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

[2021] AATA 2578

Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2578 (16 July 2021)

Division:GENERAL DIVISION

File Number:          2020/4509

Re:Dil Agha Hussaini

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of decision:               16 July 2021

Date of Written Reasons:      29 July 2021

Place:Melbourne

The decision under review is set aside and remitted to the Respondent for reconsideration, with the direction that the Applicant satisfies the good character requirement for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth). 

.....................[sgd]...................................................

Senior Member A. Nikolic AM CSC

CATCHWORDS

CITIZENSHIP - application for conferral of Australian citizenship - good character - whether Tribunal is satisfied of Applicant’s good character – s 21 Australian Citizenship Act 2007 (Cth) - Australian Citizenship Policy Statement - Revised Citizenship Procedural Instructions - Applicant convicted of family violence offences in 2015 - sufficient pattern of good conduct since offending - Tribunal satisfied Applicant is now of good character - decision set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Crimes Act 1958 (Vic)
Family Violence Protection Act 2008 (Vic)

Migration Act 1958 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Negri v Secretary, Department of Social Services [2016] FCA 879
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

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

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)


Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

29 July 2021

1. The Applicant seeks review of a decision by the Respondent on 30 June 2020, refusing his application for Australian citizenship by conferral under the good character provision at s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).[1]

   [1] Exhibit R1, 14-19.

2. This matter was heard on 16 July 2021. The Applicant was represented by Mr Ali, a solicitor from Legal Concerns. The Respondent was represented by Mr Downie of Minter Ellison.

3. At the conclusion of the hearing ex tempore reasons were delivered setting aside the decision under review. On 19 July 2021 the Applicant requested a statement in writing of the reasons for decision. These are now provided consistent with the requirements of s 43(2B) of the Administrative Appeals Tribunal Act 2007 (Cth) and consistent with Federal Court authority, which provides:[2]

   ...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

   [2] Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).

   BACKGROUND

4. The Applicant was born in Afghanistan on 17 May 1987.[3] He arrived in Australia on 19 October 2011 on a Partner (Provisional) (subclass 309) visa and was subsequently granted permanent residence by way of a Partner (Migrant) (subclass 100) visa on 20 June 2013.[4]

   [3] Exhibit R1, 21.

   [4] Ibid 14.

5. The Applicant’s Nationally Coordinated Criminal History Check[5] discloses that in March 2015 he was convicted of Recklessly cause injury and Contravene family violence intervention order, for which he was sentenced to Community Corrections Orders (CCO).

   [5] Ibid, 101-102.

6. On 3 April 2017, the Applicant lodged an application for Australian citizenship by conferral[6] and ticked ‘yes’ in response to a question regarding criminal history, stating: ‘I have been involved into family violence which is alredy cleard by Court’.[7] Almost three years passed without any communication with the Applicant.  A delegate of the Minister subsequently wrote to him on 15 May 2020, inviting comment about his offending.[8] In response, the Applicant provided several supportive statements.[9]

   [6] Ibid 21.

   [7] Ibid 35.

   [8] Ibid 93.

   [9] Ibid 116–9.

7. On 30 June 2020, a delegate of the Minister notified Mr Hussaini that his application for Australian citizenship was refused.[10] The delegate noted that offences relating to the safety of women and children in Australia are ‘of particular concern’ and concluded that the ‘recent nature’ of the offending and ‘limited evidence at hand,’ were insufficient to show that ‘positive changes have taken place’.[11]

   [10] Ibid 11.

   [11] Ibid 16-17.

8. On 24 July 2020, the Applicant asked the Tribunal to review the refusal decision.[12]

   [12] Ibid 1.

   LEGISLATIVE FRAMEWORK

9. Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. To be eligible, a person must satisfy each of the eight general eligibility requirements under s 21(2) of the Act.

10. Relevantly for the purposes of this application, s 21(2)(h) requires that the Minister is satisfied the person applying to become an Australian citizen ‘is of good character at the time of the Minister's decision on the application’.

11. Section 24(1A) of the Act provides that the Minister (or a person delegated by the Minister under s 53 of the Act), ‘…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).’

12. Section 52(1)(b) of the Act is the source of the Tribunal’s jurisdiction to review decisions made by the Minister or a delegate of the Minister under s 24 of the Act.

13. The importance of the good character requirement in citizenship applications was referred to by Deputy President Breen in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]:

    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.

