Singh and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 2311

Singh and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2311 (19 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/1126

Re:Harwinder Singh

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:19 July 2018

Place:Melbourne

The Tribunal sets aside the decision under review and remits the application to the Respondent with the direction that the Applicant satisfies section 21(2)(h) of the Australian Citizenship Act 2007 at the time of its decision.

........................................................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – Citizenship by conferral – good character test – applicant convicted of sexual offence in 2008 – other associated breaches – other behaviour in Australia – pattern of conduct – contemporary good character assessment - decision set aside and remitted with direction applicant satisfies good character requirement

Legislation

Australian Citizenship Act 1948 (Cth) (Rep), s 13
Australian Citizenship Act 2007 (Cth), ss 21, 24
Crimes Act 1958 (Vic), s 40
Migration Act 1958 (Cth), s 98
Sex Offenders Registration Act 2004 (Vic), s 4(1)(b)

Cases

Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; 68 FCA 422
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212
Re: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 654

Secondary Materials

Citizenship Policy - DIBP – dated 1 June 2016 (Chapter 11)

REASONS FOR DECISION

Senior Member D. J. Morris
19 July 2018

1. Mr Harwinder Singh was born in February 1986 and first arrived in Australia in February 2008.  He is a citizen of India.  He has held a succession of visas, the most recent being a Subclass 186 Employer Nomination scheme visa.  On 31 March 2016 Mr Singh applied for Australian citizenship by conferral.  On 15 February 2017 a delegate of the Respondent decided under section 24 of the Australian Citizenship Act 2007 (the Act) to refuse Mr Singh’s application.  The delegate decided that Mr Singh was not of good character and thus did not meet the requirements of section 21(2)(h) of the Act.

2. The hearing was held on 21 and 23 March 2018.  Mr Singh was represented by Ms Dorota Sokolowski.  He gave evidence and was cross-examined by Ms Melinda Jackson from the Australian Government Solicitor representing the Respondent.  The Tribunal was assisted by interpreters in the Punjabi language.  Dr Joseph Poznanski, psychologist, gave evidence and was cross-examined.

3. The Respondent tendered documents (T-documents) and supplementary documents (ST-documents) under section 37 of the Administrative Appeals Tribunal Act 1975.  The Applicant tendered statements of evidence and fact, and a psychological report from Dr Poznanski dated 14 August 2017, and two character references.  The Respondent also tendered three academic articles on recidivism risk assessment in relation to sex offenders.

   The legislative context

4. A person is eligible to become an Australian citizen if the Minister administering the Act is satisfied that the person meets the general eligibility requirements set out in section 21 of the Act.  In Mr Singh’s case, the delegate of the Minister found that Mr Singh was aged 18 or over at the time of his application and was a permanent resident.  He had demonstrated a basic knowledge of English and an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship, and had sat and successfully completed a citizenship test approved by the Minister. 

5. The delegate was not satisfied that Mr Singh was of good character because of his criminal record in Australia.  Because a person must satisfy all parts of section 21, the delegate did not go on to assess whether Mr Singh met the requirements of section 21(2)(g) relating to whether it is likely that the person will reside in, or continue to reside in, Australia or maintain a close and continuing association with Australia if granted citizenship.

6. If, therefore, the Tribunal is satisfied that Mr Singh is of good character, the matter should be remitted for the other legislative requirements to be assessed.  Importantly, the assessment of character is to be made as at the date of this decision, not the date of the decision under review.

   The Applicant’s criminal record

7. Before the Tribunal (T5, p 81) was a Crimtrac report – National Police History Check.  It records that on 1 August 2008 Mr Singh appeared before the Melbourne Magistrates’ Court and was convicted of two offences – indecent assault and unlawful assault.  He was fined an aggregate of $1,000 in relation to both offences.  On 8 November 2013 the Applicant appeared before Moorabbin Magistrates’ Court and was convicted of three breaches of failing to comply with reporting obligations.  The Court adjourned the matter to 6 November 2015.  Mr Singh was also convicted of the offence of furnishing false or misleading information and was ordered to pay $500 into the Court Fund in recompense.

