Sadek RANA and Minister for Immigration and Border Protection
[2015] AATA 227
•16 April 2015
[2015] AATA 227
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0925
Re
Sadek RANA
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Mr P W Taylor SC, Senior Member
Date 16 April 2015 Place Sydney The decision under review is affirmed.
........................................................................
Mr P W Taylor SC, Senior Member
Catchwords
CITIZENSHIP – application for Australian citizenship – whether Applicant of good character – nature of good character – Applicant convicted of offences involving dishonesty –consideration of sentencing judge's remarks – supporting witnesses unaware of circumstances of convictions – decision affirmed.
Legislation
Australian Citizenship Act 2007 ss 21, 24
Migration Act 1958 s 501
Cases
Re Abouabd-Allah (Kennedy) and Minister for Immigration and Border Protection [2014] AARA 459
Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49
General Medical Council v Spackman [1943] AC 627
Re Gibson and Minister for Immigration and Citizenship (2007) 45 AAR 424
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
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
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural Affiars v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
New South Wales Mar Association v Somosi [2001] NSWCA 285
Ragni Mala Prasad v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780Ziems v The Prothonotary of the Sprueme Court of New South Wales (1957) 97 CLR 279
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
16 April 2015
Mr Rana is a 30 year old Bangladeshi national. He has lived in Australia since his first arrival in 2002, as an 18 year old student. He has held a permanent visa since April 2008. His visa status since June 2013 has been as the holder of a Class BB (Return Residence), subclass 155 (Five Year Resident Return) visa.
Mr Rana applied for Australian citizenship on 16 October 2013. A ministerial delegate refused that application in February 2014, because of an absence of satisfaction that Mr Rana was of “good character”. Absence of satisfaction about a person’s “good character” precludes approval of a citizenship application: see the Australian Citizenship Act 2007 (“ACA 2007”) ss 21(2)(h) & 24(1A). Mr Rana challenges the delegate’s refusal decision, and the absence of satisfaction on which it was based, in the present review proceedings.
The delegate’s decision reflected the significance of Mr Rana’s convictions in 2010 for four offences involving larceny as a servant and obtaining money by false statements. Those four convictions relate to events that occurred within a two week period between 21 November and 6 December 2007, when Mr Rana was employed as a store manager by Kmart Australia Limited. He was charged in August 2009, and convicted in October 2010. A brief summary of the charges involved, and the penalties that were imposed, is set out in the following table.
Mr Rana’s three year good behaviour bond period expired on 15 October 2013. That was the day before he lodged his citizenship application. During the bond period Mr Rana could not have been granted citizenship because of the prohibition in ACA 2007 s 24(6)(g). The delegate thought the minimal period between Mr Rana’s application, and the expiry of his bond, was too short to permit satisfaction of his current good character. The background to that lack of satisfaction was the delegate’s view that Mr Rana’s offences, despite the fact that they had not resulted in a custodial sentence, were “at the middle range of seriousness”.
The circumstances of the 2007 offences
The information available to the delegate included little specific detail of the circumstances of Mr Rana’s offences – other than that they involved dishonesty in the course of his employment by Kmart. Few further details emerged from the first two written statements Mr Rana provided to the Tribunal. In a third written statement, dated 25 November 2014, Mr Rana disclosed that he had been a store manager at Kmart and attributed his convictions to what he described as “massive fraud” perpetrated by his elder brother, and some of his brother’s friends. The “fraud” involved purchasing items from Kmart and then obtaining multiple refunds of the purchase price. Mr Rana’s third statement claimed that his brother had obtained the benefit of the fraud. He said that some of his brother’s friends gave evidence implicating him in the fraud. Those people he described as international students who had been working in breach of their visa conditions. He claimed that their evidence was false, and had been coerced by the threat of reports to immigration authorities about their visa condition breaches. He claimed that he had not had any knowledge of, or involvement in, the fraudulent activities at the time they occurred. He asserted a belief that he had not done anything wrong.
In the course of his oral evidence in the review proceedings Mr Rana revealed more details of the nature of the offences, and the proceedings that resulted in his conviction. The apparently relevant details were as follows:
(a)Mr Rana’s brother, and the friends involved in obtaining “multiple refunds”, were also employed by Kmart.
