Bayunus and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 507

Bayunus and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 507 (20 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5085
Re	Fawad Bayunus
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

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

The Tribunal affirms the decision under review.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – whether applicant of good character – where applicant’s conviction was not recorded under s 10 – where applicant failed to declare his offences – where failure to declare was in good faith – where applicant had a number of traffic offences – where applicant was subject to a recent AVO – decision affirmed

LEGISLATION

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

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

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) 2 ALD 634; [1979] AATA 179
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608

SECONDARY MATERIALS

Citizenship Policy, Chapter 10

REASONS FOR DECISION

Dr L Bygrave, Member

20 July 2016

INTRODUCTION

1. Mr Bayunus was born in Pakistan and first arrived in Australia on 9 July 2003 as a holder of a TU574 subclass visa. He currently holds a subclass VE175 (permanent) visa granted on 31 January 2011.

2. Mr Bayunus applied for Australian Citizenship on 14 May 2015 (Citizenship application) under section 21 of the Australian Citizenship Act 2007 (Cth) (Act).

3. The application was refused by a delegate of the Minister for Immigration and Border Protection on 13 August 2015 because they were not satisfied that Mr Bayunus was of ‘good character’ at the time.

4. On 30 September 2015, Mr Bayunus applied to the Tribunal for review of that decision.

5. The matter was heard in Sydney on 24 June 2016. At the hearing, Mr Bayunus was unrepresented and was accompanied by his wife.

   RELEVANT LEGISLATION AND ISSUES

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

   Definition of ‘good character’

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

8. 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) 2 ALD 634; [1979] AATA 179.

9. I am considering this matter afresh (de novo) and although the ACIs was the relevant policy guidance 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 are similar on the aspects relevant to this matter.

10. 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…

11. 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.

12. 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.

13. 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.

14. 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, not conceal convictions that could lead to the cancellation or refusal of a visa or citizenship, not be violent and not cause harm to others through their conduct.

15. That then leaves the question of 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.

16. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way Mr Bayunus did, the amount of time that has elapsed since offending, whether Mr Bayunus 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

17. On 17 March 2015, Police attended Mr Bayunus’ house in response to a call from his wife who alleged that following a verbal argument, Mr Bayunus grabbed her and pushed her twice onto a sofa. This occurred when their two children were in the house.

18. On 28 April 2015, Mr Bayunus attended Campbelltown Local Court to answer a charge of ‘common assault (DV) – T2’. Mr Bayunus pleaded guilty to the charge. He was found guilty of the offence, but without proceeding to conviction, the Court dismissed the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court issued an Apprehended Violence Order (AVO), which remained in force until 27 April 2016. The conditions of the AVO were, in essence, that Mr Bayunus must not assault, threaten, intimidate or stalk his wife.

19. Police also attended Mr Bayunus’ house on 22 July 2012, 28 September 2013 and 15 March 2015 in response to domestic incidents involving Mr Bayunus and his wife, although no charges were laid in relation to these incidents.

20. At the Tribunal hearing, Mr Bayunus broadly agreed with the details of the charge resulting from the incident on 17 March 2015 as set out in NSW Police documents. He also acknowledged that Police had been called to domestic incidents at his home on three previous occasions. Mr Bayunus expressed regret for his actions. He said that he and his wife are addressing issues between them by seeking assistance from a psychologist, their family doctor and a senior member of the community. He is learning to manage his anger and communicate appropriately with his wife.

21. Mr Bayunus’ wife also gave sworn evidence that Mr Bayunus’ behaviour had improved and said she did not believe that Mr Bayunus would assault her again.

22. Mr Bayunus’ driving history records the following traffic offences:

Date	Offence	Penalty
16 September 2012	Disobey right/left hand turn at intersection	$232 fine and two demerit points
11 November 2012	Exceed speed limit by not more than 10 km/h	$105 fine and one demerit point
29 July 2014	Class A motor vehicle exceed speed by more than 10 km/h but not more than 20km/h in school zone	$327 fine and four demerit points
26 November 2015	Class A motor vehicle exceed speed by more than 10 km/h but not more than 20km/h in school zone	$335 fine and four demerit points

1. While these offences are not considered to be serious under the Citizenship Policy, I note that the two offences in 2014 and 2015 occurred in a school zone. I also note that on 6 January 2016, Mr Bayunus received a demerits points courtesy letter for these offences. While my decision does not turn on this material, this letter was sent less than six months before that date of this hearing and shows Mr Bayunus has some disregard for Australia’s traffic laws.

