Jafferi and Minister for Immigration and Border Protection
[2015] AATA 347
•21 May 2015
DECISION AND REASONS FOR DECISION [2015] AATA 347
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/3645
GENERAL ADMINISTRATIVE DIVISION )Re: Areez Jafferi
Applicant
And: Minister for Immigration and Border Protection
RespondentCORRIGENDUM TO DECISION NO. [2015] AATA 347
TRIBUNAL: Senior Member R W Dunne
DATE: 11 June 2015
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the written reasons for decision published on 21 May 2015 by deleting the words “and should be granted Australian citizenship” at the end of paragraph (b) on page 1 and paragraph 49(b) on page 19 respectively.
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R W DUNNE
(Senior Member)
[2015] AATA 347
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3645
Re
Areez Jafferi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 21 May 2015 Place Adelaide The Tribunal:
(a) pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), sets aside the decision under review; and
(b) remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant meets the “good character” requirement contained in s 21(2)(h) of the Australian Citizenship Act 2007.
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Senior Member R W Dunne
CATCHWORDS
CITIZENSHIP – application for Australian citizenship – application refused on character grounds – criminal record – whether applicant has reformed and is now of good character – decision under review set aside and remitted.
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Re Dandan and Minister for Immigration and Citizenship [2010] AATA 539
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187SECONDARY MATERIALS
Australian Citizenship Instructions (Cth).
REASONS FOR DECISION
Senior Member R W Dunne
21 May 2015
INTRODUCTION
Mr Sheer Noori, an Afghan national, applied for Australian citizenship by conferral on 19 February 2014. On 17 December 2014, he changed his name to Areez Jafferi.
A delegate of the Minister refused the application in a decision dated 17 June 2014. This was on the basis that the applicant did not meet the requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“Act”) which requires that the Minister be satisfied that the applicant is a person of good character at the time of the decision on the application.
The applicant has applied to this Tribunal for a review of the delegate’s decision.
At the hearing, the applicant was represented by Ms Gorica Panich and Ms Victoria Greenslade (from the office of the Australian Government Solicitor) appeared on behalf of the respondent Minister. I received into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), together with the following exhibits:
·statement of Mr Sheer Noori (now Mr Areez Jafferi) amended on 28 August 2014[2];
·statutory declaration of Roqia Noori dated 28 August 2014;[3] and
·statutory declaration of Hajira Noori dated 28 August 2014.[4]
[1] Exhibit R1.
[2] Exhibit A1.
[3] Exhibit A2.
[4] Exhibit A3.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the applicant is eligible to become an Australian citizen pursuant to s 21(2) of the Act. The respondent accepts that the applicant satisfies the criteria set out in s 21(2)(a) to (g) inclusive. Accordingly, the only issue in dispute before the Tribunal is whether the applicant is of “good character” pursuant to s 21(2)(h) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen. Section 21(2)(h) relevantly reads:
“Application and eligibility for citizenship
…
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
…”
Section 24 of the Act provides, in part:
“Minister’s decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister 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).
…”
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions (“Instructions”) have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”. The Instructions reflect Government policy and are not binding on the Tribunal. However, the Tribunal should have regard to the Instructions unless there is good reason not to do so.[5]
[5] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Paragraph 10.1.2 of the Instructions provides, in part:
“‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.”
This reflects what Lee J in the Full Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs,[6] when he 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 [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 of authorities omitted).
[6] (1996) 68 FCR 422 at 431-432.
After referring to the judgement of the Court in Irving (supra), paragraph 10.3.1 provides, in part:
“In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
§ characteristics which have been demonstrated over a very long period of time
§ distinguishing right from wrong
§ behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.”
The Instructions (in paragraph 10.3.2) refer to the decision of the Tribunal in Zheng and Minister for Immigration and Citizenship[7], where Deputy President Forgie said:
“In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. …”
[7] [2011] AATA 304.
Paragraph 10.5.2 of the Instructions sets out factors that indicate why a person might not be of good character. Those factors include the following:
“Offences
·Has the applicant committed any offences and if so, did they admit that in their citizenship application? Passenger card declarations could also be checked for an acknowledgement of criminal convictions.
·If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.
·If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
o crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death).
o…
ocrimes against children
o…
Minor offences include:
o…
ooffences which do not lead to a conviction or a sentence.
