VYWY and BRPN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 2953
•17 August 2020
VYWY and BRPN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2953 (17 August 2020)
Division:GENERAL DIVISION
File Numbers: 2019/2452, 2019/4155
Re: VYWY
BRPN
APPLICANTS
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO, Member
Date:17 August 2020
Place:Melbourne
The Tribunal affirms the decisions under review.
..............[sgd]................................................
Ms Anna Burke AO, Member
Catchwords
CITIZENSHIP – refusal to approve Australian citizenship by conferral – whether the applicant is of good character – seriousness of offending – offences of obtaining financial advantage from Commonwealth entity – Centrelink fraud – significant sum of funds – mitigating circumstances – domestic violence survivor – whether sufficient time has lapsed since offending – child under 16 assessed in her own right – best interests of the child – whether the applications for citizenship should be approved – decisions under review affirmed
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth), schedule (the Criminal Code)
Education and Care Services National Law Act 2010 (Vic)Migration Act 1958 (Cth)
Cases
Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs, Re [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mana and Minister for Immigration and Border Protection (Citizenship), Re [2016] AATA 639
Seo and Minister for Home Affairs (Citizenship) [2019] AATA 3649
Traboulsi and Minister for Home Affairs (Citizenship) [2018] AATA 4253
Zheng v Minister for Immigration and Citizenship, Re (2011) 55 AAR 94Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke AO, Member
17 August 2020
INTRODUCTION AND BACKGROUND
The Applicant, VYWY, is a 34-year-old Iranian citizen who arrived in Australia on 28 September 2011 with her husband (whom she has subsequently separated from) and her daughter, BRPN, aged 13. Subsequently, on 23 May 2012, she was granted a Permanent Protection Visa (subclass 866).
Section 501K of the Migration Act 1958 (Cth) provides that if a person applies to the Administrative Appeals Tribunal for review in the person’s capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. As the Applicant holds a protection visa, the Tribunal has directed under section 35(3) of the Administrative Appeals Tribunal Act1975, that the Applicant’s name be suppressed and appear as “VYWY”. Similarly, her daughter’s will appear as “BRPN”.
On 17 August 2016, VYWY lodged an application for Australian citizenship by conferral and included in the application her child, born January 2007.
On 25 May 2017, VYWY was charged and summonsed on four counts of obtaining financial advantage from a Commonwealth entity and was subsequently convicted and fined in the Heidelberg Magistrates Court on 18 October 2017.
On 10 April 2019, a delegate of the Respondent (Minister) refused VYWY’s application for citizenship under section 24 of the Australian Citizenship Act 2007 (the Act), as they found she did not satisfy the good character requirement to become an Australian citizen. In the decision the delegate states:
After carefully considering all the information before me, I am satisfied that your offences are at the high range of significance. Your actions and behaviour are considered unacceptable in the Australian community based on Chapter 11 of the Policy which states that an applicant of good character would 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 involvement in Centrelink or Australian Tax Office fraud.
The Attorney General’s website … states:
Fraud against the Commonwealth is a serious matter for all Australian government departments and agencies, and the community. It prevents taxpayer dollars from reaching intended targets and affects the government’s ability to deliver key services. Estimates of what fraud costs Australia vary, but even conservative estimates put the cost at over $1 billion a year.
Fraud against the Commonwealth is a criminal offence that impacts directly on Australians. It reduces the funds available for delivering public goods and services and undermines public confidence in the Government.
I am also not satisfied that a reasonable amount of time has passed to establish a pattern of good behaviour and to conclude that you are now good character.
On 10 April 2019, a delegate of the Minister refused BRPN’s application for citizenship as she was not:
·living with a responsible parent, who is an Australian citizen and who consents to the application; or
·usually resident in Australia with a permanent resident responsible parent who consents to the applicant and the responsible parent would meet the resident requirements, but it’s decided not to apply for Australian citizenship because they would lose the citizenship of another country; or
·living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise buy suffer significant hardship or disadvantage; or
·an unaccompanied humanitarian minor.
Additionally, the delegate considered Article 3.1 of the Convention of the Rights of the Child, considering the best interest of the child in making their determination. The delegate stated:
Your child is currently a permanent resident of Australia. They therefore have permission to stay in Australia indefinitely and have appropriate access to education, health and social welfare services, and when in Australia, are covered by the same laws as Australian citizens. It is these laws that provide your child with protection from physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. It is also these laws that provide your child the right of freedom of religion, the right to an identity and protection from the illicit transfer and non-return from abroad. A decision to refuse to approve your child becoming an Australian citizen by conferral would not change their immigration status in Australia and therefore would not deny them the protection and rights provided by Australian law whilst present in Australia. I am also satisfied a decision to refuse your child Australian citizenship will not separate you from your child. Therefore, I am satisfied that such a decision would not be against your child’s best interests.
On 27 April 2019, VYWY applied to this Tribunal for review of the delegate’s decision. In the application she claims the decision is wrong for the following reasons:
I think the decision was wrong and a different decision should have been made. The decision maker did not consider my explanation and the evidence provided in its entirity.
On 10 July 2019, VYWY’s daughter applied to this Tribunal for review of the delegate’s decision together with an application to extend time for a review of a decision. The Minister did not oppose the extension of time application, and an extension of time was granted.
At the hearing by telephone, VYWY and her daughter were represented by Ms Shahen Wheatley of Australian Visa Migration Experts and Mr Christopher Orchard, of Sparke Helmore, appeared on behalf of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Tribunal was assisted by an interpreter in the Persian language. VYWY gave evidence under oath.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the Applicant is of good character.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
(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 satisfies the defence service requirement (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.
Section 24 of the Act provides, in part:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the 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).
Section 46 (2A) of the Act sets out the application requirements for children under 16:
Children aged under 16
(2A) An application under a provision of this Act by a child aged under 16 must be set out:
(a) on a form that contains no other application; or
(b) on a form that also contains an application by 1 responsible parent of the child.
The Citizenship Policy
The role of the Department of Immigration and Border Protection Citizenship Policy issued by the Minister in 2016 (the Policy) is to provide guidance on the interpretation and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007. The Tribunal is not bound to strictly apply the Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [21]: “Policy is not law. A statement of policy is not a prescription of binding criteria.”
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J.
In relation to children under 16 applying on the same form and at the same time as a responsible parent, the Policy states:
Children under 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also:
·be living in Australia with the relevant responsible parent and
·the relevant responsible parent consents to the inclusion of the child in their application.
…
Note: Decision makers must make a separate decision record for each applicant included on the application if the application is to be refused.
Note: if a child under 16 applies on the same form at the same time as a responsible parent, and the parent is refused, the child must be assessed in their own right.
The term “good character” is not defined by the Act. However, guidance is provided by the Policy.
Chapter 11 of the Policy deals with good character. Importantly, it is expressly stated at the outset that it is not departmental policy for decision-makers to be bound by a checklist.[1] Rather, decision-makers are to look at the “merits of each case and turn their minds to the issues of character until they are satisfied, on a reasoned basis, whether the applicant is, or is not, of good character”.[2]
[1] T13 of the T documents, 178.
[2] Ibid.
Reference is made to the definition of good character given by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431–432):
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 whilst the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. 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 has reformed and is of good character: see Re Davis (1947) 75 CLR 409 at 416 per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The Policy goes on to state:
In this context, ‘moral’ does not have any religious connotations. The phrase ‘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 Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
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.
