Kakos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 571
•19 March 2020
Kakos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 571 (19 March 2020)
Division:GENERAL DIVISION
File Number: 2019/2489
Re:Roni Kakos
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:19 March 2020
Place:Sydney
The Tribunal affirms the decision under review.
............................[sgd]........................................
Dr L Bygrave, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – whether applicant is of good character – traffic/driving infringements – assault police – resist officer in execution of duty – domestic violence charges dismissed – apprehended domestic violence order made – Citizenship Policy – Australian Citizenship Procedural Instructions – where applicant has limited insight into his behaviour – character references do not outweigh offences – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 16, 17
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Karatunov and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
SECONDARY MATERIALS
Citizenship Policy (1 June 2016)
Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Dr L Bygrave, Member
19 March 2020
INTRODUCTION
The applicant, Mr Roni Kakos, is 31 years old. He is a citizen of Iraq and arrived in Australia on 31 July 2008 as the holder of a subclass XB-200 (refugee) permanent visa.
On 10 June 2016, Mr Kakos made an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
This application was refused by a delegate of the Minister for Home Affairs (the Minister)[1] on 5 March 2019 on the basis that:
·Mr Kakos did not meet the good character requirement in paragraph 21(2)(h) of the Citizenship Act; and
·the prohibition in paragraph 24(6)(a) of the Citizenship Act applied because Mr Kakos had outstanding matters before a court.
[1] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
On 6 May 2019, Mr Kakos made applications to the General Division of the Administrative Appeals Tribunal (the Tribunal) for an extension of time to make an application for review of decision and to review the decision made on 5 March 2019.
An extension of time to make an application was granted on 4 June 2019 and Mr Kakos’ application was heard by the Tribunal in Sydney on 26 February 2020. Mr Kakos had legal representation; he attended the hearing and gave oral evidence in person.
RELEVANT LEGISLATION
Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:
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.
Relevant to this application, subsection 21(2) of the Citizenship Act sets out the general eligibility requirements for Australian citizenship as follows:
(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.
Pursuant to subsection 24(6) of the Citizenship Act, the Minister also must not approve a person becoming an Australian citizen at a time:
… (a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; …
Citizenship Policy
While the Citizenship Act does not define the term ‘good character’, the Citizenship Policy offers guidance on the interpretation and application of the good character requirement. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]
[2] [1979] AATA 179; (1979) 2 ALD 634.
Chapter 11 of the Citizenship Policy sets out the following policy guidance I should consider when assessing whether a person is of good character. The decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs is cited as guidance to the definition of good character:
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.[3]
[3] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 145.
The Citizenship Policy further states that good character refers to the ‘enduring moral qualities of a person’ as an indication of whether they are likely to ‘uphold and obey the laws of Australia’.[4] The phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.
[4] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 145.
This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. I can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship process.[5]
[5] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 146.
The requirement of character in a citizenship application is discussed by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:
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.[6]
[6] [2000] AATA 931 at [8].
The Citizenship Policy sets out a non-exhaustive list of characteristics of good character. Relevant to this application, a person of good character would:
·respect and abide by the law in Australia or other countries; and
·not be violent and not cause harm to others through their conduct (for example, excessive speeding).
As set out in the Citizenship Policy, the question for decision makers is whether any mitigating factors and/or explanation provided by the applicant outweigh the behaviour in question. This assessment requires considering an aggregate of qualities and weighing up factors, applying community standards.
Mitigating factors relevant to this application include whether a person of good character would have behaved the way the applicant did, the amount of time that has elapsed since his offending, whether the applicant has demonstrated that he has upheld and obeyed the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to his offences; this requires looking holistically at the applicant’s behaviour over a lasting or enduring period of time.
Australian Citizenship Procedural Instructions (CPIs)
Further policy guidance is provided by the Australian Citizenship Procedural Instructions (CPIs), which detail operational instructions and supplement the Citizenship Policy. CPI 15 – Assessing Good Character under the Citizenship Act (CPI 15) was issued on 17 April 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Citizenship Act.
Relevant to this application, CPI 15 states that Australian community standards, as reflected in Government initiatives, indicate that ‘domestic violence…in any form is not acceptable in the Australian community’.[7]
[7] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.3.
EVIDENCE
Mr Kakos has a criminal record that is detailed as follows in an Australian Criminal Intelligence Commission Report dated 11 October 2018:
·Fairfield Local Court – 16 August 2010 and Parramatta District Court – 5 October 2010: drive on road etc while licence suspended (s 10 dismissal); driver/rider state false name/address ($300 fine and court costs); driver/rider refuse to produce licence, state name ($200 fine and court costs).
·Fairfield Local Court – 13 June 2012: resist officer in execution of duty-T2 (s 10 bond 18 months and court costs); assault officer in execution of duty-T2 (s 10 bond 18 months and court costs); excluded person remain in vicinity of licensed premises (s 10A conviction with no other penalty).
·Downing Centre Local Court – 4 December 2018: contravene prohibition/restriction in AVO (domestic) (pending court appearance); stalk/intimidate intend fear physical etc harm (domestic)-T2 (pending court appearance).[8]
[8] Exhibit T-T8, pages 78-79.
Documents from the Local Court of New South Wales (NSW) dated 6 May 2019 and 21 May 2019 show the offence of stalk/intimidate intend fear physical etc harm (domestic)-T2 was dismissed on 19 March 2019 and the offence of contravene prohibition/restriction in AVO (domestic) was dismissed on 15 May 2019.[9] These documents further show an Apprehended Domestic Violence Order (ADVO) was made on 19 March 2019 prohibiting or restricting the behaviour of Mr Kakos for a period of two years for the protection of ‘M’.
[9] Exhibits A10 and A11.
Mr Kakos’ police records show he has received traffic/driving infringements dating as far back as 2010, including seven between 2014 and 2018 for offences including exceed speed > 10 km/h, use unregistered registrable motor vehicle on road, use mobile phone when not permitted and not wear seat belt.[10]
[10] Exhibit R1, pages 27, 31, 32, 33 and 42.
Mr Kakos made statutory declarations on 24 May 2016 and 20 August 2019, and filed a written undated statement regarding his personal history, education and employment, and offending. He also gave oral evidence at the Tribunal hearing.
Mr Kakos arrived in Australia in 2008 with both his parents and three of his five siblings. He initially studied at Bankstown City College, completing his course by December 2009. He then commenced employment at a car wash business before working in transport. In 2014, he began working with his brother in their family removal business transporting furniture, goods and materials locally and interstate.
Mr Kakos provided the following explanations for his offending behaviour.
In relation to his driving offences in 2010, Mr Kakos explained that he was driving while suspended and randomly pulled over by police. He told the Tribunal that he was young at the time and scared of the consequences of his driving while suspended, and so did not provide his correct information to the police.
Regarding Mr Kakos’ offences of resisting and assaulting a police officer in 2012, he stated that an incident happened at a reception centre during a family celebration and he intervened in a fight to defend his brother. Police arrived at the scene and asked Mr Kakos to leave but he refused, struggled with the police officers and was taken to the police station. Mr Kakos said his judgement was affected because of alcohol and he later apologised to the police.
The charges of Mr Kakos contravening an AVO and stalk/intimidate were dismissed in the NSW Local Court; however, an AVO was made on 19 March 2019 for a period of two years restricting the behaviour of Mr Kakos for the protection of ‘M’.
Mr Kakos told the Tribunal he was in a ‘serious’ relationship with ‘M’ from 2016 for a period of about two and a half years; he said they began to have ‘big arguments’ from late 2017 and their relationship was ‘on and off’ until mid-2018.[11] Mr Kakos and ‘M’ lived separately and their relationship appears to have been emotionally difficult with periods of jealously.
[11] Oral transcript, pages 28 and 34.
Police records for Mr Kakos described the following incidents that ‘M’ reported to police and Mr Kakos provided evidence to the Tribunal:
·In October 2017, Mr Kakos and ‘M’ had a verbal argument while ‘M’ was driving a vehicle. Mr Kakos ‘punched’ the car dashboard four or five times and exited the vehicle.[12] Mr Kakos and ‘M’ met late the next evening and Mr Kakos stood in front of ‘M’’s vehicle to prevent her from leaving.
·In May 2018, Mr Kakos attended ‘M’’s workplace and ‘demanded’ to speak to her by ‘threatening’ to come to her home.[13] Mr Kakos and ‘M’ later met in a car park and had a verbal argument that led to ‘M’ locking herself in her vehicle.
·In June 2018, Mr Kakos approached ‘M’ at a restaurant in the city where she was having dinner with a friend; they had a verbal argument and the police were called. After this incident, Mr Kakos was served with a provisional AVO.[14]
[12] Exhibit R1, page 32.
[13] Exhibit T-T10, page 103.
[14] Exhibit T-T10, page 105.
At the Tribunal hearing, Mr Kakos stated he could not understand how ‘M’ could be scared by his behaviour. He accepted that their verbal arguments included yelling and swearing, but said he did not swear ‘towards’ ‘M’.[15] He said that he would turn up unannounced at ‘M’’s workplace or university and ‘didn’t know’ how that would make ‘M’ feel.[16] Mr Kakos said he has ‘moved on’ from his relationship with ‘M’ and is now engaged to be married to another woman.
[15] Oral transcript, page 51.
[16] Oral transcript, page 34.
The Tribunal notes there are no statements from either ‘M’ or Mr Kakos’ fiancée.
Mr Kakos has provided character references to verify his good character. The Citizenship Policy states ‘referee reports can shed light upon an applicant’s character’ and provides advice about the level of weight to be given to references.[17]
[17] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 155.
Written references submitted by Mr Kakos to the Department on 29 October 2018 are from friends, colleagues and family members. These references describe Mr Kakos as reliable, kind, generous, responsible, hard-working and honest; he has a great relationship with his family, and participates in the community playing soccer and attending church.[18] None of these references are statutory declarations or refer to his (then) pending charges. Mr Kakos also provided a letter from his solicitors dated 24 October 2018, which noted that he ‘pleaded not guilty’ to his pending charges.[19]
[18] Exhibit T-T9.
[19] Exhibit T-T10, page 100.
Further written references were filed with the Tribunal on 26 August 2019. Each of these references refer to Mr Kakos’ offending and describe his positive contribution to the community.[20]
[20] Exhibits A2-A9.
CONSIDERATION
At the Tribunal hearing, the Minister’s legal representative conceded the prohibition at paragraph 24(6)(a) of the Citizenship Act that had applied at the date of the delegate’s decision on 5 March 2019 was no longer relevant because the proceedings pending against Mr Kakos were dismissed on 19 March 2019 and 15 May 2019.[21] This means the only issue for determination by the Tribunal is whether Mr Kakos meets the requirements of good character in paragraph 21(2)(h) of the Citizenship Act.
[21] Exhibits A10 and A11.
Based on the evidence, I accept that a period of almost eight years has passed since June 2012, which is the date of Mr Kakos’ most recent conviction. However, police records show Mr Kakos has continued to receive traffic/driving infringements. While these driving and traffic offences are not considered to be serious under the Citizenship Policy, Mr Kakos’ evidence to the Tribunal was that his most recent traffic infringement (exceeding the speed limit by 14 km/h) was on 25 December 2019, two months prior to the Tribunal hearing.
I also accept the evidence shows the Court dismissed the most recent charges made against Mr Kakos (the offences of stalk/intimidate and contravene AVO); however, he remains subject to the provisions of an AVO made by the Court until 19 March 2021.
Sections 16 and 17 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Crimes Act) provide that the court ‘may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities’ that a person ‘has reasonable grounds to fear’ the other person; and the order should impose only the prohibitions ‘necessary for the safety and protection of the protected person’.
At the Tribunal hearing, Mr Kakos said he did not know why ‘M’ went to the police or was scared of his behaviour during the incidents summarised in paragraph 29. However, I am satisfied that an objective assessment of these incidents as set out in the police records and verified by Mr Kakos in his oral evidence confirm that these incidents included loud verbal arguments involving yelling and swearing, Mr Kakos punching part of a vehicle and standing in a manner that prevented ‘M’ from leaving a place, and Mr Kakos going to ‘M’’s workplace and a restaurant without any notice and demanding to speak with her.
I have no doubt these incidents would have been frightening for ‘M’. Mr Kakos’ conduct of appearing unexpectedly on at least two occasions, which resulted in a verbal argument and behaviour that led ‘M’ to feel unsafe, was intimidating. I find that Mr Kakos’ inability to understand the effect of these incidents on ‘M’ shows very limited insight into his behaviour.
I am satisfied the seriousness of Mr Kakos’ behaviour is shown by the Court making an AVO for the protection of ‘M’ for a period of two years, noting the provisions of the Crimes Act required the Court to be satisfied on the balance of probabilities that ‘M’ had reasonable grounds to fear Mr Kakos. While Mr Kakos told the Tribunal he did not contest the AVO, as set out by the Tribunal in Karatunov and Minister for Immigration and Border Protection (Citizenship):
Whether or not the allegations and circumstances giving rise to the DVO were either vigorously contested or otherwise consented by the Applicant (on whatever basis) is of no concern to the Tribunal for present purposes. The point is that the DVO was made.[22]
[22] [2017] AATA 132 at [24].
Violence is not acceptable in the Australian community. While the threat of violence in a domestic relationship may not manifest in physical harm, it is likely to cause fear that can pervade a person’s life. Every incidence of domestic violence – whether physical, sexual, financial and/or emotional – diminishes the Australian community and is not consistent with the privilege of Australian citizenship.
With regard to the character references provided by Mr Kakos, the Citizenship Policy states that referee reports should acknowledge any offences by the applicant and explain why the applicant is nonetheless considered to be of good character. The Policy further notes that:
Decision makers should give very little weight to references which do not acknowledge the offence or incident...
More weight should be given to references made as statutory declarations… [23]
[23] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 155.
I am not satisfied that the information in the character references for Mr Kakos outweigh his offences, particularly as none of his references are statutory declarations.
Finally, I have considered Mr Kakos’ evidence to the Tribunal about his employment and successful business, and his positive relationships with family and community.
Weighing all the available evidence, I am not satisfied that Mr Kakos is of good character at this time as required by the Citizenship Act. Mr Kakos remains subject to the provisions of an AVO until 19 March 2021, a period of a further 12 months after this decision. This simply does not allow me to support a finding that Mr Kakos can demonstrate he is of good character over a lasting or enduring period of time.
CONCLUSION
In considering all of the relevant circumstances, I find Mr Kakos does not satisfy paragraph 21(2)(h) of the Citizenship Act.
My conclusion does not preclude Mr Kakos from making a further application for citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he does meet the requirements to be granted Australian citizenship.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 19 March 2020
Date(s) of hearing: 26 February 2020 Solicitors for the Applicant: M S Hermis, Hermis & Associates Solicitors for the Respondent: Mr C O'Sullivan, Australian Government Solicitor
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