Mosavi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 2545
•20 June 2022
Mosavi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2545 (20 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/0402
Re:Mirza Hossin Mosavi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:20 June 2022
Place:Melbourne
The Tribunal affirms the decision under review.
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Dr Damien Cremean, Senior Member
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship – good character – whether Tribunal is satisfied of Applicant’s good character – s 21 Australian Citizenship Act 2007 (Cth) – Citizenship Procedural Instructions – charges for unlawful assault, contravention of a family violence intervention order, and failure to answer bail – Tribunal not satisfied that Applicant is of good character – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
SECONDARY MATERIALS
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Citizenship Procedural Instructions (17 April 2019)
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
20 June 2022
INTRODUCTION
The Applicant, Mr Mosavi, applies to review the decision of a delegate of the Respondent made on 8 January 2021 under s 24(1) of the Australian Citizenship Act 2007 (Cth) (‘Act’) to refuse his application for Australian citizenship by conferral.
The basis of the decision is that the delegate was not satisfied that the Applicant was of good character at the time of the decision.
In that regard, the delegate expressed reliance upon charges of contravening a family violence order, unlawful assault and failure to answer bail, heard at the Dandenong Magistrates’ Court on 9 March 2018.
Those charges were adjourned upon the Applicant (at the time, the defendant) entering into an undertaking to be of good behaviour. Otherwise, no further details are known.
On 5 October 2018 the charges were dismissed by the Court, which was satisfied that the Applicant had complied with the undertaking.
In these circumstances, the Applicant argues there is no basis for a finding that he is not of good character. Accordingly, the Applicant contends that his application for Australian citizenship under the Act should be granted and the decision under review set aside.
The Respondent argues to the contrary and maintains that the decision under review should be affirmed.
LEGISLATION
Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. Section 24(1A) of the Act requires that ‘[t]he 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).’
Relevantly, s 21(2)(h) requires that the Minister is satisfied that the person applying to become an Australian citizen ‘is of good character at the time of the Minister’s decision on the application.’
HEARING
The hearing was conducted on 6 October 2021 and resumed on 17 December 2021 to enable the Applicant’s wife to give evidence.
The Applicant was represented by Mr Amani of Amani Lawyers — who at one point assisted in some interpretation — and the Respondent was represented by Mr Booth of Clayton Utz.
The Applicant gave evidence on affirmation via an interpreter.
No evidence was given by, or on behalf of, the Respondent.
APPLICANT’S CASE
The Applicant gave evidence confirming the contents of his Statement of Evidence dated 17 June 2021.
In his statement, the Applicant says he is aged 76 (and shortly was to turn 77), and that he came to Australia from Iran on a Partner Visa (sponsored by his “former” wife) on 20 July 2016. He says his nationality is Afghani.
He continues in his statement, that he has four children living in Australia and lives with two housemates, having separated from his “former” wife about three years before.
He notes further that there were ‘some matters’ involving his “former” wife, which led to an appearance at the Dandenong Magistrates’ Court on 9 March 2018. The Applicant mentions a family violence order made against him in relation to his “former” wife on 23 March 2017, which expired on 22 March 2018. The Applicant says that after the family violence order had expired, he separated from his wife.
The Applicant says he considers that he has put the matter ‘behind [himself]’, having complied with an undertaking given to the Court, as a result of which his matter was discharged.
He says he is ‘a very kind, gentle, and elderly person’, who is ‘of good character and no risk to anybody in the community.’
He says he has no other previous findings of guilt or convictions and that he has ‘a good general reputation’ in his Islamic community.
He adds that he made a donation of $500.00 to the general community at the time of the bushfires in Victoria in 2020.
No evidence was given to me by the Applicant’s “former” wife.
That, as will be clear, is of some importance.
RESPONDENT’S CASE
The case for the Respondent is that the Applicant cannot be said to be of good character as required by the Act, ‘having regard to his charges for unlawful assault, contravention of a family violence order, and failure to answer bail’.
The Respondent refers to and relies upon the Citizenship Procedural Instructions (‘CPI’), which are said to contain ‘relevant policy guidance on the question of good character’. The Respondent submits that I should have regard to and apply the CPI unless there is a cogent reason not to, as held in Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
The Respondent refers to paragraph 4.1 of CPI 15, which refers to ‘good character’ as being something which ‘refers to the enduring moral qualities of a person’. It is noted in paragraph 4.4 of CPI 15 that, among other things, a person of good character would:
· respect and abide by the law in Australia; and
· not be violent … and not cause harm to others through their conduct.
The Respondent made reference to other provisions of the CPI, including paragraphs 4.7 and 4.11 of CPI 15.
Paragraph 4.11 of CPI 15 provides that, when assessing whether an applicant is of good character or not, the decision maker should, as a general proposition, characterise the nature of any offence or behaviour. This includes considering, among other things, whether:
· the offence is serious or minor;
· harm was done to others;
· it was a one off incident; and
· there were extenuating circumstances.
The Respondent refers to Victoria Police records which indicate that the Applicant was charged with contravening the family violence order following an incident at the Applicant’s home on 21 March 2017. Police were called to a domestic incident about how the victim (the Applicant’s wife at the time) did not want the Applicant living with her. During the argument, the Applicant became angry and aggressive and picked up a knife from the kitchen sink. While standing approximately two metres away, the Applicant said to his “former” wife: “I am going to kill you”. The police records indicate that the victim “expressed she was frightened for her life”.
The Respondent then continues that after this incident, a family violence order was made on 23 March 2017 by the Dandenong Magistrates’ Court. The Applicant, however, contravened this order on 22 April 2017 — only a month later — by attending the victim’s home. When questioned by the victim as to why he was there, the Applicant responded, “I can visit whenever I like.”
Further, other police records show that on 27 November 2017, the Applicant had a verbal altercation with the victim while at the Dandenong Hospital when both happened to be visiting their daughter.
Thereafter, the Respondent refers to and relies upon the Dandenong Magistrates’ Court proceedings in March 2018 and refers me to a number of authorities, including Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608. In that case, Deputy President Constance, at [37], described domestic violence as ‘conduct [that] is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.’
CONSIDERATION
I note that it was only within a year or less after he arrived in Australia that the Applicant brought himself to the attention of police. That was on 21 March 2017, as a result of a domestic incident involving his “former” wife. That incident led to court proceedings two days later, where a family violence order was made against the Applicant.
Police records indicate that the Applicant became violent, armed himself with an edged weapon and threatened to kill his “former” wife and put her in fear of her life.
The family violence order, though, was contravened by the Applicant only a month later — on 22 April 2017 — when he entered his “former” wife’s home.
This was followed by an incident between the Applicant and his “former” wife on 27 November 2017 — this time at the Dandenong Hospital, which is a public hospital — when they were visiting their ill daughter.
Then, on 9 March 2018, as I have noted, the Applicant faced the Dandenong Magistrates’ Court on charges of contravening a family violence final intervention order, unlawful assault, and failure to answer bail.
This is a significant criminal history within a short period for someone who has only recently arrived in Australia.
And despite the family violence intervention order having now expired, there is also within the list of criminal activities I have mentioned — failure to answer bail.
That, without proper explanation being given, indicates a certain attitude to orders of the court, as do the contraventions of family violence orders. I note as well the Applicant’s reported attitude at his “former” wife’s premises on 22 April 2017 — “I can visit whenever I like.”
These incidents show that the Applicant lacks proper respect and regard to lawful rules of Australian society imposed by courts.
The incident on 21 March 2017 is of a most serious kind, with a threat to kill and an action in picking up a knife accompanying it.
For someone in Australia for such a short time, I consider this account of events makes it very clear that the Applicant is a long way off being of ‘good character’ under the Act, considering the CPI.
However, upon the intimation that the Applicant and his “former” wife had resumed living together and matters were settled between them, I gave the Applicant an opportunity to enable me to hear evidence from his wife in that regard.
Accordingly, the matter was adjourned to enable this to happen.
But at the adjourned hearing on 17 December 2021, the Applicant’s “former” wife, for whatever reason, was not called, was not able to be called or did not want to be called to give evidence.
The adjournment was a mission destined to fail as it turned out.
I consider I am justified in such circumstances in drawing an adverse inference that if the Applicant’s “former” wife was called — or was able to be called — any evidence she could give would be adverse to the Applicant.
I therefore reject the notion sought to be advanced that matters between the Applicant and his “former” wife have resolved and that the scenario between them is not as serious as it seems to be.
I acknowledge the Applicant’s gift to charity and his close ties to his Islamic community, but I do not go so far as to say he is of ‘good character’ as required under the Act.
His short time in Australia has been characterised by violence shown to a close family member, by disobedience of court orders and wilful contraventions of them.
There is no reasonable basis for me to find the Applicant is of ‘good character’.
Accordingly, I find no basis to set aside the decision under review.
DECISION
The decision under review therefore is affirmed.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
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Associate
Dated: 20 June 2022
Dates of hearing: 6 October and 17 December 2021 Advocate for the Applicant:
Solicitors for the Applicant:
B. Amani
Amani Lawyers
Advocate for the Respondent: A. Booth Solicitors for the Respondent: Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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