(b)Only Mr Rana and his brother were charged with offences. Mr Rana was charged with more offences than his brother.
(c)Mr Rana’s brother was convicted of only two offences, and was given an 18 month good behaviour bond. Mr Rana was convicted of four offences, and subjected to a three year good behaviour bond.
(d)The refund procedures at Kmart required an employee to process the payment refund through the company’s cash register system. It also required, at least in relation to some refund amounts, a managerial authorisation. The person who processed the refund would be identified by the “ID” they recorded when logging into the cash register system. The manager who authorised the refund would either sign the cash register docket or, if they gave their authority over the phone, have their name written on the docket by the person processing the return.
(e)At the contested hearing that led to Mr Rana’s conviction (on four of the nine matters with which he was charged) Mr Rana and his brother were separately represented. Mr Rana’s brother, and three or four of his brother’s friends, gave evidence that they had processed the relevant refunds, that they had done so with Mr Rana’s authority, and that they had recorded his authority on the refund dockets in question. Mr Rana, whilst he contested the charges, did not give any evidence.
(f)In his evidence in the present proceedings Mr Rana, despite maintaining his innocence, said he did not become aware of the allegations against him until some time around the middle of 2009. After that passage of time, and bearing in mind that he would have taken many phone calls during his time at Kmart, including many calls about refunds, he claimed he did not know whether or not he had in fact given the telephone “refund” authority the witnesses had attributed to him in the 2010 proceedings.
Mr Rana asserted, in his third statement, that at least some of the refund money was credited to his brother’s credit card account. But he provided no statement or accounts to substantiate that evidence. Nor did he give any other evidence to explain what became of the refund amounts. He specifically asserted that he had not received any part of the refund amounts. As against that, the fact is that three of Mr Rana’s convictions relate to “obtaining money” by a false statement.
Mr Rana’s protestations that he was not involved in the dishonest conduct with which he was charged, and his claim that his brother was the person principally responsible for the various offences, are consistent with the fact that he contested the charges against him in 2010. But the facts are that he was convicted of four charges, after a contested hearing at which he was legally represented. Furthermore Mr Rana’s characterisation of his brother as the principal miscreant appears to be at odds with the fact that his brother both faced, and was convicted of, fewer charges. Neither was it the view of the magistrate who sentenced Mr Rana in October 2010. The magistrate recorded her satisfaction that it was Mr Rana who had in fact “played a greater role, in fact a facilitating role” in the various offences. Consistent with that characterisation Mr Rana was convicted of two more offences than his brother, was fined about $2,000 more than his brother, and ordered to pay about $4,000 more in compensation.
There are very limited circumstances in which it is possible or appropriate to go behind the fact of a person’s conviction. The fact of the conviction, and the person’s personal responsibility for the acts constituting the offence, cannot be disputed. In Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; 91 FCR 234 the Full Court of the Federal Court considered an appeal from a Tribunal decision which had set aside a deportation order under ss 200 and 201(c) of the Migration Act1958. The order had been made because of the person’s conviction, and custodial sentence, for manslaughter. In particular, the decision had placed particular reliance on the sentencing judge’s remarks that the person had stabbed the deceased twice. The Tribunal considered that the sentencing judge’s remarks were not open to him and, in reviewing the decision, had proceeded on a different factual basis. The Full Court of the Federal Court decided that the Tribunal had erred in departing from the sentencing judge’s findings. The Full Court said (at 91 FCR 244; ALD 358):
[40] … [W]here the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
…
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party; cf Minister for Immigration and Ethnic Affairs v Gungor, above, at FLR 445–6 per Fox J.
[47] We do not accept the submission of counsel for the respondent that Beckner stands as authority to the contrary of the foregoing. In Beckner, Davies J was simply recognising that some matters, such as the risk of recidivism, which might be considered in passing by a sentencing judge will assume greater importance before the tribunal, and that the tribunal should allow further evidence to be given in relation to those matters to allow them to be considered more fully. His Honour did not say, nor do we take him to have meant, that the tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.
