Anuwar and Minister for Immigration and Citizenship (Citizenship)
[2025] ARTA 1043
•18 July 2025
Anuwar and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 1043 (18 July 2025)
Applicant/s: Sadak Anuwar
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2024/0591
Tribunal:General Member S Evans
Place:Sydney
Date: 18 July 2025
Decision:The Tribunal sets aside the reviewable decision of the delegate of the Respondent. The matter is remitted to the Respondent with a direction that the Applicant is of good character within the meaning of s 21(2) of the Australian Citizenship Act 2007 (Cth).
..................[SGD]......................................................
General Member S Evans
Catchwords
CITIZENSHIP - Refusal of citizenship – whether applicant is of good character under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – criminal offence after application lodged – mental illness – schizophrenia - whether mitigating factors outweigh behaviour – Tribunal satisfied the Applicant is of good character – reviewable decision set aside.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422
Secondary Materials
Citizenship Procedural Instruction 15 - Assessing good character under the Citizenship Act
Statement of Reasons
INTRODUCTION
Sadak Anuwar (‘the Applicant’) seeks review of a decision of a delegate of the Minister for Immigration and Citizenship (‘the Respondent’) refusing his application for Australian citizenship by conferral. The refusal was made on the basis that the delegate’s finding that the Applicant did not satisfy the ‘good character’ requirement in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
For the reasons that follow, the delegate’s decision will be set aside.
RELEVANT LEGISLATION AND POLICY
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen.
The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:
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… 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.[1]
[1] (1996) 139 ALR 84, 94
The Respondent department’s citizenship policy identifies the legal requirements and related policy and procedures that apply to the assessment of an application for Australian citizenship. Citizenship Procedural Instruction 15 Assessing good character under the Citizenship Act (CPI 15) provides guidance on the interpretation and application of the good character requirement. The Tribunal is not bound to strictly apply policy, but as it is government policy it should be considered unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]
[2] (1979) 2 ALD 634
Informed by the discussion in Irving, subsection 3.3 of CPI 15 provides that:
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
The policy specifically calls for decision makers to consider an applicant in a holistic way; that is, all aspect of their life that may be relevant to consideration of character.
A person’s enduring moral qualities encompass:
- characteristics which have endured 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.
BACKGROUND AND EVIDENCE
The Applicant was born in Myanmar in 1993 and first arrived in Australia in June 2012. He is stateless and Rohingya, and was granted a protection visa in February 2013. On 20 July 2017, he applied for Australian citizenship.[3] On 24 January 2024, a delegate of the Respondent refused to approve the Applicant’s citizenship application because they were not satisfied he was a person of good character as required by paragraph 21(2)(h) of the Act (the reviewable decision).
[3] T3 p33
The Applicant has provided a statement in which he says his grandmother, cousin and nephew were killed before he fled Myanmar. He witnessed violence and the destruction of his village in Myanmar.[4]
[4] TB 49-50
The Applicant’s father died in 2002 and his mother went to Malaysia, where she passed away in 2024. The Applicant was unable to meet with his mother before she died. The Applicant has siblings residing in Myanmar, Malaysia, and the United States. One of his sisters recently relocated to Thailand.
The Applicant has met a potential partner online. She is Rohingya and lives in Myanmar, and the Applicant is planning to travel to Myanmar so they can marry. He has previously obtained a travel document but fears he may be harmed if he returns to Myanmar without the protection afforded by Australian citizenship.
In 2018 the Applicant was seriously injured in a workplace accident, which he describes as a ‘crush’ injury. The pain from the injury prevented him from returning to work and left him distressed and anxious. Since his partial recovery, he has been employed on a casual basis as an electrician, handyman, labourer or plumber when he has been physically able. He is currently receiving disability pension.
The Applicant’s mental health
The Applicant’s mental health history is set out in medical records produced under summons.
A report compiled by Canterbury Community Mental Health Service in July 2024 for the purpose of applying for renewal of a Community Treatment Order (‘CTO’) sets out the impact and progression of his illness.[5]
[5] TB pp 40-43
In summary, the Applicant was brought to hospital by police in February 2023 after he attended the police station reporting ‘paranoid ideation about his boss trying to kill him’.[6] He was admitted as an involuntary patient and remained in hospital for six days before being discharged with antipsychotic medication.
[6] TB p 31
After he was discharged, the Applicant continued to present as highly delusional which indicated he was not taking the anti-psychotic medication he had been prescribed. His medication was changed, but he stopped using it several times because it left him feeling ‘cloudy in the head’. As he was not consistently taking the prescribed medication he was admitted to hospital a second time in August 2023. Upon discharge, he was offered medication administered by monthly injection, which he declined, stating he would take the medication orally.
The Applicant was admitted to hospital again in December 2023, this time ‘presenting with worsening delusions and auditory hallucinations in the context of medication non-adherence’. On review, he was found to demonstrate ‘no insight and poor judgment’. The inpatient team attempted to recommence medicating the Applicant who had a ‘severe dystonic reaction’, and it was ceased.
The Applicant was prescribed another antipsychotic, paliperidone, which is administered once every four weeks. In applying for the CTO, it was noted that the Applicant had been engaging with the mental health services but has been ‘vehemently against’ taking the monthly injections. He did not agree he had a mental illness or required medication. He reported side effects of the injections including sedation, dizziness, pain and headaches. The dose was reduced to ameliorate the reported side effects.
Nonetheless, the Applicant was served several breach notices in the process of administering the medication, and on two occasions security were required to administer the injection to avoid escalation to police assistance. In February 2024, police assistance was required to administer the medication.
Although the Applicant had engaged the mental health service while in the community, his frequent change of address made it difficult to ensure consistent care. The Applicant’s mental state improved when was consistently medicated, but he was reported resistant to psychoeducation about his illness and the benefits of ongoing anti-psychotic and mood stabilising medication.
The report concluded that the Applicant’s limited insight into his illness, belief that he did not require ongoing mediation and history of ceasing anti-psychotic medication as a voluntary consumer had led to relapse.
The Applicant’s offence
On 22 November 2021 the Applicant was convicted by the Burwood Local Court of Destroy or damage property (DV), Stalk/intimidate intend fear physical etc harm (domestic) - T2, and Common assault (DV) - T2. The offences were committed on 4 November 2021.[7] The court records show that the Applicant had previously pleaded guilty to two of the charges but had entered a plea of not guilty to the charge of Common assault (DV) - T2. On 22 November 2021 that charge was found to be proven, and the Applicant was convicted on all charges.[8]
[7] TB pp 3,5,7, 9-16
[8] TB p 1,4,6,8, 33
Also on 22 November 2021, the court imposed a final apprehended domestic violence order (ADVO).[9] The ADVO was for a period of two years, up until 21 November 2023. The final ADVO followed a provisional ADVO imposed on the Applicant on 4 November 2020.[10]
[9] TB p 35
[10] TB p 38
The police facts sheet provides details of the offences. The convictions follow a single incident in the evening on 4 November 2020. According to the police facts, the Applicant was upset because his housemate, who was the victim of his offending, had some guests over. The Applicant and the victim had an argument in front of another housemate. The victim went to his bedroom and shut the door, at which point the Applicant yelled at him to come out as he needed to talk to him. A short time later:
The [Applicant] went back to the victim's door and began to punch it to the right of the door handle. The [Applicant] did this two to three times as he came and went from his own room…
Eventually the [Applicant] punched a large hole in the victim's bedroom door and stuck his hand through, grabbing the inside door handle in an effort to unlock the door. The victim, inside the room holding the door shut, held his hand on the door handle in an effort to keep the door shut and locked. The [Applicant] punched the victim twice with a closed right fist to the right wrist and forearm area in an effort to have the victim release his grip on the door handle.[11]
[11] TB pp 13-16
The Applicant was taken to the police facts sheet during the hearing. He gave evidence he was unable to recall the specific details of the incident, but said he felt guilty about the offending. He said it was a great mistake which would not be repeated.
He initially claimed he could not remember if the victim had done anything to provoke him because it had been a long time since the incident. However, he later gave evidence that he had become very angry when the victim used slang words in relation to his mother and sister. He acknowledged punching the bedroom door, which he said was old and broke after just one punch. The Applicant was unable to recall if - as stated in the police facts - he punched the victim twice on the wrist to get him to release the door handle. However, he acknowledged punching the door would have been intimidating for the victim.
During the hearing, the Applicant was taken to an email which he sent to the Respondent department on 4 October 2023 in response to an invitation to comment.[12] In his email the Applicant writes he was provoked and assaulted by the victim, who was a drug user who had asked him for money to buy drugs. When he refused to give him money, the victim pushed him, which injured the Applicant’s hand.
[12] T7 p 89
He claims to have broken the victim’s door because he was frustrated that the victim would not stop swearing. Although he feels guilty and sorry for committing the offence, he stated that he believed police took the side of the victim because the witness to the incident was the victim’s friend. When taken to the email, the Applicant gave evidence he could not recall sending it.
The Applicant was also taken to the statutory declaration he made in June 2024 in which he said he punched through the door to open it, which he accepts was completely unacceptable. It was not his intent, but he accepted his conduct would have intimidated the victim and made him fearful. Although he was unable to recall some of what he was reported to have said during the incident, he remembered there had been an argument and that it was not a ‘one way argument’.
Character references have been provided by Radwan Akkawi and Aman Ullah. Both state that they are aware of the Applicant’s offending, and that he is a good person whose offending was out of character.
ISSUE TO BE DETERMINED
The issue to be determined by the Tribunal is whether the Applicant meets the requirements of good character in paragraph 21(2)(h) of the Act.
CONSIDERATION
The Applicant has been convicted of criminal offences of a violent nature and the court imposed an ADVO on the Applicant to protect the victim of the offences from further violence. The convictions are not consistent with the good character requirement in the citizenship policy, which provides that crimes of violence including domestic violence, are serious offences.
The citizenship policy provides that the length of a sentence imposed on a person should be considered when assessing the relative seriousness of an offence. In this matter, the Applicant’s punishment was a fine of $1,000 and he was required to pay $70 compensation. To my mind, these penalties are inconsistent with the Respondent’s contention that the Applicant’s offences involved acts of ‘extreme violence’. I am satisfied that the sentence imposed upon the Applicant strongly points to the offending being at the lower end in terms of seriousness.
The Applicant suggests that his experience as a refugee, separation from his family, the continuing hardship faced by family members overseas, and the difficulties he has faced adjusting to life in Australia are mitigating circumstances in favour of finding he is of good character. The Applicant has provided little by way of probable information in relation to these factors nor addressed how these experiences may support a finding that he is of good character. In the circumstances, I do not consider they are directly relevant to the issue to be determined.
Paragraph 14 of CPI 15 identifies mitigating factors which should be considered when considering the good character requirement in the context of criminal offending. Relevantly, it provides that an offence committed because of psychological disturbance may be given less weight. The policy states that when considering claims of mental illness, they should generally be supported by a medical report.
The Applicant has been diagnosed with schizophrenia and contends that his mental illness was a factor in his offending. The evidence is that the offending occurred in November 2020 while the Applicant first presented with mental health issues in February 2023. There is no independent or documentary evidence as to the state of the Applicant’s mental health at the time of the offending.
The Applicant’s health records confirm the severity of his illness was sufficient to warrant involuntary admissions to hospital and multiple CTOs. When he was first taken to hospital by police, he was very ill and was experiencing paranoia which related to the 2018 workplace accident. Given the severity of his illness when he first received medical treatment, it is probable that the Applicant would have experienced some indications or symptoms of his condition prior to being admitted to hospital in 2023. There is insufficient evidence to determine the Applicant’s mental state at the time of the offending, but I accept he may have been experiencing some symptoms of his illness. The likelihood is sufficient to find his mental health condition is a mitigating factor.
The Applicant does not propose that his mental health condition lessens the seriousness of his conduct. He stated he is remorseful and claims to have made genuine efforts to rehabilitate himself. However, the Respondent correctly notes that there is nothing to suggest the Applicant has sought to engage in rehabilitation courses to address his violent conduct.
It is concerning that the Applicant has previously sought to downplay the seriousness of his offending, notably by apportioning blame to the victim. I accept this undermines his claim to be remorseful. I also acknowledge there were some inconsistencies in his evidence before the Tribunal. While these considerations do not support a finding the Applicant is of good character, I afford them limited weight in circumstances where he been diagnosed with a serious mental health condition and continues to be treated with anti-psychotic medication.
The Applicant received a breach order from the mental health care team in August and September 2024. The Respondent submits that the Applicant’s non-compliance with mental health treatment orders to take anti-psychotic medication weighs against a finding of good character. The evidence is that the side effects of the medication were significant for the Applicant, and that he was experiencing symptoms of psychosis when he was not compliant. I do not find that the Applicant’s non-compliance with his medication is an indication he is not of good character, but a symptom of his health condition and the adverse side effects of the treatment.
I accept the Respondent’s submission that little weight should be afforded to the statements provided by the Applicant’s friends because of the limited information they contain. I also acknowledge there appears to have been a degree of coordination between the referees in drafting the references.
CONCLUSION
There is considerable evidence to support a finding that the Applicant is of good character. He contributed to the community through his paid employment and continued to do so after the workplace accident. Except for the incident which led to the offending, the evidence is that the Applicant has upheld and obeyed the law. The nature of the offending was serious, but the overall circumstances and punishment imposed by the court indicate the offending was at the very low end in terms of seriousness. It is also in the Applicant’s favour that considerable time has passed since his offending, and he has complied with the court orders.
The Applicant has navigated the treatment of his mental illness imperfectly. He lacks family or close friends in this country who can help him engage consistently and optimally with mental health services. He has been homeless. Having regard to his overall circumstances, I accept he has managed to the best of his ability in difficult circumstances.
On balance, the correct and preferable decision is to set aside the reviewable decision and substitute it with a finding that I am positively satisfied the Applicant is of good character at this time.
DECISION
For the reasons outlined above, the reviewable decision is set aside, and the matter is remitted to the Respondent with a direction that the Applicant is of good character within the meaning of s 21(2) of the Australian Citizenship Act 2007 (Cth).
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member S Evans.
............[SGD]........................................................
Associate
Dated: 18 July 2024
48. Date(s) of hearing:
49. 10 June 2025
50. Solicitor for the Applicant:
51. Daniel Taylor, Essence Migration
52. Solicitor for the Respondent:
53. Qi Qi Ren, HBL Ebsworth Lawyers
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