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

[2024] AATA 2272

Dawlatzada and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2272 (5 July 2024)

Division:GENERAL DIVISION

File Number(s):2023/3392      

Re:Qayoom DAWLATZADA  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President A Younes

Date:5 July 2024

Place:Sydney

The Tribunal affirms the decision under review.

..................................[SGD]......................................

Deputy President A Younes

CATCHWORDS

CITIZENSHIP — Application for citizenship by conferral — Whether the Tribunal can be satisfied that applicant is of good character – driving offences - possessing prohibited drug - Decision under review affirmed

LEGISLATIONS

Australian Citizenship Act 2007 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

CASES

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

SECONDARY MATERIALS

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15)

REASONS FOR DECISION

Deputy President A Younes

5 July 2024

1. This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 1 March 2023 to refuse the Applicant’s application for Australian citizenship by conferral (the delegate’s decision). The delegate refused the application on the basis that the Applicant did not satisfy the requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. The Applicant lodged an application for review on 15 May 2023 with the Administrative Appeals Tribunal (AAT/Tribunal), 47 days outside the prescribed period under s 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for review of the delegate’s decision. By orders dated 22 June 2023 and pursuant to s 29(7) of the AAT Act, the Tribunal extended time for the Applicant to seek review.

3. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

   BACKGROUND

4. The Applicant is a national of Afghanistan who was born in December 1995.[1] He was granted a Protection Subclass 866 visa on 19 July 2012, and a Resident Return Subclass BB 155 visa on 6 January 2021.

   [1] Ex 6, 1.

5. On 21 July 2017, the Applicant made the citizenship by conferral application.[2] On 21 November 2022, the Applicant was invited to comment on adverse information, namely that the Applicant had been found guilty of various offences, which could potentially mean that the delegate might not be satisfied that he is a person of good character under a 21(2)(h) of the Act.[3] The Applicant responded by essentially apologising for his offending.[4]

   [2] Ex 6, 43.

   [3] Ex 8, 83-86.

   [4] Ex 8, 91.

6. The adverse information related to the following:[5]

   ·On 26 October 2015 – the Applicant was found guilty of contravene direction or requirement and urinating in a public place.

   ·On 12 July 2022 – the Applicant was found guilty of drive licence suspended under s 66 Fines Act – 1st off, and possess prohibited drug.

   ·On 18 October 2022 – the Applicant was found guilty of drive motor vehicle during disqualification period – 1st off, and possess prohibited drug.

   [5] Ex 8, 84.

7. On 20 January 2023, the Applicant was invited to provide further information.[6] The Applicant responded by providing two Statutory Declarations attesting to his good character.[7] On 23 January 2023, the Applicant was invited to provide a copy of his driving record.[8] The Applicant responded by providing further Statutory Declarations and his driving record.[9]

   [6] Ex 8, 94.

   [7] Ex 8, 95-96.

   [8] Ex 8, 97-99.

   [9] Ex 8, 100-108.

8. The delegate was not satisfied that the Applicant satisfied sub-section 21(2)(h) relating to good character.

9. In essence, sub-section 21(2)(h) of the Act provides 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 decision on the application.

   MATERIAL BEFORE THE TRIBUNAL

10. The Tribunal has the following material before it: 

    ·The Respondent’s Statement of Facts, Issues and Contentions, dated 29 January 2024 (Exhibit 1).

    ·Respondent’s Statement of Position, dated 10 October 2023 (Exhibit 2).

    ·Respondent’s submissions relating to the extension of time application, dated 8 June 2023 (Exhibit 3).

    ·Emails between the Applicant and the Tribunal attaching documents, filed on 5 September 2023 (Exhibit 4).

    ·Emails between the Applicant and the Tribunal attaching documents, filed on 26 September 2023 (Exhibit 5).

    ·Respondent’s Tender Bundle, filed on 8 June 2023 (Exhibit 6).

    ·Respondent’s Further bundle of evidence, filed on 29 January 2024 (Exhibit 7).

    ·T-Documents, filed on 30 June 2023 (Exhibit 8).

    ISSUE

11. The issue before the Tribunal is therefore whether the Applicant satisfies the s 21(2)(h) character requirements.

    FINDINGS & REASONS

12. In his Statutory Declaration of 15 December 2022,[10] the Applicant stated that he believes he is of good character. He apologised for the traffic offences and contented that his citizenship application should be approved because he is a husband and a father. He promised to “behave in accordance with community standards” and to uphold the law. In a Statutory Declaration of 14 February 2023,[11] the Applicant stated that he is hardworking and does his best at everything. He stated that he could not cope following his mother’s death. He again apologised for his conduct.

    [10] Ex 8, 91.

    [11] Ex 8, 107.

13. The Applicant provided Statutory Declarations from acquaintances referring to the Applicant as being a “family man and a good man”[12]; “…respectable, honest and hardworking family man”[13]; “…he’s made mistakes but the good people learn from their mistakes…he has changed a lot…”.[14]

    [12] Ex 8, 95.

    [13] Ex 8, 96.

    [14] Ex 8, 108.

14. On 26 June 2024, the Applicant attended a hearing and gave evidence in-person. Essentially the Applicant confirmed that the information in the driving records is correct. He apologised for the offending. He stated that he started using marijuana since he was about 16 or 17 years old which contributed to his offending. He stated that he stopped using marijuana around mid-2022, although he has not attended any rehabilitation programs. He said he has two children and is committed to doing his best for his family. He apologised for his conduct.

15. The Act does not define “good character” or what constitutes “bad character”. There is however judicial and policy guidance. The delegate’s decision record refers to the Citizenship Procedural Instructions 15 (CPI 15)[15] which essentially states that good character “refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.”[16] In the decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs[17], the Full Court of the Federal Court held:

    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 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.[18]

    [15] Ex 6, 50-73; CPI 15 - Assessing Good Character under the Citizenship Act.

    [16] Ex 6, 53.

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

    [18] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432.

16. As discussed in the course of the hearing, the Tribunal considers driving and drug-related offences to be serious. The Applicant stated that he understands the seriousness of his offending. He indicated that he understood that they relate to community safety and the safety of road users.

17. The evidence before the Tribunal, including the Applicant’s own evidence, indicates that the Applicant has been using drugs for many years. He claims that he no longer uses illicit drugs but he has not undertaken any rehabilitation programs. The evidence indicates that the Applicant drove under the influence of drugs. He also drove whilst disqualified, which the Tribunal considers to be serious offences. Relevantly, in 2022, the Applicant committed further drug and driving offences soon after he was before the Court for similar offences, indicating disregard of Australian law and judicial orders. As mentioned above, on 12 July 2022, the Applicant was convicted of [d]rive, licence suspended under s 66 Fines Act and [p]ossess prohibited drug. On 18 October 2022, only 3 months later, the Applicant was then convicted of [d]rive motor vehicle during disqualification period and [p]ossess prohibited drug.[19] Significantly, a few months later, on 12 May 2023, his driving records show that he was fined for speeding by not more than 10km/h in a school zone.[20] This occurred after the delegate’s decision record of 1 March 2023 which clearly set out the Applicant’s adverse driving records[21] and the reasons for the refusal to approve the citizenship application. The Tribunal is satisfied that Applicant’s conduct in these circumstances suggests a degree of carelessness and disrespect for Australia’s laws.

    [19] Ex 7, 9.

    [20] Ex 7, 11.

    [21] Ex 6, 45.

18. The Tribunal has noted and has given some weight to the Applicant’s apologies and the supporting material. However on balance of the cumulative evidence, the Tribunal is not satisfied that the Applicant is likely to uphold the law, or that he has the enduring moral qualities of a person of good character.

19. In light of the above, the Tribunal finds that the Applicant does not meet s 21(2)(h) of the Act.

20. For the above reasons, the Tribunal affirms the delegate’s decision to refuse the approval of the Australian citizenship by conferral.

    DECISION

21. The Tribunal affirms the decision under review.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes.

...................................[SGD].....................................

Associate

Dated: 5 July 2024

Date(s) of hearing:	26 June 2024
For the Applicant:	In person
Solicitors for the Respondent:	Mr M Gao, HWL Ebsworth Lawyers