The distinction between prohibited contradiction of the events constituting a past offence, and the permissible contemporary assessment of a person’s professional fitness (see Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279), their likelihood of re-offending or their character is conceptually clear. But it is a distinction that can be inherently difficult in its practical application. In New South Wales Bar Association v Somosi [2001] NSWCA 285, a case concerning the relevance of a legal practitioner’s income tax offences to professional fitness, the Court of Appeal said that “the mere fact of conviction is not necessarily determinative”. In the same vein, in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653; 5 ALD 135 at 138 the Full Court of the Federal Court explained that
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
The reference in SRT to the judgment of Davies J in Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 (see the extract in paragraph 9 above) was to a passage in that judgment where Davies J had endeavoured to give practical content to the distinction between the permissible and impermissible purposes of an apparent re-assessment of a person’s past criminal convictions and conduct. The relevant passage of the judgment was as follows (at 30 FCR 50-51):
The tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by a sentencing judge in the course of giving his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significance to a decision to deport, because for example they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing judge to determine whether Mr Beckner's crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. The tribunal had to form a view as to whether Mr Beckner was such a person as should be allowed to remain in Australia.
The decision in SRT involved a conviction that satisfied the statutory pre-condition for the exercise of the deportation power. That circumstance was identified as a significant reason for refraining from any apparent contradiction of the findings involved in the conviction or sentencing (see paragraph [46] of the extract set out in paragraph 9 above). In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; 62 ALD 673 the contentious convictions did not provide the actual basis for the exercise of the deportation power. But they were relevant to its exercise. The Federal Court (Branson J) opined that in such a case there was no absolute rule preventing the Tribunal from considering material that challenged the grounds on which the conviction had been based. But, relying on the decision of the House of Lords in General Medical Council v Spackman [1943] AC 627, Branson J held that the Tribunal had to proceed on the basis that the convictions were apparently correct, and that the person had a heavy onus in attempting to establish the contrary, particularly in relation to convictions that had been recorded after a contested hearing. Her Honour said this:
[43] … although there is no absolute rule that the tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at FCR 281–2; ALD 731–2; ALR 661), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non- citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at ALD 578; ALR 212–13; FLR 445–6); and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals: see Gungor per Sheppard J at ALD 597; ALR 234; FLR 469.
As a consequence, in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted: see Spackman at 635. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
[44] Fourth, although a decision-maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accepts evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted: see Saffron per Lockhart J at FCR 592; ALR 32.
[45] Fifth, the above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
In the light of the principles described in the cases to which I have referred above, Mr Rana faces at least a heavy burden in attempting to satisfy the Tribunal that a contemporary assessment of his character should proceed on the basis that he had no actual involvement in the matters that resulted in his 2010 convictions. His attempt to discharge that burden was, in my view lacking the candid and detailed disclosure ordinarily required, somewhat formulaic, and ultimately unpersuasive. It consisted of bare assertions of non-involvement, and castigation as “false” evidence that others gave against him. Mr Rana’s assertions of non-involvement are obviously inconsistent with the sentencing magistrate’s characterisation of Mr Rana as having played a “facilitating role” in the offences, and with the magistrate’s apparent view that Mr Rana was more culpable than his elder brother. In these circumstances I cannot attach any significance, favourable to Mr Rana, to his protestations of innocence in relation to the charges of which he was convicted.
The nature of good character
A passage in the reasons for judgment of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 is commonly regarded as informing the meaning to be given to the words “good character” in ACA 2007 s 21(2)(h). The passage is in the following terms:
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 while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 ; 117 FLR 455 per Miles CJ at FLR 459–60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128–9, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
One of the distinctions Lee J makes in this passage is between character and repute. That distinction is particularly important in the assessment of Mr Rana’s application. This is so for two reasons. The first is that, as the evidence to which I later refer shows, Mr Rana does appear to be held in good repute by his friends and family. The second is that the significance of evidence of general “good repute” likely depends on the extent to which that repute has been established in either ignorance, or awareness, of significant misconduct. This is because even apparently isolated episodes of misconduct may, depending on their particular circumstances, provide telling objective evidence that a person does not have the required attributes of good character: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195. Consequently even otherwise impressive evidence of general good character may be ultimately unpersuasive if the commendations are by people who have no accurate awareness of the particular misconduct in question: see Re Abouabd-Allah (Kennedy) and Minister for Immigration and Border Protection [2014] AATA 459 at [24] & [47].
