Singh and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 1020
•7 November 2016
Singh and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 1020 (7 November 2016)
Division
GENERAL DIVISION
File Number
2015/6552
Re
Abhay Kumar Singh
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member T. Tavoularis
Date 7 November 2016 Date of written reasons 13 December 2016 Place Brisbane The decision under review is affirmed.
...............................[sgd].......................................
Senior Member T. Tavoularis
CITIZENSHIP – Character test – Applicant convicted of perverting course of justice in Fiji – Applicant struck off from roll of legal practitioners - Applicant not of good character – Decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth), s 21
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Cases
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Attorney-General v Bax [1999] 2 Qd R 9
HSXY and Minister for Immigration and Border Protection [2016] AATA 560
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Tsai and Minister for Immigration and Border Protection [2016] AATA 411
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Instructions
Australian Citizenship Policy
REASONS FOR DECISION
Senior Member T. Tavoularis
13 December 2016
INTRODUCTION
This is an application for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing Mr Abhay Kumar Singh’s (“the Applicant”) application for Australian citizenship. This refusal was on the ground that the delegate was not satisfied that the Applicant met the “good character” requirement contained in section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”). The Applicant has sought review of that decision by this Tribunal. For the following reasons, I affirm the delegate’s decision.
The relevant decision is dated 20 November 2015.[1] On 15 December 2015, the Applicant lodged an application for a review of the delegate’s decision with the Tribunal.[2]
[1] Exhibit 1, T Documents, T2, pages 5-13.
[2] Exhibit 1, T Documents, T1, pages 3-4.
BACKGROUND
The Applicant is 59 years of age. Born in Lautoka, Fiji, he arrived in Australia in December 1998 as the holder of a TR676 tourist visa. He was later granted a General Skilled Migration visa BQ139 on 5 February 2002.
He applied for citizenship by conferral on 14 November 2013. That application was approved on 18 December 2013. Approval was subsequently cancelled on 31 March 2015 and the Applicant reapplied for citizenship by conferral on 19 June 2015.
By way of general contentions, the Respondent urged in accordance with the material appearing in its Statement of Facts, Issues and Contentions that:
(a)The Applicant is not eligible to become an Australian citizen pursuant to section 21(2)(h) of the Act as this Tribunal cannot be satisfied that he is of good character at this time; and
(b)The Tribunal should affirm the decision to refuse to grant Australian citizenship to the Applicant under the powers afforded to the Tribunal in section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“The Tribunal Act”).[3]
[3] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 13 May 2016, page 10.
The Applicant’s representative contended that a favourable consideration should be given to the necessary element of good character in this Applicant. Mr Chand, the advocate for the Applicant, made this contention on three grounds:
(a)Mr Chand submitted that I should follow the Queensland Court of Appeal’s decision in Attorney-General v Bax,[4] which constitutes a more lenient approach to the issue of character than is traditionally adopted in cases such as this.[5] However, I consider this submission to be lacking merit. That case can be differentiated from the present factual matrix because here, the Tribunal is concerned with issues of good or indifferent character for the purposes of citizenship; whereas the matter of Bax involved the adequacy or otherwise of the professional conduct of a solicitor simplicita.
(b)He considered there to be certain difficulties with the threshold tests that apply with regard to issues of character as they may apply in circumstances of citizenship and applications of permanent residency status. I took the proposition at face value, but respectfully pointed out the role of this Tribunal is to apply the law as it finds it in front of it for each case that is brought before it.
(c)He submitted that the Applicant has, in a practical sense, “served his time”. He initially offended in 2003 and was duly punished for that offence. The subsequent striking from the rolls of various law societies and surrounding litigation in the decade subsequent to this offence should be put aside. He further submitted that the Applicant is of sufficiently good character to warrant a grant of citizenship in this country. This is the real issue in contention before the Tribunal and will be addressed below.
[4] Attorney-General v Bax [1999] 2 Qd R 9.
[5] Attorney-General v Bax [1999] 2 Qd R 9, 20.
Both representatives accepted the correctness of the factual timeline laid out in the Respondent’s Statement of Facts and Contentions.[6] At the hearing however, although Mr Chand consented to the correctness of the timeline, I did afford him the right to attack any component of the timeline insofar as it may have impacted the Applicant’s case.
[6] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 13 May 2016, pages 1-4.
Prior to considering the merits of this matter, I will address the scope of the key legislative provisions applicable to this case.
