Bilash and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2023] AATA 1102
•3 April 2023
Bilash and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 1102 (3 April 2023)
Division: GENERAL DIVISION
File Number(s): 2022/4262
Re:Artur BILASH
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member G Lazanas
Date:3 April 2023
Place:Sydney
The decision under review is affirmed.
............................. [SGD]...........................................
Senior Member G Lazanas
CATCHWORDS
CITIZENSHIP – whether applicant is of good character – history of offences including domestic violence and damaging property – failure to disclose all criminal offences in citizenship application - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27
VCBP and Minister for Home Affairs [2019] AATA 337
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Policy Statement, reissued on 27 November 2020.
Citizenship Policy: CPI 15 – Assessing Good Character under the Citizenship Act, reissued 26 February 2021.
REASONS FOR DECISION
Senior Member G Lazanas
3 April 2023
INTRODUCTION
Mr Artur Bilash, the Applicant, has applied to the Tribunal for review of a decision of a delegate of the Respondent made on 2 May 2022 to refuse his application for Australian citizenship pursuant to the Australian Citizenship Act 2007 (Cth) (the Act). The delegate was not satisfied that Mr Bilash was of good character at the time of the decision and, accordingly, not eligible for citizenship.
As these reasons will explain, I have decided to affirm the delegate’s decision as I was not satisfied that Mr Bilash is of good character for the purposes of the Act.
BACKGROUND FACTS
Mr Bilash first arrived in Australia from Ukraine in late 2000 aged 9 years old with his parents and sister on a Temporary Work (Skilled) (Subclass TU-457) visa. Mr Bilash and his family lived in Australia for approximately 4 years, however, they had to move back to Ukraine where they stayed for approximately 5 years. Subsequently, Mr Bilash and his family obtained another visa and returned to Australia and, in April 2014, Mr Bilash was granted a Skilled – Independent (Subclass VE-175) permanent visa as a dependant on an application. This visa is still in effect.
On 9 September 2020, Mr Bilash, aged 29 at the time, lodged an application for Australian Citizenship by Conferral (the Citizenship Application).
As stated above, on 2 May 2022, Mr Bilash’s Citizenship Application was refused under
s 21(2)(h) of the Act (the Reviewable Decision).
On 27 May 2022, Mr Bilash lodged an application with the Tribunal for review of the Reviewable Decision.
THE ISSUE BEFORE THE TRIBUNAL
The parties agreed that the sole issue for determination is whether the Tribunal can be satisfied that Mr Bilash is of good character for the purposes of s 21(2)(h) of the Act.
RELEVANT LAW AND PRINCIPLES
The relevant law and principles regarding Australian citizenship applications are straightforward. If a person makes an application for Australian citizenship by conferral under s 21(1), the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen: s 24(1) of the Act.
Significantly, the Minister must be satisfied of a number of matters set out in s 21(2) of the Act for a person to be eligible to become an Australian citizen, including that the person is of good character at the time of the Minister's decision on the application:
s 21(2)(h) of the Act.
The Department has issued policy documents which contain relevant policy guidance on the question of good character for the purposes of the Act referred to as the ‘Citizenship Policy’, and the ‘Citizenship Procedural Instructions’ (the CPIs). On 27 November 2020, the Citizenship Policy was revoked and replaced by the ‘Policy Statement’ (the Policy Statement), which broadly provides context for the CPIs. As discussed further below, ‘Citizenship Policy: CPI 15 – Assessing Good Character under the Citizenship Act’ (CPI 15) is relevant in the present case.
It is acknowledged that in making its decision on review, the Tribunal should have regard to the law and policy at the time it makes its decision and is not constrained to consider only the material before the original decision-maker: see VCBP and Minister for Home Affairs [2019] AATA 337 and Jagroop and Minister for Immigration and Border Protection [2015] AATA 751.