This is not to say that significant past misconduct precludes contemporary satisfaction of a person’s good character. Such a proposition is contradicted by Lee J’s description of “good character” as referring to a person’s “enduring moral qualities”. As the Full Court of the Federal Court said in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197:
Conduct may make those qualities visible, but it should not be confused with them. In each case, having had regard to the conduct, the minister must still come to a further conclusion, namely, whether or not to be satisfied that the person is not of good character.
The conceptual distinction between “conduct” and “character”, whilst clearly recognised in the many decisions that grapple with the concept of “good character”, can be very difficult to apply to the circumstances of a particular case. Passages from two judgments highlight the potential for different views to be taken about the significance of aberrant conduct by a person of otherwise good repute, and apparently “good character”. In Ragni Mala Prasad v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 Deputy President McDonald considered that the submission of a knowingly false statutory declaration three years earlier justified dissatisfaction of good character despite more general evidence of a visa applicant’s good repute and behaviour. DP McDonald said (at [7]):
… A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
The other passage, which illustrates a somewhat different approach, is from the judgment of Lee J in Irving. There, in the context of a decision to refuse a visa application, His Honour said:
… the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.
The element of “public good” in the last part of the preceding extract arguably has a greater significance to visa application decisions than to citizenship applications. In Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321 at [8]; 324, the Full Federal Court stated:
The concept of “good character” in s 501 is not concerned with whether an applicant meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
This distinction has some justification in the different statutory criteria that govern the exercise of the visa grant power, on the one hand, and the determination of a citizenship application. Under ACA 2007 s 21 ministerial satisfaction of “good character” is one of the basic eligibility criteria for citizenship. In contrast, whilst s 65 of the Migration Act 1958 permits a visa grant only where the application is valid and satisfies the relevant criteria in the regulations, those criteria typically do not include a “good character” requirement. Instead, the Minister has a more general power to refuse or cancel a visa where a person does not satisfy the “character test”: see Migration Act 1958 s 501. A range of different legislative provisions determine whether or not a person passes the “character test”. One of them is that, because of their past conduct (whether criminal or general) the person is not of “good character”: see Migration Act 1958 s 501(6)(c). This different legislative background perhaps provides a degree of justification for an observation made by Deputy President Chappell in Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; 25 AAR 231 that:
… The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it …
It may be, having regard to the pertinent observations of Deputy President Forgie in Re Gibson and Minister for Immigration and Citizenship [2007] AATA 1679; (2007) 45 AAR 424 (at [34] & [35]), that the better way of reconciling the approach to character assessment in citizenship applications, on the one hand, and visa matters, on the other, is to emphasise the residual discretion that applies to the particular decision, rather than to postulate that a “higher standard” of “good character” applies in citizenship matters. Under ACA 2007 ss 21(2) & 24(2) satisfaction of an applicant’s “good character” is a necessary, but not necessarily determinative, consideration in the grant of citizenship. Under s 501 of the Migration Act 1958 absence of good character is a permissive, but not mandatory, basis for visa refusal or cancellation. These differences in the basic nature of the statutory powers permit different weight to be accorded to the character assessment, having regard to the underlying purpose and nature of the respective powers. And, in that context, it is important to bear in mind that actual satisfaction about a person’s “good character” is a mandatory requirement for the grant of citizenship.
Nevertheless it is still important to remember that particular instances of misconduct may be best characterised as “weaknesses or blemishes in character” rather than as probative of an underlying lack of good character. The decision in any particular case will be informed by knowledge of the particular circumstances. But even with that knowledge it may remain very much a matter of impression and, as such, a matter on which minds may reasonably differ.
