BDDJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 4205
•27 October 2021
BDDJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4205 (27 October 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8559
Re:BDDJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:27 October 2021
Place:Sydney
The decision under review is affirmed.
....................................[sgd]....................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of a citizenship application – whether the applicant is of good character – indecent assault – domestic violence issues – whether enough time passed since offences – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) (Act) ss 21, 23A, 24 and 26
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Elias v Commissioner of Taxation [2002] FCA 845
ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) & Anor [2018] VSCA 155
Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Policy Statement
CPI 15 – Assessing Good Character under the Citizenship Act
United Nations High Commission for Refugees, Iran: Information on conversion from Islam to Christianity (14 October 2021): FOR DECISION
Chris Puplick AM, Senior Member
27 October 2021
CONFIDENTIALITY REQUEST
In this matter, BDDJ (the Applicant), at his request, has been given a pseudonym on the basis that he has given sworn testimony to the Tribunal that he is in the process of converting to become member of the Christian (Roman Catholic) faith community. His wife and son are both baptised members of the Catholic community. The Applicant was born in the Islamic Republic of Iran as a member of the Twelver Shi’a Islamic faith and, as such would be regarded, should he ever return to Iran, as an apostate.
“There is no official law against apostasy in Iran, but with the integration of the Revolutionary Courts with the national court system, the religious courts, using the religious writings of Ayatollah Ruhollah Khomeini, have applied the death sentence to cases of apostasy (HRW Sep 1997, p. 15, 29). Human Rights Watch and other sources have reported numerous cases of death sentences handed out for apostasy, but International Christian Concern, on their website, has numerous reports of lesser consequences as well as severe punishment being applied for apostasy, reporting on several instances in the late 1990s when purely economic sanctions were applied against apostates (ICC 18 Sep 2002).”[1]
[1] United Nations High Commission for Refugees, Iran: Information on conversion from Islam to Christianity (14 October 2021):
The Tribunal accepts that were the Applicant to be granted an Australian passport and use that to return to Iran there is a legitimate concern that if his apostacy was known to the Iranian authorities he might be in some danger as far as his physical security is concerned. On this basis, the grant of a pseudonym, which was neither supported nor opposed by the Respondent, is an appropriate response to the Applicant’s request.
THE APPLICANT’S NARRATIVE
The Applicant is a citizen of the Islamic Republic of Iran and was born in 1984. He first arrived in Australia as an irregular maritime arrival in 2020 and in 2011 was granted a Permanent Protection (Subclass 866) visa.
On 22 September 2020 the Applicant made an application for Australian citizenship by conferral, in the process of which he disclosed the existence of a conviction recorded against him for the offence of “indecent assault”. The Applicant was given the opportunity to respond to the Minister’s (the Respondent) concern that this conviction might mean that he would be found not to be a person of “good character” as required under the Australian Citizenship Act 2007 (Cth) (the Act).
The Applicant provided information to the Respondent in response to this invitation and after consideration of that information the Respondent made a decision on 23 December 2020 to refuse the application for citizenship on the grounds that the Applicant was not a person of good character.
On the same day (23 December 2020) the Applicant applied to this Tribunal for a review of that decision. The matter was heard by the Tribunal on 15 October 2021 using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols.
CITIZENSHIP
In a democracy, citizenship is a bedrock issue. What makes a polity democratic is that the citizens have a free choice as to those who govern them and through the electoral process then hold them accountable. Thus, albeit indirectly in Australia’s case,[2] it is the citizens who are ultimately responsible for the enactment of the laws under which the whole community lives and operates. It is only by the consent of the citizenry that the Australian Constitution, our most fundamental law, may be changed.[3]
[2] In the absence of devices such as Citizen Initiated Referenda or Citizen Initiatives which may lead directly to legislative change.
[3] Constitution s 128.
The Constitution of the Commonwealth of Australia itself makes no mention of “citizenship”. Rather, section 51(xix) gives the Commonwealth Parliament power over “naturalization and aliens”.
