FLMJ and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 454

FLMJ and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 454 (30 June 2016)

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2015/6506
Re	FLMJ
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	30 June 2016
Place	Sydney

The Tribunal affirms the decision under review.

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Dr L Bygrave, Member

CATCHWORDS

Citizenship – conferral of Australian Citizenship – whether applicant of good character – domestic violence offences – driving offences – insufficient time has passed – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 s 21(2)(h)

CASES

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608

SECONDARY MATERIALS

Citizenship Policy

REASONS FOR DECISION

Dr L Bygrave, Member

30 June 2016

BACKGROUND

1. Mr FLMJ was born in Iraq and arrived in Australia in February 2010. He currently holds a subclass XA866 protection (permanent) visa granted in February 2011.

2. Mr FLMJ lodged an application for Australian Citizenship on 25 August 2015 (Citizenship application) under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The application was refused by a delegate of the Minister for Immigration and Border Protection on 17 November 2015 because she was not satisfied that Mr FLMJ was of ‘good character’ at the time.

4. On 15 December 2015, Mr FLMJ applied to the Tribunal for review of that decision.

5. The matter was heard in Sydney on 20 June 2016. At the hearing, Mr FLMJ was unrepresented but was assisted by an interpreter of the Arabic language.

   RELEVANT LEGISLATION AND ISSUES

6. The issue before the Tribunal is whether it is satisfied that Mr FLMJ is of ‘good character’ in accordance with subsection 21(2)(h) of the Act.

   Definition of ‘good character’

7. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which from 1 June 2016 replaces the policy guidance previously provided in Chapter 10 of the Australian Citizenship Instructions (ACIs), which was last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions.

8. The role of the Citizenship Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

9. I am considering this matter afresh (de novo) and although the ACIs was the relevant policy guidance at the date the reviewable decision was made, the relevant policy from 1 June 2016 and at the time of hearing was the Citizenship Policy. In any event, whichever policy I consider makes very little difference to the decision I am tasked to make. Both documents are similar on the aspects relevant to this matter.

10. As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

    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…

11. The Citizenship Policy states the phrase ‘enduring moral qualities’ encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.

12. This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. I can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship process.

13. In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in a citizenship application:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

14. The Citizenship Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevantly, a person of good character would, inter alia:  respect and abide by the law in Australia, not be violent and not cause harm to others through their conduct.

15. That then leaves the question of mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Citizenship Policy, the Tribunal is to weigh up certain factors, applying community standards.

16. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way Mr FLMJ did, the amount of time that has elapsed since offending, whether Mr FLMJ has demonstrated that he can uphold and obey the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to the offences.

    Offences

17. On 22 April 2012, Police attended Mr FLMJ’s house in response to a call from his partner who alleged that Mr FLMJ had punched her on her right arm and hand. The Police applied for a non-urgent Apprehended Violence Order (AVO) against Mr FLMJ.

18. An AVO was ordered for 12 months by Blacktown Local Court on 16 May 2012, which was entered into by Mr FLMJ with consent and without admission. This order expired on 16 May 2013 and no incidents were reported during this period.

19. On 9 November 2013, Mr FLMJ was charged with ‘common assault’ and ‘intimidation with intent to cause fear of physical and mental harm’. As a result of these charges, on 13 November 2013 the Police applied for an interim AVO against Mr FLMJ, which was ordered by the Blacktown Local Court to remain in force until revoked or until a further order was made.

20. The Blacktown Local Court found Mr FLMJ guilty of these charges on 18 February 2014 and imposed a good behaviour bond for 18 months.

21. At the Tribunal hearing, Mr FLMJ acknowledged that these charges related to him throwing objects at his partner resulting in her being physically harmed, throwing objects around the living room while yelling at his partner, refusing to let his partner take their children from the house, and threatening to kill her if she reported to the Police. Mr FLMJ took full responsibility for his actions and expressed remorse. He said that he didn’t mean it when he threatened to kill his partner. He explained that he was diagnosed with Parkinson’s disease in late 2013 and this meant he could no longer physically harm his partner. He has also been diagnosed with post-traumatic stress disorder (PTSD) and depression. He remains under the care of his treating medical doctor (general practitioner) but is no longer seeing a clinical psychologist.

22. Mr FLMJ was also charged with two speeding offences. On 29 May 2013, Mr FLMJ committed the offence of ‘class A m/v speed exceed > 20 km/h’ and on 1 April 2014, he committed the offence of ‘class A m/v speed exceed > 10 km/h’. These offences are not considered to be serious under the Citizenship Policy and I note that at the date of this hearing, it has been more than two years since Mr FLMJ’s last speeding offence.

    Failure to disclose offences

23. The respondent contends that Mr FLMJ failed to disclose his offences in the section headed ‘Part F – Good character and criminal offences’ of the Citizenship application.

24. Mr FLMJ’s answer at question 35(a) in the Citizenship application was as follows:

    Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia? 

    No

25. Mr FLMJ told the Tribunal that someone at the Migrant Resource Centre in Blacktown helped him complete the Citizenship application as he does not understand a lot of English. He said that the person assisting him had ‘copied from an old application’ and acknowledged that this answer on his application was incorrect.

26. In a comment box under question 35, I note that Mr FLMJ wrote that he had a good behaviour bond that expired on 18 August 2015, which was related to domestic violence in which he was involved.

27. Based on the evidence before me, I am satisfied that Mr FLMJ disclosed in his Citizenship application the nature of his offence, that he had a good behaviour bond and when the good behaviour bond finished.

    Character references

28. Mr FLMJ produced two letters dated 15 May 2012 and 30 June 2014 from a consultant psychologist. These letters describe Mr FLMJ as suffering from major depression and post-traumatic stress disorder, but state that Mr FLMJ ‘appears to have gained significant insight’ into his mental health issues.

29. During the Tribunal hearing, Mr FLMJ said that he was no longer visiting a consultant psychologist but that these issues were being managed by his treating medical doctor.

30. I note that the letter dated 15 May 2012 was prior to the charges made against Mr FLMJ on 9 November 2013. It is therefore my view that this evidence does not have much weight in demonstrating whether Mr FLMJ is of good character.

31. Mr FLMJ provided limited evidence at the Tribunal hearing about his participation as a musician in community gatherings including at the Blacktown Arts Centre and Darling Harbour in Sydney, and at the WAMED Festival held in Perth in 2015.

32. No other character references were produced by Mr FLMJ.

    CONSIDERATION

33. Mr FLMJ was charged with a serious offence in 2013, which included assaulting and causing harm to his partner.

34. These offences are not consistent with the good character requirement in the Citizenship Policy for an applicant to not be violent and not cause harm to others. I also rely on the Tribunal’s decision in Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608, in which Deputy President Constance said that domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character’.

35. While Mr FLMJ has accepted full responsibility for his actions and expressed remorse, I have no evidence before me, such as character references from members of his family or members of the community, which demonstrates Mr FLMJ’s behaviour has changed and that he is of good character at this time.

36. I am also not satisfied that Mr FLMJ has displayed an adequate period of compliance with Australian law. Mr FLMJ’s good behaviour bond expired on 18 August 2015, 11 days before Mr FLMJ made this Citizenship application and less than one year from the date of this hearing.

    CONCLUSION

37. In considering all of the relevant circumstances and weighing the available evidence, I am unable to make a positive finding of good character for Mr FLMJ as required by subsection 21(2)(h) of the Act. For this reason, he does not satisfy subsection 21(2)(h) of the Act. 

38. My conclusion does not preclude Mr FLMJ from making a further application for citizenship in the future. It may be that with the passage of time, Mr FLMJ will be able to demonstrate that he does meet the requirements for a grant of citizenship.

    DECISION

39. For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member  

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Associate

Dated 30 June 2016

Date(s) of hearing	20 June 2016
Applicant	In person
Solicitors for the Respondent	Clayton Utz