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or the disabled, or others who trusted the applicant?
…”
The Instructions provide that crimes of violence are to be regarded as serious offences. This is even more so in the case of domestic violence. Such conduct is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual’s character.
Paragraph 10.5.2 of the Instructions also sets out mitigating factors that may be taken into account by the decision-maker in determining whether a person might be of good character in any event. Those factors include the following:
·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application?
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved since being released from prison or upon completion of any obligation to a court such as a good behaviour bond? …
·Has the applicant rehabilitated themselves? …
·What was the applicant’s age at the time the offence was committed? …
·Were there any extenuating circumstances relating to the offence?
·…”
Paragraph 10.5.4 of the Instructions relates to weighing up the various qualities involved in the good character decision. Paragraph 10.5.4 reads in part:
“Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standard. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.”
BACKGROUND
The applicant was born in 1993. He arrived in Australia on 20 December 2008 and was granted a permanent visa on 19 March 2009. On 17 April 2013, he was charged at the Mildura Magistrates Court with intentionally causing injury to his younger sisters, Roqia and Hajira Noori. He was also charged with recklessly causing injury, unlawful assault with a weapon and unlawful assault which arose out of the same incident. The circumstances of the offence, according to the applicant, are set out in an undated statement, which relevantly states:[8]
[8] Exhibit A1, paragraphs 21 to 29.
“21. The circumstances of the offences involve my two younger sisters. I am the eldest son and child. My father is dead and so I have the responsibility of the family. When this incident occurred I was living in Mildura with my family. It was after school and I had gone to the library. I just went to use the internet.
22. When I arrived my twin sisters were there. They were 14 years old. I had been speaking with my mother before this afternoon about her worry that the sisters were not coming straight home after school.
23. I saw what the girls were doing, chatting on FB. I went to them and saw that they were chatting with an older Afghan man. That is not allowed in our culture. The conversation was sexual. I was very cross with them.
24. When I saw this I told them both that we had to go home. I drove home. I was angry. I told my sisters I was angry.
25. When we arrived home the girls went to their bedroom. I went outside and got a branch from a tree. I came back inside and hit them both with the branch. My mother was not in the room.
26. After I hit my sisters I went outside and calmed down.
27. After a while I went back inside and my sisters were crying. I explained to my mother what had happened.
28. I was cross because we came here for a better life, to have education, achieve, find homes and provide better. I did not want my sisters to be having relationships with older Afghan men and get married at an early age.
29. The next day the girls went to school. I think what happened is that the teachers saw some bruises on the girls and reported it to the police.
…”
In Victoria, the Magistrates’ Courts have a diversion program coordinator who conducts a preliminary interview with an accused, before formulating a Diversion plan and putting the matter before a Magistrate. If the Magistrate is satisfied that the conditions of the Diversion program are met, then no plea is taken (s 59(4)(a), Criminal Procedures Act 2009 (Vic)) and the Magistrate’s Court must discharge the accused without any finding of guilt.
On 14 October 2013, the applicant signed a Diversion plan undertaking to complete the following conditions:
(a)complete the Men’s Behaviour Change Program and provide a certificate of completion to the Mildura Magistrates Court before 22 January 2014;
(b)to be of good character for the period of the plan until 22 January 2014.
On 22 January 2014, the applicant’s charges were dismissed under s 76 of the Sentencing Act 1991 (Vic) after he met the criteria of his Diversion plan.
EVIDENCE OF THE APPLICANT
During the course of the hearing, the applicant’s conduct in hitting his younger sisters was referred to as the “Incident”.
In giving his evidence, the applicant agreed that the circumstances surrounding the Incident involving his sisters were correct. On the day of the Incident, he went to his sisters’ school, but it was closed and he went to the library. There, he found them chatting on Facebook to an older Afghan man. After finding them there, he took them home in his car. He said he was angry with what had happened at the library and he “slapped” his sisters. After that, when the sisters were late again coming home, he went to their school and saw the police there. He said he had taken on the role of his father and had beaten the sisters for what they had done wrong. He said he played an important role in his family which involved parenting for his younger sisters. When questioned about slapping his sisters, he acknowledged that he had hit them with a small branch of a tree. He said they were crying when he returned from the library and before he hit them. He could not recall how many times he hit his sisters, but did not hit them hard. After the Incident, he said he did not see any bruising on his sisters. He said he did not understand the rules that applied in Australia. He said he would have done the same if he had been in Pakistan. It was a “norm”. He was angry and stressed, but he agreed that he could not do the same now. When asked about discipline for his sisters, he said there was usually no problem. He did not have to force them to do things and usually he did not get angry. He had a good relationship with his family and got on well with them. He regretted the Incident occurring and had a good relationship with his sisters now.