    Citizenship Policy Statement and Revised Citizenship Procedural Instructions

14. The term ‘good character’ is not defined in the Act. The Full Court of the Australian Federal Court has confirmed the term is to be given a broad interpretation:[13]

    ‘…Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…’

    [13] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, [60].

15. The Australian Citizenship Policy Statement (Policy) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (CPI) (reissued 26 February 2021) provide guidance for decision-makers exercising power under the Act. The Policy and CPI do not arise from specific provisions of the Act[14] and are not binding on the Tribunal. As held in Drake,[15] however, decision-makers undertaking merits review should generally apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary’. The Tribunal is satisfied there is no reason why the Policy or CPI should not be applied in this matter.

    [14] Minister for Home Affairs v G and Another (2019) 266 FCR 569, 586.

    [15]  Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.

16. Relevant to this application is Citizenship Procedural Instruction 15 - Assessing Good Character under the Citizenship Act (CPI 15). CPI 15 states that decision-makers ‘should not apply policy inflexibly and should consider the merits of each individual case’.[16] The following guidance is provided as to the meaning of the term ‘good character’, drawing on the judgment of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]:

    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 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.

    [16] CPI 15, 1.

17. CPI 15 further elaborates on the phrase ‘enduring moral qualities’ as encompassing the following concepts:[17]
    
    

    [17] CPI 15 3.3.

    ·     characteristics which have endured over a long period of time;
    
    

    ·     distinguishing right from wrong; and
    
    

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

    The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

18. CPI 15 also sets out a non-exhaustive list of general characteristics expected of a person of good character, noting as a general proposition, they would:[18] 

    [18] Ibid 4.

    ·respect and abide by the law in Australia and other countries;
    
    

    ·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
    
    

    ·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
    
    

    ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
    
    

    oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
    
    

    oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
    
    

    oconcealing criminal convictions;
    
    

    ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
    
    

    ogiving false names and/or addresses to police;
    
    

    ·not be the subject of any extradition order or other international arrest warrant;
    
    

    ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
    
    

    ·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
    
    

    ·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
    
    

    ·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.

19. Under the heading ‘Community standards’,[19] CPI 15 references the findings in Zheng v Minister for Immigration and Citizenship [2011] AATA 304, that the Preamble to the Act can assist in identifying what the Australian community holds to be relevant behaviour for the purposes of assessing good character. CPI 15 further explains the standards of the Australian community can be identified through:

    [19] Ibid 3.3.

    Government initiatives, both Federal and State, such as the making of new laws, reviewing of existing laws, campaigns to raise awareness in the community, the appointment of Royal Commissions to investigate certain matters and make recommendations to government on issues that affect the community should be taken into consideration where relevant, as these issues are reflective of Australian community expectations.

    Such issues could be, for example:

    ·media campaigns about domestic violence, which reflects both the community’s and the government’s stance on this issue;

    ·the Royal Commission into Institutional Responses to Child Sexual Abuse;

    ·State and Territory government approaches to Outlaw Motorcycle Gangs (OMCGs) and youth street gangs; or

    ·new laws regarding national security and terrorism.

    These initiatives indicate that domestic violence and child sexual abuse in any form is not acceptable in the Australian community. Behaviour that impinges on the safety of, or creates fear in the community, is not acceptable. Persons taking part in, or condoning, such activities do not respect the rights and liberties of others in the community. 

20. The reference to the seriousness of domestic violence is emphasised in CPI 15 under the heading ‘Offences’, where ‘crimes of violence (such as…domestic violence)’ are identified as serious offences.[20]

    [20] Ibid 12.1.

21. Under the heading ‘Weighing information’, CPI 15 provides guidance for decision-makers as to how an overall assessment of a person’s character can be made:[21]

    [21] Ibid 14.

    In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:

    ·characterise the nature of any offence or behaviour

    ·is the offence serious or minor?

    ·did the offence harm other people?

    ·who were victims?

    ·is there a pattern of behaviour?

    ·was it a one off incident?

    ·were there extenuating circumstances?

    Consider any associations with people or organisations of concern.

    Consider any mitigating circumstances:

    ·length of time since the offence was committed

    ·age at time of offence

    ·behaviour since completing prison sentence or obligations to court

    ·remorse regarding their offending behaviour

    ·community support (referee reports etc)

    ·changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.

    The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.

22. The requirement for a holistic assessment of a person’s character has been discussed in Prasad and Minister for Immigration and Ethnic Affairs, Re [1994] AATA 326 at [7], where the Tribunal found:

    …a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.

