Haidari and Minister for Immigration and Citizenship
[2010] AATA 924
•19 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1682
GENERAL ADMINISTRATIVE DIVISION ) Re Hussain Haidari Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date19 November 2010
PlaceAdelaide
Decision The decision under review is affirmed.
D G Jarvis
[Signed}
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship by conferral – permanent resident – good character requirement – past criminal conduct – meaning of “good character” – evidence of subsequent good conduct – consideration of Australian Citizenship Instructions – decision under review affirmed.
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 138 FCR 475
REASONS FOR DECISION
19 November 2010 Deputy President D G Jarvis Background
1. The applicant, Hussain Haidari, came to Australian from Afghanistan as a refugee. In September 2009, he applied for conferral of Australian Citizenship on behalf of both himself and his son, Abuzar Haidari, as a dependant applicant, pursuant to s 21 of the Australian Citizenship Act 2007 (Cth).
2. In March 2010 a delegate of the Minister for Immigration and Citizenship decided to refuse his application because she was not satisfied that he was of good character. She also refused the application on behalf of his son. Mr Haidari has applied to this tribunal for review of the delegate’s decision.
3. The delegate took into account that on 7 February 2003 Mr Haidari was convicted of four counts of unlawful sexual intercourse against a 13 year old boy. He was sentenced to 34 months imprisonment, with a 10 month non-parole period. Prior to making her decision, the delegate, on 12 February 2010, sent Mr Haidari a Notice of Intention to Consider Refusal letter, inviting further comment from him, but he did not respond to the letter.
Issue
4. The issue to be determined in this matter is whether I am satisfied that Mr Haidari is a person of good character within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
5. This section relevantly provides:
“General eligibility
(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.”
Evidence
6. Mr Haidari is aged 36. He is a citizen of Afghanistan. He and his son, Abuzar, are members of the Hazara minority group. He gave evidence of the violence that this group had experienced from the Taliban, and said that he and his son were put in prison. They escaped from Afghanistan in 1999, and arrived in Australia as refugees on 15 January 2001, when his son Abuzar was six years old. Mr Haidari was granted a protection visa on 15 May 2007. Mr Haidari’s wife and three daughters had previously disappeared from their family home in Afghanistan, and Mr Haidari did not then know what had happened to them. He subsequently found out that they had fled to Germany, where they still live.
7. On their arrival in Australia, Mr Haidari and his son spent approximately two and a half months in immigration detention in Woomera. After their release from detention, Mr Haidari began working to support himself and his son.
8. The offences occurred on two successive days in February 2002 at the North Adelaide Aquatic Centre, a place where Mr Haidari went regularly with a group of friends, including his son. The offences took place in the men’s toilets. In his sentencing remarks, the sentencing judge accepted that the acts were consensual.
9. During cross-examination in the proceedings in this tribunal, Mr Haidari said that before the offences occurred, he thought the victim said that he was 17 or 18. He maintained this position after it was put to him that the sentencing remarks record that the victim made contrary assertions on this point. Mr Haidari agreed, however, that the victim did not look 18, and that he appeared to be a boy. He said that he did not remember beckoning the boy into his toilet cubicle and believed he came in of his own accord. Mr Haidari agreed that on the second occasion of his offending he probably asked the victim to go to the toilet with him.
10. Mr Haidari accepted that he lied to the police about the extent of his offending during his initial interview. He also accepted that, whilst he pleaded guilty, this did not happen until the date fixed for trial. He said that he told his lawyer very early on that he was guilty and that his lawyer advised him not to plead guilty too soon. Mr Haidari said that at the time of the offence he did not understand the legal system in Australia and did not understand that what he was doing was an offence. He did, however, feel his actions were wrong because they were against his religion and because he was a married man at the time.
11. Mr Haidari said that he spent 10 months in prison and 10 months on parole. He said that during his parole he went to every appointment made for him and learned a lot from them. In prison he studied English and worked in the kitchen. Since his release he has also studied English for six months at Thebarton Senior College.
12. Mr Haidari was able to contact his wife, and during his time in prison he spoke to her two or three times a week. On his release he discovered that she had found out about his crime. Mr Haidari said that his religion is very strict and his wife divorced him because of his crime, later marrying a German man.
