Alam and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 3213

Alam and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3213 (6 October 2022)

Division:GENERAL DIVISION

File Number(s):      2021/5861

Re:Abu Rushd Alam

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member A Poljak

Date:6 October 2022

Place:Sydney

The decision under review is affirmed.

.................................[SGD].......................................

Senior Member A Poljak

Catchwords

CITIZENSHIP – application for citizenship by conferral – whether the applicant is of good character for the purposes of conferral of Australian citizenship – relevant law, policy and material considered – decision under review affirmed.

Legislation

Australian Citizenship Act 2007 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608

Secondary Materials

Australian Citizenship [Policy Statement]

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

6 October 2022

1. Mr Alam, the applicant, was born in Bangladesh. He first arrived in Australia on 16 July 2012 and is currently the holder of a Permanent Skilled (Subclass 189) visa (visa), which was granted on 28 March 2017.

2. On 16 October 2018, the applicant made an application for Australian citizenship by conferral pursuant to section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) (2018 Application). On 22 August 2019, the 2018 Application was refused.

3. On 23 August 2020, the applicant again made an application for Australian citizenship by conferral. The applicant declared in the application that he had been convicted of an offence of common assault (DV)- T2 in 2018. In support of his application, the applicant provided numerous character references and a psychologist report from Mr John Martin.

4. On 12 July 2021, the Department of Home Affairs wrote to the applicant providing an opportunity to comment on, or provide an explanation about, the adverse information relating to his offence. On 27 July 2021, the applicant provided a personal statement on a statutory declaration dated 21 July 2021.

5. On 12 August 2021, the applicant’s citizenship application was refused. The delegate found that the applicant did not satisfy the good character requirements of paragraph 21(2)(h) of the Act. This is the decision under review in these proceedings.

6. The issue before the Tribunal is whether the applicant is of good character for the purposes of paragraph 21(2)(h) of the Act.

   Good character and Consideration

7. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).

8. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and 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.

9. As to the definition of good character, the CPI 15 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 while the latter is a review [of] subjective public opinion…

10. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated over a long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society and overseas. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

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

    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 year’s time when he can demonstrate a longer period of positive contribution to the Australian community. [Emphasis added]

12. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

13. On 17 May 2018, the applicant appeared before Burwood Local Court. The applicant was found guilty of the offence common assault (DV)-T2 but without proceeding to conviction by entering a good behaviour bond for 18 months pursuant to paragraph 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

14. The New South Wales Police Facts Sheet dated 16 May 2018, describes the applicant's domestic violence related offence on 15 May 2018. The Facts Sheet record:

    About 2:30am on Tuesday, 15th May 2018, the Victim and [the applicant] had a verbal argument in the [the Applicant's] bedroom. The argument was over cleaning the house and taking care of the child. The Victim told [the Applicant] to help her clean the house as she cannot do it alone. [The applicant] told the Victim not to tell him what to do. [The applicant] then walked up to the Victim who was standing next to the door and slapped her on her left cheek and head. The Victim contacted police.

    …The Victim agreed to provide an electronically recorded statement. The Victim in her statement said "Then he come and slap me. He slapped me on my head." The Victim made admission to throwing her sandal at the Accused.

    …

    [The applicant] was offered the opportunity to take part in an electronically recorded interview. [The applicant] agreed to be interviewed. During the interview [the applicant] made admission to having a verbal argument and pushing the Victim. [The applicant] denied all allegations in relation to slapping the Victim. [The applicant] said, "I just pushed her and that is all I did. I pushed her as she was blocking the door.

15. At hearing, the applicant stated that when he attended Court in May 2018, he was unrepresented and entered a plea of guilty at first instance. He accepted that he pushed his wife but maintained that he never slapped her. The applicant explained that at the time of offending he was very stressed and was suffering from lack of sleep.  

16. While I accept that this incident may fall at the lower end of the scale, particularly considering the sentence imposed, the incident nevertheless is still considered serious. Domestic violence in any capacity is unacceptable. The CPI 15 at 12.1 provides that 'serious' offences include crimes of violence such as domestic violence.

17. In Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686, Senior Member Puplick stated at [48] that the Tribunal has no tolerance for acts of domestic violence, because ‘[t]here is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether they manifest physically, emotionally or psychologically'.

18. In Sharma and Minister for Immigration and Border Protection [2015] AATA 608, Deputy President Constance stated at [37] that domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character’.

19. A letter from Mr John Martin, psychologist, dated 7 June 2020, noted that the applicant underwent four sessions with Mr Martin which ‘focused on deconstructing the past event, contributing factors, emotional patterns and triggers. They were engaged in CBT (cognitive behaviour therapy)’. Mr Martin also noted, ‘The sessions also focused on the foundation of relationship and ways of practising those foundations in developing new sets of values which are guided by respect and support. I have engaged his wife in one of the sessions…’ He noted that the applicant and his wife should contact him for further counselling in the future if needed. At hearing the applicant said that he has also completed an online course on 12 August 2019.

20. The applicant’s good behaviour bond ended in October 2019. Since then, the Police have attended the applicant’s premises on two occasions and a Provisional Apprehended Violence Order (PAVO) is currently in place. The applicant has not however sought any further counselling. I do note that the facts surrounding the imposition of the PAVO are in dispute and are yet to be determined by the Court, it does raise doubt as to whether a sufficient period of time has passed since the applicant’s offending in 2018 and raises doubt as to the effectiveness of the counselling received by the applicant to date.

21. The applicant has provided numerous character references in support of his application. They also all speak positively about the applicant, either as a father, friend, husband or as a man. The applicant’s wife Rumana Rafique, the applicant’s cousin Sabira Rahman Rima, Rajan Nandi and the applicant’s brother Reyasat Alam all gave evidence orally at hearing. Each witness advised that they were aware of the applicant’s common assault charge but believed that he was very sorry for his actions. I place limited weight on the references related to the applicant’s work as they do not provide any insight into the applicant’s offending.

22. While I acknowledge that the applicant has provided positive evidence in support of his character, he currently has a PAVO in place. This matter is still to be dealt with in Court and appropriately determined. As such, I am unable to make a positive finding about the applicant’s character at this time.

23. The applicant may apply for Australian citizenship again at any time.

    Decision

24. The decision under review is affirmed.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

................................[SGD]........................................

Associate

Dated: 6 October 2022

Date(s) of hearing:	9 August 2022
Solicitor for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Solicitor for the Respondent:	Ms J Vetter, HWL Ebsworth Lawyers