The Policy also refers to ReFenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President Breen discussed the role of the character requirement in a citizenship application (at 8):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of the State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
To assist decision-makers, the Policy contains a non-exhaustive list of the characteristics of good behaviour, which is set out below:
… an applicant of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
§providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
§involvement in bogus marriage
§concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
§involvement in Centrelink or Australian Tax Office fraud
§giving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and 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)
·not to be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.[3]
[3] Ibid 182.
The Policy also provides guidance on weighing up the character decision. It points out that the assessment of whether an applicant is of good character requires the consideration of an aggregate of qualities. The Policy identifies that more weight is to be given to significant offences in the assessment.[4]
[4] Ibid 184.
The Policy further states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·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.
…
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or 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 makes reference to Deputy President Forgie’s decision in ReZheng v Minister for Immigration and Citizenship (2011) 55 AAR 94 (at 120), to demonstrate this point:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
EVIDENCE
The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents.” VYWY provided a witness statement and several character references.
The following summary of recorded offences against VYWY’s name has been derived from a Criminal Intelligence Commission check results report dated 9 August 2018:
CourtDate Nature of Offence Sentence Heidelberg Magistrates Court
18 Oct
2017
CTH-obtain financial advantage from Commonwealth entity
Global penalty: convicted and fined $3000. Repatriation order pursuant to S.21B Crimes Act 1914 $60,921.82 Heidelberg Magistrates Court
18 Oct
2017
CTH-obtain financial advantage from Commonwealth entity
Global penalty: convicted and fined $3000. Repatriation order pursuant to S.21B Crimes Act 1914 $60,921.82 Heidelberg Magistrates Court
18 Oct
2017
CTH-obtain financial advantage from Commonwealth entity
Global penalty: convicted and fined $3000. Repatriation order pursuant to S.21B Crimes Act 1914 $60,921.82 Heidelberg Magistrates Court
18 Oct
2017
CTH-obtain financial advantage from Commonwealth entity
Global penalty: convicted and fined $3000. Repatriation order pursuant to S.21B Crimes Act 1914 $60,921.82
The charge sheet and summons issued in the Magistrates Court of Victoria on 25 May 2017 outlined the four charges as follows:
(i)between 11 February 2014 and 30 December 2014, whilst in receipt of Parenting Payment Single, VYWY intentionally provided incorrect information to the Department regarding her income and as a result of that conduct obtained financial advantage to which she was not eligible “knowing or believing” that she was not eligible, contrary to section 135.2(1) of the Criminal Code;
(ii)between 13 January 2015 and 23 March 2016, whilst in receipt of Newstart Allowance, VYWY intentionally provided incorrect information to the Department regarding her income and as a result of that conduct obtained financial advantage to which she was not eligible “knowing or believing” that she was not eligible contrary to section 135.2(1) of the Criminal Code;
(iii)between 12 May 2014 and 29 September 2015, whilst in receipt of Jobs, Education and Training Child Care Fee Assistance, VYWY intentionally provided incorrect information to the Department regarding her income and as a result of that conduct obtained financial advantage to which she was not eligible “knowing or believing” that she was not eligible contrary to section 135.2(1) of the Criminal Code;
(iv)between 7 January 2016 and 18 March 2016, whilst in receipt of Rent Assistance, VYWY intentionally failed to advise the Department of a change in her circumstances as required by law in that she failed to advise that she had acquired a residential property as her principal home and as a result of that conduct obtained a financial advantage from the Commonwealth, namely payment of Rent Assistance to which to which she was not eligible “knowing or believing” that she was not eligible contrary to section 135.2(1) Criminal Code.
The Commonwealth Director of Public Prosecutions (CDPP) provided an overview of the facts of VYWY’s offending as follows:
Between 11 February 2014 and 29 September 2015, whilst in receipt of Parenting Payment Single, Newstart Allowance and Jobs, Education and Training Child Care Fee Assistance, the Accused intentionally misrepresented her true circumstances and failed to correctly declare the amount of her income from employment to the Department of Human Services (hereafter “Centrelink”).
The incorrect information the Accused repeatedly provided Centrelink about her income during the periods of offending amounted to ongoing courses of conduct, in that the false declarations or statements made were acts of a similar nature committed to obtain payments from the Commonwealth which the Accused knew she was not eligible to receive.
Between 7 January 2016 and 18 March 2016, whilst in receipt of Rent Assistance, the Accused failed to advise the Department of Human Services (hereafter Centrelink) of the purchase of a residential property on 21 December 2015, which became her principal home after this date.
The Accused’s failure to inform Centrelink about her purchase of the property was an intentional omission designed to obtain payments from the Commonwealth which the Accused knew she was not entitled to receive as a result of owning the property.
In respect of charges the Tribunal has ascertained the following from VYWY’s statutory declaration of 16 October 2018 and the CDPP summary of facts:
·that from the 11 February 2014 until 23 March 2016, whilst in receipt of Centrelink benefits, VYWY operated Wiggles and Giggles Family Day Care and One Care Family Day Care, earning a combined amount of $295,290.28 gross income which is the equivalent to $4,159.01 per fortnight over the period;
·during this period VYWY had reported to Centrelink on 28 occasions by phone that she had earned nil income;
·had VYWY advised Centrelink of her actual income in this period she would have been entitled to no Centrelink benefit;
·on 21 December 2015, VYWY purchased her own home, which she did not declare to Centrelink and continued to be paid Rent Assistance.
The below Table is derived from VYWY’s statutory declaration of 16 October 2018:
Employment Centrelink Benefits Charge Period
Gross Income declared Gross Income Earned Benefit Paid
Benefit Entitled
Benefit Overpaid
Charge 1
Between 11 Feb 2014 - 30 Dec
2014
$8,479.92
$165,136.93
$21,447.97
$0.00
$21,447.97
Charge 2
Between 13 Jan 2015 – 23 March 2016
$0.00
$130,153.35
$18,857.89
$0.00
$18,857.89
Charge 3
Between 12 May 2014 – 29 Sep 2015
N/A
Not entitled because of income reported in charges 1 & 2
N/A
Not entitled because of income reported in charges 1 & 2
$19,781.28
$0.00
$19,781.28
Charge 4
Between 7 Jan 2016 – 18 March 2016
N/A
$834.68
$0.00
$834.68
VYWY provided a statutory declaration to the Tribunal dated 5 February 2020 in which she advised that:
·her husband had subjected her to a tremendous level of physical, emotional and psychological abuse;
·with the assistance of a counsellor at Foundation House and other resources such as her GP she gained enough courage to separate from him in June 2013;
·following her husband’s threat to kill her she obtained a permanent intervention order for herself and her daughter in May 2014 and divorced in August 2014;
·she then entered a new relationship in late 2014, hoping this relationship would provide a happy and safe home environment for herself and daughter, but unfortunately about three months into the relationship her new partner became very violent and controlling and she suffered a great deal of traumatising physical violence. She gained an intervention order against him in 2016.
In her statutory declaration VYWY stated:
During my initial interviews with Centrelink, I did not quite comprehend the interpreter and I was not so clear about my legal responsibilities. At the same time, due to my lack of knowledge of the law in Australia, I believed the advice of a friend that it was not crucial to inform Centrelink of the changes in my circumstances even though the end result would be receiving more money than I was entitled to. My twisted mind went along with it as some extra funds became critical for my survival which I regret deeply and profusely.
