Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 4141

Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4141 (10 November 2021)

Division:GENERAL DIVISION

File Number(s):      2020/7950

Re:Junaid Hasan

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:10 November 2021  

Place:Sydney

The reviewable decision, being the decision of a delegate of the Minister dated 24 July 2020 to refuse Mr Hasan’s application for Australian citizenship by conferral is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – whether the applicant satisfies the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – domestic violence conviction – nature of offending disputed – conviction not declared – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234

SECONDARY MATERIALS

Australian Citizenship Policy Statement

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Mr S Evans, Member

10 November 2021 

INTRODUCTION

1. Junaid Hasan (‘Mr Hasan’) is a 58 year-old citizen of Iraq who first arrived in Australian on 27 May 2014 as the holder of a permanent visa. On 14 June 2018 he lodged an application for Australian Citizenship by conferral. On 24 July 2020 Mr Hasan’s application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) on the grounds that he was not of ‘good character’, which is one of the requirements for Australian citizenship.

2. Mr Hasan seeks review of the decision at the Administrative Appeals Tribunal (‘the Tribunal’). 

   LEGISLATIVE AND POLICY FRAMEWORK 

3. Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (‘the Act’) provides that a person may make an application to the Minister to become an Australian citizen. 

4. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

5. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen. 

   Determining questions of character

6. The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (‘Irving’) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

   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 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.[1]

   [1] (1996) 68 FCR 422, 431 – 432.

7. The Department’s official guides to decision makers, include both the Australian Citizenship Policy Statement (‘the Policy Statement’), which details the overarching legislative requirements for becoming an Australian citizen, and the Australian Citizenship Procedural Instructions. The Policy Statement provides context to the Instructions. Departmental policy will usually be applied by decision makers, including the Tribunal, unless there are cogent reasons not to do so.

8. The Instruction relevant in this matter is CPI 15 - Assessing Good Character under the Citizenship Act (‘the Instructions’). The Instructions provide guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.

9. Informed by the discussion in Irving, subsection 3.3 of the Instruction states 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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

10. The Instructions specifically call for the decision maker to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities’.[2] A person’s enduring moral qualities encompass:

    (a)characteristics which have endured over a long period of time;

    (b)distinguishing right from wrong; and

    (c)behaving in an ethical manner, conforming to the rules and values of Australian society.

    [2] CPI 15, section 14.

11. The Tribunal is guided by these considerations in determining whether Mr Hasan meets the good character requirement for Australian citizenship.   

    ISSUE TO BE DETERMINED

12. The sole issue to be determined is whether the Tribunal is satisfied, at the time of its decision, that Mr Hasan is of ‘good character’ for the purposes of paragraph 21(2)(h) of the Act. 

    EVIDENCE

    Offending

13. On 11 February 2016 Mr Hasan appeared in the Wollongong Local Court where he was found guilty of Common assault (DV)-T2 and one offence of Common assault-T2 and discharged in each case on condition of entering a good behaviour bond. The bond in relation to the first offence was for 18 months and the bond in relation to the second offence was for six months. 

14. The offending occurred on 1 October 2015 and the victim of his offending, Ms W, is Mr Hasan’s niece and also his daughter-in-law, as she was at that time married to Mr Hasan’s son.  

15. In evidence before the Tribunal are documents produced by NSW Police under summons. According to the police record, at approximately 9pm on 1 October 2015 Mr Hasan and his wife went to Ms W’s home. Ms W was not at home, but when she arrived at her home, Mr Hasan approached Ms W’s vehicle and yelled at her to get out her car. A verbal and physical altercation followed, during which Mr Hasan slapped Ms W twice on the left side of her face. Mr Hasan’s wife also attempted to hit Ms W, causing scratch marks to Ms W’s hands. Mr Hasan is reported to have pushed and cursed at Ms W’s male companion. After intervention from unknown people, Mr Hasan and his wife left. The police officers who attended Ms W’s residence following the incident recorded that Ms W had red swelling to the left side of her face and red scratch marks on her hands. When Mr Hasan was interviewed by the police later that night he told police in relation to Ms W that he had ‘pushed her away… I pushed her away on the face’. 

16. In a written statement Mr Hasan recounted his own recollection of the offending. During his oral testimony Mr Hasan also detailed both the offending and events preceding it.