In relation to the Diversion plan, he attended the good behaviour program once a week and there were others also involved in the program.
When questioned about his application for citizenship, he said he had lodged a previous application in March 2013. Then, he had passed the tests required but did not tell the respondent about the Incident. He did not have assistance in lodging the application and did not know he had to refer to the Incident. He acknowledged that he had disclosed the Incident in the application he lodged in February 2014.
Evidence of Roqia and Hajira Noori
Roqia and Hajira Noori were both quietly spoken when giving their evidence. Roqia was not able to say much about talking to the older man on Facebook. She wasn’t able to say how the man was able to appear on the screen. She said the applicant kept her safe. She had had bruising on her arm, but she couldn’t say where. The applicant had told her she should not talk to the older man. He had not hit her again after the Incident. He acted as their father giving them everything they needed, food and clothing etc. The applicant had hit her with a small tree branch when she had returned home.
Hajira talked about the older man at the library. She said the applicant had asked her why she had been talking on Facebook. At home, she had been arguing with her sister, but could not remember the details. The applicant had hit her with a stick. It had only been once and she was told not to talk to the older man in future. This was not good for her and she had to continue with her education. She said the applicant was head of their family and he did everything for her. In cross-examination, she could not remember how large the tree branch was. She said the applicant had hit Roqia first, but she could not remember any bruising. At school, the police had arrived when the teacher had reported the Incident. She said the Afghan culture was to exercise discipline.
Evidence of Mr Hussain Rahmani
Mr Rahmani was 35 years old and had been born in Afghanistan. He was part of the Hazaragi community and knew the applicant’s family well. Before the family arrived in Australia, he had been in contact with the applicant in 2009. They had become very close friends and the family had stayed at his home when they arrived. He had helped the family to settle in Australia. He would often visit the family and they would visit each other on a fortnightly basis. He said that the applicant had done everything for his family. He was a patient, caring person and he had not seen the applicant display anger. The sisters were not afraid of the applicant and he had not seen him angry. He did not know anything about the applicant’s assault of his sisters. As far as his own children were concerned, he would not get physical. He had a technique to ensure they did things correctly. In the Hazaragi community, he could not be sure whether children would be hit if they did something wrong. It could happen, but it was not common.
Evidence of Mr Javeed Zamini
Mr Zamini was 20 years old and would be turning 21 shortly. He was not married and his family lived in Pakistan. He had met the applicant in Afghanistan and had spent one year in Pakistan. The applicant came to Australia first. In Pakistan, the applicant would be involved in community events and sport. He and the applicant had been boys in Pakistan. In Australia, he had been in a soccer team in Brisbane. He was close to the applicant and his family. He would often spend many times with the applicant and his family. They would often have meals together. When asked whether the applicant was an angry person, Mr Zamini said he was always smiling. He had no complaints about the family or the applicant. He did not know the applicant had applied for citizenship and the application had been rejected. When questioned about the applicant’s good character, he said he knew nothing about the Incident. When asked whether it would surprise him if the applicant had hit his sisters, he said it would be surprising and he thought the applicant could not do that. When cross-examined, he said he knew the applicant first when he lived in Mildura. The applicant would come to Adelaide for soccer and he would visit him in Mildura. In 2013, the applicant’s family was in Pakistan, not in Australia.
Submissions for the Respondent
Briefly, Ms Greenslade’s submissions on behalf of the respondent were as follows:
(a)The Instructions provide that crimes of violence, including assault or domestic violence, are ordinarily considered serious and offences which do not lead to conviction or sentence are minor offences. The applicant’s offences did not neatly fall into one category or another and, in the circumstances, the respondent submitted that the Incident should be treated as serious, although the respondent would accept that it was at the lower end of the scale.
(b)Although the applicant had provided an account of his offending, he had not shown remorse for the Incident.
(c)Although the respondent accepted that the offence was at the lower end of the scale and only 14 months had passed since the conclusion of the Diversion plan, the respondent submitted that this was an insufficient amount of time to properly ascertain whether or not the applicant’s conduct was an aberration.
(d)In looking at remorse and rehabilitation, the applicant had appeared ashamed, but did not appear to have fully accepted responsibility for his wrongdoing and any expression of remorse had to be considered in light of this.
(e)It is open to infer from the applicant’s evidence that if he was back in Afghanistan he may be likely to behave in a similar manner again and hit his sisters with a stick. In this regard, it is not clear that the applicant appreciates the severity of his actions under Australian law.
(f)The applicant relies on the evidence of Mr Rahamani and Mr Zamini. The respondent submitted that little weight should be placed on this evidence as both witnesses said that they did not know about the Incident and could not provide any details of the event that took place.
(g)The applicant did not give any evidence about his desire to join the police force or to vote. Nor was there any evidence to suggest that he would be prejudiced at this point in time if he was not granted citizenship.
Submissions for the Applicant
Briefly, Ms Panich submitted that the applicant was a person of good character. He was found by the Diversion Coordinator at the Mildura Magistrates’ Court to be of good behaviour when the Diversion plan was completed on 22 January 2014. Ms Panich submitted that the applicant was still a person of good character, for the following reasons:
(a)The applicant’s involvement in the Incident did not constitute a serious criminal record.
(b)As a result of the Incident, there was more openness in the applicant’s family, who need to adjust to an Australian way of life after coming from a country decimated by war.
(c)The applicant had been involved in undertaking his education and pursuing study to improve his English and to acquire as many skills as possible. He had been involved as a fork-lift driver in Mildura and he would like to become a member of the police force.
(d)The applicant possessed moral qualities which could be measured by what he had done in respect of his family and in attempting to guide his sisters.
(e)The Incident was a one-off and was highly unlikely to be repeated again.
(f)The letters of support appearing in the applicant’s documents attest to the fact that he is a person of good character who has focused on educating himself.
CONSIDERATION
Is the applicant eligible to become an Australian citizen pursuant to section 21(2)(h) of the Act?
In considering whether the applicant is eligible to become an Australian citizen pursuant to s 21(2)(h) of the Act, I note that the respondent accepts that the applicant satisfies the criteria set out in s 21(2)(a) to (g) inclusive. In analysing s 21(2)(h), the issue is whether the applicant is of good character at the time of the Minister’s decision on the application. Read literally, this reference introduces a temporal limitation. The decision-maker is restricted, on this view, to considering whether the applicant satisfied the criteria of good character at the time the Minister’s initial decision was made. It requires the Minister to be satisfied that the criteria set out in that subsection are met. In other words, the Minister must make a “decision”. As was said by Senior Member Britton in Dandan and Minister for Immigration and Citizenship[9]
“On review, the AAT places itself in the shoes of the original decision-maker. As such, on review, the reference to the “time of the Minister’s decision” in s 21(2)(h) should be construed as a reference to the time the decision-maker – the Tribunal – makes its decision. The Tribunal must therefore consider whether the applicant was of good character as at the date of its own decision on review.”
[9] [2010] AATA 539.
It is therefore necessary to decide whether Mr Jafferi is of good character at the time my decision is made, and not as at 17 June 2014 – the date the original decision was made by the Minister.
Factors to be taken into account in considering why an applicant’s behaviour might demonstrate that they are not of “good character” are contained in the Instructions. These are referred to in paragraph 13 of these reasons. The Instructions also list a number of mitigating factors that decision makers should consider in determining whether the person may be of “good character”, notwithstanding their conduct. These factors are set out in paragraph 15 of these reasons.
The Instructions state that, in weighing up the various factors in reaching a decision on whether a person is of “good character”, the decision-maker must apply community standards and, having regard to the words of the preamble to the Act and the pledge to be made if citizenship is approved, should ask those questions set out in paragraph 16 of these reasons.
For the applicant, Ms Panich referred me to a number of decisions of Tribunal members involving applicants who had applied for the grant of citizenship. She submitted that, as a number of these applications had been successful because the applicants had been found to be persons of good character, the applicant must also be of “good character”, and deserving of Australian citizenship. In a number of these cases, the applicants had been born or previously resident overseas (in countries such as Turkey, Iran, Afghanistan, Syria and Lebanon), the inference being that the factors in these cases might involve cultural issues that had been (or had not been) taken into account by the Tribunal members in reaching their decisions. The particular cases referred to were:
Aldagul and Minister for Immigration and Border Protection[10]
Baharestan and Department of Immigration and Citizenship[11]
Kakar and Minister for Immigration and Multicultural Affairs[12]
Dandan and Minister for Immigration and Citizenship
Darwich and Minister for Immigration and Citizenship[13]
Zhang and Minister for Immigration and Border Protection[14]
[10] [2014] AATA 13.
[11] [2011] AATA 420.
[12] [2002] AATA 132.
[13] [2007] AATA 2106.
[14] [2014] AATA 136.
Having analysed these cases and noting that there may have been particular issues raised or referred to in them, I am unable to discern any cultural connection that would reasonably have enabled or required the Tribunal members to make (or to refuse to make) findings of good character.
In these reasons, there is a reference to Re Drake (supra) and how the Instructions reflect Government policy. If I apply Government policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case, as they appear to me. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases. This may have been a factor that Ms Panich had in mind when she referred me to the cases in paragraph 35 above.
Ms Panich referred me to a document contained in the applicant’s documents called “Fact Sheet 79 – The Character Requirement” which dealt with the character test as set out in the Migration Act 1958. She suggested in her closing that, if character was looked at both under s 501 of the Migration Act 1958 and the Act, this would provide “an indication of what good character should or shouldn’t be.” And she said that s 501 would be of assistance to me in reaching my decision. I was unable to accept this. As is stated in the Instructions:[15]
“If a person applies for temporary or permanent residence in Australia, an assessment is made as to whether the applicant passes the character test as outlined in s 501 of the Migration Act. This test is strictly defined and if a visa applicant’s circumstances are not prescribed in the Migration Act, the applicant passes the character test. The matters taken into account in a s 501 assessment are not the same as those considered under the Citizenship Act and the good character requirement for citizenship is broader than the Migration Act character test.”
[15] Exhibit R1, page 29.
Ms Panich then submitted that guidance might be obtained by analysing some of the Court and Tribunal decisions dealing with “good character” under the Act. She said:[16]
“If I can suggest to the member there seems to be somewhat of a political context of character testing in citizenship, and that decisions about the character of permanent residents and their suitability for citizenship are taken in the context of both the national security outlook and the current political perspective. The politics of the issue of character testing became apparent during the passage of the citizenship bills through our parliament. During the debates a need for new character requirements was deliberated using certain examples and, Senior Member, it seems to be a bit of a double standard in some ways with regard to the behaviour of citizens from migrant backgrounds compared to that of other citizens who were born here and acquired citizenship simply through birth.
So I am just flagging I guess that there is possibly a political context and a double standard when applicants from other countries apply for citizenship and then are denied citizenship and are told that they are of bad character, but what is good character. …”
[16] Transcript 9/25-35.
With due respect, I am unable to fully comprehend what the “political context of character testing in citizenship” might be. However, if it means that applicants from other countries who apply for citizenship will be denied the grant because they, as a matter of course, will not be persons of good character, I do not agree with this proposition. And in my view, decisions of Tribunal members would not support it.
The decision whether Mr Jafferi is of “good character” is not made by applying the various factors referred to in the Instructions as a checklist. The evidence has to be looked at as a whole.[17] In the Incident, Mr Jafferi committed a serious offence. However, the respondent has accepted that the offence was at the lower end of the scale of serious offences. While the existence of a serious offence is relevant in determining good character, it is only one of several factors to be considered.
[17] Instructions, paragraph 10.1.1
What is good character? A passage in the reasons for judgement of Lee J in Irving (supra) is commonly regarded as informing the meaning to be given to the words “good character” in s 21(2)(h) of the Act. The passage is set out in paragraph 10 above. One of the distinctions Lee J makes in this passage is between character and repute. That distinction is particularly important in the assessment of Mr Jafferi’s application. This is so for two reasons. The first is that, as the evidence to which I will refer shows, Mr Jafferi does appear to be held in good repute by his friends and colleagues. The second is that the significance of evidence of general “good repute” likely depends on the extent to which that repute has been established in either ignorance, or awareness, of significant misconduct. This is the case with the oral evidence of Mr Rahmani and Mr Zamini. Both these witnesses are close friends of the applicant and his family. They would see or visit the applicant and his family regularly. In the case of Mr Zamini, he would often have meals with the applicant and his family. However, neither witness knew anything about the Incident or the applicant’s assault of his sisters.
In the applicant’s documents, Ms Panich provided supporting character evidence relating to the applicant from a number of people. These included references from the Chairperson of the Australian Hazara Federation Inc and Doctor Mehdi Pour, the applicant’s treating GP. Without hearing directly from any of the individuals involved, I regarded the references with caution because of the tendency for referees to focus only on what might be helpful to the applicant. There were also certificates of completion and other documents provided by Ms Panich relating to courses undertaken by the applicant. These were often of little relevance because they were sometimes out of date and not sufficiently specific.
The lapse of time between an application and the applicant’s past criminal conduct is a relevant, but not necessarily decisive, consideration in an assessment of their character. Nor is the lapse of time between conviction and an application. Past criminal conduct or conviction is not, and in the absence of any specific statutory provision, cannot be regarded as, an automatic barrier to the establishment of a person’s contemporary “good character”: see Minister for Immigration and Ethnic Affairs v Baker.[18] In the applicant’s case, the Incident occurred in April 2013. He was charged with various serious offences, including unlawful assault. In the Mildura Magistrates Court in October 2013 he signed a Diversion plan to complete the Mens Behaviour Change Program and to be of good behaviour for the period of the plan. The Diversion plan was completed on 22 January 2014. Thus, more than two years have passed since the Incident, and the applicant has been on good behaviour and a person of good character during this period. Given the circumstances of this case, I am of the view that sufficient time has passed to enable me to be satisfied that the applicant is now a person of good character.
[18] (1997) 73 FCR 187 at 195.
Having seen the applicant and his young sisters during the course of the hearing, I was moved by the way they dealt with proceedings that would have been quite unfamiliar to them. The sisters became emotional in giving their evidence and this caused the applicant himself to do the same when he saw the difficulties his sisters were experiencing. The applicant impressed me with the honesty he displayed in describing the Incident. He openly confirmed the comments he made in his witness statement about assaulting his young sisters.
The decision whether Mr Jafferi is of “good character” is not made by applying the various factors referred to in the Instructions as a checklist. The evidence has to be looked at as a whole.[19] In the Incident, Mr Jafferi committed a serious offence. However, the respondent has accepted that the offence was at the lower end of the scale of serious offences. While the existence of a serious offence is relevant in determining good character, it is only one of several factors to be considered.
[19] Instructions, paragraph 10.5.4
In my opinion, whilst there is clearly scope for the applicant to improve the manner in which he appears to deal with stressful situations, and having regard to various matters contained in the Instructions, I find the Incident to be an aberration and for the applicant’s conduct then to be sufficiently isolated, such as to cause me to be satisfied that it is not reflective of a lack of “good character”. I am satisfied that he genuinely accepted responsibility for his conduct and for the Incident taking place. He also appeared embarrassed and remorseful for the way he behaved towards his sisters. I am satisfied that his conduct in the course of the Incident in April 2013 was out of character.
SUMMARY
The respondent has accepted that the applicant satisfies all the criteria set out in s 21(2) of the Act, excepting s 21(2)(h). In looking at the evidence as a whole, I am satisfied that Mr Jafferi is now a person of good character. I set aside the decision under review and remit it to the Minister for reconsideration with a direction to that effect.
DECISION
For the reasons summarised in paragraph 48, the Tribunal:
(a)pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), sets aside the decision under review; and
(b)remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant meets the “good character” requirement contained in s 21(2)(h) of the Australian Citizenship Act 2007.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne ..................{Sgd}....................................
Administrative Assistant
Dated 21 May 2015
Date(s) of hearing 7 & 8 April 2015 Advocate for the Applicant Ms G Panich Solicitors for the Applicant Australian Migration Options Pty Ltd Advocate for the Respondent Ms V Greenslade Solicitors for the Respondent Australian Government Solicitor
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