PUNNIAMOORTHY And MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 522

``

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 522

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0922

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANAKAN PUNNIAMOORTHY

Applicant

And MINISTER FOR IMMIGRATION
AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date28 July 2011

PlacePerth

Decision The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - citizenship - applicant applied for Australian citizenship - respondent approved applicant becoming Australian citizen - applicant charged with criminal offence before becoming Australian citizen - applicant convicted of offence and sentenced to suspended term of imprisonment - respondent cancelled approval of applicant to become Australian citizen - period of suspension of applicant's sentence of imprisonment not yet expired - applicant presently not a person of good character - decision under review affirmed

Australian Citizenship Act 2007 (Cth), s 20, s 21, s 24, s 25 and s 28(1)

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

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

REASONS FOR DECISION

28 July 2011 Deputy President S D Hotop

Introduction

1.Janakan Punniamoorthy (“the applicant”), who was born in Sri Lanka in August 1983 and is a citizen of Sri Lanka, first arrived in Australia in June 2004 and subsequently became a permanent resident of Australia on 6 June 2008.

2.The applicant applied for Australian citizenship on 5 February 2010.

3.On 17 March 2010 a delegate of the Minister for Immigration and Citizenship (“the respondent”) approved the applicant’s becoming an Australian citizen.

4.On 9 April 2010, however, the applicant was arrested and charged with conspiracy to commit an indictable offence, namely fraud.  He had not yet become an Australian citizen at that time and the Department of Immigration and Citizenship (“DIAC”) deferred the conferral of Australian citizenship upon him pending the outcome of the conspiracy charge.

5.On 27 August 2010 the applicant pleaded guilty to conspiracy to commit an indictable offence, namely, fraud, was convicted, and was sentenced to 10 months’ imprisonment, suspended for 18 months.

6.On 10 February 2011 a delegate of the respondent cancelled the approval of the applicant’s becoming an Australian citizen.  The applicant was notified of that decision, by letter dated 10 February 2011, in the following terms:

“ The approval of your application for Australian citizenship has been cancelled under section 25 of the Australian Citizenship Act 2007 because it has come to the attention of the department that you no longer satisfy the requirements of section 21 of the Australian Citizenship Act 2007 as it has been assessed that you do not meet the good character requirements….”

7.On 14 March 2011 the applicant applied to the Tribunal for review of the delegate’s decision of 10 February 2011.

The Evidence

8.The evidence before the Tribunal comprised:

·the “T Documents” (T1−T10 pp 1−121) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·      the oral evidence of the applicant;

·      the oral evidence of the following witnesses called by the applicant:

−Sathyamanokapan Kanagasingam;

−Ratnambal Kanagasingam;

−Karthiga Saiyinthan; and

·a statutory declaration of each of the abovementioned witnesses called by the applicant (Exhibit A1, Exhibit A2, and Exhibit A3, respectively).

Background Material in the T Documents

9.The T Documents contain a transcript of the proceedings in the District Court of Western Australia in which the applicant was convicted of conspiracy to commit an indictable offence, namely, fraud, and sentenced to 10 months’ imprisonment, suspended for 18 months.

10.The facts constituting the conspiracy (which the applicant did not dispute), covering the period from January 2010 to 9 April 2010, were described by the State prosecutor in the abovementioned proceedings (see T8, pp 67-73).  The State prosecutor stated:

“ All of the accused, and the offender in this matter, are members of a national criminal syndicate involved in the theft, compromise and installation of EFTPOS terminals with the intention of dishonestly dealing with the captured financial gains for personal benefit.”

The State prosecutor then described the role allegedly played by other accused persons (K, P, V and N) in the conspiracy in the period from January 2010 to March 2010 including the theft, fraudulent tampering with, and installation of numerous EFTPOS terminals in various suburbs of Perth, and continued:

“ On 1 April 2010, accused N recruited this offender, offender Punniamoorthy, to assist with the conspiracy to install compromised EFTPOS devices at retail outlets through (sic) Perth.