17. Mr Hasan explained that the on the day of the offending he had observed Ms W with a man who he did not know. Mr Hasan contends he began talking to Ms W. He claims to have told her that it was shameful for her to be out with a man she is not related to. He took photos of Ms W and sent the photos to their family members so that they could see and judge ‘the shameful act’ for themselves.

18. Mr Hasan also claims to have given Ms W advice. He told her that what she was doing was not right. Having dispensed his advice, he claims he went home because he could see that Ms W was adamant that she was going to do what she was doing. He recalls being saddened and hurt by Ms W’s behaviour. 

19. Mr Hasan claims not to have raised his voice at Ms W but to have spoken to her as if she was his daughter.

20. It was Mr Hasan’s evidence that neither he or his wife struck, or tried to strike, Ms W. He contends that the physical assault accusations were not accepted by the Court following contradictory evidence being presented. He contends that the redness observed in Ms W’s cheeks was the result of her general sensitivity and a reaction to the emotional situation she was experiencing.

21. Mr Hasan said that he regrets what happened. He specifically regrets giving Ms W advice as she is someone who does not accept advice. He also regrets going to the police station and to court.

    Context of the offending

22. Ms W and Mr Hasan’s son were married in Iraq in 2007. They have a daughter together and used to reside in the same building as Mr Hasan and his wife and daughter. The doors to their apartment were opposite each other and they would visit each other often. At the time of the offence Mr Hasan’s son was overseas and whilst he was away Ms W had taken their daughter and moved out of the marital home. 

23. On the night of the offending Mr Hasan was hoping to discuss the relationship with Ms W and hoped she would change her mind about leaving her marriage. He found it hurtful when he saw her with a complete stranger. In addition to providing advice Mr Hasan reports telling Ms W that what was occurring was not acceptable and she must come back to the home she shared with her husband and that the family would put what has happened in the past. He indicated that he and the rest of the family would overlook her mistakes  

    Other considerations

24. Mr Hasan has three children and he and his wife continue to care for their daughter. Mr Hasan suffers from anxiety and stress and other health conditions which render him unable to work.

25. Though his friendships are primarily with others within the Muslim community, he has reported having other friends including a female friend who migrated from India who he meets for coffee.  

26. Since his son re-married, the relationship between Mr Hasan’s family and Ms W has stabilised. He now regularly sees Ms W, takes care of his granddaughter and has a positive relationship with her.

    References

27. In a statutory declaration dated 17 March 2021 Ahmad F Mohamad Hasan Salah writes that he has known Mr Hasan since June 2014 and that he is a close friend. Mr Salah is aware of Mr Hasan’s criminal convictions and that Mr Hasan ‘had an issue with his daughter inlaw [sic] who is his niece as well, when his son [name] was overseas’. Mr Salah explains that Mr Hasan ‘was just trying to maintain his son’s family when he saw his son’s wife with another man. He was trying to advise his niece to respect the family culture and her husband.’ Consistent with Mr Hasan’s evidence, Mr Salah states that Ms W and Mr Hasan have reconciled and Ms W visits him in their home and their grandchild also visits.

28. Anwar Ahmed writes that Mr Hasan is of good character and was involved in a ‘[f]amily matter’ with his niece which is ‘final[l]y resolved and they both in peace [sic]’. 

29. Dr Haider Jasim is a general practitioner and writes that he has known Mr Hasan since 2014 both personally and professionally. He considers him calm, polite and courteous and though aware of his involvement in a family dispute which involved the police being called his high opinion of Mr Hasan remains.

30. Ms W writes on 24 March 2021 that she has known Mr Hasan since she was a child and that Mr Hasan is her uncle and the father of her ex-husband and her daughter’s granddaughter. She writes that since the ‘old family problem’ happened in 2015 there has been reconciliation and that they ‘love and respect each other’. She considers that Mr Hasan is of good character and is very respectful, helpful and affectionate.

    Failure to declare conviction

31. In his application for citizenship Mr Hasan failed to disclose the offending where he was asked if he had been convicted or found guilty of any offence. Asked why he did not mention the conviction in his application, Mr Hasan said that he understood the question to be referring to ‘big crimes’ such as those involving drugs or killings and that had he known it included offences such as assault he would have acknowledged the offending in the application.

    CONSIDERATION

32. Mr Hasan strenuously denies some of the circumstances of his offending. In particular he contends that neither he nor his wife physically assaulted Ms W. 

33. The Minister contends that the Tribunal should reject evidence where Mr Hasan’s account is inconsistent with the police reports. The Tribunal does not have access to any sentencing remarks made by the Magistrate but it does appear Mr Hasan contested the charges and was found guilty of common assault and sentenced accordingly.

34. It is well established that the Tribunal cannot look behind a conviction as outlined in the Full Court of the Federal Court decision of Minister for Immigration and Multicultural Affairs v SRT[1999] FCA 1197; (1999) 91 FCR 234, at [45]:

    To impugn the sentencing process...is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence.

35. As such, while Mr Hasan is free to raise matters before the Tribunal related to his offence, the Tribunal cannot contradict or impugn a conviction by a court nor the facts upon which that conviction is based. This principle is consistent with CPI 15 which succinctly states that ‘[d]ecision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct’.

36. That said, I accept the Minister’s contention that there is no objective evidence before the Tribunal to suggest that the Local Court of NSW acted on anything other than the facts recorded in the police documents in finding that Mr Hasan was guilty of the offences. Further, Mr Hasan’s explanation that the redness observed on Ms W’s face was due to her being sensitive lacks credibility.

37. On the night of the offending, Mr Hasan stated that he sought to chastise Ms W for her immoral behaviour. His evidence in written submissions, consistent with that provided during the hearing, is that he accepts he was involved in a verbal altercation but that it was not only well intentioned but justified in the circumstances. He writes that when he saw Ms W with ‘her boyfriend’ on the street near her home he was ‘shocked’ and ‘began to…blame her and tell her that what she is doing is wrong’. He writes in part: 

    … you [Ms W] are my niece, and it is my duty to protect you instead of separating from our family, and I tried to advise her and guide her to return to what happened to him on the path of righteousness, but instead, she remained stubborn and persistent. 

38. I accept Mr Hasan’s contention that the offending arose out of an attempt to preserve his family and to protect Ms W from the harm that would come from leaving his family. However, in describing Ms W’s behaviour as ‘unacceptable and shameful for anyone’, it appears that Mr Hasan is attempting to blame Ms W for his offending. 

39. Mr Hasan’s account of his offending and explanation for what happened strongly suggests that Mr Hasan considers his actions were justified and reasonable in the circumstances.

40. The facts indicate that Mr Hasan was prepared to intimidate Ms W in order to achieve his desired outcome. Whilst maintaining family cohesion may be a worthy motivation, in this case the means do not justify the ends. This is particularly so in circumstances where Ms W had an AVO in place against her husband, Mr Hasan’s son, and had indicated her intention by leaving the family home.

41. A criminal offence in and of itself does not make a person of bad character. However a second chance is not lightly bestowed and requires that the person be honest about past mistakes and offences. It is concerning that Mr Hasan continues to argue that his attempts to coerce Ms W to take his advice and to shame her by sending photographs of her to her family were appropriate and proportionate responses to the situation. Having the benefit of a significant period of time passing since the offence, Mr Hasan continues to apportion blame to Ms W. This indicates a significant deficit of remorse and insight into his offending.

42. In relation to his failure to declare the offence in his citizenship application, I do not accept that Mr Hasan was unaware that he was required to do so. The wording of the requirement is explicit and Mr Hasan’s presentation during the hearing and his written submissions indicate he is an intelligent man with a strong grasp of English. I consider that providing incorrect information in his citizenship application reflects poorly on his character.

43. A person of good character is expected not to cause harm to others through their conduct, to obey the laws of Australia and not to intentionally provide false information to the Australian government. These requirements are not to be applied rigidly or inflexibly, and individuals should be afforded an opportunity to demonstrate their good character subsequent to events which have cast doubt on them being of good character.

44. In this case, at this time, I am not persuaded that Mr Hasan has demonstrated the enduring moral qualities which constitute good character.

    CONCLUSION

45. For the reasons outlined above, I find that Mr Hasan does not meet the character requirements in paragraph 21(2)(h) of the Act at this time.

    DECISION

46. The reviewable decision, being the decision of a delegate of the Minister dated 24 July 2020 to refuse Mr Hasan’s application for Australian citizenship by conferral is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 10 November 2021

Date(s) of hearing:	12 August 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr M Gao, Australian Government Solicitor