Dargahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 4561

Dargahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4561 (8 December 2021)

Division:GENERAL DIVISION

File Number:2018/5903          

Re:Shahram Dargahi  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:8 December 2021

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether the applicant is of good character – multiple driving offences – detain for advantage and cause injury to victim – assault occasioning actual bodily harm – limited insight into criminal conduct – limited positive contribution to Australian community – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24, 52

CASES

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

8 December 2021

1. Mr Shahram Dargahi, the applicant, is a citizen of Iran who commenced living in Australia on 10 November 1997. On 25 June 2015, the applicant lodged an application for Australian Citizenship by conferral (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”).

2. On 9 July 2015, the applicant was invited to comment on adverse information before the Minister (invitation to comment). Namely, the offences listed in his National Police History Check Report which included numerous offences. The applicant responded to this invitation to comment and provided further evidence in support of his application.

3. On 3 October 2018, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act This is the decision under review in these proceedings.

4. The issue for the Tribunal to determine in these proceedings is whether it is satisfied that the applicant is of good character in accordance with paragraph 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

6. Subsection 24(1) of that Act provides that 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. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

7. The Act relevantly provides, at paragraph 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application.”

   DEFINITION OF “GOOD CHARACTER”

8. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).

9. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

10. As to the definition of good character, the CPI 15 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 while the latter is a review of subjective public opinion…

11. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated 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. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

12. The CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevantly, a person of good character would, inter alia: respect and abide by the law in Australia; not be violent and 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); and not give false names and/or addresses to police.

13. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    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.

    (emphasis added)

14. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    SERIOUSNESS OF THE APPLICANT’S CRIMINAL CONDUCT

15. The applicant has a significant criminal record which includes numerous driving offences, larceny, assault occasioning actual bodily harm, and detain for advantage and cause injury to victim. The applicant's driving record produced by NSW Roads and Maritime Services shows that the applicant has also been fined for speeding on five occasions between 2008 and 2010. The applicant's driving record was such that he was declared to be a habitual offender on 23 March 2016, although his disqualification order was removed on 7 March 2019.

16. The most serious offences against the applicant are those recorded in the Campbelltown District Court on 19 September 2001 for detain for advantage and cause injury to victim – SI and assault occasioning actual bodily harm – T2. The applicant was sentenced to six years and four months, and 18 months, imprisonment for these convictions respectively. The applicant lodged an appeal, but this was subsequently abandoned.

17. In sentencing remarks dated 19 September 2001, Judge Coleman set out the relevant facts, which were not in dispute. In summary, the facts are that on 22 December 1999 at about 2.15am the applicant drove his parents’ motor vehicle which was a 1985 Toyota passenger bus in the Bankstown area in company of a co-offender. The co-offender was concealed in the rear section of the vehicle behind a row of seats. The applicant picked up a sex worker, who was working on a street in Bankstown. The sex worker directed the applicant to an industrial park, where he parked the vehicle. While in the van, the victim became alarmed after the applicant spoke in a foreign language and she attempted to flee the vehicle. As she did, the co-offender opened the rear door from his position of concealment and ran after the victim. The applicant also exited the vehicle and grabbed the victim by her shirt, pulling her backwards towards the vehicle. The co-offender struck the victim several times around the head, upper and lower body with a wooden stick. The applicant also grabbed and punched the victim before she was able to break free and ran screaming to a nearby house.

18. As a result of the assault, the victim had bruising and welt marks to her legs, upper and lower torso, buttocks and a small laceration to her back. It is noted in the sentencing remarks that the victim said she was scared and petrified during the attack as she did not know if she was going to get away and did not know whether they were going to rape her or kill her.

19. Judge Coleman described this offence as being a very serious assault and a “cowardly assault” committed against a woman who was “isolated and in a vulnerable position”. He noted that it was part of a planned action and involved premeditation.  While it was noted that the applicant was intoxicated at the time of the attack, he was not so to prevent him from driving and engaging in a conversation with the victim.

20. The second offence was committed on the same night, about forty five minutes later, at about 3am. The facts of the offence are also set out in the sentencing remarks and state that the applicant picked up another sex worker. The applicant drove with the victim in his van, before parking the vehicle in a carpark at the rear of shops where they entered the back of the van. The victim heard movement in the back of the van and asked if there was anything in the back. When she noticed the rear seat belt moving, she exited the van and attempted to investigate the rear of the vehicle by looking through the back window but was unable to see anything. The victim became apprehensive at this time and went to the front of the van to collect her bag, as she did so, the co-offender emerged. The applicant grabbed her around the throat and pushed her backwards towards the sliding door section of the vehicle. The co-offender put the victim in a headlock while the applicant attempted to force her legs into the vehicle. As the victim began screaming, the co-offender started to strike the victim to the rear of her head with a wooden stick, then jumped onto the victim’s back, following which the applicant closed the sliding door on the vehicle. The applicant then drove a short distance before the victim was able to open the sliding door. The applicant stopped the vehicle, and he and the co-accused then continued to assault the victim. She was punched, kicked and assaulted again with the wooden stick. This assault went on for an extended time. The applicant then drove the vehicle away while the co-offender held the victim’s face to the floor of the van while continuing to hit her on the back of the head. Following several reports in relation to the earlier incident, the Police located the vehicle and pulled it over. The co-offender fled and escaped, and the applicant was arrested and restrained. As a result of the attack, the victim sustained bruising and lumps to the back of her head, forehead and left eye, a cut on her left elbow, bruises and welts on both legs, arms and her back and shoulders. She also had a cut on her big toe.

21. In sentencing, Judge Coleman said that this was a “cowardly crime carried out for the purpose of obtaining sex”. He noted that the fact that this second offence was committed so soon after the first, was an aggravating factor. Judge Coleman commented that the applicant's “lack of contrition is remarkable”.

22. The applicant's explanation of the offending significantly downplays the level of his involvement in the offending as was found by the Court. In a statutory declaration dated 21 March 2019, the applicant explained the offending as follows:

    Then one day in 2001 my life was turned upside down. I was feeling very upset and was drinking alcohol in a park around Liverpool. I met a guy. We went for a drive and when he got into a fight and things started to escalate. In that moment I made the wrong decision to back him up because I was scared and he appeared to be stronger. I thought if the victim were to attack me because I was with him, that I would have someone to help me. The guy I met ran away and he was never caught.

    I was questioned by police through an interpreter and they kept telling me that I was playing games. I always owned up to what I did but they tried to blame me for what the other guy did. Even the victim said I only hit him a few times. I was charged with assault occasioning actual bodily harm and detain for advantage to cause injury to victim. I do not want to make excuses for what I did back then but at the time I had just come from a country filled with violence and I was new to everything here. I trusted someone I should have and I acted in shock. I am sorry for what happened and I feel ashamed, but I know I can not ever take it back so I have tried to forget about it and learn from my mistakes, which I have done.

23. In a further statutory declaration dated 28 May 2019, the applicant said:

    What I did was wrong. I didn’t remember all the details of the night because I was heavily drunk but this is no excuse for my actions. I have never lifted a hand at any women after this event and even before. This night was very out of character for me. I am ashamed, this was the darkest memory of my life. Its always at the back of my head.

24. At hearing, the applicant was questioned about the offences and his involvement. He was very evasive and vague in his answers and would not go into any detail. It was plain that he sought to downplay his involvement. He said that he met the co-offender while he was drinking in the park and it was the co-offender that suggested they go for a drive and instructed him to pull over and talk to the victims. He said he could not recall what he discussed with each victim and that he could not even speak English well. When questioned about his intent on the evening that he committed the offences, the applicant said that he had no intention for anything and did not know anything, it was the co-offender who told him what to do.

25. While the applicant says he is remorseful and ashamed of his criminal conduct, he continues to show little insight into his actions, this is even despite his time in prison and the significant passage of time since he committed his most serious offences. He said at hearing that he knew in his heart at the time that what he was doing was wrong, yet he committed the same attack on a second victim within 45 minutes of the first attack. I do not accept that the applicant was unaware of his actions or too intoxicated to understand, because as stated by the sentencing Judge, the applicant was the one that drove the vehicle, engaged with the victims, and convinced them to get into his vehicle on both occasions.

26. The applicant’s offending conduct, specifically the offences of detain for advantage and cause injury to victim – SI and assault occasioning actual bodily harm – T2, was of an extremely serious nature. The level of premeditation by the applicant and the amount of violence he inflicted against vulnerable victims is disturbing, as is the fact that the applicant committed two similar offences within such a short period of time. I consider that the applicant's conduct was of such a nature to invoke the observation in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7], that a single adverse incident is of sufficient weight and seriousness that it outweighs many other good qualities in assessing whether they are of good character.

27. The seriousness of the applicant’s criminal conduct and his lack of contrition and insight into such serious criminal acts weighs very heavily against a finding of good character.

    MITIGATING FACTORS AND CONSIDERATION

28. The applicant’s most serious offences are historical, with the applicant being sentenced on 19 September 2001 and the offences having been committed in December 1999.  The applicant contends that a sufficient period has elapsed, approximately 21 years, and that the applicant has demonstrated a pattern of enduring moral qualities supportive of a finding of good character.

29. It has been a period of almost six years since the applicant’s last driving offence which occurred in March 2016. On 7 March 2019, the applicant was issued a disqualification removal order and has held a driver’s licence since that time without any further fines.

30. It is contended that the applicant has demonstrated insight into his driving offences and has made efforts to rehabilitate himself by reaching out to various medical professionals for treatment of depression and anxiety which were contributing factors. Additionally, it is submitted that the applicant is remorseful and has demonstrated restoration of his character.

31. As already discussed in these reasons, I do not accept that the applicant is remorseful or has insight into his criminal conduct. Given the magnitude and nature of his criminal offending, specifically the offences of detain for advantage and cause injury to victim – SI and assault occasioning actual bodily harm – T2, the seriousness of the applicant’s conduct is not mitigated by the mere passage of time.

32. The applicant has provided numerous character references in support of his application and oral evidence was also provided at hearing from Bijan Nasrabadi, Nikola Markoski and Feddy Elalami. Although the character references provide evidence in relation to the applicant’s personality, desire to improve himself, and familial relationships; the references do not refer to the detail of the applicant's criminal history. They only do so indirectly. I give these references very little weight in support of the application, including in support of the applicant's claimed rehabilitation, noting that they do not refer to the offences or incidents in any detail.

33. There is very limited evidence of any positive contribution to the Australian community made by the applicant. He has not been employed since leaving prison and receives Government benefits (newstart and carer payments). At hearing he advised that he lives in NSW Housing and has applied for the disability support pension on account of his anxiety, back pain, and knee pain.

34. Having regard to the serious nature and the particular facts of the applicant’s offending, I am not positively satisfied that the applicant has sufficiently rehabilitated to demonstrate moral qualities associated with good character. 

    DECISION

35. In considering all the relevant circumstances and weighing the available evidence before me, I am not persuaded to make a positive finding of good character for the applicant at this time. It follows that he does not satisfy paragraph 21(2)(h) of the Act.

1. The applicant can make a fresh application for Australian citizenship in the future.

2. The decision under review is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 8 December 2021

Date of hearing:	6 May 2021
Solicitors for the Applicant:	Ms M Mamarot, SouthWest Migration & Legal Services
Solicitors for the Respondent:	Mr D McLaren, MinterEllison