Fahiye and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 374
•3 June 2016
Fahiye and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 374 (3 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5740
Re
Dalmar Ibrahim Fahiye
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr C Kendall
Brigadier AG Warner, MemberDate 3 June 2016 Place Perth The Tribunal affirms the decision under review.
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Deputy President Dr C Kendall
CATCHWORDS
CITIZENSHIP – criminal offences – whether applicant of good character – meaning of good character – meaning of lasting or enduring period of time – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(2) – s 21(2)(h)
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
Kakar v Minister for Immigration and Multicultural Affairs (2002) AATA 132
Assafiri v Minister for Immigration and Border Protection (2014) AATA135
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Deputy President Dr C Kendall
Brigadier AG Warner, Member3 June 2016
INTRODUCTION
On 17 July 2013, Mr Fahiye applied for Australian citizenship. On 3 December 2013, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused that application (T6/143-155).
Mr Fahiye again applied for Australian citizenship on 3 June 2015 (T7/156-157). On 7 October 2015, a delegate refused the application on the basis that Mr Fahiye was not of good character (T2/8-21). This was determined primarily on the basis that Mr Fahiye had a criminal record and the circumstances relevant to that criminal history.
On 3 November 2015, Mr Fahiye applied to this Tribunal seeking review of the decision that he is not eligible for Australian citizenship because he is not of good character (T1/1-2).
BACKGROUND
Mr Fahiye is a 31 year old citizen of Somalia who arrived in Australia on 5 February 2009. He has held a permanent refugee visa since 31 December 2009.
On 17 July 2013, Mr Fahiye applied for grant of Australian citizenship. In his application he answered “no” to the question: “Are you aware of any proceedings against you overseas or in Australia for an offence, including proceedings by way of appeal or review?” (Statement of Facts and Contentions of the Respondent dated 3 February 2016 at paragraph 3).
On 30 October 2013 (in the South Hedland Magistrates Court), Mr Fahiye was convicted and fined for the following offences – both of which occurred on 5 August 2012:
·Carried (possessed) an article with intent to cause fear that someone will be injured or disabled by its use – fined $500.00; and
·Common assault – fined $300.00.
The circumstances surrounding these offences were described by Mr Fahiye in a letter dated 23 August 2015 (see below at paragraph 10).
Mr Fahiye applied for Australian citizenship on 3 June 2015. In his citizenship application he answered “no” to the question:
“Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any “spent convictions?” (T7/164).
On 21 July 2015, the Department of Immigration and Border Protection (the “Department”) asked Mr Fahiye to provide a statement outlining the circumstances of his convictions and character references. The Department advised:
…decision makers are entitled to give substantially more weight to statutory declarations than other statements (and) declarations from character referees that acknowledge the person’s criminal background, and attest to a change in character since, will be given considerable weight”.
In response, Mr Fahiye provided a letter dated 23 August 2015 which stated:
This whole incident occur on an early Saturday morning (05/08/2012) when I was on a night shift driving a Taxi, when all of a sudden scuffle started with Three intoxicated passengers that was on board my taxi, they started pouring alcohol on me, spat on me and strangled me with my shirt, then I grabbed my coin holder and started hitting on one of the passenger that was strangling me. I didn’t mean to cause bodily harm, it was never in my intention to cause suffering I was merely trying to get a relieve from the chokehold.
In my profession we encounter numerous threats from intoxicated passengers, most of the time is verbally but sometimes it gets physical. Instances like this test your character as a taxi driver especially when highly entrusted with public safety. I am not justifying what I did was right and I have learned a lot from that incident and if confronted by similar situation I know for fact that I will handle it with diligent and in a professional manner that is in line with the law (Statement of Facts and Contentions of the Respondent para 9).
The delegate refused Mr Fahiye’s application for citizenship on 7 October 2015 (T2/8-21).
LEGISLATION
A person is eligible to become an Australian citizen if the Minister is satisfied that she or he meets the requirements in s 21(2) of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”). These requirements include the requirement that a person be of good character at the time of the Minister’s decision on the application for citizenship: s 21(2)(h).
Whether Mr Fahiye is “of good character” is the only eligibility criterion in issue in these proceedings.
The Citizenship Act does not define “of good character”. Guidance is contained in the Australian Citizenship Instructions (“ACIs”). The ACIs are government policy and should be applied unless there are compelling reasons against their application: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. They are discussed further below.
EVIDENCE
The Tribunal had before it the following evidence:
·The “T Documents” (T1-14, pp 1-181) (Exhibit R1)
·Criminal Code Act Compilation Act 1913 – Notes – Assaults (Exhibit R2)
·Prosecution Notice South Hedland dated 22 November 2013 (Exhibit R3)
·Notice of Conviction South Hedland Magistrates Court dated 30 October 2013 (Exhibit R4)
·Character references (6) – Dalacha Doyo Bagaja dated 12 November 2013, Mohamed Abdulahi dated 12 November 2013, Dr Richard Whitewell dated 6 November 2013, Che Hillson dated 12 november 2013, Hassan Egal dated 15 November 2013 (Exhibit R5)
·Character references (3) – Ivan A Spoljaric dated 20 January 2016, WA Multicultural Family Day Care dated 25 January 2016, Ahmed Affey dated 3 February 2016 (Exhibit A1)
·Statement of Trent John Styles dated 6 August 2012 (Exhibit A2)
·Statement of Facts and Contentions of the Respondent dated 3 February 2016
THE MEANING OF GOOD CHARACTER
Chapter 10 of the ACIs provides guidance for assessing an applicant under the good character test. It cites Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, in which the Full Federal Court noted:
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 while 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.
The ACIs state that “enduring moral qualities” means the demonstration of characteristics over a long period – distinguishing right from wrong, behaving in an ethical manner, conforming with the rules and values of Australian society. The ACIs state 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 their migration and citizenship processes” (ACIs cl 10.3.1).
The ACIs further provides that an applicant of good character would:
·Respect and abide by the law in Australia and other countries.
·Be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.
·Not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance) (ACIs cl 10.3.4).
Criminal convictions are relevant in determining good character. In Kakar v Minister for Immigration and Multicultural Affairs (2002) AATA 132, Deputy President Wright said:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
The ACIs require decision makers to turn their minds to any mitigating factors that might mean an applicant is of good character despite his or her criminal convictions. These factors include: the passage of time since offending; whether the person has accepted responsibility and shown remorse; extenuating circumstances related to the offences; whether the person has engaged in anger management counselling; evidence of employment; and, references from independent people and employers (ACIs cl 10.5.2).
CONSIDERATION
The Minister contends that Mr Fahiye is not of good character pursuant to s 21(2)(h) of the Citizenship Act and therefore should not be granted Australian citizenship. The Minister contends at paragraph 28 of his Statement of Facts, Issues and Contentions that:
…given the violent nature of the offence, the absence of any pro-active rehabilitation, the limited remorse and reasonable doubt that the applicant has fully accepted responsibility for his offending behaviour the respondent contends that sufficient time has not passed for the applicant to demonstrate that he has rebuilt his character since the offences.
Offences
Mr Fahiye has two criminal convictions arising out of a single incident on 5 August 2012. The offences involved violence. Mr Fahiye pleaded not guilty, and his version of the incident differs from that provided by a witness involved in the incident (Exhibit A2). The Tribunal does not have before it the magistrate’s sentencing remarks but notes that hat Mr Fahiye was found guilty in the South Hedland Magistrates Court on 30 October 2013 (Exhibit R4).
On 22 November 2013, Mr Fahiye was allowed a spent conviction (T12/179).
Although Mr Fahiye’s offences relate to a single incident in the context of a challenging work environment (driving a taxi ate at night, as discussed below), the Tribunal regards his criminal record as being sufficiently serious to weigh against Mr Fahiye being of good character.
Mr Fahiye’s evidence
Mr Fahiye gave evidence that he has family in Somalia and a sister in Nairobi, and that he needed an Australian passport so that he could visit them.
In relation to this issue, the Tribunal notes the following guidance contained in the ACIs:
Sometimes applicants will argue that they need to become Australian citizens urgently because they need to travel. Generally, this is not a relevant factor and a decision must be made on the merits of the application itself (ACIs cl 10.5.3).
Before this Tribunal, Mr Fahiye expressed his commitment to Australia and his strong desire for citizenship. He said that he demonstrated good character by working six days a week and that his conviction had taught him a lesson.
In relation to the offences on 5 August 2012, Mr Fahiye denied carrying a knife or a stick, as asserted by those who pressed charges against him. He told the Tribunal that the victim had lied to the Court. Mr Fahiye did not express any empathy or sympathy for the victim. Further, the evidence shows that he has not engaged in any counselling or sought anger management assistance since the assault for which he was found guilty occurred.
Mr Fahiye told the Tribunal that taxi driving is a hard job because it sometimes requires a driver to control emotions and manage their anger. The Tribunal accepts this.
Mr Fahiye said he intended to continue driving a taxi but was not currently doing so because his Driver’s Licence had recently been suspended as a consequence of speeding (at 154 kph) and reckless driving convictions. He told the Tribunal he was seeking an Extraordinary Licence.
The Tribunal accepts that Mr Fahiye has expressed some limited remorse over his offending, but that remorse seems more centered on the consequences to him rather than a genuine acceptance of responsibility or sympathy for his victims.
Having regard to Mr Fahiye’s evidence, the Tribunal attaches limited weight to his claimed sense of remorse.
Failure to disclose convictions
The Tribunal is particularly concerned that Mr Fahiye failed to disclose his convictions in his second citizenship application dated 3 June 2015 (see above). Before this Tribunal, Mr Fahiye explained that he answered “No” to question 34 (T7/164) after a telephone conversation with his lawyer, Dr Richard Whitwell.
The Tribunal does not accept that Mr Fahiye answered “No” on legal advice. Although dated more than two months after Mr Fahiye made his application, a letter to Mr Fahiye from Dr Whitwell relevantly includes the following explanation:
Through the granting of the spent conviction the magistrate felt that you were able to rehabilitate into the general society without carrying a tag warning of the convictions… However, in Australia you are not excused from declaring the conviction in certain specified circumstances such as border security and citizenship (T12/178).
The Tribunal considers it highly unlikely that any advice related to Mr Fahiye’s citizenship application, provided by Dr Whitwell in a telephone conversation, would be inconsistent with that quoted in the paragraph above.
In the circumstances, the Tribunal considers the non-disclosure of his convictions to be entirely inconsistent with good character.
Character References
Prior to the determination of his citizenship application, Mr Fahiye provided a number of references including one from his lawyer, Dr Richard Whitwell. These documents attest that Mr Fahiye is reliable, helpful, honest, dedicated and loyal. These documents are not statutory declarations and only Dr Whitwell’s letter makes reference to Mr Fahiye’s offending (Exhibit R5).
Mr Fahiye obtained references in August 2015 in response to a letter from the Department regarding the good character requirement (T9/175). These references speak positively about Mr Fahiye’s qualities. They are not statutory declarations and, importantly, do not acknowledge Mr Fahiye’s offending or any rehabilitation since his convictions (T10/176, T13/180, T14/181).
Mr Fahiye tendered three further references from his employer Carlindie Cabs, WA Multicultural Family Day Care and the Somali Community Association Inc. These references are not statutory declarations but all acknowledge Mr Fahiye’s offences, his remorse and his good character. The employer reference included the statement:
Dalmar was very remorseful and realised the mistake he had made soon after receiving his conviction, Port Hedland is a very testing environment, especially for new drivers (Exhibit A1).
Regrettably, none of the people writing references for Mr Fahiye were available for cross examination.
Under citizenship policy the Tribunal is entitled to give more weight to statutory declarations than to other statements, and character references that acknowledge the person’s criminal background and attest to a change in character since should be given more weight than those that do not do so.
Having considered the references before it, the Tribunal gives the character references some weight in assessing whether Mr Fahiye is of good character.
Lasting or enduring period of time
There are no rules or guidelines for assessing that sufficient time has passed for the Tribunal to determine that Mr Fahiye is now a person of good character. The ACIs state:
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be “lasting” or “enduring” depends on the merits of each case, but in most cases will go back prior to any visa application (ACIs cl 10.5.4).
In Assafiri v Minister for Immigration and Border Protection (2014) AATA 35, Senior Member Toohey considered the question thus:
It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
…
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so, as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.
Mr Fahiye’s offences occurred on 5 August 2012. He made his first application for citizenship on 17 July 2013 and in that application failed to disclose the outstanding court matter.
Mr Fahiye was convicted on 30 October 2013. He made his second application for citizenship on 3 June 2015 and in that application failed to disclose the convictions (T7/164).
Since the refusal of his citizenship application Mr Fahiye has also been convicted of serious traffic offences. These convictions, although for traffic offences rather than violent crimes, impact on Mr Fahiye’s intention to continue his employment as a taxi driver and contribute to society.
There was no evidence before the Tribunal that at any time during the court and citizenship processes Mr Fahiye had engaged in positive rehabilitation action such as counselling or anger management. This is of considerable concern to the Tribunal. There is a lack of objective evidence that he has acquired the skills to handle any future challenging or confrontational circumstances or that he is now of good character.
Having considered the issue of “lasting or enduring period of time”, the Tribunal concludes that the relevant evidence militates against Mr Fahiye being of good character. The Tribunal is not satisfied that sufficient time has elapsed to allow an assessment that Mr Fahiye is of good character for the purposes of the Citizenship Act.
CONCLUSION
The Tribunal accepts that Mr Fahiye has a genuine desire for Australian citizenship and a commitment to Australia. The Tribunal acknowledges that several referees have attested to his qualities and potential.
However, having considered all the evidence and for the reasons given above, the Tribunal is not reasonably satisfied that Mr Fahiye is of good character for the purposes of the Citizenship Act.
Nothing about this decision prevents Mr Fahiye from making a further application for Australian citizenship in the future.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall, Brigadier AG Warner, Member .......[Sgd].................................................................
Administrative Assistant
Dated 3 June 2016
Date of hearing 10 May 2016 Applicant In person Representative for the
RespondentMr A Gerrard Solicitors for the Respondent
Australian Government Solicitor
Key Legal Topics
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