Singh and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 424

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 424

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1643

GENERAL ADMINISTRATIVE DIVISION		)
Re		Avtar SINGH

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N BELL

Date29 April 2004

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review

[sgd] Ms N Bell, Member

CATCHWORDS

CITIZENSHIP AND MIGRATION – Citizenship Application – refused on grounds of Applicant’s criminal history – onus on Applicant to prove of good character – onus not discharged – decision affirmed

Australian Citizenship Act 1948 s 13(1)(f)

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

29 April 2004 Ms N BELL             

1. This is an application to set aside a decision of the Respondent’s delegate, made on 7 October 2003, to refuse to grant Australian citizenship to the Applicant. The Applicant was not granted citizenship because the delegate was not satisfied that he was of good character, under s13(1)(f) of the Australian Citizenship Act 1948 (“the Act”), based on his criminal record.

BACKGROUND

2.      The Applicant was born on 13 April 1967 in India, and arrived in Australia on 8 April 1992. On 16 December 1996 he was granted permanent residence.

3.      On 8 April 1999 the Applicant was charged with the offence of doing an act with the intent to pervert the course of justice.  He pleaded guilty, and on 13 October 2000 received a suspended sentence of 12 months imprisonment, with a good behaviour bond.

4.      On 19 July 2001 the Applicant was charged with the offence of making a false statement on a passport application. He pleaded guilty, and on 6 December 2001 was sentenced with a 6-month good behaviour bond.

5.      On 14 May 2002 the Applicant applied for Australian citizenship. On 27 May he was advised that his application was deferred until 27 May 2003. On 7 October 2003 the Applicant was advised that his application for citizenship was refused, and on 13 October 2003 he applied to this Tribunal for review.

ISSUE BEFORE THE TRIBUNAL

6. There is one issue before the Tribunal: does the Applicant satisfy the test of good character under s13(1)(f) of the Act?

THE APPLICABLE LAW

7. The term ‘good character’ under s13(1)(f) is not defined in the Act. As such, the decision maker is to have regard to the ordinary meaning of the words in making assessments; see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where Davies J noted, at 87:

“It should also be observed that the term ‘good character’ is not precise in its denotation.  In one sense, it refers to the mental and moral qualities which an individual has.  In another sense, it refers to the individual’s reputation or repute...I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such.  It does not.  But criminal convictions or the absence of them and character references are likely to be an important source of primary information.  If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the applicant.  If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed.  If persons speak well of the applicant, the decision-maker will take that into account.”

At ALR 94 in the same case, Lee J further noted that:

“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25;117 FLR 455 per Miles CJ at FLR 459-60; Plato Films BLtd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138.”

Deputy President Wright observed in Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at paragraph 13:

“’Good character” within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community.”

8. Ministerial directions relating to grants of Australian Citizenship are to be found in the Australian Citizenship Instructions (“the ACI”). Those provisions relating to assessments of good character under s13(1)(f) are in part 5.4 of the ACI. Such directions are not binding on the Tribunal and are policy guidelines only, however they are useful to the extent that they aid in the construction of the Act (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

9.      The Respondent’s delegate refused the grant of citizenship to the Applicant based on his criminal record. According to the policy guidelines, where there is such evidence that the Applicant is not of good character, it is incumbent on the Applicant to demonstrate that he indeed is of good character. To do this, it is his responsibility to point to any extenuating circumstances relating to the convictions, demonstrate that the offences were a ‘one-off’ and do not represent a pattern of behaviour, and that a reasonable amount of time has lapsed since he was last free of an obligation to any court.

APPLICATION OF THE LAW

10. The Applicant represented himself at the hearing with the aid of an interpreter. The Tribunal had regard to the documents submitted by the parties under s37 of the Administrative Appeals Tribunal Act 1975, all material on file, and all exhibits tendered at the hearing by both parties in coming to the correct and preferable decision.

11.     The Applicant’s criminal history, as outlined above, involves two convictions. I will look at each conviction in turn. Evidence as to the facts for each offence is taken from the police charge sheet relating to each offence. I accept that evidence.

12.     On 26 March the Applicant’s brother in law, Mr Kulvinder Singh, was arrested and charged with indecent assault and committing an act of indecency on one Ms Orre, in Griffith, NSW. He was granted conditional bail, and was to appear at Griffith local court on 14 April 1999.

13.     At 9:30am on 31 March 1999, Ms Orre received a phone call from a woman she did not know, who was inquiring about the incident. Ms Orre did not want to discuss anything with this woman. This woman indicated she would call back at 9:30am on 1 April. Ms Orre reported this phone conversation to the police.

14.     Early on 1 April the police went to the home of Ms Orre, and fitted her with a telephone equipped with a built in microphone and loudspeaker, so that the police could hear all conversation taking place on the phone. At 9:30am the same woman called. The caller referred to the upcoming court matter with Kulvinder Singh, and expressed a desire to settle the matter out of court.  She promised that her associates would provide her with a letter of apology, and raised the possibility of settling the matter with a sum of money.  It was decided that the letter and money would be exchanged at Ms Orre’s residence at 1pm on Thursday 8 April 1999.

15.     At 8:15am on 8 April the woman telephoned Ms Orre once more and told her to expect a call from the Applicant. The Applicant then called Ms Orre, and said he would meet her at her house at 1pm. Police fitted Ms Orre with a listening device.

16.     At 12:45pm the Applicant arrived with his sister, the wife of Kulvinder Singh. Ms Orre met them and was given the cheque and letter. In exchange, the Applicant requested that she withdraw the charges against Kulvinder Singh. Ms Orre consulted the police, and then agreed to follow the Applicant’s car to Griffith Court House. The Applicant’s car was intercepted on the way to the Court House and the Applicant was placed under arrest. He obtained legal advice, pleaded guilty, and was sentenced as decribed in paragraph 3.

17.     In relation to the offence of attempting to pervert the course of justice, the Applicant’s evidence was as follows.

18.     A community friend of the Applicant, a social worker in Sydney by the name of Pria, heard the story of Kulvinder Singh and made contact with the Applicant. She informed him that she had made arrangements with the complainant in Griffith, to the effect that in exchange for a letter of apology and $1,000, she would withdraw the charges. She said it was to be the Applicant’s responsibility to travel to Griffith and present the letter and the money.

19.     The Applicant arrived at the complainant’s house at the appointed time, and introduced himself as Avtar Singh, nickname Sunny. He was arrested and charged in the manner outlined in paragraph 12. After obtaining legal advice, he pleaded guilty, and received his 12 month suspended sentence.

20.     At all times throughout the hearing, the Applicant steadfastly maintained that he was “totally innocent” of this first offence. When pressed as to whether or not he knew he had done something wrong, he said merely that what he had done was against Australian law, and that in India, people who resolve such disputes are accorded very high social status. The highest he put it was that he “had made a mistake”.

21.     Pria was not called as a witness at the hearing, and no statement was obtained from her. The Applicant, when confronted with the inconsistency of a guilty plea in the face of resolute denials of wrongdoing, said again that he did not know Australian law.

22.     I find the Applicant’s evidence in relation to this matter unconvincing. The vigour with which he was prepared to defend his innocence at this hearing seems at odds with someone who, having been arrested, detained at a police station and charged, gave a guilty plea after receiving legal representation. Further, his refusal to accept that he has done anything wrong does not help him in displacing his onus to prove that he has reformed since the commission of the crime.

23.     In respect of the second offence, the statement of facts tendered on sentence reads as follows:

“On 6 June 2000, an Australian passport application (no. 49976432) in the name of “Sunny Benipal” was lodged at the Georges Hall Post Office. As proof of his identity, “Benipal” provided a NSW Birth Certificate (no. 12520/1979) in the same name indicating his date of birth in NSW as 25 April 1979. The passport application listed the postal address of PO Box 712 Rosebery NSW 2018 and Benipal’s contact number was listed as 0412 495 924.

On 30 June 2000, an Australian Passport (no. L8650478) was issued by the Department of Foreign Affairs & Trade in the name of Sunny Benipal and mailed to the postal address of PO Box 712 Rosebery NSW 2018.

Sometime in early 2001, the Australian Federal Police (AFP) began an investigation on the passport application of Sunny Benipal.

Enquiries with the NSW registry of Births Deaths & Marriages verified that the Birth Certificate in the name of Sunny Benipal (no. 12520/1979) was false.

The AFP then contacted Rosebery Post Office and verified that the tenant of PO Box 712 Rosebery NSW 2018 as [the Applicant]. The contact number provided on Australia Post records was 0412 495 924. Later enquiries with Optus Communications confirmed that the registered subscriber to this mobile number was [the Applicant].

On 19 July 2001, AFP Agent Paul Wesley posed as an Australia Post employee and telephoned mobile number 0412 495 924 and spoke to [the Applicant]. Agent Wesley asked [the Applicant] whether he knew the whereabouts of Sunny Benipal as there was a parcel awaiting collection in that name addressed to the defendant’s PO Box 712 at Rosebery Post Office. [The Applicant] replied “That’s me” and stated that Sunny Benipal was his nickname. He then indicated he would attend Rosebery Post Office and collect the item.

[The Applicant] then attended the Post Office with 2 unidentified Indian males, where he was served by Australia Post employee Karina Clarke. [The Applicant] indicated to Ms Clarke that he was collecting the parcel addressed to Sunny Benipal and produced his original driver’s license in the name of Singh as identification. When Clarke asked the defendant who was Sunny Benipal, he stated “that is my nickname”. Shortly thereafter AFP agents in attendance at the post office arrested [the Applicant].

The AFP then obtained a telephone search warrant and executed this on [the Applicant’s] premises at 10/10 Barber St Eastlakes.

[The Applicant] was then conveyed to Surry Hills Police Station where he was formally charged. The defendant then participated in an electronic Record of Interview (ROI) at AFP headquarters with the assistance of an Interpreter in the Punjabi language where he denied the committing the offence. [The Applicant] explained that he had attended the Post office to collect the parcel as he misheard the name as “Saini” (and not Sunny Benipal), which was his nickname.”

24.     At the hearing the Applicant claimed that the passport was issued without his knowledge. He said that he was sharing an apartment with some friends, his name being listed on the lease and on the PO Box. His friends had access to the PO Box. He said he never applied for the passport, that the photo endorsed on the passport was not of him or anyone he knew, and that the friends with whom he was staying were the ones who applied for the passport.  He claimed that the police investigating him on this matter told him that one of these friends had access to 2 other PO boxes, and that they had his PO Box “on file”.

25.     In relation to the Australian Federal Police operation carried out on 19 July 2001, the Applicant states that he received the mobile phone call from agent Wesley while he was walking on a noisy road outside a McDonald’s restaurant. He heard the name “Sunny”, and said “that’s me”. He said he was near the post office, and would meet him in a few minutes. He arrived, and heard his nickname, Sunny. He said “I’m not Sunny Benipal”, and said that he was sharing accommodation with others. When shown the photo on the passport by the postal worker, he said “I’ve never seen that photo”. The police carried out a search of the Applicant’s home and removed some family documents, finding no mention of a “Sunny Benipal”.

26.     The Applicant further states that he was advised by his legal representative to plead guilty in relation to this charge so that two other charges made against him would be dropped, and that his conviction for this charge would present no barrier to him successfully applying for citizenship. He believes he has been wrongly convicted of this offence, that the sentence was wrong, and that he didn’t make any mistake.

27.     When asked why, when aged 34 and with the benefit of legal representation, the Applicant pleaded guilty to an offence he regarded as a ‘big case’, his evidence was either that he was confused, that he was advised to plead guilty, that he didn’t know the law, and that he didn’t want to waste the time of the court.

28.     As outlined above, in cases such as these where there is evidence to suggest that the Applicant is not of good character, the onus shifts to the Applicant to demonstrate that he is of good character.  None of the Applicant’s claims were supported by any evidence other than his own assertions. No witnesses were called to corroborate his version of events in relation to either of his offences. The only evidence given at the hearing, other than his own testimony, were character references from his mother and his wife, and written character references from his sister, his brother, a friend and the social secretary of his temple. 

CONSIDERATION

29.     In forming a view in relation to the ‘enduring moral qualities’ of the Applicant, I have had regard to the inconsistencies between the police evidence and his own evidence. It seems to me, in concordance with the submissions of the Respondent, that the Applicant has sought to distance himself from responsibility for his actions in regard to these matters. Also, it would appear that the Applicant has little regard for Australian law. As I mentioned above, I have no evidence of the Applicant’s good character in this matter save the Applicant’s assertions, and references as to his good character provided by family members and friends.

30.     In comparing this with the expectations of the Australian community, I find that although the Applicant has not, for example, taken positive steps to harm another human being, the degree of disregard for the laws and legal processes of Australia demonstrated by his crimes is such as to be undesirable to the greater Australian public. Of course, this finding does no irremediable prejudice to his application in the long term; on his own admission he is or at least has been unaware of Australian law. His understanding of his obligation as a prospective Australian citizen to obey and respect the laws of this country will, I believe, best be encouraged by a finding against him in this application.

31.     Finally, it is notable, but not germane to my decision, that the Applicant was unable to provide any compelling reason as to why he would require Australian Citizenship. When asked, he said merely that he “liked Australia”, and that he has completed the 2 year waiting period. The Applicant will suffer no prejudice from having his application for citizenship refused. He can always re-appy in the future, and the refusal of the grant this time around does no prejudice to any further applications he wishes to make when, for instance, his criminal convictions are further behind him and he has made a demonstrable positive contribution to his Australian community.

DECISION

32. The decision of the Respondent’s delegate is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N BELL

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  10 March 2004
Date of Decision  29 April 2004
Representative for the Applicant    Self       
Solicitor for the Respondent          Ishan Muthalib