Haidari and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 2904

Haidari and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2904 (9 September 2022)

Division:GENERAL DIVISION

File Number:          2021/4365

Re:Sayed Abbas Haidari

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Dr L Bygrave, Member

Date:9 September 2022

Place:Sydney

The Tribunal sets aside the decision under review dated 4 June 2021 and remits the matter to the Minister for Immigration, Citizenship and Multicultural Affairs for reconsideration in accordance with the direction that Mr Sayed Abbas Haidari satisfies the requirement in paragraph 21(3)(f) of the Australian Citizenship Act 2007 (Cth).

.................................[SGD].......................................

Dr L Bygrave, Member

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – whether Applicant is a person of good character pursuant to paragraph 21(3)(f) of the Australian Citizenship Act 2007 (Cth) – Australian Citizenship [Policy Statement] – Citizenship Procedural Instruction 2 – Citizenship Procedural Instruction 15 – decision set aside and remitted

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 24

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

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

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

Secondary Materials

Australian Citizenship [Policy Statement] (27 November 2020)

Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (2 March 2019)

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)

REASONS FOR DECISION

Dr L Bygrave, Member

9 September 2022

INTRODUCTION

1. The Applicant, Mr Sayed Abbas Haidari, was born in Afghanistan. Mr Haidari first arrived in Australia on 11 February 2010 and was granted a protection (subclass 866) visa on 16 June 2010; he currently holds a resident return (subclass 155) permanent visa.

2. On 21 September 2015, Mr Haidari lodged an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) and completed a ‘Form 1290’ in which he declared that he has a ‘permanent or enduring physical or mental incapacity’.[1]

   [1] Exhibit T-T9, page 91.

3. On 4 June 2021, this application was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) on the basis that:

   ·Mr Haidari did not satisfy the ‘good character’ requirement in paragraph 21(3)(f) of the Act at the time of the decision; and

   ·the prohibition in subsection 24(6) of the Act applied because Mr Haidari had outstanding matters before a court.[2]

   [2] Exhibit T-T2, pages 24-25.

4. On 29 June 2021, Mr Haidari lodged an application for review to the General Division of the Administrative Appeals Tribunal (the Tribunal).

5. The matter was heard by the Tribunal in Sydney by videoconference on 23 August 2022. Mr Haidari had legal representation. He attended the hearing and provided oral evidence with the assistance of an interpreter of the Dari language.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   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.

7. Subsection 21(3) of the Act stipulates the requirements for Australian citizenship where a person has a ‘permanent or enduring physical or mental incapacity’. These requirements relevantly include:

   (3) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (f) is of good character at the time of the Minister’s decision on the application. [emphasis added]

8. Subsection 24(6) of the Act states:

   (6) The Minister must not approve a person becoming an Australian citizen at a time:

   (a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or

   …

9. For completeness, I have considered and agree with the oral submissions made by the Minister’s legal representative at the hearing that paragraph 24(6)(a) of the Act is no longer relevant to Mr Haidari’s application because his proceedings before the court have been finalised.

   Australian Citizenship [Policy Statement] and Citizenship Procedural Instructions

10. The Act does not define the term ‘good character’; however, policy guidance can be found in the Australian Citizenship [Policy Statement] (the Citizenship Policy Statement) that was reissued on 27 November 2020. The Citizenship Policy Statement relevantly outlines the ‘overarching legislative requirements for the process of becoming an Australian citizen’ and lists a framework of related documents.[3]

    [3] Australian Citizenship [Policy Statement], section 2.1.

11. These related documents include the Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (CPI 2) issued on 2 March 2019. CPI 2 states a person ‘must be of good character’ at the ‘time of decision on the application’ and refers to Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15).[4] CPI 15 was reissued on 26 February 2021 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Act.[5]

    [4] CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity, section 3.3.

    [5] CPI 15 – Assessing Good Character under the Citizenship Act, section 1.

12. Although I am not bound to strictly apply the Citizenship Policy Statement and CPIs, these are government policies and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[6]

    [6] [1979] AATA 179; (1979) 2 ALD 634.

13. The Citizenship Policy Statement articulates the rights and responsibilities of Australian citizenship, observing that ‘Australian citizenship is a privilege requiring a continuing commitment to Australia’ and a ‘common bond, involving reciprocal rights and obligations.’[7]

    [7] Australian Citizenship [Policy Statement], section 3.2.

14. CPI 15 provides guidance on the interpretation and application of good character, citing the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs as follows:

    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 while 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. [8] [emphasis added]

    [8] (1996) 68 FCR 422 at [431]-[432].