…
I appeared in court on 18 Oct 2017 at the Magistrate’s Court. I was represented by a lawyer and the magistrate considered the mitigating circumstances of the domestic violence that I have suffered for so long. I was eternally grateful as he was lenient towards me and considered my situation as a whole. I was fined $3000 and I was liable for $180 court costs. I also arranged to repay the overpayment that I had received and I pay back to Centrelink $90.83 per fortnight.
During the trial my English was not good and my lawyer tried to explain to me that the judge had taken into account the domestic violence that I suffered and also the complexity of the Social Security system. My lawyer told me that the judge was lenient on me because of my situation and a $3000 fine was at the lower end of punishment. The judge’s kindness and the fact that he saw me as a human being and understood my troubled life was heart-warming but in reflection this increased my embarrassment over what I had done.
Later on, my migration agent sent me the judge’s remarks which reads:
“I’m not saying that the family violence justifies any of this but it is a matter that I must take into account. Family violence can have a debilitating effect on women where they really don’t know what’s going to happen to them that day, the next day or whatever. It’s combined with the fact that she came to Australia from Iran in 2011. again, it’s not something I have to take into account or determine if anything the taxation and Social Security system are not easy for anybody and I suspect that a person who still to this day needs an interpreter to explain to her what is going on I can cut some slack in terms of familiarity with the judicial Commonwealth system. Right taking those matters into account what is the information in relation to the CCO and fine.”
…
I was/am incredibly remorseful of my conduct. I have tried to empower myself by seeking counselling from the Victorian Arabic Social Services (VASS) and my doctors and the referred serviced such as psychologist…
After extensive soul-searching, I have decided that I would like to give back to Australian society by working for elderly and vulnerable people. I feel that with my background I have compassion and understanding of people in the most need. I feel an emotional and spiritual connection with elderly people and I strongly believe that helping them can be a source of my strength. Therefore, I enrolled in Certificate III in Individual Support… I completed the Aged Care course In individual Support and graduated… Dec 2019.
…
Australia is the only home that I can feel safe and secure and also, I know that my daughters can have a life of dignity here that would not be possible in Iran. Getting Australian citizenship is a privilege which gives me and my daughters the security that we are part of this community. I love Australia and Australian values are so dear to my heart because those values are what provide vulnerable people like me with safety. I still cannot believe that a magistrate who would punish me so severely was like a kind father who understood my short comings and his compassion toward a vulnerable foreign woman who couldn’t even speak English taught me the lesson of real values that the most severe punishment couldn’t.
I still have difficulties coming to terms with my wrong doing and I am extremely remorseful. I am very anxious and most of the time I feel very insecure and frightened. I have to keep a brave face for my young daughters but I am constantly worried inside. That period of my life when I committed those offences seem like a nightmare that I cannot wake up from and put behind me and move forward from.
Mr Michael Kinyua, project worker at Whittlesea Community Connections (WCC), provided an undated character reference for VYWY in which he states:
WCC delivers a range of services and programs including emergency relief, casework, legal, homework clubs and volunteering…
[VYWY]… has been and continues to volunteer in the program since May 2019. It has been a pleasure to work with her as she is always a positive influence on the participants and volunteers alike. [VYWY] has really improved in her excellent communication skills, and is able to be flexible in her tasks as a volunteer. She has also demonstrated good character during the times she has volunteered with us.
During her work at the WCC on People Seeking Asylum Program, [VYWY] has displayed a strong awareness and sensitivity to working with people from diverse cultural and socio-economic backgrounds.
[VYWY] explained to us that she has issues with Centrelink when she had received money which she was not supposed to which ultimately has resulted in her conviction. She explained that it was a lack of knowledge of navigating the Australian system which played a part in her undesirable actions and at the time of those events she was a victim of severe domestic violence.
We support [VYWY]’s citizenship application as a valued member of our community and any assistance in the process will be highly appreciated.
Ms Kate McGannon, Strategic Engagement Coordinator, Multicultural Communities Team, Brotherhood of St Lawrence provided an undated character reference for VYWY in which she states:
I have known [VYWY] since July 2019 when she approached our … program at the Brotherhood of St Lawrence, which I coordinate. [VYWY] was interested in volunteering with us and has successfully joined the program. She is working with our weekly English Conversation Class, where she supports participants with building their language skills, conducts set up and pack up of the classroom, provides administrative assistance and support to the class teachers.
I am aware of [VYWY]’s conviction of Obtaining Financial Advantage to the Commonwealth as it became apparent to me during a criminal history check as part of her volunteer recruitment process. On receiving this outcome in her criminal check, I discussed this conviction with [VYWY], as I needed to assess whether it would be a barrier to her volunteering in our program with community members. [VYWY] was very open to discussing the issue and the circumstances under which it occurred. [VYWY] has explained that during the time she was receiving Centrelink payments, that resulted in her conviction for the above offence, she and her daughter were living in abusive relationship with [VYWY]’s partner at the time.
…
I believe that [VYWY]’s willingness to volunteer and contribute to her community is an indication of a good character. Alongside this, her willingness to be open about her circumstances and the steps she is taking towards building a life in Australia from the challenges she has previously faced to me demonstrate her positive character. From our assessment of the situation, we have decided that [VYWY] is of good character and have thus allowed her to work as a volunteer within our program, despite her conviction. I believe [VYWY] has a lot to contribute to the Australian community. As a parent soon to have her second child in Australia, I believe that holding Australian citizenship will be a positive for [VYWY] and the community.
Dr Maryam Delavari, general practitioner and provider of Focused Psychological Services, in a medical report dated 10 January 2020 prepared for this matter advised she had seen VYWY for 12 sessions between September 2019 and January 2020. She diagnosed VYWY with traumatic brain injuries caused by repetitive family violence – differential diagnosis of Battered Woman Syndrome, a subcategory of Post-Traumatic Stress Disorder. In her report provided as a character reference for VYWY she stated:
[VYWY]’s decision making have been justifiably impaired due to intimate and repetitive family violence. This conditions leads to Battered Woman Syndrome (BWS) that could affect a person mental health and function. BWS is an addition of a new subtype of PTSD presented in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5. There is a strong relationship between BWS and brain function. Increasing the degree of BWS impacts neural connections and appropriate cognitive action. This leads to real-life consequences by decreasing person’s cognitive capacity and ability to evaluate consequences of their behaviours and can trigger depression and self-doubt.
She had been experiencing continuous domestic violence over her life, more specifically since the age of 16 when she married for the first time. It occurred at least three to four times a week for 15 years. That was my first finding. I also looked at her psycho neurological capability after her divorce (i.e. 2014 – 2017), looking at her memory and logical thinking which expressed very poor cognitive capacity and function.
I can recognise the significant effect of prolonged family violence and its squeals on [VYWY]’s cognitive functioning and behaviour. We are aware of the effect of traumatic brain injuries on soldiers. [VYWY] as a victim of repetitive family abuse has been experiencing the same condition. She probably was not aware of her sustained cognitive dysfunction. She was more concerned with finding shelter for her and her daughter, [BRPN].
From a personal focus perspective, [VYWY] is smart and [creative] woman. She would likely cope with different environments, allowing time to adjust.
Based on the available information and my own observation, I can verify genuine ongoing emotional, spiritual and physical devotion to a life in Australia. I also observed positive behaviour that [VYWY] is experience’s recognising her past mistakes.
[VYWY] loves Australia respects Australian laws and regulations including the child support system. She is regretful for her past actions.
[VYWY] now seems to be capable of handling the situation with thoughtfulness and maturity. She hopes to have an opportunity to redeem herself to Australia as a positive and lawful person.
