Karim and Minister for Immigration and Border Protection (Citizenship) - [2015] AATA 916

Karim and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 916 (27 November 2015)

Division

GENERAL DIVISION

File Number(s)

2014/2620

Re

Md Rezaul Karim

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 27 November 2015

Place Sydney
The decision under review made 29 April 2014, being the decision of the Minister for Immigration and Border Protection refusing Mr Karim’s application for Australian citizenship by conferral, is affirmed.
...........................[SGD].............................................
J W Constance
Deputy President
CATCHWORDS
CITIZENSHIP- citizenship by conferral- good character- whether the applicant satisfies the legislative requirement to be shown to be of good character- previous convictions- domestic violence- failure to disclose convictions- decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24
CASES
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Instructions (Cth) issued 1 January 2014
REASONS FOR DECISION
Deputy President J W Constance
27 NOVEMBER 2015
INTRODUCTION

Mr Karim applied for Australian citizenship by conferral on 13 September 2013.
The application was refused by the delegate of the Minister for Immigration and Border Protection on 29 April 2014 on the basis that the delegate was not satisfied that Mr Karim was shown to be of good character at the date of the decision.
Mr Karim has applied to the Tribunal for a review of the delegate’s decision.
For the reasons which follow, the decision under review will be affirmed.
BACKGROUND
Mr Karim is a citizen of Bangladesh. He migrated to Australia with his wife in August 2008. He currently holds a subclass XA866 (permanent) visa.
On 26 January 2012, Mr Karim was charged with the offence of common assault after an altercation with his wife earlier that day. Following an argument with his wife over who should cook lunch, Mr Karim’s wife spat at him. Following this, Mr Karim slapped his wife on her back. The Police Facts Sheet states:
Whilst the Victim was walking away the Accused slapped her using his right palm with strong force. The Accused [sic] palm landed on the Victims [sic] left shoulder, on her back. The Victim felt immediate pain. The Accused continued to slap and hit the Victim in her back, neck and shoulder region a number of times, whilst the Victim was protecting her face and crying. The final slap the Victim felt in her back, forced her onto the bed.
At this time the Victim has begun crying loudly and woken up the daughter ... who has entered the bedroom immediately. The Daughter witnessed the Accused slapping the Victim in her back shoulder region whilst the Victim was on the bed hunched over.
... [Another witness] has sighted the Victim bent over the bed, with the Accused standing over the Victim with his right arm raised, with a clenched fist and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Karim and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 916
Case: [2015] AATA 916
Decision Date: 27 November 2015

CaseChat Overview and Summary

In the case of Karim and Minister for Immigration and Border Protection, the applicant, Mr Karim, a citizen of Bangladesh, sought Australian citizenship by conferral. The dispute arose from the Minister's refusal to grant citizenship, primarily due to Mr Karim's failure to disclose a previous conviction for common assault in his application. The matter was heard by the Administrative Appeals Tribunal (AAT). The central legal issue was whether Mr Karim satisfied the legislative requirement of being of good character, particularly in light of his failure to disclose a previous conviction for domestic violence.

The AAT considered various aspects of Mr Karim's conduct and character. The Tribunal examined the nature of the offence, which involved an altercation with his wife resulting in physical assault. The AAT noted that the failure to disclose this conviction was a significant factor, as the Australian Citizenship Instructions emphasize the importance of honesty and respect for the law in assessing good character. Furthermore, the AAT evaluated the seriousness of the offence and its impact on Mr Karim's standing in the community. Despite evidence of Mr Karim's community involvement and positive character references, the Tribunal concluded that these factors did not sufficiently mitigate the seriousness of his past conduct.

The AAT upheld the Minister's decision, finding that Mr Karim had not demonstrated the enduring moral qualities necessary to be considered of good character. The Tribunal emphasised that the decision was based on community standards and the principles outlined in the Australian Citizenship Instructions. Consequently, the AAT affirmed the Minister's decision to refuse Mr Karim's application for Australian citizenship by conferral. The reasoning underscored the importance of transparency and adherence to legal standards in citizenship applications.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the decision under review will be affirmed.BACKGROUND Mr Karim is a citizen of Bangladesh. He migrated to Australia with his wife in August 2008. He currently holds a subclass XA866 (permanent) visa. On 26 January 2012, Mr Karim was charged with the offence of common assault after an altercation with his wife earlier that day. Following an argument with his wife over who should cook lunch, Mr Karim’s wife spat at him. Following this, Mr Karim slapped his wife on her back. The Police Facts Sheet states:Whilst the Victim was walking away the Accused slapped her using his right palm with strong force. The Accused [sic] palm landed on the Victims [sic] left shoulder, on her back. The Victim felt immediate pain. The Accused continued to slap and hit the Victim in her back, neck and shoulder region a number of times, whilst the Victim was protecting her face and crying. The final slap the Victim felt in her back, forced her onto the bed.At this time the Victim has begun crying loudly and woken up the daughter ... who has entered the bedroom immediately. The Daughter witnessed the Accused slapping the Victim in her back shoulder region whilst the Victim was on the bed hunched over. ... [Another witness] has sighted the Victim bent over the bed, with the Accused standing over the Victim with his right arm raised, with a clenched fist and pinning her down on the bed with his left arm.[1]These facts are not in dispute.[1] Exhibit R3. Mr Karim was convicted of the offence before the Local Court and sentenced to a 12 month good behaviour bond. This conviction was subsequently overturned on appeal by the District Court on 11 July 2012. The District Court found Mr Karim guilty of the offence, but did not proceed to record a conviction. Mr Karim was placed on a 12 month good behaviour bond in accordance with section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That bond expired on 10 July 2013. Since the incident, Mr Karim and his wife have separated. They were divorced in late 2014. In his application for citizenship lodged in September 2013, Mr Karim failed to disclose that he had been found guilty of common assault. The question asked in the application form as to previous convictions or findings of guilt reads: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)?[2] [Original emphasis].Mr Karim answered ‘No’ to this question. The form proceeds to instruct: If you answered ‘Yes’ to any of the [above] questions…, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention.[3] [Original emphasis]Mr Karim again failed to note any details of his offence.[2] Exhibit R1 p.133.[3] Exhibit R1 p.133.THE ISSUE

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I have already stated, I do not consider that there are any mitigating factors which outweigh Mr Karim’s behaviour. Further the witnesses called to give evidence in support of Mr Karim all referred to his involvement in his community. This involvement is not in question but it is of minimal assistance in deciding whether Mr Karim is now of good character. The witnesses attested to Mr Karim’s good standing in the community, but applying what was said by the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs, this does not satisfy the test. I must consider Mr Karim’s enduring moral qualities at the time of this decision. On the evidence before me such qualities have not been demonstrated.CONCLUSION The decision under review made 29 May 2014, being the decision of the Minister for Immigration and Border Protection refusing Mr Karim’s application for Australian citizenship by conferral, will be affirmed.

Ratio Decidendi

Legal Principle Established

In considering the Australian Citizenship Instructions I have taken into account that they refer to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[6]:In the context of the Act, loyalty to Australia, a belief in a democratic form of government, 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 what a person does and in part what a person is heard to say and seen to do.CONSIDERATION[6] [2011] AATA 304 at [120].Characteristics of a person of good character In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include: ·respect and abide by the law in Australia and other countries; … ·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship; … ·not be violent … and not cause harm to others through their conduct. ... Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. The relevant factors to be taken into account in considering why an applicant might not be of good character (as set out in paragraph 10.5.2) include the following: • Has the applicant committed any offences and if so, did they admit that in their citizenship application?• If the applicant has committed an offence, was it serious or minor? • Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or disabled, or others who trusted the applicant? The Instructions provide that this framework should be considered first before considering whether there are any mitigating factors which may indicate that a person is now of good character. Under the heading, Weighing up the decision, the Instructions provide: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 standards. 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.[7][7] Paragraph 10.5.4.The offence of common assault committed by Mr Karim

Division	GENERAL DIVISION
File Number(s)	2014/2620
Re	Md Rezaul Karim
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Deputy President J W Constance
Date	27 November 2015
Place	Sydney