The offender actively sought employment opportunities at IGA supermarkets and Caltex service stations for the sole purpose of installing these compromised devices for financial gain.  Accused N offered the offender $50,000 for his assistance with this part of the unlawful plan.

On 3 April 2010, a parcel intended for accused N and V was covertly intercepted by police and Customs officers.  The parcel contained electrical items used in the compromised EFTPOS terminals.

During the investigation, telephone calls between all accused persons – telecommunication intercepts were captured.  The nature of these calls clearly depicts the agreement between all accused to become actively involved in EFTPOS terminal tampering with the intent to defraud.

On 9 April 2010 all of the accused, including the offender, were arrested and charged, your Honour.  Your Honour, I note that the conspiracy on the indictment states that it went between 14 January 2010 and 9 April 2010 but do note that this offender did not become involved until 1 April 2010.”

11.When sentencing the applicant on 27 August 2010 Stone DCJ made the following remarks:

“ … You’ve been convicted on your plea of guilty to conspiracy to commit an indictable offence, and that indictable offence was the offence of fraud.  The gravity and seriousness of your offending is reflected in the statutory maximum penalty for the offence.  The statutory maximum penalty for this offence is three and a half years’ imprisonment because it’s a conspiracy.

The conduct constituting the offence for which you have pleaded guilty has been described in detail by the State prosecutor.  The facts are accepted by the defence.  I will adopt what the State prosecutor has said and formally incorporate her description of the facts into these remarks.  I don’t propose to repeat them, but I will make some observations about the facts in a moment when I come to assess your criminality, the role you played in this offending.

I turn to your personal circumstances and antecedents.  You’re now aged 26 (sic).  You were born on 12 August 1993 [sic].  You came to Australia from Sri Lanka to further your education.  You’ve been a permanent resident since 2008.  You have an application to be granted an Australian citizen (sic).   Your family history is detailed in the pre-sentence report and I won’t repeat it.  You are single.  Your family are mainly overseas.  You completed your high school in India and Sri Lanka.  In WA you completed a Bachelor of Arts in Business Administration.  You’re currently completing a Masters degree in professional accounting.  You supported yourself by part-time employment in your cousin’s restaurant and working elsewhere.  You have no health – no history of health problems, no history of substance abuse problems.

I’ve received some references that were forwarded to me by your counsel, Mr Noble, and I’ve read them.  They speak highly of you and mention that you are embarrassed by what you have done.

This is the first time that you’ve been convicted of any serious offence.  There are some traffic matters on your record, but they are meaningless in terms of this offending.

I turn to the mitigating factors.  You’ve pleaded guilty on the fast-track system.  And of course, that is your credit (sic) and a mitigating factor for which you are entitled to a reduction in the sentence that would otherwise be imposed upon you.  Your immediate reaction when confronted by the police was to admit the offence, cooperate with the police and plead guilty at an early opportunity.  These matters demonstrate remorse and an acceptance of responsibility and a constructive attitude.  You’ve also demonstrated remorse by facilitating the course of justice with your plea of guilty.

I am required to impose a sentence commensurate with the seriousness of the offence.  The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.  In sentencing you, I take account of the nature and gravity of your offending, as well as the statutory maximum penalty in relation to it, the circumstances of the commission of the offence, and the aggravating and mitigating factors.

I must first decide the kind of punishment to be imposed.  The Sentencing Act sets out the options as to the penalties which may be imposed following conviction.  A court must not use a more severe sentencing option unless it is satisfied that it’s not appropriate to use any one of the less severe options available.  A sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community otherwise requires it.

I must have regard to the purposes of imposing punishment; to punish you and to deter both you and others from committing offences in the future.  If I reach a conclusion that a sentence of imprisonment must be imposed, I am obliged to consider afresh whether or not a sentence of imprisonment should be suspended or whether, having regard to the nature of the offence and the need for the protection of the community, an immediate sentence of imprisonment must be imposed.

In looking at the extent of your culpability in this offending, I bear in mind that you were prepared to facilitate a fraudulent scheme by obtaining employment in an outlet where a compromised EFTPOS device could be installed.  You were aware that it was a skimming plan and you actively sought employment at the service station.  You didn’t achieve that end because you were stopped by the police.  You were offered a share of the money taken from the skimmed cards or $50,000.

