Varpetyan and Minister for Immigration and Border Protection
[2014] AATA 150
•19 March 2014
[2014] AATA 150
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1470
Re
Karen Varpetyan
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 19 March 2014 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – permanent resident – application for citizenship – applicant does not meet good character requirement – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 21(2)(h), 22(2), 22(9), 24(1A), 24(6)(g)
SECONDARY MATERIALS
Australian Citizenship Instructions, Chapter 5
REASONS FOR DECISION
Ms N Bell, Senior Member
19 March 2014
Karen Varpetyan is a citizen of Armenia and first arrived to Australia in February 1999 and was granted a permanent spousal visa in September 2008.
On 16 January 2013, Mr Varpetyan lodged an application for Australian citizenship by conferral. At the time, Mr Varpetyan was subject to a good behaviour bond and accordingly was not granted citizenship pursuant to s 24(6)(g) of the Australian Citizenship Act 2007. Mr Varpetyan’s application was also declined on the basis that the Minister was not satisfied he was of good character. The good behaviour bond was set aside on appeal in April 2013 and Mr Varpetyan was no longer prevented from being granted citizenship by operation of s 24(6)(g).
Mr Varpetyan appeals the decision of the Minister to refuse his application for Australian citizenship on the basis that he is not a person of good character.
Section 21(2) of the Australian Citizenship Act 2007 provides the general eligibility criteria which apply in each application for citizenship:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister's decision on the application.
Of particular importance for Mr Varpetyan, is s 21(2)(h) which requires the Minister to be satisfied that the person is of good character at the time of the Minister’s decision on the application, that is, on 27 March 2013.
Section 24(1A) provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsections 21(2) to (8).
The term ‘good character’ is not defined in the Act, however the Tribunal can be guided by the policy contained in the Australian Citizenship Instructions.
The Australian Citizenship Instructions contain the following introduction:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Chapter 10 of the Instructions are relevant to the assessment of ‘good character’. At 10.1.2, the introduction provides:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
The Instructions go on to say that while the term “moral” does not have any religious connotations, it includes:
- 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
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
The Instructions provide a non-exhaustive list of characteristics that would be among those possessed by a person of good character, they include:
- respect and abide by the law
- be honest and financially responsible
- be truthful and not practice deception or fraud in their dealings with the Australian Government or other governments and organisations, for example: providing false personal information … or other material deception during visa and citizenship applications …
…
- not be the subject of any verifiable information causing character doubts.
IS MR VARPETYAN OF GOOD CHARACTER?
Mr Varpetyan has the following criminal record:
Court Offence Date of Offence Date Convicted Sentence Downing Centre Local Court Larceny 15 June 2000 7 December 2000 Fine: $1000 Downing Centre Local Court Shoplifting 6 August 2002 6 December 2002 Fine: $1,200, s 9 Bond: 12 months Burwood Local Court Shoplifting value <=$2000-T2 16 March 2005 10 August 2005 Fine: $700, costs $65, compensation $347.88, s 9 Bond: 2 years
Mr Varpetyan declared bankruptcy on 30 September 2010.
In addition to Mr Varpetyan’s convictions, there are other aspects of his conduct that raise concerns about his good character. These include his financial responsibility, his ethics, and his truthfulness, exhibited, in particular, in his substantial unrepaid borrowings, the representations he made to secure them, and his intention to avoid repayment through voluntary bankruptcy; the provision of a false divorce document; an insurance claim that was found to be fraudulent after investigation; and aspects of the evidence he gave to this Tribunal.
In that evidence, a number of matters were conceded by Mr Varpetyan. The following matters are not disputed by him.
Mr Varpetyan borrowed large sums of money from many people, often borrowing from one in order to repay another. He cannot remember all of his debts. He went bankrupt in order to end this cycle and make a fresh start, but has borrowed significant amounts while still bankrupt and expresses surprise and anger that people still want to be repaid and still pursue him outside the courts for repayment. There is dispute about how much he owes to whom.
He has a bad gambling problem and first commenced gambling because he had no permission to work when he arrived in Australia. He blames his gambling and his borrowing on this. He obtained permission to work in 2008 and got a job at Star City Casino. He considers he cannot work now because he has carpal tunnel syndrome and high blood pressure. He is receiving Newstart Allowance.
He forgot to mention to his trustee in bankruptcy his superannuation funds of $2,000. He has many superannuation funds because he has worked for a few weeks here and there at many places. He transferred his share in his house to his wife a few months before he went bankrupt. His wife went bankrupt a few months after he did. He did not give his trustee a complete list of his creditors.
Almost all of the money he has borrowed has been used by him to pay other creditors or to fund his gambling. Some of it has been used to meet living expenses and he has borrowed on three occasions to pay his rent.
He took two cheques from his wife’s migration agent business, signed them and gave them to people to whom he owed money. He was not an employee of her business nor her business partner. The cheques bounced. He considered this was not stealing because the cheques were in his house.
When he borrowed money he did not tell people it would be used to pay debts or to gamble. He borrowed from one person for the stated purpose of making an application to provide an assurance of support to the Migration authorities in respect of his daughter in Armenia. He withdrew his application but kept the money which he used to repay other debts to persons he cannot recall.
Mr Varpetyan blamed the Department for his predicament because it did not refer him for counselling or treatment and because he did not receive Centrelink benefits until 2008 when he obtained permanent resident status. He maintained that he has a good character in other respects and specifically mentioned that he stands up for pregnant women on the bus, puts his cigarette butts in the bin and helps at his son’s school. Extraordinarily, he pointed to the fact of so many people lending him money as evidence of his being considered by them to be of good character.
Mr Varpetyan denied having provided a false divorce document. He said his wife in Armenia had obtained it and provided it to him. He also denied having made a fraudulent insurance claim. He later changed this to a protest that “there is no proof” and that he has not been prosecuted. He denied having told those from whom he borrowed that the purpose of the borrowing was, variously, to start a computer business, to start a coffee business, or to start a car business. He insisted that, for all of his post-bankrupt borrowings, he told the people concerned about his bankruptcy. There was considerable dispute between Mr Varpetyan and a range of people from whom he had borrowed and who gave evidence to the Tribunal about the amounts he had repaid to them and the representations he had made when he borrowed from them. On the basis of the following evidence, I have decided all of these factual disputes against him.
Divorce document
In support of his application for a spouse visa in 2007, Mr Varpetyan gave the Department a document, in Armenian, purporting to be evidence of divorce from his wife in Armenia. After an officer of the Australian Embassy in Moscow contacted the Armenian Court in Yerevan to verify the document, the Court stated that it was a forged copy of a court ruling and that the named judge had never worked at the Court.
In her telephone evidence to the tribunal, Ms Zara Tarlamazyan, Mr Varpetyan’s wife in Armenia, stated that she and Mr Varpetyan are not divorced and she knows nothing of a certificate saying they are. I accept her evidence. I do not accept that she was confused as Mr Varpetyan urged on me.
I find that Mr Varpetyan was responsible for the forged divorce certificate that he provided to the Department. It reflects very poorly on him that he tried to sheet the blame for this forgery home to his wife in Armenia.
Insurance Claim
Following Insurer AAMI’s refusal to meet Mr Varpetyan’s claim under his home contents insurance policy after a reported break in of Mr Varpetyan’s home, Mr Varpetyan complained to the Financial Ombudsman. The insurer alleged that Mr Varpetyan had provided false documentation and misleading information and tainted the claim with fraud. The Referee, after an exhaustive investigation including interviews with Mr Varpetyan and his wife in Australia Ms Khachatrian, and examination of the receipt relied on by Mr Varpetyan, concluded that Mr Varpetyan had provided false and misleading documentation and information. I prefer this evidence to Mr Varpetyan’s bland and, later somewhat qualified, denial. I find that he did provide false and misleading documentation and information to the insurer.
Borrowings
Mr Varpetyan borrowed $20,000 from Mr Yevgen Kyselov. Mr Kyselov said Mr Varpetyan told him it was for a second hand car business. Mr Kyselov said Mr Varpetyan had repaid him $300. Mr Varpetyan agreed he had given Mr Kyselov a cheque for $6,000 that had bounced. He also said he had repaid $16,000. Mr Kyselov described a long process of requests for extensions of time to repay and many broken promises from Mr Varpetyan. I prefer the evidence of Mr Kyselov, who has attempted recovery of the debt through the courts and obtained a judgment in his favour that he cannot enforce.
Mr Michael Pyatigorsky said Mr Varpetyan borrowed $33,000 and he has been paid back $1,300 together with a computer for his daughter. Mr Varpetyan said he had borrowed $19,000 and paid the whole sum back. I prefer the evidence of Pyatigorsky.
Mr Roman Golman said Mr Varpetyan had borrowed $54,900 from him and told him it was for a coffee business. Only $23,000 has been repaid. Mr Varpetyan purported to repay him with two cheques drawn on his wife’s migration agent business account. Both cheques bounced.
Mr Zbigniew (Ted) Kazar said Mr Varpetyan borrowed $4,000 from him and has not repaid it. Mr Varpetyan says the sum has been repaid. I prefer the evidence of Mr Kazar.
