Hatami and Minister for Immigration and Citizenship
[2011] AATA 532
•29 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 532
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4726
GENERAL ADMINISTRATIVE DIVISION ) Re Amir Hatami Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member A K Britton Date29 July 2011
PlaceSydney
Decision The decision under review is affirmed. .......................[sgd]...................
Senior Member A K Britton
CATCHWORDS
CITIZENSHIP – application for Australian citizenship – character test – policy criteria – consideration of applicant’s criminal history – decision under review affirmed
Australian Citizenship Act 2007 (Cth) – s 24(6)(g)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 10
Re Dandan and Minister for Immigration and Citizenship [2010] AATA 539
Re Booth and Minister for Immigration and Citizenship [2009] AATA 185
Re "CDCZ" and Minister for Immigration and Citizenship [2008] AATA 644
Re Long and Minister for Immigration and Citizenship [2010] AATA 464
Re Haeri and Minister for Immigration and Citizenship [2009] AATA 422
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
REASONS FOR DECISION
29 July 2011 Senior Member A K Britton 1.Mr Amir Hatami applies to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship not to grant his application for conferral of Australian citizenship. The stated reason for the decision was because the delegate was not satisfied that Mr Hatami was of “good character” — one of the statutory criteria for Australian citizenship. Central to that decision was Mr Hatami’s criminal history. Mr Hatami is 35 years of age and a citizen of Iran. He has lived in Australia since 2005 and was granted permanent residency in June 2008.
2.Mr Hatami applied for Australian citizenship in June 2009. In October 2009, his application was refused on the grounds that he was thensubject to a bond. The Australian Citizenship Act 2007 (Cth) (“the Act”) provides that a decision-maker must not approve a person becoming an Australian citizen during any period they are subject to a bond: s 24(6)(g). Mr Hatami applied for review of that decision to the AAT and by consent his application was remitted to the Minster for further determination, because by that time the bond had been lifted. On remittal, the Minister decided not to approve Mr Hatami’s application, notwithstanding that he was no longer subject to a bond, because he was not satisfied that Mr Hatami was a person of good character.
eligibility criteria for Australian citizenship
3.The Act sets out the eligibility criteria for Australian citizenship and provides:
Application and eligibly for citizenship
21(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
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(h) is of good character at the time of the Minister's decision on the application.
4.The assessment of whether Mr Hatami is of “good character” is required to be made at the time the Tribunal, acting as substitute decision-maker, makes its decision — not, March 2010 when the Minister, on remittal, refused Mr Hatami’s application for citizenship: see Re Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [3] to [10].
The meaning of “good character”
5.The meaning of the term “good character” has been considered in the context of the Act by the Tribunal (differently constituted) on a number of occasions: see, for example, Booth and Minister for Immigration and Citizenship [2009] AATA 185; "CDCZ" and Minister for Immigration and Citizenship [2008] AATA 644; Long and Minister for Immigration and Citizenship [2010] AATA 464; Haeri and Minister for Immigration and Citizenship [2009] AATA 422.
6.In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, the Full Court of the Federal Court considered the meaning of the term in the context of the migration legislation. Lee J said at 431-432:
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 omitted).
7.Davies J said in the same case at 425:
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.
8.In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said at 197:
The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.
Australian Citizenship Instructions
9.The Australian Citizenship Instructions (“the Instructions”) have been issued under the Act. The stated role of the Instructions is to:
[S]upport 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.
10.Chapter 10 of the Instructions states that:
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.
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An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. ... An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.
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11.The Instructions list a number of factors that decision makers should have regard to where a person has a criminal record. They include:
the seriousness of any offences against ordinary community standards
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whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond
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whether an offence was a one-off occurrence that can now be considered "out of character", or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see below).
whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.
the applicant’s age at the time the offence(s) were committed
A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person's behaviour immediately prior to the making of a decision.
A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
background
12.A copy of Mr Hatami’s criminal record was tendered in these proceedings. It reveals that Mr Hatami has been found guilty of offences committed on 13 November 2008 and 29 February 2009.
13.In November 2008, Mr Hatami was charged with the offence of “maliciously destroy or damage property”. The police Facts Sheet tendered before the sentencing court states that the police had been called out by Mr Hatami’s wife, who alleged that in the course of a heated argument she was grabbed by the shoulders and shaken violently for a couple of seconds, by her husband. That allegation is denied. She also alleged (and Mr Hatami admitted) that he went on to punch a hole in a fibro wall in their home. After entering a guilty plea, the charge was discharged by the NSW Local Court under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), on condition that Mr Hatami enter a good behaviour bond for a period of 12 months and “comply strictly with ADVO [apprehended domestic violence order]”.
14.It is unclear from the material before me when the apprehended domestic violence order referred to above came into effect. Mr Hatami thought it might have been issued following an altercation between him and his wife that took place, a couple of days before the incident for which he charged. He claims that following an argument his wife ran screaming onto the street in the early hours of the morning. He claims that the police were called out the following day.
15.In March 2009, police were again called to the Hatamis’ home. The police facts sheet states that Mrs Hatami told police that she and her husband had been arguing and he had hit her across the mouth. Mr Hatami is recorded as admitting to hitting his wife “with an open right hand a slapping motion”. He told police that he had lost control after his wife had insulted his deceased sister. He was subsequently convicted of “contravene … AVO (domestic)” and “common assault”. In March 2009, after entering a guilty plea, Mr Hatami was convicted of both offences and placed on a 24 month good behaviour bond in respect of the common assault charge, and given a $400 fine in respect of the “contravene AVO”. He was required as a condition of his bond to accept probation supervision and comply with the current apprehended domestic violence order.
16.In a report prepared in August 2009, Mr Hatami’s supervising parole officer stated that Mr Hatami had failed to participate in a domestic violence program as directed. The officer noted that Mr Hatami had advised the Service that he was unable to attend the program because it conflicted with his study and sporting commitments. The report also noted that Mr Hatami’s parole officer contacted him after he had been absent for some time and was told that he “was not like all the other people in the group and did not need to attend”. The officer recommended that Mr Hatami be called up before the court and re-sentenced given his lack of commitment and reluctance to participate in an appropriate intervention program, despite being given alternative options in terms of attendance.
17.On 15 September 2009 after being called up by the NSW Local Court, Mr Hatami was fined $600 and ordered to pay costs. His bond was revoked.
18.In these proceedings, Mr Hatami gave evidence about the two incidents which resulted in criminal charges being laid against him. In respect of the first incident, he did not dispute that he had damaged a wall, but disputed shaking his wife by the shoulders. In respect of the second incident, he admitted to hitting his wife in the face but said he used the back, not the palm of his hand — in a reflex type action.
19.In respect of the first incident, the fact that Mr Hatami entered a guilty plea to the charge of “maliciously destroy or damage property” is not necessarily a concession that, as alleged, he shook his wife by the shoulders. A plea of guilty, at law, is an acknowledgment by the accused person that there is sufficient evidence capable of proving each of the elements of the offence for which they have been charged. It is not necessarily a concession of each particular fact that the prosecution alleges occurred.
20.In respect of the second offence, any difference between the account given by Mr Hatami in these proceedings and that recorded in the police facts sheet is one of degree. But in any, there is a strong prima facie presumption that the facts found by the court in convicting and sentencing Mr Hatami were found correctly. While the Tribunal, may, if appropriate, “go behind” the facts found, any conviction places a “heavy onus”, on a party seeking to persuade the Tribunal to accept facts other than those found by the sentencing court: per Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [43]. I could not be satisfied that Mr Hatami has discharged that onus in this case.
21.In these proceedings Mr Hatami admitted to another incident which occurred in the early years of his marriage in which the police were called to his home. No charges were laid.
Rehabilitation
22.Mr Hatami agrees that, as reported, he told the parole service he could not attend the Domestic Violence Program as directed because of sporting and study commitments and because in his opinion it was irrelevant to his situation. He stated that he believed that the course was unsuitable because the other participants appeared to have a history of violent offending and some had spent time in prison. He claims that over the past two years he has attended about eight sessions with a psychologist. He was unsure but thought that about three sessions had been devoted to anger management and the remainder to family issues.
23.Mr Hatami described his relationship with his former wife as “stormy”. He denied any anger management issues outside that relationship. He denied having acted in a violent manner towards any other person. Mr Hatami and his wife separated in September 2009. The three year old child of the marriage lives with his mother. Mr Hatami claims he visits his child daily and there have been no further incidents with his wife.