Further, in assessing Mr Bilash's character for the purposes of Australian citizenship, the Tribunal must be positively persuaded that Mr Bilash is of good character: see Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815 (at [18]).
CPI 15, in discussing the meaning of the term ‘good character’, relevantly states:
3.3 What is good character?
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment 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 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 while 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. (Bolding is emphasis added).
The phrase ‘enduring moral qualities’ is, in turn, discussed in CP1 15, as encompassing the following concepts:
· 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 good character requirement necessitates consideration of a person viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character. Moreover, a decision-maker can be satisfied that an applicant is of good character if he/she has demonstrated good enduring and lasting moral qualities that are evident before their visa application and throughout the time they held a visa, as well as during the period their application for citizenship was being considered. CPI 15 also requires decision makers to consider of a number of mitigating factors that may demonstrate that an applicant is, notwithstanding, of good character.
The importance of a person’s good character in the consideration of whether to grant Australian citizenship has been canvassed in numerous cases. For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], DP Breen relevantly stated that “[t]he 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 simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State.”
In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act itself could aid in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character. The Preamble relevantly states:
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:
·…
·by upholding and obeying the laws of Australia.
THE EVIDENCE
Mr Bilash provided a written statement and gave oral evidence and was cross-examined. Additionally, he relied on written statements and oral evidence of work colleagues, amongst others, to which I will come shortly.
Citizenship Application
In the Citizenship Application form completed by Mr Bilash, the following question and answer were stated under the heading ‘Character declarations’:
Question:
Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any spent convictions)?
Mr Bilash’s Answer:
Yes. Traffic offence – driving with a suspended licence.
Further, as part of the Citizenship Application, Mr Bilash was required to agree to a declaration which relevantly stated (among other matters):
Warning: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application Please read the following carefully before lodging.
…
The information they have supplied in this form is complete, truthful and correct in every detail.
Mr Bilash relevantly agreed to the declaration that the information he supplied in the form is complete, truthful and correct in every detail when in fact it wasn’t. Mr Bilash failed to disclose two of his other driving /traffic offences from 2011 and 2018 when he completed his Citizenship Application. At the hearing, Mr Bilash explained that it was a “human error” that he did not reveal all the traffic offences as he said he completed the application online and over a period. I do not accept that Mr Bilash made honest mistakes when he omitted to reveal all the driving/ traffic offences in his Citizenship Application.
Mr Bilash was also required to notify the Department if there were any changes to any information relating to his Citizenship Application, as per correspondence sent to him by the Department on 9 September 2020. However, Mr Bilash failed to notify the Department of the later convictions (set out further below), while his Citizenship Application was under consideration. His explanation at the hearing that he had forgotten to do so and, separately, his other explanation that he didn’t know he had to inform the Department (as per his Closing Submissions dated 31 March 2023, [10]) are, in my view, disingenuous.
Relationship with Ex-girlfriend and Domestic Violence Offences
Mr Bilash informed the Tribunal that he met Ms B (a pseudonym for Mr Bilash’s ex-girlfriend) while on a holiday in Ukraine. Relevantly, Ms B is the victim of the domestic violence offences with which Mr Bilash was charged in November 2020.
Ms B relocated to Australia to be with Mr Bilash in or around 2017 and they lived together at the relevant time. Mr Bilash and Ms B were in a relationship for approximately 7 years until the relationship ended sometime in or about November 2022 when Ms B moved out.
Mr Bilash stated that his relationship with Ms B began to break down in late 2020 during the COVID period. He explained that he was stressed because he did not have any work at that time which, in turn, led to arguments over money. Mr Bilash was also consuming more alcohol than usual during this period.
In November 2020, Mr Bilash was charged with common assault and intentionally or recklessly damaging property against Ms B, as detailed below. He stated that he was ashamed of his offending and found it difficult to talk about it including with his family. He stated that “[t]he incident was my fault”; “I didn’t take a Lawyer and pleaded guilty. I didn’t want to waste court time. I was completely at fault.” I accept that Mr Bilash took responsibility for the domestic violence incident.
The details of Mr Bilash's offences in respect of which he was convicted are as follows:
(a)On 13 January 2011, he was convicted by Liverpool Local Court for two offences including “Drive on road etc while licence suspended” and “Disobey no entry sign – motor vehicle.” Mr Bilash was fined $200 and disqualified from driving for 12 months for the first offence and fined $50 for the second offence.
(b)On 28 June 2018, Mr Bilash was convicted by Newtown Local Court for “Drive with low range PCA – 1st off” and sentenced to a s 10 Bond for 6 months.
(c)On 14 January 2021, Mr Bilash was convicted by Burwood Local Court for two offences including “Common assault (DV) – T2” and “Destroy or damage property (DV)”. Mr Bilash was sentenced to a Conditional Release Order (CRO) without conviction for 12 months for the latter offences. The Court also issued an Apprehended Domestic Violence Order (ADVO) against Mr Bilash, the subject of which is Ms B for a period of two years until 13 January 2023.
In relation to the common assault domestic violence matter referred to immediately above, the NSW Police Force Fact Sheet for the offending relevantly provides:
·Mr Bilash and the victim (Ms B) were in a romantic relationship for 7 years and residing together in a one bedroom unit;
·Ms B approached Mr Bilash and told him that she intended to move out with a guy who she had met;
·Mr Bilash became upset and “threw his dinner onto the door, including plates, bowls and his drink”;
·Ms B then retreated to the bedroom and shut the door and Mr Bilash then “used a closed fist to punch a hole into the bedroom door”;
·Mr Bilash proceeded to enter the bedroom and pick up a mirror, which he held above his head, “threatening to hit the victim, putting the victim in fear to being immediately assaulted”;
·Mr Bilash “grabbed the Victim in a bear hug” and “held onto the victim until they both calmed down”; and
·Police attended and Mr Bilash was arrested and made certain admissions, including punching a hole in the door.
There were also other prior domestic incidents involving Mr Bilash. NSW Police reports indicate that on 8 April 2017, Mr Bilash verbally abused Ms B by “calling her a slut and accusing her of cheating.” There was another incident on 30 September 2017 in respect of which NSW Police reports refer to “[b]oth parties have provided conflicting versions about their scuffle however due to the POI’s actions police believe she is the aggressor in this incident” and an ADVO was subsequently taken out to protect Mr Bilash.
Mr Bilash stated that he was willing to improve himself to become a better person and he had sought the help of a psychologist, however, he conceded he had only seen the psychologist on one occasion. Mr Bilash also stated that one of the steps he had taken is to reduce his alcohol use by drinking only on social or special occasions or once a month. Mr Bilash further stated that he is currently employed on a full-time basis in the construction industry and is a conscientious worker with a strong work ethic. He also resumed living with his parents.
Character References
Mr Bilash relied on a number of written references in support of his position that he is of good fame and character. I set out below the details of those references where the referees also gave oral evidence and were cross-examined at the hearing.
Mr Pat Ockwell stated he worked with Mr Bilash in the past and found him to be “an honest, genuine and reliable person”, especially as regards the work jobs that Mr Bilash was responsible for. Mr Ockwell accepted under cross-examination that while he knew Mr Bilash had a criminal record, he was not aware of the specific details.
Mr David Scurr stated he had worked with Mr Bilash for approximately 3 years but, nowadays, did not see him as frequently. Mr Scurr stated he had “nothing but praise” for Mr Bilash, namely, he was “a great worker and a great person”. Mr Scurr was aware of an incident and argument between Mr Bilash and his partner but that thought it was blown out of proportion, namely, it was just an argument involving a hole in the door. He was unaware of threats made by Mr Bilash against his ex-girlfriend and he was also unaware of any other offences.