…

I bear in mind that you were involved for only a short duration, 1 April to 9 April, and that you did approach others to join in the scheme, although nothing eventuated.  You seem to show no victim empathy or insight into your offending.  I think that will come with the passage of time in your case.  You were prepared to lend yourself to a sophisticated international fraud.  You were aware that the main player was arriving from Canada in the next few days.  That’s picked up in the statement you provided the police.

…

You sought a job at the Caltex station in Highgate, although nothing eventuated because the police pounced.

I’ve carefully considered the matters raised in mitigation by your counsel, Mr Noble.  I’ve also had regard to the contents of the pre-sentence report.  That report concludes with this summary that’s been mentioned by Mr Noble also, that you presented at interview as a naive individual who did not fully comprehend the seriousness of his actions in regard to the current offence:

However, it is noted that he minimised his behaviour and had limited empathy for the victims.

I’ve considered all of the sentencing options, including suspended imprisonment.  I must be positively satisfied that the option of suspending imprisonment and each remaining lesser option is not appropriate before I can impose a term of immediate imprisonment.  I conclude that in view of the serous nature of the offence, a term of imprisonment is the only appropriate disposition.

In fixing the term of imprisonment, I am mindful of your early plea of guilty, your cooperation with the police, your prior good character, your remorse, the limited role that you played by comparison to others, and that your involvement was for a relatively short period.  I have reduced the term of imprisonment by 30 per cent because of your undertaking to assist the police in the prosecution of the others involved in the conspiracy….

As I say, I’ve reduced your sentence by 30 per cent for that undertaking.  I will, after determining the appropriate term of imprisonment, deal with the issue as to whether I should suspend the term.  Do you understand that?  So I’m going to impose the term and then reconsider the position in terms of suspension.

I consider that an appropriate term of imprisonment is, in all circumstances, 10 months which I reduced to take account of the plea of guilty, the offer of future cooperation with the authorities, and all other mitigating factors.

I have carefully considered the extensive material before the court in relation to whether the term of imprisonment should be suspended.  I’ve considered the submissions by the State, I’ve considered the submissions by your counsel, Mr Noble.

As I said, I’ve come to the view that the only appropriate disposition, taking into account particularly the need for general deterrence, is a term of imprisonment.  Having reached that view, it is necessary that I carefully consider whether or not relevant to that material, in all of the circumstances, the sentence to imposed (sic) should be suspended.

This requires that I consider anew all the relevant circumstances.  This, I have done.  In your case, this is a difficult decision.  You have good antecedents, you pleaded guilty at a very early opportunity and I accept that you are remorseful.  That’s one of the mitigating factors.  You do not appear to be at a higher risk of re-offending.  You cooperated with the police.  On the other hand, you face a serious charge of conspiracy to commit fraud.

In all the circumstances, after having revisited all relevant factors, it seems to me that both your interests and the interests of the community generally are best served by the term being suspended.

A suspended term is to be viewed as a penultimate sentencing option; the ultimate being an immediate term.  In suspending the term, I’ve had particular regard to your limited role in the conspiracy.  Nothing eventuated from it.  You were involved for a short duration.  You pleaded guilty at an early opportunity.  You cooperated with the police.

The prospect of rehabilitation, taken together with the personal deterrence provided by the threat of activation of the suspended sentence which you face (sic).  You face only one charge, and I’m told the other co-accused face more than one charge and they were more involved than you.

So it’s for all those reasons that I have taken the view that a suspended term should be imposed upon you.  Let me make it clear to you, Mr Punniamoorthy, if you re-offend in the next 18 month period by committing an offence which carries a statutory penalty which includes imprisonment, then you will be liable to be brought back to this court and receive the suspended term of imprisonment of 10 months.  Do you understand that? Do you?

