Navab Esfahani and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 4221

Navab Esfahani and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4221 (13 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0782

Re:Seyed Morteza Navab Esfahani

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:13 November 2018

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member K Raif

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – application refused – whether the applicant is of good character – assault occasioning actual bodily harm – stalking – common assault – providing false or misleading information – failure to disclose convictions – length of time since applicant committed offences – whether applicant shows genuine remorse – decision affirmed

LEGISLATION

Australian Citizenship Act 1948 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

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

Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Sharma v MIBP [2015] AATA 608

SECONDARY MATERIALS

Australian Citizenship Instructions

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005 (John Cobb)

REASONS FOR DECISION

Senior Member Raif

13 November 2018

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 January 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).

2. The applicant was born in Iran in December 1970. He entered Australia as an Irregular Maritime Arrival in March 2011 and was granted a permanent visa in April 2012.

3. The applicant applied for Australian citizenship by conferral on 14 June 2016. On 17 January 2018 a decision was made to refuse that application because the delegate was not satisfied that the applicant was of good character as required by s. 21(2) of the Citizenship Act. The applicant seeks review of the delegate’s decision.

4. The issue before the Tribunal is whether the applicant meets the eligibility requirements for the conferral of Australian citizenship, in particular, whether the applicant is of good character at the time of the decision, as required by s. 21(2)(h) of the Act. For the reasons that follow, the Tribunal has concluded that the applicant does not meet these requirements and that the decision under review should be affirmed.

   RELEVANT LAW

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of that Act provides that if a person makes an application under s. 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 52 permits a person to make an application to the Tribunal for review of the decision under s. 24 to refuse to approve the person becoming an Australian citizen.

6. The Act relevantly provides, at subsection 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Minister's decision on the application”.

7. The term “good character” is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy (“the Policy”) and the Australian Citizenship Instructions (“the ACIs”). The Tribunal is not bound to strictly apply the Citizenship Policy but such policy should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

8. With respect to the definition of “good character”, the Policy cites the decision 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 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.

9. The Policy states that the phrase “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, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour as being a manifestation of their essential characteristics.

10. In Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815, the Tribunal articulated its approach to interpreting the language of the good character test, as it then appeared in s. 13(1)(f) of the Australian Citizenship Act 1948 (Cth) (at [18]):

    The wording of the test is important. It does not require that the Minister form an adverse view of the applicant's character. The Minister must be positively persuaded that the applicant is of good character.

11. The Policy sets out a 'non-exhaustive' list of characteristics of good character. Relevantly, a person of good character would, inter alia: respect and abide by the law in Australia and not cause harm to others through their conduct. The Policy states that the decision-maker is to weigh up certain factors, applying community standards. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant has; the amount of time that has lapsed since offending; whether the applicant has demonstrated that he can uphold and obey the law; whether he has accepted responsibility and shown remorse for his conduct; and any extenuating circumstances relating to the offences.

    Is the applicant a person of good character?

12. The applicant’s criminal history is set out in the primary decision record. It indicates that the applicant has been convicted of the following offences between May and August 2015:

    Assault occasioning actual bodily harm                    bond s. 9 – 2 years

    Stalk – intimidate intend fear physical etc                 bond s. 9 – 2 years

    Common Assault (no conviction recorded)               bond s 10 – 12 months

13. The Tribunal has been provided with an extract from the sentencing remarks of Magistrate Swain in relation to the first two charges, the assault and stalking/intimidation convictions. The Magistrate’s remarks show that the applicant pleaded guilty to the first two charges in relation to the conduct that occurred in March 2015. The circumstances of the offences were that the applicant believed that another person living at the same premises “stole” his girlfriend and there was an argument in which the applicant picked up a television speaker and threw it at the victim. He also threatened to kill the victim during an argument. There was no evidence of any other offending before the court. Magistrate Swain formed the view that both matters fall under the mid-range seriousness and that, given the circumstances of the offending, a conviction was warranted. Further, a Domestic Violence Order was issued against the applicant for a period of two years.

14. In relation to the third offence of common assault occurring on 2 May 2015, the applicant told the Tribunal that his then partner visited him at his home and he did not want her to go into the house, so he threw her things out. The applicant denied throwing things at his girlfriend. The applicant said that because neighbours observed their argument, they called the police. The applicant denied the information described in the police records and said that his girlfriend did not want to proceed with the charges. The applicant entered the plea of guilty and was found guilty with no conviction recorded. The applicant entered a good behaviour bond for 12 months.