13. Mr Haidari currently works full-time in a factory making windows and doors out of aluminium. He has been there for about two years as a full-time worker. He has not been unemployed for more than two weeks since leaving prison in December 2003. He has not committed further offences since then. His son lived in foster care while he was in prison, but subsequently returned to his father’s care. Mr Haidari remarried in Pakistan in 2007, and has a baby daughter by his second wife. He said that his reason for not responding to the Notice sent to him by the delegate inviting further comment was that he did not fully understand what he needed to do, that his wife was experiencing difficulties with her pregnancy and was hospitalised, and that they were giving priority at that time to preparing her application for permanent residency in Australia (exhibit A1, paragraphs 1 and 2).
14. Mr Haidari said that his offending was a horrible mistake, and that he regrets the offence and is very ashamed of it. He did not, however, mention concern about the potential effect of his conduct on the 13 year old boy involved. Mr Haidari also said that the offence was out of character for him, and that since his release he has worked hard to re-establish his good character. He said that as a consequence of his offence he lost his first wife, his daughters, the trust of his community, his job and his freedom. He said that he has worked very hard to show that he is not the person who committed those offences. He has regained the trust of people in his community and has supported his son on his own.
15. He said that at the time of his offending he was very sad, that he was missing his wife and daughters and was also worried for himself and his son because he did not have a permanent visa. He added that psychologists have told him that he was probably under pressure at the time of the offence because he did not know what would happen with his visa or whether he would be able to bring his wife and daughters to Australia, and that he might not have known what he was doing.
16. Mr Haidari said that he applied to be an Australian citizen because he is very happy living here where there is freedom of speech and religion, and a peaceful community.
17. At the hearing, Mr Robert Croser, a senior children’s lawyer with the Legal Services Commission, also gave evidence in support of Mr Haidari. He said that he met Mr Haidari and his son in the context of representing Abuzar as a children’s lawyer. He said that it was immediately clear that there was an extremely close relationship between Mr Haidari and his son, and that from the first Abuzar spoke very lovingly and supportively of Mr Haidari. When the issue arose of whether Mr Haidari’s visa would be cancelled, Abuzar was distraught at the idea of a permanent separation. Mr Croser said that in his experience Families SA are extremely vigilant about the safety of children. They had no hesitation in returning Abuzar to Mr Haidari’s care on his release from prison, and there have been no concerns regarding Abuzar’s safety since that time.
18. Mr Croser said that he occasionally socialises with Mr Haidari and his son, for example when they attend functions that he has organised. He confirmed that since his release from prison Mr Haidari has maintained full employment, supported his son, and acted as a worthwhile father and citizen.
19. Mr Haidari also tendered statements of support from members of the community, including letters from a friend and his wife, a refugee support worker at Centacare, and from his son, who is now sixteen years old. These were not in the form of statutory declarations, but the persons concerned stated that they were aware of Mr Haidari’s offending conduct, and I have taken their statements into account.
Consideration
20. Australian Citizenship Instructions (the Instructions) have been issued pursuant to the Citizenship Act. The introduction to the Instructions states that their role is:
“… to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.”
21. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, the then President of this tribunal, Justice Brennan as he then was, referred to the importance of Ministerial policy in guiding the exercise of discretion by decision-makers, including matters that come before this tribunal. In that case, the matter in issue was whether a deportation order should be made. Brennan J pointed out (at pages 640 and 644) that Ministerial policy can be an aid to consistency among tribunal decisions, and to consistency between decisions of the tribunal and those of the Minister, thus enhancing “the sense of satisfaction with the fairness and continuity of the administrative process.” His Honour continued, at page 645:
“When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.”
22. Pursuant to Drake, I must follow the guide-lines set out in the Instructions unless there are cogent reasons not to do so.
23. The Instructions include the following statements under the heading “Good Character Requirement”:
“The term “good character” is not defined in the Act. Decision makers must therefore be guided by the ordinary use of the words in making assessments.
It is the responsibility of the applicant to show that they are of good character. If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.
...
Assessing good character involves:
establishing whether or not an applicant has a criminal record, and the nature of that record, if any
establishing whether or not there is other information relevant to the issue of character
according procedural fairness to the applicant where there is credible, relevant, and adverse information which the decision maker intends to take into account and
considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicant’s behaviour.”
24. In accordance with the Instructions, in determining whether the applicant has satisfied me that he is of good character, I must be guided by the ordinary use of the term “good character”. I have accordingly referred to the meaning of “character” in the online version of the Oxford English Dictionary, and in the Macquarie Dictionary, 4th Edition, and also to the meaning of the word “good” in those dictionaries. In the context of s 21, the term “good character”, according to the dictionaries, can either refer to a person having good moral qualities, or to a person having a good reputation. The former meaning involves an objective assessment, whilst the latter meaning is derived from a subjective assessment by the community: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431G – 432A. In that case, Davies J said, at page 425C:
“I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”
The same considerations should I think apply when the relevance of prior criminal convictions has to be evaluated under the Citizenship Act.
