Amjad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 4425

Amjad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4425 (5 November 2020)

Division:GENERAL DIVISION

File Number:          2020/2419

Re:Waqas Amjad

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:5 November 2020

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant is of good character – domestic violence – good behaviour bond – applicant claims he did not know Australian law – Citizenship Policy – Australian Citizenship Procedural Instructions – where applicant has limited insight or remorse into offending – decision under review affirmed 

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

CASES

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

SECONDARY MATERIALS

Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act

Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Dr L Bygrave, Member

5 November 2020

INTRODUCTION

1. The applicant, Mr Waqas Amjad, is 32 years old and a citizen of Pakistan. Mr Amjad first arrived in Australia on 29 July 2014 as the holder of a Partner (provisional) (subclass 309) visa. He was granted a Partner (permanent) (subclass 100) visa on 1 March 2017.

2. Mr Amjad lodged an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) on 30 October 2018.

3. This application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) on 6 April 2020 on the basis that Mr Amjad did not meet the good character requirement in paragraph 21(2)(h) of the Act.

4. On 25 April 2020, Mr Amjad made an application for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

5. The matter was heard by the Tribunal on 22 October 2020 by videoconference. Mr Amjad had legal representation and provided oral evidence at his hearing with the assistance of an interpreter of the Urdu language.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Relevant to Mr Amjad’s application, subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship as follows:

   (2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (h)  is of good character at the time of the Minister’s decision on the application.

   The Citizenship Policy

8. While the Act does not define the term ‘good character’, the Citizenship Policy offers guidance on the interpretation and application of the good character requirement. 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).[1]

   [1] [1979] AATA 179; (1979) 2 ALD 634.

9. Chapter 11 of the Citizenship Policy sets out the policy guidance I should consider when assessing whether a person is of good character. Chapter 11 states that good character refers to the ‘enduring moral qualities of a person’ as an indication of whether they are likely to ‘uphold and obey the laws of Australia’.[2] The phrase ‘enduring moral qualities’ is described as encompassing concepts such as:

   ·characteristics that 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.

   [2] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 145.

10. This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. This means 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.[3]

    [3] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 146.

11. The Citizenship Policy sets out a non-exhaustive list of characteristics of good character. Relevant to this application, a person of good character would:

    ·respect and abide by the law in Australia or other countries;

    ·be truthful and not practice deception in their dealings with the Australian Government, for example, the concealment of convictions that could lead to the refusal of citizenship; and

    ·not be violent and not cause harm to others through their conduct.

12. As outlined in the Citizenship Policy, the question for decision makers is whether any mitigating factors and/or explanations provided by the applicant outweigh the behaviour in question. This assessment requires considering an aggregate of qualities and weighing up factors, applying community standards.

13. Mitigating factors relevant to this application include whether a person of good character would have behaved the way Mr Amjad did, the amount of time that has elapsed since his offending, whether Mr Amjad has demonstrated that he has upheld and obeyed the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to his offences. This requires looking holistically at Mr Amjad’s behaviour over a lasting or enduring period of time.

    The Australian Citizenship Procedural Instructions (CPIs)

14. Further policy guidance is provided by the Australian Citizenship Procedural Instructions (CPIs), which detail operational instructions and supplement the Citizenship Policy.

15. ‘CPI 15 – Assessing Good Character under the Citizenship Act’ (CPI 15) was issued on 17 April 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Act.

16. CPI 15 relevantly states that Australian community standards, as reflected in Government initiatives, indicate that ‘domestic violence…in any form is not acceptable in the Australian community’.[4] CPI 15 also sets out that deliberation about the applicant’s criminal record should include consideration of the seriousness of the offence, whether there were victims, and whether the applicant disclosed the offences in their citizenship application.[5]

    [4] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.3.

    [5] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.7.

    EVIDENCE

17. Mr Amjad’s criminal record is detailed in a National Police Certificate that shows he attended Bankstown Local Court on 5 June 2015 in relation to the following offences:

    Offence: Contravene Prohibition/ Restriction in Apprehended Violence Order. Court Result: Proved without conviction. Released on entering bond to be of good behaviour for 12 months.

    Offence: Common Assault. Court Result: Proved without conviction. Released on entering bond to be of good behaviour for 12 months.[6]

    [6] Exhibit T-T24, page 146.

18. NSW Police reports show Mr Amjad was involved in two separate incidents with his wife. The first occurred on 22 December 2014, when a neighbour called police after Mr Amjad’s wife screamed out that he was hitting her. Court documents show that Mr Amjad was subject to an Apprehended Violence Order (AVO) from 23 December 2014 with the terms of the final AVO dated 12 March 2015 stating the AVO was in force for six months and Mr Amjad:

    …must not assault, molest harass, threaten or otherwise interfere with [his wife]…

    …must not engage in any other conduct that intimidates [his wife]…

    …must not stalk [his wife]… [7]

    [7] Exhibit R-R3, page 8.

19. The second incident occurred on 11 May 2015. NSW Police documents state that Mr Amjad and his wife argued, and he slapped her across the face. She then left their unit and phoned her brother who called the police. Bankstown Local Court documents dated 5 June 2015 show that Mr Amjad was found guilty of the offences (contravene prohibition/restriction in AVO (domestic) and common assault (domestic violence)); he was directed to enter into a good behaviour bond for 12 months, comply with the AVO for the protection of his wife and attend an anger management course.[8]

    [8] Exhibit R-R11, page 26.

20. Mr Amjad provided a written statement on 8 April 2020 and gave oral evidence at the Tribunal hearing.

21. Mr Amjad stated that he married his wife in 2013 in Pakistan and she then sponsored him to come to Australia on a provisional partner visa. Mr Amjad arrived in Australia in July 2014 and, since then, has been employed as a pick packer and store person. Mr Amjad and his wife have two daughters, now aged four years old and two years old. In March 2019, Mr Amjad and his wife separated, and Mr Amjad returned to Pakistan in May 2019 because his mother was unwell. Mr Amjad returned to Australia in December 2019, and he and his wife remain separated but live under one roof and care for their daughters together.

22. In his written statement, Mr Amjad wrote that he and his wife have had ‘ups & downs and have had marital issues like other couples’.[9] He described the ‘Domestic Violence incident in June 2015’ as he and his wife ‘started fighting and she screamed [to] our neighbour…[who] called the police and I got a AVO’.[10] Mr Amjad wrote that he is ‘deeply remorseful with what happened’ but stated that his wife ‘contributed to the incident escalating it got physical between us both’ and she then ‘called her brother to come over’.[11] Mr Amjad noted that he understands ‘today this offense [sic] is a serious matter, but didn’t understand the Australian law at the time of the incidences’.[12] He wrote that he ‘accepted the guilty plea at that time because my wife and her brother informed me she was pregnant with our first child’ and to ‘keep the peace’.[13] He advised that he ‘complied with the AVO and the good behaviour bond of 12 months’.[14]

    [9] Exhibit T-T1, page 7.

    [10] Exhibit T-T1, page 7.

    [11] Exhibit T-T1, page 7.

    [12] Exhibit T-T1, page 7.

    [13] Exhibit T-T1, page 7.

    [14] Exhibit T-T1, page 7.

23. At the Tribunal hearing, Mr Amjad apologised and said that he was ‘not aware of the rules and laws of Australia’. He denied hitting his wife in December 2014 and said he hit her ‘just once’ in May 2015. He said he attended sessions with Dr Yaser Mohammad (occupational therapist and mental health clinician) in 2015, who counselled him about laws in Australia and that he should not hit his wife. Mr Amjad also told the Tribunal that he believed his wife ‘used her knowledge’ of Australian law to ‘make extra stress and trouble’, and she does not want him to become an Australian citizen.

24. In cross-examination, Mr Amjad was asked about his ‘Personal particulars for assessment including character assessment: Form 80’ lodged with the Department on 9 January 2020. In particular, he was asked why he ticked ‘no’ to the question of whether he has ever ‘been convicted of an offence in any country’.[15] Mr Amjad’s response was that ‘nothing really happened’ and so he ‘ticked no’.

    [15] Exhibit T-T7, page 99.

25. Mr Amjad’s wife provided a statutory declaration dated 15 July 2020 and gave oral evidence in support of Mr Amjad at the Tribunal hearing. She wrote that Mr Amjad’s ‘character is much better than before’, they ‘now have a good relationship together…[and] have created a compromised arrangement and lifestyle that works for [them]’.[16] She noted that she has ‘forgiven him for his past mistakes’ and believes ‘he is of good character’.[17]

    [16] Exhibit A1.

    [17] Exhibit A1.

26. At the Tribunal hearing, Mr Amjad’s wife explained that she and Mr Amjad are separated but they live together to raise their daughters as a family. She said their situation now ‘is better’ and Mr Amjad is helpful towards her and their daughters. 

27. Mr Amjad has provided statutory declarations and references to verify his good character. The Citizenship Policy notes that ‘referee reports can shed light upon an applicant’s character’ and provides advice about the level of weight to be given to references.[18]

    [18] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 155.

28. Two statutory declarations submitted by Mr Amjad to the Department are from friends who refer to ‘incidents’ with the police and describe him as a hard worker, ‘fantastic family man’, honest and authentic.[19] Mr Amjad told the Tribunal he is no longer in contact with these friends.

    [19] Exhibits T-T25 and T-T26.

29. Mr Amjad also provided a supporting letter from his current employer dated 22 April 2020, a psychological report from Mr Jon Dormand (registered psychologist) on 14 July 2020 and a report by Dr Mohammad dated 16 July 2020. Relevantly, Mr Dormand reported that his assessment of Mr Amjad showed he is ‘currently experiencing positive mental health’ and opined that ‘with regard to anger management, Mr Amjad does not appear to require further treatment’.[20]

    [20] Exhibit A2.

    CONSIDERATION

30. The sole issue for determination is whether Mr Amjad satisfies the requirements of good character in paragraph 21(2)(h) of the Act.

31. Based on the evidence, I accept that a period of more than five years has passed since Mr Amjad’s convictions on 5 June 2015 and note he has not had any further offences. I also accept that, despite their separation, his wife says Mr Amjad’s behaviour is ‘better’ and he is helpful towards her and their daughters. Mr Amjad has also provided positive written reports about his friendships, employment and the current status of his mental health.

32. In relation to Mr Amjad’s offending, I have had regard to sections 16 and 17 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Crimes Act) that provides the court ‘may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities’ that a person ‘has reasonable grounds to fear’ the other person; and the order should impose only the prohibitions ‘necessary for the safety and protection of the protected person’.

33. In his written statement and in his oral evidence to the Tribunal, Mr Amjad contended his wife used her knowledge of Australian law to make ‘extra stress and trouble’ and she does not want him to become an Australian citizen. I note that this contention is completely inconsistent with the evidence before the Tribunal, which includes that his wife sponsored his partner visa granted on 1 March 2017; wrote a statutory declaration dated 15 July 2020 supporting his good character; and gave positive oral evidence about him to the Tribunal. The Tribunal found Mr Amjad’s wife to be a credible witness; she was quietly spoken and constructive in her comments and there was nothing in her evidence to suggest she sought to cause ‘stress or trouble’ for Mr Amjad.

34. I also considered Mr Amjad’s evidence at his hearing that he did not declare his convictions in the ‘Personal particulars for assessment including character assessment: Form 80’ lodged on 9 January 2020 because ‘it was nothing’ extremely concerning. In particular, this evidence shows no insight into his offending behaviour and no genuine remorse.

35. I am satisfied the seriousness of Mr Amjad’s behaviour in 2015 is shown by the Court making an AVO for the protection of his wife for a period of six months, noting the provisions of the Crimes Act required the Court to be satisfied on the balance of probabilities that his wife had reasonable grounds to fear him.

36. In the decision of Re Fenn and Minister for Immigration and Multicultural Affairs, Deputy President Breen explained the importance of the good character requirement noting:

    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...[21]

    [21] [2000] AATA 931 at [8].

37. Violence in any form is not acceptable in the Australian community. I find Mr Amjad’s offending comprises domestic violence, which is behaviour that diminishes the values of the Australian community and is not consistent with the privilege of Australian citizenship.

    CONCLUSION

38. In considering all the available evidence, I am not satisfied that Mr Amjad is of good character and does not satisfy paragraph 21(2)(h) of the Act.

39. My conclusion does not preclude Mr Amjad from making a further application for citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he does meet the requirements to be granted Australian citizenship.

    DECISION

40. The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 5 November 2020

Date of hearing:	22 October 2020
Solicitors for the Applicant:	Ms R Sayed, Abbas and Co Lawyers
Solicitors for the Respondent:	Ms S Roberts, Mills Oakley Lawyers