15. CPI 15 further states that the phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have endured over a long period of time, distinguishing right from wrong, and behaving in an ethical manner including conforming to the rules and values of Australian society.[9] The good character requirement necessitates considering a person ‘in a holistic way’ with all aspects of their life potentially relevant to deliberation of their character.[10] CPI 15 notes that a person is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout the time they held a visa and their citizenship application process.[11] In considering these requirements, CPI 15 states that I must consider any character issues that arise on the facts of a case, all relevant information and be ‘mindful that the requirement to be of “good character” does not mean that a person must be of “perfect character”’.[12]

    [9] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [10] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [11] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [12] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.1.

16. The role of the character requirement in a citizenship application is also explained by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:

    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.[13]

    [13] [2000] AATA 931 at [8].

17. CPI 15 highlights ‘community standards’ and refers to the decision by Deputy President Forgie in Zheng and Minister for Immigration and Citizenship, in which she stated:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a 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 a person says, in part by what a person does and in part by what a person is heard to say and seen to do.[14]

    [14] [2011] AATA 304 at [120].

18. CPI 15 outlines community standards as reflected in government initiatives and sets out a non-exhaustive list of characteristics of good character. Relevant to this matter, a person of good character would ‘respect and abide by the law in Australia’.[15]

    [15] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

19. I note that CPI 15 states the application of these principles should be considered in view of the facts of the particular case and ‘should not be applied rigidly or inflexibly’.[16] Further, it is necessary to consider any other information relevant to a person’s character such as their family life, whether they are responsibly employed and paying taxes, the time that has elapsed since their offending and whether they have expressed genuine remorse for their past wrong-doing. CPI 15 articulates this process as follows:

    Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.[17]

    EVIDENCE

    [16] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

    [17] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

    The Applicant

20. The following is a chronology of facts based on evidence before the Tribunal:

    ·Mr Haidari was born and grew up in a small village in Afghanistan in 1965. He did not attend school due to war and worked from a young age to financially assist his family.

    ·In 1996, Mr Haidari and his family moved from Afghanistan to Iran as refugees following persecution from the Taliban. His elderly mother, his wife and their six children remain in Iran and are financially supported by Mr Haidari. As refugees, Mr Haidari’s wife and children are not able to either study or work in Iran.

    ·Mr Haidari arrived in Australia as an ‘illegal maritime arrival’ in 2010 and was subsequently granted a protection (subclass 866) visa.

    ·Between 2011 and 2018, Mr Haidari travelled to Iran on five occasions to visit his family. He has applied to bring his family to Australia to live with him.

    ·Mr Haidari has current employment in a car scrapyard.

21. Extensive medical evidence regarding Mr Haidari filed with the Department and the Tribunal and dated between 2015 and 2020 includes detailed reports from general practitioners, psychologists, a psychiatrist and specialist medical practitioners. I particularly note the following reports:

    ·A medical report from Dr Alwand Sherif (general practitioner) dated 12 September 2015 describing Mr Haidari’s ‘complex medical, surgical and mental health problems’ and ‘learning difficulties’.[18]

    ·Reports by Dr Artin Jebejian (consultant psychiatrist) dated 21 August 2015, 30 November 2015, 22 January 2016, 12 February 2016, 7 March 2016 and 11 August 2016. On 30 November 2015, Dr Jebejian set out:

    oa medical ‘impression’ of Mr Haidari that included major depressive disorder and generalised anxiety disorder, aortic valve replacement and obstructive sleep apnoea;

    oMr Haidari’s concerns about his family in Iran, his learning difficulties, and his inability to read or write in both the Dari and English languages.[19]

    ·A report by Dr Christian Girgis (consultant endocrinologist) dated 7 June 2018 that stated Mr Haidari consults him for management of his type 2 diabetes.

    ·Medical certificates by Dr MD Nural Islam (general practitioner) dated 28 May 2018 and 26 March 2020, certifying his medical conditions including heart disease (underwent aortic valve replacement) and depression.

    ·A report by Mr Hamid Attai (psychologist) dated 2 April 2020 that set out a detailed history of Mr Haidari’s circumstances, described his psychological assessment of Mr Haidari and made a diagnosis of ‘Major Depressive Disorder, with anxious distress, severe, comorbid with Post-Traumatic Stress Disorder’.[20]

    [18] Exhibit T-T10, page 127

    [19] Exhibit T-T11.

    [20] Exhibit T-T38, page 336.

    The offences

22. An Australian Criminal Intelligence Commission report dated 6 September 2021 listed Mr Haidari’s offences as follows:

    ·Parramatta Local Court, 23 June 2021.

    oOffence: ‘Drive motor vehicle while licence suspended – 1^st off’. Result: fine $400, disqualification – driver 3 months commencing 23 June 2021.

    ·Parramatta Local Court, 9 November 2020.

    oOffence: ‘Not give particulars to other driver’. Result: s 10A conviction with no other penalty.

    oOffence: ‘Negligent driving (no death or grievous bodily harm)’. Result: fine $350.[21]

    [21] Exhibit T-T46, pages 369-370.