    ISSUES FOR DETERMINATION

23. The only issue for determination is whether the Tribunal can be satisfied of the Applicant’s good character for the purposes of s 21(2)(h) of the Act.

    EVIDENCE

    Documentary evidence

24. The Tribunal has considered the Applicant’s and Respondent’s Statement of Facts, Issues and Contentions, and the oral submissions of Mr Ali and Mr Downie. The following documents were admitted into evidence:

    (a)Documents lodged by the Respondent numbering 158 pages titled ‘Respondent’s Section 37 Documents (T documents)’;[22]

    (b)Documents lodged by the Respondent numbering 29 pages titled ‘Supplementary T documents’;[23]

    (c)Four-page translated statement of the Applicant dated 11 February 2021;[24]

    (d)Three-page translated statement of the Applicant’s wife dated 11 February 2021;[25]

    (e)Two-page translated statement of the Applicant’s father-in-law dated 11 February 2021;[26]

    (f)Two-page translated statement of the Applicant’s mother-in-law dated 11 February 2021;[27]

    (g)Two-page translated statement of the Applicant’s co-worker dated 11 February 2021;[28]

    (h)One-page statement of the Applicant’s employer dated 3 June 2021;[29]

    (i)Two-page statement of the President and Vice-President of the Hazara Community Mildura, with an attached one-page transaction statement from the National Australia Bank dated 12 October 2019 to 10 January 2020;[30] and

    (j)Eight pages of birth and citizenship certificates for the Applicant’s children.[31]

    [22] Exhibit R1.

    [23] Exhibit R2.

    [24] Exhibit A1.

    [25] Exhibit A2.

    [26] Exhibit A3.

    [27] Exhibit A4.

    [28] Exhibit A5.

    [29] Exhibit A6.

    [30] Exhibit A7

    [31] Exhibit A8.

    Witness evidence

25. The Applicant, his wife, and his wife’s parents gave evidence at the hearing and were cross-examined.

    Applicant’s evidence

26. In a Statutory Declaration dated 9 June 2020, the Applicant contextualised his offending as follows:[32]

    ‘I belive I had family voilence compailn againts me on 2015. Because I had family issue with my wife. I did make crime to fight with my wife and didn’t obey law of Australia. It all happend accidently as I was not aware from law of Australia we both didn’t want complain to police but our neighbours heared us fighting and they called to police station. And police took me to jail. I have been imprison for over a month I learned from my mistake. While I was in jail I missed my wife alot. Luckily I was out jail after a month. I promised to my self and to my wife we never gonna make issue in our life again and since that time I never had any issue with my wife and didn’t make any other crime anywhere in Australia’.

    (Errors in original)

    [32] Exhibit R1, 119.

27. The Applicant acknowledges that domestic violence is a serious offence but submits that his conduct was impulsive and occurred in the heat of the moment during an argument initiated by his wife, who grabbed his shirt. He said the argument escalated after his wife called her parents, leading to a further confrontation with his father-in-law, who smashed the windscreen of the Applicant’s car, causing the Applicant to call police.

28. At times the Applicant cavilled about aspects of his conduct. For example, he conceded in his statement that he slapped his wife once, but in oral testimony claimed he only pushed her face away after she grabbed the front of his shirt. The latter version was corroborated by his wife’s evidence. The Applicant also claimed he pleaded guilty only to put the matter behind him and re-join his then pregnant wife and child. He agreed that he was legally represented, however, and the Tribunal made clear his guilty plea constituted acceptance of all elements of his offending.[33]

    [33] Maxwell v R (1996) 184 CLR 501, [19].

1. The Applicant said he undertook offence-specific rehabilitation after his offending, which taught him more about Australian law and how to deal calmly with conflict. He gave examples about how this assisted him, including when dealing with previously troublesome neighbours by not responding to their provocation. 

2. The Applicant submitted that six years had passed since his offending without any further misconduct. He claimed to have matured as a result of his experiences, reconciled with his wife who gave birth to three more children, and restored the relationship with his wife’s parents. He now enjoys stable employment, has purchased a home, and is no longer stressed by financial pressures. He continues to engage with the Hazara Community and provided references to the effect that he is a well-regarded and valued community member.

   Applicant’s wife and parents-in-law

3. In a Statutory Declaration dated 9 June 2020, the Applicant’s wife stated:[34]

   ‘We married on 2009 we had our first child on 2011. Everything was going very well. But we had some family issue beacuse some misunderstanding. We fought with eachother on 2015. I was not suppose to complain againts him. But it happend he is gone to jail. Even I did make mistake by sending him to jail I missed him alot while he was in jail. I was so happy when I see him out of jail. He promised me that he never make that situation will come again in our life’.

   (Errors in original)

   [34] Exhibit R1, 118.

4. The collective effect of the evidence from the Applicant’s wife and her parents, is that the Applicant is a good man who immediately regretted his violent conduct over six years ago and has not been aggressive, abusive or violent since. The Applicant’s wife said she had a short temper and wished she had not started the argument with him. She also regretted involving her parents, which led to her father smashing the Applicant’s car windscreen and police being called. She could not understand why the Applicant was arrested and felt her neighbour, with whom they did not have a good relationship, made false accusations. She said the Applicant had learned from this experience and is a changed man. She loves her husband and considers he is a good father and provider for their four children.

5. Under cross-examination, Mr Downie put to the Applicant’s wife that her evidence was influenced by her husband because it was different to that recorded by Police, which she denied.   

   CONSIDERATION AND FINDINGS

6. The Tribunal makes the following findings:

   (a)The Applicant comes from an underprivileged background in Afghanistan. The contextual circumstances at the time of his offending were of a man establishing his life in Australia after spending his formative years in Afghanistan where law, culture, religion, and societal expectations are starkly different. At the time of his offending he was under significant financial pressure with difficulties finding work and the challenges of funding an independent life for himself and his family in a newly purchased home. That in no way excuses his offending, but serves to illuminate the contextual circumstances then characterising his life in Australia;

   (a)The Applicant was truthful about his past crimes in his citizenship application;

   (b)The Applicant’s conduct in 2015 arose in the context of a verbal argument initiated by his wife over six years ago, which occurred in the presence of their infant child;

   (c)None of the victim’s actions justified the Applicant striking her, which is serious and unacceptable behaviour. However, it was also impulsive and short-lived. There is no evidence of any similar offending by the Applicant prior to this conduct or since;

   (d)Any evidence that conflicts with the Applicant’s convictions, founded on his pleas of guilty, is rejected;

   (e)The crime of Recklessly cause injury under s 18 of the Crimes Act 1958 (Vic) carries a maximum sentence of five years imprisonment. Contravention of a family violence intervention order under s 123 of the Family Violence Protection Act 2008 (Vic) carries a maximum sentence of two years imprisonment. The Applicant was sentenced to much less than the available maximums; two CCOs and 100 hours of community work. This is at the lower end of available sentencing options. There is no evidence the Applicant was other than compliant with his sentences;

   (f)While noting Mr Downie’s submission that there is no documentary evidence regarding the Applicant’s rehabilitation, there is also no evidence he did not complete court-ordered requirements. The Tribunal found the Applicant’s responses about rehabilitation persuasive and is satisfied he has benefitted from it and put lessons learned into practice. His explanations were insightful, including references to better understanding Australian law and culture, the need to respect to each other, the importance of equality, and ‘being very calm and quiet when dealing with problems.’ The Tribunal also accepts the Applicant’s wife’s evidence that he is now more patient and a better listener than was previously the case;

   (g)The Applicant’s conduct caused divisions within his family group, which were subsequently repaired. The Tribunal accepts he has a close and loving relationship with his wife and children, and a positive relationship with his parents-in-law. Notwithstanding the potentially significant impact of family violence on children, there is no evidence the Applicant has been other than a loving father who has provided for his four children’s needs;

   (h)The Applicant is now more mature, settled in his life in Australia, and has not reoffended for over six years.

   (i)The Applicant’s children and parents-in-law are Australian citizens and the prospect of gaining and benefitting from the privileges of Australian citizenship are a protective factor mitigating the risk of him repeating the conduct that previously called his character into question; and

   (j)The Applicant is well regarded by those who have written supportive statements as a hardworking, productive and valued member of the community.

   CONCLUSION

7. The Tribunal is satisfied the Applicant has demonstrated a sufficient pattern of good conduct since his offending to now be considered of good character for the purposes of s 21(2)(h) of the Act.

   DECISION

8. Accordingly, the decision under review is set aside and remitted to the Respondent for reconsideration, with the direction that the Applicant satisfies the good character requirement.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

...........................[sgd].............................................

Associate

Dated: 29 July 2021

Date of hearing:	16 July 2021
Advocate for the Applicant:	Mr Muhammad Raza Ali
Advocate for the Respondent:	Mr Adrian Downie
Solicitors for the Respondent:	Minter Ellison