Haidar Shekarchian and Minister for Immigration and Border Protection
[2015] AATA 68
•9 February 2015
[2015] AATA 68
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1462
Re
Haidar Shekarchian
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 9 February 2015 Place Sydney The decision of the delegate of the Minister dated 7 February 2014 to refuse Mr Shekarchian’s application for Australian citizenship is affirmed.
..............................[sgd]..........................................
Deputy President J W Constance
Catchwords
CITIZENSHIP - Citizenship by conferral – good character – whether the applicant satisfies the legislative requirement to be shown to be of good character - previous convictions – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24
Cases
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Secondary Materials
Australian Citizenship Instructions (Cth) issued 1 January 2015.
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Mr Shekarchian applied for Australian citizenship by conferral in August 2013.
In his application, Mr Shekarchian disclosed that he had been convicted of a traffic offence in 2010 and a further offence in 2012. His application was refused on the basis that the delegate of the Minister was not satisfied that Mr Shekarchian was of good character as required by the Australian Citizenship Act 2007 (Cth). Mr Shekarchian has applied to the Tribunal for a review of the delegate’s decision.
For the reasons which follow, the decision to refuse Mr Shekarchian’s application for Australian citizenship will be affirmed.
BACKGROUND
Unless stated otherwise, the findings of fact set out in these reasons are based on the evidence of Mr Shekarchian. I am satisfied of the facts found on the balance of probabilities.
Mr Shekarchian was born in Iraq in 1989 and is a citizen of that country. He first arrived in Australia in October 2003 in the company of his mother and sister. He visited his father who has resided in Australia since 1999 and is an Australian citizen.
In February 2004, Mr Shekarchian returned to Iraq with his mother and sister.
Mr Shekarchian re-entered Australia in March 2006 and has resided here since. He is the holder of a permanent resident visa.
Conviction for driving while licence suspended [1]
[1] Exhibit R5.
On 17 February 2010, Mr Shekarchian was convicted of driving a motor vehicle when his licence was suspended. The offence was committed on 12 December 2009. His learner’s licence had been suspended on 6 November 2009.
The Facts Sheet placed before the Local Court in relation to the offence includes the following:[2]
Police have asked the accused for his drivers [sic] licence. The accused stated he had an overseas licence but he didn’t have it on him. Police conducted a check via COPS and discovered the accused had a suspended NSW learner licence.... Police asked the accused about his NSW Learner licence. The accused stated that the RTA told him he could driver [sic] on his overseas licence. ... Police asked the accused has he ever had a NSW licence to which he replied he has a NSW learner licence. The accused stated that it might be suspended but the accused again claimed that the RTA told him that he could drive using his overseas licence.
[2] Exhibit R5.
When he gave evidence Mr Shekarchian told me that at the time of the offence he did not understand that his licence had been suspended. When asked why he did not tell the police this, he said that he did not remember whether or not he had done so.
Conviction for dealing with property suspected of being the proceeds of crime[3]
[3] Exhibit R6.
Mr Shekarchian was convicted of this offence in the Local Court on 1 February 2012. The offence occurred on 19 June 2011. The offence pertained to Mr Shekarchian’s possession of a stolen mobile phone.
The Police Facts Sheet discloses the following:[4]
[4] Exhibit R6.
He stated he was given the phone from a friend only known to him as Moey, which is short for Mohamed.
When pressed further on the details of Moey, the accused stated he did not know where he lived, what his surname was and denied knowing any details of Moey, other than he is a friend of friends, whose details again the accused did not know. He stated he met Moey hanging out in Auburn.
The accused stated that he was given the phone as a favour from Moey, as the accused needed a phone. The accused acknowledged the similarity in the names of the registered phone number ... to his own and the same address but could not explain this ...
The accused stated he did not think the phone was stolen and did not think it unusual that someone who he knows little about would provide him with a free phone because the phone had little value.
...
Police have requested the accused make efforts to locate Moey and to provide his details so Police can further investigate the disposal of the stolen phone to the accused as well as Moeys involvement in the more serious offence of robbery in company.
Police have provided the accused with a lengthy period of time to make enquiries and notify Police of the real identity of Moey. As of the 15th September 2011, the accused has not been - in contact with the officer in charge as requested.
About 2.10pm, 15th September 2011, Police attempted to contact the accused on his provided mobile telephone number without success. A message was left for the accused to call the Officer in charge again.
About 9.30am, 27th September 2011, Police contacted the accused ... and discussed the matter with him further. He stated he had not seen Moey since Police spoke to the accused.
In a record of conversation between a Police Officer and Mr Shekarchian made 19 June 2011, and signed by him, the following is recorded:
Q. How did you come to have possession of this phone?
A. I just my mate gave it to me.
Q. Who is your mate?
A. Moey
Q. Moey who?
A. I told you I don’t know.
Q. How do you know Moey?
A. Through a friend.
Q. What’s that friend’s name?
A. Just friends you know. [5]
[5] Exhibit R6.
The Representative for the Minister asked Mr Shekarchian in cross-examination if he would provide the name of his friend who was the friend of the person who gave him the mobile phone. He declined to give his full name as he did not wish to get his friend into trouble.[6]
[6] Transcript 20.01.15.
Incident on 17 September 2014
On 17 September 2014, a voice message was left on the mobile phone of the Representative of the Minister. The message was in Arabic and was recorded by Mr Shekarchian. It was sent from the mobile phone of Mr Shekarchian’s fiancée, Ms Al Bashara. The Representative’s number was recorded in her phone by reason of Mr Shekarchian having used the phone previously to call the Minister’s Representative in relation to these proceedings.
The message referred to hitting “you” around the head with thongs.
When interviewed by Police in relation to this message, Mr Shekarchian said that he had sent the message to his fiancée as a joke and she had mistakenly forwarded it to the Representative of the Minister. The message did not refer to the Representative nor was it intended to refer to him. Mr Shekarchian told the police that when he used the word “thongs” he was referring to footwear. Mr Shekarchian gave evidence confirming this. Ms Al Bashara gave evidence that she had received the message from Mr Shekarchian and in attempting to save it to her phone she inadvertently forwarded it to a number which she subsequently discovered was that of the Minister’s Representative.
The Minister accepts that the message was forwarded to his Representative inadvertently. I am satisfied that this is correct.
ISSUE FOR DETERMINATION
I must decide whether I am satisfied that, at the time of making a decision in this application, Mr Shekarchian is of good character.
LEGISLATION
Applications for Australian citizenship by conferral are governed by the Australian Citizenship Act 2007 (Cth).
Section 24 of the Act provides, in part:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Subsection 21(2) of the Act establishes the requirements for eligibility for Australian citizenship. It provides, in part:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…….
(h) is of good character at the time of the Minister's decision on the application.
There are other requirements set out in subsection 21(2), but it is only the application of the paragraph set out above which is in issue.
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Chapter 5 includes guidance in applying the provisions of subsection 21(2)(g). Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.[7]
[7] Australian Citizenship Instructions para.10.1.1.
The Instructions reflect government policy and are not binding on the Tribunal. However the Tribunal should apply such policy unless there are cogent reasons to the contrary. [8]
[8] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.
Paragraph 10.1.2 of the Australian Citizenship Instructions provides:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship
This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[9]
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. (citations of authorities omitted).
[9] (1996) 68 FCR 422 at 431-432.
Paragragh 10.3.1 provides, in part:
In this context "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
• characteristics which have been demonstrated over a very long period of time
• distinguishing right from wrong
• behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means 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 their migration and citizenship processes.
In considering the Australian Citizenship Instructions I have taken into account that they refer to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[10]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what person says, in part what a person does and in part what a person is heard to say and seen to do.
[10] [2011] AATA 304 at [120].
The Instructions go on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in dealings with the Australian Government.[11]
[11] Paragraph 10.3.4.