ACCUSED:            Yes

STONE DCJ:         Accordingly, you are sentenced to 10 months’ imprisonment, suspended for 18 months….”  (T8, pp 79-84)

12.The T Documents also contain a Western Australia Police report, dated 10 June 2010, setting out the applicant’s prior criminal history as follows (T8, p 60):

Court	Result Date	Offence	Count	Offence Date	Result
Perth Magistrates Court	09/4/10	No Authority to Drive –Disqualified/Suspended; Road Traffic Act 1974; S49(1)(a)&(3)(c)	1	15/2/10	MDL Disqualified: 9 mths – Cumulative FINE: $1000
Perth Magistrates Court	11/2/10	No Authority to Drive –Disqualified/Suspended; Road Traffic Act 1974; S49(1)(a)&(3)(c)	1	8/7/09	MDL Disqualified: 9 mths – Cumulative FINE: $600
Perth Magistrates Court	28/4/09	No Authority to Drive; Road Traffic Act 1974; S49(1)(a); Learner’s Permit	1	15/2/09	MDL 7 DAY DELAY: 3 mths: Concurrent  FINE: $150; (Learner with no instructor)

The Applicant’s Evidence

13.The applicant’s oral evidence-in-chief may be summarised as follows:

·he completed his primary and secondary education in Sri Lanka and completed a university degree in business administration in India;

·since arriving in Australia in June 2004 he has completed a diploma, and an advanced diploma, course in business and he is presently undertaking a Master’s degree course in accounting at Murdoch University which he expects to complete in June 2012;

·he is employed as a bookkeeper and duty manager at a restaurant and he also works as a night filler at a hotel;

·he wants to work full-time in the areas of accounting or taxation;

·apart from the conspiracy conviction and the three road traffic convictions, he has no other criminal convictions, or pending charges, in Australia;

·since his arrest for the conspiracy offence in June 2010 he has not had any conversations with others engaged in that conspiracy;

·he applied for Australian citizenship because he wants to “become part of Australian society” and because it would be helpful in obtaining employment in Australia;

·he is also interested in defence work and he understands that Australian citizenship is essential for such employment.

14.In cross-examination the applicant gave evidence as follows:

·he committed the three road traffic offences, of which he was convicted in 2009-2010, in the following circumstances:

−the first offence involved his driving with a L permit with a person who held a driver’s licence for less than the minimum required period of 4 years;

−he committed the second offence when he drove without a Western Australia driver’s licence, thinking that his Sri Lankan driver’s licence permitted him to drive in Western Australia;

−he had no excuse for committing the third offence which involved his driving without a licence because he needed to get to work as soon as possible because he was running late;

·he acknowledges that the conspiracy offence of which he was convicted is a serious offence but he did not take the matter seriously because he was “not involved” – he “only made a few phone calls” and he “did not go through with it”; a friend asked him to help him out and he agreed to help him out; he “thought it was fun and did not take it seriously”;

·his own credit card had been skimmed some months earlier, costing him about $8,000, but the bank refunded the full amount to him and there was no harm to him, so he did not think that others would be harmed as a result of the conspiracy;

·as regards banks and insurance companies which might have suffered losses as a result of the conspiracy, he thought that their losses could be covered by a contribution of $1 from each taxpayer, but he now realises that this “would affect the economy” and he feels “very bad” about it;

·he has always been a person of good character except for the period 1−9 April 2010 when he participated in the conspiracy.

The Evidence of the Other Witnesses

Sathyamanokapan Kanagasingam

15.Mr Kanagasingam confirmed that he had provided a reference letter, dated 18 July 2010, for the purpose of the applicant’s criminal proceeding, and that he had made a statutory declaration on 12 June 2011 for the purpose of the present proceeding.

16.Mr Kanagasingam’s letter of 18 July 2010 states as follows:

“ I have known Janakan Punniamoorthy who has been working at my restaurant for the past six years.

During this time, I have found Janakan to be a kind, trustworthy and honest person.  I have trust in him because he was my manager and cashier for my restaurant for the past six years.  He has handled all my cash and banking matter regarding my restaurant.

Janakan has told me he has been charged with ‘conspiracy to defraud charge’.  However I understand that he naively believed that this was a victimless crime as no individual would be hurt and the banks would eventually pay.