Ms Shagufta Riaz, clinical psychologist, in a report dated 13 October 2018 concluded:
[VYWY] presented with Severe Stress and Moderate Depression and Anxiety. Her psychological health was affected by her past experience and her current circumstance exacerbated her pre-existing symptoms. I believe that her case with Centrelink was a consequence of her poor mental health and illiteracy of her responsibilities in regards to social security entitlements. She focussed only on her survival ignoring the need to familiarise herself with the possible consequences of her ignorance. She showed remorse over her poor choices and she showed her willingness to rectify for her omissions.
In my professional capacity I would support her application for grant of citizenship given her significant remorse over her wrong decisions and considering her over all circumstance and their impact on mental health and poor coping. Also obtaining citizenship will give her a better perception of stability in her life and sense of acceptance that would have a positive impact on her mental health in the future.
Ms Shireen Francis, Clinical Social Worker/Counsellor at the Victorian Arabic Social Services (VASS), in a character reference for VYWY dated 15 October 2018 stated:
[VYWY] presented to VASS with concerns with her Australian citizenship application. [VYWY] disclosed about her traumatic experiences of family violence from ex-husband and ex-boyfriend. She reported about how she has endured years of family violence from both of them; she confirmed that her ex-husband was physically, emotionally and verbally very abusive towards her.
…
[VYWY] has made us aware of her offences pending on her in relation to her Centrelink payments and previous early childhood education. Throughout the therapy sessions we spoke about the significance on applying to the law of Australia in all aspects of her life, especially with employment, Centrelink services. She will try her best to adhere to the Australian law in relation to future employment. She profoundly regrets her actions and she promised she will take responsibility of her actions and she will take the law more seriously. She will pass this to her daughter as she would like to raise a productive and positive individual.
Regardless to the traumatic abuse she went through she is trying her best to be a great mother and productive individual. Due to the family violence she endured she was very stressed and anxious about the services. [VYWY] reported that due to her lack of understanding of the Australian law she regretfully didn’t realise that she had to report to Centrelink the income that she was earning.
[VYWY] has been known to VASS for 4 years. [VYWY] has been a key supporter to the Persian community and link them to services especially newly arrived immigrants. I am aware of her offences and she feels great remorse and regret for her actions.
VYWY advised the Tribunal:
·she had entered an arranged marriage when she was 16 years of age with her ex-husband, and she was no more than a child;
·she was afraid of her ex-husband from the start and lived with a lot of fear;
·her ex-husband was the kind of person who reacted badly over the smallest things, becoming very physically abusive. Her husband would harass her three or four times per week. She had hoped that when they came to Australia things would get better, however, things did not change in Australia. He continued to treat her in an insulting way and be suspicious. In Iran she had to put up with it because if she wanted to separate, then they would have taken her child, as that is Iranian law. At the time she was really stressed;
·she arrived in Australia in September 2011 and went into detention and was released into the community in May 2013;
·at the time of her offending she had made the decision to leave her husband and was not in a good situation, she had left home with her six-year-old daughter and did not want her husband to have her address. For the first three months she was going from one place to another with her daughter, “we were almost homeless”. She stayed with a friend for some time. Then the Department of Housing put them into temporary accommodation, one week in one hotel then in shared crowded accommodation. Sometimes she had to walk for hours with her small child in the rain and cold weather to find new places. “Housing would not help me more than that, they would tell me I had to wait on waiting list and stay in crowded, shared places until they could help me with my own place. During this time my daughter could not go to school because we had no fixed address. After three months, a friend I was staying with was moving out and her friend spoke with landlord to see if she could take over the lease, at the time I didn’t have enough money or references of my own. Housing paid my rent for the first month”. She moved into the empty apartment with nothing, not even a blanket. A charitable Turkish woman helped her, and she got some stuff through an organisation called Vinnies;
·she was doing poorly financially, and her mental health was suffering; her husband kept sending her messages that he was going to kill her and that he was going to throw acid on her;
·a friend she had meet in detention had advised her she could start a family day care business at home and this would help her financially. Her friend also said this did not need to be reported to Centrelink (the name of her friend was provided to the Respondent under questioning);
·the family day care businesses she was involved in was her own, she was not employed as an educator, she went with her friend to a place and they filled in all the forms and she simply signed them. She said running the business was easy, explaining: “They would ask us to get timesheets done, time the kids come and leave, and turn time sheets into the office, and they would ask her to fill in a notebook and this could be done in her own language, take note of time, things they do, what they eat. That was about it”;
·at this time, she spoke to Centrelink but it was not clear to her or she did not understand what was expected of her to do; because of the stress, anxiety and fear that she had, she could not make the right decision. She only wanted to have financial backing for herself and daughter because they had nobody and the only person, she knew was that friend. She emphasised she had made a big mistake and regrets it;
·she then entered into a second relationship with a man (her ex-boyfriend) she had first meet in detention and then through the community. Again, this relationship was violent, and described it as worse than her first marriage. He would punch her hands and legs, pulled her hair, threatened her with a knife and one time he punched her in the face on the street in front of bystanders;
·this relationship had a terrible effect on her daughter; her daughter would cry and scream in her room, praying for them to get out of this terrible situation and pulling her hair. Her daughter could not connect with other people;
·she had purchased her home with the assistance of her former boyfriend but had to sell it as she could not keep up with the mortgage repayments;
·the investigation into overpayment had come about because she had reported to Centrelink her earnings after seeing an accountant and filling her tax return. The phone calls and letters about her debt started coming after this;
·she had plead guilty to all the charges and understood she was not entitled to the benefits she had received but disputed she had ever earned anywhere near $295,000 and she had provided Centrelink with her bank statements to prove this. She explained that she had pleaded guilty because her lawyer at the time said if she did not plead guilty then they had to keep going to Court, and she would have to keep spending money. She was not in a good psychological state, so she accepted it;
·she stressed she was hurt and damaged psychologically, stressed, had anxiety, could not sleep at night, had to see psychologists, was in a bad situation, could not make a clear decision, she did not know if what she was doing was right or wrong;
·she explained that: “thank god” she now has a good husband, two daughters, a good family, a newly-born daughter, she is doing her best to be a better and useful person for society and her family, she will not make mistakes again, she was trying to be a good mother to her daughters, she continues to see a psychologist to help her with her stress, and has undertaken a Certificate III in Aged Care and hopes to work in that industry so that she can help people.
CONSIDERATION
Relative Seriousness of Offending
Ms Wheatley contended VYWY’s offences were not significant and that the Tribunal, in accordance with the Policy in respect of assessing the relative seriousness of VYWY offences, should carefully consider sentencing remarks of the Magistrate and length of sentence imposed, as they give an insight into the nature of the offence and the character of the Applicant at the time of sentencing. Ms Wheatley submitted that the presiding Magistrate’s remarks were pivotal as he is a senior law officer in a high position with unbiased, untainted eyes with access to all the facts of VYWY’s offending. Ms Wheatley contended the Tribunal should give due consideration to Magistrate O’Callaghan’s remarks at sentencing:
I’m not saying that the family violence justifies any of this but it is a matter that I must take into account. Family violence can have a debilitating effect on women where they really don’t know what’s going to happen to them that day, the next day or whenever. It’s combined with the fact that when she came to Australia from Iran in 2011. Again, it’s not something I have to take into account or determine if anything the taxation and social security system are not easy for anybody and I suspect that a person who still to this day needs an interpreter to explain to her what is going on I can cut some slack in terms of familiarity with the judicial Commonwealth system. Right taking those matters into account what is the information in relation to the CCO and fine.