This is not surprising given that the Founders were operating within the legal framework established by English law characterised as providing that:
“[t]here are citizens in France and the United States of America, but the law and language of England knows of subjects only.”[4]
[4] Sir William Salmond, Citizenship and Allegiance (1902) 18 Law Quarterly Review 49 at 49.
Hence, at the time of Federation there were, in Australia, only British subjects and aliens. In the Constitutional Debates leading to Federation, Sir Edmund Barton[5] said “[c]itizens is an undefined term, and not known to the Constitution.”[6]
[5] First Prime Minister of Australia (1901-1903), foundation member of the High Court (1903-1920).
[6] Official Record of the Debates of the Australasian Federal Convention (Melbourne) 3 March 1898 at 1786.
This approach was reflected in a decision of the High Court in 1906 where the Foundation Bench (Griffith CJ, Barton and O’Connor JJ), all of whom had major roles in writing Australia’s Constitution, said:
We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term "immigration," as used in s 51 of the Constitution, admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean.[7]
[7] Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44.
Indeed, there was no such thing as a distinct Australian nationality or citizenship until the passage of the Nationality and Citizenship Act 1948 (Cth).[8] There were, effectively, no Australian “nationals” living in the Commonwealth from 1901 to 1948, simply “British subjects or nationals” who domiciled here.
[8] Renamed Australian Citizenship Act 1948 (Cth), replaced by Australian Citizenship Act 2007 (Cth).
After 1948 the concept of a genuine Australian citizenship emerged diachronically and after many changes to that law it was replaced in 2007 by the passage of the Australian Citizenship Act.
It is thus clear that citizenship is not something inherent but rather something which is a creation of the legislature, with terms and conditions attached.
It is, as the High Court stated:
by this means that Parliament determines who is to be part of the body politic and who is not to be.[9]
[9] Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 at [14] per Kiefel CJ in dissent.
People who are not citizens of Australia are “aliens”, unless of course they are First Nations people who, constitutionally cannot be aliens.[10] The terms and conditions upon which people who are not citizens are allowed to remain in Australia depends upon their visa status and their right to join the Australian “body politic” as citizens requires that they meet the tests of the Australian Citizenship Act.
[10] Ibid.
The Australian Citizenship Act is unique as a legislative instrument in that it contains a Preamble which is in the following words:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Upholding and obeying the laws of Australia is not merely a rhetorical flourish. It is redolent with meaning and fundamental to the decision-making process for applications to join the body politic.
LEGISLATIVE FRAMEWORK – THE ACT
The Act provides that a person may make an application to the Minister for citizenship by conferral.[11] The Minister must either approve or refuse the application.[12]
[11] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[12] Act s 24(1).
An applicant must meet certain qualifications as specified in the Act[13] and, if they do, they must then undertake and pass the Citizenship Test[14] (unless they are exempted from so doing).[15] Once that is complete, a qualified applicant must make the Pledge of Commitment[16] (unless they are exempted from so doing) before their citizenship is finally granted.
[13] Act, s 21(2).
[14] Act s 23A.
[15] Act ss 21(3)(d), (4)-(8).
[16] Act s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law,[17] none of which is relevant in this present application.
[17] Act ss 24(4)-(6).
In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Each of the criteria must be met by an applicant, and the usual practice of the Department is to consider the criteria in the order in which they appear in the Act.
In this case, the Respondent found that criteria at paragraphs 21(2)(a), (b) and (c) had been met but that criterion 21(2)(g) had not been assessed and criterion 21(2)(h) had not been met.[18]
[18] Tribunal documents (T-documents) at 12-13.
THE CITIZENSHIP POLICY STATEMENT AND THE CPIS
In deciding whether or not an applicant satisfies the criteria in subsection 21(2), a decision maker must have regard to the Act, the Australian Citizenship Policy Statement (Citizenship Policy Statement) and the Citizenship Procedural Instructions (CPIs).
The Citizenship Policy Statement came into effect as of 27 November 2020, replacing the previous Citizenship Policy document.[19] Citizenship Procedural Instruction 15 (CPI 15) deals with the assessment of issues of good character which is the central issue in this matter.
[19] The previous Citizenship Policy was in place at the time of the decision, but the Tribunal must proceed in accordance with the superseding Australian Citizenship Policy Statement and the CPIs.
The Tribunal notes that the Citizenship Policy Statement and CPIs have been published by the government as a guide to decision-makers in the interpretation of, and exercise of powers under, the Act. The role of such policy is as an indicative guide only and the Tribunal is not strictly bound to apply it. Although the Tribunal is not bound to apply it, it is government policy and the Tribunal should consider it if it is consistent with the Act and unless there are cogent reasons not to do so.[20]
[20] Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634at 640.
In addition, the Tribunal, standing as it does in the shoes of the original decision-maker but making a de novo assessment of the evidence,[21] may take into account any other relevant factors, including where appropriate any relevant factors or evidence which have arisen since the original decision was made and may not have been available to the original decision-maker.
[21] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
Further, in 1985, the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[22]
[22] ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366 at 376.
Similarly, in Gbojueh the Federal Court noted:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[23]
[23] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].
In Elias, this principle was expressed as:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.[24]
[24] Elias v Commissioner of Taxation [2002] FCA 845 at [34].
In relation to the former citizenship policies, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[25] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[26]
[25] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement. The current set of Instructions are a different form of advice to decision-makers.
[26] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
More recently this matter was addressed by Besanko J as follows:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case. Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory. The important matter is compliance with the terms of the relevant statute.[27]
[27] MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17] (footnotes and citations omitted).
GOOD CHARACTER
Paragraph 21(2)(h) of the Act requires that a person be “of good character at the time of the Minister’s decision on the application.” As mentioned, the Minister's delegate found that the Applicant was not of good character and this was the sole identified basis for the refusal of his citizenship application.
The term “good character” is, unhelpfully, not defined in the Act and so the Tribunal must rely on the law developed by the Courts and guidance in the Citizenship Policy Statement and the CPIs (particularly CPI 15).
As to the definition of good character, CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs, where the Court stated:
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.[28]
[28] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84 at 94 per Lee J.
The Tribunal has further found that evidence of what a person says, does or what they are heard to say or seen to do should be taken as indication of their acceptance of the values and norms to which they are expected to adhere and be loyal to. As stated by Deputy President Forgie:
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. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another. The ways are not finite.[29]
[29] Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
An elegant encapsulation of what the authorities have identified as the hallmarks of “good character” was given by O’Bryan J in BOY19 as follows:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.[30]
[30] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51]. Citations in original omitted.
In Irving the Court also stated:
The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review…
It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. See Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.[31]
[31] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84 at 424-425 per Davies J.
This indicates clearly that the mere recording of a conviction against an applicant at some time in the past is not necessarily fatal to the assessment of their character. Much will depend upon how the applicant has conducted themselves after that event – what they have said or done.
CPI 15 itself goes on to outline what the characteristics of good character might amount to. These are set out, at some length, as expecting that applicants would (inter alia):
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police.
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
In relation to assessing the character of an applicant with a criminal record, CPI 15 provides further guidance, explaining that relevant considerations include:
·whether the offences were disclosed;
·whether the offending was serious, with “drug trafficking (including importation and supply)” listed as an example of a serious offence;
·whether the offending was a one-off or there is a pattern of criminal behaviour, with a pattern of behaviour, even a pattern of repeated minor offences over an extended period, showing a disregard for the law, which may support a finding that the applicant is not of good character; and
·whether the offending was pre-meditated, with pre-meditated offences to be given more weight in the assessment of character.
CPI 15 elaborates, by attaching to the phrase “enduring moral qualities”, further qualifications, namely:
·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.
THE BASIS FOR THE NOT OF “GOOD CHARACTER” FINDING
The Respondent asserts that the Applicant is not of good character on two bases, namely
·his conviction for the offence of “indecent assault”, and
·conduct relating to alleged acts of violence against his wife.[32]
[32] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [13]-[22].
The Indecent assault conviction
On 29 March 2017 the Applicant appeared before the Local Court where he was convicted of the offence of “assault with act of indecency”.[33] He was sentenced to a term of imprisonment of 12 months suspended as from 29 March 2017 with an order that he be released into the community subject to entering into a good behaviour bond for that 12 month period.[34]
[33] Supplementary T-documents at 53.
[34] Ibid.
The Applicant sought to appeal both the conviction and the severity of the sentence and on 5 December 2017 North J in the District Court upheld the conviction but reduced the sentence (otherwise upon the same conditions) to a period of 10 months.[35]
[35] Ibid at 63.
The Tribunal is aware that any convictions themselves cannot be challenged or called into question by it, nor can the Tribunal go behind the convictions and re-examine matters de novo.[36]
[36] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 per Sheppard J at 596; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649.
In Daniele, the Federal Court outlined the limits of the Tribunal’s powers in this regard:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine...[37]
[37]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653 per Fisher and Lockhart JJ.
These “wider” and “different” matters for determination require specifically, that the Tribunal’s task includes making assessments in relation to the good character requirements as set out in the Act and further guidance to these requirements as set out in CPI 15.
The Victorian Court of Appeal in LLF explained the limits of the Tribunal’s jurisdiction in this regard:
...The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[38]
[38] Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) & Anor [2018] VSCA 155 at [42]. Citations omitted and emphasis added.
This statement was expressly approved by Murphy J in Singh[39] and by Bromberg J in HZCP when the latter said:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.[40]
[39] Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556 at [35].
[40] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
Consistently, the Applicant has denied that he is guilty of this offence and that he was wrongfully convicted. The Respondent notes:
“The applicant has continued to deny this indecent assault offence, despite having been found guilty. The Psychologist Services Progress notes from Corrective Services NSW cited “categorical denial of the sexual offence matter”. In his response to the Department’s procedural fairness letter, the applicant claimed he “could not have committed the offence” and that “all this does not constitute a serious criminal offence”. Further, the applicant now appears to be claiming that he has an alibi. The applicant has plainly failed to accept any responsibility for this serious offence, let alone demonstrate any remorse, which is inconsistent with the enduring moral qualities of a person of good character.”[41]
[41] Respondent’s SFIC at [16]. Citations omitted.
Before the Tribunal the Applicant continued to deny his guilt in this matter and to assert that his “alibi” should have been accepted as proof that he was not guilty. The record before the Tribunal indicates that the Applicant was legally represented before the Court, the matter of the “alibi” was considered exhaustively by the Presiding Magistrate and the Applicant was found guilty of the offence.[42] On appeal, that conviction was upheld.
[42] Supplementary T-documents at 119-141.
No further details are of relevance to this Tribunal.
The Tribunal accepts the fundamental premise advanced by the Respondent that the failure of the Applicant to acknowledge the finding of the original Court (and the Court on appeal) and to accept responsibility for his behaviour is itself sufficient grounds for concluding that he is not a person of good character.
Alleged violence against Applicant’s wife
It should be noted, ab initio[43], that the Applicant himself describes his relationship with his wife as being “toxic”. He writes in a Statutory Declaration:
“I could walk away from my marriage and get divorce and end this toxic relationship and marriage, however I always think about [my son] and I cannot let him suffer because of our mistakes. I have a responsibility for my son and I love my wife and I know all of this happens because of her postnatal depression. She always cries and asks me for forgiveness and give her another chance.[44]
[43] From the beginning.
[44] Applicant’s Statutory Declaration, undated, accepted as being 21 August 2021.
A report submitted by Hamid Attai (a psychologist with Mindstrong Psychology and Counselling) states, inter alia:
“In 2014 [the Applicant] made an impulsive decision to get married because he was experiencing severe loneliness. His parents and peers disapproved of his reasons to get married and of his choice of his partner… [The Applicant’s] marriage has been an unhappy one. From the beginning of our sessions [the Applicant] complained of his relationship with his wife including always arguing and fighting and her unusual behaviours eg having accused him previously of domestic violence which was found to be untrue, disliking of their 2 year old son….”[45]
[45] Report of Mr Hamid Attai (6 February 2018) at 2.
