Kashef Haghighi and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 1161

Kashef Haghighi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1161 (28 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3529

Re:Majid Kashef Haghighi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:28 July 2017

Place:Sydney

The Tribunal affirms the decision under review.

...................[sgd]...................................................

Senior Member J F Toohey

CATCHWORDS

Citizenship – application refused – whether applicant of good character – previous offences not disclosed – whether applicant submitted false documents in support of past visa application – whether sufficient time passed – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21(2)

Australian Citizenship Regulations 2007 (Cth)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Instructions (Visa and Citizenship Services Division, Department of Immigration and Border Protection, Canberra, 2016)

Department of Immigration and Border Protection, Citizenship Policy (Visa and Citizenship Services Division, Department of Immigration and Border Protection, Canberra, 2016)

REASONS FOR DECISION

Senior Member J F Toohey

28 July 2017

INTRODUCTION

1. Mr Majid Kashef Haghighi is a 36 year old citizen of Iran. He arrived in Australia in March 2007. He was granted a permanent resident visa in April 2012. 

2. On 21 July 2015, Mr Haghighi applied for Australian citizenship by conferral. On 8 February 2016, a delegate of the Minister for Immigration and Border Protection (the Minister) refused his application because he was not satisfied that Mr Haghighi was of good character. 

3. On 18 February 2016, Mr Haghighi applied for citizenship a second time. On 29 June 2016, a delegate of the Minister refused his application because he was not satisfied that Mr Haghighi was of good character. Mr Haghighi seeks review of that decision.

   ELIGIBILITY FOR CITIZENSHIP

4. A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Australian Citizenship Act 2007 (the Citizenship Act). One of those requirements, and the only one in dispute in this case, is that a person be of good character at the time of the Minister's decision on the application: s 21(2)(h).

   THE MEANING OF GOOD CHARACTER

5. “Good character” is not defined in the Citizenship Act. Guidance about its meaning is found in Chapter 11 of the Citizenship Policy (the Policy) issued by the Department of Immigration and Border Protection on 1 June 2016. The stated role of the Policy is to support the Citizenship Act and provide guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007. It recognises that policy cannot constrain the exercise of delegated powers under the Citizenship Act. The Policy is supplemented by the Australian Citizenship Instructions, the current version of which took effect from 1 July 2016.

6. “Good character” refers to a person’s “enduring moral qualities” and is an indication of whether a person is likely to uphold and obey the laws of Australia and the other commitments made through the pledge, should he or she be granted citizenship: p 145 of the Policy.  

7. Referring to decisions of the Federal Court and the Administrative Appeals Tribunal, the Policy instructs that both have used the ordinary meaning of the words “good character” and, in most cases, have adopted the following definition in the judgment of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431-432):

   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 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 while 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.

8. “Moral” for the purposes of the Policy does not have any religious connotations. Rather, “enduring moral qualities” encompasses: characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner and conforming to the rules and values of Australian society. In this way, the good character requirement “looks at the essence of the applicant”. A decision-maker can be satisfied that an applicant is of good character if he or she has demonstrated “good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes”: pp 145 - 146 of the Policy.

9. Included in the non-exhaustive list of characteristics expected of a person of good character are: respect for and abiding by the law in Australia and other countries; honesty and financial responsibility; and truthfulness in dealings with the Australian government or other governments and organisations. By way of example of this last characteristic, the Policy cites providing false personal information during visa and citizenship applications, and concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship: p 147.

10. The Policy represents government policy and should be applied by the Tribunal unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644.

    HISTORY OF OFFENDING

11. There is nothing to suggest that Mr Haghighi had a record of offending before arriving in Australia. Inquiries by the Australian Federal Police confirm that, as at 28 February 2008, he had no “Disclosable Court Outcomes” recorded against his name in Iran.

    February 2008

12. Records from the Magistrates Court of South Australia show that, on 7 August 2008, Mr Haghighi pleaded guilty to stealing two paint brushes from Bunnings Warehouse on 13 February 2008. The magistrate’s remarks describe the incident as follows:

    … [Mr Haghighi] was seen at Bunnings by a security officer placing two paint brushes the property of Bunnings down the front of his pants. He then walked out of the store without paying for them.

13. The magistrate recorded that, through his representative, Mr Haghighi had indicated that he had intended to steal the paintbrushes. The magistrate accepted that Mr Haghighi had no history of dishonesty and that his conduct was “both an impulsive act and out of character for him”. He fined him $80.00.  No conviction was recorded.

    September 2012

14. In September 2012, Mr Haghighi was charged with “assault occasioning actual bodily harm domestic violence related” and “stalk or intimidate intending to cause fear of physical or mental harm”. The charges arose out of an incident involving Mr Haghighi’s former wife. 

15. According to the police report, Mr Haghighi’s wife alleged that he had started assaulting her within two months of their marriage. In September 2012, they were separated but living under the same roof. She said she had sustained injuries during the marriage from his assaults, none of which she reported to the police. On the day in question, an argument started while she was speaking on the telephone; he grabbed her by the hair and arm, and dragged her into his bedroom where he threw her onto the bed.

16. Mr Haghighi pleaded not guilty to both charges. He was found guilty on the assault charge without proceeding to conviction, and was directed to enter into a good behaviour bond for 12 months. He was found not guilty of the stalking charge.

    Traffic infringements

17. On 28 September 2013 and 2 August 2014, Mr Haghighi was fined $106 and $109 respectively and lost one demerit point for exceeding the speed limit by not more than 10 kilometres per hour. 

18. In written submissions on behalf of the Minister, the speeding infringements were said to demonstrate “a reckless disregard for the rules of the road and the safety of the community”. This submission was not pressed at the hearing, and the Minister’s representative acknowledged the traffic matters were less significant than the other offences but said they nevertheless formed part of the whole picture. I agree.

    MR HAGHIGHI’S APPLICATIONS FOR CITIZENSHIP

19. In his first application, lodged on 21 July 2015, Mr Haghighi did not disclose any offences in Australia. He ticked “No” to the 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)?

20. That response was not correct.  In concluding that he was not satisfied that Mr Haghighi was of good character, the Minister’s delegate referred to information held by the Department which indicated that Mr Haghighi had appeared before the Campbelltown Local Court on 19 October 2012 on the charge of assault referred to above. 

21. The delegate also cited a decision by the Department in 2009 to refuse an application by Mr Haghighi in 2008 for a sponsored migration visa on the basis that he had submitted “false information and documents” to the Department for the purposes of that application. The information and documents are considered below. 

22. In his second application for citizenship, lodged on 18 February 2016, in answer to the same question concerning any convictions or findings of guilt for any offences, Mr Haghighi disclosed his appearance before the Campbelltown Local Court in October 2012 and that he had been placed on a good behaviour bond for 12 months, at the end of which no conviction was recorded.

23. In neither application did Mr Haghighi disclose the 2008 stealing offence. Nor did he disclose the traffic infringements but there is no suggestion that either resulted in a court appearance and I accept that the application form did not require disclosure of those matters.

    MR HAGHIGHI’S EVIDENCE

24. Mr Haghighi is 36 years old. He was born in Iran and came to Australia in 2007 on a work and holiday visa. He has been employed full time as a painter and decorator since 2008.  He married in 2009. He and his wife separated in 2012 and divorced in 2014. His present partner accompanied him to the Tribunal hearing.

25. Before making a decision on Mr Haghighi’s first application, the delegate offered him the opportunity to comment on the “adverse information” held by the Department. In response, he provided a statutory declaration dated 23 November 2015. He provided a second statutory declaration on 16 February 2016 in connection with his second application.

26. Giving evidence at the hearing, Mr Haghighi said he was in Bunnings and talking on the telephone; he did not mean to steal and it was inadvertence that he walked out of the shop without paying. He conceded that he placed the paintbrushes down the front of his pants but said he did not cover them with his shirt, and he only did so to keep his hands free while he was on the telephone. He said he had no reason to steal the paintbrushes because his employer provided them. He saw a duty solicitor at the court who told him a plea of not guilty would take a long time whereas the matter would be over that day if he pleaded guilty and he should have no conviction recorded. He wanted the matter over and so he went along with that course of action.

27. In a statutory declaration made on 29 May 2016, Mr Haghighi described the 2008 offence as “a basic offence” said he believed it was “just a misunderstanding”. He maintained that he honestly believed it had been “cleared from my records”. He said he understood no conviction was recorded for the 2008 offence and his solicitor at the time told him it was not necessary to so include it. I do not find that explanation persuasive. The form clearly refers to finding of guilt as well as convictions (and includes spent convictions).

28. The sentence imposed by the magistrate indicates that the 2008 offence was at the lower end of seriousness. However, Mr Haghighi’s description of it as “basic” and a result of a misunderstanding suggests that he does not fully accept responsibility for his actions. 

29. Asked about the assault in September 2012, in particular whether he grabbed his former wife by her hair and dragged her to the bedroom, Mr Haghighi denied dragging her by the hair and said he did not remember that. However, he said, he accepted the assault was his fault. He said it had not happened again, and he kept to the good behaviour bond and respected what the court asked of him.

    INFORMATION IN SUPPORT OF MR HAGHIGHI’S 2008 VISA APPLICATION

30. In October 2008, Mr Haghighi applied for a Regional Sponsored Migration visa. In the course of determining his application, the Department made enquiries about documents he had supplied concerning his education and employment history in Iran. In a letter dated 24 July 2009, the Department invited Mr Haghighi to comment on the “adverse information” it had obtained concerning his documents. 

31. With his application for a Regional Sponsored Migration visa, Mr Haghighi submitted an employment reference dated 27 February 2008 from Meharn Noori Kermanshahi of Pardis: Painting, Wood and Marquetry Workshop in Kermanshah, Iran stating that he was employed as a painter in the workshop from 5 January 2003 to 4 February 2007. The Department’s letter stated that, when its overseas office telephoned Mr Kermanshahi’s number, the person who answered said it had been his home number for more than 10 years and he did not know Mr Kermanshahi or the Pardis workshop.

32. The Department’s letter noted that, in his application for a work and holiday visa, Mr Haghighi stated that he held a Bachelor of Agricultural Engineering. He provided no employment details for the period 2001 to 2006. He stated that he had been studying from September 1999 to July 2003 at a university in the city of Mashhad which is located more than 1500 kilometres from Kermanshah, where he claimed to have been working since January 2003. It was further noted that a translation of Mr Haghighi’s Military Service Discharge card showed that he undertook military service from 22 February 2004 to 25 October 2005. On this basis, the Department suggested, he could not have been working full-time as well.

33. In relation to other documents submitted in support of this application, the Department stated that it had made enquiries about a Technical and Vocational Proficiency Certificate issued by the Technical and Vocational Training Organisation in Kermanshah on 23 October 2002, according to which Mr Haghighi had completed 1200 hours training and passed examinations in “painting buildings and woodwork – Class one”. Telephone enquiries with the head of the organisation’s examination department indicated that they held no records for Mr Haghighi in Kermanshah, that building painting and woodwork painting are separate trades and cannot be in the same certificate, and that the organisation has never had 1200 hours training courses. Finally, the head of the department indicated that the signatures on the certificate “don’t look right (they seem faulty)”.

34. Mr Haghighi denies providing false or misleading information to the Department in relation to his 2008 visa application. By letter dated 21 August 2009, his then representative responded to the Department’s letter, and in a lengthy statutory declaration on 23 November 2015 Mr Haghighi disputed the Department’s allegations. He maintained his position in oral evidence before the Tribunal. 

35. Without detailing all of Mr Haghighi’s responses, it is fair to say he has offered plausible explanations for at least some of the matters referred to by the Department. For instance, he explained the hours he was required to undertake military service and how they allowed him to work part-time as well. However, a number of matters have not been adequately explained such as why he had not indicated that he worked in another workshop (with a different name) in Mashhad as well as in Kermanshah, and how he obtained a further letter from Mr Kermanshahi in 2009 and why it did not explain why Mr Kermanshahi was not known at the telephone number called by the Department’s officer.  While those matters remain inadequately explained, doubt remains about the authenticity of the documents provided by Mr Haghighi.     

36. Despite his detailed explanation, I am not satisfied that all of the documents provided by Mr Haghighi in 2008 were genuine. 

    References in support of Mr Haghighi’s current application

37. In support of his application to the Tribunal, Mr Haghighi has provided statutory declarations from five persons including his current partner. All speak highly of him. His supervisor for the past five years says he can “personally attest to his qualifications in a work setting as well as loyalty, friendliness and experience”. I accept that he is a hard-working and valued employee.

38. Mr Haghighi’s current partner describes him as a hard-working person who has a positive outlook on life, he is honest and trustworthy and always willing to go above and beyond what is asked of him. She says they are building their first home together and want nothing more than to start a family once they are married, and she would consider it a privilege to be beside him at his Australian citizenship ceremony.

39. It is relevant in my view that none of the references acknowledge Mr Haghighi’s offences although his current partner gave evidence that she is aware of them. I accept that she genuinely believes Mr Haghighi is now of good character but references from partners or family members are given limited weight because they usually lack the independence and objectivity that would give them greater weight. Similarly, character references that make no mention of offences are of limited value in deciding an application for citizenship. It is not even clear if the writers are aware of Mr Haghighi’s offences and, if so, whether they are out of character or he has changed since. I accept that each of the other referees thinks highly of Mr Haghighi, especially as a hard-working and reliable employee, but I give their references little weight. 

    CONSIDERATION

40. The Minister submits that the Tribunal cannot be satisfied that Mr Haghighi is of good character because of the pattern of behaviour demonstrated by his offences and his failure to disclose them in his applications. While acknowledging that nine years have passed since the stealing offence, and five since the assault, it is submitted for the Minister that Mr Haghighi’s attitude to those offences remains relevant.  

41. Offences involving assaults, especially on vulnerable people, are serious. That said, without diminishing at all the seriousness of any domestic assault, the fact that Mr Haghighi was placed on a good behaviour bond after which no conviction was recorded suggests that the assault was at the lower end of seriousness. Photographs taken by the police of bruising on his former wife’s arms tend to bear this out. Ordinarily, considering the time that has passed since that offence without further offences, and taking into account Mr Haghighi’s contribution to the Australian community through his record of steady employment, I would be inclined to say that he has demonstrated that he is now of good character. 

42. Against that, however, I am not satisfied that Mr Haghighi has adequately explained his failure to disclose his offences on his visa applications. He has appeared in court twice.  The question on the visa application form is not limited to convictions; it asks clearly whether a person has ever been found guilty of an offence. I accept that a person might not realise he or she had to disclose a matter in which a conviction was not recorded after completion of a good behaviour bond, but the question is not limited to convictions; it asks if a person has ever been found guilty.

1. It weighs against Mr Haghighi’s character that he disclosed the 2012 offence in his second application (but only after it had been drawn to his attention by the delegate in the first application) but still did not disclose the 2008 stealing offence. It is very difficult to see how he could have been under any misapprehension by the time of his second application that he was required to disclose all matters. In my view, insufficient time has passed to be satisfied that Mr Haghighi fully accepts responsibility for his offences and their omission from his citizenship applications. 

   CONCLUSION

2. It is to Mr Haghighi’s credit that he has not committed any offence since 2012 and that he has been in steady employment. However, less than 18 months have passed since his most recent application for citizenship. I am not persuaded that is sufficient to find at this time that he is of good character. However, nothing prevents Mr Haghighi from applying for citizenship again in the future.

3. For these reasons I affirm the decision under review. 

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

......................[sgd].............................................

Associate

Dated: 28 July 2017

Date(s) of hearing:	15 March 2017
Advocate for the Applicant:	Carol Harb
Solicitors for the Respondent:	Sparke Helmore Lawyers