THE LEGISLATIVE FRAMEWORK
Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied, inter alia, that the person “is of good character at the time of the Minister’s decision on the Application”.[7]
[7] Australian Citizenship Act 2007 (Cth), s 21(2)(h).
The Act does not specify the meaning of the words “good character”. However, there is strong authority supporting the idea that the phrase should be used in its ordinary sense. That is, it is 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”.[8] A determination of whether someone is of good character necessitates the “consideration of an aggregate of qualities”.[9] Further, the “enduring moral qualities” of which good character speaks “must be demonstrated objectively over a sufficient period”.[10] The length of time to be considered is not specified; rather, it turns on the circumstances of the individual case.[11]
[8] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 (Lee J).
[9] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald).
[10] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] (Senior Member Toohey).
[11] Ibid.
The Respondent Minister adopted the Australian Citizenship Instructions (“ACIs”) to provide guidance to decision-makers on the scope and exercise of their powers under the Act. Most important for present purposes is Chapter 10, which deals with assessments of character.
The ACIs are not the only policy document that is relevant to the facts of this case. The Respondent Minister’s Department issued the Australian Citizenship Policy (“ACP”) on 1 June 2016. The ACP replaced the policy guidance content previously provided by the ACIs. The relevant part of the ACP is Chapter 11.
A difficulty that arises is that the Applicant lodged his application before publication of the ACP (i.e. while the ACIs were still the official policy guidance), but the hearing was held, and an oral decision was delivered, on 7 November 2016. The decision of the Tribunal in HSXY and Minister for Immigration and Border Protection[12] provides some guidance on this item. In that decision, Senior Member Cotter noted that:
… notwithstanding the introduction of the ACP,… the ACP and ACIs operate side by side as policy and operational instructions. In the event of inconsistency with respect to policy guidance, the ACP is to be preferred.[13]
This point was also considered by Senior Member Poljak in the matter of Tsai and Minister for Immigration and Border Protection.[14] Relevantly, SM Poljak observed:
…. I am considering this matter afresh (de novo) and although the ACIs were the relevant policy guidance at the date the decision was made, the relevant policy from 1 June 2016, and at the time of the hearing, was the Citizenship Policy [ACP]. In any event, whichever policy I consider makes very little difference to the decision I am tasked to make. Both documents are similar on the aspects relevant to this matter.[15]
As there is no inconsistency between the two instruments on the point in question here, however, the point is moot and I will refer to provisions in both the ACP and ACIs where need be.
[12] [2016] AATA 560.
[13] Ibid, [12].
[14] [2016] AATA 411.
[15] Ibid, [7].
As the instruments are a reflection of government policy, neither is binding on this Tribunal. That does not mean, however, that they should not be applied by this Tribunal. Indeed, there is considerable authority suggesting this Tribunal should apply government policy unless there is cogent reason to the contrary.[16] No such reason has been brought to my attention, so I will apply the ACP and ACIs here.
[16] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644 – 645 (Brennan J).
The ACP defines “good character” as:
…. the enduring moral qualities of a person, and is an indication of whether an applicant is likely to respect and obey the laws of Australia and other commitments through the pledge should they be approved for citizenship.[17]
[17] Australian Citizenship Policy, Chapter 11 - Character, page 145 of 237; correspondingly found in Australian Citizenship Instructions, Chapter 10 - Character, at paragraph 10.3.1.
On the point of “good character” as a concept necessarily involving “enduring moral qualities”, the ACIs separate “moral” in this context from any religious connotations it may otherwise have. Instead, it is defined as encompassing:
·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.[18]
The requirement of good character goes to the core of the Applicant. Thus, the Applicant’s behaviour is to be regarded as a manifestation of his essential characteristics. Further the ACIs note:
This broad definition 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.[19]
[18] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.3.1.
[19] Ibid.
The ACIs then set the characteristics that an applicant of good character would have, including, amongst other things:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible…
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
o…
oConcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship…[20]
[20] Ibid, paragraph 10.3.4.
In addition to the above, paragraph 10.5 of the ACIs establishes a framework within which “good character” decisions should be made. Paragraph 10.5.2 of the ACIs provides a non-exhaustive list of factors for decision makers to take into account in making this assessment. The precise weighting of the factors is dependent on the circumstances of the case.
We must ask whether the relevant offence from 2003 constitutes a serious offence or minor offence. For present purposes, the following factors are pertinent:
If the Applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
·fraud (including identity fraud)
·…
·extortion
·…
·other offences incurring prison sentences of 12 months or more.
Minor offences include …..