Since I have full faith in him and believes (sic) he is studying towards a masters degree in accounting with an intention to work in the tax office, I decide to give this reference letter to him so that it can help him to achieve his goal in life without having a criminal record which will prejudice him substantially.”  (T8, p 61)

17.Mr Kanagasingam’s statutory declaration of 12 June 2011 states as follows:

“ …

3.      I am an Australian citizen.

4.      I have been resident in Australia for 13 years.

5.      I have known JANAKAN PUNNIAMOORTY (sic) for 15 years.

6.I first met him in 1995 in Sri Lanka and have continued to know him since he came to Australia.

7.I still know Janakan because he is an employee at my business … Restaurant in Fremantle.

8.I confirm that on 18 July 2010 I provided a character reference to Janakan for use in the sentencing proceedings in the District Court.

9.I am aware that the reference I supplied has also been supplied to the Administrative Appeals Tribunal in support of his application for Australian citizenship.

10.At the time I supplied the reference in July 2010 Janakan told me he was charged with conspiracy to defraud.

11.I have continued to employ him as I trust him.

12.In my experience he is a kind, trustworthy and honest person and employee.

13.He has been my Manager and cashier of my restaurant for 7 years and as such has handled all my cash and banking matters for my restaurant.

14.While he has been working for me he has also been studying and has been a very loyal employee.

15.I support his citizenship application because from my knowledge of him he is a very hardworking and talented young man who can contribute a lot to our society.

16.I would like to recommend that he should be granted Australian Citizenship as I consider that our country needs talented young people like him.

…” (Exhibit A1)

18.In cross-examination Mr Kanagasingam described the applicant as “a family friend” although he added that the applicant was related to his brother by marriage.

19.He confirmed that he was also aware of the applicant’s road traffic offences in 2009-2010.

20.He described the applicant as “naïve” and as “always wanting to help people”.  As regards the applicant’s conspiracy conviction, he said that he understood that the applicant was “not directly involved” and he added that the applicant “would not have thought about the money too much”.

21.He said that he was “sure” that the applicant would not get involved in criminal activities in the future.

Ratnambal Kanagasingam

22.Mrs Kanagasingam (who is the mother of the abovementioned Mr Kanagasingam) confirmed that she had provided a reference letter, dated 15 July 2010, for the purpose of the applicant’s criminal proceeding, and that she had made a statutory declaration on 12 June 2011 for the purpose of the present proceeding.

23.Mrs Kanagasingam’s letter of 15 July 2010 states as follows:

“ I have known Janakan Punniamoorthy for the past twelve years as a family friend.

During this time, I have found Janakan to be an honest, naïve and a person with good moral values.

Janakan has told me he has been charged with ‘conspiracy to defraud charge’.  He told me that he got into a bad company of friends who talked him into this problem.  I also notice that he has an easy going attitude which led him to this problem.

Since I know him for such a long period I can assure you that he is not such a charactered boy who could commit such crime.”  (T8, p 62)

24.Mrs Kanagasingam’s statutory declaration of 12 June 2011 states as follows:

“ …

3.      I am an Australian citizen and have been resident in Australia for 8 years.

4.      I have known JANAKAN PUNNIAMOORTHY since his birth.

5.I first met him in Sri Lanka, where he was born and have continued to know him closely since we both came to Australia.

6.I still know Janakan now because of our friendship and because he works with my son.

7.I confirm that on 15 July 2010 I provided a character reference to Janakan for use in the sentencing proceedings in the District Court.

8.I am aware that the reference I supplied has also been supplied to the Administrative Appeals Tribunal in support of his application for citizenship.

9.During the time I have known him, especially in Australia, I have found Janakan to be an honest person with good moral values, although I also believe he can be a little naïve in his dealings with other people.

10.I wish to support his citizenship application because he is a hard-working man who is also studying here.

11.I am aware that he is devoted to his family and that he wishes to be able to provide assistance to his parents by working and having a career in Australia.

…” (Exhibit A2)

Karthiga Saiyinthan

25.Ms Saiyinthan confirmed that she had provided a reference letter, dated 10 July 2010, for the purpose of the applicant’s criminal proceeding, and that she had made a statutory declaration on 13 June 2011 for the purpose of the present proceeding.

26.Ms Saiyinthan’s letter of 10 July 2010 states as follows:

“ I have known Janakan Punniamoorthy for the past ten years as a family friend.

During this time, I have found Janakan to be a man of integrity and extremely dedicated to his family and work.

Janakan has told me he has been charged with ‘conspiracy to defraud charge’.  However I understand that he was thinking that it was a harmless act and didn’t know how serious the matter is.

Jankan (sic) told me that he is embarrassed about the incident and does not normally behave in that manner.  He also said that he had cooperated with the police fully and helped the police in this matter.  So I have full trust in him that he is not a person with bad intention to commit a crime.”  (T8, p 63)

27.Ms Saiyinthan’s statutory declaration of 13 June 2011 states as follows:

“ …

3.      I am an Australian Citizen.

4.      I have been resident in Australia for 10 years.

5.      I have known JANAKAN PUNNIAMOORTHY for 12 years.

6.I first met Janakan in May 1999 and he is now my brother in law and he has been a family friend since I came to know him.

7.I confirm that on 10 July 2010 I provided a character reference to Janakan for use in the sentencing proceedings in the District Court.

8.I am aware that the reference I supplied has also been supplied to the Administrative Appeals Tribunal in support of his application for citizenship.

9.As I stated in the character reference, Janakan has told me that he was embarrassed about appearing in a criminal court and in relation to the matters which lead to him appearing in court.

10.In my experience of him and from my own knowledge of him Janakan is a man of integrity who is dedicated to his family, work and study.

11.I would like to support him in his citizenship application because he wants to be a part of the Australian community.

12.From my discussions with him and from my knowledge of him, he believes that Australian Citizenship gives us the opportunity to take care of each other, and he appreciates the free and peaceful society in Australia.

13.From my knowledge of him I believe that he will always be a hard-working and contributing member of the community.

…”  (Exhibit A3)

28.In cross-examination Ms Saiyinthan said that she was also aware of the applicant’s three road traffic offences in 2009-2010.  As regards the conspiracy offence of which he was convicted, she said that she was not aware of all the details of his involvement but that he comes from a good family and she believes that he will not re-offend.

The Relevant Legislation

29.Subdivison B (Citizenship by conferral) of Div 2 (Acquisition of Australian citizenship by application) of Part 2 of the Australian Citizenship Act 2007 (Cth) (“the Act”) contains the following relevant provisions:

“ 20     Requirements for becoming a citizen

A person becomes an Australian citizen under this Subdivision if:

(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and

(b) if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.

Note:Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.

21       Application and eligibility for citizenship

(1)A person may make an application to the Minister to become an Australian citizen.

Note 1:Subsections (2) to (8) deal with eligibility.

Note 2:Section 46 sets out application requirements (which may include the payment of a fee).

General eligibility

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

(a) is aged 18 or over at the time the person made the application; and

(b)is a permanent resident:

(i)    at the time the person made the application; and

(ii)   at the time of the Minister’s decision on the application; and

(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and

(d)understands the nature of an application under subsection (1); and

(e)possesses a basic knowledge of the English language; and

(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

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

…

24       Minister's decision

(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.

Note:The Minister may cancel an approval: see section 25.

(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).

(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).

…

25       Minister may cancel approval

(1)The Minister may, by writing, cancel an approval given to a person under section 24 if:

(a)the person has not become an Australian citizen under section 28; and

(b)either of the following 2 situations apply.

Eligibility criteria not met

(2)The first situation applies if:

(a)the person is covered by subsection 21(2), (3) or (4); and

(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

(i)   not a permanent resident; or

(ii)   not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

(iii)  not of good character.

Failure to make pledge of commitment

(3)The second situation applies if:

(a)the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

(b)the person's reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

…

28       Day citizenship begins etc

Persons required to make pledge of commitment    

(1)A person required to make a pledge of commitment becomes an Australian citizen under this Subdivision on the day on which the person makes the pledge.