23. On 23 February 2021, Mr Haidari filed a statutory declaration and attached his driving record, which listed 13 driving/traffic offences between January 2012 and November 2020. He subsequently filed a further written statement dated 14 February 2022 in which he also explained the circumstances of his conviction in the Parramatta Local Court on 23 June 2021.

24. In his written statements and oral evidence at his hearing, Mr Haidari accepted responsibility for the following driving offences:

    ·exceeding speed offences (more than 10 km/hour but not more than 20 km/hour) on 1 July 2014 and 4 June 2015;

    ·exceeding speed offences (more than 20 km/hour but not more than 30 km/hour) on 2 January 2016; and

    ·disobey no turn at intersection sign on 13 May 2020.

25. Mr Haidari also accepted responsibility for the offences of ‘negligent driving’ and ‘not give particulars to other driver’ heard in the Parramatta Local Court on 9 November 2020. He explained:

    At the time of the incident, I thought the other driver was fine with me sitting in my car and or [sic] leaving the place without giving my driver license particulars (as the damage was very minimal & [sic] I truly did not understand what she said at that time when she approached me; given my language barrier). I later found out she has [sic] gone to [the] Police to report this traffic matter. I was charged with negligent driving (I pleaded guilty to hitting her car from behind which was unintentional…) and I also informed the Court…that I did not know the lady wanted my details…

    [T]wo weeks after the Court [hearing], I paid $250.00 to a panel-bitter [sic] to fix the damage on the car [of the other person]. I fixed her car as a moral and ethical duty (this was not ordered by the Court…[22]

    [22] Exhibit A1.

26. In relation to the offence of ‘drive motor vehicle while licence suspended’ heard in the Parramatta Local Court on 23 June 2021, Mr Haidari stated that he drove his car on the ‘advice of others’ and was not aware his ‘license remained suspended’ and he was required to go to the NSW Roads and Maritime Service to renew his license.[23]   

    [23] Exhibit A1.

27. In written statements and his oral evidence to the Tribunal, Mr Haidari consistently disputed that he was the driver of his car for the speeding and traffic offences that occurred on 17 January 2012, 14 September 2013, 21 October 2016, 8 November 2018, 2 November 2019 and 6 June 2020. He stated that he has lent his car to friends or relatives ‘more than 50 times’ and they committed these driving and traffic offences. Mr Haidari said that these people later denied responsibility, so he paid the fines and received the demerit points for these offences as he is the owner of the car. Mr Haidari has not named any of these friends or relatives and, at the Tribunal hearing, his legal representative requested that he not be asked to name the people who were responsible for the speeding and traffic offences, noting cultural expectations and potential issues for Mr Haidari.

28. Mr Haidari told the Tribunal that he has had difficulty saying ‘no’ to other people when they ask to borrow his car, although this has recently changed because he is now aware his driving record has had an adverse effect on his application for Australian citizenship. He submitted that ‘being illiterate’ or ‘being used’ by other people should ‘not negate’ his otherwise good character.[24] However, Mr Haidari also acknowledged that he has committed driving offences and consequently, he has attended further driving lessons and education sessions to ‘avoid any future driving mistakes.’[25]

    [24] Exhibit A1.

    [25] Exhibit A1.

    Rehabilitation

29. In a statement dated 25 May 2022, Mr Haidari wrote that he undertook further driving lessons, subsequently passed a driving test and obtained a ‘new’ NSW driving license on 17 May 2022. He provided a copy of his current driver license and a ‘Driver Education Course Certificate of Completion’ dated 8 June 2022.

30. I note that Mr Haidari also filed a Police Clearance Certificate issued by the Islamic Republic of Iran Police Interpol in Tehran on 6 March 2021 that stated ‘a check of available records, files and finger impressions failed to reflect any derogatory information’ about Mr Haidari.[26]

    [26] Exhibit T-T44, page 366.

    References

31. CPI 15 provides limited guidance about the weight to be attributed to character references, noting only that less weight should not be attributed to a character reference ‘merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship’.[27]

    [27] CPI 15 – Assessing Good Character under the Citizenship Act, section 14.1.

1. In August 2020, Mr Haidari filed four references in the format of statutory declarations; these verified he is of ‘good character’ and ‘good standing’ in the community.[28] Further, a letter from the President of the Australian Afghan Hassanian Youth Association dated 10 August 2020 described Mr Haidari as a ‘kind, generous, pious, respectful individual’ and a ‘good fellow member of the community’ who volunteers for the Association.[29]

   [28] Exhibit T-T29.

   [29] Exhibit T-T29, page 277

2. In relation to his driving offences, Mr Haidari filed further two statutory declarations from Mr ‘MA’ and Mr ‘SMK’ dated 23 February 2021.

