Badar and Minister for Immigration and Border Protection (Citizenship)

Badar and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1509 (18 September 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0506
Re:Luqman Badar
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:18 September 2017
Place:Sydney

The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 13 January 2017 to refuse Mr Badar’s application for Australian citizenship is affirmed.
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J W Constance
Deputy President
CATCHWORDS
CITIZENSHIP – citizenship by conferral – whether applicant of good character – whether has enduring moral qualities – whether will respect and abide by Australian laws – assault with act of indecency – traffic offences – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2), 24
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Deputy President J W Constance
18 September 2017
INTRODUCTION

Mr Badar applied for Australian citizenship by conferral on 23 August 2016. On 13 January 2017, a delegate of the Minister refused the application on the basis that he had not established that he was of good character at that time. Mr Badar has applied to this Tribunal to review the delegate’s decision.
For the reasons which follow the decision under review will be affirmed.
BACKGROUND
Mr Badar was born in Pakistan and is a citizen of that country.[1] He is 33 years old. He migrated to Australia in August 2012 and currently holds a subclass XA-866 (permanent) visa. He is married with a young child.
[1] Exhibit R1 p.118.
Conviction for assault with act of indecency
On 30 October 2012 Mr Badar was charged with the offence of assault with act of indecency.[2]
[2] Exhibit R1 p.69.
The Police Fact Sheet sets out the following :[3]
On 18th September 2012 about 3.15pm the victim…attended Blacktown bus terminal at Blacktown train station as she was catching a bus to Stanhope Gardens. At 3.18pm the victim got onto the T74 bus which ran from Blacktown Railway Station to Stanhope Gardens. She sat on a seat upon the bus which was two seats behind the rear door on the right side of the bus. At this time were no other persons sitting on the bus behind the victim. A number of other persons got onto the T74 bus however the victim did not pay any attention to who they were. It was during this time that the accused got onto the bus and sat directly behind the victim.
At 3.18pm the bus left Blacktown bus terminal and travelled to the T-way on Sunnyholt Road Blacktown. The victim was preoccupied with her phone and did not pay any attention to who was around her. As the bus turned onto the T-Way and travelled north along Sunnyholt Road at Blacktown, the victim heard the accused talking behind her. The accused was saying something about it being a beautiful day. As the victim was preoccupied she did not take any notice of the accused.
Shortly after the victim heard the accused behind her humming Indian music. The victim then felt a breath upon her head and neck. The victim did not tum around as she was becoming concerned and scared of who was sitting behind her.
Not long after this the accused moved close to the right side of the victim and whispered to her “I love you are you Indian?”. As he said this the accused took hold of the victims right breast and then began to move his hand towards her lower stomach region. The victim turned to see the accused positioned to the right of her with his hand around the seat between the seat and window. The accused still had his hand positioned upon the…victims lower stomach. The victim yelled out to the accused. At this point the accused said “I’m sorry, I’m sorry”.
The victim immediately stood up and moved to the left side of the bus closer to the rear door. At this time the bus stopped on the T-way at the bus stop just before the M7 at Kings Langley. The accused jumped up from his seat and ran towards the front of the bus where he off the bus.
The accused was seen to stand at the bus stop for a short time before walking away.
I am satisfied that the above is an accurate statement of the facts which gave rise to Mr Badar’s conviction. When he gave evidence Mr Badar agreed that the facts stated were correct.
[3] Exhibit R1 p.201-202.
On 29 January 2013 Mr Badar pleaded guilty to the charge and was convicted. He was fined $600 and directed to enter a bond to be of good behaviour for two years with supervision.[4]
[4] Exhibit R1 pp.67-68.
Traffic infringements
On 2 October 2013 Mr Badar was issued with traffic infringement notices for:
·failing to obey police direction;
·not complying with conditions of learner licence (not displaying L sign(s)) as required;
·not complying with conditions of learner licence (unaccompanied by licensed driver).[5]
[5] Exhibit R1 p.66.
The circumstances giving rise to the issue of these notices were recorded in the Police traffic report as follows:
About 10:20pm on Wednesday the 02-10-2013, the POI drove the VOI…in a easterly direction. The VOI stopped at a red light…and police stopped behind the VOI. Once faced with a green light the POI drove the VOI east, police activated all police vehicle warning lights and intended on stopping the POI for a random breath test. The POI failed to stop moving into lane 1 continuing east where its speed varied between 50 and 58km/h. Pursuit number 2013/1199 was initiated. The VOI continued about 3 to 4km/s where he stopped at a red light at the intersection…Police stopped behind and removed him from the vehicle. He was cautioned and questioned in relation to the matter and claimed he was unaware that police wanted him to stop. However, he admitted that he had seen and heard the police with all warning devices activated and moved into lane 1 but then was unaware what to do. He informed police that he held a NSW Learners drivers licence which he produced. Police noted there were no ‘L’ Plates on the vehicle. Police asked the POI if he was in his previous home country of Pakistan what he do if police turned on there warning lights and sirens which he stated: “I would stop”. He agreed there is a question in the NSW Learners test regarding the same situation and that he should pull over or stop. The POI was well aware police were behind and wanted him to stop. The POI had one adult passenger who did not hold an Australian drivers licence.[6]
Mr Badar accepts that the above is an accurate statement of the facts.
[6] Exhibit R1 p.191.
ISSUE FOR DETERMINATION
The issue before me is whether at the time of my decision Mr Badar is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).
LEGISLATION
Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth). Section 24 of the Act provides:
(1) 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.
(1A) The Minister must not approve the person becoming an Australian citizen
unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 21(2) of the Act establishes the requirements for eligibility of the grant of citizenship. It provides in part:
(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.
This is the only subsection that is in issue in the present application. As the Tribunal stands in the shoes of the decision-maker these requirements of the law are applicable to the decision that I must make.
CITIZENSHIP POLICY
The Citizenship Policy has been adopted by the Minister to guide those making decisions under the Act. The purpose of Chapter 11 is to “provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.
The Citizenship Policy reflects government policy and is not binding on the Tribunal. However the Tribunal should apply the Policy unless there are “cogent reasons to the contrary”.[7] I am satisfied in this matter that there are no reasons why I should not apply it.
[7] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.
Chapter 11 provides in part:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.[8]
[8] At p.145.
This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[9]
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. (Citations of authorities omitted).
[9] (1996) 68 FCR 422 at 431-432.
After referring to the judgement of the Court in Irving, Chapter 11 provides, in part:
In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.[10]
[10] At p.145.
In considering the Citizenship Policy I have taken into account that it refers to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[11] in which the Tribunal said:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
[11] [2011] AATA 304 at [120].
The Policy goes on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia.[12] All of these authorities along with the Citizenship Policy make it clear that abiding by Australian laws is a very important factor that I need to consider.
CONSIDERATION
[12] At p. 147.
Characteristics of a person of good character
Chapter 11 provides a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of the Chapter. They include:
·respect and abide by the law in Australia and other countries.
…
·not be violent, involved in … unlawful sexual activity, and not cause harm to others through their conduct.
It is a matter of weighing up the various factors in the evidence before me. Under the heading of Weighing up the character decision, the Policy provides:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
•would a person of good character have behaved the way the applicant did
•what is there to demonstrate that the applicant has upheld and obeyed the law
•has the applicant behaved in accordance with Australia's community standards
•does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[13]
I note that, once again there is a reference to the question of whether an applicant for citizenship has upheld and obeyed the laws of Australia.
[13] At pp. 149-150.
Mr Badar’s evidence
Mr Badar provided two statements[14] and gave evidence. I have also taken into account his correspondence and statements to the Department. Copies of these documents are contained in exhibit R1.
[14] Exhibits A1 and A2.
The assault
Mr Badar said that when he arrived in Australia he found life very difficult as he was unemployed, he had very little money and no permanent accommodation. At the time of the offence he was feeling depressed. When he gave evidence he affirmed the statement he made on 13 August 2017 that “I did not have any intensions [sic] of creating problem for that lady or disturb her. I honestly believe that it was a wrong way of contacting that lady and there were many factors involved in that mistake including lack of experience in dealing women, financial hardships and health issues.”[15]
[15] Exhibit A2 p.2.
In a statutory declaration made 17 December 2016[16] Mr Badar said, in part:
1.    I understand that the name of offence is assault, but it did not have any aggression. So in my opinion there was no significant impact on that lady. In my opinion, she might have felt some disturbance but there was no physical damage or harm to that lady.
2.    It was unplanned, unintentional and a mistake of that moment. A few minutes before doing the mistake, I did not know what wrong decision I am going to take.
…
7.    Spending some years without repeating this mistake is a proof that I am strongly committed to remain offence free.
Mr Badar said that at the time he was seeking the woman’s friendship but did not know how to go about this. However he said that he realises now that what he did was “totally unacceptable and wrong.”[17]
[16] Exhibit R1 pp.62-63.
[17] Transcript 23/08/2017.
Traffic infringements
Mr Badar said that he did not realise he had to stop when he heard the police siren behind him. He did not increase his speed as the Police followed him and he stopped at the next traffic lights. It was not his intention to try to escape from the Police, but he became “confused and nervous” and did not realise that the Police wanted him to pull over.[18]However at the time he was stopped by the Police Mr Badar knew he was breaking the law by driving without displaying his L plates and driving when unaccompanied by a licensed driver. He denied that this was the reason he failed to stop when he was directed to do so.
[18] Transcript 23/08/2017.
Mr Badar was travelling home from his Mosque when this incident occurred. He said that when he was leaving the Mosque there was no licensed driver available to accompany him. When asked why he did not display his L plates he replied “I do not remember – I took a wrong decision”.[19] He said that it was his practice to remove the L plates from his vehicle when it was parked at the Mosque, but he was unsure whether the plates were in his car when he left the Mosque on this occasion.
Character references
Statements of Ms Asia Shabir, Mr Badar’s wife
[19] Transcript 23/08/2017.
Ms Shabir provided a statement (undated)[20] and a statutory declaration made 23 December 2016.[21]
[20] Exhibit R1 p.238.
[21] Exhibit R1 pp.56-57.
Ms Shabir lived in Pakistan prior to coming to Australia about three years ago. Mr Badar told her of his conviction and the circumstances leading up to it. She believes he is sorry for what he has done. She describes him as honest and hardworking and a dedicated family man.
Statement of Mr Butt
Mr Butt has known Mr Badar for the past four years. He provided a statutory declaration made 18 December 2016.[22]
[22] Exhibit R1 p.58
Mr Butt stated that Mr Badar made him aware of the assault conviction. In the opinion of Mr Butt, Mr Badar is honest and a person of good repute.
Statement of Mr Mohammad
Mr Mohammad, who has known Mr Badar for almost five years, provided a statutory declaration made 10 December 2016.[23] Mr Mohammad came to know Mr Badar through their religious group.
[23] Exhibit R1 p.59.
Mr Badar made Mr Mohammad aware of his assault conviction. Mr Mohammad believes that Mr Badar is honest and hardworking and that he feels guilty and regretful of his offending.
Statement of Mr Ahmed
Mr Ahmed has known Mr Badar since 2013 and has kept in contact with him during that time. He provided a statutory declaration made 17 December 2016.[24]
[24] Exhibit R1 p.60.
Mr Badar made Mr Ahmed aware of his assault conviction. Mr Ahmed believes that Mr Badar is sorry for his offending.
Statement of Mr Khalid
Mr Khalid has known Mr Badar for almost five years. He provided a statutory declaration made 12 December 2016.[25]
[25] Exhibit R1 p.61.
Mr Khalid knew Mr Badar at the time he appeared before the Court and was aware of the charge against him. Mr Khalid believes that Mr Badar will not re-offend.
Weighing the various factors
I must look holistically at Mr Badar’s behaviour over an enduring period of time.
Mr Badar’s conviction for an assault with an act of indecency weighs very heavily against a finding that he is of good character. His conduct towards the victim of the assault is totally unacceptable to the Australian community.
Having listened to Mr Badar give oral evidence I am not satisfied that he fully appreciates the seriousness with which sexual assault is regarded in our community. Despite his expressions of remorse, he remains of the view that although “the name of the offence is assault…it did not have any aggression. So in my opinion there was no significant impact on that lady.” [26]
[26] Exhibit R1 p.63.
When pressed as to his understanding that his contact with the victim was unacceptable Mr Badar became agitated and emphasised his suffering and his “horrible experience” as a result of the incident. He referred to his attending rehabilitation as being “very painful” and “not easy”.
I am unable to accept Mr Badar’s evidence as to the circumstances which caused the Police to issue traffic infringement notices to him in October 2013. When it was put to Mr Badar that he became nervous because he knew he was breaking the law, he replied that “there might be some impact of that”.[27] I am satisfied that Mr Badar deliberately breached the law while driving without displaying L plates and without being accompanied by a licensed driver. Further, I am satisfied that he was trying to conceal the fact that he was a learner driver and for this reason became confused and nervous when he was signalled to stop by the Police.
[27] Transcript 23/08/2017.
I have considered the various references provided in support of Mr Badar’s application. They provide minimal assistance in determining the issue in this matter. Applying what was said by the Federal Court in Irving I must look at Mr Badar’s actions rather than how he is subjectively viewed within the community.

I have taken into account that Mr Badar complied with his bond to be of good behaviour for two years following his conviction and that he undertook the rehabilitation courses required of him. Mr Badar has not been convicted of any criminal offences since January 2013. The bond expired on 28 January 2015, less than three years ago.
I do not consider that any of the factors or explanations relied upon by Mr Badar outweigh his past serious offending behaviour. His criminal and traffic records raise concerns as to Mr Badar’s willingness to obey the laws of this country. I must consider Mr Badar’s enduring moral qualities at the time of this decision. On the evidence before me such qualities have not been demonstrated at this point in time, bearing in mind the seriousness of the offence of which he has been convicted.
My decision does not mean that Mr Badar cannot again apply for citizenship. At some future time he may be able to demonstrate that he is of good character and be able to meet the other requirements of the Act to enable him to enjoy the privileges of Australian citizenship.
CONCLUSION
The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 13 January 2017 to refuse Mr Badar’s application for Australian citizenship will be affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 18 September 2017

Date(s) of hearing: 23 August 2017

Applicant: In person

Solicitors for the Respondent: K Eskerie, Sparke Helmore

[2017] AATA 1509

18 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	23 August 2017
Applicant:	In person
Solicitors for the Respondent:	K Eskerie, Sparke Helmore