Singh and Minister for Immigration and Border Protection (Citizenship)

Singh and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1310 (26 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3068
Re:Ricky Singh
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:26 April 2018
Place:Perth

The decision under review is affirmed
........[sgd]................................................................
Member C Edwardes
CATCHWORDS
CITIZENSHIP – criminal offences – whether applicant of good character – meaning of good character – applicant found not to be of good character at time of application for citizenship – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1) – ss 21(2) – para 21(2)(h) – ss 24(1)
Administrative Appeals Tribunal Act 1975 (Cth) – s 35(2) – para 52(1)(b)
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AAT 64
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy, at 1 June 2016, Chapter 11
REASONS FOR DECISION
Member C Edwardes
26 April 2018
INTRODUCTION

This is an application for the review of a decision made on 21 April 2017 (P12 9)(R1) to refuse the Applicant’s application for Australian citizenship under subsection 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act), and on the basis that the Applicant was not of good character at the time of the Minister’s decision.
The Application for review is made in accordance with paragraph 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made under section 24 of the Act.
On 3 April 2018 the Applicant applied for confidentiality order pursuant to subsection 35(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). On 4 April 2018 the Respondent opposed the Applicant’s request for the confidentiality order. The Tribunal finds that there does not appear to be a real possibility of doing injustice to, or inflicting a serious disadvantage upon the Applicant if the proceedings were to appear in public (Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64). The Tribunal does not grant the confidentiality order pursuant to subsection 35(2) of the AAT Act.
BACKGROUND
Ricky Singh is a 32 year old citizen of India who arrived in Australia on 13 December 2007 as the holder of a TU temporary visa.
He was granted a Combined Partner UK 820/BS 801 permanent visa on 17 February 2015 (PT2, 12) (R1) and applied for Australian citizenship on 12 April 2016.
The Respondent’s Statement of Facts, Issues and Contentions (SOFIC) describes the circumstances surrounding the Applicant’s convictions in the following terms:
6. On 12 February 2009 the applicant was convicted of “aggravated indecent assault – victim under the age of 16 years” in relation to an incident that occurred on 30 March 2008. As a result of the conviction, the applicant received a suspended prison sentence of 15 months. The ‘Agreed Facts’, contained in the summons records of the Parramatta Local Court detail the following circumstances of the offence:
On the afternoon of Sunday 30th March 2008 the victim caught a train from Pendle Hill Station to Parramatta Station with the intention of visiting her father at North Parramatta. When the victim disembarked from the train and left the station she was approached by the offender. The victim believed that she may have seen the offender on the train prior to disembarking. The offender asked the victim if he could be her friend, and unsure of what to do, the victim said ok. The victim thought that the offender would go away but the offender did not. The offender introduced himself and the victim told the offender her name.
The victim started to walk away from the station area and the offender followed the victim. The offender asked the victim where she was going and the victim replied that she was going to her father's house. The offender asked the victim if she wanted him to wait for her and she replied no, and for him to go. The offender asked the victim how long she would be at her father's house and the victim replied that she was not sure. The victim turned into the laneway at the rear of Darcy Street shops to avoid walking through Church Street where in the past she had been harassed.