Mr Rana’s circumstances and evidence
Mr Rana left Kmart in December 2007 to return to Bangladesh for his February 2008 wedding. He returned to Sydney shortly afterwards, and took up a full time manager’s position with McDonald’s. Prior to that he had in fact worked for McDonalds, although only on a part time basis, from the time shortly after he first arrived in Australia in late 2002. That long period of employment suggests that Mr Rana is well regarded at McDonalds. In October 2014 at an annual convention for its NSW and ACT region, McDonalds awarded Mr Rana a certificate as an “Outstanding Assistant Manager” in recognition of his consistent contributions to McDonalds throughout 2014. Apart from that award, the Broadway store manager provided a reference in November 2013 commending Mr Rana’s performance. He described Mr Rana’s duties as involving workplace safety, inventory control and marketing. He commended Mr Rana as doing an excellent job. The General Manager of McDonald’s Australia provided another reference for Mr Rana. The General Manager said he was aware of the fact of Mr Rana’s convictions, and that they related to the period of his employment at Kmart. He described a work relationship with Mr Rana over 10 years, and a more recent period of personal friendship. The General Manager said Mr Rana had undeniably strong work ethics and declared his immense respect for him.
Mr Rana’s current employer evidently holds him in high regard. His good qualities were also attested to by his wife. She too is a Bangladeshi citizen. She is a medical practitioner employed in a New South Wales public hospital. She has known Mr Rana since their school days, and their respective families were close friends throughout the period of their growing up. After Mr Rana came to Australia in 2002, they kept in touch, maintaining a long distance relationship until their marriage in February 2008. After she came to Australia their daughter was born in 2009. Mr Rana’s wife describes him as very supportive, caring and responsible, and the type of man who knows the difference between right and wrong. In her written statement she said that he “always grounds his decisions in life on an understanding of a high moral ground”.
Mr Rana himself emphasised that the four convictions referred to above were the only matters involving any misconduct on his part. He pointed out that during his almost 13 years of Australia residence he had committed no other offences, had studied hard, gained his permanent residence and established a family with a caring, accomplished and intelligent wife. In a way of underscoring the extent to which his general conduct in Australia has been exemplary, he said that he had always complied with his taxation obligations and had never even lost any driver’s licence demerit points.
Consistent with those details of his personal background, and his asserted innocence of the 2007 offences, Mr Rana declared his intention to dedicate himself to working hard, and living a moral, law abiding life.
Character Commendations
As I have indicated above, the favourable character commendation McDonald’s General Manager provided for Mr Rana did reveals an awareness of at least the bare fact of Mr Rana’s convictions, and their relationship to his employment at Kmart. But the statement contains insufficient detail to be confident that the General Manager was fully aware of the detailed circumstances of the offences. Without that demonstrable awareness, the General Manager’s commendation of Mr Rana carries less weight than it might otherwise merit. (The reasons for this conclusion are set out in paragraph 15 above.)
This reservation about the weight that can properly be attached to evidence about Mr Rana’s general good reputation and character is underscored by the content of other evidence on which Mr Rana relied. Mr Mahabub Islam is a fellow McDonald’s employee. He has known Mr Rana for about three and half years and has become a close friend. He described him as a hardworking and valuable employee, with undeniably strong work ethics and a person who was well respected by both his peers and junior employees.
Mr Islam said it was some years ago that he had learnt about Mr Rana’s difficulties at Kmart. But it became readily apparent that his understanding of the actual details of the offences, and of the extent of Mr Rana’s involvement, was distinctly more favourable to Mr Rana than the view that had been formed by the sentencing magistrate (see paragraph 8 above). According to Mr Islam’s understanding, it was only some of Mr Rana’s colleagues who were involved. Mr Islam’s impression was that Mr Rana had to take the blame, because he was the miscreants’ manager, but he was not personally involved in the offences. Mr Islam specifically acknowledged that he had provided his commendation of Mr Rana’s character in the firm belief that Mr Rana had not in fact committed the offences of which he had been convicted.
Mr Mehedi Hasan went to the same Bangladeshi school as Mr Rana and was one of his longstanding friends. He described Mr Rana as loyal, honest, considerate and supportive. Such was his support of Mr Rana that his character reference concluded with the statements that he “really cannot think of anything of consequence on the negative side of the personality ledger when it comes to Sadek” and that he considered him “a fine, well balanced person with an abundance of positive qualities”.