…”

Analysis

30.The discretionary power conferred by s 25(1) of the Act is conditioned on:

·     an “approval” having been “given to a person under section 24”; and

·     the fulfilment of paras (a) and (b) of that subsection.

In the present case it is common ground that:

·     an “approval” … under section 24” was “given” to the applicant on 17 March 2010;

·     the applicant “has not become an Australian citizen under section 28” (para (a) of s 25(1).

As regards para (b) of s 25(1), it is common ground that fulfilment of that paragraph is, in turn, dependent on the fulfilment of subs (2) of s 25.  As regards subs (2) of s 25, the only matter in dispute is that referred to in subpara (b)(iii).  Accordingly, the only matter for the Tribunal’s consideration, for the purpose of determining whether the discretionary power conferred by s 25(1) of the Act is enlivened in this case, is whether it is satisfied that the applicant is “not of good character”, within the meaning of subpara (b)(iii) of s 25(2) of the Act.

The meaning of “good character”

31.The phrase “good character” is not defined in the Act and it is therefore appropriate that that phrase (which comprises ordinary English words) in s 25(2)(b)(iii) of the Act be construed in accordance with its ordinary meaning.

32.In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Full Court of the Federal Court of Australia considered the meaning of the phrase “good character” in the Migration Act 1958 and the Migration Regulations 1994. Davies J (with whose reasons R D Nicholson J agreed) said (at 425):

“ … the term ‘good character’ is not precise in its denotation.  In one sense, it refers to the mental and moral qualities which an individual has.  In another sense, it refers to the individual’s reputation or repute:  see The Oxford English Dictionary, meanings 11, 12 and 13;  The Macquarie Dictionary, meanings 1, 2, 3, 4 and 5.  Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities.  I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such.  It does not.  But criminal convictions or the absence of them and character references are likely to be an important source of primary information.  If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant.  If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed.  If persons speak well of the applicant, the decision-maker will take that into account.”

Lee J said (at 431–432):

“ Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion … 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).

In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said (at 197):

“ The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.”

Is the applicant presently a person “not of good character”?

33.There is no evidence before the Tribunal to suggest that the applicant was not a person of good character at any time prior to the commission of his first offence on 15 February 2009 (see T8, p 60).  It may, accordingly, be presumed, and the Tribunal accepts, that the applicant was a person of good character up until that date.

34.In the period from 15 February 2009 to 15 February 2010 the applicant committed the three road traffic offences set out in paragraph 12 above.  The respondent did not submit that the applicant was not a person of good character in that period.  The Tribunal notes, furthermore, that, on 17 March 2010, a delegate of the respondent approved the applicant’s becoming an Australian citizen on the basis that the delegate was satisfied that (inter alia) he was then a person “of good character”, within the meaning of s 21(2)(h) of the Act.  Accordingly, the Tribunal is prepared to accept that the applicant, notwithstanding his commission of the abovementioned road traffic offences, continued to be a person of good character.

35.The respondent submits, however, that the applicant, by reason of his commission of the offence of conspiracy to commit an indictable offence, namely, fraud, on 1 April 2010 and in the period 1–9 April 2010, ceased to be a person of good character.

36.It is clear from the abovementioned sentencing remarks of Stone DCJ that he regarded the applicant’s conspiracy offence as a serious one.  His judgment of the gravity and seriousness of that offence is reflected in the substantial sentence of imprisonment which he was minded to fix, namely, 14 months’ imprisonment, although he reduced that sentence by 30% because of the applicant’s “undertaking to assist the police in the prosecution of the others involved in the conspiracy” and ultimately imposed a sentence of 10 months’ imprisonment.

37.In the Tribunal’s opinion, the applicant forfeited his existing good character by voluntarily and intentionally participating in a criminal activity which Stone DCJ described as “a sophisticated international fraud” in the period 1–9 April 2010.