The Respondent has put to the Tribunal that a series of reports from the NSW Police are indicative of a pattern of repeated acts of domestic violence perpetrated by the Applicant against his wife. The Respondent particularises three sets of events outlined in Police reports dated:
·9 August 2014;
·9 April 2016; and
·19 September 2019.
In relation to the alleged incidents in the April 2016 records, the Applicant appeared before the Local Court on 18 July 2016 where he was charged with six offences. In relation to five of these, they were dismissed as “not guilty after hearing” and in relation to the sixth the Court found “no prima facie case”.[46]
[46] Supplementary T-documents at 4.
Applying exactly the same principles as discussed in relation to the Applicant’s conviction, the Tribunal will not “go behind” these findings of not guilty and it notes that, in concluding submissions from the Respondent, the Respondent itself did not seek to press them further against the Applicant. They are of no continuing relevance or consideration in this matter.
The Police record of 9 August 2014 states:
“The accused become verbally angry at the victim as she did not make the lunch, the accused walked up to the victim whilst in the kitchen. The accused said to the victim words to the effect of ‘ I hate you, I hate the baby I don't want you or the baby alive.’ At this point, the accused whilst standing in front of the victim. The accused raised his right hand and punched the victim towards the stomach of the victim making contact. The victim felt pain as the accused punched her in the stomach. The accused walked towards the room and slammed the bedroom door, whilst still yelling. The victim was still in pain about 10 minutes after the punch. The victim continued to finish making lunch for the accused. The accused walked out of the bedroom and ate his lunch. About 4:00 pm the accused left the unit to go to work. The victim contacted her friend about the punch, the friend is a General Practice Doctor and checked out the injury. The friend advised the victim to attend a hospital on Monday to seek specialist advice re the health of her unborn child. . About 6:00 pm the accused, started to message the victim on his mobile. The messages were about the current living arrangements and the accused making threats of contacting immigration about the victim. Later on, the victim received a message from the accused via Facebook. The message that the victim received was in Farsi, which translated to ‘I dont want the baby to be alive.’ The victim became fearful of the accused and has contacted Police. Police attended a short time later and spoke to the victim. Police obtained a statement from the victim about the incident. Police observed red marks in the stomach area where the accused had punched the victim, the victim did not give consent for Police to take a photograph of the injury. The victim states she is fearful of the accused and that she is worried that the accused may further assault her and injure their unborn child. Police however hold genuine fears for the victim and her unborn child as the accused has made a deliberate and direct threat to the health of the unborn child by assaulting the victim and sending her a message via facebook. . Police left the scene and applied for an Apprehended Violence Order.”[47]
[47] Supplementary Tribunal documents at 39-40.
The Police record of 19 September 2019 states:
“About 6:30pm on Wednesday the 18th of September 2019, the accused attended …..in Auburn where he began to have a verbal altercation with the victim over their finances and disputes as to where funds from their joint bank account had gone. Whilst having this altercation, the accused briefly left the residence to attend his usual place of residence to tend to repair work being conducted. Some time later, the accused returned back where the verbal altercation with the victim resumed. The verbal altercation began to become heated with the accused shouting and swearing at the victim. During this altercation, the accused began walking towards the victim, forcing her into a corner of the room. The victim held out her phone in front of her, ready to contact police in case the accused decided to assault her. The accused has then allegedly pushed the victim in the chest and whilst saying words to the effect of ‘If you come to the […] house, I will hit you with a knife’. . The victim informed the accused that she was contacting police. Upon hearing that police were being called, the accused left the residence with no further incidence. . Police attended the scene and spoke to the victim who appeared distressed. The victim provided police with a domestic violence evidence in chief where she informed police of the above information. …….. The accused participated in an electronically recorded interview him. Police questioned the accused in relation to the common assault and intimidation. The accused denied all allegations. . Police have applied for an Apprehended Domestic Violence Order to protect the victim from further incidents of domestic violence.”[48]
[48] Ibid at 24.
In relation to each of these reports, the Applicant maintains:
(a)they did not occur or at very least did not occur in any manner akin to the description in the Police record;
(b)the Police are guilty of falsifying reports without evidence to substantiate their claims;
(c)the Police have no physical records of any of the alleged incidents;
(d)his wife has a habit of making false accusations against him and then not appearing in court or being prepared to give evidence against him when matters are taken to court and that this is as a result of her post-natal depression;
(e)he has never been convicted of any offences arising from the alleged incidents.
It is indeed the case that the Applicant has not been convicted of any domestic violence or other offences against his wife. However, the Police have recorded their observations (for example, “red marks” in the August 2014 matter) and on the basis of the reports by the Applicant’s wife and their own determinations have issued two separate AVOs.[49]
[49] There are two AVOs, expiring 5 August 2021 and 6 July 2022 respectively. The Tribunal notes that the former indicates the Applicant as the Person of Interest whereas he is recorded as “AV Victim” in the latter. Supplementary T-documents at 14-15.
The Applicant’s wife submitted a document to the Tribunal immediately prior to its hearing purporting to be a Statutory Declaration. The Tribunal took it into evidence although it noted that the document is not a Statutory Declaration (being unwitnessed and improperly dated). It states, inter alia:
Our relationship has been up and down and there were some instances that unfraternally [sic] I called Police without realising that I could manage the situation by talking to each other and try to solve the conflict differently.[50]
[50] Document from the Applicant’s wife dated 14 October 2022.
The document goes on to commend the Applicant for his strength of character, his positive role model for his son and states that his conviction "is hard for me to believe” because it “it is way out of character” for the Applicant.
The Respondent put to the Applicant a series of propositions to the effect that this document was written by him rather than by his wife and that his wife’s failure to attend any of the relevant Court hearings was as a result of some degree of threat made to, or coercive control exercised over her by the Applicant. The Applicant refuted such contentions strongly however the Tribunal was unpersuaded by those refutations.
In the case of Taulahi a Full Bench of the Federal Court was invited to consider a decision made by the (then) Minister for Immigration and Border Protection that an applicant whose visa had been cancelled because the Minister suspected him of being involved with an outlaw motor cycle gang had grounds for that decision to be set aside on the basis that the Minister had based his decision on reports from the Australian Criminal Intelligence Commission although no charges or convictions had ever been recorded against the applicant. The Court found that the decision in question engaged the Minister:
“in an administrative process. He was not determining guilt or innocence and was not otherwise involved in the criminal justice process.
[I]t was open to the Minister to conclude that the events set out in the ACIC’s report had occurred even where there were no criminal charges or criminal convictions. Put differently, there was material before the Minister on which he could base the conclusions that he reached…”[51]
[51] Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22 at [29] and [31] per Robertson J, North and Besanko JJ agreeing.
The Tribunal notes the submission made by the Respondent to the effect that
“The applicant’s good behaviour bond commenced on 16 February 2018 and ceased on 15 December 2018. Since 15 December 2018, the applicant has been:
a. the person of interest in respect of two incidents leading to apprehended violence orders;
b. the person of interest in two incidents of breach of apprehended violence orders; and
c. the person named in two domestic violence episodes with a child/young person at risk. ”[52]
[52] Respondent’s SFIC at [19]. Citations omitted.
Those facts are matters or record whatever the Applicant may say about them, and the Tribunal has not been persuaded by any evidence before it that some miscarriage of justice was involved in any way in relation to any of them.
The Applicant has provided a number of references made in Statutory Declarations by friends, workmates and colleagues working in the community services sector which attest to his good character and contributions to the community. Few of them confronts fully the fact of the Applicant’s conviction, referring to “the allegation and the court decision” which is called into question,[53] or that he “can [not] commit any crime,”[54] or that such an event would have been “way out of his character”.[55]
[53] Statutory Declaration of Majid Rastegar, T-documents at 79.
[54] Statutory Declaration of Ari Zaharopoulos, T-documents at 81.
[55] Statutory Declaration if Matt Grrenhalgh, T-documents at 83.
The reference from Hayla Smith states that the Applicant “was very remorseful for whatever happened to that lady.”[56] There is a reference to a degree of “remorse” in the submission from the Applicant’s legal advisors who note that Judge North “accepted the following facts” including “there was now a degree of remorse shown”.[57]
[56] T-documents at 82.
[57] Sydney Criminal Lawyers letter to Applicant regarding the severity appeal dated 16 February 2018.
When questioned by the Respondent, the Applicant made it clear that it was not a matter that he was remorseful for anything which he had done (denying that he had done anything) but rather that he was remorseful for anything that had or might have happened to the victim.
The Tribunal places little reliance upon any of the letters of support submitted by the Applicant.
It does however acknowledge that the Applicant has contributed to the work of a youth association,[58] and has an award for “team performance” and certificate of support from his employer.[59] He has also sought to make contribution to the work of the NSW Rural Fire Service as a volunteer.[60] The Tribunal also appreciates that the Applicant’s conviction has led to his loss of his Authority to Work with Children and that this has prevented him from more active involvement with the Youth Association in recent years.
[58] T-documents at 85.
[59] T-documents at 86; Supplementary T-documents at 244.
[60] Supplementary T-documents at 245-248.
DISCUSSION AND CONCLUSIONS
Good character is about enduring moral qualities, those traits and expressions of character which persist over time and which at any particular moment define an individual as, among other things, honest, forthright, truthful and responsible.
The Tribunal cannot find that the Applicant meets such tests. He refuses to accept either the truth of, or responsibility for, his criminal offence. He denies that he has ever committed acts of domestic violence against his wife despite substantial weight of evidence to the contrary. He assumes no personal responsibility for any difficulties arising with his wife, seeking to place all of them upon her shoulders, characterising her as untruthful and (in effect) mentally unstable (due to post-natal depression). He goes so far as to state that “there has never been any aggression to my wife”. This is plainly untrue.
In Mendoza I said:
The Australian community, rightly, professes zero tolerance for violence against women. There 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 manifest physically, emotionally or psychologically.[61]
[61] Mendoza and Minister for Immigration & Border Protection[2018] AATA 686 at [48].
Similarly, in Kakos my Tribunal colleague Dr L Bygrave said:
Violence is not acceptable in the Australian community. While the threat of violence in a domestic relationship may not manifest in physical harm, it is likely to cause fear that can pervade a person’s life. Every incidence of domestic violence – whether physical, sexual, financial and/or emotional – diminishes the Australian community and is not consistent with the privilege of Australian citizenship.[62]
[62] Kakos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 571 at [42].
People who commit acts of domestic or family violence – at whatever level – are not people of good character.
The Tribunal appreciates that the Applicant has a genuine concern that, without an Australian passport he would be inhibited from visiting members of his family in Iran (or elsewhere) and that with no valid visa and with the expiration of his Protection Visa[63] he feels, in his own words, “locked in a cage”.
[63] This claim was made by the Applicant however his current visa status does not appear to be in evidence before the Tribunal.
However, the key to unlocking that cage is in the hands of the Applicant himself. He can make further applications for citizenship by conferral[64] at a time when he is more able to demonstrate the enduring moral qualities which constitute good character, when he has come to terms with the objective facts of his conviction, when no suggestions of domestic violence arise and where sufficient time has passed to demonstrate, by his behaviour, that he is indeed a person of good character.
[64] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The decision under review is affirmed.
I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.......................................[sgd].................................
Associate
Dated: 27 October 2021
Date(s) of hearing: 15 October 2021 Applicant: In person Solicitors for the Respondent: Mr C Burke, Sparke Helmore
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