Ms Wheatley contended that the Magistrate did not proceed to impose a custodial sentence, and submitted that VYWY’s offences under Section 135.2 of the Criminal Code could each have carried a maximum penalty of 12 months imprisonment, which could have resulted in VYWY being sentenced to four years imprisonment. Ms Wheatley argued that, given the sentencing options available, the penalty imposed by the Court was at the very lower end of the spectrum, and VYWY had been fined $3,000 for all four offences i.e. $750 for each offence, plus $180 in court costs. Ms Wheatley argued the Tribunal should not go behind the determination and sentencing of the court and should concur with the Magistrate that VYWY’s offences were not at the serious end of the offending scale, and determine the offences were not significant or severely serious for the purposes of VYWY’s citizenship application.
Mr Orchard contended that VYWY’s offending was at the higher range of seriousness as the extent of her financial deception was significant in that she derived some $60,921.82 in benefits to which she was not entitled in the space of approximately two years, whilst earning at least $295,000 gross income in the period, and that this also illustrated a disregard for Australian law.
Mr Orchard contended that financial deception on this scale did not accord with someone who is honest, financially responsible, truthful and who did not practise deception or fraud in their dealing with the Australian government. He argued that financial deception and criminal offending of this kind is specifically identified in the Policy as behaviour that demonstrates someone is not of good character and this should be given considerable weight by the Tribunal.
The Tribunal finds that the fact VYWY had been charged and convicted of these offences demonstrated they are significant, as in the Tribunal’s experience many people incur Centrelink debts, which they must repay, as they have been found to have been overpaid benefits for which they are not entitled, however few are then pursued for criminal charges as it must be demonstrated an individual intentionally engaged in conduct to defraud the Commonwealth.
The Tribunal finds that VYWY’s offences were serious as they were committed over a significant period of time, involved numerous fraudulent benefit claims and false statements of earnings from which she derived significant financial benefit. In accordance with the Policy, this is considered serious as it demonstrated an involvement in Centrelink fraud and disregard for the Australian rule of law. The Tribunal finds that VYWY would not be considered to be of good character given the seriousness of her actions. As indicated by Magistrate O’Callaghan’s remarks in his deliberation of what penalty to impose on VYWY, it was determined conviction needed to be recorded because of the serious nature of the offences committed. His Honour stated:
As the offending is over a long period of time and over a number of categories it is as you said but a conviction for this type of offending is a serious matter. A conviction is a tattoo or a brand on your character that she is tainted with dishonesty. So she is forever branded as a dishonest person in the eyes of the law. So I have to be convinced that in itself is not a significant penalty… You have done the wrong thing.
… There are some bad aspects of what you have done and I cannot condone. Government revenue is scarce and it is intended for people in need. You have recognised that and… Two charges. You have made a commitment to repay the money which is owed to the government. The balance of that are your personal which have been explained to me by your lawyer which I won’t repeat. The Commonwealth submits quite fairly that you ought to be placed in a community directions order. Your lawyer submits that I proceed to waive the fine. I am going to proceed by way of a fine with conviction.
Mitigating circumstances
Ms Wheatley contended that the Tribunal should place significant weight on the mitigating circumstances surrounding VYWY’s offending, that of her well-documented, prolonged and significant domestic violence abuse. Ms Wheatley argued that as a victim of domestic violence, VYWY’s mental state had been greatly impacted to the point where she was incapable of judging right from wrong or being able to make the right decisions. Ms Wheatley argued that these extenuating circumstances should be given significant weight by the Tribunal, recognising the significant effect of prolonged family violence and its sequels on her mental health and cognitive functioning. It was argued that during the period of her offending VYWY: had been homeless for three months, then managed to acquire precarious housing but without furniture and belongings; had no family or other support; was solely caring for her young child; was still living in fear of her ex-husband; had entered into another violent relationship; had limited English language skills; had no understanding of Centrelink bureaucracy and that her sense of survival dominated everything.
Ms Wheatley contended that the Tribunal should place significant weight on the psychological reports of Dr Delavari and Ms Riaz, who had both observed that VYWY’s mental health and subsequently her decision making had been impaired by her experience of intimate and repetitive family violence; determining that her interactions with Centrelink were a consequence of her poor mental health, illiteracy of her responsibilities in regard to social security entitlements and her focus being only on her survival, ignoring the need to familiarise herself with possible consequences of ignorance.
Ms Wheatley particularly drew the Tribunal’s attention to the report of Dr Delavari where she states that:
[VYWY]’s decision making have been justifiably impaired due to intimate and repetitive family violence. This conditions leads to Battered Woman Syndrome (BWS) that could affect a person mental health and function. "BWS is an addition of a new subtype of PTSD presented in The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5". There is a strong relationship between BWS and brain function. Increasing the degree of BWS impacts neural connections and appropriate cognitive action. This leads to real life consequences by decreasing person's cognitive capacity and ability to evaluate consequences of their behaviours…
Ms Wheatley contended that interacting with Centrelink was not easy, particularly for migrants from non-English-speaking backgrounds, and more so for VYWY given her extenuating circumstances. The running of the family day-care business had been presented as a financial lifeline which VYWY could manage with the support of her friend and she could easily undertake all the business transactions in her own language.
Ms Wheatley drew the Tribunal’s attention to an article titled Desperate Housewives Get Legal Backing which explores the notion of the Battered Wife Syndrome (BWS) in which the author posits the question of whether a different standard is needed for women suffering from BWS, stating:
The question for the criminal court then becomes one of "Do we judge these women by the standards of behaviour we expect of the ‘average’ citizen, or do we take into account the bizarre and seemingly twisted view of life which battered women acquire after years of abuse? Psychologists have for many years now realised that being the victim of domestic violence can give a woman a totally different perspective, not only of life in general, but also of events which are going on around her.
Ms Wheatley contended this phenomenon was analogous to VYWY’s circumstances and the Tribunal needed to consider the totality of the circumstances of her offending in light of her extraordinary extenuating circumstances at the time of her offending.
Mr Orchard noted the Citizenship Instructions allow the Tribunal to take into account “extenuating circumstances”, and VYWY’s submissions in this matter rely almost entirely on the applicant’s extenuating circumstances as a survivor of domestic violence. He submitted that while extenuating circumstances may be considered to contextualise offending, they do not lower the objective threshold of good character under the Act, which is to be considered discretely. He submitted that “it is the scale and significance of VYWY’s fraud that must take primacy in this case, and due to the significance of the offending, a longer period of time is needed in which to demonstrate good character, certainly longer than one year and six months.”
Mr Orchard argued the Policy makes it clear that an applicant’s (for Australian citizenship) behaviour is considered to be a “manifestation of their essential characteristics”, contending that since VYWY was granted a visa in 2012, between 2014 and October 2017, she has been involved in a significant fraud against the Australian government and did not acknowledge it or disclose it until October 2018. He argued that for the majority of VYWY’s time in Australia, she has been involved in criminal offending or the proceedings regarding that offending, observing that her offending occurred for four and half years having only been in Australia for six and a half years in total. He submitted it is expected that someone applying for citizenship would have had a clearer record, given the amount of time they have spent in Australia.