8. The convictions for indecent assault and unlawful assault relate to an incident occurring on 7 May 2008 involving a 16 year old female travelling on a train. The complainant told the police she felt the Applicant rub two fingers between her buttock cheeks through her school uniform. Mr Singh was charged and pleaded guilty to the charges of indecent assault and unlawful assault when he appeared before the Court. The Respondent told the Tribunal that a person convicted of the offence of sexual assault is liable, under section 40 of the Crimes Act 1958 (Vic), to level 5 imprisonment, which is a maximum of 10 years’ imprisonment.

9. As a result of Mr Singh’s conviction and because the victim was not an adult, he became automatically subject to the provisions of the Sex Offenders Registration Act 2004 (Vic) (the Registration Act) for a period of eight years.  Mr Singh was placed on the Sex Offenders Register (the Register) established by the Registration Act by a notice issued to him in June 2009 but the period for registration was taken to have commenced on 1 August 2008, and to conclude on 31 July 2016.

10. A person on the Register must comply with a number of requirements including an annual interview with an authorised officer where a questionnaire is completed.  Mr Singh was found by the Court to be in breach of these requirements in three respects.  He moved house and did not notify his new address to police; he failed to disclose employment details to police; and he failed to advise the police of the registration number of a motor vehicle owned by a friend which he drove on a number of occasions.  He was also found to have provided false or misleading information to police by stating he was enrolled in a course at the Brighton Institute of Technology when he was no longer enrolled there.

    The Applicant’s evidence

11. Mr Singh told the Tribunal about the events on 7 May 2008, three months after he arrived in Australia.  He said he was travelling on a train from Narre Warren into the city to attend the college where he was studying.    A group of schoolgirls got onto the train.  During the journey, he said one of the girls accused him of touching her bottom.  The group told Mr Singh to get off the train and they approached the train driver.  Mr Singh said he was frightened and started to run away but the girls followed him and held him until the police arrived.  He was arrested and taken to the police station.  Mr Singh said at the police station he was interviewed and was told the girl had alleged he had put two fingers between her bottom cheeks through her skirt.  He said he told the police that he did not recall doing that, but if that is what she is saying, he did not touch her intentionally.  Mr Singh said he sought legal advice.  When asked why he pleaded guilty, Mr Singh said he did not have the money to fight the matter and thought it was ‘appropriate’ to accept the charge and ‘finish the matter off now’.  He also said he did not want to put the girl through the distress of having to appear to give evidence.

12. The Tribunal was told by Ms Sokolowski that the barrister who represented Mr Singh at the plea, Mr Galligan, has sadly since died.  In addition, the Tribunal had issued a summons to the Melbourne Magistrates’ Court to provide details of the appearance, but it was returned with advice that no relevant records were available, so there is nothing before the Tribunal in terms of submissions that might have been made on behalf of Mr Singh or the police to the court, or comments made by the Magistrate in passing sentence.

13. It happened that among the passengers in the train carriage that morning was a barrister, Mr Patrick O’Shannassy.  Mr O’Shannassy had no connexion with Mr Singh or the victim of the assault, but on 29 May 2018 of his own volition attended a police station and made a written statement (T6, p 86) about the event as he saw it.  Mr O’Shannassy recorded that the carriage was very crowded.  He noticed a group of about four or six female secondary school students standing in the middle of the carriage, one of the group bumped into him at one stage and another passenger knocked the newspaper he was carrying, because people were packed so tightly.  Mr O’Shannassy then recorded:

    As the train came into Richmond, the train takes a left hand turn and the train always rocks just before it comes to Platform three.  The train then stopped at Richmond and people got out the other side.  As people were getting out there was sort of more room.

    Immediately across from me was a girl in the group and behind her on the corner was a Sihk [sic] boy.  The girl was then facing the Sihk boy that was leaning on the rail.  I remember he had his hands down in front of him holding his bag.  She said to him in an assertive way “you touched my bum”.  He indicated with his hands and moved his hands as if to say, I was just holding my hands here in front of me and was showing her, his bag.  His hands at that time were level with the height of the girls bottom if she had her back to him.  She said to him “you touched my bum, get off the train”.  He again said something to the effect of, no.  He seemed taken aback and timid.

    The girls started to move off the train and he started to move off as well.  He then stopped and she put her arm on him in an attempt to pull him off the train.  He lifted his arm up in an attempt to get her off him.  He was in the middle of the carriage at this stage.  There was another female in her early 30s on the train near the door and she said to him, “no, you should get off the train”.  He then got off the train and they all stopped immediately in front of the carriage.

