Garari and Minister for Immigration and Citizenship

[2011] AATA 208

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 208

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5207

GENERAL ADMINISTRATIVE DIVISION		)
Re		Redwan Garari

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date of Decision                 10 March 2011

Date of Written Reasons  29 March 2011

Place  Sydney

Decision The decision under review is set aside and the matter is remitted to the Minster for reconsideration with the direction that Mr Garari satisfies the character requirement in s 21(2)(h) of the Australian Citizenship Act 2007  (Cth).

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

Senior Member

CATCHWORDS

CITIZENSHIP - application for Australian citizenship by conferral refused – character test – policy criteria – whether assault conviction meant applicant not of good character – Tribunal satisfied offence one-off incident and out of character – Tribunal satisfied applicant of good character – decision under review set aside

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

Road Transport (Safety and Traffic Management) Act 1999 (NSW) – s 10(1)(a)

REASONS FOR DECISION

29 March 2011 Senior Member Jill Toohey           

1.      On 10 March 2011, the Tribunal delivered oral reasons in this matter.  These written reasons have been produced at the request of the Minister for Immigration and Citizenship (the Minister).  They reflect the transcript of the oral reasons with the addition of relevant legislative provisions and with minor amendments for clarity of expression and to correct typographical errors. 

Background

2.      Mr Garari seeks review of a decision by the Minister to refuse his application for citizenship on the ground that he is not of good character as required by the Australian Citizenship Act 2007 (“the Citizenship Act”).

3.      Mr Garari arrived in Australia as a refugee from Iraq in August 2001.  In August 2005, he was granted a protection visa which entitled him to permanent residency.  He married his wife in Iraq in 2008.  She had to wait a time for a visa, and arrived in Australia in August 2009. 

4.      On 30 March 2009, Mr Garari was involved in an incident at the flat he shared with two other men.  An argument broke out, as a result of which his flatmates called the police.  Mr Garari was charged with common assault and being armed with intent to commit an indictable offence.  According to the police facts sheet, Mr Garari threatened one of his flatmates with a kitchen knife and threatened to kill him.  Perhaps not surprisingly, Mr Garari has a slightly different version of events.  However, he pleaded guilty as charged and was convicted.  On 9 June 2009 he was placed on a good behaviour bond for 12 months. 

5.      Documents before the Tribunal show that, on 20 April 2009, Mr Garari submitted to a random breath test which resulted in him being charged with driving with a low range blood/alcohol level.  The Minister has not pressed argument about this matter but it remains relevant to Mr Garari’s character, although by its nature of less weight than his criminal conviction. 

6. A document from the Parramatta Court shows that, on 26 August 2009, the drink driving charge was dismissed “under section 10(1)(a)” which I take to be a reference to the Road Transport (Safety and Traffic Management) Act 1999 (NSW). In the meantime Mr Garari had completed a Traffic Offenders Intervention Program.

7.      It appears, from a report from the provider of the Traffic Offenders Intervention Program, that Mr Garari did not comply with the requirement to bring with him an official interpreter.  However, he apparently completed the Program successfully.  He was noted to be a quiet and polite participant who participated in class discussions and activities when called upon. 

Legislation

8. Section 21 of the Citizenship Act sets out the general criteria for eligibility for citizenship. They include that a person be of good character at the time of the Minister’s decision on the application: sub-section 21(2)(h).

9.      Good character is not defined in the Act.  However, the Australian Citizenship Instructions (“the Instructions”), issued under the Act, guide me as to how I should make a decision. 

10.     The Instructions state that a person’s criminal record is relevant to assessing his or her character.  A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court in order to establish a pattern of good behaviour and to justify a conclusion that he or she is now of good character.  Appropriate weight must be given to a person’s behaviour immediately before making a decision. 

11.     In relation to criminal convictions, the factors to be taken into include the seriousness of offences; length of any prison sentences; repeat convictions for the same offence; repeat criminal behaviour over time; concealment of any offences; any ongoing obligations in relation to a sentence; length of time between last offence and application for citizenship; any extenuating circumstances; age at which the crime was committed; associations with other criminals: Attachment A to the Instructions.

12.     It is also relevant to consider whether the offence was a single offence; if so, it may be considered out of character, although due weight should still be given to the type of offence. 

13.     Considering how all these matters apply to Mr Garari, there is no question that assault and, more particularly, being armed with intent to commit an indictable offence, are serious charges.  As I have said, the police facts set out the police version of what happened and Mr Garari has a slightly different version.  I accept that there may be two sides to these matters.  I accept Mr Gargari’s evidence that there was an argument, one reason for which was that he wanted the flatmates to move out because of his wife’s imminent arrival from Iraq. 

14.     I do not have the benefit of reading the sentencing remarks of the magistrate or any other information as to what happened in court when Mr Garari was convicted.  What I can see, however, is that he was placed on a good behaviour bond.  The sentence can be considered indicative of the seriousness with which the court viewed his offence.  One thing that is apparent from the police facts sheet, is that there was no actual physical assault by Mr Garari.  His drink driving offence the following month also appears to have been at the lower end of the scale.  Although not all the details are clear from the papers, what is known is that the final outcome was that this charge was dismissed.

15.     I have to look at all the circumstances of the case.  It is true that Mr Garari has only been free of obligation to the court since the good behaviour bond was discharged in June 2010.  However, it is nearly two years now since the actual offence and, other than the drink driving charge in April 2009, he has not re-offended. 

16.     The relatively short time that Mr Garari has been free of obligations to the court has to be considered in light of the fact that he had been in Australia for eight years before the assault without any blemish on his record.  As well, he has been in full-time employment as a painter for nine of the 10 years he has been in Australia.  There is no independent evidence about this, but the Minister does not challenge that claim, and I have no reason to doubt what Mr Garari says.  Mr Garari has told me he is not currently working for reasons to do with his family, but he intends resuming full time work, and I accept that.

17.     Considered in the context of 10 years in Australia, and in the absence of any other evidence to suggest that he is otherwise not of good character, I am satisfied that Mr Garari’s criminal conviction, while for a serious offence, was an isolated incident and out of character. 

18.     I have considered what the Minister says about Mr Garari making a false statement in his letter to the Minister about the nature of is relationship with the victim and that they have remained close friends.  Mr Garari clarified frankly this morning that he is “not that close” to the victim and only sees him sometimes.  I accept he may have exaggerated his statement to the Minister, but I am satisfied that it is not so far from the truth that it should outweigh other considerations. 

19.     I have considered Dr Saeed’s letter in support of Mr Garari.  Dr Saeed apparently knows about Mr Garari’s convictions and is willing to speak highly of his good character nevertheless.  I have not had the benefit of hearing directly from Dr Saeed, but I have no reason to doubt what he has written.  He writes in his capacity as a professional person. 

20.     For the Minister it was contended that little weight should be placed on Dr Saeed’s letter because Mr Garari only told him about his convictions when he asked for the letter of support.  However, Mr Garari has not claimed to be close to Dr Saeed, and people commonly prefer not to disclose matters such as convictions. 

21.     It was also contended for the Minister that less weight should attach to Dr Saeed’s letter because of Mr Garari’s evidence that he sees Dr Saeed socially, such as on religious festivals, and has been to his house.  I accept that Dr Saeed’s letter should be given less weight than if he was completely independent but his social relationship with Mr Garari appears to be based around community and religious events rather than a close personal relationship.  In my view, it counts in Mr Garari’s favour that Dr Saeed was willing to put his support in writing.

22.     At the hearing this morning, Mr Garari acknowledged his mistake in committing the offences in March 2009.  I accept that he is genuinely remorseful.  Considering that he has a single criminal conviction for an offence which the court saw fit to deal with by way of good behaviour bond, that he has been in Australia for 10 years without any other conviction other than the drink-driving offence, and that he has been in steady, full-time employment except for very recently and will resume full-time work as soon as he is able to, I am satisfied that Mr Garari is of good character and, subject to satisfying any other requirements that the Minister has, that his application should be granted.

23. The decision under review is set aside and the matter is remitted to the Minster for reconsideration with the direction that Mr Garari satisfies the character requirement in s 21(2)(h) of the Australian Citizenship Act 2007  (Cth).

I certify that the 23 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         ...............[sgd].............................................................
           Diana Weston  Associate

Date of Hearing  10 March 2011

Date of Decision  10 March 2011
Date of Written Reasons  29 March 2011

ApplicantSelf-represented

Representative for the Respondent                Ms K Hooper, DLA Phillips Fox