Fahiye and Minister for Immigration and Border Protection (Citizenship)

Case [2016] AATA 374

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, Member
Date 3 June 2016
Place Perth

The Tribunal affirms the decision under review.

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

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, Member

3 June 2016

INTRODUCTION

  1. 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).

  2. 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.

  3. 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

  4. 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.

  5. 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).

  6. 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.

  7. The circumstances surrounding these offences were described by Mr Fahiye in a letter dated 23 August 2015 (see below at paragraph 10).   

  8. 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…

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Details
AGLC
Fahiye and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 374
Case
[2016] AATA 374
Decision Date

CaseChat Overview and Summary

This matter concerned an application for Australian citizenship by Mr Fahiye, who sought review of the Minister for Immigration and Border Protection's decision that he was not eligible for citizenship due to not being of good character. Mr Fahiye had two criminal convictions for common assault and possessing an article with intent to cause injury, arising from a single incident in 2012. He had failed to disclose these convictions in his subsequent citizenship application. The Administrative Appeals Tribunal (AAT) affirmed the Minister's decision.

The primary legal issues before the Tribunal were the meaning of "good character" in the context of citizenship applications, and whether Mr Fahiye's criminal convictions and failure to disclose them meant he did not meet this character requirement. The Tribunal was required to consider whether sufficient time had passed since the offending for Mr Fahiye to demonstrate rehabilitation and a change in character, and to assess the weight to be given to his expressed remorse and explanations for his conduct and non-disclosure.

The Tribunal reasoned that while Mr Fahiye's offences arose from a single incident in a challenging work environment, their violent nature, coupled with his failure to disclose the convictions in his citizenship application, weighed against him being of good character. The Tribunal found that Mr Fahiye's remorse appeared to be focused more on the consequences to himself rather than a genuine acceptance of responsibility or sympathy for the victim. Furthermore, he had not engaged in any counselling or anger management. The Tribunal also did not accept his explanation for failing to disclose the convictions, noting advice that such convictions must be declared in Australian citizenship applications.

The Tribunal affirmed the decision under review, finding that Mr Fahiye had not demonstrated that he was of good character for the purposes of the Citizenship Act. The decision noted that Mr Fahiye remained at liberty to make a future application for citizenship.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.