25. The Instructions also refer to a list of factors which should be given consideration by decision-makers. They include the “seriousness of any offences against ordinary community standards” and this concept is followed by the following proposition:
“Crimes of sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment.”
26. In considering the relevance of the sentence, it has been held in the context of the former Ministerial Direction No. 21 made pursuant to the Migration Act 1958 (Cth) that it is necessary to take into account the sentence imposed for the relevant crime(s), and not the term actually served: Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 138 FCR 475 at [13]. I think that this applies equally to the Australian Citizenship Instructions.
27. Further factors referred to in the Instructions that are relevant to Mr Haidari are whether the offence was a one-off occurrence, whether there were any extenuating circumstances, and whether a reasonable time has passed since he has been free of an obligation to the court to establish a pattern of good behaviour.
28. I accept that the offences took place in a context where Mr Haidari felt isolated and under significant stress. I also accept that at that time Mr Haidari faced significant language and cultural barriers and that these might have contributed to his offending. Nevertheless, Mr Haidari stated in evidence that he knew his actions were immoral, even if he did not understand they were illegal. The offences were extremely serious, involving as they did sexual assault on a minor that took place on two days, and resulted in the imposition of a substantial custodial sentence.
29. As against these matters there is no evidence that Mr Haidari engaged in any such behaviour before the time of committing the offences or since then, and I also take into account in Mr Haidari’s favour his evidence of remorse, and that he has worked hard to rehabilitate himself in the community since his release. I note particularly his work history and the strongly supportive character evidence given by Mr Croser. Mr Haidari’s dedication to his son’s care is also to be commended.
30. However, he has only been free from parole since about December 2005. He had been in the Australian community for only a short time before committing the offences, and so I can attach little weight to the absence of offending before the events that led to his convictions. I do not think that a reasonable time has passed to satisfy me that he is of good character so as to satisfy that aspect of the eligibility requirements to become an Australian citizen.
31. The delegate also rejected the application made by Mr Haidari on behalf of his son, Abuzar. Mr Haidari does not refer to this decision in his application to the tribunal for review, and this aspect is not referred to in the respondent’s Statement of Facts, Issues and Contentions, or during the hearing. However, under Chapter 5 of the Instructions, in the case of applicants under the age of 16, decision-makers must make a separate decision record for each applicant included in the application, and accordingly to Note 2 on page 53, where a child under the age of 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed against the policy requirements for children under the age of 16 applying individually in their own right.
32. The relevant policy requirements provide:
“Children under the age of 16 applying individually in their own right would usually be approved under section 24 if they meet the following policy requirements:
...
·are under 16 years of age when applying, and living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage.” (see Chapter 5, page 52).
33. In the absence of an application to review this aspect of the delegate’s decision I doubt whether I have jurisdiction to deal with this matter, notwithstanding the reference to “decision makers” in the Instructions, but there is no evidence before me that Abuzar would suffer significant hardship or disadvantage if he were not to obtain Australian citizenship, and accordingly there is no basis to disturb that aspect of the delegate’s decision. It would of course be open to Abuzar to apply for Australian citizenship once he attains the age of 18, and no doubt Mr Haidari will encourage him to do so.
34. It is appropriate in this matter to add that my decision does not preclude Mr Haidari from making a fresh application for citizenship after a further interval of time. If he then provides evidence of a continuing pattern of good behaviour, and that he has maintained the good reputation referred to by Mr Croser and the other persons who have provided supporting statements, I think he should be able to satisfy the good character criteria for eligibility for Australian citizenship, but that will of course depend on the evidence adduced in support of any such future application. I note in this regard that under the Instructions, decision-makers are entitled to give substantially more weight to statutory declarations than to other statements, and that declarations from character referees that acknowledge the person’s criminal background, and attest to a change of character since, should be given considerable weight (see Instructions, Chapter 10, page 136).
Decision
35. The decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis............ [Signed] ...........
AssociateDate/s of Hearing 21 September 2010
Date of Decision 19 November 2010
Applicant In person
Advocate for the Respondent Mr P d’Assumpcao
Solicitor for the Respondent Australian Government Solicitor
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