Singh and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 2150

Singh and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2150 (10 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5659
Re:Sobat Singh
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:10 July 2018
Place:Sydney

The decision under review is affirmed.
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Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal – whether applicant of good character – criminal record -seriousness of offence – indecent assault - common assault – concealment of conviction – enduring moral qualities - Tribunal not satisfied in the circumstances that sufficient time had passed – decision under review affirmed
PRACTICE AND PROCEDURE – weight to be placed on evidence where persons not available for cross-examination – rules of evidence
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Da Wei Zheng v Minister for Immigration and Citizenship [2011] AATA 304
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Daniele [1981] 39 ALR 649
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Chris Puplick AM, Senior Member
10 July 2018

Mr Sobat Singh, a citizen of the Republic of India comes before this Tribunal to seek review of a decision by a delegate of the Minister for Immigration and Border Protection (now Home Affairs) to refuse his application for citizenship by conferral.
In these proceedings Mr Singh was assisted by the provision of an interpreter in the Hindi language.
PROCEDURAL DETERMINATION
At the commencement of proceedings Mr Turner, on behalf of the Applicant raised a formal objection to the production or use of documents which were part of the Supplementary Tribunal documents admitted into evidence. In particular he drew attention to the fact that a number of statements, being statements made by both people who had lodged sexual harassment complaints against Mr Singh and by persons in support of those complainants, contained matters which were clearly hearsay. Furthermore they were unsigned. Finally, the Applicant had sought to have the declarants available for cross-examination but this was not possible. All of the declarants were in Tasmania at the time of making their declarations and there is no way of ascertaining their current situation. The statements were produced under summons by the Respondent from the Tasmanian police authorities.
Although the Tribunal is not bound by the formal rules of evidence[1], in this case the Tribunal indicated that it would place limited reliance and little weight on the substance of the statements, relying instead on the simple fact of the convictions which had been recorded in the Hobart Magistrates Court. Even in that instance, without the benefit of sentencing remarks before the Tribunal it would not be possible to know which, if any, of the statements were in evidence before the court nor how they were tested in the court proceedings. The only relevant material fact, for these current purposes, appeared to be the period of time over which they were made and the number of complainants involved.
[1] Administrative Appeals Tribunal Act 1975 (Cth) section 33 (1) (c).
In any event the Tribunal is not entitled to go behind the fact of convictions once determined by the Courts. Its scope is limited as outlined by the Federal Court as follows:
“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.”[2]
[2] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653.
DECISION
For the reasons which follow, this application is refused and the decision under review is affirmed.
BACKGROUND
Mr Singh was born in India on 5 October 1956 and first came to Australia on 22 June 1996.[3] He has held a Regional Sponsored Migration Scheme visa and was granted a Permanent Resident visa on 2 May 2011. He currently holds a subclass 155 Resident Return visa granted on 8 February 2017.
[3] Tribunal documents p.73. The Applicant’s Statement of Facts, Issues and Contentions wrongly states this date as 22 June 1966 at [1].
There is no suggestion that he has ever been an unauthorised or prohibited non-citizen resident.
He is married to an Indian national currently resident in Australia who holds a Permanent Resident visa and has three adult children all of whom were born in India and all of whom have acquired Australian citizenship.[4]
[4] Respondent’s Statement of Facts, Issues and Contentions at [2]-[5].
On 28 February 2017 Mr Singh applied for Australian citizenship by conferral. His application was refused by the Minister’s delegate on 6 September 2017 and he lodged an appeal against that decision with this Tribunal on 21 September 2017.
REASONS FOR REFUSAL AND APPLICANT’S RESPONSE
The Australian Citizenship Act 2007 (the Act) in section 21(2) sets out eligibility criteria against which applications for citizenship by conferral are to be assessed. Applicants must meet all of the criteria. There are eight specified criteria, in relation to which the Minister’s delegate found that the Applicant had satisfied four of them. As such they do not need to detail the Tribunal further. In relation to three others which relate to various competencies which are assessed though the undertaking of the Citizenship Test,[5] the delegate did not proceed to an assessment of these in this application and hence they are, similarly, not matters which need detain the Tribunal at this stage.
[5] Australian Citizenship Act 2007 (Cth) section 21 (2A).
The sole basis for the delegate’s decision to refuse the application was an assessment that the Applicant had failed to satisfy section 21(2)(h) of the Act which requires that the applicant:
“is of good character at the time of the Minister’s decision on the application.”[6]
[6] Tribunal documents pp. 70-80.
The basis for the delegate coming to that conclusion was twofold:
1.The Applicant had been convicted of two counts of indecent assault in February 2007 and sentenced to a term of imprisonment of six months which was wholly suspended on a three year good behaviour bond;[7] and
2.The Applicant had failed to disclose this conviction on his application form as required and indeed had falsely answered the question relating to any convictions by answering “no” in the relevant section of the form.[8]
[7] Tribunal documents pp. 31-32.
[8] Tribunal documents p. 17.