    He then attempted to walk away and moved a couple of paces from them and then he came back.  The train was stopped for about a minute and there appeared to be a discussion between the school girls and this man.  I couldn’t hear what they were saying, but the girl appeared to be accusing him of something and he was denying it.  A station person then came along and was in the conversation as well.  They all must have moved to the front of the train.  The train then moved away and through the window I saw them in conversation.

    I didn’t see what happened on the train between the two of them, I just thought I should contact the police and explain the situation on the train as she didn’t seem to be aware how packed the train was at the time.  I cannot provide any information in relation to the allegation of the boy touching her.

14. In cross-examination Mr Singh said he had read Mr O’Shannassy’s statement.  He said he did not remember touching the girl but may have done so unconsciously when the train moved.  He said that at the time he was aged 21 or 22 but was scared by the group of girls.  In terms of his plea of guilty, Mr Singh said one of the reasons was that he did not want the girls to come to court.

15. Mr Singh told the hearing he did not recall his barrister telling him what the potential maximum sentence was for a conviction for sexual assault and did not recall the Magistrate mentioning the Sex Offenders Register but said he did not have an interpreter at the hearing and may not have understood.  He said he came to know later that it was a serious offence but at the time understood only that he was liable for a total fine of $1,000.

16. Mr Singh was asked about his breaches of reporting obligations.  In terms of not disclosing his employment in a restaurant, Mr Singh said he was working part-time at that time and thought that the police might have told his employer and he would have lost his job; he now understood that would not have occurred.  In terms of the Applicant telling the police that he was enrolled at Brighton Institute of Technology undertaking a hospitality course, Mr Singh said that he had been studying there and attending classes but was not at the relevant time but as he had not withdrawn his enrolment, he assumed he still was enrolled.

17. Mr Singh was also asked about his migration history.  He said he originally came to Australia in 2008 to study a diploma in community welfare and then transferred to a hospitality course at the Brighton Institute.  He agreed that, when he filled in an application form in March 2010 for a new visa, he ticked ‘no’ to the question relating to offences and that he had already been convicted of the assault charges at that time.  Mr Singh said he was under stress and had not intentionally misled the Immigration Department.

18. Mr Singh also agreed that in his application for a 457 visa the same question was also answered ‘no’ but said that this form was filled in by a Migration Agent who then had him sign it.  He then said the same Agent prepared a statutory declaration for him to sign which was before the Tribunal (ST13, p 64).  The declaration was dated 28 June 2012 and relevantly stated:

    While completing my application for subclass 457 visa application, I forgot to mention my previous offence, which took place almost four years back in year 2008.  It was totally unintentional.  In past, while applying for another visa, I informed the Department of Immigration about these charges.

    On 01/August/2008, I was convicted for indecent assault and unlawful assault and fined $1,000 in aggregate by the Melbourne Magistrates Court.  I paid all fine on time.

    Since this unfortunate incident took place my behaviour and conduct has been good and I have not been involved in any wrongdoing, and I promise that I will follow all Australian laws and regulations in future.

19. Mr Singh told the Tribunal that he had never sought Australian welfare assistance and had, unless studying, worked gainfully since arriving in Australia.  The Tribunal had before it (T9, p 90) a statement from Mr Baljinder Singh dated 13 November 2016 recording that the Applicant had been employed by him, at that date, for two months.  He recorded:

    He is a very good person.  I know his charges and his past criminal history.  He feel very shame for that.  He is honest and hard working.  He is very polite at work and helps others.  I had no problems with Harwinder at the workplace.  He is very good person.  I’m fully support for his citizenship application.

20. Mr Singh also gave evidence of being employed as a chef at a restaurant until a back problem compelled him to give up this employment and then take up employment as a courier.  Mr Peter El-Khoury, the owner of the restaurant, provided a ‘certificate of employment’ dated 21 September 2017 which relevantly stated:

    Harwinder Singh came to work with us at Georges in December 2011 as part time and then full time Chef-Cook.

    Harwinder commenced with food preparation but quickly advanced to take on various responsibilities in our kitchen.  He has performed impressively in his work, and has displayed great dedication and talent for cooking.  Harwinder is hardworking and committed and is a leading example to all our staff members.

