David and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 3402

David and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3402 (9 September 2022)

Division:GENERAL DIVISION

File Number(s):      2021/8447

Re:Natalia David

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mr S Evans, Member

Date:9 September 2022

Date of Written Reasons       19 October 2022

Place:Sydney

The reviewable decision made by the delegate of the Minister on 26 October 2021 is affirmed.

...................................[Sgd].....................................

Mr S Evans, Member

Catchwords

CITIZENSHIP — Application for Australian citizenship by conferral — Good character requirement — Whether the Applicant is of good character under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) — Where the Applicant had been convicted of criminal offences — Where the Applicant’s criminal offending requires viewing it in totality — Good character requirement not satisfied — Decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

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

Secondary Materials

Australian Citizenship Policy Statement

Revised Citizenship Procedural Instructions 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

19 October 2022

1. Natalia David (the Applicant) is a 43 year old citizen of Iraq[1] who first arrived in Australia on 23 October 2013 as the holder of a Women at risk (subclass 204) visa which was granted on 21 August 2013.[2] On 14 January 2021 the Applicant lodged an application for Australian citizenship by conferral. On 26 October 2021 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused her application having found that she was not of ‘good character’, which is one of the requirements for Australian citizenship.[3] The Applicant contends she meets the character requirements for conferral of Australian citizenship and sought review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal). 

   [1] T4/139

   [2] T2/15

   [3] T2/21

2. The decision of the delegate was affirmed by the Tribunal on 9 September 2022 and the reasons for the decision were given orally. On 13 September 2022 the Respondent requested the Tribunal to provide written reasons for its decision pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth). The relevant facts, background to the application and the reasons for the decision are set out below.

   Legislative and policy framework 

3. Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (the Act) provides that a person may make an application to the Minister to become an Australian citizen. 

4. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

5. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen. 

   Determining questions of character

6. The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

   Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion… 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.[4]

   [4] (1996) 68 FCR 422, 431 – 432.

7. The Minister’s official guides to decision makers include both the Australian Citizenship Policy Statement (the Policy Statement), which details the overarching legislative requirements for becoming an Australian citizen, and the Revised Citizenship Procedural Instructions. The Policy Statement provides context to the Instructions.

8. The Instruction relevant in this matter is CPI 15 - Assessing Good Character under the Citizenship Act (the Instructions). The Instructions provide guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.

9. Informed by the discussion in Irving, subsection 3.3 of the Instructions states that:

   A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.[5]

   [5] T3/77

10. The Instructions specifically call for the decision maker to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[6] A person’s enduring moral qualities encompass:

    ·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.[7]

    [6] CPI 15, section 14, see T3/91.

    [7] CPI 15, section 3.3, see T3/77

11. It is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so. The Tribunal is guided by the considerations outlined above when determining whether the Applicant meets the good character requirement for Australian citizenship.   

    Issue

12. The issue to be determined by the Tribunal is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that she meets the requirements of paragraph 21(2)(h) of the Act.

    Background AND EVIDENCE

    Offending

13. The Applicant’s criminal record is set out in an Australian Criminal Intelligence Commission check results report dated 25 August 2021.[8]  

    [8] T6/170-171

14. On 21 October 2015 the Applicant was found guilty of stalk/intimidate fear physical etc harm (personal) – T2 and fined $300 (the 2015 offence).

15. On 16 October 2018 the Applicant appeared in the Parramatta Local Court where she was found guilty of affray – T1 and fined $500 (the 2018 offences).

16. Most recently the Applicant appeared in the Fairfield Local Court on 25 October 2019 where she was found guilty of stalk/intimidate fear physical etc harm (personal) T2; destroy or damage property (DV) and contravene prohibition/restriction AVO (domestic) and sentenced to a 12 month community corrections order (CCO) (the 2019 offences).

    The Applicant’s evidence

17. The Applicant gave evidence in support of her application. I found her to be a witness who did her best to assist the Tribunal, including by answering questions and providing evidence about issues and incidents which were clearly distressing.  

18. The Applicant is a single mother who separated from her husband prior to immigrating to Australia. She does not work and has no family in Australia beyond her daughter who she raises on her own. She is in poor health and experiences pain in her back, shoulder and neck. She writes in a statutory declaration dated 30 January 2020 (the statutory declaration) that she regularly visits her general practitioner and psychologist for help.[9] 

    [9] T4/127

19. In addition to the evidence the Applicant gave during the hearing, the Applicant provided detail and context to her offending in a statutory declaration.

20. The Applicant maintains that the 2015 offence occurred after her daughter was threatened and writes in her statutory declaration:   

    In 2015 another student was fighting with my daughter at school. The other student's father came to the school and threatened my daughter.

    She told me what happened when I picked her up from school. We went to the police station together to make a report against the father. I was scared for my daughter so I went to the school the next day to talk to the other student to tell her to tell her father to stay away from my daughter. The school called the police. I didn't mean to do anything wrong with the other student. I did not understand that I had to go to court for this and I was given a fine when I wasn't there.[10]

    [10] T4/127

21. The 2018 offending occurred when the Applicant was picking her daughter up from school. She gave evidence that another parent was asleep in her vehicle which was double parked in front of her. Other cars were backed-up behind her and the Applicant exited her vehicle to take a photo of the double-parked vehicle and to call the police. The driver of the vehicle exited the car and told the Applicant to ‘fuck off’. An altercation between the Applicant and driver of the other vehicle ensued and a crowd gathered to watch the unfolding fracas.  

22. The Police Facts Sheet in relation to the 2018 offences states that the Applicant parked diagonally in front of the other woman’s vehicle preventing her from leaving. The Applicant shouted at her, at which time the other woman opened her car door and exited the car. Both women argued and ‘engaged in a scuffle’, ‘where both have struck the other several times’. When police arrived shortly after they found the Applicant being ‘held back by security’ and witnesses.[11] Footage of the incident was broadcast on the news that evening.

    [11] Respondent’s Tender Bundle, SM1/19

23. In 2019 the Applicant started a relationship with Mr Simon Lawlache. She and Mr Lawlache had known each other for approximately four years as he was the building manager of the apartment complex where she lived. She writes in her statutory declaration:

    In 2019 I started a relationship with my building manager. He promised we would get married and he would buy me a ring. But he stopped talking to me and I went to his home. He didn't want to see me anymore and I felt sad and used. I became upset and I damaged his security door. He called police. The court gave me a good behaviour bond for 12 months.[12]

    [12] T4/127

    Rehabilitation and other mitigating factors

24. Mr Lawlach, who was the victim of the 2019 offences, has provided an unsworn statement in support of the Applicant dated 6 September 2022 in which he confirms knowing the Applicant for six years and states she is a ‘lovely person’. He acknowledges that he and the Applicant had an argument after which the police became involved and the Applicant was issued an AVO. He indicates that he did not intend for the police to issue an AVO and he hopes the Applicant will be granted citizenship.

25. Clinical psychologist Dr Mahamoud Abu-Arab has provided a medical report dated 10 April 2022 in which he confirms the Applicant has been a patient of his since 11 April 2016. He describes the Applicant’s history prior to her immigrating to Australia including significant abuse which took place in her family of origin and her former husband. He confirms that the Applicant was involved in motor vehicle accidents in May 2015 and another in March 2019 which exacerbated her pre-existing physical impairments.   

26. Dr Abu-Arab is aware of the Applicant’s offending and writes that in treatment ‘we addressed her offenses and the importance of complying with the law’. Dr Abu-Arab states he can ‘attest with confidence’ that the Applicant has ‘gained better insight to [sic] her behaviour and she committed to change it’. 

27. Dr Abu-Arab has diagnosed the Applicant with Chronic Major Depression and PTSD. He writes that ‘due to multiple past traumas and many psychological factors that affect the client, she is very vulnerable to stress and frustration’. He confirms that the Applicant ‘experiences difficulty controlling her anger and her impulsive behaviour’. However, he concludes that treatment has ‘addressed her aggression and low frustration tolerance and the importance of complying with the law and rules’, and she is now better able to manage her anger and solve problems.

    Consideration

28. This is the second time the Applicant has applied for citizenship having made a previous application in November 2017, which was also refused by the Respondent on 10 February 2020.[13]

    [13] T2/15

29. In isolation the offences for which the Applicant has been convicted are at the lower end of the scale in terms of their seriousness which is reflected in the sentences she received. However, I accept the Respondent’s contention that when considered in their totality, the five separate offences committed against multiple victims add to the seriousness of her offending and are indicative of the Applicant having a history of not obeying the law. It is also of some concern that her offending included breaching an AVO.

30. The Applicant’s evidence was that the circumstances of the offences mitigate their seriousness. The 2015 offence was motivated by a need to protect her daughter, the 2018 offending resulted from the misdeeds of the other driver and the 2019 offending was the result of broken promises on the part of Mr Lawlache.

31. The Applicant’s evidence was at times confused. Although she did not seek to deny wrongdoing, she was adamant that the offending occurred largely as a result of circumstances rather than her reaction to those circumstances. She submits that Mr Lawlache was ‘faking’ the extent to which he was fearful following her 2019 offending and gave evidence that the 2018 offending was in part due to her having a different cultural background to the other parents at the school. In describing the 2015 offence, it was apparent that the Applicant did not appreciate how disruptive her behaviour was to the other children in the classroom. 

32. The length of time which has passed since the most recent offence is a factor identified in the Instructions as relevant to determining if a person is of good character. The Applicant was sentenced to a 12 month CCO on 25 October 2019 and concluded on 24 October 2020. The limited amount of time that has passed since the conclusion of the CCO does not weigh in favour of the Applicant.

33. Whilst her evidence indicates she does not accept full responsibility for her offending, the Applicant has nonetheless sought to make positive changes. She has seen Dr Abu-Arab over four years and says he knows everything about her. She tries to see him every week and feels comfortable with him. Her regular treatment demonstrates a commitment to reform and strengthens her application. I also take into account the difficulties the Applicant experienced prior to immigrating to Australia and her feelings of not belonging in the community.

34. However, considering the totality of the evidence, I am not positively satisfied that the Applicant is of good character for the purposes of section 21(2)(h) at this time.

35. Whilst the Applicant was not successful on this occasion, she is entitled to make another application for citizenship in the future should she wish to do so. Finally, this decision does not have any bearing on the outcome of any application her daughter may make for Australian citizenship.

    Decision

36. The reviewable decision made by the delegate of the Minister on 26 October 2021 is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of

...............................[Sgd].........................................

Associate

Dated: 19 October 2022

Date(s) of hearing:	9 September 2022
Applicant:	In person
Solicitors for the Respondent:	Lauren Hargrave