The Respondent argues that the fact of the convictions and the failure to disclose them in his application should lead the Tribunal to conclude that Mr Singh is not a person of good character.
The Applicant answers this contention by asserting that:
1.In relation to the offences, they took place a considerable time ago (2002-2004) and that Mr Singh complied with all the court orders made attendant upon that conviction,[9] and that
2.The failure to provide a truthful answer to the application form question arose from a combination of the Applicant’s poor command of and understanding of the English language and reliance upon information in a National Police Certificate issued by the Australian Federal Police which certified that there were ”no disclosable court outcomes”[10] recorded against the Applicant. Hence, this failure was “an inadvertent mistake.”[11]
[9] Tribunal documents pp.33-34 being a letter from CB Jai Lawyers and the Applicant’s Statement of Facts, Issues and Contentions at [11].
[10] Tribunal documents p. 37.
[11] Tribunal documents p. 34 at [7].
From this, the Applicant argues that the Tribunal should find that the Respondent’s reasons for refusal
“are not sufficient to lead to a conclusion that the Applicant’s enduring moral qualities are so tainted that in 2018, the Applicant is not a person of good character.”[12]
[12] Applicant’s Statement of Facts, Issues and Contentions at [11].
The Applicant supports this contention by providing a number of character references on behalf of Mr Singh from personal friends and work associates.
THE TRIBUNAL’S FINDINGS
The Offences
Mr Singh was convicted in the Hobart Magistrate’s Court on 6 February 2007 of two counts of indecent assault and two counts of common assault[13] arising from complaints made by several female employees of the restaurant at which Mr Singh was employed as a chef. The offensive behaviour leading to the convictions took place over a three year period between 2002 and 2004.
[13] Supplementary Tribunal documents at p 42.
In a Statutory Declaration dated 28 June 2006 Mr Singh denied all the allegations made against him[14] and, as I understand it, pleaded not guilty when the matter came before the Court. Nevertheless, presumably on the evidence of the complainants he was convicted and sentenced to a term of imprisonment of six months wholly suspended by imposition of a three year good behaviour bond.
[14] Supplementary Tribunal documents pp. 31-39.
In a submission from the Applicant’s then lawyers, tendered in response to the Department’s invitation to comment upon their potentially adverse findings regarding Mr Singh’s citizenship application[15], it is stated that the Applicant complied with the Court’s directions and that he has not reoffended in any way since that date.[16]
[15] Tribunal documents pp.24-27.
[16] Tribunal documents p.35.
I accept that evidence.
However that letter goes on to state that:
“the applicant was sentenced for a period of six months and the length of this sentence does not amount to a serious prison sentence as it is less than 12 months.”[17]
[17] Tribunal documents p.35.
The Tribunal does not accept the proposition that because the sentence was less than twelve months it should somehow be regarded as not “serious”.
Indeed, it should be noted that on the same page of the solicitor’s letter it is stated that:
“the applicant understands that the offence committed is a serious one”.[18]
[18] Tribunal documents p. 35.
Of course, a sentence of twelve months or more may well have triggered action by the Department under section 501 of the Migration Act 1958 which provides that a person automatically fails the character test if they are sentenced to such a term which is defined as constituting “a substantial criminal record.”
That is clearly not the case with Mr Singh but the Tribunal does not accept that simply because the term of imprisonment was set at six months, the offence itself was not serious. A custodial sentenced was imposed – that indicates that the Magistrate regarded the matter as more than minor, especially as Mr Singh apparently had no previous criminal record and would have been accorded some consideration on that basis. Nevertheless the Tribunal recognises that with four charges proven (two of indecent assault and two of common assault) this sentence was certainly at the lower range of the options available to the Court.
Whatever Mr Singh or his representatives at the time, may have thought, the matter, almost certainly, would have been regarded as clearly serious for the women involved who were the victims of the assaults.[19]
[19] Their statements to the Tasmanian Police are before the Tribunal at Supplementary Tribunal documents pp 3-12.
The letter from the Applicant’s current solicitors addressed to the Department stated that Mr Singh does “express remorse” about the matter and that he is “ashamed about the incident.” That was not a particularly strong statement and the offences were more than just “an incident”.
At the commencement of the Tribunal proceedings a Statement was tendered[20], signed that day by Mr Singh in which he expressed the “disgrace” and “sadness” which he feels “by what I was blamed and convicted for.” The Statement goes on to apologise for the “pain I have caused to everyone”, but it is apparent from this that he means the pain caused to members of his family who he says have lost respect for him. He concludes by saying that “All I will do is be a better father, better husband and better human being.”
[20] Tribunal Evidence Exhibit A1.
Herein lies the principal problem for Mr Singh.
Both this statement and Mr. Singh’s oral evidence make it clear that he admits to what he was “blamed and convicted for” but he simply does not acknowledge that he did anything wrong. Indeed throughout his evidence he continued to assert that “in my heart” and “in my soul” he knew that he had done nothing wrong. While he accepts that he was convicted, he does not accept that he was guilty of anything, other than perhaps being short-tempered.
The Applicant submitted a detailed psychiatric assessment prepared by Kris L North a qualified forensic psychologist in which she states that Mr Singh, in an extensive interview, “denied the offences, staring he was falsely accused.”[21]
[21] Tribunal Evidence Exhibit A2 at [10].
