Daghagheleh and Minister for Home Affairs (Citizenship)

[2018] AATA 2891

Daghagheleh and Minister for Home Affairs (Citizenship) [2018] AATA 2891 (15 August 2018)

Division:GENERAL DIVISION

File Number:2018/0119           

Re:FARID DAGHAGHELEH  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:15 August 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Damien Cremean, Senior Member

Catchwords

CITIZENSHIP – decision to refuse application for citizenship by conferral – good character test – history of offending – evidence of applicant at review hearing – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21(2), 24(1), 24(1A)

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Secondary Materials   Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016         

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

15 August 2018

1. Mr Daghagheleh (the Applicant) makes application for review of a decision of a delegate of the Respondent, the Minister for Home Affairs (the Minister). The decision was made on 29 December 2018 under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act) to refuse his application to become an Australian citizen by conferral.

2. The Minister refused his application on remittal by order made by this Tribunal on the basis that the Applicant failed the character test under s 21(2)(h) of the Act as he has a  significant criminal record and after taking other information into consideration.

   RELEVANT LEGISLATION AND POLICY

3. Relevantly, section 24 of the Act provides:

   Minister's decision

   (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).

   …

4. Section 21(2) of the Act specifies:

   General eligibility

   (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 (emphasis added)

5. Good character is not defined in the Act. In order to determine the question of whether the Applicant is of good character, I must also consider the Citizenship Policy (Policy) issued by the Department. In accordance with the Tribunal’s decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (at 635):

   The Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in a particular case will be considered, but cogent reasons will have to be shown against its application…

6. Chapter 11 of the Policy provides guidance on the administration of the good character provisions under the Act. It defines good character as:

   …refer[ring] 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.

   BACKGROUND

7. The Applicant is a national of Iran.  He was born in Ahwaz, Iran, on 9 September 1973.

8. He left Iran as an adult and went to Indonesia and then arrived by boat in Australia on 16 April 2010 aged 37, and was then granted a permanent Protection visa (Subclass 866). He has remained in Australia since then.

9. The Applicant is a married man living with his wife and young baby. He is not currently employed but worked in real estate in Iran having completed degrees at University there. He is currently on Newstart allowance.

10. At the hearing in this matter Mr Daghagheleh appeared on his own behalf and gave sworn evidence via a Farsi interpreter. He asked for the decision under review to be set aside. The T documents and a Bundle of Summonsed Materials were received into evidence. The Minister was represented by Ms K Crawford solicitor, of Clayton Utz who submitted that the decision under review should be affirmed.

11. The Applicant called no witnesses but relied also on two character references in the T documents. The Minister called no witnesses but cross-examined the Applicant.

    Applicant’s Convictions

12. The T documents record that the Applicant has a number of convictions for which he was fined an aggregate $2000.00 on 28 August 2016 in the Melbourne Magistrates Court. Those convictions included: contravene family violence safety notice; contravene a condition of bail; commit an indictable offence while on bail; resist an emergency worker on duty (2 charges).

13. In evidence the Applicant said that he pleaded guilty to the offences following advice given to him by a legal aid lawyer.

14. The Bundle of Summonsed Documents records that earlier, on 25 June 2014, Mr Daghagheleh was convicted in the Melbourne Magistrates’ Court of a number of traffic offences (including unlicensed driving) while earlier again on 14 December 2012 in the Rockhampton Magistrates Court he was convicted and fined $100.00 (28 days to pay) for contravention of a direction or requirement (on 16 November 2012).

15. In the Bundle of Summonsed Documents there are detailed statements by Police members about the incident which took place on 26 August 2016 which lead to the Applicant’s convictions in Victoria.

16. That incident occurred at the Applicant’s premises after the Applicant had struck his wife, cutting her finger and forcing her head into the ground and then attempting to choke her. Police attended after a 000 call and he was asked by them to leave the bedroom but refused to do so. A struggle ensued in which one police officer, being violently resisted, was kicked in the knee by the Applicant. Finally the police were able to handcuff the Applicant and he was conveyed to Sunshine Police Station in a divisional van. At the station he continued to misbehave in the back of the van and was yelling out and kicking the door repeatedly. It is noted in the Summonsed Documents that the Applicant showed complete disregard for police being present and that he appeared to become more aggressive towards his wife whilst in the bedroom with police still in attendance. 

    CONSIDERATION

    Does the Applicant satisfy the good character requirement under s 21(2)(h) of the Act?

17. In Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815 the Tribunal articulated its approach to interpreting the language of the good character test, as it then appeared in section 13(1)(f) of the 1948 Act (at [18]):

    The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character.

18. Moreover,  in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Lee J considered the meaning of good character (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 while the latter is a review of subjective public opinion…

19. In considering the Applicant’s criminal convictions, I regard the incident of 26 August 2016 as a most serious one, signifying the Applicant’s attitude towards his domestic partner and towards police members. I was particularly concerned in the context also of the Applicant’s evidence that his wife is in a position of reliance on him. During the hearing, the Applicant submitted that his wife does not know anyone in Australia and that even if she got lost on the streets she would not be able to figure out her way back to the house. I consider this points to her vulnerability in the sense of depending on the Applicant for basic language and navigation skills.

20. Furthermore, even more concerning was the Applicant’s attempt in evidence to downplay this violent incident and his behaviour and to explain it away as a misunderstanding.  A Statutory Declaration of the Applicant in the T Documents explains it was just a misapprehension and inexperienced between me and my wife of the life that we tried and fixed it and never happened again between us. I really appreciate the police for solving our problem. I reject Mr Daghagheleh’s explanation and do not accept there was any misunderstanding on the occasion, having read the police accounts and considering also his plea of guilty in the Court.

21. I am satisfied that on the occasion the Applicant showed he has a propensity to be violent and showed also that he has no regard for lawful police authority. In seeking to explain away the incident as a misunderstanding, I am satisfied Mr Daghagheleh was trying to give me a false impression about what took place and was seeking to mislead the Tribunal. In applying Chapter 11 of the Policy, I am not satisfied that the Applicant is likely to uphold and obey the laws of Australia, in the sense that he will not commit further criminal offences.

    Character References Of Abdulrazaq Alsaeedi And Tsehay Beyene

22. In that regard, I mention also the two character references the Applicant is relying upon. The first is by Abdulrazaq Alsaeedi and is dated 8 September 2017 and the second is a Statutory Declaration by Tsehay Beyene and is dated 14 September 2017. Both are in almost identical terms containing many examples of similar expressions. For example, in describing the Applicant, both references state that few have had the kindness, patience and determination that Farid does Once [sic]. Furthermore, in describing the Applicant’s contribution to the community, the following identical sentence appears in both references:

    I know that Farid is hard worker to your country, and contribute to the wealth of your great nation’s multicultural melting pot.

23. The Applicant in evidence wanted me to accept that these two references were not copies of one another and that neither person knew or knows the other. He submitted that as English is the second language of both of the referees who provided the character statements, it was possible that they both may have learned the same limited English expressions or catchphrases and used these in their statements. However, I am not satisfied that this provides an adequate explanation as to why the syntax is identical or more noticeably, why the typographical errors in both statements are identical.

24. Accordingly, I reject that evidence as patently false and conclude that it is more reasonable to consider that there was an element of collusion present in the preparation of both of the character references.  Moreover, I regard the Applicant’s reliance upon such references as yet another occasion of him misleading the Tribunal.

    CONCLUSION

25. Having considered the above, I am satisfied I can place no reliance on the evidence of the Applicant.  Having regard to Mr Daghagheleh’s criminal history and to the nature and circumstances of his offending, I am satisfied he fails the character test under s 21(2)(h) of the Act.  His offending is of a most serious nature. Consequently, in applying the decision in Re Chen, I am not positively persuaded that the Applicant is of good character.

26. I am fortified in my view that he fails the character test by the misleading evidence he gave and sought to place before the Tribunal. I do not regard the evidence that he gave as being truthful.

27. There is no other ground arising in the case calling for me to find that the decision under review should be set aside. Accordingly, by reason of the Applicant having failed the character test in these ways, the decision under review is affirmed.

28.     I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the written reasons herein of Dr Damien Cremean, Senior Member

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

Associate

Dated    15 August 2018

Date of hearing

Applicant

26 July 2018

In person

Solicitors for the Respondent

Ms Kylie Crawford, Clayton Utz