Mr Pavlo Pyovar, a third cousin of Mr Bilash, who had known him his whole life and who had also briefly resided with Mr Bilash and Ms B in Sydney in about February 2020, referred to Mr Bilash as “going through serious issues in his relationship with his girlfriend which resulted in a criminal record for [Mr Bilash]”. Mr Pyovar knew that the issues involved a domestic violence offence but he was unaware of the precise details as Mr Bilash had found it difficult to share that information. Mr Pyovar stated that Mr Bilash is not drinking anymore and was playing more sport and looking after himself.
I do not consider the character references referred to above to carry significant weight in the present case, primarily because they are the subjective views of Mr Bilash’s work colleagues and a family member and also canvass his reputation and standing generally. As stated above, Mr Bilash’s work colleagues gave glowing references as to Mr Bilash’s strong work ethic and honesty in the workplace, but they were unaware of his private domestic life and the specific details of Mr Bilash’s offences. Moreover, to the extent some of the referees knew some information about the domestic violence offences, the seriousness of Mr Bilash’s conduct was misunderstood and portrayed as involving “an argument”.
IS MR BILASH OF GOOD CHARACTER FOR THE PURPOSES OF THE ACT?
Mr Bilash submitted that he is of good character. He submitted that the offences with which he was charged, in particular, the domestic violence offences, although serious, happened more than two years ago and he had not committed any further offences. Mr Bilash noted that he had pleaded guilty and not wasted any court time and resources. He also stated that his guilty plea demonstrated acceptance of his responsibility for his serious offending.
Mr Bilash further submitted that he had adhered to the CRO imposed as part of his conviction for the domestic violence offences and that he had also complied with the ADVO which was for the period of two years ending 13 January 2023. He stated that he had a very limited criminal history and, other than the domestic violence offences committed in November 2020, his offences were driving/ traffic related offences.
Mr Bilash also emphasised that he now has stable and ongoing employment and is working on being a better person and member of the Australian community. Mr Bilash also relied on evidence provided in the form of several character references as to his strong work ethic and honesty.
I was not persuaded that Mr Bilash is a person of good character. First, as stated above, I consider Mr Bilash was disingenuous in relation to the completion of his Citizenship Application where he failed to disclose all his criminal convictions to the Department. The deliberate misleading of Australian immigration authorities reflects very poorly upon a person's character. The integrity of Australia's migration system relies upon the truth and accuracy of information provided by migrants: see Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27.
Secondly, Mr Bilash has been found guilty of five serious offences, two in 2011, one in 2018 and two in 2021, the latter being the serious domestic violence offences. While the domestic violence incidents occurred in November 2020, and Mr Bilash sought to argue it was an isolated incident, the NSW Police reports reference earlier situations where Mr Bilash was engaged in argumentative and abusive language (see [29] above).
I accept that Mr Bilash is considered by his work colleagues and family to be a hard-working and responsible employee. However, those references carry limited weight in circumstances where, as stated above, the referees were unaware of the specific details of Mr Bilash’s criminal offences. I further accept Mr Bilash showed remorse for his serious offences. However, the mitigating factors in favour of Mr Bilash are not sufficient to outweigh the seriousness of his offending history and the false information in his Citizenship Application. I have taken into account the fact that only a short period of time has elapsed since the end of the ADVO in January 2023.
In all the circumstances, Mr Bilash has not persuaded me that he has the enduring moral qualities to be considered to be of good character and to be granted Australian citizenship at this time. Mr Bilash is not precluded from re-applying for Australian citizenship in the future.
CONCLUSION
The Reviewable Decision is affirmed.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Lazanas
.................................[SGD].......................................
Associate
Dated: 3 April 2023
Date(s) of hearing:
31 January 2023
Date final submissions received:
6 February 2023
Solicitors for the Applicant:
Ms M Mamarot
Solicitors for the Respondent:
Ms I Tobin, Clayton Utz
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