Lafta Al-Boushama and Minister for Immigration and Border Protection
[2015] AATA 5
•7 January 2015
[2015] AATA 5
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3164
Re
Lafta Al-Boushama
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member Date 7 January 2015 Place Sydney The decision under review is affirmed.
.....................[sgd]..............................................
Professor R McCallum AO, Member
CATCHWORDS
CITIZENSHIP – eligibility – whether the applicant is a person of good character – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21
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
Australian Citizenship Instructions
REASONS FOR DECISION
Professor R McCallum AO, Member
7 January 2015
BACKGROUND
The Applicant, Mr Lafta Kadhim Shneishel Al-Boushama, was born in Iraq. He fled that country and arrived in Indonesia in 2000. In 2003, the Applicant married an Indonesian woman whom I shall refer to as the Applicant’s former wife, and they have two children who were born in Indonesia.
On 14 January 2010, the Applicant, his former wife and their two children arrived in Australia. The Applicant travelled on a subclass XB-200 (permanent) visa. On 24 September 2010 at the Liverpool Local Court, the Applicant was convicted of the offence of common assault against his former wife. He was placed on a 12 month good behaviour bond and ordered to pay $79 costs. The offence took place on the evening of 18 March 2010 in the apartment in which the Applicant and his former wife and their two children were living.
The Applicant and his former wife divorced, and in 2012 the Applicant married his wife who is from the Iraqi community in Australia. They have one child.
The Applicant applied for Australian citizenship by conferral on 14 February 2014. The Applicant submitted a form 1300t. Question 31(a) on this form provides: “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)?” On the Applicant’s form the “No” box for this question was ticked.
The Minister’s delegate refused his application on 29 May 2014 on the ground that the Applicant was not of good character. The Applicant has applied to this Tribunal for review of the delegate’s decision.
THE LEGISLATION
The relevant legislation is the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The provision on which the Minister’s delegate relied to refuse the Applicant’s application for citizenship is section 21(2)(h). It provides:
(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.
THE MEANING OF “GOOD CHARACTER”
The Citizenship Act does not define “good character”. Guidance is found in Chapter 10 of the Australian Citizenship Instructions (the ACIs) which offer guidance on policy in relation to the interpretation of, and exercise of powers under, the Citizenship Act and the Australian Citizenship Regulations 2007. They are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The ACIs state that “‘Good character’ ... 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” (section 10.1.2).
As to the meaning of “good character”, the ACIs cite Lee J in the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, where his Honour said 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 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.
The ACIs state that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, including: distinguishing right from wrong; behaving in an ethical manner; and conforming to the rules and values of Australian society. This broad definition means that “a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes” (section 10.3.1).
The ACIs set out at length relevant factors when considering the implications of a person’s criminal record for their character. They include whether the applicant has disclosed in their citizenship application that they had committed any offence; the nature and seriousness of the offence (crimes of violence, including domestic violence, are regarded as serious offences); whether the offence was pre-meditated, whether it was a “one-off” offence or whether there was a “pattern of criminal behaviour”, and the length of sentence. It is noted that decisions of courts, particularly sentencing remarks, may provide insight into the character of the applicant (section 10.5.2).
Mitigating factors may mean that, despite serious offending, a person may be found to be of good character. Factors to be taken into account include: the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences. Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful (section 10.5.2).
THE EVIDENCE OF THE APPLICANT
The Applicant gave sworn evidence. He recounted his flight to Indonesia and his subsequent re-settlement in Australia. In cross-examination, the court documents and the police report concerning his offence of common assault were shown to him. When asked whether he had thrown a cordless telephone in the direction of his former wife, he said “yes”. However, he denied hitting her on the face with his open hand, and he also denied pushing the side of her head into the lounge chair on which she was sitting.
He said that he and his wife had become reconciled and that he visits the children about once a week.
When asked in cross-examination whether he had been found guilty of the offence of common assault, he said that he did not believe that the court had found him guilty. He added that at that time his English was very poor.
In cross-examination he was asked why he had ticked the “No” box for question 31(a) on the citizenship application form. It will be recalled that question 31(a) asks applicants for citizenship whether they have been convicted of any offences. The Applicant explained that a friend read out the form to him and filled it in for him. He explained that he asked the friend to tick “No” to question 31(a) because he believed he had not been convicted of an offence.
FURTHER EVIDENCE
The Applicant’s former wife gave sworn evidence. She said that the Applicant visits her home on average once a week to see their two children. When asked in cross-examination about what had happened on the evening of 18 March 2010, she said that she did not want to speak about it. When asked whether the Applicant had thrown a cordless telephone in her direction she said “yes”. When asked whether the Applicant had struck her on her face with his open hand she said “no comment”. She was visibly upset when giving her evidence.
The Applicant’s wife gave sworn evidence. She said that the Applicant was a good husband. When the details of the Applicant’s common assault were put to her in cross-examination, she said that these details did not change the good opinion in which she held her husband.
Mr Alaa Al Fadheli gave sworn evidence. His statement of support was also before the Tribunal. Mr Al Fadheli said that he had met the Applicant in Indonesia in 2001 and had attended the Applicant’s wedding to his former wife. He has been in contact with the Applicant since the Applicant arrived in Australia in 2010. Mr Al Fadheli was taken aback by the incident of domestic violence as in his view it was out of character. He regards the Applicant as a person of good character.
Mr Ali Al-Saady gave sworn evidence and his statement of support was also before the Tribunal. He first met the Applicant in Indonesia in 2004 when Mr Al-Saady was working for the UNHCR. Mr Al-Saady works with the NGO, Settlement Services International, and he assists refugees settling in western Sydney. He was “astonished and upset” by the domestic violence incident. In his view, the Applicant was very stressed at that time. The Applicant now visits his children, and he regards the Applicant as a person of good character.
I have also examined the documents before the Tribunal, including court documents and the police report concerning the Applicant’s conviction for common assault which were put to the Applicant in cross-examination.
CONSIDERATION
It was argued on behalf of the Applicant that his conviction of a domestic violence offence was a minor matter, however, I regard domestic violence offences as serious offences (see the ACIs, section 10.5.2). I appreciate that the Applicant was very stressed on or about 18 March 2010, but this cannot excuse domestic violence.
The Applicant stated in his evidence that owing to his lack of English he did not know that he had been convicted of common assault at the Liverpool Local Court on 24 September 2010. From the court documents it appears that the Applicant made a plea of guilty at the hearing. After considering the evidence on this matter, I find that the Applicant knew he had been convicted of this offence. I further find that the Applicant has failed to show true remorse for his conduct. I also find that when instructing his friend to tick the “No” box to question 31(a) on the application for citizenship form, the Applicant knew this answer to be wrong. The Applicant has only been free of an obligation to the Court for the relatively short period of time of three years. Accordingly, I find that the Applicant is not a person of good character.
In my view, insufficient time has passed for me to be satisfied that the Applicant is reformed and of good character.
DECISION
The decision under review is affirmed.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ..................[sgd]...............................................
Associate
Dated 7 January 2015
Date of hearing 10 December 2014 Advocate for the Applicant Dr M Al Jabiri, International Migration Support Solicitors for the Respondent Mr M Bock, Clayton Utz
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Citizenship
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Good Character
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Domestic Violence
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Conviction
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Remorse
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