38.The Tribunal notes that Stone DCJ suspended the applicant’s sentence of 10 months’ imprisonment for 18 months, having regard to the following considerations:

·     his “good antecedents”;

·     his “limited role in the conspiracy”;

·     his “very early” plea of guilty, and his remorse;

·     his cooperation with the police;

·     his “not appear(ing) to be at a higher risk of re-offending”;

·     the “prospect of rehabilitation, taken together with the personal deterrence provided by the threat of activation of the suspended sentence”.

In the Tribunal’s opinion, Stone DCJ’s decision to suspend the applicant’s sentence of 10 months’ imprisonment is not inconsistent with the proposition that the applicant had ceased to be a person of good character by reason of his commission of the abovementioned conspiracy offence.  On the contrary, his Honour’s abovementioned reference to the “prospect of rehabilitation” and his earlier reference to the applicant’s “prior good character” are consistent with that proposition.

39.The Tribunal accepts that the applicant has been law-abiding since his conviction of the conspiracy offence and the imposition and suspension of the sentence of 10 months’ imprisonment on 27 August 2010.  The respondent did not contend otherwise.  The Tribunal notes, however, that for a period of 18 months, from 27 August 2010 to 26 February 2012, the suspension of the applicant’s sentence is (as explained to him by the Stone DCJ) conditional on his not “committing an offence which carries a statutory penalty which includes imprisonment”.  That “threat of activation of the suspended sentence”, as Stone DCJ stated, provides “personal deterrence” from re-offending.  At the present time the period of suspension of the applicant’s sentence has approximately seven more months to run.

40.The Tribunal notes, and generally agrees with, the following statement in Chapter 10 of the Australian Citizenship Instructions (1 July 2009) published by the DIAC:

“ A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.”

As previously indicated, the applicant presently continues to be subject to an ongoing obligation to the court in respect of his suspended sentence and he will not be free of that obligation before 26 February 2012.

41.The Tribunal has regard to the evidence, letters and statutory declarations of the applicant’s supporting witnesses (see paragraphs 15–28 above).  The Tribunal notes, however, that each of those witnesses is a member of the applicant’s extended family and cannot be regarded as truly objective.  The Tribunal, furthermore, is not satisfied that any of those witnesses (especially Mrs Kanagasingam and Ms Saiyintham) is fully aware of the circumstances and seriousness of the conspiracy offence which the applicant committed in the period 1–9 April 2010.  The Tribunal, accordingly, attaches little weight to the evidence, letters and statutory declarations of those witnesses.

42.As regards the applicant himself, the Tribunal, having heard his evidence and having observed him in the course of giving his evidence, is not satisfied that he has yet come to a full understanding of the gravity and seriousness of the criminal enterprise in which he voluntarily and intentionally participated in the period 1–9 April 2010.

43.Having regard to the whole of the evidence before it, the Tribunal:

·     is satisfied that the applicant ceased to be a person “of good character”, for the purposes of the Act, by reason of his committing the offence of conspiracy to commit an indictable offence, namely, fraud on 1 April 2010;

·     is not satisfied that the applicant has yet effectively demonstrated that he has been rehabilitated and has re-established his good character; and

·     is satisfied that the applicant is presently a person “not of good character”, within the meaning of s 25(2)(b)(iii) of the Act.

44.Accordingly, the discretionary power conferred by s 25(1) of the Act is enlivened in this case.

Conclusion

45.It remains for the Tribunal to consider whether it is appropriate, in the circumstances of this case, to exercise the discretionary power conferred by s 25(1) of the Act.

46.Having regard to the whole of the evidence before it, the Tribunal considers it appropriate to exercise that discretionary power adversely to the applicant.

47.Accordingly, the Tribunal concludes that the preferable decision in this case is that the approval to become an Australian citizen, which was given to the applicant under s 24 of the Act on 17 March 2010, be cancelled pursuant to  s 25(1) of the Act.

Decision

48.For the above reasons, the Tribunal affirms the decision under review.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  8 July 2011
Date of Decision  28 July 2011
Representative for the Applicant               Mr S Phillips
Solicitor for the Applicant  S V Phillips & Co
Representative for the Respondent           Mr D Estrin
Solicitor for the Respondent  Australian Government Solicitor