Mr Orchard contended VYWY had in effect offered three explanations (the mitigating circumstances) for her offending, which he argued were contradictory:
(a)First, that she was told by a friend that she did not have to correctly report her income, so to make more money she falsely reported to Centrelink (i.e. she made a deliberate decision for financial gain, which she pleaded guilty to).
Mr Orchard argued this of itself demonstrates poor character, as VYWY had made the choice to falsely report for clear financial reasons and on its own this offending and the professed reasons for it are enough for the Tribunal to refuse citizenship on character grounds.
(b)Second, that she did not understand the Centrelink interpreter “and did not really understand” her legal responsibilities.
Mr Orchard contended VYWY’s claim that she did not understand Centrelink interpreters and so “was not clear about my legal responsibilities” and that she had limited language and literacy skills should be rejected by the Tribunal and viewed as an attempt to minimise culpability for the offending. Particularly noting VYWY was convicted of knowingly making 33 reports of “nil” income to Centrelink and was discovered by way of a Centrelink investigation, and there is no evidence she sought to amend or correct her incorrect reporting. Whilst Mr Orchard accepted that Centrelink processes can be confusing for non-English speakers, he argued VYWY plainly knew right from wrong but deliberately falsely reported her income on 33 occasions. He contended “one does not need an in-depth understanding of Commonwealth social security processes to know that lying about your income when asked directly is wrong. To do so on 33 occasions demonstrates a pattern of (criminal) dishonesty, not errant mistakes or misunderstandings.”
(c)Third, that she did not know what was right because she was under considerable mental stress.
Mr Orchard observed that VYWY’s claim that she suffers from a traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), and has “very poor cognitive capacity and function” was not made at her sentencing, and that these claims appear to have been first raised before the Tribunal, noting she had advised the Court that she suffered from anxiety, stress and depression.
Mr Orchard submitted that the scale of VYWY’s financial deception was such that it cannot be argued she was ignorant, incapacitated or somehow naïve as to her wrongdoing, noting VYWY was:
(a)self-sufficient enough to set up and run a successful childcare contracting business, while caring for up to seven children on any given day;
(b)engage with Centrelink relatively consistently (albeit dishonestly);
(c)purchase a house (using funds obtained in part by deception);
(d)complete a Certificate III in Individual Support, and complete limited work experience;
(e)apply for citizenship (including deciding not to inform the department about her offending); and
(f)sell her house and presumably rent a new house.
Mr Orchard contended that VYWY knew that she was receiving money she was not entitled to, and continued to practice the deception anyway, and did so notwithstanding any claimed language or cognitive barriers.
Mr Orchard argued that Dr Delavari’s report could not be relied upon as an expert report capable of diagnosing PTSD or TBI as she does not appear to be an expert psychologist; additionally she had not acknowledged the AAT’s Practice Note on Persons Giving Expert and Opinion Evidence Guidelines and no briefing letter had been provided. Mr Orchard noted in contrast the report of Ms Shagufta Riaz, a clinical psychologist, who provided an earlier report in which no diagnosis of PTSD or TBI was made. Mr Orchard contended the report of Dr Delavari, whilst making a diagnosis of TBI, does not explain how that diagnosis was made, what its symptoms are, or how it relates to the offending. The report mentioned “Battered Woman Syndrome” but does not provide any literature on the topic or discuss its relevance to VYWY’s offending.
Mr Orchard submitted the report of Dr Delavari which had found VYWY was “a reliable reporter of information”, stood in contrast to her claims she did not understand her reporting obligations, for example, she did not tell Centrelink that she bought a house, and the report does not address this discrepancy. Mr Orchard contended Dr Delavari’s report was not impartial and made repeated submissions on behalf of VYWY, for example that Dr Delavari “support[s] Mrs VYWY's application for citizenship” and can “verify genuine ongoing emotional, spiritual and physical devotion to her life in Australia” and “the purposes of this report is to provide a character reference for the applicant”.
Mr Orchard submitted Dr Delavari’s report also did not discuss how VYWY’s claimed conditions affected her, for example what kinds of decisions they may apply to. He submitted it did not: discuss or address the sustained nature of her fraud; discuss or address her claims that she simply did not understand an interpreter at the first Centrelink meeting; address her ability to run a profitable child care business; or address how her claimed conditions appear to have only (retrospectively) affected her judgment with respect to the convictions. None of these pertinent issues are addressed. It was submitted that the report has either deliberately omitted them to favour the Applicant or they have been overlooked.
The Tribunal was perplexed by the submission that VYWY was confused by the requirements of Centrelink reporting but was easily able to operate a thriving family day care business without any issue. The Tribunal notes that to be a registered family day care operator as VYWY was, she would have required service approval under section 48 of the Education and Care Services National Law Act 2010 (Vic) (the “National Law”) and approval for Child Care Benefit under the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the “Administration Act”). The Tribunal notes that anyone seeking to operate a family day care service may apply for approval as an approved child care service for the purpose of claiming benefits under the family assistance law. When approval is granted to the operator of a child care service under Division 1 of Part 8 of the Administration Act, the approval is subject to conditions that the approved child care service must comply with at all times. These conditions are extensive and include, but are not limited to, eligibility requirements, compliance with family assistance law, compliance with Commonwealth, State and Territory laws, financial viability, compliance with child care placement limits and compliance with conditions imposed by the Minister and/or the Secretary. The central requirement of the family assistance framework is that child care service operators must report fully and accurately to the Department. Accurate reporting is essential for the Department to correctly calculate child care fee assistance and to ensure that no overpayments of public funding occur. The Tribunal could not reconcile that VYWY was cable of meeting these complex stringent requirements to operate a successful family day care business but could not understand her reporting requirements to Centrelink.
The Tribunal found that VYWY was in a precarious situation during her period of offending and that her circumstances certainly contributed to her lack of judgement in her dealings with Centrelink. The impact of sustained domestic violence is well documented, and the Tribunal accepts the reports of her psychologist that her mental health had been significantly impacted by her abuse at the hands of her ex-husband and former boyfriend.
The Tribunal was perplexed as to how this abuse led VYWY to be able to run a family day care business and meet all the stringent requirements of this endeavour but prevented her from being able to comply with her reporting obligations to Centrelink. A more plausible explanation would have been VYWY was not the owner and operator of her business, however this was not her testimony to the Tribunal.
The Policy requires the decision maker to determine if the mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. Looking at VYWY’s behaviour holistically, it could not find her mitigating circumstances explained or outweighed her behaviour. The Tribunal found VYWY’s mental health and decision making would have been impaired by her extensive experience of domestic family violence, however the Tribunal is unable to reconcile this impaired decision making leaving her able to run a successful business but not able to report her income to Centrelink. Therefore, the Tribunal finds that this indicates a calculated behaviour of receiving funds from the Commonwealth to which she knew she was not entitled. The Tribunal finds VYWY has not behaved in a way a person of good character would behave nor demonstrated her commitment to uphold Australian laws or community standards.
Evidence of Rehabilitation
Ms Wheatley submitted that VYWY was of good character as had been demonstrated through her open and honest approach to the Tribunal, self-reporting to Centrelink of her income which triggered the investigation, and that she had been honest and open in her dealings with the Department. She argued VYWY’s good character had also been demonstrated by her expressing her heartfelt remorse on numerous occasions to the Department, her medical team (doctors, psychologists and counsellors) and at all the organisations where she has volunteered.
Ms Wheatley contended that VYWY had expressed on numerous occasions and during the hearing that she accepted her culpability without any qualification, that she was ashamed of her actions and truly contrite for the harm she had caused the Australian community. VYWY was otherwise law-abiding citizen who had not committed any other offences in Iran or Australia.