However it soon became clear that Mr Hasan’s view of Mr Rana was also one coloured by a perception of Mr Rana’s absence of personal involvement in the 2007 Kmart offences. Mr Hasan said that he had first become aware of the offences when Mr Rana had told him something about them. He could not remember exactly what he had been told at that time, but his understanding was that it was Mr Rana’s brother who was responsible for stealing money and that, although Kmart blamed Mr Rana, he had not really been involved personally. Mr Hasan said that he did not really ask Mr Rana much about the precise circumstances, but he had subsequently been given a large number of papers and statements relating to the offence. Mr Hasan said he had read of these documents, but could not remember exactly what they were. Having read the material he had been given Mr Hasan concluded that Mr Rana had not been involved in the offences.
I have referred earlier to the evidence Mr Rana’s wife’s gave of his general good reputation and character. In her written statement she said that Mr Rana had told her about “the circumstances that led him to the offences” and expressed the view that he was “very much remorseful and ashamed of his offence”. However it became apparent from her cross examination that Mr Rana had told her that it was actually his brother who was responsible for the offences and that Mr Rana had not been personally involved. She said that he had always maintained to her that he had not been involved in the offences.
Mr Rana’s wife’s belief in his personal innocence of the offences is strikingly inconsistent with the passage in her written statement where she describes him as “very much remorseful and ashamed of his offence”. It leaves me with the distinct impression that her written statement was formulaic and unreliable. That impression is only strengthened by the fact that her written statement concludes with the identically worded commendation that appears in the statement of Mr Hasan – and to which I have referred in paragraph 30 above.
Assessment
I accept the difficulty that a person such as Mr Rana faces when they assert their innocence of offences for which they have been convicted. Mr Rana may firmly, and honestly, believe in his innocence. But the facts are not only that he was convicted, after a contested hearing, but also that the sentencing magistrate regarded him as having a principal role in the offences of which he was convicted. Mr Rana has provided no evidentiary basis, other than his mere assertions, to question that characterisation of his involvement.
It is both appropriate and fair to recognise that the offences occurred almost eight years ago, and that they are his only known material transgressions. But it is also appropriate to recognise that the offences involved calculated dishonesty by a trusted employee, and the apparent implication of other employees. Such conduct rather tends to convey a strong impression of an underlying lack of good character. And such an impression is not readily dispelled by self-interested assertions and the benevolent commendations of close associates and family members.
In the present state of the evidence in these proceedings case I am left with two very strong impressions. The first is that Mr Rana’s bald assertions about not being involved at all in the circumstances of the offences are not credible. There is likely to be more to the circumstances of the 2007 offences, or at least about the evidence relating to them, than he has disclosed. I find it difficult to accept that he would have been convicted of any of the offences if the only evidence implicating him had been merely telephone authorisations of refunds – which is one of the suggestions he made in the present matter (see paragraph 6(f) above). It appears rather more likely, given the Magistrate’s sentencing remarks, that there was additional evidence of Mr Rana’s knowing involvement.
The second strong impression I have formed is that the evidence proffered by Mr Rana’s colleagues and wife to establish his contemporary good character are not based on a reliably accurate understanding of the extent of his involvement in the 2007 offences. On the contrary, they all seem to be based on the view that he was wrongly convicted, or at least personally blameless. That view may be one they reasonably hold. But it has not been shown to be based on any real knowledge of the underlying circumstances and, in the absence of specific evidence to establish the true extent of their knowledge, it is not a view I am inclined to adopt, given the sentencing Magistrate’s remarks about Mr Rana’s role in the offences.
The mere fact of Mr Rana’s conviction for the four 2007 offences would not necessarily preclude a contemporary assessment that he is currently of good character. But it is not a conclusion about which I am satisfied on the current evidence. I am not satisfied of Mr Rana’s current good character because he has been convicted of a number of offences involving dishonesty. Those offences occurred whilst he occupied a responsible position as a manager of other employees, and appears to have involved a self-interested abuse of that managerial position. Mr Rana has not demonstrably conveyed, either to the Tribunal or to the witnesses who gave evidence supporting his review application, sufficient of the circumstances of his conviction to permit satisfaction that the offences were merely episodic “blemishes” by a person who is otherwise, and currently, of “good character”.
Decision
The decision under review is affirmed.
.I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member .............................[sgd]...........................................
Associate
Dated 16 April 2015
Dates of hearing 8 September 2014 & 13 February 2015
Applicant In person Solicitors for Respondent Clayton Utz
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