    As an employee he is punctual, helpful, polite, and extremely cooperative in all dealings with my staff, my patrons and myself.  In 12 years of operating some various food service oriented operations, I have not met too many people of Harwinder’s potential and enthusiasm.

    Dr Poznanski’s evidence

21. Dr Poznanski provided a report to the Tribunal at the request of the Applicant’s solicitor, Ms Sokolowski.  He recorded that the report is based on information collected over six counselling sessions which took place every three to four weeks in the period between 1 April 2017 and 12 August 2017.  Dr Poznanski conducted a clinical interview and administered two standard psychometric measures, the Depression, Anxiety and Stress Scale (DASS) and Criminal Thinking Scales.

22. After reciting his knowledge of Mr Singh’s conviction for offences on 7 May 2008, Dr Poznanski recorded:

    Mr Singh stated that he feels bad about himself.  He stated: “I did wrong by the Australian Police and Australian community.  I thought I was clever, but instead I ruined my life.  Mr Singh stated that he knows that he “should not commit bad acts, not because I may get into trouble, but because it is not fair to others.”  In referring to his failure in meeting the reporting obligations, he stated “I tried to be clever, but I got caught.  I know now, that I have only one option, and that is to be truthful.  It was my fault that I did not tell police about my job, my studies and about my new place of residence.  I was scared that people would find out about the Sex Offender Register, but I should have done what was required of me”.

    Mr Singh reported that he feels sorry and apologetic in relation to the teenage girl, because she was very distressed; and that it was wrong of him not to comply with his reporting obligations.

23. In terms of the DASS test, Dr Poznanski administered it on his second consultation with the Applicant and recorded ‘extremely severe’ depression, and ‘moderate’ levels of anxiety and stress.  At their last consultation, he readministered the test and Mr Singh recorded ‘mild’ depression and ‘normal’ levels of anxiety and stress.  Dr Poznanski said at the hearing he attributed the change to Mr Singh working through his anxiety and being able to talk frankly about the issues at their meetings.

24. Dr Poznanski also administered a Criminal Thinking Scales test and said the results suggested Mr Singh does not believe he is entitled to engage in offending behaviour; is unlikely to justify his wrongful behaviour; is unlikely to shift responsibility when committing wrongful behaviour; is unlikely to rationalise his wrongful or unlawful actions and does not engage in unlawful behaviour because of cold-heartedness.

25. Ms Jackson put to Dr Poznanski that the Criminal Thinking Scales test is a USA test signed to assess prisoners serving sentences, to which he agreed.  She suggested that a STATIC-99 test would have been a better measuring tool to assess Mr Singh’s likely prospects of recidivism, and Dr Poznanski said he had administered STATIC-99 tests to other patients but had not been asked to do so in relation to the Applicant.

26. Dr Poznanksi concluded that Mr Singh showed insight into how his behaviour had affected others and that he had shown concern for his victim, recognising the fact that she was distressed by the incident.   He concluded that, in his opinion, Mr Singh wants to lead a normal and productive life and has a genuine wish not to commit any unlawful acts, but that the Applicant is unassertive, lacking in self-confidence and has seemingly low self-esteem.

27. Ms Jackson asked Dr Poznanski whether he was aware of the literature on sex offending and asked his opinion  on whether Mr Singh fell into the category of situational or preferential offending.  Dr Poznanksi responded that, while he knew Mr Singh pleaded guilty, in his clinical opinion he did not think the Applicant was a sexual offender. 

1. The Tribunal asked Dr Poznanksi whether it was his opinion that Mr Singh was in denial about his offending, and he said he felt innocent over the incident in the sense of it being sexual in nature but it was not his professional conclusion that Mr Singh was denying wrongdoing.

   Submissions

2. Ms Sokolowski noted that the Tribunal had before it an Indian Police Certificate recording no offences by the Applicant.  She said that the circumstances of the offence were ‘almost convincingly accidental’, that Mr Singh accepted he had touched the victim and pleaded guilty but that the Tribunal does not have the facts as presented to the court and should not necessarily accept the police record is what the court accepted.

