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No citizenship for hiding ‘Stolen’ pair of shoes?

Aus-Citizenship declined for now

Pulkit Patel, a young lad from India, came to Australia as a student in June 2007. Subsequently he got his Independent Skilled Visa (Subclass 885) to call Australia home – permanently. Once permanent residence was granted to him, he took the next logical step and applied for Australian Citizenship. To his surprise and shock, the department, having granted him PR, refused his application for Australian Citizenship on character grounds.

He took the matter to Administrative Appeals Tribunal and to his bad luck, the Tribunal agreed with the department. This is Pulkit’s story.

Pulkit, now 35 and an Australian permanent resident, is a citizen of India who arrived in Australia in June 2007. Between 2007 and March 2010, he was on student visa. In March 2010 he applied for his PR (Skilled Independent subclass 885 Visa) and was granted his PR in July 2015.

A year later, in July 2016, he applied for Australian citizenship. On 29 January 2018, his application was refused and he was found – as at on that day (date of the decision) to be not of a good character. The decision shocked him as he had always – from student visa to PR visa applications and now for his citizenship – done his applications properly and made all his ‘Declarations’ correctly and ticked “No” to all questions in the “Character Declarations” section, including the question which asked if he had “…been convicted of, or found guilty of, any offences overseas or in Australia…”.

Or so he had thought or decided.

Pulkit feels passionately about life in Australia and seriously wants to a citizen here. Feeling he had been done injustice, in February this year Pulkit took his matter to the Administrative Appeals Tribunal (AAT formerly known as MRT).

To his disappointment, the Tribunal was not satisfied that at this point in time Pulkit was of good character for the purposes of s 21(2)(h) of the Citizenship Act and refused his application.

The question is – what was wrong with his character?

The Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision.

The meaning of good character

The documented guidelines for the “good character” test suggest a reference to the enduring moral qualities of a person, and not necessarily the good standing, fame or reputation (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… 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… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

Policy documents further extrapolate:

“enduring moral qualities” encompasses the following concepts

  • characteristics which have been demonstrated over a very long period of time;
  • distinguishing right from wrong; and
  • behaving in an ethical manner, conforming to the rules and values of the Australian society.
  • respect and abide by the law in Australia and other countries
  • be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …

o              concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship

  • 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)…

Surely, Pulkit had failed this test and there was something in his past he was hiding or had managed to hide until his Citizenship application came up for consideration. As it came out – Pulkit was convicted of ‘Larceny’ (theft) and having someone else’s Credit Card which the police believed was stolen and charged him. And he was convicted of both charges and fined in February 2010. At the time he was living in Sydney.

He moved interstate and lodged his PR application. To the Character Declarations and all the questions – he ticked “NO”. According to the Tribunal, he used a “predated” Police Clearance Certificated he had, dated before he was convicted in Sydney and thus was clean.

He got his PR in July 2015. He did his citizenship application in the same fashion but it got knocked back in January 2018.

The question is – if he is to be of good character at the time of deciding his application, January 2018, then what went wrong for him? There is no record of Pulkit being involved in any other criminal behavior other than the two convictions in February 2010. Even the guidelines say – 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…

The Tribunal had a closer look at his convictions of theft (Larceny) and possessing property suspected of being stolen. The theft (Larceny) charge from the police report can be summarized as below:

About 15:00 on Monday the 11th January 2010, he entered a Shoe Store in a Sydney shopping Mall. Upon entering the store he picked up a pair of shoes of child size and approached the store assistant and asked her if that pair of shoes he was holding would fit a child.  She said all children have different sized feet, but if he purchased the shoes and the size was wrong, he could return them with a receipt.

Then the store attendant turned away from him momentarily to attend to another customer and a short time later noticed the box Pulkit was holding was on the shelf empty.  She quickly looked around – looking for him and found him out the store front “walking very fast, almost running”.

She rushed behind him and stopped him near the front sliding doors to the Central Mall where upon searching his bag, she has actually sighted the shoes in his bag.

She called in security and then police were called and he was charged with larceny (theft) of that pair of shoes.

He could not provide whereabouts of the person he had Credit Card of and thus was also charged him with “Goods in personal custody suspected being stolen”.

As a result of that he was convicted of those charges and fined $200 and $76 on each in court’s costs.

Pulkit pleaded that his convictions were in February 2010 and he was embarrassed about it all but failed to offer a cogent and consistent explanation showing genuine remorse.

Attempting to explain his conduct, Pulkit made a complete goose of himself saying (excerpt):

… I was caught in Sydney for larceny of item from store back in 2010, that time I was on student visa and wasn’t fully aware of the Australian laws. I also convicted [sic] the crime in court and I feel guilty for my offence which I have done unwittingly, I also paid the fine to court straight after the decision was accomplish…

To say he “wasn’t fully aware of the Australian laws” begs the question – which country’s laws allow people to steal?

It also paints him as someone who might think ‘stealing can be fine’.

Further to say he committed his offences “unwittingly” – the Tribunal says it suggested he accepts no responsibility for his conduct.

This led to his undoing.

In his refusal, Pulkit’s 2010 convictions were a small factor; the bigger factors were his conduct to tick “NO” to character declarations and when – given various opportunities – his changed explanations – which became Pulkit’s current and contributory conduct.

The Tribunal found Pulkit’s explanations were untruthful and are reflective of a pattern of dishonest behaviour and decided against him.

The Tribunal was not satisfied that “at this point in time Pulkit is of good character for the purposes of s 21(2)(h) of the Citizenship Act” and refused his appeal against the department’s decision.

Having failed to satisfy the Tribunal to be of good character, for now Pulkit cannot have Australian Citizenship.                                -DM

 

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