Ms Wheatley argued that VYWY had demonstrated every effort to rehabilitate herself, to pay back to society, and move forward by upholding Australian laws and values. She had been engaging in voluntary work in organisations to assist vulnerable people especially migrant women, was undertaking counselling and psychological treatment to heal herself, had married a financially stable partner and was striving to be an excellent role model for her daughters.
Ms Wheatley argued that the numerous character references which had been submitted on behalf of VYWY all attested to her good character and were fully appraised of her offending. The references also indicated VYWY was helpful, diligent, hard-working and had expressed her genuine remorse for her offending, arguing these were all factors that demonstrated her enduring moral qualities.
Mr Orchard contended that VYWY’s evidence of rehabilitation was limited and that she had not made a conscious effort to reform as she had not provided evidence, she had not substantially repaid any portion of the debt or sought to address her ability to properly manage her finances.
Mr Orchard also contended VYWY had also sought to downplay the significance of her offending by disputing before the Tribunal the amount she actually earned (by claiming that she pleaded guilty to the actual amount because her lawyer told her to, not because it was the correct amount). Mr Orchard argued this demonstrated a lack of insight into the offending or an ongoing failure to understand the nature of her offending. In either case, VYWY’s ability to demonstrate the requisite reflection, remorse and rehabilitation over a very long period of time can only be hindered by her failures in this regard and was again grounds to refuse her citizenship on character grounds.
Ms Wheatley strenuously refuted that VYWY had sought to downplay her offending or dispute the facts of her Centrelink debt. However, she did agree VYWY had discussed at some length during the AAT hearing that she was confused about the calculation that was made and that she had originally discussed this with her trial lawyer and provided her bank statements to Centrelink. Ms Wheatley argued that VYWY had always remained faithful to the fact that she was guilty, that she felt guilty and that was the reason she had pled guilty. Ms Wheatley submitted that it was within VYWY rights to discuss with her legal counsellor her confusion about the calculation and this would not negate her feelings of remorse and guilt. Ms Wheatley reiterated that VYWY has made meaningful, constructive and conscious measures to rehabilitate and reform herself, that she had shown insight into her conduct, including her criminal behaviour.
The Tribunal finds VYWY had shown insight into her offending, accepting her culpability, had demonstrated remorse for her actions and was attempting to build a better life for herself and her daughters. The Tribunal accepts that VYWY’s character refences were appraised of her offending and all spoke highly of her as a valuable volunteer and member of her community.
The Tribunal did not concur with Mr Orchard’s contention that VYWY was attempting to downplay the significance of her offending by disputing her earnings from her family day care business. The Tribunal appreciates the complexity of the subsidy system for family day care and accepts there may have been a difference between her reported income and that which appeared in her bank account, particularly if VYWY’s payments were being channelled through a third party, the one she advised had helped her establish the business and to which she submitted time sheets.
The Tribunal found however that whilst VYWY accepted she had committed these offences; she had a belief that she was not completely culpable because of her mitigating circumstances and that her situation in some way excused her from responsibility for her actions. Indeed, VYWY’s representative had proffered this contention when she had argued VYWY’s offending was analogous to BWS. Whilst the Tribunal has accepted VYWY was in a precarious situation at the time of her offending and was making decisions to ensure her and her young daughters financial security, this cannot be conflated with an acceptance this can be achieved by defrauding the Commonwealth. Indeed, if VYWY had been running her profitable family day care business, purchasing a house and raising her daughter as a single mother whilst not in receipt of any Centrelink benefits, she would have been upheld as someone overcoming her adversity. Instead she has tarnished this by continuing to receive Centrelink benefits to which she knew she was not entitled.
Length of time since offending
Ms Wheatley contended that sufficient time had passed since VYWY’s offending, noting there was no evidence she would reoffend again. Ms Wheatley argued that the Australian Society believes in redemption and on the whole, supports the structural institutions available in Australia for rehabilitation, rewards individuals who conquer significant personal upheaval and adversity and challenges, and would take the view that on the balance of probabilities VYWY is of good character.
Ms Wheatley referred the Tribunal to the matter of Seo and Minister for Home Affairs where the Member stated:
… it is part of the Australian ethos to display a degree of informed tolerance for those who have committed a certain level of offences in the past and who are thought to be at least given the opportunity for a second chance, especially where they have made some effort to improve their lives and avoid further difficulties.
Ms Wheatley submitted that there was a sufficient level of evidence to consider VYWY among those persons who should be given a second chance and that the Tribunal should therefore set aside the delegate’s determination.
Ms Wheatley contended that if VYWY’s circumstances are considered in their entirety, the length of time that has elapsed since her offences can be considered as sufficient for this application and to be given credit for not committing any further offences and being a useful and productive part of the Australian community. Ms Wheatley noted that there was no binding jurisdiction on the matter of what is a “sufficient” time, nor she argued any authority as to the date from which such calculations should be made. Referring the Tribunal to the matter of Traboulsi and Minister for Home Affairs where the Member found time alone and in isolation would not suffice and it has to be accompanied by evidence of the offending applicant having been a law-abiding individual and making a positive contribution to the community since their conviction. The accepted elapse of time depends on the circumstances and merits of the individual case. Ms Wheatley submitted that there is no binding jurisdiction in assessing the current level of the moral quality.
Ms Wheatley contended that the Policy stipulates that there is no rule of thumb that determines how much time must pass for a person to re-establish good character, noting each case must be assessed on its merits. She therefore contended that VYWY’s damaged mental state and the domestic violence that she was the victim of at the time of the commission of the offences were pivotal in her misjudgement and wrongdoing. She had made conscious, practical and meaningful efforts to demonstrate that she was making a positive contribution to the community since her conviction and has demonstrated changes in her behaviour and life to justify a finding that she displays moral qualities acceptable to the ordinary Australian community. Therefore, Ms Wheatley submitted that in this circumstance the length of time since her offending was sufficient for VYWY to be given credit for not committing any further offences and being a useful and productive part of the Australian community.
Mr Orchard on behalf of the Respondent contended that it had been less than two years since VYWY first disclosed to the Department that she had been convicted, noting she had not done this willingly but had been prompted to. He submitted that, in the context of the Applicant’s offending, a “very long period of time” had not passed such that the Tribunal can be satisfied that VYWY was of good character for the purposes of s 21(2)(h) of the Act.
Mr Orchard contended in this regard the Tribunal may 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 process. Noting relevantly, throughout this process VYWY:
(a)has not respected and abided by the law in Australia for the majority of her time in Australia;
(b)has not been honest and financially responsible and has been in dishonest receipt of public funds, having knowingly defrauded the Commonwealth and being shown to be financially irresponsible. Further, no financial rehabilitation or any other form of fiscal counselling has been undertaken;
(c)has not been truthful and has practiced deception in her dealings with the Australian government, namely through her failure to report her income to Centrelink and her failure to report her convictions to the department, noting that this sort of offending is singled out by the instructions as being particularly instructive of someone not of good character; and
(d)has been involved in offending that is objectively very serious, having defrauded the Commonwealth of more than $60,000 and incurring a debt that will, at the current rate of her repayments, be paid off in approximately 26 years (the Minister notes this debt does not prevent her from reapplying for citizenship, but its size and the length of time it will take to repay are demonstrative of the seriousness and scale of the applicant’s fraud).