3. Ms Sokolowski said that Mr Singh’s false information provided in visa applications all occurred in 2011-12 and that he did not stand to gain any advantage by making a false declaration deliberately.  Ms Sokolowski drew the Tribunal’s notice to the fact that the Applicant had obtained and provided a National Police Certificate to the Immigration Department so any inconsistency would be shown, in any event.

4. Ms Jackson conceded that the Tribunal’s task was to assess the Applicant’s character ‘now’.  She said that the Tribunal should pay careful attention to Mr Singh’s conduct since arriving in Australia and that the first offence occurred very soon after his arrival in Australia, some three months.

5. Ms Jackson said that the Tribunal cannot go behind the core elements of the offending and that if the Magistrate had been satisfied that only the unlawful assault charge was proven, in spite of a guilty plea, she would have been obliged to have struck out the indecent assault charge.

6. Ms Jackson said that, insofar as Mr Singh had blamed his Migration Agent for incorrectly filling in a visa form, section 98 of the Migration Act 1958 provides that that a non-citizen who does not fill in an application form is taken to have done so if he or she causes it to be filled in or it is otherwise filled in on their behalf. 

   Consideration

7. The Tribunal notes that the Respondent cited a decision by Senior Member McCabe (as he then was) in ReChen and Minister for Immigration and Citizenship [2007] AATA 1815 (Chen) in which he was of the view that the requirements of good character in terms of Australian citizenship required the Minister to be positively persuaded that the applicant is of good character.  Although the Tribunal in Chen was considering section 13(1)(f) of the Australian Citizenship Act 1948 (now repealed), the relevant words were replicated in the Act now in force.  The Tribunal also notes the Respondent’s submissions that the Tribunal ‘cannot contradict or go behind’ the essential facts underlying the conviction.

8. The Tribunal accepts these two contentions and finds that it must be persuaded that an applicant for citizenship is of good character for that general eligibility requirement to be met under section 21(2)(h) of the Act.  The Tribunal also notes that it is well-established that where a court made a conviction finding, it is axiomatic that conviction cannot be otherwise agitated or disturbed.  However, this does not mean that the Tribunal cannot take into account any relevant circumstances that surround such a conviction including any comments by a sentencing judicial officer or, where there is a range of penalties that may be imposed, how a Court may be informed, or informed itself, in deciding what the penalty should be. 

9. Although Mr Singh pleaded guilty and so there was no trial, the judgement of the Full Federal Court judgment in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212 is relevant, where Their Honours stated:

   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.

10. The phrase ‘good character’ is not defined in the Act.   Brennan J, then President of the Tribunal, made clear in the often quoted decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 654 about the relevance of government policy in merits reviews by this Tribunal. H His Honour said:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

11. The Tribunal therefore has regard to the Citizenship Policy manual (the manual) used by officers of the Immigration Department, and in particular Chapter 11 – Character.  The manual draws attention to the Full Federal Court decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 (Irving) where Lee J said, at [431]:

    the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of the 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…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…

12. The manual goes on to say that, in this context, ‘moral’ does not have any religious connotations.  The phrase ‘enduring moral qualities’ encompasses the following elements: characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; behaving in an ethnical manner, confirming to the rules and values of Australian society.

13. In terms of the principal offence in the National Police Certificate relating to Mr Singh, it is unfortunate that in this review the views of the barrister representing Mr Singh cannot be sought because of the demise of that gentleman.  It is further regrettable that the court itself was unable to furnish any record of the hearing, other than the date and the outcome.  However, it is instructive to the Tribunal that the Respondent advised that the maximum penalty for the sexual assault offence of which Mr Singh was convicted is 10 years’ imprisonment.  The court imposed an aggregate fine of $1,000 for both the unlawful assault and indecent assault offences.  The Tribunal therefore concludes that the sentencing magistrate came to the considered view that this was an appropriate quantum in terms of the gravity of Mr Singh’s offending.

14. In this matter Mr Singh pleaded guilty, which brings him into the scope of section 4(1)(b) of the Registration Act. Ms Sokolowski made submissions to the Tribunal that the Victorian Law Reform Commission had made recommendations that the Registration Act should be amended to provide that a person should not be placed on it automatically but that should require a court order. While this is useful information, this was the law in force at the time, and still is, so the Tribunal does not place much weight on any proposals for change, except to note that registration was, by force of that legislation, a mandatory provision when the victim of an assault is not an adult, and did not involve a discretionary power exercised by a court.

15. The Tribunal places significant weight on Mr O’Shannessy’s statement to the police.  He was a disinterested party who commendably attended a police station and made his statement which provides some context to the circumstances of the events of 7 May 2008.  His statement is generally consistent, in relevant major details, to the evidence given by the Applicant, though Mr O’Shannessy was careful to make clear he did not see whether or not Mr Singh touched the schoolgirl.

16. The Tribunal notes that Mr Singh has been convicted of three breaches of the requirements of the Register.  In terms of the failure to notify a change of residence and the registration number of the car of his friend he occasionally drove, both of these were self-declared to the interviewing officer.  In terms of not wanting to advise the police that he was working in a restaurant and therefore wrongly saying he was still studying at his former tertiary institution, the Tribunal notes that the requirements to know the workplace of a person on the Register is a fundamental element which goes to the protection of the community, and this must be complied with.  It is to Mr Singh’s discredit that he did not. 

17. Mr Singh provided a written statement dated 20 November 2017 and referred to these breaches:

    In June 2009 my relative gave me a business card of a police officer who was looking for me at my previous address.  I contacted that police officer immediately and I was advised to attend Glen Waverley police station.

    On 11 June, 2009 I attended Glen Waverley police station where I was told that I was registered on the Sex Offender’s Register.  I was interviewed in relation to my personal details.  I was advised that I needed to report to the police any changes in these details and I was given an acknowledgement to sign which I did.

    After that meeting I was aware of the above, however the police officer did not mention to me that the non-compliance with the reporting obligations was a serious matter.

    In May 2012 I had a yearly police interview.  At that time I was undergoing a lot of changes in my life.  In November, 2011 I had finished my Diploma of Hospitality course.  In December, 2011 I was offered part time trainee position as a cook with Georges Restaurant.  In February, 2012 I obtained my formal Statement of Academic Qualification and also enrolled at [sic] Advanced Diploma of Hospitality Management.  I found adjusting to the demands of a job in the kitchen very stressful and tiring although my employer was very happy with my performance.  My employer offered to sponsor me for a work visa.  Although I enrolled at school I did not attend because I concentrated on my job.

    At the interview I did not disclose that I worked at Georges Restaurant.  I had already lost a career in community welfare because of the incident of 2008.  I was really concerned that the police would tell my employer about my criminal record and my new career would be lost.  As I believed I was still enrolled at the school I told the police I was still attending.  In hindsight I sincerely regret lying to the police about this.

    In March 2013 police requested that I attend the police station.  I was interviewed in relation to non-reporting of change of address.  During that interview I also disclosed or corrected other information, including my employment and the fact that I had driven a car.

    In relation to the failure to update my address and the fact of driving a car I can only say that I simply forgot to update the police.  I was not hiding from the police and I had no reason to fail to report.  I did update my address with VicRoads in November, 2012 and the police were able to find me through this at any time.

    Until I was charged with the above offences I had not been fully aware of the seriousness of my obligations, I was only aware that I was required to update my details but it had never been explained to me that non-compliance was a criminal offence.  Had I been aware of this I do not think I would have forgotten to update the police about innocent information.

    Since I learned about the seriousness of my obligations in 2013 I have had [sic] diligently reported to the police and have no re-offended.

18. It does appear that the Applicant was not told about the fact that he would be mandatorily placed on the Register at the time of his plea.  There is evidence supporting this conclusion.  At ST17, p 111, was an extract of an internal Victoria Police email dated 4 November 2013 which in part stated:

    I have obtained Magistrates Court extracts that show police made an application to have him [the Applicant] registered on 12.12.2008 which was adjourned to 05.02.2009 – on that date Magistrate WALLINGTON noted “POLICE NOT PURSUING APPLICATION TO HAVE DEFENDANT PLACED ON SEX OFFENDERS REGISTER AT THIS TIME. THEIR VIEW IS THAT IT WOULD NEED TO BE NOW BE MADE IN THE SUPREME COURT AS THEY ARE OUT OF TIME.”

    There is an undated file note (ST16 p 109) which indicates that, because the victim of the indecent assault was a minor, registration for eight years was mandatory and the Court “had no discretion/say”, and went on to say that Victoria Police could advise Mr Singh of his reporting obligations and “put him on the Register”.

