Pathan was 25 years old at the time. I accept the Minister’s contention that he must have known that such conduct was universally objectionable.

    [17] Exhibit R1 p.46.

32. Against this I must consider that, apart from one traffic infringement, on the evidence before me Mr Pathan has obeyed the law since 2009. For the past three years he has worked as a taxi driver and has been honest in returning items left in his cab to their rightful owners. Although Mr Pathan placed considerable weight on his actions in this regard, the community expects that a taxi driver would do this without question.

33. The references provided by Mr Islam and Mr Ahmed are of minimal assistance. They say little about Mr Pathan’s character other than expressing opinions that he is honest. They do not set out the circumstances of their dealings with Mr Pathan nor do they provide the basis for the opinions expressed. The similarity of the wording of the written references raises some doubt in my mind as to the independence of the views expressed.

34. I cannot be satisfied on the evidence that Mr Pathan is now of good character. It is only three years since he ceased to be subject to the good behaviour bond entered into by him. Guided by what the Federal Court said in Irving, “enduring moral qualities” encompass “characteristics which have been demonstrated over a very long period of time.”[18] Insufficient time has elapsed for Mr Pathan to demonstrate that his character has changed.

    [18] Citizenship Policy p.145.

35. In this regard I respectfully adopt what was said by the Tribunal in Assafiri and Minister for Immigration and Border Protection:[19]

    There is no formula for determining how much is sufficient time in order to be satisfied that a person is of good character. The ACIs refer to the phrase ‘enduring moral qualities’ as encompassing the concept of ‘characteristics which have been demonstrated over a long period of time’: 10.3.1. At 10.5.2 they state that, in the case of a serious offence, ‘a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character’. A decision­-maker ‘needs to look holistically at an applicant's behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case...’”

    [19] [2014] AATA 35 at [64].

    CONCLUSION

36. The decision of the delegate of the Minister for Immigration and Border Protection made 19 June 2015 refusing Mr Pathan’s application for citizenship, will be affirmed.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 10 August 2016

Date of hearing	19 May 2016
Date final submissions received	19 May 2016
Solicitors for the Applicant	Mr N Dobbie; Visa Immigration Specialists Australia Pty Ltd
Solicitors for the Joined Party	Mr K Eskerie; Sparke Helmore