Australian Immigration Daily News

In a recent post, we discussed a case in which the Administrative Appeals Tribunal concluded that an applicant’s failure to truthfully disclose his record of criminal convictions in New Zealand (on his "incoming passenger cards") was a sufficient grounds to disqualify him from Australian citizenship - FBMR and Minister for Immigration and Border Protection, (2015) AATA 116 (2 March 2015). The AAT arrived at this determination even though none of the offences committed by the applicant had occurred in Australia – however, before his arrival the applicant had compiled a fairly impressive criminal record in New Zealand, that, as recounted in the AAT’s decision, included convictions for offences such as burglary, theft, possession and cultivation of drugs, unlawful possession of a firearm and serious traffic offences.  While most of these offences had been committed a number of years before the application for citizenship was made, it was the failure to disclose the offences, rather than the offences themselves, that ultimately led the AAT to find that the applicant was not a person of “good character” and thus affirm the Department’s refusal of his application. (One might perhaps wonder why the applicant's actual criminal history itself was not accorded greater weight!)

By way of comparison, I now take up another recent case – Hasib v Minister for Immigration and Border Protection (2015) AATA 82 (13 February 2015) – where the AAT reached the opposite result, and found that an applicant’s criminal record involving 10 incidents of credit card fraud, committed in Australia, did not disqualify him from Australian citizenship.

The applicant in this case had what might be described as a “rocky” history following his initial arrival in Australia from Bangladesh on a student visa.  The applicant first came to Australia in December 2003. In March 2006, his student visa was cancelled on “non-compliance grounds” involving the failure to satisfy attendance requirements of his course.  The cancellation of the student visa was affirmed by the MRT. The applicant then remained in Australia as an unlawful non-citizen for a period of approximately one year, when he was granted a protection visa.

The credit card offences that caused the Department, at first instance, to refuse his citizenship application took place in 2007, when the applicant was 24 years old. According to evidence given by the applicant in the AAT appeal against the refusal of his citizenship application, he was “unemployed and struggling” at the time of the offences. His account was that he had met and moved into a house with some people who asked him to purchase various items of electrical equipment such as televisions, computers, cameras and PlayStations with stolen credit cards.  According to the applicant, these people pressured him to commit the crimes by stealing his passport and by threatening to report him to immigration authorities (he had no lawful visa at the time of the offences). The episodes of credit card fraud were committed by the applicant over a period of 2 – 3 days.  The applicant then moved out of the house he was sharing with the people who pressured him to commit the fraud, and shortly thereafter he was arrested.

The applicant’s criminal case was dealt with by a Local Court in NSW. He pleaded guilty and was given a suspended sentence of nine months in prison, and was given a nine month “good behaviour bond”.

Following his conviction the applicant was detained in the Villawood Detention Center for a period of about 3 months, due to his status as an unlawful non-citizen.

The application for citizenship was lodged with the Department in April 2014, approximately 7 years after the date when the applicant had been convicted of the credit card offences.  He did not commit any further offences in the intervening period.

Nonetheless, the Department refused his citizenship application on the basis that he was not a person of “good character” and thus did not meet the eligibility requirements specified in the Australian Citizenship Act. The fundamental premise of this refusal was the Department’s determination that not enough time had passed between the offences and the application for the Department to be satisfied that the applicant had reformed.

In reviewing the case, the AAT came to precisely the opposite conclusion, namely that sufficient time had elapsed since the offences that the AAT could be satisfied that the offences represented “aberrations”.  The AAT also found that there were a host of mitigating factors weighing against the record of criminal convictions which justified the approval of the citizenship application, namely: that the applicant had not received a serious prison sentence; that the offences had been committed over a period of a few days and were thus not reflective of an on-going pattern of criminal behaviour; that the applicant had accepted responsibility for the offences and expressed remorse in his evidence before the AAT; that he had disassociated himself from the people who pressured to commit the offences: that he was relatively young (24) at the time of the offences; and that he had no further criminal record.

In sum, it appears that the Department took a very mechanistic approach to this applicant’s case, and failed to fully consider the nuances and extenuating circumstances before it determined to refuse the citizenship application – particularly that the applicant had committed the offences in response to threats that his then unlawful status would be reported to immigration authorities.

Indeed, one has to wonder how much time would have to pass before the Department would have considered the applicant to have been sufficiently “rehabilitated” – in its eyes, 7 years was evidently not long enough.

The applicant was fortunate that the regulatory framework gave him recourse to present the merits of his application to the AAT for re-consideration, and that the matter was heard by a member of the Tribunal who was prepared to go beyond the simple fact of the applicant’s criminal record, and to consider all of the mitigating circumstances of his case!!

 This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.  Tel: (02) 8068 8837 Web: www.concordialaw.com.au