19. The Tribunal accepts Mr Singh’s evidence that, while he did know of his duty to update relevant personal details to the police after he attended Glen Waverley police station in June 2009, he did not appreciate that the consequences of not so doing would result in arrest for a criminal offence.

20. Mr Singh gave evidence that he has had no interactions with the police since 2013.  He has been issued an infringement notice for an unsecured load on a utility he was unloading and said he paid the fine.  He also said he had been fined for failing to turn on the headlights of a car he was driving in a street-lit area and for driving over the posted speed limit, 47 km/h in a 40 km/h zone.

21. The Tribunal had a character reference from Mr Gurpreet Singh of the Sikh Temple in Blackburn who recorded that he considered the Applicant an excellent role model, and “a person of good moral character, and as a bright spot in our congregation”.

22. The Tribunal has carefully weighed up the evidence in this matter.  The Indian Police Certificate (ST7, p 40) dated 18 July 2011 records no criminal convictions.  It is a matter of fact that Mr Singh pleaded guilty to both the offences of indecent assault and assault in Victoria in 2008.  It is also a matter of the operation of the law that he was placed on the Register as a consequence of the conviction and the age of the victim.  However, the Tribunal places great weight on the fact that the Magistrate, who was able to consider both the police evidence and submissions from Mr Galligan for Mr Singh at that time, imposed an aggregate fine of $1,000 for both offences, when the Court had available to it a substantial range of penalties including, on the submission of the Respondent, a sentence of imprisonment for 10 years in the most serious of cases. 

23. The offending was ten years ago.  As outlined above, there have been breaches of the Register, but these may be placed in two categories: inadvertent breaches and two where Mr Singh was concerned that he would lose his restaurant job.  The fact that when Mr Singh came before the court in relation to these breaches no conviction was recorded is, to my mind, significant.

24. There is also evidence before the Tribunal of a lack of completeness in terms of certain information required of Mr Singh in visa applications, and the Tribunal takes these seriously and agrees with the Respondent that the Migration Act makes clear that a visa applicant is personally responsible, even if errors and omissions are made by a Migration Agent or someone else filling in a form on their behalf. However, it is also noted that Mr Singh readily provided the National Police Certificate to the Immigration Department which contained all the details of his offences.

25. The Tribunal places significant weight on the evidence of Dr Poznanski, because he had seen Mr Singh over an extended period of time in a clinical context and gave the Tribunal a considered assessment that he considered the Applicant did not have any of the personality or psychological characteristics which would indicate a propensity to commit a sexual offence (or, indeed, any criminal offence), or to re-offend. 

26. The Tribunal considers that there has been no pattern of serious criminal behaviour since the 2008 conviction, ten years ago.  The Tribunal notes that Mr Singh has consistently worked since completing his academic studies and it was not contested that he has not had resort to the Social Security system.  His employers have regarded him as a good worker, and indeed one of them sponsored his visa.  The Tribunal found that Mr Singh did not attempt to deny the 2008 offence in response to direct questions, other than to say that contact with the complainant was inadvertent.  It is also noted that Mr Singh has involved himself in the community in voluntary organisations and with his church.

27. The task of the Tribunal, as accepted by the Respondent, is to make an assessment of Mr Singh’s character as at the date of this decision and not to conduct a retrospective assessment.  Taking the following into account – the gravity of the offence, the Applicant’s history in Australia, the absence of any other offending (except for minor traffic infringements), a positive psychological report and consistent evidence from employers of his good behaviour, the Tribunal is of the view that a person who has been convicted of a serious crime may nonetheless show, by his subsequent conduct, to have reformed and now be of good character, to borrow Lee J’s formulation in Irving.  On the evidence taken as a whole, the Tribunal is positively satisfied that is the case in 2018 with Mr Singh.

    DECISION

28. The Tribunal sets aside the decision under review and remits the application to the Respondent with the direction that the Applicant satisfies section 21(2)(h) of the Australian Citizenship Act 2007 at the time of its decision.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated:  19 July 2018

Dates of hearing:	21 and 23 March 2018
Advocate for the Applicant:	Ms Dorota Sokolowski
Advocate for the Respondent:	Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor