Haeri and Minister for Immigration and Citizenship

[2009] AATA 422

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 422

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/6070

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MOHAMMAD REZA HAERI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date12 June 2009

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
  Senior Member

CITIZENSHIP – applicant is 22 migrated to Australian when aged 13 from Iraq – number of criminal offences and convictions in Australia – efforts in recent years to reform and rehabilitate – application refused because not of good character – application premature – decision affirmed

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

REASONS FOR DECISION

12 June 2009 Mr John Handley, Senior Member           

1.      Mr Haeri, the applicant in these proceedings, has sought review of a decision of the State Director of the Respondent Minister who on 12 December 2008 accepted a recommendation of a departmental officer made on 11 December 2008 to refuse his application for citizenship.  Specifically it was decided that the applicant did not meet the good character requirement because of a past criminal history.  It would appear that the decision-maker was referring to both s 21 (2) (h) of the Australian Citizenship Act 2007 (the Act) and departmental policy.

2.      The applicant and his family have a very unfortunate history.  He was born in Iraq on 29 June 1986.  When he was two months old his father was killed.  His mother survived but by reason of the insecurity and hostility then being endured in Iraq, his mother took him and two older sisters into Iran.  His mother gave evidence in these proceedings and said that three of her brothers were gaoled under the previous dictatorship operating in Iraq and by reason of travelling to Iran (for safety) she lost contact with her siblings and her parents.  The applicant's mother obtained some employment as a hairdresser and when he was 13 years of age she applied at the Australian Embassy in Iran for repatriation to Australia.  She arrived here with the applicant in 2002, his older sisters having previously migrated here.

3.      The applicant's mother said that as an infant she recalled that her son was sensitive and often made comment that (unlike his friends) he did not have a father.  After arriving in Australia she learnt English, enrolled in a program which qualified her ultimately to operate a child care centre and eventually she opened her own family day care facility.  Her son was largely alone during most days whilst she worked long hours.

4.      The applicant is presently 22 years of age.  He is a permanent resident.  He has an inglorious criminal history.  Between 2005 and 2007 he was found guilty of driving a motor vehicle whilst disqualified on three occasions.  He was also found guilty of stating a false name, driving an unregistered motor vehicle, driving whilst not authorised and speeding.  He was found to have failed to comply with an Intensive Correction Order on two occasions and on one occasion failed to answer bail.  He has also been convicted of 21 counts of obtaining property by deception.  As the number of convictions increased it would appear that the sentencing magistrates lost patience and ultimately sentenced him to a period of six months imprisonment (although from evidence heard during these proceedings it would appear that decision was varied on appeal and a non-custodial sentence was imposed - refer later).

5.      On 14 October 2008 the applicant was convicted of resisting police and tamper with a motor vehicle.  That conviction was imposed after the date that the applicant applied for citizenship but it would also appear from evidence heard in these proceedings that the offence was committed well before the date of application.

6.      The applicant said in evidence that he applied for citizenship in 2004 and it was granted to him.  He said he was then 18 or 19 years of age and was living alone because his mother had travelled to Iraq following the death of her father.  He said that he did not receive the letter advising him of the citizenship ceremony and accordingly he did not attend it.  When he made enquiries of the citizenship office some 12 months later, he learnt that the previous granting of citizenship had been rescinded.

7.      The applicant acknowledged that he had offended and agreed with the entirety of the police records found within the T-documents.  However he said that he had not offended in the last 16 or 17 months, that he was not a mature person at the time that he was offending, he acknowledges that he made big mistakes and by reason of support of his family and friends and medical practitioners he said that he would not offend again.

8.      During 2008 the applicant enrolled in what would appear to be an accountancy type course at the Kangan Batman College of TAFE where he studied for six months.  He also has worked as a spray painter and panel beater with a friend, he has purchased a motor car and repaired it and has also undertaken work of that type for friends.

9.      However it would also appear that applicant has been under the influence of older persons who have had an adverse influence on him.  He said that those persons had told him that offending is not a big deal.  Additionally he said that he did not realise that driving without a licence in Australia was an offence.

10.     He said, and this issue was corroborated by others that gave evidence, that he has now disassociated himself with those persons, that his mobile telephone is mostly turned off to avoid taking phone calls from them and but for the occasion that he engages voluntary in community type activity at the local Mosque, he remains at home.  Unfortunately in February this year the applicant said that he became very angry, the police were called and he was taken to a local police station.  Eventually he was admitted to a psychiatric facility as an inpatient where he remained until 3 April 2009.  Subsequently the applicant has been an outpatient and attends twice weekly for medication and counselling.  The applicant said that he will continue to attend this facility for another 12 months.

11.     The applicant said that he is now of good character, that he does not hurt or offend any persons and said that he could be trusted because, to use his words, inside my heart I am a good person.  He said he wanted to be a citizen because he wanted to have a passport issued to him to allow him to travel overseas to visit his grandmother in Iran.  He said that he was aware as a permanent resident he could obtain travel documents but said (following enquiries made by him) that only limited countries would accept papers of that type in lieu of a passport.  Additionally the applicant said that he wanted to be a citizen so that he could vote and be part of Australia.  He said that all of his family in Australia have obtained citizenship.

12.     The applicant's friend Ahmed AL-Shiakhly gave evidence.  He said when he first met the applicant about three years ago he was a very different person.  He said that he drove fast and had bad friends.  He took on what would appear to be a mentoring type role, being an older male person, and has had daily contact with the applicant for more than 12 months.  He said the applicant now listens to him and treats him as if he is an older brother.  He said he was giving evidence because he was sure about the applicant and said that he wants to be an Australian citizen to do the right thing in Australia.  He was satisfied that the applicant did not understand the seriousness of his previous behaviour and now knows that he keeps his mobile telephone turned off to avoid receiving contact with his past associates. 

13.     He said the applicant changed after June 2007 when he was sentenced to six months imprisonment.

14.     The applicant's sister, Rasha said that her brother had been under the influence of irresponsible persons commencing when he was living alone when she and her mother had travelled overseas in about 2004 or 2005.  She was aware that he had been apprehended by the police when he was sentenced to six months imprisonment and he then started to realise the serious nature of his previous behaviour.  She said that he had promised her that he would change and that he wanted to change.  She said that he helps her at the local Mosque and in Muslim community activities.  She was aware that he has undertaken some study, that he has recently been looking for work and she regarded him now as being a more responsible person. 

conclusion and reasons for decision

15.     Section 21 (2) (h) of the Act gives the Minister a discretion to determine that a person is eligible to become an Australian citizen (relevantly) if that person is of good character at the date that the decision upon the application is made.  The decision with respect to the citizenship application which has given rise to these proceedings was made on 12 December 2008.

16.     The words good character are not defined by the legislation but they are words in every day use and are well understood.  The Ministerial policy with respect to character, rather than assist in interpreting the meaning of that expression, does emphasise the consequences to a person applying for citizenship if they are found not to be of good character.

17.     In my view good character is a reference to a person's reputation and general conduct as observed by persons within the applicant's immediate environment and by other persons within the community.

18.     The Minister's policy records that a presumption of good character will be raised in the absence of evidence to the contrary.  Examples of poor character refer to a serious criminal record but equally evidence of general conduct or associations with others would be relevant.  The policy does not have an expectation of a person being faultless but a weighing exercise must be undertaken and community standards of behaviour must be recognised.

19.     The offences committed by the applicant for which he has been convicted are serious.  A summary of them appears earlier but the picture that emerges from the offences is of a person who not only breached local laws but did not honour the trust placed in him by his failure to comply with Intensive Correction Orders and failing to appear on one occasion whilst on bail. 

20.     Another picture which emerges from these offences is of a person who was immature, easily manipulated and probably out of control.  For a period of time he was living alone and until recently, when he has enjoyed the benefit of the mentoring of Mr AL-Shiakhly, he has not had any adult male influence in his life.

21.     There was evidence of the applicant having changed after June 2007 which would appear to be the occasion where he was sentenced to six months imprisonment, it being the third occasion that he had appeared before a Magistrates' Court for driving whilst disqualified in the preceding 18 months.  There was some evidence in these proceedings of the applicant having lodged an appeal against the imprisonment.  The applicant said he appeared before the County Court in October or December 2008.  There was no reference to that appearance in the summary provided by Victoria Police as found within the T-documents (although that information was provided on 15 October 2008 and it is not inconceivable that the appearance occurred after that date).  It was suggested by the applicant and by some of his witnesses that having been placed on a bond he was then regarded by the Appeal Judge as a person of reformed character.  Hopefully he is although I am troubled with respect to a number of matters. 

22.     In his application for citizenship at May 2008, the applicant did disclose that he had been convicted of offences, that there were proceedings pending against him and he was awaiting legal action (T-documents p37).  However he volunteered to disclose all the above offences its [sic] to [sic] driving matters and now I stop driving and studying at Kangan TAFE (p38).  That statement is not true.  There were prior convictions for breach of Intensive Correction Orders, failing to answer bail and obtaining property by deception.  The charge that was then pending and for which he was awaiting legal action was the matter which gave rise to the conviction on 14 October 2008 of resisting police and tamper with motor vehicles.  Clearly all of those offences were known to the applicant and were not driving matters.  The applicant did himself no credit by making the above statement, it being false and being given to the agency processing his request for citizenship when it is obliged to assess whether he is of good character. 

23.     I am also troubled by the evidence of Mr AL Shiakhly who was not aware of the applicant having been convicted in 2008 of resisting police and tampering with a motor vehicle.  He said that he was surprised that the applicant had not notified him.  That evidence was heard after the applicant had completed his evidence.  I am satisfied that Mr AL‑Shiakhly is a witness of truth (indeed I was impressed by him and his commitment to the applicant) and I am satisfied therefore that the applicant did not notify Mr AL-Shiakhly of that court appearance and that conviction.  Perhaps the applicant felt embarrassed or thought that he had breached the trust placed in him by Mr AL-Shiakhly.  The reasons are not known.  Indeed it is not known when that offence occurred.  The other witnesses were all aware of it and thought that it occurred in 2006 or 2007.  That would suggest that the appearance on 14 October 2008 occurred some 18 months to two years after the commission of the offence which does seem to be an extraordinary long period of time, nonetheless there is no evidence that the offences, as opposed to the convictions for them, occurred after May 2008 when the application for citizenship was made.

24.     The remaining matter which troubles me is that the applicant said that the police record with respect to the conviction of 14 October 2008 was wrong because he did not damage the vehicle.  Additionally he said that he didn't smash the motor vehicle.  The nature of the tamper is not known but the police report clearly indicates that he was convicted of tamper with a motor vehicle and resist police, was convicted and fined a aggregate of $200.00.  That suggests to me that the fine of $200.00 was with respect to both offences.  The conviction as recorded clearly as a reference to both offences.  Perhaps the relative modest nature of the fine, having regard to the applicant's prior criminal history, would suggest that there was either little or no damage to the relevant motor vehicle but the applicant does himself no credit in making the allegations that he has in the absence of evidence that the police records were incorrect.

25.     It would appear also that the applicant has suffered from an emotional type illness for some time which may also explain the offences that he has committed.

26.     At page 46 of the T-documents is a letter from Ms Toohey, a psychologist, which records that she had been treating for a period of 14 months at 1 July 2008.  That would suggest that she commenced her therapy with the applicant from April or May 2007.  The applicant said that he commenced to attend with Ms Toohey having been referred by a magistrate.  He said that he has been attending her twice weekly for about two years.  Perhaps attending her was a term of one of the Intensive Correction Orders.  Unfortunately Ms Toohey does not refer at all to the offences committed by the applicant however he did say that she was aware of his offences and that she had written reports which he had provided to the Magistrate and to the County Court Judge on appeal.

27.     Of some significance is a report which was received on the morning of the hearing from the psychiatric registrar at the Orygen Youth Health Centre in Melbourne.  The report records that the facility is a mental health service for young persons and it records that the applicant was admitted in February 2009 as an involuntary patient after police intervention.  That would appear to be the occasion in February of this year acknowledged by the applicant, at paragraph 10 earlier.  The report records that the applicant remained as an inpatient until 3 April 2009 during which time he was found to be manic and psychotic.  Medication was administered (including Lithium) and although discharged after a period of five weeks, the applicant continues to attend that facility twice per week as an outpatient and said that he is required to do so for the next 12 months.

28.     Of some significance is the history within the report of the applicant being a person who was struggling with symptoms for several months prior to February 2009.  It was the opinion of the treating psychiatrist that it was possible that the applicant's emerging mental illness contributed to his impulsivity, impaired judgement and offending behaviour.  It was noted that the applicant's family experienced trauma in Iraq including the death of his father whilst in conflict.  There was evidence to the treating doctor that early life trauma is a risk factor for developing mental illness.

29.     It was noted that the applicant had previously sought counselling, he has subsequently remained well, attends for regular outpatient reviews and has been engaged in the treatment regime.  Apparently he is under a Community Treatment Order which compels him to accept treatment for a prescribed period.

30.     On balance I am satisfied that the decision under review should be affirmed.

31.     I accept that the applicant has suffered a number of traumatic and disturbing events in his life being the death of his father, living in a country in conflict with external forces and being ruled by a dictatorship, having to flee and live in another country with his single mother and eventually moving to Australia where because of the demands upon his mother to become self sufficient he was largely unsupervised for many years.  I accept that he was influenced by persons who were probably of bad conduct and he offended, repeatedly, either alone or in company with persons who were both dismissive of the consequences of offending and did nothing to dissuade him from offending.

32.     The applicant is to be acknowledged for the efforts that he has made in recent years especially since June 2007 where although he was probably directed to attend for counselling by an Order of a magistrate he has, especially with the encouragement of Mr AL-Shiakhly, commenced to comprehend the serious nature of his previous behaviour and his offence upon the Australian community.  He has willingly accepted treatment from the Orygen Youth Health facility and regularly attends for treatment and consumes prescribed medication.  He appeared at the Tribunal as a well spoken, well dressed young man who gave every impression of wanting to be a member of the Australian community and was prepared to contribute to it.

33.     However, I do not think at the date of the decision under review, and I must consider this application at that date, that he was of good character.

34.     On 12 December 2008 when the decision under review was made, the applicant had seven months earlier made a false representation when completing his application for citizenship.  Two months earlier the applicant had been convicted of an offence of tampering with a motor vehicle.  Whilst it is not known when that offence occurred, and it would appear that it was well before the date of application for citizenship, the applicant denied that he had tampered with a motor vehicle.  There was no evidence that he entered a plea of not guilty and I am concerned that he has attempted to resile from the conduct which the Magistrate found as having been proved.  I am also disturbed that the applicant had not notified Mr AL-Shiakhly of those offences or that appearance before the court which is inconsistent with the relationship which apparently exists between them and which by the initiatives of Mr AL-Shiakhly has been to the applicant's benefit.  When these circumstances are taken into account I think this application should be regarded as premature.  The false representation in his citizenship application is disturbing.

35.     A grant of Australian citizenship is a privilege given to persons who demonstrate good character.  There is much to suggest that the applicant is accepting of the mistakes he has previously made and the errors of judgement that he has committed.  There is equally much to suggest that he is prepared to accept counselling and treatment from health care professionals, tolerance and compassion friends and family and a demonstrated willingness to engage in community and religious type activities.  If those trends continue and he also continues to demonstrate good conduct, indicative of reform and a willingness to abide by local laws, he may be regarded, with confidence, as worthy of Australian citizenship.  If he can remain free of his past negative influences, achieve benefit by his therapy, be truthful in his dealings with immigration officials and continue to have input into the community, if only at a local level, he may impress as a person who has successfully rehabilitated.

36.     The decision under review will be affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:  Grace Carney Personal Assistant

Date of Hearing  29 May 2009
Date of Decision  12 June 2009
Solicitor for the Applicant          Self Represented
Solicitor for the Respondent     Mr Tigiilagi Eteuati, Clayton Utz