·shoplifting;
·traffic offences which have been included in a criminal record
·offences which do not lead to a conviction or sentence.[21]
[21] Ibid, paragraph 10.5.2.
There are factors that I must take into account when looking at the nature of the original offending giving rise to the difficulty before the Tribunal:
(a)Was the offence that has led to this application premeditated? The answer to that is self-explanatory – the offence was clearly premeditated.
(b)What was the length of the sentence, if one was imposed? Any sentence is relevant to a consideration of good character, but weight should be given to a serious prison sentence which is defined in the Act as being a period of at least 12 months. I note that this Applicant was originally sentenced to 12 months, and on appeal, the sentence was reduced to 6 months.
(c)Are there any ongoing obligations in relation to the sentence received? This consideration includes whether a good behaviour bond was issued following conviction. Here, no good behaviour bond was required following his conviction. However, a serious ongoing obligation was imposed – as we have seen from the various legal battles the Applicant fought after his conviction, there was a very real obligation to disclose that the Applicant was convicted of an offence.
(d)How many offences have been committed? Was it a one off or is there a pattern of criminal behaviour? A pattern or behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the Applicant may not “uphold and obey” the law if citizenship is conferred on them.”[22]
[22] Ibid.
Another factor the Policy informs the decision maker to look at is to take into account decisions that have been made by courts about this Applicant, particularly any sentencing remarks, as they give an insight into his character.
In Legal Services Commissioner v Singh [2013] QCAT 154, the Queensland Civil and Administrative Tribunal (“QCAT”) relevantly observed:
On any view, the offending which led to Mr Singh’s conviction involved misconduct which can only be described as serious. He attempted, as an officer of the Court in Fiji constrained to uphold the principles of justice and the rules of the court at all times, to bribe a witness in circumstances where, if successful, the proper administration of criminal justice would have been seriously undermined – and, also, led to spurious civil action against police authorities.[23]
[23] Exhibit 1, T Documents, T4, page 67, Legal Services Commissioner v Singh [2013] QCAT 154, para [33].
I also make reference to an extract of paragraph 21 of the Respondent’s Statement of Facts and Contentions:
… as Mr Singh was in a trusted position as a lawyer at the time of offending, the Minister contends that this offending should be considered even more seriously, such conduct being inconsistent with Mr Singh’s obligations to the Court as a legal professional, which he should have been well aware of at the time of offending.[24]
[24] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 13 May 2016, para 21.
There are two sets of considerations relevant to the present facts. First, one should look to the Applicant’s behaviour to assess why he might not be of good character. Second, one should look to mitigating factors to establish if, in spite of his behaviour which led to the offending in 2003, this Applicant might be of good character regardless.[25]
[25] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.2.
The assessment of these factors must not be made in accordance with the decision maker’s own personal standards. Rather, it is to be judged by community standards. In making this consideration a decision maker must, by examining these various factors, come to a conclusion based on the aggregate of qualities shown by the Applicant. Ultimately, the decision maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.”[26] The amount of time considered to be “lasting” or “enduring” depends on the merits of the case.[27]
CONSIDERATION
[26] Ibid, 10.5.4; and Australian Citizenship Policy, Chapter 11 – Character, page 150 of 237.
[27] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.4.
The Pattern of Offending
To his credit, at the hearing, the Applicant admitted the totality of his offending and criminal history, by virtue of his adoption of the content of his Statutory Declaration:[28]
7.This action on my part was extremely dishonest and was the antithesis of my obligations as an officer of the Court.
8.The excerpt also shows that I denied my conduct to the police and denied it was my voice on the tape when I was fully aware that I had said those things to Rajendra. Again, this further conduct is the antithesis of what is expected of me as an officer of the Court.
9.I have understated or denied aspects of my conduct that led to the conviction. I acknowledge that such lack of frankness aggravates the original offence...[29]
[28] Exhibit 1, T Documents, T18, page 283.
[29] Ibid, page 284.
It is not disputed that the Applicant’s offence in 2003 constituted a disregard for the law. The behavioural elements of the Applicant’s offending and subsequent conduct are clearly matters relevant to the issue of his character.
In assessing the Applicant’s character, we go back to the element of understanding what enduring moral qualities the Applicant brings to this hearing which would possibly allow a finding of good character. The following are important facts that give an insight into the Applicant’s enduring moral qualities:
(a)The Applicant is a lawyer and a former policeman.
(b)He was convicted for attempting to pervert the course of justice for asking a witness in a case in which he was representing the Defendant to change their evidence in exchange for money.
