Ezzati and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 3776

Ezzati and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3776 (12 October 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6608

Re:Amar Ezzati

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President I Hanger QC

Date:12 October 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Deputy President I Hanger QC

Catchwords

CITIZENSHIP – criminal history – criminal damage – intentionally cause injury – breach of suspended sentence order – drive in a manner dangerous – whether of good character – decision affirmed.

Legislation

Australian Citizenship Act 2007

Cases

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

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

Secondary Materials

Australian Citizenship Policy

Australian Citizenship Instructions

REASONS FOR DECISION

Deputy President I Hanger QC

12 October 2018

1. The applicant is seeking a review of a decision that refused to approve his application to become an Australian citizen because he was not of good character.

2. The applicant arrived in Australia on 28 October 2000 and was granted a visa. On 21 November 2016 he applied for conferral of Australian citizenship.

   RELEVANT LEGISLATION AND POLICY

3. A person can apply to the Minister to become an Australian citizen pursuant to        section 21 (1) of Australian Citizenship Act 2007 (the Act). A person is eligible pursuant to section 21 (2) if, among other things, the person is of good character. The Department has issued two policy documents to provide guidance on the question of good character: the Citizenship Policy (CP) and the Australian Citizenship Instructions (ACIs).

4. This Tribunal will ordinarily consider and apply government policy unless there is a cogent reason not to do so (Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] A ATA 179; (1979) 2 ALD 634).

5. In summary, chapter 11 of the CP includes the following relevant guidance:

   (a)“good character” refers 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;

   (b)the good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics;

   (c)among other things an applicant of good character would: respect and abide by the law in Australia; be truthful and not practice deception or fraud in their dealings with the Australian government, for example, concealment of convictions that could lead to the cancellation or refusal of a Visa or citizenship; and not be violent and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink-driving, excessive speeding or driving without license or insurance); and

   (d)decision-makers should give very little weight to references which do not acknowledge an offence or incident.

6. Chapter 10 of the ACIs include the following guidance:

   (a)in relation to offences, the decision-maker should consider:

   (i)Has the applicant committed any offences and if so, did they admit that in their citizenship application?

   (ii)If the applicant has committed an offence was it serious or minor? Serious offences include, among other things, crimes of violence (including domestic violence); while minor offences include, among other things, offences which do not lead to a conviction or a sentence.

   (iii)Were there victims of the offence?

   (iv)Consider the length of a sentence if one has been imposed.

   (v)How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour? A pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not uphold and obey the law if citizenship is conferred on them.

   (b)In relation to general conduct, the decision-maker should relevantly consider how an applicant has interacted with the Australian government or State/Territory governments, including whether they have been honest or have committed fraud, including identity fraud; and

   (c)a decision-maker should also consider whether there are any mitigating factors which should be in taken into account, which may relevantly include:

   (i)what is the length of time between the date of the offence and application for Australian           citizenship? Each case needs to be assessed on its own merits and issues such as the seriousness of the offence, the nature of the offence, whether another person was harmed and the rehabilitation process needs to be assessed;

   (ii)has the applicant accepted responsibility and shown remorse for their conduct;

   (iii)how has the applicant behaved upon completion of any obligations to a court such as a good behaviour bond? It is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus     justify a conclusion that the person is now of good character and is upholding Australian laws;

   (iv)has the applicant rehabilitated themselves;

   (v)what was the applicant’s age at the time the offence was committed? If applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be      possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less           indicative of their current character;

   (vi)were there any extenuating circumstances relating to the offence; and

   (vii)is there evidence of length of employment, stable family life and\or community involvement? Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship.

7. The factors enumerated above are simply matters consistent with the sound common sense of the Australian community. It might be said that they are the factors which would be taken into account by the reasonable man, so well-known in our system of common law.

8. Whether someone is of good character requires the “consideration of an aggregate of qualities”. (Prasad and Minister for Immigration and Ethnic Affairs. [1994] AATA 326).

   CRIMINAL HISTORY

9. On 22 November 2003, the applicant while driving indicated to a person known to him that he should pull over his car. That person pulled over and stopped his vehicle and the applicant kicked and punched the vehicle and caused damage. The victim drove off, but the applicant followed him and is alleged to have rammed the other vehicle. The two men knew each other and their dispute related to a debt said to be due by the victim to the applicant.[1] The Applicant had loaned the victim money to buy a car which had not been repaid.[2] A physical assault also occurred.

   [1] Exhibit 2, p 19

   [2] Exhibit 4

10. The applicant was charged and on 4 June 2004 was convicted of the offence of damaging property with intent and intentionally causing injury. He was fined $1000 plus $55 costs; and sentenced to three months imprisonment suspended for 12 months. Arising out of the same circumstances, he was charged with driving in a dangerous manner and his driving license was cancelled for six months. When questioned about this matter in these proceedings, he was evasive. He was asked whether this first offence involved another vehicle and he denied it for some time. He said that he had forgotten that he had damaged the victim’s car deliberately. I cannot accept that that is a matter of such insignificance that he would have forgotten it and merely recalled the physical assault of the victim. The applicant’s statutory declaration filed in these proceedings[3] was devoid of detail in relation to the criminal offences; which is unfortunate since the declaration appears to be somewhat inconsistent with the actual nature of the charge and the conviction.

    [3] Exhibit 4

11. On 12 December 2004, apparently as part of a continuing dispute between the two men, another episode involving a rude hand signal given by the victim in one car to the applicant in another car, resulted in the applicant following the victim, and then blocking and damaging the victim’s car. The applicant went to the home of the victim and poured petroleum over his motor vehicle and then fled.[4]

    [4] Exhibit 2, p18

12. On 24 February 2005 he was convicted of causing criminal damage to property with intent to destroy or damage property, and breaching a suspended sentence. He was sentenced to four months imprisonment to be served by way of an Intensive Correction Order.

13. On 19 December 2010 he was involved in a serious traffic accident resulting in his being prosecuted. On 29 March 2012 he was convicted of driving in a dangerous manner and causing serious injury. He was sentenced to 129 days imprisonment to be served by way of an Intensive Correction Order; his driver’s license was cancelled; and he was disqualified from obtaining a driver’s license for 18 months commencing on 21 September 2011. There is no suggestion of any infringement of the terms of the Intensive Correction Order.

    ANALYSIS

14. The applicant has committed serious offences: assault of a person and wilfully damaging the other party’s motor vehicle.  Both offences were committed in respect of the same person and there appears to have been an ongoing relationship between them involving money matters. The detail of the offences is far from clear but they appear to be intimidatory by nature. The third offence committed in 2010, showed a blatant disregard for road safety. It was not constituted by mere inadvertence. It was simply reckless.

15. Each of the criminal offences must be regarded as a serious offence; but they were not regarded of such seriousness that they warranted actual imprisonment. It is not clear to me that the applicant has shown remorse for his conduct. In his statutory declaration filed in these proceedings he acknowledges in respect of the offences in 2004 and 2005, that he has to be more careful about managing his anger; but in his evidence before me, he asserted that in his opinion the assaults were caused by the victim. I do not regard that as being of much significance because, taking into account some obvious difficulties with language, it may be that in answering the question as to where fault lay, he attributed it to the victim because the victim was refusing to repay a debt.

16. The same latitude cannot be accorded to him in respect of the dangerous driving. He blames the victim and seeks to excuse obvious reckless conduct.

17. During his evidence the applicant was asked about a number of Intervention Orders. In January 2011 a 32-year-old man obtained an Intervention Order against him as a result of a dispute in the workplace. The applicant resigned from his job in that workplace.

18. In September 2014 a 40-year-old man obtained an Intervention Order against him arising from a further workplace incident. Without being aware of the precise history or justification for these orders, and given the reluctance of the applicant to admit his failings in respect of any of the matters the subject of prosecutions, I can only conclude that the applicant has some difficulty in his relationships with people.

19. The applicant works in Mildura, Victoria. To his credit, his employment history appears to be satisfactory. He gave evidence that he presently has a job which entails working 12 hours a day for 7 days a week.

20. The applicant has provided a reference from Mr Forte, the site manager of Stanley Wines Buronga, who referred to him as extremely reliable, hard-working, and above all, of exemplary character. He has been a returning vintage cellar hand at the winery since 2009. I note however that Mr Forte does not appear to be aware of the applicant’s criminal history. I take that into account but obviously from a work point of view his employer was satisfied.

21. He has provided a reference from Dr Pour, his general practitioner. Dr Pour also knows him as a member of the community. He says that considering his current activity, social interactions and uptake of employment, it seems that the applicant is trying hard to put his past issues behind him. It is not entirely clear as to whether Dr Pour is aware of his past convictions.

22. The applicant has also provided a reference from Dr Shetty. He has known him since 2008. The doctor is aware of the past criminal history. In his written reference given in 2016, the doctor expressed the opinion that he was of good character. When called to give evidence, the doctor referred to him as “a bit of a dubious character”. He said he had recently learned bad things about him and had ascertained that he was doctor shopping for the purpose of obtaining prescription medicines. The doctor has advised his staff that the applicant is no longer welcome at his surgery. The applicant said that he was not able to sleep at night and when the doctor would not give him sleeping tablets he went to another.

23. Although committed a long time ago, the applicant’s offences were serious involving, as they did in two cases, violence to a person and property, and in the third case dangerous driving. When asked about these matters, he was at times evasive and less than frank. He is also reluctant to attribute blame for these matters to himself. People with whom he associates appear to feel the need to obtain Intervention Orders against him. The only one of his references that refers to his previous criminal history, changed his opinion after 2016 and referred to the fact that he is doctor shopping for prescription medicines and referred to him as “a bit of a dubious character”.

    CONCLUSION

24. A grant of citizenship in this country is a great privilege. A person who commits criminal acts must show that he is a reformed character, unlikely to commit further criminal acts, and that he will conform to an acceptable standard of conduct in this country, before being granted citizenship. Taking the matters to which I have referred into account, the applicant is not as yet entitled to that privilege. That is not to say he would not be granted citizenship in the future.

25. I affirm the original decision.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President I Hanger QC

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

Associate

Dated: 12 October 2018

Date(s) of hearing:	30 and 31 July 2018
Advocate for the Applicant:	Mr Farnam Razzaghipour
Representative for the Applicant:	Farnam Immigration and Language Services
Advocate for the Respondent:	Mr Adam Ray
Solicitors for the Respondent:	Clayton Utz