Premakanthan Rajaratnasarma and Minister for Immigration and Border Protection
[2014] AATA 406
•24 June 2014
[2014] AATA 406
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5429
Re
Premakanthan Rajaratnasarma
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 24 June 2014 Place Melbourne The decision under review made 27 September 2013, being the decision to refuse Mr Rajaratnasarma’s application for Australian citizenship, is affirmed.
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Deputy President J W Constance
CATCHWORDS
CITIZENSHIP – whether applicant is of good character at the time of decision – applicant convicted of sexual assault – time elapsed since commission of offences – respect for Australian law – denial of offences – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) sub-ss 21(1), 21(2)
CASES
Irving v Minister for Immigration, Local Government, and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Instructions ch 10
REASONS FOR DECISION
Deputy President J W Constance
24 June 2014
INTRODUCTION
This is an application by Mr Rajaratnasarma to review a decision of the Minister to refuse his application for Australian citizenship.
Mr Rajaratnasarma lodged an application for conferral of Australian citizenship with the former Department of Immigration and Citizenship on 12 July 2013. The Minister made a decision refusing his application on 27 September 2013.
For the reasons which follow, the decision of the Minister will be affirmed.
BACKGROUND
Unless stated otherwise I am satisfied of the following facts on the basis of the evidence of Mr Rajaratnasarma.
Mr Rajaratnasarma was born in Sri Lanka in 1944. He arrived in Australia on a (Religious Worker) TE 428 visa in 2002 and was employed in a Hindu Temple. In 2010 he was granted a Protection visa (Class XA) (Subclass 866). Since 2002 Mr Rajaratnasarma has resided in Australia and has travelled overseas for short periods only. He regards Australia as his home.
On 1 June 2011 Mr Rajaratnasarma was convicted of two counts of indecent assault following his plea of guilty to each charge. At the time of each offence Mr Rajaratnasarma was working in his role of priest at a Hindu Temple.
The first offence took place in 2004. The victim attended the temple to pray and to receive blessings from Mr Rajaratnasarma. He invited the victim to his home within the Temple grounds for a blessing during which he rubbed prayer powder onto the victim and touched her vagina, buttocks and breasts.[1]
[1] Exhibit R2.
The second offence occurred in 2009. Again Mr Rajaratnasarma took the victim to his home for a blessing. He assaulted the victim in the same manner as the assault on the first victim.[2]
[2] Exhibit R2.
When he was interviewed by police officers in 2009 Mr Rajaratnasarma denied the allegations against him. He initially pleaded not guilty to both charges, however he pleaded guilty before the charges were heard. Mr Rajaratnasarma was represented by Counsel when the pleas of guilty were entered.
On 1 June 2011 the Court imposed an aggregate term of 18 months imprisonment, which was wholly suspended with an operational period of two years.[3] The operational period expired on 1 June 3013 during which time Mr Rajaratnasarma did not commit any further offences.
[3] Exhibit R2 p.60.
LEGISLATION
An application for Australian citizenship is governed by the provisions of the Australian Citizenship Act 2007 (Cth).
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. On reviewing a decision of the Minister under the Act, this Tribunal stands in the shoes of the decision-maker. That means that the Tribunal has to make a decision on the facts before it. It is not a matter of determining that the decision under review was wrong for a particular reason.
Under subsection 21(2), there are a number of requirements for general eligibility for a person to become an Australian citizen. There are, in fact, eight different requirements set out. In this matter, the only issue in dispute is a provision relating to good character. The relevant provision of subsection 21(2) reads as follows:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
In this application the Tribunal must be satisfied that Mr Rajaratnasarma is of good character as of the date of its decision.
THE ISSUE FOR DETERMINATION
The issue is whether I am satisfied that, at the time of this decision, Mr Rajaratnasarma is of good character.
It is important to note that I must be positively satisfied that Mr Rajaratnasarma is of good character at the present time. That does not mean that by affirming the decision under review I am finding that Mr Rajaratnasarma is not of good character. I stress that I have to be positively satisfied that he is.