The offender followed the victim into the laneway. At some stage the offender asked for a hug so the victim gave him a hug. The offender grabbed the victim's arm and commenced kissing the victim on the lips, placing his tongue in her mouth. The victim attempted to push the offender away and repeatedly asked him to stop. At the same time the offender was touching and rubbing one of the victim's breasts on the outside of her clothes. The offender used both his hands on the victim's shoulders to push the victim towards a corner and the victim repeatedly told him to stop and attempted unsuccessfully to move away. The offender began to kiss the victim again, placing his tongue in her mouth, and then lifted the bottom of the victim's shirt, putting his hands underneath her bra and used one hand to touch and squeeze both her breasts. The offender commenced undoing the buttons on the victim's pants. The victim told the offender to stop and was attempting to do her pants up but the offender put his hands in the victim's pants and touched her on the outside of her vagina with one hand, at the same time using his other hand to touch her breast on the outside of her clothes. The victim told the offender to stop. The victim used two hands to push the offender away and did up the buttons of her pants. The offender commenced kissing the victim again, placing his tongue in her mouth, and the victim told him to stop. Each time the offender kissed the victim she attempted to move her head away but the offender stopped the victim from doing this by holding her head. Each time the victim told the offender to stop he said "one minute, one minute". At this point the police arrived
About 3.45pm on Sunday 30th March 2008, Police on bicycles were patrolling Civic Place Parramatta behind the library. Police rode into the alley way at the rear of the Darcy Street shops. At this time Police noticed the offender had the victim against a brick wall. Police observed the offender to be facing the female with the front of his body against the front of the body of the victim. Police observed the offender had his hands down in front of him moving them about the females groin area in rapid motion. When the police approached the offender turned around and made eye contact with police. Immediately the offender turned and walked away quickly down the alley way towards Darcy Street and the victim walked into the alleyway and looked at police. Due to the suspicious behaviour of the offender he was detained. Police observed the offender's breathing to be quick, that his hands were trembling and that he appeared nervous.
The victim told police in brief form what had occurred and this was recorded on video camera. It was confirmed the victim was 14 years old. The victim supplied a more detailed account by way of Record of Interview with police at a later date… (R2 2-3)
When the Applicant was searched by police he was also found to be in possession of a Punjab Government Drivers Licence in the name of Vijay Bajwa. As a result of being in possession of this licence, the Applicant was also convicted of “goods in personal custody suspected of being stolen.” (R2 3)
On 18 August 2016, the Applicant applied for Australian citizenship by conferral pursuant to section 21 of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) (T6 44)(R1).
On 13 September 2016, a delegate of the Minister wrote to the Applicant requesting more information in relation to the Applicant’s criminal record. In particular the delegate noted the Applicant had been convicted of the following offences:
·16 March 2009 – Goods in personal custody suspected being stolen – fine $200 and $73 court costs.
·12 February 2009 – Aggravated indecent assault – victim under the age of 16 years – 15 months suspended term of imprisonment requiring compliance with counselling and participation in a sex offender treatment program. (T8 63) (R1)
The Applicant responded to the delegate of the Minister on the 12 October 2016 stating:
… I have been requested to provide supporting letters for my Citizenship Application; I have attached all the undermentioned documents as requested.
Statutory Declarations
Employment Letter
Letter from my Lawyer
…
I have been charged in 2008 with indecent assault under the age of 18 and the outcome was 15 months suspended sentence with good behaviour bond which I have completed, since then I have not been in any kind of trouble with the law. I have reformed myself and living myself as good human and always up for to [sic] contribute in our society… (T9 69) (R1)
In a letter dated 10 October 2018, the Applicant’s representatives have further stated:
We confirm that we represented Mr Ricky Singh in relation to a Police [sic] charge involving indecent conduct which has been finalised on 12 February 2009. We would like to state that at the time of the above offence Ricky Singh was under Student Visa and he engaged in hugging and kissing a female student under the age of 18 at Railway Station when he was brought to the attention of Police [sic] for the alleged offence. Mr Ricky Singh was charged under 61M of the Crimes Act 1900 (HI 12655597) and this matter was [sic] in the Parramatta Court.
The Court was told that Mr Singh was in his early 20’s and at the time of the alleged offence he did not have comprehension of the alleged victim's age, throughout the proceeding he maintained that the victim had a physical [sic] built well-developed than her actual age. Mr Singh had no knowledge that the alleged victim was under 18 years of age.
Mr Singh however did plead guilty with explanation to the Court and as a consequence the outcome was a 15 month's suspended sentence and to enter into a good behaviour bond. The purpose of writing this letter is to confirm that Mr Singh did not re-offend again and he has been involved in several cultural community events. Ricky Singh is well known in the Australian Indian-Community for being an artist and a welfare activist. (T9 70) (R1)
On 2 December 2016, the Minister’s delegate wrote to the Applicant seeking a transcript of the sentencing remarks of the Parramatta Local Court in relation to the charge of aggravated indecent assault. (T10 86) (R1)
On the 5 December 2016 the Applicant responded to the Minister’s request in paragraph 13 of this decision stating:
I have called Parramatta local court for the transcripts as per the requirement, but I have been advised by them that they only keep the court transcripts for the maximum period of 3 years not [sic] more than that ... (T11 88) (R10)
On 21 April 2017, a delegate of the Minister refused the Applicant’s application for citizenship. The delegate was not satisfied that the Applicant was of good character. This decision was made in light of the Applicant’s aggravated indecent assault conviction 12 February 2009, and a lack of the explanation pertaining to this conviction. (PT14 93) (R1)
On 26 May 2017, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the delegate’s decision. The Applicant stated:
My application was refused on the ground of bad character, which I dispute. I have two criminal convictions from 2009 although I was imprisoned for neither; I have not come under Police notice since. I was granted permanent residence of Australia by the Department of Immigration in full knowledge of those convictions. In my opinion the facts underpinning these convictions do not warrant Australian citizenship being denied to me (PT2 7)(R1)
LEGISLATION
Subsubsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of the Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8) of the Act.
Subsection 21(2) of the Act sets out the general eligibility criteria to become an Australian citizen. Relevantly, paragraph 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
The term “good character” is not defined in the Act. There is, however, guidance on the application of the “good character” requirement in the Citizenship Policy (“the Policy”)[1]. The Tribunal will apply Departmental policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634).
[1] The Tribunal notes that the Policy came into force as of 1 June 2016. Further guidance is provided by the Australian Citizenship Instructions (ACIs), dated 1 July 2014, which detail operational instructions and supplement the policy guidance provided in the Policy.
The meaning of good character
Chapter 11 of the Policy provides guidance for assessing an applicant under the “good character” test prescribed by paragraph 21(2)(h) of the Act. Chapter 11 of the Policy cites Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660 at 19, in which the Federal Court noted:
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 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 is reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
Chapter 11 of the Policy further states that “enduring moral qualities” encompasses the following concepts:
·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 the Australia society.
Chapter 11 of the Policy states this broad definition of “good character” means that
… a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes… (the Policy at pages 145 – 146).
Chapter 11 of the Policy further provides that an applicant of good character would, among other things:
·     respect and abide by the law in Australia and other countries
…
·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example, … concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·     … not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance) (the Policy at pages 147).
The Policy also provides that in weighing up whether an applicant is of good character, decision makers are required to apply community standards, not their own personal standards, and question whether any mitigating circumstances and/or explanations provided by the Applicant outweigh the Applicant’s behaviour in question. Decision makers are to consider factors including:
·would a person of good character have behaved the way the applicant did;
·what is there to demonstrate that the applicant has upheld and obeyed the law;
·has the applicant behaved in accordance with Australia’s community standards;
·does the applicant share Australia’s democratic beliefs and respect its rights; and liberties. (the Policy at page 149-150).
The Policy states that “[a] decision maker needs to look holistically at an applicant’s behaviour over a lasting and enduring period of time. The amount of time considered to be “lasting” or “enduring” depends on the merits of each case, but in most cases will go back prior to any visa application” (The Policy at page 150).
The Policy states that referee reports “…can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.” (The Policy at page 155).
When considering whether an Applicant who has had previous criminal convictions is a person of good character, Deputy President Wright in Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 stated:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
ISSUE
The issue for review by this Tribunal is whether the Applicant was, as at 21 April 2017, a good character for the purpose of satisfying paragraph 21(2)(h) of the Act.
EVIDENCE
The matter was heard in Perth on 5 April 2017. The Applicant appeared in person. The Respondent was represented by Ms Elle Tattersal of Sparke Helmore Lawyers
The Tribunal received the following evidence:
·Exhibit A1 – Witness statement of Ricky Singh dated 21 January 2018.
·Exhibit A2 – Extract of Adjudication dated 12 February 2009.
·Exhibit A3 – Letter – Department of Corrective Services, NSW dated 11 June 2009.
·Exhibit A4 – Bond to Comply with Conditions (suspended sentence) dated 12 February 2009.
·Exhibit R1 – T documents T1-T15 pp 1-117 received 23 June 2017.
·Exhibit R2 – Statement of Facts, Issues and Contentions (SOFIC) dated 21 February 2018.
·Exhibit R3 – Hearing Certificate dated 31 January 2018.
·Exhibit R4 – Summons documents – Parramatta Local Court dated 5 December 2017, Ryde Local Court dated 10 November 2017, and Commissioner of Police, NSW dated 21 August 2017.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Applicant’s evidence
At the hearing dated 5 April 2018 the Applicant stated that he:
·has immersed himself in community activities, in particular multicultural events;
·has not transgressed against the law since those offences;
·is very sorry for what he did, and is trying to make amends by being a good citizen in Australia;
·attained a permanent visa in 2015;
·pleaded not guilty at the time of committing offences relevant to the decision however was later found guilty of committing such offences;
·pleaded guilty to the offences after 6 months of being charged - he had changed lawyers and had been the subject of different variations of advice;
·was scared and nervous at the time that he was questioned by the police in 2008;
·was really sorry and appeared quite distressed as he was recounting the events;
·described his behaviour at the time as “very bad” and appeared to be remorseful;
·claimed his actions at the time were as a result of reading wrong signals from the victim, differences in culture and being new to the country may have contributed to this;
·conceded the victim had on a number of occasions asked him to stop his activities and only did so once he saw the police;
·stated that at the time of his offence he could not judge the age of his victim given that she was taller than him;
·has an ex-wife and 2 children living in Sydney. His sister arrived in 2015 and resides also in Sydney and his parents still live in India.
·stated that the aggravated assault offence “should never have happened,” and he had no idea what he was doing;
Furthermore, during cross-examination by the Respondent’s solicitor:
·The Applicant stated that he asked the victim if she wanted to meet him and she said “maybe.” The Applicant stated that he then said "goodbye" and that "she gave me a hug and started kissing me." Mr Singh explained that "people walked behind us and she did not call for help but appeared to be consenting."
·The Applicant stated that he only touched the victim's breasts above her clothing once.
·The Applicant's explanations in the above two dot points are in contrast with the Applicant's guilty plea to the offence of aggravated indecent assault.
·The psychological assessment put to the Applicant concluded that the Applicant was at moderate risk of re-offending.
·The Applicant states that he was a young and inexperienced person who was new to the country when the offences occurred in 2008/9.
·In respect to the offence of 16 March 2009 - Goods in Personal custody suspected of being stolen, the Applicant claimed that he was confused at the time that his statements were made to the police. The driver's licence that the Applicant had on him at the time was meant to be delivered by him to the brother of his friend in India. There is no independent evidence before the Tribunal to verify the Applicant's submissions.
CONSIDERATION