Findings and conclusions
24.It falls to Mr Hatami to rebut the presumption that he is not of good character as a consequence of his criminal record. To decide whether that presumption has been rebutted it is necessary to have regard to the factors listed in the Instructions as set out above.
25.The seriousness of any offence: As conceded for the Minister the offences committed by Mr Hatami are not at the high end of the scale in terms of seriousness. Only one involved violence against a person.
26.On-going sentencing obligations: Mr Hatami has not been subject to any sentencing obligations since his bond was revoked on 15 September 2009.
27.Age at time of offending: Mr Hatami was in his early thirties at the time of the subject offences.
28.Offending conduct: There is no evidence of Mr Hatami being charged in relation to any other offence other than those he committed in November 2008 and February 2009. While by his own admission the police were called to his home on two previous occasions, no charges were laid — although on his account, one resulted in him being made subject to an apprehended violence order.
29.Mr Hatami claims that his offending conduct occurred in the context of a troubled marriage and there is no evidence of similar misconduct in any other relationship, domestic or otherwise. He claims that his relationship with his former wife has now stabilised.
30.Behaviour immediately prior to the making of a decision: There is no evidence of Mr Hatami being involved in any criminal activity since March 2009. Nor, as he points out, is there any evidence of any further domestic incidents.
31.Reputation in the community: Tendered in support of Mr Hatami’s application for Australian citizenship were two character references. One referee stated that he has known Mr Hatami since 2005 through their joint involvement in sporting activities and that throughout that period there has never been any disciplinary or conduct issues involving Mr Hatami. He stated that he was aware that there had been a domestic violence incident involving Mr Hatami’s wife but was unaware of the details. The other referee stated that he has worked closely with Mr Hatami in a professional capacity since May 2010 and had always found his conduct to be “highly acceptable”. Both referees attested to Mr Hatami being a person of good character and repute.
32.Conclusion: There are a number of powerful factors which support Mr Hatami’s contention that he is a person of good character. These include: the relative lack seriousness of the offending conduct; the fact that close to three years have now passed since it occurred; and, the good repute he enjoys within the community. Since arriving in Australia Mr Hatami has applied himself diligently to his studies and career and is well regarded by his work and sporting colleagues.
33.However there are a number of factors which weigh against Mr Hatami in the assessment of whether the presumption that he is not of good character has been rebutted. First, while not at the high end of the scale in terms of seriousness, either in terms of domestic violence type offences or offences at large, Mr Hatami has been convicted of an offence of violence involving his former wife. Second, while Mr Hatami might be correct and any misconduct on his part is unlikely to occur outside that relationship, there is little evidence to support that self-assessment. Mr Hatami’s claim of having received anger management issues counselling is unsupported and unspecific. Third, Mr Hatami failed to comply with the conditions of his bond and sentencing obligations to the court. Mr Hatami may be correct that the program he was directed to attend by the NSW Probation and Parole Service was inappropriate to his needs but nonetheless he was under an obligation to the court to comply with the directions of the Service and failed to do so. It was not open to Mr Hatami to simply absent himself from the program on the grounds that the timetable was inconvenient, or in his opinion, the program was unsuitable. That his bond was eventually revoked does not, as I understand Mr Hatami to suggest, mean that the presiding magistrate in effect endorsed his decision not to attend the program.
34.Mr Hatami is plainly a person committed to and no doubt able to, make a significant contribution to the Australian community. I am not persuaded however that at this stage he has rebutted the presumption that arises as a result of his criminal history that he is not a person of “good character” within the meaning of s 21(2)(h) of the Act. Central to my conclusion is the dearth of supporting evidence that Mr Hatami either does not need to, or has participated in, any rehabilitation program to reduce his risk of recidivism. In the absence of such evidence in my opinion insufficient time has passed since the last offence to enable me to be confident that, as Mr Hatami claims, the offending conduct is uncharacteristic and unlikely to be repeated. This decision does not prevent Mr Hatami making an application for conferral of Australian citizenship in the future.
35.For these reasons, I have decided to affirm the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
Signed: .......................[sgd]....................................
Associate to Senior Member BrittonDate/s of Hearing 21 July 2011
Date of Decision 29 July 2011
Applicant self-represented
Solicitor for the Respondent: M Stone, DLA Piper
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