The framework for the making of decisions regarding an applicant’s character is outlined in the Overview to Chapter 10. This includes:
a. check all relevant sources of information ……,
b. ……
c. ……
d. consider general conduct (see Behaviour – why the applicant might not be of good character),
e. ……
f. ……
g. weigh up relevant factors, applying community standards, to decide whether or not the applicant is of good character. Look holistically at applicant’s behaviour over an enduring period of time (see section 10.5.4 Weighing up the decision),
h. ……
Under the heading, Weighing up the decision, the Instructions provide:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
• would a person of good character have behaved the way the applicant did
• what is there to demonstrate that the applicant has upheld and obeyed the law
• has the applicant behaved in accordance with Australia's community standards
• does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[12]
CONSIDERATION
[12] Paragraph 10.5.4.
The convictions and Mr Shekarchian's attitude to the law
Clearly Mr Shekarchian's driving offence can properly be regarded as minor and was committed at a young age. In my view, his conviction of the offence in relation to property is more serious, but it is not a conviction of a type of offence categorised by the Instructions as “serious”.
It is not the convictions themselves which raise the greatest concern, rather Mr Shekarchian's conduct in relation to them. His general conduct, in addition to his commission of the offences, indicates that he does not have the respect for the laws of Australia expected by the community. On several occasions the Instructions refer to respect for, and a willingness to abide by, Australian law as being important considerations in assessing whether a person is of good character.
Mr Shekarchian's traffic record indicates that penalties were imposed on him in 2007 for failing to comply with the terms of his learner’s licence on at least two occasions. In November 2009 his licence was suspended.[13] Notwithstanding this, within five weeks he drove whilst his licence was suspended. This resulted in the conviction to which I have referred.
[13] Exhibit R5.
Mr Shekarchian informed the Police officers that he had been told by the Roads and Traffic Authority that he could drive on his international driving licence. He told the Tribunal that at the time he did not know that his licence had been suspended. He could not explain why he did not tell the Police this. Mr Shekarchian’s attitude in his dealings with the Police and his contradictory evidence to this Tribunal indicates that he does not have the respect for Australian law which the community expects.
His failure to respect Australian law is demonstrated also by his failure to assist Police with their investigation into the assault and robbery which took place when the phone found in Mr Shekarchian's possession was stolen from its owner. He did not assist Police to locate the person who provided the phone to him. In giving evidence he stated that he did not wish to cause his friend any trouble and continued to decline to assist in locating those responsible for the assault.
Taking into account all of the above, Mr Shekarchian’s conduct in relation to the offences does not demonstrate that he is an individual with the respect for the law expected by the Australian community.
Mitigating factors
Paragraph 10.5.2 of the Instructions refers to mitigating factors which should be taken into account. It provides in part:
Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.
a. What is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ...
b. Has the applicant accepted responsibility and shown remorse for their conduct?
c. How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…
d. Has the applicant rehabilitated themselves?…
e. What was the applicant’s age at the time the offence was committed?…
f. Were there any extenuating circumstances relating to the offence?
Mr Shekarchian was young when he committed the driving offence and the community would accept that such an offence may, in part, have been a result of the exuberance of youth. However the community would give less consideration to his youth in relation to the property offence.
Mr Shekarchian's last offence was committed in June 2011. He applied for citizenship in August 2013, just over two years later. In my view insufficient time has elapsed since his last conviction to provide any real mitigation in this case.
Mr Shekarchian said that he had made a mistake in accepting the mobile phone and that in committing the offence he had not caused harm to anyone. Taking into account the statements made by Mr Shekarchian in relation to the circumstances of his driving while disqualified and his reluctance to assist Police in their enquiries, I am not satisfied that he is remorseful for his past conduct. In addition, I am not satisfied that Mr Shekarchian has acknowledged the seriousness of his actions and accepted responsibility for them.
Further, Mr Shekarchian argued that he should be granted Australian citizenship because he wished to travel to Iran to visit his ill mother and that as an Australian citizen he would not be required to undertake military service in that country. I do not consider these to be valid reasons for the grant of citizenship and, in any event, they are irrelevant to the issue of Mr Shekarchian's character. Paragraph 10.5.3 of the Instructions provides that generally, the need for citizenship to facilitate overseas travel is not a relevant factor. There is nothing in the evidence before me to cause me to decide otherwise.
Similarly I do not consider that Mr Shekarchian's desire for citizenship in order to access the government scheme to assist Australian citizens with university fees is a factor relevant to the issue for determination.
In his statement made 14 August 2014[14] Mr Shekarchian said, in part:
I attribute who I am today and for the better I am in future from the wisdom behind my experiences, ambitions, family and friend. For the past years I have contemplated my life and how I want to be a better person from the outside world and more effectively for myself. Seeing my doctor and psychologist has helped. I have already decided I want to be a role model to anyone younger than ,e and especially the ones that may have is harsh in life, I want to inspire people not to give up to be more successful in life and prove it’s never too late.
[14] Exhibit A1.
I agree with the submission by the representative for the Minister that this statement does not provide evidence of good character but is a statement of his plans for the future. It may be that if Mr Shekarchian conducts himself as he says he intends to, he may satisfy the requirements of the Act as to good character should he apply for citizenship at some future time.
Statements as to Mr Shekarchian's character
Statement of Ms Al Bashari
Ms Al Bashari provided a statement[15] and gave evidence. She said that Mr Shekarchian is helpful to his family and friends and has had a positive influence on her.
[15] Exhibit A2.
Statement of Mr Ikhlaq
Mr Ikhlaq is one of the owners of a business in which Mr Shekarchian is employed. He provided a statement dated 19 January 2015.[16] In his opinion Mr Shekarchian “Displays a strong moral character and is a good employee.”
[16] Exhibit A3.
Statement of Mr Ghosn
Mr Ghosn is also an employer of Mr Shekarchian. His statement[17] refers to Mr Shekarchian's strengths as an employee and that he is reliable and trustworthy.
[17] Exhibit A4.
Consideration
These statements go mainly to Mr Shekarchian's work ethic, which is not in question. Neither Mr Ikhlaq nor Mr Ghosn referred to Mr Shekarchian's convictions. Ms Al Bashara did refer to them but sought to minimize Mr Shekarchian's responsibility for them.
The statements of Mr Shekarchian's work ethic and reputation are of minimal assistance in assessing Mr Shekarchian's character by applying community standards. This is particularly so bearing in mind that the requirement is to assess Mr Shekarchian's “enduring moral qualities”. As noted by the Federal Court in Irving,[18] this is a different question to whether an applicant is of good repute.
[18] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.
Weighing the various factors
In deciding whether I am satisfied that Mr Shekarchian is of good character, the evidence has to be looked at as a whole.[19] Paragraph 10.5.4 of the Instructions provides, in part:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.… A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.
[19] See paragraph 10.1.1 of the Australian Citizenship Instructions.
I have found that the character evidence is of little weight and that Mr Shekarchian has not fully accepted responsibility for his conduct even after the passage of over three years since his last offence. In my view, the mitigating factors are far outweighed by his lack of respect for Australian law. I cannot be satisfied that he has exhibited the “enduring moral qualities” which the community expects of an Australian citizen.
I am not satisfied that Mr Schekarchian presently satisfies the legislative requirement to be shown to be of good character. It is important to note, however, that this does not equate to a finding that Mr Shekarchian is of bad character.
CONCLUSION
The decision of the delegate of the Minister made 7 February 2014 to refuse Mr Shekarchian’s application for Australian citizenship will be affirmed.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance .............................[sgd]...........................................
Associate
Dated 9 February 2015
Date(s) of hearing 20 January 2015 Date final submissions received 20 January 2015 Applicant In person Solicitors for the Respondent L Leerdam; DLA Piper
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