The issue is whether the Applicant was of good character at the time of his application.
Was the Applicant of good character at the time of his application: General Considerations – general considerations
The Respondent contends:
28. For the reasons that follow, the Minister contends that the Tribunal cannot be satisfied that at this point in time, the applicant is of good character.
29. The applicant’s offences weigh against his being of good character.
30. The applicant’s conviction for “aggravated indecent assault – victim under the age of 16 years” is extremely serious. The applicant has attempted to play down the seriousness of the offence that he was found guilty of, by providing references which suggested that the offence only involved “hugging and kissing” of a girl under 18. He also attempts to downplay the seriousness in his statement dated 21 January 2018 by passing the incident off as a confusion of cultures, having just arrived from India. In reality the summons records indicate that the applicant’s crime was a serious sexual assault involving a 14 year old girl whom he had followed into a laneway. The Minister contends that the applicant’s claims of being remorseful should not be accepted where:
(a)The available records portray a far more serious offence that the applicant attempted to disclose to the Department and the Tribunal. As such, the Minister contends that the applicant has not accepted the seriousness of the offence and shows limited remorse;
(b)The pre-sentence report of the applicant’s probation and parole officer dated 22 January 2009 indicates that: “Mr Singh expressed regret for the matters before the Court, however, these expressions focused only on the impact upon his life, with no mention to that of the victim”.
(c)Despite later denying the facts of the incident, the applicant had previously told the pre-sentence psychologist (as reported in his report dated 15 January 2009) that he admitted “placing his hand in the victim’s pants to touch her vagina and that she told him to stop.”
31. Notwithstanding the applicant’s attempt to explain the offence, the applicant was found guilty of the offence. It is well-established that the Tribunal cannot go behind a conviction and examine the facts on which it is based. The applicant’s repeated denial of his offending demonstrates that the applicant is yet to accept responsibility for his conduct.
32. In light of the applicant’s offences and continued lack of true remorse, the Minister contends that, applying the community standards espoused by the Policy:
(a)a person of good character would not have behaved the way the applicant did;
(b)the applicant has not behaved in accordance with Australia’s community standards; and
(c)the applicant’s behaviour has demonstrated that he does not share Australia’s respect for rights and liberties.” (R2 pages 7-8)
The Applicant’s witness statement (A1) dated the 21 January 2018 describes that since the offences he was charged and convicted with in 2008, he has not had any issues with the law.
In relation to his 2008 conviction of indecent assault, the Applicant stated:
I was a young man and studying as a full time student at the Windsor Institute when I arrived in Australia. I was taken by surprise when the incident took place since I was completely oblivious of the culture and surroundings where I was living and studying but I do feel remorseful. I had arrived in Australia 3 months prior to the incident, so I was fairly new to the system…
Whilst there are some variations in the Applicant's evidence given to the Tribunal against what the Applicant stated directly after he committed his offences 2008, the Tribunal acknowledges that facts and details may be misconstrued over a long period of time.
The Tribunal also notes that the Applicant has submitted statements of responsibility and remorsefulness. However, the Tribunal is not convinced that the Applicant understands the gravity of his actions and the effect that they have on the Applicant’s victim.
The Tribunal has observed the Applicant during the hearing and believes that the remorse the Applicant shows is for himself and the impact that his actions have had on himself.
The Tribunal believes that the Applicant wants to be a good citizen. The Tribunal also believes the Applicant when he states that he has changed since he was convicted of his 2008 offences.
The Tribunal acknowledges that it has been 10 years since the Applicant committed the two offences in question and that the Applicant is currently aspiring to be a productive member of the Australia community.
Based on factors including the Applicant's demeanour at the hearing, the Tribunal however, supports the view of the Respondent as outlined at in R1 page 1- 8 (see paragraph 33 of this decision).
Was the Applicant of good character at the time of the Minister’s decision of his citizenship application: Applicant’s offences
The Applicant has two criminal convictions arising out of two incidents:
·Aggravated indecent assault – victim under the age of 16 years
·Goods in personal custody suspected being stolen
The Tribunal notes that the Applicant pleaded guilty to both criminal convictions and paid the related fines. The Tribunal considers the Applicant’s offences in a very serious light.
Aggravated indecent assault – victim under the age of 16 years
The Tribunal notes that the offence of aggravated indecent assault involved a minor under the age of 16 years and caused extreme distress to the Applicant’s victim.
The Tribunal considers that had it not been for the police arriving on site at the time that the Applicant was committing his offence, a more serious offence may have occurred.
The Magistrate involved in the hearing relating to this conviction commented:
… There is a high need in the community and certainly the court is regarded as having a responsibility to protect young persons and this is a case of a fourteen year old girl….
“But I just mention that. It is a very serious offence with serious consequences.”
Goods in personal custody suspected being stolen
The Tribunal notes that the Applicant was sentenced to a fine of $200 for this offence and required to pay $73 in court costs.
Was the Applicant of good character at the time of his application: character references
The Tribunal notes that the Applicant has been a blood donor, and was mentioned in the “Donor Gazette.” (T9 58) (R1).
The Tribunal notes the Applicant’s submissions in that he has participated in various community and charity events.
The Tribunal accepts that the Applicant may be involved in some community activities and the Tribunal acknowledges that the Applicant’s community involvement is an important aspect to consider. The Tribunal however does not attach a great amount of weight to these submissions as there is no independent evidence to test the veracity of such claims.
CONCLUSION
The Tribunal accepts that the Applicant has a genuine desire for Australian citizenship and a commitment to Australia.
However, having considered all the evidence before it, the Tribunal is not reasonably satisfied that the Applicant is of good character for the purposes of subsection 21(2)(h) of the Citizenship Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

......[sgd]..................................................................
Associate
Dated: 26 April 2018

Date(s) of hearing: 05/04/2018

Applicant:

Solicitors for the Respondent:

In person

Ashley Burgess, Sparke Helmore

[2018] AATA 1310

26 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction