Ismail Sahin and Minister for Immigration and Citizenship
[2012] AATA 429
•10 July 2012
[2012] AATA 429
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4982
Re
Ismail Sahin
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 10 July 2012 Place Sydney The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction that the applicant is of good character.
...........[sgd].............................................................
Senior Member J F Toohey
CATCHWORDS
CITIZENSHIP – application refused on ground applicant not of good character – whether applicant of good character – Australian Citizenship Instructions – criminal record – evidence that applicant had made considerable changes in his life – sufficient time elapsed since last offence – Tribunal satisfied applicant reformed – evidence of recent road traffic infringements did not outweigh evidence of reform – Tribunal satisfied that applicant of good character – decision under review set side
LEGISLATION
Australian Citizenship Act 2007 s 21(2)(h)
CASES
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Graham Taylor and Minister for Immigration and Citizenship [2010] AATA 55
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration v Baker (1997) 73 FCR 187
Minister for Immigration v Godley [2005] FCAFC 10
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Re Zheng and Minister for Immigration and Citizenship (2010) 121 ALD 372
SECONDARY MATERIALS
Department of Immigration and Citizenship, Australian Citizenship Instructions, 2012
REASONS FOR DECISION
Senior Member J F Toohey
10 July 2012
BACKGROUND
Mr Ismail Sahin was born in Turkey and is a Turkish national. He came to Australia with his parents when he was one-year-old. Apart from spending approximately two years in Turkey when he was about 18, he has lived here all his life.
In February 2011, Mr Sahin applied for Australian citizenship. The Minister for Immigration and Citizenship (the Minister) refused his application because he was not satisfied that Mr Sahin is of good character. Mr Sahin seeks review of that decision.
MR SAHIN CRIMINAL RECORD
The Minister was not satisfied that Mr Sahin is of good character because of his criminal record which dates from 1988 when he was 18.
NSW police records show that, in January 1988 and May 1990, Mr Sahin was convicted and fined for offensive behaviour and offensive language. In May 1992, he was sentenced in the District Court to nine months imprisonment for malicious wounding and common assault arising out of a fight at a hotel in August 1991. He was sentenced to an additional three months imprisonment for assault occasioning actual bodily harm to commence at the end of the minimum term.
In March 1994, Mr Sahin was convicted of three driving-related offences, apparently arising out of the same incident. He was fined and disqualified from driving for six months for stating a false name, driving while his licence was cancelled, and exceeding the speed limit.
In June 1996, Mr Sahin was convicted of supplying amphetamine and possession of cannabis. He was placed on a good behaviour bond for 18 months.
In February 2003 and April 2005 respectively, Mr Sahin was convicted of driving a motor vehicle without the licence for that class of vehicle and failing to supply driver’s particulars. He was fined $500 for each offence.
In June 2005, Mr Sahin failed to appear in court on a charge of common assault arising out of an incident in February 2005. A conviction was recorded and order made that he perform 50 hours community service. In March 2006, in relation to the assault charge, he was fined and placed on a bond, and directed to obey all reasonable directions for counselling, and drug and alcohol rehabilitation, and to complete an anger management course.
In August 2008, Mr Sahin was fined $485, placed on a 12 month bond and ordered to pay compensation for an offence of maliciously destroying or damaging property committed in September 2007.
In April 2008, Mr Sahin was fined for driving without his seat belt fastened and using a mobile phone while driving. Further traffic infringements notices were issued against him in May 2009, April 2010, and twice in June 2011, for exceeding the speed limit and using a mobile phone while driving. In July 2009, he was found to be driving while under suspension after he lost his licence on demerit points, and was warned by police.
In June 2011, an incident occurred which the Minister contends further weighs against Mr Sahin. That incident is dealt with below, together with Mr Sahin’s evidence about his convictions.
CONTENTIONS
The Minister contends that Mr Sahin’s record of offending is serious and shows that he was not of good character at the time of his last offence in 2007. Further, that his traffic infringements since that date, together with the incident in June 2011, constitute an ongoing pattern of behaviour that would prevent the Tribunal from being positively satisfied that his enduring moral qualities have changed since 2007.
Mr Sahin contends that he has reformed since 2007 and that, based on the evidence, the Tribunal should be positively satisfied that he is now of good character.
RELEVANT LAW AND POLICY
A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets each of the criteria in s 21(2) of the Australian Citizenship Act 2007 (the Act), which include that the Minister be satisfied that the person is of good character at the time of the Minister’s decision on the application: s 21(2)(h). That is the sole criterion in dispute in this case.
The Act provides no guidance as to the meaning of “good character” in s 21(2)(h). In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Davies J observed:
There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case, views may differ.
Lee J, agreeing, observed:
Unless the terms of the Act and Regulations require some other meaning to 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 that character.
Irving has been followed in Minister for Immigration v Baker (1997) 73 FCR 187 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 and in Minister for Immigration v Godley [2005] FCAFC 10 in which the Court said:
The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker …).
In each case, the Court was considering the meaning of “good character” in provisions of the Migration Act1958 by which a visa could be refused or cancelled if a person “is not of good character”. However, its comments are just as relevant in this context (see Graham Taylor and Minister for Immigration and Citizenship [2010] AATA 55).
Guidance for decision-makers in the Australian Citizenship Instructions (the Instructions) published by the Department of Immigration and Citizenship. It is well-established that the Tribunal should apply Government policy unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Although the Instructions state that the onus is on the applicant to establish his or her good character, that is not so: see Re Zheng and Minister for Immigration and Citizenship (2010) 121 ALD 372. As matter of practicality, however, it may fall to an applicant to point to matters, supported by evidence where appropriate, that will lead a decision-maker to be positively satisfied that he or she is of good character.
As a starting point, the Instructions state that an applicant may be presumed to be of good character unless there is evidence to the contrary. Evidence of a serious criminal record may rebut that presumption. When considering a criminal record, relevant considerations include the seriousness of any offences against ordinary community standards; whether an offence was one-off or part of an ongoing pattern of behaviour; the applicant’s age at the time of the offences; behaviour since commission of a serious crime; and whether a reasonable time has passed since the last serious offence.
The full circumstances of an applicant’s case and any information relevant to his or her character must be considered, including matters such as length of employment, stable family life, community involvement and reputation in the community.
MR SAHIN’S EVIDENCE
Mr Sahin is now aged 42. He is the eldest of four boys. He completed year 12 at high school and then worked in a range of positions before setting up his own paving business in 1996, which he ran until 2001. In 2002, he established a landscaping design and construction business which he runs with his de facto partner of 15 years, Guiliana Gualdi.
In September 2006, Mr Sahin’s father died of a heart attack. He says when this happened, his “world had just gone black”. He moved in with his mother to help her and Ms Gualdi ran the business. He stayed with his mother until April 2007. In May 2007, he resumed work in the business but felt unwell and then had a heart attack himself. In June 2007, he underwent a triple bypass after which he spent 12 months recovering. He no longer employs workers but sub-contracts business out. He describes business as “steady”.
In September 2010, Mr Sahin’s mother died after a short illness. He says he “went into melt down” but “put on a strong front” for his brothers and tried to guide the family to where they are today.
Mr Sahin says he is now ashamed of his offending. He says he has matured and has more control of his emotions and is more responsible. He agrees he had “anger management issues” but says he has changed since undertaking two anger management courses, one at the order of the court and one of his own accord. He says he last used illegal substances approximately ten years ago (a claim which finds some support in a case plan report from 2006).
The 2005 offence
Police records show that Mr Sahin was involved in an altercation with another driver in February 2005 which ended with Mr Sahin assaulting the other driver. Mr Sahin says the other driver followed him some distance to his father’s house after Mr Sahin overtook his vehicle. When he arrived at his father’s house, the argument continued and Mr Sahin reached through the other driver’s window and punched him in the face. Witnesses called police who arrived and arrested Mr Sahin.
Anger management courses
Mr Sahin first undertook an anger management course voluntarily some time before about 2005. The second course was ordered by the court after the March 2006 conviction. Mr Sahin says he has learned from the courses, although it must be said they did not prevent him from a further assault in September 2007.
Department of Corrective Service records for June 2006 show that Mr Sahin had completed an anger management course and had reported that it was “beneficial”. A note in July 2006 shows that Ms Gualdi thought the program was “very helpful”.
Community service order
Mr Sahin completed 50 hours community service order in 2006 at his local surf lifesaving club. Department of Corrective Service records for July 2006 show that he completed his order and was “very good worker suitable further CSO” and that “feedback from CSO very positive re client’s participation in CSO program”.
Once he had finished his community service, Mr Sahin did additional hours on a voluntary basis at the surf lifesaving club and had his tradespeople to help with the fit out of the new club.
The 2007 offence
In August 2008, Mr Sahin was convicted of destroying or damaging property of less than $2000 value in September 2007. He gave evidence that a disagreement occurred with a pizza delivery man at his house over the use of his credit card. He became angry and followed the delivery man down the front steps to his car where he broke his car window. He says he went to the pizzeria the following day and apologised and offered to pay for the damage. He was fined and placed on a 12 month good behaviour bond.
Mr Sahin attributes his behaviour on this occasion to anger and loss of control. He says his father had died three months earlier and he was at his “most temperamental”; he did not realise he was having heart problems himself and says he is ashamed and embarrassed by his behaviour.
July 2009
Police records show that Mr Sahin was involved in a minor traffic accident on 31 July 2009; when police arrived, they found his driver’s licence had been suspended but he claimed not to be aware of this; he was advised of the suspension and warned not to drive.
Mr Sahin gave evidence that he was not aware that his license had been suspended because of loss of demerit points. I accept his evidence that he was not notified of the suspension and the police apparently accepted this. I do not think this incident counts against him.
The incident in June 2011
A police report of a complaint against Mr Sahin is in evidence. It shows that, early on 29 June 2011, the complainant observed a vehicle dumping rubbish on the verge opposite his unit; he approached the driver and asked whether he lived there and the driver he said he did not. The complainant told the driver it was illegal to dump rubbish and he would report the matter to the authorities; the driver refused to remove the rubbish and, as he turned to drive off, the complainant stepped on to the roadway to talk to him again. The driver reached behind the seat and produced a pick handle, waving it at the complainant who asked if he was threatening him to which the driver replied “Yes I am”. The driver then left without further interaction and the complainant went inside and contacted the police.
Mr Sahin gives a slightly different account of the incident. He says he had been working on a property in the street and had removed a large tree. He returned the following morning to put the stump on the verge with other rubbish for a council collection. He did not think he was committing an offence. He says the complainant approached him shouting and, when he got back in his car, followed him to the window where he continued shouting. The incident occurred in peak hour traffic and he felt threatened. He reached across the seat and took hold of a tool which he held up. He agrees he said “Yes I am” when the complainant asked if he was threatening him. He then drove off.
The record shows police contacted Mr Sahin after receiving the complaint and issued “an official warning” about dumping rubbish on public land and warned that threatening members of the public would not be tolerated.
The Minister contends this report is evidence of continuing violent conduct on Mr Sahin’s part and shows his character has not changed since the 2007 assault. I do not think it can fairly be regarded in that way. It records the complainant’s version of events only. Mr Sahin does not dispute that the incident occurred or that he took hold of a piece of equipment – he could not recall what it was – although he denies waving it at the complainant. He does not deny that he confirmed that he was threatening the complainant. His account was plausible, he gave it frankly, it was not challenged, and the fact that he was not charged tends to support his version of events.
Record of aliases
Police records show Mr Sahin as having nine aliases in addition to his own name and date of birth. On its face, this suggests a person of questionable character. On closer inspection, I am satisfied that most can be explained on the basis of Mr Sahin’s date of birth being incorrectly recorded in documents by his parents, or as mis-spellings of his name in government documents. Two, which are variations on his own name and date of birth, cannot be explained but I accept Mr Sahin’s evidence that he has not used them.
Mr Sahin admits using one alias, being his brother Hasan’s details, when he was stopped for driving offences in 1994, leading to the charge of using a false name. Clearly, that is not to his credit but it occurred nearly 20 years ago and I am satisfied that he has not used an alias since.
Community work
Mr Sahin gave evidence, which I accept, that he has undertaken voluntary work at his mosque over the past 12 months. He has been involved in setting up a kind of drop-in centre for young people aimed at keeping them off the streets, and he has been actively involved in working on the building and landscaping of the mosque.
A Certificate of Appreciation from the NSW Islamic Social and Cultural Association (Inc) for “loyal and valuable services voluntarily given” by Mr Sahin is in evidence.
EVIDENCE OF WITNESSES
Written statements were provided by a number of witnesses, many of whom also gave oral evidence in support of Mr Sahin’s application. All had seen, or were aware of, his criminal record.
Ms Gualdi gave evidence that Mr Sahin was very angry when he was younger which she attributes to being brought up in “an angry environment”. She says he has never shown anger towards her or her family. He “works on himself all the time” and has definitely changed. She says he had earned a lot of respect in the local community for is work at the mosque for the past 12 months which he is doing in his parents’ honour. She says it has been “joyous” for him and has helped him get over his grieving.
Mr Sahin’s brothers made a joint statutory declaration about the leadership and guidance he has provided them since their parents died. Hasan Sahin gave evidence that his brother has “changed dramatically” since he was a teenager. Hasan Sahin acknowledged that his brother has committed further offences since then but says he is more loving and caring and would go out of his way to help others, and has helped him financially. He confirmed that Mr Sahin has been working at the mosque and says he has also helped out when he could.
Mr Mauri Nowytarger, a businessman whose son is a friend of Mr Sahin and who has known him for ten years, also gave evidence in support of his application. He sees Mr Sahin socially at his home, he has engaged him to do concreting work and, if he ever needs help, Mr Sahin does the work without charging. Mr Nowytarger gave evidence that he knew that Mr Sahin had some convictions but he was surprised to see the extent of his criminal record. Nevertheless, he regards him highly and says he “shows very good disposition” to Mr Nowytarger’s family and friends.
Mr Daren Anderson, a legal practitioner, gave evidence that he has known Mr Sahin socially for six years and has observed his relationships with his partner and brothers. He is aware of his criminal record but says the man he has come to know is not the man reflected in his record. He is “the patriarch” of the family since his parents died and believes he is committed to setting a good example to his brothers. He believes, after “many long conversations” with Mr Sahin that he will not return to offending.
Mr Mario Gualdi is Mr Sahin’s brother-in-law. He gave evidence that Mr Sahin has always been good to him and his family, and to Ms Gualdi. He has matured and “changed completely” since his bypass operation. Mr Gualdi saw his work at the surf lifesaving club and is aware of the work he has been doing at the mosque. He is well-respected by everybody he deals with, whether professionally of socially.
Mr Orazio Seminara gave evidence by telephone. He has known Mr Sahin professionally and personally for twelve years. He says Mr Sahin has proven to be a hard-working business man who has given opportunities to many workers, including his brothers, to learn landscaping skills and has done voluntary community work. He says Mr Sahin has changed a lot since his last offence and has taken on the responsibility of guiding his brothers since their parents’ deaths.
Mr Domenico Morello is a partner in a national finance company. He gave evidence by telephone. He says Mr Sahin is “a great leader to his family and a hard-working businessman” who “tries harder than anyone he knows to do the right thing”. He attested to Mr Sahin’s close relationship with Ms Gualdi and to his work in the community.
Mr John Lohr, who is a justice of the peace and managing director of a security company, provided a written statement but was overseas and did not give oral evidence. He states that he has known Mr Sahin professionally and personally for 16 years and considers him to be “family”. Mr Lohr says Mr Sahin is well-known and respected in the local business community. He “is always offering to help friends and family, and even strangers, whenever he gets the chance” and he “cannot speak highly enough” of him.
Statutory declarations have also been provided by Mr Vince Santarosa, an accountant, who has known Mr Sahin since 1994, and Mr Suleyman Sari, director of a security company, who has known Mr Sahin for 35 years. Both speak highly of him professionally and personally, along the lines of the other witnesses.
Also before the Tribunal is a statutory declaration given in August 2011 by a solicitor who has known Mr Sahin for more than 20 years since they were neighbours. It speaks highly of Mr Sahin along the lines of the other witnesses. However, in a letter to the Department of Immigration and Citizenship in November 2011, the solicitor writes that he no longer holds the view expressed in the final paragraph, in which he stated that Mr Sahin had matured since he was 21 and is now a fit and proper person of good character. Mr Sahin gave evidence that he changed solicitors after a disagreement with the deponent about his handling of a matter and this led to him retracting his statement. I have no reason to doubt Mr Sahin’s explanation but, as there is such limited evidence about this matter, I cannot reach any conclusion about it and so disregard both the documents and Mr Sahin’s evidence about them.
CONSIDERATION
I found Mr Sahin to be a credible witness. He gave his evidence frankly and I accept that his shame and embarrassment about his criminal record is genuine. The evidence of the witnesses, whose connections with Mr Sahin range across personal and professional relationships, was consistent, credible and strongly supportive of his application. I found the evidence of Ms Gualdi, Mr Hasan Sahin and Mr Nowytarger particularly persuasive.
Considered as a whole, Mr Sahin’s criminal record shows a person who by the age of 20 had two convictions for offensive behaviour. Given the relatively low fines imposed on each occasion, those offences would appear to be at the lower end of seriousness and it is reasonable to attribute them to his youth.
However, in 1991 a, Mr Sahin’s offending took a serious turn when he was charged with malicious wounding, assault, and assault occasioning actual bodily harm. The sentencing remarks are not before me. However, for someone whose record was relatively clean until then, concurrent terms of nine months’ imprisonment with an additional three months indicate the seriousness with which the Court regarded the offences.
The driving-related offences in March 1994, which included giving a false name to police and driving while his licence was cancelled, do not reflect well on Mr Sahin but are of a different order from the violent offences.
The sentences imposed for the drug related offences in 1996 indicate that they were at the lower end of the scale of seriousness because he was placed on a bond in relation to each.
There followed a period of nearly ten years without offending, other than driving-related offences before February 2005 when Mr Sahin assaulted the driver who followed him to his parents’ house. That offence resulted in a fine of $350 and 50 hours of community service. Again, while a serious offence, the Court appears to have regarded it as falling at the lower end of seriousness.
As noted above, Mr Sahin apparently undertook community service in a positive manner and went beyond what was required by engaging in additional voluntary work. It was also around this time that he undertook anger management courses. In evidence before the Tribunal, Mr Sahin was able to articulate quite positively and clearly what he says he learned from the courses. I accept they were of benefit to him.
That said, anger management courses did not prevent Mr Sahin from losing his temper with the man who delivered pizza to his house in September 2007 and causing damage to his vehicle. It is fair to assume that would have been a frightening incident for the delivery man. I accept Mr Sahin’s evidence that he felt ashamed of his actions and went to the pizzeria the following day and apologised and offered to pay compensation. That is to his credit.
The incident in September 2007 was the last occasion on which Mr Sahin is known to have been violent. It followed shortly after his father’s sudden death and I accept that, together with his own health problems, it was a difficult time. That does not excuse his conduct but it puts it in context.
The driving offences May 2008 are not to Mr Sahin’s credit but, given their nature, I do not think, in fairness, that they weigh heavily against him, and they do not outweigh the evidence of his changed character.
I accept the evidence of the witnesses that Mr Sahin has changed since his heart attack and more so since his mother died in 2010. I accept that he has genuinely matured. For the reasons I have given above, I do not think the incident in 2011 goes against him. If anything, I accept the submission that it demonstrates that he has matured and that, contrary to how he has dealt with similar situations in the past, he is capable of walking away from conflict.
Considered as a whole, Mr Sahin’s record is of a person whose most serious offending was approximately 20 years ago, when he was young, and who has committed no offences of any real seriousness for nearly five years. In his favour are his long-term relationship with Ms Gualdi which appears to be a supportive and steadying influence; that he is evidently committed to his family; that he has run his own business, apparently successfully, for more than ten years; and that he has undertaken a considerable amount of voluntary community work.
Taking all of these matters into consideration, I am satisfied that Mr Sahin is now of good character. Assuming the Minister is satisfied of all the other criteria in s 21(2), he should be granted citizenship.
CONCLUSION
I am satisfied on the evidence before me that Mr Sahin is of good character. The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction that Mr Sahin is of good character.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. .........[sgd]...............................................................
Associate
Dated 10 July 2012
Date(s) of hearing 3 July 2012 Advocate for the Applicant Mr N Dobbie, Visa Immigration Specialists Australia Pty Ltd Solicitors for the Respondent Mr M Yin, Department of Immigration and Citizenship, Litigation and Opinions Branch
0
5
0