Fateminia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 695

Fateminia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 695 (8 April 2022)

Division:GENERAL DIVISION

File Number(s):       2021/0239

Re:Afshin Fateminia   

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:8 April 2022  

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether the Applicant is of good character – applicant found guilty of refuse or fail to submit to breath analysis and common assault – where applicant contends facts upon which a finding of guilty is based – decision under review 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
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366

SECONDARY MATERIALS

Australian Citizenship Policy Statement

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

REASONS FOR DECISION

Mr S Evans, Member 

8 April 2022

INTRODUCTION

1. Afshin Fateminia (‘the Applicant’) is a citizen of Iran who applied for Australian citizenship by conferral. On 22 December 2020 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) refused his application having found that he was not of ‘good character’, which is one of the requirements for Australian citizenship. The Applicant contends he meets the character requirements for conferral of Australian citizenship and seeks review of the delegate’s decision at the Administrative Appeals Tribunal (‘the Tribunal’). 

2. For the reasons that follow, the decision under review will be affirmed.

   BACKGROUND

3. The Applicant was born in Iran in June 1976 and first arrived in Australia on 12 April 2011 as an irregular maritime arrival and has held a permanent visa since June 2012. 

4. The Applicant first lodged an application for citizenship on 16 May 2016, which was refused. An invalid application lodged on 16 September 2019 was also refused. A third application followed on 1 October 2019 and another on 6 May 2020, both of which were unsuccessful.

5. The application which is the subject of this review was lodged on 15 September 2020. On 22 December 2020 the Applicant was advised that his application had been refused as he did not meet the character requirements owing to his criminal record.

   LEGISLATIVE AND POLICY FRAMEWORK 

6. 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. 

7. 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.

8. 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

9. 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.[1]

   [1] (1996) 68 FCR 422, 431 – 432.

10. The Department’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 Australian Citizenship Procedural Instructions. The Policy Statement provides context to the Instructions.

11. 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.

12. 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.

13. 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.’[2] A person’s enduring moral qualities encompass:

    (a)characteristics which have endured over a long period of time;

    (b)distinguishing right from wrong; and

    (c)behaving in an ethical manner, conforming to the rules and values of Australian society.

    [2] CPI 15, subsection 3.3.

14. 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.   

    EVIDENCE

15. The Applicant gave evidence under affirmation and did not call any witnesses in support of his application. 

    Offending

16. The Applicant’s criminal history consists of one count of refuse or fail to submit to breath analysis – 1^st off (‘the driving offence’) and one count of common assault – T2 (‘the common assault’).

17. The Applicant appeared in the Parramatta Local Court on 16 June 2015 in relation to the driving offence which occurred in the early hours of New Year’s Eve 2014. The Tribunal does not have the benefit of any sentencing remarks from the Court, though NSW Police documents have been provided under summons.

18. In summary, the account contained in the police facts sheet records that two officers were on patrol when they noticed the Applicant’s vehicle swerve and then drive ‘well under the posted speed limit’. The officers followed the vehicle for a period before stopping it. The Applicant was driving and when asked by police if he had consumed alcohol he said he had not and that he was hungry and on his way to a McDonald’s. 

19. The Applicant took a breath test for alcohol which indicated a positive result. He was asked again if he had taken any alcohol and he replied ‘[j]ust some beer. little bit’. He told the officers it was two hours ago and he was okay to drive. He was taken back to the station where he was to take a further breath test. He is reported to have failed to produce a sufficient sample of breath by not completing a continuous breath on six occasions.

20. The Applicant was then afforded an opportunity to take a blood sample with the costs to be met by him. He refused and was issued a court attendance notice, and subsequently issued a fine and had his driver licence suspended.

21. On 2 September 2019 the Applicant appeared in the Burwood Local Court where he was found guilty of common assault – T2 without proceeding to conviction and directed to enter into a Conditional Release Order for 12 months.

22. Once again, the circumstances of the offending are set out in the NSW Police facts sheet. On the afternoon of 24 July 2018 the Applicant was driving his car and suddenly stopped in order to speak on his mobile phone. He was obstructing traffic in the one lane that was open. A traffic controller who had been directing traffic at a road work site asked the Applicant to move his vehicle further down the road so as not to obstruct the traffic. The Applicant complied however only moved a short distance. The traffic controller approached the Applicant a second time to request he move further down the road. The Applicant refused and continued to speak on the phone, at which point the traffic controller stood in front of the Applicant’s vehicle and took a photo of it. The Applicant then became angry and yelled offensive abuse at the traffic controller. He began to slowly accelerate his vehicle towards the traffic controller causing the front bumper to make contact with both knees of the traffic controller, but ‘did not cause any injury or pain to her’.

    The Applicant’s evidence  

23. The Applicant provided a statutory declaration dated 16 December 2020 in which he addresses aspects of his offending. At the commencement of cross examination by the representative of the Respondent he was asked if he stood by the statement, which he agreed. 

24. In relation to the drink driving offence, the Applicant writes that he was driving the vehicle when he was stopped by police for a ‘random breath test’. He writes that ‘[a]t the time I did not have any alcohol, however my friend did’. He was taken to the police station where he ‘unsuccessfully attempted the breath test 3 times’. He ‘explained that [he] was trying [his] best’ and ‘offered to have a blood sample taken’ but that Police ‘did not accept [his] alternative’. 

25. In relation to common assault he writes that he ‘was driving and parked [his] car in a quite [sic] place with no traffic’ so that he could speak to someone in Iran about an accident in which his brother had been injured. He writes that a traffic controller approached him and asked him to move forward and he complied and ‘stopped [his] car in [the] [d]esignated parking spot and continued to speak on the phone’.

26. When the traffic controller approached the Applicant once more requesting him to move his vehicle, the Applicant claims he explained he was on an urgent phone call from Iran, ‘however she insisted again’.

27. The Applicant asked the traffic controller to give him ‘one more minute’, but she refused. ‘A small dispute ensued’, after which he moved his car. As he was slowly moving his car, the traffic controller ‘was very softly hit by’ the Applicant’s car. 

28. When questioned about the common assault by the Respondent’s representative, the Applicant disputed some of the details contained in the police report. He claimed he was stopped in a car park, not on the road, and that he was not angry at the traffic controller but upset about what had happened to his brother. He said he told the traffic controller this and then moved away. He claimed that his vehicle did not make contact with the traffic controller. Asked why he pleaded guilty to the offence he said he did so on the advice of his lawyer and a desire to bring the matter to an end.

29. When it was put to him that his account at the hearing was inconsistent with that provided in his statutory declaration, the Applicant told the Tribunal that the statutory declaration was prepared on his behalf by his lawyer and that he had signed it without having read it.

30. The Applicant also explained that at the time of the driving offence he had only recently been released from immigration detention. He was asked in cross examination why his statutory declaration indicated that he had not taken any alcohol. He explained that he was new to Australia and understood alcohol referred to hard liquor when he had only drunk beer. It was this misunderstanding which led to him driving the vehicle of his friend, who had been consuming whiskey. 

31. The Applicant contends that he was poorly treated by the police after he was pulled over, treated ‘like a dog’ and possibly discriminated against.  He claims not to have raised these issues previously as he did not want to create problems.

    CONSIDERATION

32. The Respondent contends that the Applicant does not meet the good character requirement in paragraph 21(2)(h) of the Act on account of his offending.

33. The Applicant submits that the decision of the delegate was flawed owing in part to the delegate’s conclusion that his offending was appropriately considered ‘serious’. It is argued that errors were made in the application of departmental policy and conclusions were reached without evidence to support them.

34. In relation to the findings of the delegate, the powers of the Tribunal set out in section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) provide that the Tribunal has the powers and discretions conferred on the original decision maker – in this case the delegate – and makes a decision de novo. This means I hear the matter afresh and determine the correct and preferable decision on the evidence before the Tribunal. As such, the findings of the delegate are not determinative to the Tribunal’s consideration of the Applicant’s application.

35. The Applicant also takes issue with some of the content in the police facts sheets which were in evidence. It is submitted by the Applicant that police facts are not always an accurate description of events that occurred during a particular offence. I accept that some discrepancies between the events described by the police and those described by the Applicant may be accepted in the case of minor factual differences between the Applicant’s recollection and the Police facts sheets. In any case, the Applicant was afforded the opportunity to comment on the specifics of the facts presented by the police. The police facts are appropriately given substantial weight in the circumstances as the Applicant pleaded guilty to the offences to which they relate.

36. I have some concern about the Applicant’s evidence and particularly the inconsistencies between the Applicant’s oral evidence, his statutory declaration and the police account of the offending.

37. The Police facts sheet in relation to the common assault records that the Applicant ‘began accelerating slowly towards [the victim], causing the front bumper to make contact with both knees of the Victim’. In his statutory declaration the Applicant similarly describes that ‘[a]s I was slowly moving my car, [the victim] was very softly hit by my car’.

38. At the hearing the Applicant gave evidence that he had never hit the victim with his car, and that he only pleaded guilty to the offence as he believed it would be the most expedient course of action. In making this assertion he refuted both the police account recorded in the police facts sheet and his own statutory declaration.

39. In a post-hearing submission, the Applicant clarified that his contention at hearing that he had never hit the victim of his common assault with his car was made due to a misunderstanding. He claimed he understood that ‘hit’ implied violence resulting in injury or pain, and the victim of the common assault experienced neither. I do not accept this explanation as the Applicant was assisted by an interpreter at the hearing.

40. Irrespective of the victim’s lack of physical injury and the Applicant’s evidence in relation to this, I am satisfied that the common assault was characterised by aggression on the part of the Applicant.

41. The Applicant contends that the seriousness of the offending is mitigated by the fact he was speaking on the phone about an incident in which his brother had been injured. Other than the Applicant’s account, there is no evidence to support the nature of the Applicant’s phone call.

42. In relation to the drink driving offence, the Applicant claims in his statutory declaration that he ‘unsuccessfully attempted the breath test 3 times’ and that he was ‘trying [his] best’, eventually offering to have a blood sample taken.

43. Contrary to the Applicant’s account, police record that having failed to submit a breath analysis he had the option of having a doctor take a blood sample for analysis to determine the concentration of alcohol in his blood but that the medical and analytical expenses were to be met by the Applicant to which he replied ‘No’.

44. In his statutory declaration the Applicant states he pled guilty to the offence, was fined and had his driver licence disqualified. In considering the evidence including his guilty plea and sentencing, I am satisfied that the police account, notably in relation to the Applicant refusing a blood test, is supported and I accept the Respondent’s contention that the Applicant has intentionally provided incorrect information regarding the driving offence.

45. In relation to the seriousness of the drink driving offence, the Tribunal has consistently regarded driving offences involving alcohol as serious. In Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 the Tribunal observed:

    There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.

46. In a written submission the Applicant notes that when considering good character, CPI 15 guides decision makers to view applicants in a holistic way, considering all aspects that may be relevant to consideration of character. The Instructions also provide that when considering if an applicant is of good character mitigating circumstances may relevantly include the length of time since an offence was committed, remorse regarding offending behaviour and changes in the life of applicants.

47. There is a dearth of information about the Applicant beyond the details of his offending and his submissions regarding the specifics and circumstances which are outlined above.

48. At the hearing he told the Tribunal he has a wife and child and his obtaining citizenship is important for them. Australia is the place he wishes to stay and build a future. He has previously worked as a security guard but has not been able to work for some time on account of an injury and the COVID-19 pandemic. He has not provided any character references in support of his application, nor any detail as to his broader participation in the community.

49. The Applicant contends he is genuinely remorseful for his offending and gave evidence that he regrets the difficulties it has caused him. He told the Tribunal that his offending had caused him so many problems that he would not reoffend in the future. In the Applicant’s view he has paid the price for is offending, has not offended since the common assault and has learnt his lesson.

50. Based on his evidence the Applicant does not consider the offending to be particularly serious. He also disputes some details of both the driving offence and common assault offence. Though he pleaded guilty to the common assault charge, he maintains he did so on the advice of his lawyer, which he now regrets. He also claims to have received poor legal advice in relation to his statutory declaration which he maintains he neither wrote nor read prior to signing. 

1. The Applicant submits he is remorseful for his offending and contends it should be seen in the context of his recently having been released in the community following a period of detention when he arrived in Australia. He gave evidence that he was held in immigration detention for approximately 18 months, which he described as a very difficult period. I accept his evidence this regard.

2. The Applicant receives regular treatment for his mental health, though there is no evidence before the Tribunal in relation to this. The Applicant has not submitted any evidence to suggest he has engaged in rehabilitation or counselling to address his offending. Nor has the Applicant provided any references from third parties which attest to his good character. The Applicant submits that a lack of references should not result in the automatic conclusion that he is not of good character. Whilst this may be the case, community support is a mitigating factor which cannot be considered in his favour in the absence of evidence.

3. In a written submission, the Applicant reasons that good character does not mean perfect character. Though the term good character is not defined in the Act, the observation in Irving cited above supports this proposition. It refers to the enduring moral qualities of a person, noting that a person who has been convicted of a serious crime nonetheless may show that he or she has reformed and is of good character. 

4. The Applicant submits that he has learnt from his mistakes and that the offending was in the past, but I am mindful the common assault occurred relatively recently in July 2018. In Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 the Tribunal observed at [14]:

   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.

5. In my view the length of time between the offence and conviction is insufficient for the Applicant’s claim to have reformed to be tested. I also consider that the weight afforded to the Applicant’s expressions of remorse is lessened in circumstances where it relates primarily to the impact his offending has had upon him as opposed to the victims or community.

   CONCLUSION

6. Since arriving in Australia in April 2011 the Applicant has committed two offences. As to their seriousness, I accept that both are at the lower end of the spectrum. However, the offences assume a greater prominence when considered in the context of his qualified remorse, the short period of time that has passed since his last offence and the dearth of evidence to support mitigating factors or a broader contribution to the community. Furthermore, the Applicant’s claims to be of good character are not assisted by the inconsistencies is his evidence.

7. For these reasons, I am not positively satisfied that the Applicant is of good character for the purposes of paragraph 21(2)(h) at this time and the decision under review will be affirmed.

8. I am mindful that this decision will be disappointing to the Applicant. He has made numerous applications for citizenship. Whilst the standard of character required to obtain citizenship is high and I am not of the opinion that he meets that standard at this time, this decision does not preclude him from doing so in the future.   

   DECISION

9. For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 8 April 2022

Date(s) of hearing:	10 December 2021
Date final submissions received:	10 January 2022
Solicitor for the Applicant:	Ms A Ehsani, Barriston Lawyers
Solicitor for the Respondent:	Mr I Duldig, Clayton Utz