CONSIDERATION
“Good character” is not defined in the Act. However, there have been various decisions which assist in determining what is meant by “good character”. In Irving v Minister for Immigration, Local Government, and Ethnic Affairs, the Court said:
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 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.[4]
[References omitted]
[4] (1996) 68 FCR 422, 431-32.
I also note what was said by this Tribunal in Zheng and Minister for Immigration and Citizenship[5]. In that matter, Deputy President Forgie found that the Preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour, for the purpose of assessing good character. I note that the Preamble of the Act refers to Australian citizenship as follows:
… Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
a) by pledging loyalty to Australia and its people; and
b) by sharing their democratic beliefs; and
c) by respecting their rights and liberties; and
d) by upholding and obeying the laws of Australia.
[5] [2011] AATA 304.
In deciding whether Mr Rajaratnasarma is of good character I am required to consider the Australian Citizenship Instructions. These are instructions issued by the Minister, and set out the policy of the Minister in relation to applications such as this.
In the introduction to the Instructions, their role is described as follows:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Whilst I take careful note of the warning that the Instructions are not to be applied inflexibly, and cannot constrain the exercise of delegated powers, it is clear that I should apply the Instructions unless there is proper reason not to do so. This has been made clear on many occasions.[6]
1.[6] See Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634.
In this matter, there is no basis on which I should find that I should not apply, and follow, the Australian Citizenship Instructions. Looking at those Instructions, there is an entire chapter, Chapter 10, relating to the assessment of character. It is clearly regarded as an important part of the policy.
Paragraph 10.3.4 of the Instructions provides a non-exhaustive list of the characteristics of a person of good character. These include:
· respect and abide by the law in Australia and other countries;
…
· not be violent, involved in … unlawful sexual activity, and not cause harm to others through their conduct …
There are a range of considerations for making “good character” decisions set out in paragraph 10.5. Paragraph 10.5.1 provides in part:
This section sets out a range of considerations for decision makers to take into account when assessing good character. This list is not exhaustive. The factors may have different weights, depending on the circumstances of the case. This framework is consistent with the values and standards outlined in the Preamble to the Act and the pledge.
Paragraph 10.5.2 of the Instructions sets out various factors which may indicate that a person is not of good character. It provides, in part:
·Has the applicant committed any offences and if so, did they admit that in their citizenship application? Passenger card declarations could also be checked for an acknowledgement of criminal convictions.
...
·If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
· crimes of violence (such as … sexual assault, …)
…
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or the disabled, or others who trusted the applicant?
…
·How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?[7]
[7]Exhibit R1 pp 48-49
Paragraph 10.5.2 also provides a number of mitigating factors which may be relevant in assessing the character of a person who has a criminal record. These provisions read, in part:
Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.
·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? …
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
· it is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.
…
·What was the applicant’s age at the time the offence was committed? If the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character.[8]
[8] Exhibit R1 pp 50-51
ISSUE FOR DETERMINATION
The only issue for determination is whether Mr Rajaratnasarma is of good character within the meaning of section 21 of the Act. This issue is to be decided at the time of my decision.
CONSIDERATION
The offences
The offences committed by Mr Rajaratnasarma are serious, involving sexual assaults on two young women who came to the Temple to pray and to seek spiritual help. He was in a position of authority towards them and they trusted him. He abused that authority and trust.
Mr Rajaratnasarma's actions caused ongoing harm to both victims. One victim stated that she had nightmares and tried to kill herself; she felt “ashamed and disgusted” with herself. She said that she had trouble building relationships and was very suspicious of others.[9] The other victim suffered both emotional trauma and financial loss. She described problems in her relationships, especially with men. She experiences difficulty in attending the Temple.[10]
[9]Exhibit R3 being a Victim Impact Statement dated 10 July 2010 prepared for the Court.
[10] Exhibit R4 dated 26 May 2011.
Mr Rajaratnasarma's age at the time he committed the offences
I take into account also that Mr Rajaratnasarma was 59 years old when he committed the first offence and 64 years when he committed the second. He is not entitled to any consideration based on youth when his character is assessed. Further, although the offences were committed six years apart, the similarity of his actions shows a pattern of offending.
Time
Although considerable time has elapsed since the commission of the offences, it is only three years since his conviction and only one year since the operational period of his suspended sentence expired. Mr Rajaratnasarma applied for citizenship six weeks after this period expired.
Respect for Australian law
In September 2011 when Mr Rajaratnasarma completed an incoming passenger card as he entered Australia, he answered “no” to the question “Do you have any criminal convictions?”[11] Mr Rajaratnasarma said that he did not think about the convictions at the time he gave this answer. I do not accept this evidence. His failure to be honest in his answer indicates a lack of respect for Australian law.
[11] Exhibit R1 p.65.
Mr Rajaratnasarma's denial of the offences
In giving evidence before me and in statements provided to the Minister and to the Tribunal Mr Rajaratnasarma has denied that he committed the offences to which he pleaded guilty and of which he has been convicted. He claims that the complaints to the police which gave rise to the charges were false and part of a campaign by members of the congregation of the Temple which wished to discredit him for political reasons.
I cannot disregard the criminal record of Mr Rajaratnasarma. I am bound to decide the issue before me on the basis that he committed the offences of which he has been convicted.[12] As Mr Rajaratnasarma denies that these offences occurred this is not a matter in which I can consider the circumstances in which the offences were committed to see if there were any mitigating factors involved. Further, as Mr Rajaratnasarma denies any improper conduct in relation to his victims there are no statements of remorse which I can take into account and he has not undertaken any rehabilitative treatment other than serving the period of the suspended sentence.
[12] Minister for Immigration and Citizenship v Obele [2010] FCA 1445, [77].
Witnesses as to Mr Rajaratnasarma's character
Four witnesses gave evidence that Mr Rajaratnasarma is a man of good character and is regarded as such in his community,
Dr Ratnavelar has known Mr Rajaratnasarma as his family priest and as a patient in his medical practice. He regards Mr Rajaratnasarma as a victim of a power struggle and that the convictions as “a blot inflicted on him.”[13] He does not believe Mr Rajaratnasarma committed the assaults.
[13] Exhibit A2.
Mr Selvakumar has known Mr Rajaratnasarma for approximately 15 years. Mr Rajaratnasarma has been his priest during that time. He regards him as being of good character although he was unaware of the circumstances of the assaults. He believes that Mr Rajaratnasarma did not commit the assaults.
Mr Vemula has known Mr Rajaratnasarma since 2002 as a priest at the Temple. During part of this time Mr Vemula was a Committee member and then President of the Temple. He does not believe Mr Rajaratnasarma committed the offences.
Mr Kumar first met Mr Rajaratnasarma in 2002 and has continued contact with him at the Temple. Mr Kumar has been an Office-bearer at the Tribunal. In the opinion of Mr Kumar, Mr Rajaratnasarma is of good character and did not commit the offences.
I am satisfied that each of these witnesses is of the opinion that Mr Rajaratnasarma is a man of good character and has been so for the period each has known him. However, as none of the witnesses accept that Mr Rajaratnasarma has committed the offences of which he has been convicted, their evidence is of very limited assistance to me in assessing Mr Rajaratnasarma's character.
Finding
Taking into account all of the evidence and informed by the provisions of the Act and the Australian Citizenship Instructions, I am not satisfied that Mr Rajaratnasarma is of good character at present. It has been a relatively short time since he was free of the restriction of his suspended sentence. In view of the extremely serious nature of his offences (including the circumstances in which they were committed), insufficient time has elapsed to enable me to conclude that he has changed and is now of good character. This situation may change with the passage of time.
CONCLUSION
The decision under review made 27 September 2013, being the decision to refuse Mr Rajaratnasarma’s application for Australian citizenship, will be affirmed.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
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Associate
Dated 24 June 2014
Date(s) of hearing 6 May 2014 Counsel for the Applicant
Solicitors for the Applicant
Mr G Gilbert
Ravi James Lawyers
Solicitors for the Respondent Clayton Utz
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