(c)Additionally, it is apparent that the Applicant concealed this offending from at least the Queensland Law Society (“QLS”) when initially applying to become a legal practitioner in Queensland. I know that this Applicant has raised certain arguments around that and I will address them shortly.
(d)The Applicant further concealed his offending when renewing his practicing certificate as a legal practitioner in Queensland.
(e)He concealed this offending when applying for Australian citizenship by both incorrectly completing his application form and providing a Fijian penal certificate which did not disclose the offence.
(f)The Applicant has been struck from the Fiji roll of legal practitioners for a period of 6 years and has also now been struck from the Queensland roll of legal practitioners.
(g)The Applicant has publically disputed the propriety of his 2003 conviction, arguing before QCAT in 2012 (which is a period of almost 10 years after the initial offence), that he was apparently “entrapped” by the Office of the Director of Public Prosecution, Fiji because that office was apparently jealous of his success in the courts.[30]
[30] Exhibit 1, T Documents, T4, page 62, Legal Services Commissioner v Singh [2013] QCAT 154 at [8].
I will now address the application of these key facts to my assessment of the Applicant’s character.
Particularly troubling is the Applicant’s failure to disclose his offending to the Queensland Law Society. I find the evidence of his current spouse and indeed his own evidence on this specific item to be both surprising for him to make as a lawyer and unconvincing for his spouse to make as a lay person. As a legal practitioner, the Applicant ought to have known better than most the serious issues arising from failing to check the content of a document lodged in his name with a governing authority before it goes in for lodgement.
There is little doubt in my mind that the Applicant knew or ought reasonably to have known that he had to take all reasonable steps to ensure the correctness of documents submitted in his name. Instead, the Applicant’s current spouse provided evidence that the Applicant had left his glasses at work, so she filled out the form for him while he was downstairs watching TV. Even if this were true, I find it suspect that someone who had already committed a dishonesty offence would not double check forms as important as those at hand. I agree, therefore, with the Respondent’s contention that as a legal practitioner this Applicant would have well understood the relevance of such a conviction on his right to continue to practice as an officer of the Court.
I note that no such excuses were made for similar omissions on both the Applicant’s citizenship application and his application for renewal of practicing certificate.
This is exacerbated by the fact the Applicant is quite clearly a capable and learned man. Not only does he have a Diploma in Law, but he has a Bachelor’s degree in Law. He also has a Master’s degree in Law. Consequently, even if I were to characterise his failure to disclose his conviction as an oversight or omission, it is certainly a mark against the Applicant’s character.
A further example involved his recent receipt of a ‘Certificate of Fitness’ from the Tasmanian Law Society (“TLS”).[31] There is a clear statement at the foot of that certificate that the TLS is operating under the presumption that the Applicant has no prior criminal convictions either in Australia or in any other foreign jurisdiction. That Mr Singh would presumably have applied for such a certificate and not disclosed his prior conviction is troubling.
[31] Exhibit 9, Certificate of Fitness from the Law Society of Tasmania dated 30 June 2016.
There are effectively two paths that one can follow with regard to situations like those Mr Singh regularly appears to find himself in with governing authorities like the TLS. The two paths are: one can either effectively allow his past actions to go undetected. Or alternatively, one can, as it were, take the lead and take a proactive approach whereby the difficulty or indeed the potential difficulty is alerted to the governing authority. Mr Singh has, in his dealings with governing authorities like the TLS or QLS, consistently chosen the former path when he was aware that the governing authority either did not know or was acting in ignorance of his Fijian conviction. This is in spite of the fact that he should have been aware that such governing authorities could one day discover his Fijian conviction, which could, in turn, result in some kind of adverse outcome for him.
This sort of conduct does not go to the credit of nor otherwise assist me to form a positive view of the Applicant’s enduring moral qualities. Indeed, it points in quite the opposite direction. Consequently, I do not consider that the Applicant has shown he is of good enough character to meet the requirements of section 21(2)(h) of the Act. I therefore arrive at the conclusion that I cannot be satisfied that this Applicant has demonstrated an adequate period of compliance with the law or that he has reformed his pattern of offending to consider him of good character for the purposes of section 21(2)(h) of the Act.
This Applicant has committed one offence in Fiji in 2003. However, he has engaged in a consistent course of action, trying to shirk responsibility for that offence by omission and then legal action. The Applicant was last dealt with in the courts of this state on 17 December 2013, when the Queensland Court of Appeal handed down its decision. This decision effectively endorsed a previous decision of QCAT that his name, at least for present purposes, be struck from the roll of practitioners in this state.
I recognise that the Applicant was within his rights to appeal the various decisions regarding his conviction, and his failure to disclose it. However, there can be no doubt that at the core of the Applicant’s decade-long legal battle lies his own failure to act honestly and with integrity. The Applicant has consistently shirked responsibility for his conviction, particularly through failing to mention it to the QLS on a number of occasions, and then by failing to accept responsibility for this failure at least until his appeal before QCAT. Consequently, I consider these legal battles to cast a negative light over the Applicant’s character.
Having regard to the initial offence and the sequence of various and numerous hearings that followed, I consider that the appropriate time for calculating when something that occurred in the past can actually be considered “in the past” is 2013. This is because the Applicant opted to keep the issue alive as a means of denying responsibility for his offence or his subsequent omissions from the date of his initial offence in 2003/2004, initially dealt with in the Fijian criminal courts, right through to the matter coming before Queensland Court of Appeal in 2013. So, for the purposes of my reasons in this decision, I am of the view that the time did not stop to run after the original conviction was imposed. Rather, it effectively stopped in 2013.
MITIGATING FACTORS?
I turn now to the possibility of any mitigating factors that can be found on behalf of this particular Applicant. There are eight mitigating factors as they appear in chapter 10.5.2 of the ACIs. They include:[32]
[32] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.2.
(i)The length of time that has elapsed between the date of the relevant conduct or offence and the application for citizenship
(ii)Whether the Applicant has accepted responsibility and shown remorse for his conduct
(iii)How has the Applicant behaved since completion of his punishment?
(iv)Has the Applicant rehabilitated himself?
(v)What was the Applicant’s age during the period of offending?
(vi)Were there any extenuating circumstances around the offending?
(vii)Is there evidence of length of employment and stable family life and/or community involvement?
(viii)References:[33] do they shed light on the Applicant’s character?
[33] Ibid, paragraph 10.6.5 – References.
Not all of these factors will be relevant for present purposes. I have only considered those relevant to this matter.
The Length of Time
As I mentioned above, I consider that the relevant time runs from 2003 to December 2013. There is therefore a long pattern arising from the original offending in 2003. This factor requires the passage of a sufficient amount of time before a decision-maker can be satisfied that the person is now of good character. As observed by Senior Member Toohey:
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.
…
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes. It counts in [the Applicant’s] favour that nearly six years have passed without any further offences. However, there is not in my view sufficient evidence yet of his good character.[34]
[34] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 at [67] and [71] (Senior Member Toohey).
It counts in this Applicant’s favour that approximately three years have passed without any further offending or indiscretions. However, there is not in my view sufficient evidence yet of his good character from the date of imposition of his original conviction in 2003 and ending with the Queensland Court of Appeal’s decision in December 2013.
In his evidence, the Applicant said that he intends to apply for admission as a solicitor in the January 2017 sittings of the Supreme Court of Queensland, as is his right. That process may run smoothly for him or in the alternative, he may very well be subjected to a similar amount of regulatory scrutiny as was applied to him in 2003 and December 2013.
Acceptance of Responsibility, Demonstration of Remorse and Steps to Rehabilitation
To the Applicant’s credit, both at the hearing and earlier by way of statutory declaration, he readily accepted the nature and extent of his offending. He did not adopt an uncompromising attitude when the trend of the evidence adduced by the Respondent and submissions made on behalf of the Respondent pointed to a necessary modification of his position and contentions. That is a matter to his credit.
It is also notable that this Applicant is a commercially savvy person. I would expect nothing less from a person with his level of qualifications. On any reasonable view, he has done well. He has a Noodle Box franchise business in the Brisbane southern suburb of Mt Gravatt and, to his credit, he is looking to open another site in Underwood or Waterford. He owns real property in Kingston and owns another property in Rochedale South. He has property or funds in Fiji which he wishes to repatriate and invest into this country. They are good signs and those are matters to his credit.
To the extent that rehabilitation can be found to support this Applicant’s application, I think it is to be found in the fact that he has gotten on with his life. He has really had two chapters to his life. He has had the drama, trials and tribulations through the court and other regulatory process in relation to his professional qualifications. On the other hand, he has a very strong commercial and investment life running as the other part of his life. The latter goes to his credit.
The Applicant’s conduct post his being struck from the roll of legal practitioners in Queensland
The Applicant’s conduct after 2013 has been quiet, moderate and, for all intents and purposes, uncontroversial. This sheds a positive light on his character.
The Applicant’s age during the period of offending; his employment history and/or community involvement
The Applicant is currently 59 years of age. The offence occurred approximately 13 years ago in 2003, making him 46 years old at the time of the offence. That is not a young age. It is an age when most of us would be expected to be prudent in terms of choices that we make, especially professional choices that can impact on the remainder of our professional careers.
I would have been able to more readily accept conduct of the type this Applicant was charged with in 2003 if, for example, he were a young and impressionable junior lawyer. As a former policeman, as a lawyer, and as a principal of a firm in Fiji, one would have really expected this Applicant to have made a better decision than the one he made in 2003, aged 46, to try and pervert the cause of justice in the way he did. This consideration weighs against a finding that the Applicant is of good character.
However, as I mentioned above, the Applicant is working as not only a productive member of society, but a small business owner. This is to his credit.
Do the Applicant’s References assist him?
For the purposes of this decision, I will note that this Tribunal can always give more weight to a reference if two specific elements are available. First, it is always more helpful if the maker of a reference is available, even by telephone, to give oral evidence to support the written evidence they have given. Second, references in cases such as this are helpful when they tell us about the Applicant’s offending. Most of these references, as I read them, do not tell us very much about the Applicant’s offending. Where they do talk about the offending, they do not acknowledge with any particularity the offence he committed. For example, none of the references talk about the Applicant’s concealment of his offences from relevant applications that he made for admission to practice as a legal practitioner. Given also that these references were prepared for previous proceedings, I therefore think they do not acknowledge much in terms of particularities of the offending, nor do they acknowledge the specific issue that strikes at the heart of his character – that is, the concealment of his previous criminal offence in written applications. In addition, given that the referees did not actually appear to give their evidence or support it, even by telephone, I have difficulty in giving any substantial weight to those references.
Extenuating Circumstances?
The ACIs consider extenuating circumstances to include duress or periods of psychological disturbance including the effects of medication, but not including under the influence of recreational drugs.[35] I find no such circumstances of extenuation in the present case. Similarly, the evidence did not allude to or disclose any emergent reason or dire circumstances warranting or explaining this Applicant’s pattern of offending.
[35] See Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.2 – Mitigating factors.
I take into account the fact that the Applicant said in evidence that his relationships with both his previous wife and his younger child, the 31 year old, were also not very good about a year or more ago, resulting in a requirement by this Applicant to obtain a DVO against that particular child. However, it is encouraging to hear from the Applicant’s evidence that things seem to be improving in terms of the nature of the relationship between him and his ex-wife who indeed lives, as I understand it, in the Kingston house. Things also seem to be improving in relation to his youngest child, the 31 year old.
In those circumstances, I have difficulty allocating an extenuating circumstance to a family matter or family trouble that could possibly explain the flaws that are detectable in this Applicant’s character.
A Final Point
Any finding that this Applicant is not of good character now is not and cannot be considered determinative of a finding that he is of good character in the future.
Two primary conclusions can be formed from the evidence:
(i)when viewed holistically, at the commission of the offence in 2003 and the subsequent propounding by this Applicant of appeal upon review, it is a matter of concern to me that could point to some kind of indifference or lack of respect to laws and regulations that are in place to control and regulate a profession – the legal profession – which if not properly regulated can cause great harm in the community. I therefore consider that more time needs to pass before this Applicant can be considered of sufficiently good character for the purposes of section 21(2)(h) of the Act; and
(ii)I do not take any great heart or encouragement from this Applicant’s continual pursuit of what he perceived to be his rights through the legal system on a virtually uninterrupted basis from 2003-2013. Surely those issues must be resolved and put to one side. A sufficient amount of time must pass so that this Applicant can demonstrate to a subsequent review that he has “displayed an adequate period of compliance with Australian law”.[36] The Applicant has not done this.
[36] Tsai and Minister for Immigration and Border Protection [2016] AATA 411 at [34] (Senior Member Poljak).
CONCLUSION
I am therefore not satisfied that the Applicant was or is of good character under section 21(2)(h) of the Act. Consequently, I do not believe he is presently eligible to become an Australian citizen.
Accordingly, the sealed version of my oral decision was couched in these terms.
For the reasons outlined above and given orally at the conclusion of the hearing in this matter, I affirm the decision under review.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis ...............................[sgd]..................................
Associate
Dated 13 December 2016
Date of hearing 7 November 2016 Solicitor for the Applicant P. Chand, Chand Lawyers Solicitor for the Respondent P. Richards, Clayton Utz
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