   Failure to disclose offences

2. The Respondent contends that Mr Bayunus failed to disclose his offences in the section headed ‘Part F – Good character and criminal offences’ of the Citizenship application.

3. Mr Bayunus’ answer at question 35(a) in the Citizenship application was as follows:

   Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia? 
   No

4. In a statutory declaration dated and signed on 1 July 2015, Mr Bayunus stated that he ‘was informed by the lawyer that this incident will not be listed in my records, hence, the reason for not disclosing this in my application’.

5. At the Tribunal hearing, Mr Bayunus said that he had been informed by an officer at the Campbelltown Local Court on 28 April 2016 that no criminal charges had been made against him and consequently, he did not realise that he was required to disclose the charge of common assault in his Citizenship application.

6. Based on the evidence before me, I am satisfied that while Mr Bayunus failed to disclose this offence in his Citizenship application, it was not a deliberate attempt to mislead the respondent.

   Character references

7. 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.

8. 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.

9. Mr Bayunus produced character references from his family doctor, Dr Soliman dated 30 June 2015, 30 September 2015 and 16 January 2016. Mr Bayunus, his wife and children have consulted Dr Soliman for more than four years. Dr Soliman acknowledged the problems between Mr Bayunus and his wife and advised them to seek marriage counselling. He attested to Mr Bayunus being a ‘good respected responsible person’ and his family presenting well. Mr Bayunus also provided a reference from Alba Felet (psychologist) dated 21 May 2016, which noted Mr Bayunus’ significant psychological improvement between December 2015 and April 2016.  

10. Mohammad Iqbal Davejani, a family friend for five years, provided a reference dated 6 June 2016. He noted that Mr Bayunus is ‘ambitious, hardworking, intelligent, trustworthy and a respectable individual in the community’. He is also a ‘responsible father and loving husband’.

11. In a reference dated 30 March 2015 and at the Tribunal hearing, Mr Bayunus’ wife said that his behaviour had improved significantly in the past six months and they are both actively working on their marriage together.

12. The characteristics described in these references demonstrate qualities of someone with ‘good character’. However, I am not satisfied that these references acknowledge the seriousness of Mr Bayunus’ offence and so find that they do not outweigh the evidence of behaviour demonstrated by Mr Bayunus.

    CONSIDERATION

13. Mr Bayunus was charged with the serious offence of common assault on 28 April 2015. Police were also called to separate domestic incidents involving Mr Bayunus and his wife in 2012, 2013 and 2015, although no charges were laid in relation to these incidents.

14. These offences are not consistent with the good character requirement in the Citizenship Policy for an applicant to not be violent and not cause harm to others. I also rely on the Tribunal’s decision in Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608, in which Deputy President Constance said 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’.

15. Mr Bayunus has accepted responsibility and expressed regret for his actions. His wife has given evidence that she does not believe that he will reoffend and that he is a good father and husband. He has provided character references which state that he is hardworking, intelligent, trustworthy and respectable. However, the serious nature of the offence does not allow me to consider that he is of good character at this time.

16. I also am not satisfied that Mr Bayunus has displayed an adequate period of compliance with Australian law. An AVO against Mr Bayunus remained in force until 27 April 2016, which is less than two months from the date of this hearing.

    CONCLUSION

17. In considering all of the relevant circumstances and weighing the available evidence, I am unable to make a positive finding of good character for Mr Bayunus as required by s 21(2)(h) of the Act. For this reason, he does not satisfy s 21(2)(h) of the Act. 

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

    DECISION

19. For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 41 (forty- one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member 

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Associate

Dated 20 July 2016

Date(s) of hearing	24 June 2016
Applicant	In person
Solicitors for the Respondent	Sparke Helmore