3. Mr ‘MA’ wrote that he has known Mr Haidari for four years and provided support to him at the Parramatta Local Court in November 2020. He stated that Mr Haidari is ‘distracted’ by being away from his wife/family, has taken responsibility and is remorseful for his offences, and has ‘lent his car to other individuals’ who have then ‘denied responsibility for the offences/fines they committed’.[30]

   [30] Exhibit T-T38, pages 315-316.

4. Mr ‘SMK’, an Australian citizen, stated that he has known Mr Haidari for four years and, other than the driving offences, he is of good character and good standing. Mr ‘SMK’ wrote that ‘some individuals’ use Mr Haidari’s ‘naiveness/good heart (simplicity and illiteracy) to exploit him’ and he has difficulty saying ‘no’ to people who ask to borrow his car.[31]

   [31] Exhibit T-T38, pages 339-340.

5. Mr Haidari filed four further written statements with the Tribunal from Mr ‘ARK’, Mr ‘SMK’ and Mr ‘SMM’ dated 25 February 2022, and Mr ‘SMRM’ dated 1 March 2022. All of these statements from Australian citizens noted Mr Haidari’s driving record and that he has lent his car to other people who have caused him to have adverse infringements record. These statements also confirmed that Mr Haidari is ‘illiterate’ and has a ‘limited knowledge’ of the English language.[32]  

   [32] Exhibits A2, A3, A4 and A5.

   CONSIDERATION

6. The sole issue for determination is whether Mr Haidari satisfies the requirements of good character in paragraph 21(3)(f) of the Act.

7. Guided by the Citizenship Policy Statement and CPI 15, I must weigh all the factors relevant to Mr Haidari’s character including the nature and seriousness of his offending, the time elapsed since his offending, his remorse and rehabilitation, and factors including his family life and employment.

8. Having regard to the evidence, I am satisfied that Mr Haidari has convictions for three driving-related offences in 2020 and 2021; in total, he received two fines, a s 10A conviction with no other penalty and was disqualified from driving for three months. I am also satisfied he incurred four speeding and traffic infringements between 2014 and 2020 for which he was fined and received demerit points. I find Mr Haidari’s traffic and driving offences are at the lowest end of the sentencing hierarchy and note he has now attended driving education classes so as to address and improve his driving skills.

9. Mr Haidari presented to the Tribunal as a credible, sincere and honest witness, and I accept his evidence that, for six of the speeding and traffic offences that occurred between 2012 and 2020, other people were driving his car and refused to accept responsibility for these offences. I am satisfied Mr Haidari’s evidence in relation to these circumstances has been consistent and supported by five other individuals who have provided written statements/ statutory declarations that were neither questioned nor disputed by the Minister’s legal representative at the hearing. I also accept Mr Haidari’s cultural circumstances are particularly relevant given that his illiteracy, language difficulties and social isolation means he is reliant on other people.

10. I have considered Mr Haidari’s evidence that he made ‘driving mistakes’ because he has difficulty concentrating and has been distracted by his concern for his family in Iran. I find this evidence is consistent with the extensive medical evidence before the Tribunal that verifies Mr Haidari has a complex medical history of physical and mental health issues. In particular, I have regard to the psychological assessment and report by Mr Attai on 2 April 2020, in which he observed:

    A significant issue for Mr Haidari’s psychopathology and heightened distress is the feelings of forced separation from his family, the prolonged waiting to live with them, dear for their safety and future…and uncertainty of his citizenship application…

    Mr Haidari’s condition has gradually deteriorated and is at a concerning level. I strongly believe his psychological health will significantly improve once his family are granted a visa to live in Australia with him…[33]

    [33] Exhibit T-T38, page 336.

11. This was consistent with my observations at the Tribunal hearing: Mr Haidari presented as a sad person who is deeply concerned for and desperately missing his family in Iran. It was clear that his long separation from and concern for his family is a distraction for him. It was also apparent that his driving offences were not intentional, and he is genuine in his remorse for any offending behaviour.

12. Finally, I consider Mr Haidari’s current employment and volunteering within the Afghanistan community in Australia, and lack of any negative information about him following a police check in Iran as positive indicators of his good character.

13. Weighing all the available evidence, I am satisfied that Mr Haidari is of good character as required by the Act, the Citizenship Policy Statement and the CPIs.

    CONCLUSION

14. In considering all the relevant circumstances, I find Mr Haidari satisfies the requirements of paragraph 21(3)(f) of the Act.

    DECISION

15. The Tribunal sets aside the decision under review dated 4 June 2021 and remits the matter to the Minister for reconsideration in accordance with the direction that Mr Haidari satisfies the requirement in paragraph 21(3)(f) of the Act.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..................................[SGD]......................................

Associate

Dated: 9 September 2022

Date of hearing:	23 August 2022
Solicitors for the Applicant:	Mr M Al-Shadidi, ASAD Lawyers
Solicitors for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers