Kakar v Minister for Immigration and Multicultural Affairs
[2002] AATA 132
•1 March 2002
Kazmi and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 642 (27 August 2015)
Division
GENERAL DIVISION
File Number(s)
2014/5085
Re
Syed Asad Kazmi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 27 August 2015 Place Sydney The decision under review, being the decision of the delegate of the Minister to refuse Mr Kazmi’s application for Australian citizenship, is affirmed.
.........................[sgd]...............................................
Deputy President S E Frost
Catchwords
CITIZENSHIP – citizenship by conferral – character – whether applicant of good character – previous convictions for assault – failure to disclose convictions in application
Legislation
Australian Citizenship Act 2007 (Cth) ss 21(3), 24(1A)
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Rajaratnasarma and Minister for Immigration and Border Protection [2014] AATA 406REASONS FOR DECISION
Deputy President S E Frost
27 August 2015
INTRODUCTION
This is an application to review the decision of a delegate of the Minister for Immigration and Border Protection to refuse Mr Kazmi’s application for Australian citizenship.
The delegate refused the application because she was not satisfied that Mr Kazmi was of good character. That meant that he was not eligible for Australian citizenship and in those circumstances the delegate had no choice but to refuse the application.
The only question for consideration is whether Mr Kazmi has satisfied me that he is in fact of good character.
THE LEGISLATION
Section 24(1A) of the Australian Citizenship Act 2007 (the Act) provides that the Minister must not grant an application for citizenship unless the person is eligible to become an Australian citizen under one of the eligibility provisions in s 21 of the Act.
Mr Kazmi’s application was based on s 21(3) of the Act, entitled “Permanent or enduring physical or mental incapacity”. The delegate was satisfied, and the Minister remains satisfied, that each of the requirements in paragraphs (a) to (e) of s 21(3) has been met. Mr Kazmi’s claim failed at the “good character” requirement in paragraph (f).
For his application to be successful, Mr Kazmi must satisfy me that he is of good character at the time of my decision.
BACKGROUND
The delegate was concerned about Mr Kazmi’s character for two reasons. The first related to his criminal record. In 2011, Mr Kazmi was convicted of three counts of common assault and one of destroy or damage property. Those convictions arose from the one incident which I will describe shortly. Prior to that, in February 2009, Mr Kazmi had been convicted of a low range PCA (prescribed concentration of alcohol) driving offence.
The second of the delegate’s concerns related to the way Mr Kazmi completed his application for Australian citizenship. The application form asked the following question:
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
He initially ticked the “Yes” box, but then changed the answer by crossing out that tick, ticking the “No” box, and initialling the change.
In relation to those answers, the Department wrote to Mr Kazmi on 4 April 2014 (T9-105) in the following terms:
…
The answer you have given to this question is ‘No’; however, it is noted that you originally answered ‘yes’ and then initialled the change. It is an offence under section 50 of the Act to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.
Please notify the department if you believe that any of this information is incorrect or does not relate to you.
You are now invited to respond to or comment on the information relevant to the issue of whether you are of good character.
…
Mr Kazmi replied to that letter on 26 April 2014 (T10-121) relevantly as follows (emphasis in the original):
In relation to [the question] I initially selected “Yes” than [sic] changed it to “No” and initialed [sic] the change. I agree that I did that. I was not able to recall any of the incidents that took place and I did not think I was charged.
According to my report from the psychologist (Part C (1): efforts to avoid thoughts, feelings or conversations associated with the trauma.)
The Psychologist also concluded that I have memory retention difficulties and forgetfulness.
The delegate took that answer into account but was still not satisfied that Mr Kazmi was of good character.
THE ASSAULT AND PROPERTY DAMAGE OFFENCES
The facts are set out in the Police Facts Sheet at pages SD4-12 to SD4-14.
In summary, Mr Kazmi approached his former girlfriend in a club in Darlinghurst. She said she did not want to talk to him. Mr Kazmi left but returned shortly afterwards. On his return, Mr Kazmi’s ex-girlfriend was talking to another man. A scuffle broke out between that man and Mr Kazmi. They were all asked to leave the club.
On the street, Mr Kazmi approached his ex-girlfriend again. She told him to go away. He slapped her on the face, knocking her to the ground. Her female friend intervened and Mr Kazmi punched her. Her glasses fell to the ground and he stepped on them, breaking the frame.
A male passer-by then came to the assistance of the women. Mr Kazmi threw a number of punches at this man but none of them landed. Police officers in a passing patrol car stopped when they saw Mr Kazmi chasing the man across the street. They stopped Mr Kazmi and took him back to the footpath, where his ex-girlfriend was still lying on the ground. Mr Kazmi told the officers the man in the club was trying to sell drugs to his ex-girlfriend.
Mr Kazmi was taken to the police station and charged. He was ultimately convicted of three counts of common assault. He received a 12 month good behaviour bond for two of the offences and an 18 month good behaviour bond for the other. He was also convicted of destroying or damaging property, fined $1000, and ordered to pay $400 compensation for breaking the woman’s glasses.
MR KAZMI’S EXPLANATION OF THE INCIDENT
Although he pleaded guilty to the charges, Mr Kazmi denies the version given to the police by the three people who were involved in the incident. A significant difficulty for him is that the police officers themselves witnessed some of the incident. What they observed is not consistent with Mr Kazmi’s version of benign behaviour on his part.
MR KAZMI’S EXPLANATION FOR COMPLETING THE APPLICATION FORM AS HE DID
I have already referred to the explanation Mr Kazmi gave in April last year in response to the Department’s letter inviting him to comment on his answer to the question concerning previous convictions. During the hearing he said something completely different: that he had changed his answer because he was afraid of what his family would think if they discovered that he had convictions for assault. In other words, he was now telling the Tribunal that he changed his answer in full knowledge that the answer he was giving was not truthful.
Mr Kazmi’s sister said she helped her brother complete the citizenship application form. She also claimed to know nothing about his criminal record – neither the assaults nor the traffic offences – when she was helping him with the form. That is despite her characterisation of her relationship with him as “very close”. Assuming she is telling the truth, as I find to be the case, Mr Kazmi had somehow kept these very significant events from his sister, and most likely from the rest of his family as well. That placed him in a difficult position when the Department, as it would surely do, discovered his history and asked for an explanation in April 2014. He dealt with that difficult position by lying to the Department – not an action that helps paint him as a person of good character.
In his letter of explanation, Mr Kazmi also referred to the psychologist’s assessment of him as having memory difficulties and experiencing forgetfulness. Those factors, even if present, would tend to point away from Mr Kazmi’s initial answer of “yes” on the application form. The reference to these factors throws no light on why Mr Kazmi completed the form the way he did.
THE CHARACTER REFERENCES
Mr Kazmi submitted five “character references” to the Department when he provided his letter of explanation in April 2014. A later reference was provided to the Tribunal a few days before the hearing.
None of the references mention Mr Kazmi’s criminal record and for that reason they are of limited use.
When this shortcoming in the references was pointed out to Mr Kazmi at the commencement of the hearing, Mr Kazmi decided to call one of the referees, Mr Najam Shah, to give oral evidence by telephone. Mr Kazmi was confident that Mr Shah had been told in detail about Mr Kazmi’s criminal record and that he could express an opinion on Mr Kazmi’s character against that background. Unfortunately Mr Shah’s understanding of the assault incident was very sketchy. He said he had “glanced” at a report Mr Kazmi had shown him, and had read it only quickly. Mr Shah repeated his assessment of Mr Kazmi as a person of good character, and with a good nature. He said Mr Kazmi is very active in his local community, willingly giving his time to help other community members. But when given the detail of the 2011 assault, Mr Shah could only say that perhaps Mr Kazmi could “learn from those convictions”.
Mr Kazmi had also arranged for a second referee to attend the hearing to give oral evidence. This second referee was in the hearing room at the start of the hearing but she was asked to wait outside while Mr Kazmi and his sister gave their oral evidence. When that was completed, the referee was called but she could not be found. Inexplicably, she had left the Tribunal’s premises and was not answering her phone. I was told that her evidence would have been very supportive of Mr Kazmi. Mr Kazmi’s sister, who was helping him with his application, asked for an opportunity to have this referee provide a further written statement in support of Mr Kazmi, with specific reference to his criminal record. I refused that application, noting that I had made it plain to Mr Kazmi’s sister one week earlier (when I reluctantly granted a second postponement of the hearing) that all statements in support of Mr Kazmi were to be provided to the Tribunal and the Minister no later than the Wednesday before the Tribunal hearing. I noted also that I had made it clear that Mr Kazmi was to make available, for a two-hour window from 11 am to 1 pm on the day of the hearing, any person making a statement, in case the Minister’s representative wanted to ask them any questions. Unfortunately the referee had left the Tribunal by 12:20 pm.
THE TRIBUNAL’S ASSESSMENT OF MR KAZMI’S CHARACTER
The question I must ask myself is whether I am satisfied that Mr Kazmi is of good character at the time of my decision.
In Rajaratnasarma and Minister for Immigration and Border Protection [2014] AATA 406 DP Constance noted, correctly, that the Tribunal must be positively satisfied that an applicant is of good character. If not positively satisfied, the Tribunal must affirm the decision under review.
The term “good character” is not defined in the Act. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J noted at [19] that:
… 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.
In Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, the Tribunal stated at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
There are factors, mentioned in the character references, that weigh in favour of Mr Kazmi’s character. He is described as hard-working, reliable, honest, well behaved and pleasant. It is to Mr Kazmi’s credit that he is regarded that way by the people he mixes with on a regular basis.
What weighs against Mr Kazmi is the fact that he was convicted, in 2011, of assault against a former girlfriend and two other individuals. That is a serious matter. The Australian Citizenship Instructions indicate, and I agree, that crimes of violence are to be regarded as such. The nature of the assaults, which involved repeated acts of violence during a single incident, and included the assault of a woman with whom he was formerly in a relationship, reflect quite significant offending.
On top of that, he fails to accept responsibility for his actions. He continues to deny aspects of the police summary of facts, but at the same time says he has “improved a lot” since then, and has “learnt a lot”. He was not truthful in his explanation to the Department, preferring to lie to a government agency over telling the truth and admitting his behaviour to his family. Even now, four years later, he is keeping this information from his family. He also appears to have kept his history from his referees: none of those who submitted references to the Department made any mention of his criminal record. He has not faced up to these events. He must do so, and do so honestly, if he expects to be accepted as a citizen of this country.
CONCLUSION
I am not satisfied that Mr Kazmi possesses the enduring moral qualities indicative of a person of good character. In those circumstances I must affirm the decision under review.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost ...............................[sgd].........................................
Associate
Dated 27 August 2015
Date(s) of hearing 10 August 2015 Date final submissions received 10 August 2015 Advocate for the Applicant S Kazmi Solicitors for the Respondent A Graham; Clayton Utz
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