Ms Helen Metlenko said Mr Varpetyan borrowed $48,000 from her, saying he needed it to obtain building materials he intended to donate to the building project for Ms Metlenko’s husband’s Church. She said she and her husband paid him $22,000 ($15,000 from their home loan account and $7,000 from Church funds). After being told by Mr Varpetyan that the building materials were “stuck in Customs” Ms Metlenko’s husband withdrew a further $8,000 for this purpose. A further $9,000 was paid to Mr Varpetyan to secure delivery of the non-existent building materials. Ultimately, as the amount owing by Mr Varpetyan approached $60,000 Ms Metlenko insisted that Mr Varpetyan sign an agreement acknowledging the debt. The agreement was signed by Mr Varpetyan after he had gone bankrupt. The debt remains unpaid. Mr Varpetyan said he has repaid it in part. I prefer the evidence of Ms Metlenko.
Mr Aramais Aroustian said he lent Mr Varpetyan $10,800 in 2013 so he could apply to give an assurance of support for his daughter. He said Mr Varpetyan did not tell him he was an undischarged bankrupt. Mr Varpetyan said he did. The money remains unpaid. I prefer the evidence of Mr Aroustian.
Mr Varpetyan borrowed $50,000 from Mr Viktor Pastoukhov in 2013 and maintains he has repaid $25,000. He also said he told Mr Pastoukhov he was an undischarged bankrupt. Mr Pastoukhov disputes this and documents obtained from the Australian Financial Security Authority, attach letters of demand from Mr Pastoukhov’s solicitors and a copy of a contract signed by Mr Varpetyan by which he purported to provide his house as security. Mr Varpetyan had already transferred his interest in his house to his wife.
According to Mr Varpetyan there are many more, but when pressed he could not remember their names and promised to return with records. No records were produced by him.
It is clear that these large sums were borrowed by Mr Varpetyan with no ability to repay. He was, and appears to continue to be, financially irresponsible and deeply reckless. He has cost many people many thousands of dollars of lost funds. He continues to have little grasp of the loss he has caused and little consciousness of its extent. He expressed no remorse and a great deal of self-pity. He admitted that, since his bankruptcy, he has continued to borrow large sums of money. He would not, or could not, identify the people and the sums involved.
Stolen Cheques
Ms Khachatrian, Mr Varpetyan’s wife in Australia, gave evidence that the chequebook for her migration business, conducted from 2006 to 2010, was locked away, that it was not a joint account and Mr Varpetyan did not have her permission to use it. Mr Varpetyan wrote three cheques on the account, one to Mr Kazar and two to Mr Golman, purportedly in repayment of debts. The cheque to Mr Kazar was for $3,500 and resulted in a complaint by him to the Migration Agents’ Registration Authority about Mr Varpetyan’s wife.
The two cheques drawn in favour of Mr Golman were for $62,000 and $65,000 and both were dishonoured. Mr Golman also lodged a complaint with the Authority.
Dr Milorad Sokolovich, Forensic Psychiatrist, said he was first consulted by Mr Varpetyan in May 2012 until he missed many consecutive appointments. Lately, he said, he has been providing family therapy to Mr Varpetyan and his wife. He said Mr Varpetyan has “psychological maladjustment” and ventured that it is some kind of personality disorder. He said he also has depression and anxiety and is currently taking Zoloft for his depression. He said he had only recently learned that Mr Varpetyan has a problem with gambling. He noted that gambling problems are very difficult to treat. He said Mr Varpetyan told him that he has some “financial problems.”
CONCLUSION
Mr Varpetyan’s conduct as found indicates a high level of dishonesty and a reckless disregard for the people he deals with. He is financially irresponsible, deceptive and reckless and, on his own evidence, he continues in this fashion even now. He has lied to or misled his many creditors, his Trustee in bankruptcy, the Department of Immigration and Citizenship, as it then was, an insurer, the Financial Ombudsman and this Tribunal. He appears not to have been entirely frank and forthcoming with his treating psychiatrist and yet he demands that his depression be taken into account as an ameliorating factor. He appears to take no or little responsibility for his conduct, instead expressing outrage that his creditors have not forgiven his debts following his attempt to avoid them through bankruptcy and blaming government departments for failing to provide him with funds to meet his expenses. He has convictions for larceny and theft.
Mr Varpetyan appears to have no insight into his own behaviour. His admitted recent borrowings whilst an undischarged bankrupt show that. He continues on the same path and shows no sign of deviating from it. He takes the view that, because he has been able to borrow large sums of money from so many people, he is well thought of and must be of good character. His lack of insight is astonishing.
He is not a person of good character.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. .....[Sgd]...................................................................
Associate
Dated 19 March 2014
Dates of hearing 22-23 January 2014 Applicant In person Solicitors for the Respondent Ms Stone, DLA Piper
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