Al Batat and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 726

Al Batat and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 726 (20 September 2016)

Division	GENERAL DIVISION
File Number	2016/0008
Re	Dhiyaa Al Batat
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	20 September 2016
Place	Sydney

The Tribunal:

1.     sets aside the decision of the delegate of the Minister dated 22 December 2015 refusing Mr Al Batat’s application for Australian citizenship;

2.     remits the matter to the respondent for reconsideration in accordance with the direction that Mr Al Batat is of good character pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

.......................[sgd].................................................

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – good character – whether applicant satisfies the legislative requirement to be shown to be of good character – bad language – traffic offences – whether any mitigating factors or explanations outweigh the behaviour – set aside – remitted with direction that applicant is of good character

LEGISLATION

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

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Thuraisamy and Minister for Immigration and Border Protection [2015] AATA 202

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Dr L Bygrave, Member

20 September 2016

INTRODUCTION

1. Mr Al Batat was born in Basra, Iraq in January 1996. He first arrived in Australia on 17 November 2010 and currently holds a Protection (Class XA) (Subclass 866) (permanent) visa that was granted on 1 November 2011.

2. Mr Al Batat applied for Australian Citizenship on 12 November 2015 (Citizenship application) under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The application was refused by a delegate of the Minister for Immigration and Border Protection on 22 December 2015 because the delegate was not satisfied that Mr Al Batat was of ‘good character’ at the time.

4. On 30 December 2015, Mr Al Batat applied to this Tribunal for review of that decision.

5. The matter was heard in Sydney on 15 August 2016. Mr Al Batat was represented by an advocate at the hearing and assisted by an interpreter of the Arabic language.

   RELEVANT LEGISLATION AND ISSUES

6. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to s 24(1) of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Section 24(1A) of the Act states that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

8. The general eligibility criteria for a person over 18 years of age to become an Australian citizen are set out in s 21(2) of the Act. Relevantly, s 21(2)(h) provides that the Minister must be satisfied that the person is of good character at the time of the Minister’s decision on the application.

9. The issue before the Tribunal is whether it is satisfied that Mr Al Batat is of ‘good character’ in accordance with s 21(2)(h) of the Act.

   Definition of ‘good character’

10. The term ‘good character’ is not defined in the Act. Guidance can be found in Ch 11 of the Citizenship Policy, which from 1 June 2016 replaced the policy guidance previously provided in Ch 10 of the Australian Citizenship Instructions (ACIs), which were last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions.

11. The role of the Citizenship Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

12. I am considering this matter afresh (de novo) and although the ACIs were the relevant policy guidance in operation at the date the reviewable decision was made, the relevant policy from 1 June 2016 and at the time of hearing was the Citizenship Policy. In any event, whichever policy I consider makes very little difference to the decision I am tasked to make. Both documents provide similar guidance on the aspects relevant to character in this matter.

13. As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

    Unless the terms of the Act and Regulations require some other meaning be applied, 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…

14. The Citizenship Policy states the phrase ‘enduring moral qualities’ encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.

15. This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. I can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship process.

16. In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in a citizenship application:

    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 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.

17. The Citizenship Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevant to this decision, a person of good character would respect and abide by the law in Australia, and not cause harm to others through their conduct (for example, excessive speeding or driving without a licence).

18. The Tribunal is then required to decide whether there are any mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Citizenship Policy, the Tribunal is to weigh up certain factors, applying community standards.

19. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way Mr Al Batat did, the amount of time that has elapsed since offending, whether Mr Al Batat has demonstrated that he can uphold and obey the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to the offences.

    Offences

    Incident at the Department of Immigration and Border Protection on 25 November 2015

20. Mr Al Batat was involved in an incident when he attended an appointment for a citizenship test at the Department of Immigration and Border Protection (the Department) in Sydney on 25 November 2015.

21. The only information available from the Department is set out in the decision of the Minister’s delegate dated 22 December 2015. The delegate reported that at an appointment with a Department officer on 25 November 2015, Mr Al Batat ‘refused to accept instructions and became abusive and loud’, his ‘manner was condescending and demanding’, he ‘used bad language’ and was ‘asked to leave’. Following this incident, there was some interaction between Mr Al Batat’s authorised contact person and the Department, although there is no information before the Tribunal to indicate that this involved any unpleasant behaviour.

22. At the Tribunal hearing, Mr Al Batat accepted that he had become angry when he attended an appointment at the Department on 25 November 2015. He admitted that his behaviour was inappropriate and expressed remorse for these actions. He also explained the circumstances that had led to this incident, which included:

    ·Mr Al Batat had been told that his grandmother had passed away the night before the appointment on 25 November 2015. Consequently, he was upset and emotional and had slept very little during the night.

    ·On the morning of the incident, Mr Al Batat had driven from Canberra (where he was working at that time) to Sydney for the appointment. This had exacerbated his tiredness and level of stress.

    ·Mr Al Batat’s appointment with the Department solely involved Mr Al Batat and an officer from the Department. No interpreter was present at the appointment, although Mr Al Batat requested the assistance of an interpreter in his application for Australian citizenship. The Department officer made several verbal requests of Mr Al Batat in English, including that he provides ‘100 points’ of identification; however, Mr Al Batat had difficulties comprehending the officer due to his level of understanding of the English language. The Department officer then informed Mr Al Batat that the photograph he had provided with his application for citizenship could not be accepted as it was more than six months old and he was required to provide a current photograph. As a result, Mr Al Batat understood that he needed to redo the form and he could not do the citizenship test on that day. Mr Al Batat told the Tribunal that he had thought this meant that he needed to start the process to apply for citizenship afresh and pay the associated fee again.

    Traffic offences

23. Mr Al Batat’s driving history records the following traffic offences:

Date	Offence	Penalty
25 September 2013	Learner Licence suspended for an offence on 26 June 2013	No penalty – removed from driving record as not the individual who committed offence.
13 October 2013	Exceed speed limit by not more than 10 km/h	$106 fine and four demerit points. Learner Licence suspended from 8 January 2014 to 7 April 2014.
15 November 2013	Exceed speed by more than 10 km/h but not more than 20km/h in school zone	$319 fine and five demerit points. Learner Licence suspended from 14 May 2014 to 13 August 2014.
16 January 2014	Infringement notice for passenger failing to have seatbelt fastened.
21 April 2015	Failed to give particulars after accident	$311 fine and three demerit points.
30 June 2015	Exceed speed limit by not more than 10 km/h	$109 fine and four demerit points.
1 September 2015	PI Provisional Licence was suspended until 30 November 2015 for the offence committed on 30 June 2015.
29 November 2015	Exceed speed by more than 10 km/h but not more than 20km/h	$260 fine and four demerit points. Advised by police not to drive as licence suspended.
18 December 2015	Infringement notice for passenger failing to keep left of the dividing line and not complying with conditions of P1 Provisional Licence (not display P signs).
9 January 2016	Breach of conditions of P1 Provisional Licence (not display P signs)	$248 fine and two demerit points.
24 February 2016	PI Provisional Licence was suspended until 23 May 2016 for the offences committed on 21 April 2015 and 29 November 2015.

1. While I do not excuse Mr Al Batat’s traffic offences, I find that these offences are relatively minor (four low level speeding offences and two failures to display P signs offences) and over a three year period. This period includes the time that Mr Al Batat was learning to drive in Australia.

2. At the Tribunal hearing, there was also extensive examination of evidence in relation to Mr Al Batat’s involvement in a car accident on 21 April 2015, where he was fined $311 and a penalty of three demerit points was imposed for failing to give his particulars to the other driver. Mr Al Batat contended that he had called the police after the accident and was waiting for the police to arrive before giving his details to the other driver.

3. Based on the evidence before the Tribunal, I am satisfied that Mr Al Batat attempted to phone the police after the accident and did not willfully or maliciously withhold his details. After Mr Al Batat was contacted by police, he accepted responsibility and paid the penalty of a fine and demerit points. He also told the Tribunal that he paid substantial costs to repair both his own car and a third car involved in the accident.

4. Mr Al Batat has not committed any other offences. In his statement dated 16 May 2016, he writes about his respect for laws and rules as a ‘way to live in peace, safety, security and stability’. He observes that he particularly appreciates Australian laws because of his experience living in a country [Iraq] with an unstable government and no law enforcement.

5. I note that the traffic offences by Mr Al Batat are not considered to be serious under the Citizenship Policy. I also have regard to the decision in Thuraisamy and Minister for Immigration and Border Protection [2015] AATA 202, in which the Tribunal considered that two traffic offences do not reflect a pattern of not obeying Australia’s driving laws. I place minimal weight on the material relating to the applicant’s driving history in making my decision.

   Character references

6. The Citizenship Policy states that:

   …referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character.

7. I also have regard to the relevant paragraphs in the Citizenship Policy that give advice regarding the level of weight to be given to references.

8. Mr Al Batat provided ten character references and eight statutory declarations to the Tribunal. These documents included:

   ·A character reference by Nabil Abdallah, Club President at Granville Kewpie Soccer Club (undated) that outlined Mr Al Batat’s contribution and leadership qualities as a player and coach within the Club. Mr Abdallah stated that Mr Al Batat ‘is loved by everyone that knows his kind and warm character’. He also contended that Mr Al Batat’s driving record is ‘not an indication of his true character and nature’ and the incident at the Department was ‘out of character’.

   ·A character reference by Foad Fadul Hammood Al Safi, Educator Co-ordinator at Family Day Care (dated 14 May 2016) that stated Mr Al Batat is ‘reliable, punctual, honest, friendly,… trustworthy’ and ‘professional’, and his behavior with children is ‘kind, calm, patient’ and ‘caring’. The reference also noted Mr Al Batat has passed both a ‘criminal record check’ and ‘working with children check’ in order to work in childcare.

   ·A character reference from Lenard Izaq, Managing Director at QRI Management (dated 23 February 2016) that noted his awareness of Mr Al Batat’s traffic offences. Mr Izaq stated that Mr Al Batat is a ‘valuable asset’ to the company, and a ‘quality young man of good character’ who is ‘kind, generous, respectful, humble…dedicated, motivated, reliable and punctual’.

   ·References from JRP Realty (dated 16 May 2016) and Ray White Granville (dated 17 May 2016), which recommended Mr Al Batat as a tenant and stated that he always pays his rent on time and looks after his rental premises.

   ·Six character references and two statutory declarations from friends and community members who have known Mr Al Batat for several years. These documents acknowledged awareness of Mr Al Batat’s driving record and the incident at the Department on 25 November 2015. They attested to Mr Al Batat being ‘an all-round great guy’ who assists many people within his community.

   ·Three statutory declarations from people who witnessed a car accident involving Mr Al Batat on 21 April 2015, affirming that Mr Al Batat attempted to phone the police after the accident and was waiting for the police before he exchanged details with the other driver.

9. I am satisfied that the characteristics described in these references demonstrate the qualities of someone with ‘good character’. I am also satisfied that many of these references acknowledge Mr Batat’s incident at the Department on 25 November 2015 but state that it was ‘out of character’ due to extenuating circumstances.

   CONSIDERATION

10. Mr Al Batat left Iraq and travelled to Australia when he was 15 years old. He is currently 20 years old.

11. Despite his young age, Mr Al Batat has attempted to educate himself since arriving in Australia by attending school and TAFE. He has improved his English language skills by completing an Intensive English Course. While Mr Al Batat had the assistance of an interpreter at the Tribunal hearing, he attempted to speak in English where possible.

12. Mr Al Batat has been employed in childcare and construction. He lives by himself in an apartment, which he rents, and actively participates and assists in the Iraqi refugee community in Sydney. He coaches and plays soccer, and is a ‘loved’ member of the Granville Kewpie Soccer Club. He has dreams of starting his own construction business.

13. Mr Al Batat’s incident at his appointment for a citizenship test on 25 November 2015 is clearly regrettable. Mr Al Batat apologised for his behaviour in writing to the Department and expressed remorse to the Tribunal.

14. However, I find that there were extenuating circumstances to this incident that explain Mr Al Batat’s behaviour. These circumstances were:

    ·Mr Al Batat was stressed and tired prior to the appointment due to finding out his grandmother had passed away the evening before, and then driving from Canberra to Sydney on the morning of the appointment.

    ·The Department did not provide an interpreter at the appointment as Mr Al Batat requested in his application form. This lack of an interpreting service at the appointment appears to have contributed to the level of misunderstanding between Mr Al Batat and the Department officer, and the consequent escalation of the incident.

15. I find that these extenuating circumstances, which were in part attributable to the Department not providing an interpreter, explain Mr Al Batat’s ‘out of character’ behaviour on 25 November 2015. On the basis of the evidence before me, I also find that this incident does not reflect a pattern of poor behaviour by Mr Al Batat. Rather, for the majority of the period Mr Al Batat has resided in Australia, his behaviour demonstrates a person with ‘enduring moral qualities’, who is prepared to work hard to create a successful and independent life, while participating in and contributing to the Australia community.

16. I am satisfied on the evidence before me that Mr Al Batat is of good character.

    CONCLUSION

17. In considering all of the relevant circumstances and weighing the available evidence, I find Mr Al Batat is of good character and satisfies s 21(2)(h) of the Act.

18. As a consequence, and because the Minister accepts that all other criteria in s 21(2) of the Act have been met, Mr Al Batat is eligible to become an Australian citizen pending the Minister’s approval of Mr Al Batat’s application under s 24 of the Act.

    DECISION

1. The decision under review is set aside. The Tribunal remits the matter for reconsideration in accordance with a direction that Mr Al Batat is of good character.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

..........................[sgd]..............................................

Associate

Dated 20 September 2016

Date of hearing	15 August 2016
Date final submissions received	7 September 2016
Advocate for the Applicant	Ms R Khowly
Solicitors for the Respondent	Sparke Helmore