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

1. Mr Karim applied for Australian citizenship by conferral on 13 September 2013.

2. 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.

3. Mr Karim has applied to the Tribunal for a review of the delegate’s decision.

4. For the reasons which follow, the decision under review will be affirmed.

   BACKGROUND

5. 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.

6. 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.

7. 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.

8. Since the incident, Mr Karim and his wife have separated. They were divorced in late 2014.

9. 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

10. The only issue for determination is whether, at the time of the Tribunal’s decision, Mr Karim is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

    LEGISLATION

11. Applications for the conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth).

12. Section 24 of the Act provides, in part:

    (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.

    (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).

13. Section 21(2) of the Act establishes requirements for eligibility for the grant of citizenship. It provides, in part:

    (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.

    This is the only subsection which is in issue in the present application.

    AUSTRALIAN CITIZENSHIP INSTRUCTIONS

14. The Australian Citizenship 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’”.

15. The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are cogent reasons to the contrary.[4] I am satisfied that there are no reasons to the contrary in this matter.

    [4] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.

16. 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.

17. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[5]

    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).

    [5] (1996) 68 FCR 422 at 431-432.

18. After referring to the judgement of the Court in Irving, 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.

19. 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

20. 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.

    ...

21. 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?

22. 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.

23. 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

24. Paragraph 10.5.2 of the Australian Citizenship Instructions provides that crimes of violence, which include domestic violence, are to be regarded as serious offences. Such conduct is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against a finding that an individual is of good character.

25. Mr Karim said that he and his wife were very unhappy in their marriage and that he was a very frustrated man.  He said that he is remorseful and ashamed for his actions in hitting his wife and will never do so again.[8]  However I note that in the record of his interview by the Police he described the incident as a “very, very simple thing”.[9]

    [8] Exhibit A1 p.2.

    [9] Exhibit R4 p.14.

26. All forms of domestic violence are unacceptable in the Australian community and the fact that Mr Karim’s wife may have assaulted him by spitting does not excuse his conduct.  Furthermore, his actions involved his daughter who witnessed at least part of the assault.

27. I regard the offence as serious.  The victim, Mr Karim’s wife, was entitled to trust him to behave properly, as was his daughter.  However I do take into account that the offence was at the lower end of the scale of offences of this nature.  Clearly the Court so regarded it in declining to enter a conviction, in describing it as “not a violent assault” and in referring to the fact that no permanent damage was caused to the victim.[10]

    [10] Exhibit A3.

    Failure to disclose the finding of guilt in the application for citizenship

28. In his statement made 6 March 2015 in these proceedings[11] Mr Karim said that because he had not been convicted of the offence with which he was charged, he could honestly answer “no” to the question asked of him in his application.

    [11] Exhibit A1.

29. Mr Karim agreed that at the time he completed his citizenship application he clearly understood that he had committed an offence and that he had received some form of punishment. He said that he completed the application carefully but that he misunderstood the question asked of him.  He denied knowing that disclosing the finding of guilt may adversely affect the outcome of his application.

30. Mr Karim did not satisfactorily explain why he understood the meaning of the words “convicted of” and yet he did not understand the words immediately following, namely “or found guilty of”.  He is a well-educated man who had lived in Australia for over five years at the time he made his application.  I am not satisfied that his failure to disclose the finding of guilt was a result of a misunderstanding or the fact that English is his second language.  At the very least he completed the form without proper regard for his obligation to respect the laws of this country.

    Mitigating Factors

31. Paragraph 10.5.2 provides, in part:

    Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.

    oWhat is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ... Note: …In the case of a serious offence, a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character.

    oHas the applicant accepted responsibility and shown remorse for their conduct?

    oHow has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…

    oHas the applicant rehabilitated themselves?…

    oWhat was the applicant’s age at the time the offence was committed?…

    oWere there any extenuating circumstances relating to the offence?

32. The possible mitigating factors in this case are of little assistance to Mr Karim.

33. The application for citizenship was made 19  months after the commission of the offence and only 14 months after the finding of guilt by the District Court.  Bearing in mind that the good behaviour bond expired in July 2013, the time in which Mr Karim has been free of the control of the Court is relatively short.

34. Although Mr Karim says he is remorseful, I am not satisfied that this is so.  During his interview by the Police, on several occasions he sought to minimise the seriousness of the offence.  Whilst he has not committed any other offences (either before or after the assault) there is little evidence that he has rehabilitated himself.

35. Mr Karim’s age at the time of the offence is not a factor to be taken into account in his favour and no other mitigating factors have been established.

    Character references

    Dr Wahab

36. Dr Wahab is the President of Bangladesh Australia United Society.  He provided a statement[12] and gave evidence.

    [12] Exhibit A4.

37. Dr Wahab has known Mr Karim since 2008 by reason of his work as a volunteer.  He spoke of Mr Karim’s active involvement in organising events for the benefit of others in the community.  He was aware of the offence committed by Mr Karim and his failure to disclose this in his application.

38. Dr Wahab is of the opinion that Mr Karim is a man of integrity and that his offence was wholly inconsistent with his professional and personal reputation.

    Mr Matin

39. Mr Matin is the General Secretary of the Bangladesh Association of New South Wales.  He provided a statement[13] and gave evidence.

    [13] Exhibit A5.

40. Mr Matin also spoke of Mr Karim’s involvement in the Bangladeshi community.  In his opinion Mr Karim feels guilty for the offence committed.  Mr Matin regards Mr Karim as a person of good character.

    Mr Islam

41. Mr Islam is the Vice President of the Bangladesh Nationalist Party in Australia.  He provided a statement [14] and gave evidence.

    [14] Exhibit A6.

42. Mr Islam also referred to Mr Karim’s work in the community.

    Weighing the various factors

43. In deciding whether I am satisfied that Mr Karim is of good character, the evidence has to be looked at as a whole.   Paragraph 10.5.4 of the Instructions provides, 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.… A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.

44. Mr Karim’s assault upon his wife and his failure to disclose that he had been found guilty of the offence both weigh heavily against a finding that he is of good character.  Mr Karim committed a serious offence involving domestic violence within five years of his arriving in Australia.  The offence was committed on his wife in the presence of their daughter.  Insufficient time has elapsed since the offence and since the expiry of the bond to permit Mr Karim to demonstrate that he has rehabilitated himself.

45. 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

46. 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.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.....................[SGD]...................................................

Associate

Dated 27 November 2015

Date(s) of hearing	12 August 2015
Counsel for the Applicant	S Lees
Solicitors for the Applicant	Blake Lawyers
Solicitors for the Respondent	DLA Piper Australia