Fundamentally Mr Orchard contended that insufficient time had passed since VYWY’s offending to demonstrate good character over a very long period of time and that, in all of the circumstances, VYWY is not of good character for the purposes of s 21(2)(h) of the Act.
Ms Wheatley is correct that the Australian community expects that people will be given a chance to redeem themselves and indeed our criminal justice system is built on a model of reform. Whilst VYWY plead guilty at the earliest opportunity and has taken action to redress her poor decisions, it appeared to the Tribunal that she still believed in some part her actions were justified by her circumstances. The Tribunal could not reconcile both her actions of being able to earn a living running her own business at the same time as not being able to understand her obligations for her to genuinely receive social security benefits, intended for those in our community who are unable to provide for themselves.
The Tribunal considers that not enough time has lapsed since VYWY’s offending to demonstrate the ‘enduring moral qualities’ over a period of time contemplated in the Policy, especially in light of the length of her offending, the short time she had been in Australia and the significant sum she has defrauded from the Commonwealth.
Ms Wheatley contended that the Tribunal should be guided by the principles that the accepted elapse of time depends on the circumstances and merits of the individual case, arguing the Tribunal should find enough time had lapsed to demonstrate VYWY’s enduring moral qualities because of her mitigating circumstances, through her good behaviour since her arrival in Australia through her voluntary work, her undertaking training to be able to work in the aged care sector to give back to the community and that she had no other convictions here or in Iran.
The Tribunal referred to the matter of Re Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639 (at [55]–[57]) which stated that:
However, the guidelines implicitly, and properly, reject the notion that "intrinsic character" is fixed in time. The question to be determined is whether the person has satisfied the Minister of their "good character" at the time of the relevant decision - (in the present circumstances the date of this Tribunal's decision): see [the Act] s 21(2)(h) & Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [3]-[10]. Consequently the length of time that has passed since the last instance of an applicant's impugned conduct is, as the delegate's reasoning in the June 2015 refusal decision indicated, a relevant consideration. I remarked earlier on the suggestion in the guidelines that good character involves characteristics that "have been demonstrated over a very long period of time".
…
The guidelines suggest that in most cases the required period "will go back prior to any visa application": Australian Citizenship Instructions Chapter 10.5.4; Citizenship Policy Chapter 11, page 150. This suggestion appears to allude to the various "residence" requirements in [the Act] ss 22 - 22B. The typical "general residence requirement" is a period of 4 years.
…
Finally, although a finding of satisfaction about character is ultimately the result of an impressionistic evaluation of a range of considerations, it is not a matter of merely subjective preference in the weighing of those considerations. This point is inherent in the guidelines' emphasis on the applicant's lawful conduct, and the obligations of citizenship. But the guidelines attempt to add some degree of emphasis exhorting the citizenship decision maker to apply "community standards" rather than "their own personal standards". Both the Australian Citizenship Instructions (at Chapter 10.5.4) and the Citizenship Policy (at Chapter 11, page 149) suggest that in applying this instruction decision makers should be enquiring (i) whether a person of good character would have engaged in the applicant's conduct, (ii) about the extent of the applicant's lawful conduct, (iii) about the extent of the applicant's compliance with Australian community standards, and (iv) about the extent that the applicant shares and respects Australian democratic beliefs.
The Tribunal finds that, in light of the seriousness of the offending, the acceptance of mitigating circumstances but inability to find they excuse the behaviour, together with the quantum of fraud against the Commonwealth, that insufficient time has passed since the offending took place to consider VYWY is of good character.
VYWY’s daughter
Mr Orchard contended that in accordance with the Policy, VYWY’s daughter (BRPN) who was included on her application for citizenship by conferral must be assessed in her own right if VYWY’s application for citizenship is refused. As the Tribunal has affirmed the determination to refuse VYWY’s application for citizenship, it must consider the application of her daughter, who was under 16 at the time, in her own right in accordance with the Policy guidelines.
Mr Orchard contended that BRPN did not satisfy the relevant policy requirements set out in Chapter 7 of the Policy in relation to persons aged under 16 years as she was not living with a responsible parent who is an Australian citizen and who consents to the application nor was she living with a responsible parent who is not an Australian citizen and consents to the application and would otherwise suffer significant hardship or disadvantage.
Mr Orchard contended that BRPN had not presented any evidence that significant hardship or disadvantage would arise if her application for citizenship by conferral was refused. He contended that as a permanent resident her material situation would not be impacted if her citizenship application was refused as she would be able to remain in Australia permanently enjoying the same education, health and welfare services, freedoms and protections as any other member of the Australian community. Furthermore, Mr Orchard contended there was nothing unusual about her circumstances which warranted the granting of citizenship.
Ms Wheatley contended that even though the decision before the Tribunal concerned VYWY, its impact would directly affect her children. She argued the best interests of her children would be served by granting citizenship to VYWY as it would ensure they had safety and security in their lives. That the granting of citizenship to VYWY would provide certainty in her life and would undoubtedly assist her to overcome her mental health issues, which would naturally trickle down and have a positive effect on her children in their very crucial years of their development.
Ms Wheatley also drew Tribunal’s attention to Dr Delavari’s report where she opined:
….it is unlikely that [VYWY] would be able to function well as a mother until her citizenship status is settled. I believe that being granted citizenship would significantly improve their emotional health and safety. I support Mrs [VYWY]’s application for citizenship. This is highly likely in the best interest of the children involved.
The Tribunal concurs with the delegate that to refuse BRPN’s application for citizenship by conferral would not change her status in Australia, it would not deny her the protections and rights of Australian law and would therefore not be against the best interest of the child in accordance with the Policy and Article 3.1 of the Convention on the Rights of the Child. As such the Tribunal affirms the delegate’s decision to refuse VYWY’s daughter’s application for citizenship by conferral.
CONCLUSION
The Tribunal considered the issue of VYWY’s good character in light of the Policy guidelines, as the Act is silent on the definition of good character. The Tribunal finds that VYWY would not be considered to be of good character given the seriousness of her actions and that insufficient time has lapsed since she committed those offences.
The Tribunal is aware that this decision will cause considerable distress to VYWY but notes the decision should not be read as implying that VYWY is a bad person. The Tribunal notes that it is open to VYWY to reapply for citizenship in the future and refers to ReFenn and Minister for Immigration and Ethnic Affairs [2000] AATA 931, where Deputy President Breen stated (at 8):
The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
The Tribunal noted that part of VYWY’s sentence imposed a repatriation order pursuant to s 21B of the Crimes Act 1914 in the amount of $60,921.82, which she reported to be currently repaying at the rate of $90.83 a fortnight. At this current rate, VYWY will not have discharged her obligations to the Court for approximately 26 years. The Tribunal was concerned that this obligation to the Court would be a barrier to VYWY’s ability to reapply for Citizenship, particularly in light of section 24(6)(g) of the Act. The Tribunal was reassured by the Respondent that the Minister notes this debt does not prevent her from reapplying for citizenship, but its size and the length of time it will take to repay are demonstrative of the seriousness and scale of the applicant’s fraud.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decisions herein of Ms Anna Burke AO, Member.
....[sgd]..........................................
Associate
Dated: 17 August 2020
Date of Hearing: 5 May 2020 Date of final submission: 12 June 2020 Migration Agent for the Applicant: Ms Shahen Wheatley of Australian Visa Migration Experts
Advocate for the Respondent: Mr Christopher Orchard Solicitors for the Respondent: Sparke Helmore Lawyers
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