Mr Singh advanced before the Tribunal an explanation of how four separate women over a period of some 18 months came to make accusations against him by characterising them as being part of some sort of vendetta or conspiracy mounted against him by his former employer in Tasmania who was threatened by the fact that Mr Singh had opened his own Indian restaurant in competition with the former employer.
The Tribunal finds this explanation implausible and does not accept it. Although it is agreed that some of the women were known to each other, or indeed were friends, and that their employment had been terminated by him in the restaurant where Mr Singh worked – something he described as a “mistake” and done “in anger” – that is not a basis upon which to construct an elaborate conspiracy, extending over several years, to damage him with false accusations.
There is, in this respect, a clear lack of self-awareness on the part of Mr Singh and while his representative urged the Tribunal to find that his continued heart-felt denial of having committed any offence but his public acceptance of his conviction, should be seen as a positive contribution to establishing his “enduring moral worth”, this is not the conclusion to which the Tribunal comes. In fact it comes to the opposite conclusion.
The non-declaration
The application form (1300t) used for electronic lodgement of citizenship by conferral applications contains a very clear question in this form:
“Has the applicant been convicted of, or found guilty of, any offences overseas on in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?”
To this question Mr Singh in his application stated “NO”.[22]
[22] Tribunal documents p 17.
Mr Singh’s letter to the Department, prepared by his previous legal representatives includes the following relevant paragraphs:
“2) The applicant applied (sic) and obtained an Australian Federal Police (AFP) certificate dated 16^th February 2017 which indicated that there are “No Disclosable Court Outcomes”.[23]
5) Based on the police report attached to your letter dated 9/5/17 we find that it has listed only two counts of indecent assault but the conviction on account of the common assault is missing in this report. Further from the police report provided by you we infer that our client was sentenced for “six months imprisonment from 6/2/07 wholly suspended on the condition of 3 years of good behaviour and not to commit similar offence”.
7) Our client expresses remorse and contrite (sic) not only for the event that occurred in 2007 but also for the inadvertent mistake that crept in at the time of instructing (sic) the citizenship application form.”[24]
[23] Tribunal documents pp. 37 and 33 at [2].
[24] Tribunal documents pp. 33-34 at [5] and [7].
Furthermore the letter asserts that this incorrect answer on the form derived from:
“3) …. The applicant’s very limited understanding and communication ability in English coupled with the fact that the AFP not disclose (sic) any offence…”[25]
[25] Tribunal documents p.33 at [3].
Evidence before the Tribunal by way of cross-examination of Mr Singh suggests that he engaged a firm of solicitors to assist him in the preparation of his application for citizenship. Mr Singh speaks only rudimentary English (although he was clearly capable of following proceedings in the Tribunal) and the solicitors he engaged were apparently originally from Sri Lanka. In evidence Mr Singh asserted that the application form was completed and lodged electronically by the solicitors[26] and that the information which had given them had been in Hindi, translated by in his words “a girl in the office who spoke broken Hindi”.
[26] The name of the lodging solicitors appears at the bottom of the first page of the Application Form – Tribunal documents p. 1.
Because he wanted “to surprise his family with a grant of citizenship” he did not ask any members of his family, who speak good English and otherwise have provided assistance to him, to accompany him on the numerous occasions he engaged with these solicitors for this purpose.
In the psychologist report referred to previously, Mr Singh told Ms North that “he had disclosed these offences, however believed that there was an error in the translation that was relayed to his solicitor”,[27] presumably by the staff member who spoke broken Hindi.
[27] Tribunal Evidence Exhibit A2 at [12].
This is clearly a most unsatisfactory basis for such an important document to be generated.
Mr Singh told the Tribunal that his instructions to the solicitors were to the effect that he had been involved in certain “police matters in Tasmania” but that he had not described them as convictions.
It was his evidence that he instructed them to obtain copies of police records from Tasmania. Apart from the obviously misleading AFP certificate, advice from CrimTrac revealed only two convictions (for indecent assault) and he then informed his solicitors that there were two further convictions (for common assault) – hence the statement (at paragraph 5 of the solicitor’s letter) quoted above.
What this evidence, taken at face value, reveals is that Mr Singh was aware of the nature and details of the convictions recorded against him. It fails to be an acceptable explanation of how the final form completed by the solicitors recorded that there were no convictions when clearly there were, and Mr Singh was aware of this.
Other matters
The Applicant provided to the Tribunal a series of character references or statements from a number of his work colleagues and personal friends[28]. A number of these indicate that the writer is or was aware of Mr Singh’s convictions and at least the nature of these, if not the specific details. To the extent that they are aware of the issues they assert that this behaviour is untypical, out of character or some form of one-off aberration. All remark on his personal qualities and several draw attention to the charitable work which he does for his local Hindu temple.
[28] Tribunal documents pp. 38, 56, 58, 60 and 62.
The Tribunal is prepared to take these into account and to give them some weight in determining whether or not Mr Singh is a person of good character.
The Tribunal was also provided with some of Mr Singh’s medical records dealing with his current state of health[29] but does not regard these as having any material relevance to the matters before it.
[29] Tribunal documents p.45.

Finally the Tribunal was invited to have regard to the length of time which had elapsed since the offences in question were alleged and the conviction recorded. It is true that these were some considerable time ago and the Tribunal should give due weight to the fact that Mr Singh has not had any further matters brought against him.
THE MATTER OF GOOD CHARACTER
The Act contains no definition of what constitutes “good character” but in making its determination the Tribunal is guided by judicial interpretation and by the Citizenship Policy[30] which has been issued to give policy guidance to decision-makers.
[30] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016).
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
“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.”[31]
[31] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.
It is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[32]
[32] Da Wei Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
The Citizenship Policy elaborates on this by attaching to the phrase “enduring moral qualities” the further qualifications, namely[33]:
·“characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.”
[33] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) p.145
The Citizenship Policy provides further guidance on what constitutes being of “good character” for citizenship application purposes. Inter alia it states:
“Drawing from the definition outlined in Definition of good character, an applicant of good character would:
……………….
be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
· concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.”[34]
[34] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) p.147.
Clearly the concealing of relevant convictions on the application form fails to conform to the expectations set out in the Citizenship Policy.
Similarly Mr. Singh’s repeated denials of any degree of personal culpability or responsibility for the offences which were proven against him in the court must be judged negatively in terms of reflecting what a person is seen to do or heard to say by way of judging their acceptance of the values and norms by which citizens in Australia are expected to live.
I am also mindful of the comments of Senior Member Toohey in Assafiri where she said that:
“It is submitted ….. that sufficient time has now passed for him (the Applicant) to be considered of good character……Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the individual case.”[35]
[35] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [67].
Indeed, in his closing submission, Mr Turner on behalf of Mr Singh asked how long that might be in his case.
The Tribunal’s answer must be that it is not at this time because of Mr Singh’s refusal to accept a genuine degree of personal responsibility for his actions and to express a degree of remorse or contrition in relation to the distress suffered by the victims of his actions.
I thus adopt the same conclusion that Senior Member Toohey did in Assafiri where she said:
“I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.”[36]
[36] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [71].
This decision does not preclude Mr Singh making a further application for citizenship at some time in the future[37]. I accept that he has a genuine desire for citizenship and that he has been a good husband and father, an economically productive member of the workforce and a contributor to his community.
[37] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
It may well be that, given the passage of more time and an acceptance of the degree of personal responsibility to which I have made reference, such an application could be successful.
However at this stage I cannot find that Mr Singh is, in terms of the Act, a person of “good character” and so his appeal is denied and the decision under appeal is affirmed.

I certify that the preceding 64 (sixty four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 10 July 2018

Date(s) of hearing: 26 May 2018

Solicitors for the Applicant: R Turner - Turner Coulson Immigration Lawyers

Solicitors for the Respondent: D Watson - Australian Government Solicitor

Date(s) of hearing:	26 May 2018
Solicitors for the Applicant:	R Turner - Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	D Watson - Australian Government Solicitor