Abdul Ali Alizadeh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 624

Abdul Ali Alizadeh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 624 (24 February 2021)

Division:GENERAL DIVISION

File Number(s):               2019/5216

Re:Habibbullah Abdul Ali Alizadeh

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:24 February 2021

Date of written reasons:        24 March 2021

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that the decision under review, being the decision of the Respondent dated 16 August 2019 is set aside and is remitted with the direction that the Applicant satisfies paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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Senior Member M J McGrowdie

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral - whether applicant should be considered to be a person of good character – applicant did not indicate in his application for citizenship that he had a criminal conviction - decision set aside and remitted.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21(2)(h)

CASES

Irving v Minister for Immigration and Ethnic Affairs [1996] 139 ALR 84

Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326

SECONDARY MATERIALS

Australian Citizenship Policy Statement

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

WRITTEN REASONS FOR DECISION

Senior Member M J McGrowdie

24 March 2021

1. The applicant for citizenship, Mr Alizadeh, was born in Afghanistan in 1985. He arrived in Australia on 15 November 2012 together with his wife and a child who was born overseas. The applicant completed studies in Afghanistan to the equivalent level of Year 7 and he escaped with his family to Iran in 1997. He then worked as a tailor in Iran and in approximately 2004, he returned to Afghanistan. In 2005, Mr Alizadeh assisted American forces in Ghazni and as a result came under threat by the Taliban. Mr Alizadeh then escaped to Iran in 2006 and in approximately 2007, the applicant applied for refugee status before his arrival to Australia.

2. The applicant lives in Newcastle and is married to Zahra Faqhiri, and now has four children. The applicant, his wife Zahra and the eldest child applied for citizenship in December 2016.  His wife and eldest child were granted citizenship, however the applicant's application for citizenship was refused on the basis that the applicant was not a person of good character. The reason for this was that the applicant assaulted his wife in March 2014 after an altercation ensued. As a result, the applicant was convicted in the Newcastle Local Court on a plea of guilty on 17 April 2014 and was placed on a good behaviour bond until 17 October 2015.

3. The central issue to be determined in this case is whether the applicant is or can be regarded as being a person of good character. A further issue to be addressed is that the applicant did not indicate in his application for citizenship that he had a criminal conviction. I will go into this matter in more detail.

4. The applicant and his wife have four children and live together in Newcastle. The applicant currently works as an Uber driver. The applicant previously conducted a business in relation to a family day care centre, however the details in relation to that enterprise are rather scant. It would appear that the applicant otherwise satisfies all the requirements for citizenship and successfully undertook the English language test as required, after he had done two years of English at TAFE. The applicant provided his evidence through an interpreter in the Dari language and I therefore have no objective way of determining his level of skill in the English language.

5. In a police statement relating to the assault that occurred in March 2014, there appears to be a reference to the applicant's poor English skills during the time he was interviewed by police in relation to the assault. The police provided an interpreter, however the applicant declined to make a statement, preferring to consider his position in relation to forthcoming court proceedings. The statement, however, does indicate that the applicant was polite and cooperative with police. 

6. The assault could be characterised as one coming within the general ambit of domestic violence offences. He and his wife together with their two young children were at home. There was an altercation between the applicant and his wife whereby the applicant's wife sought to retrieve the applicant's mobile phone, suspecting that the applicant had been communicating with another woman. During this altercation, the applicant began to strike his wife with both hands around the head. He then took a large stick and hit his wife with this stick causing bruising to the body. The applicant and his wife remained in the house but slept on separate beds. 

7. Subsequently, the applicant's wife attended her general practitioner and was also seen by a nurse. It was following this that the applicant's wife reported the matter to police and the police confronted the applicant. I have already referred to the events that immediately followed, including the fact that in April 2014 whilst on an apprehended violence order, the applicant pleaded guilty to assault. That conviction did not result in a custodial sentence.

8. Marital relations continued after that and the applicant and his wife had two further children. As I understand it, the applicant is the sole provider financially for the family. Zahra Faqhiri gave evidence that they have a good relationship which has endured those events in 2014 and that the applicant is both a provider financially and in terms of his presence in attending to family matters and being available at home. I found the evidence of Zahra Faqhiri quite credible. She did not refrain from making a complaint to police in 2014. I would therefore be reasonably satisfied that if there had been any incident since that time, she would also have been prepared to engage the assistance of police, given that previously there was an apprehended violence order in her favour and a conviction of the applicant for the prior assault.

9. The applicant states that he saw a psychologist following the assault on a few occasions but could not recall the name of that psychologist or the practice in which she operated. However, he indicated it was in a building within the complex of Newcastle TAFE and he has returned there more recently to see if he could identify who it was he saw, but the premises is no longer occupied by the psychology practice.

10. There have been various references provided which give some support to the applicant. However, these references when viewed in detail do not really take the matter further. There is a reference from Mr Hassib, of the Nabi Akram Islamic Centre, however in that reference there is no mention of any offence. Although the applicant lives in the Newcastle region, he obtained a reference from Mr Mosavi, a friend of his that lives in Sydney. Again, there is no reference to any offence. There is a statutory declaration by Paul Robertson in which it is indicated that he has not had contact with the applicant since 2013, when the applicant completed TAFE and does not mention any offending.

11. The applicant's own solicitor provided a short reference though I do not consider that this reference or indeed any of the others offer any real guidance in terms of the applicant's character. I should add that there was a further statutory declaration from sister Diane Santlebem, which again does not refer to any offending.

12. Much of the applicant's evidence related to the process by which the application for a citizenship was prepared. His family went to see an immigration agent by the name of Ms De Jong at a migrant assistance centre. The applicant provided her with details of his family members and this is clear on the evidence that the applicant did provide Ms De Jong with information as to such matters. 

13. The applicant provided evidence that if he had been asked by Ms De Jong, who completed the application, whether he had any criminal conviction or any problems with the police, he would have disclosed it. He further stated that he would have no reason not to disclose this information because he is and would have been aware that any prior conviction would be a matter of record, and that the Department would have access to those records.  Ms De Jong also apparently completed the application for citizenship assisted by materials that were available to her online in relation to the applicant's application for refugee status. The applicant's evidence was generally supported by the applicant's wife who also attended Ms De Jong. 

14. Ms De Jong was not called to give evidence but in response to a request made by email to her from the respondent's legal representatives, she replied on 28 March 2020 indicating that she assisted Mr Alizadeh to prepare his application, signed on 30 November 2016.  She states in that response that she believed that she did not read the question to Mr Alizadeh exactly as the question is written in the application form for citizenship, namely, "Have you been convicted of or found guilty of any offence overseas or in Australia?". She also stated that she believed she would have asked Mr Alizadeh more general questions, such as; have you ever been in trouble with the police? And that she would have advised Mr Alizadeh that the Department would complete a police check and check any criminal history.

15. There was no interpreter present at the applicant's meeting or meetings with Ms De Jong, and both the applicant and his wife have stated that such a question was in fact not put before him. It is of the upmost importance that an applicant for citizenship disclose all relevant information required to the Department, however I consider that there is a reasonable doubt as to whether there was any deliberate intent on the part of the applicant to not disclose his prior criminal conviction. That, in my view, weighs in favour of a conclusion that it is more likely than not that the applicant did not intend to deliberately conceal his previous conviction, which he rightly pointed out was a matter of record in any event.

16. The matter therefore remains as to whether or not the applicant should be considered to be a person of good character. The decision of the Minister's delegate on 16 August 2019 was that the applicant was not, having regard to the seriousness of the offence of which the applicant was convicted, a person who could be regarded as a person of good character.  The delegate was also of the view that there had been a nondisclosure of the criminal assault and this also weighed against the applicant, in the delegate's opinion, concerning the applicant's character. There can be no doubt that the actions of the applicant in March 2014, when he unquestionably assaulted his wife, were offences of a most serious kind and amounted to conduct abhorred by the Australian community and government. Domestic violence has been a significant matter over many years and never more so than in recent times when there has been a real focus by government departments and instrumentalities to condemn domestic violence and to take steps to prevent such violence from occurring.

17. If matters were assessed at the time that the offence was committed, there could be little question that the applicant could not be regarded as a person of good character. It could not be said with any degree of certainty that when the delegate determined the matter in August 2019, there was a prospect that such behaviour might be repeated and it is understandable why the delegate determined or decided that the applicant should not be regarded as being a person of good character.

18. In view of the matter today, it has been quite some time since the assault occurred. The applicant did not deny the offence and indeed pleaded guilty. The 18-month good behaviour bond ran to October 2016 and it is now quite some time since the applicant has been released from his obligation under the bond. It has been in excess of four years.

19. There is also the evidence that the applicant and his wife have continued on with family life and have had a further two children, and that the applicant is a good provider and a good husband. It might also be expected that the applicant's wife who came forward previously and made a complaint to police would also come forward had any further incident occurred. There is no evidence to suggest that any similar occurrence has occurred since the original assault in March 2014, nearly seven years ago.

20. The question becomes whether the applicant could now be regarded as a person of good character. Section 21(2)(h) of the citizenship relevantly provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    ‘I is of good character at the time of the Minister's decision on the application’[1]

    [1] Australian Citizenship Act 2007 (Cth) s 21(2)(h)

21. Good character is not defined in the Act. Often quoted though is the decision of Lee J in Irving v Minister for Immigration and Ethnic Affairs [1996] 139 ALR 84 at paragraph 94, where his Honour states that:

    ‘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.’

22. The attainment of citizenship should be regarded of course as a privilege on persons who come and seek to reside in Australia. To assist and guide decision makers there are instruments which have been put in place; namely a policy statement, an instrument which itself gives context to another instrument being the citizenship procedure instructions.  These instruments are not legislative in their nature; however, they are documents which assist a decision maker in arriving at a proper decision.

23. There is not much by way of assistance in the policy statement itself which contains a heading "General eligibility", which includes a person being of good character. There is more detail provided in the citizenship procedural instructions, paragraph 4.1 of the instruction provides that:

    Good character refers to the enduring moral qualities of a person.  A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the pledge of commitment should they be approved to become an Australian citizen.

24. Paragraph 4.3 of the instruction refers to the expression "enduring moral qualities" as encompassing characteristics over a long period of time, the ability to distinguish between right and wrong and behaviour which is of an ethical kind, conferring to the rules and values of Australian society. It goes on to say that the good character requirement necessitates consideration of an applicant viewed in a holistic way, that is all aspects of life can be relevant to the consideration of character. A decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good and enduring moral qualities.

25. Paragraph 4.13 of the instrument indicates that the question for decision makers is whether or not the decision maker is satisfied that the person is of good character, and this requires the decision maker to weigh up all relevant evidence. There is reference in paragraph 4.13 to the assessment of good character requiring a consideration of an aggregate of qualities and there is a reference to the case of Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 at paragraph 7, that:

    A decision maker needs to look holistically at the applicant's behaviour over time.  The amount of time depends on the merits of each case but in most cases will go back prior to any visa application.

26. Set out in paragraph 4.7 is:

    The consideration of the seriousness of any offence, for example, a crime of violence including domestic violence.

27. As I have said, there is no question that the applicant's offence was of a serious and deplorable nature.  Paragraph 4.12 refers to some mitigating factors that the decision maker might take into consideration. For instance, the length of time since an offence and conviction and whether the applicant has accepted responsibility and shown remorse for their conduct. I consider that viewed as a whole, one cannot regard this offence as being more than a one-time occurrence but a very serious default on the applicant's part. There is nothing to suggest that there was anything prior to the March 2014 assault, nor anything subsequently. 

28. It has now been seven years since the assault and the applicant appears to have devoted himself to the welfare and provision of and for his family. The applicant's wife and all of their children are Australian citizens. The applicant is in gainful employment and appears to have been so for a considerable period of time. To my mind, those matters suggest a degree of responsibility for the applicant's current obligations to himself, his family and the community.

29. Viewing the matter as a whole and having regard to not only the evidence of the applicant but also of his wife as to their current domestic circumstances, I come to the view that there has been a sufficient amount of time elapsed to allay any serious concern that the applicant is likely to reoffend. This offence occurred less than two years after his arrival into Australia from a war-torn territory. The applicant has settled into society in Australia and has taken responsibility for his family.

30. Accordingly, I conclude that the applicant be regarded as a person of good character and set aside the decision of the delegate being the reviewable decision of 16 August 2019, and instead determine that the applicant is a person of good character in terms of his application for citizenship.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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Associate

Dated: 24 March 2021

Date(s) of hearing:	24 February 2021
Solicitors for the Applicant:	Khatera Ziayee, Supreme Justice Lawyers
Solicitors for the Respondent:	Tal Aviram, Clayton Utz