15. In his application for review to this Tribunal, the applicant states that he is remorseful about his past conduct and that he has taken steps to stabilise his life by entering into a genuine relationship and engaging in employment. The applicant submits that he is of good character. The applicant provided with his citizenship application a number of documents concerning his circumstances, including evidence of his residential arrangements, employment, and other materials. The applicant provided a number of character references to the delegate and the Tribunal and these include character references from the applicant’s family in Iran, as well as friends, colleagues and professional associates in Australia. There is a statement from the applicant’s partner. The Tribunal accepts that those who provided character references believe the applicant to be of good character.

16. The applicant admits in his submission to the Tribunal of 30 June 2018 that he had been convicted of offences. The applicant states that he has attended an anger management course with the Catholic Diocese of Wollongong in 2018. The applicant states that he has moved forward with his life and has a partner with whom he lives. He further states that the couple has started looking at IVF. There is, however, no evidence before the Tribunal that the couple did anything more than obtain a cost estimate for an IVF program and undertake preliminary testing. The applicant’s oral evidence to the Tribunal is that they intend to undergo an IVF process overseas in mid-2019. The applicant refers to his employment commitments. The applicant refers to his convictions and states that the good behaviour bond has expired and that considerable time passed since the offences were committed. The applicant states that his living arrangements, circle of friends, and dedication to his relationship had a significant impact on his outlook on life and his ability to handle confronting situations. The applicant states that in the past he made wrong behavioural decisions but the past events had “matured him” and he understands that his past behaviour was unacceptable. The applicant states that he wants to have a peaceful life with his new partner and child, if the IVF program is successful. The applicant notes that his partner trusts him and he has been living with her and her niece and there have been no behavioural problems. The applicant states that some of the past offending was due to his use of alcohol and that he no longer drinks.

17. The Minister argues that the Tribunal cannot be satisfied that the applicant is of good character. The Minister argues that the nature and seriousness of the offences weigh heavily against his character. The applicant was convicted of assault occasioning actual bodily harm and of common assault. The Minister notes that domestic violence is a serious offence and is fundamentally inconsistent with the standards of behaviour expected by the Australian community: Sharma v MIBP [2015] AATA 608 at [38]. The Minister notes that the applicant did not declare the convictions in his citizenship application and also failed to disclose the fact that he was on a good behaviour bond. The Minister also refers to the applicant’s multiple driving offences which, when viewed cumulatively, should be given material weight against the applicant’s character. The Minister submits that the applicant’s offences cannot be said to be an aberration but show a pattern of disregard for the law and for the rights of others, as well as for the expectation to be truthful. The Minister submits that character references should be given little weight as many of these make no reference to the convictions or to the circumstances of the offending. The Minister submits that the applicant’s evidence shows limited insight into his conduct, including the criminal offences and the provision of untruthful information to the Department. The Minister also submits that insufficient time has passed for the applicant to demonstrate a pattern of good character.

18. The Tribunal has considered the applicant’s circumstances, including the nature of the offences, the time that has passed since the offending conduct and the applicant’s conduct since the convictions and at present.

19. The Tribunal accepts that the applicant has been gainfully employed and is prepared to accept that the applicant is in a stable relationship. There is a statement before the Tribunal from the applicant’s current partner and evidence showing that they have approached an IVF clinic. The applicant’s evidence to the Tribunal is that his partner has had a positive effect on him and he has not had any problems with the law recently. The applicant states that his past conduct was affected by alcohol and the bad relationship with his previous partner but he no longer drinks. The Tribunal accepts that the applicant has formed friendships and participates in social functions. The Tribunal accepts that the applicant has had no criminal convictions after those mentioned above. The Tribunal acknowledges that some time has passed since these convictions, although in the Tribunal’s view, such time is relatively short.

20. The applicant’s oral evidence to the Tribunal is that his previous partner had “destroyed his life” but his present relationship has had a positive effect on him. The applicant states that he has been employed and paying taxes and has undergone an anger management program which has helped him manage his behaviour. The applicant states that he has not had any problems with the law since the convictions.

21. The Tribunal has had regard to the psychological reports from Mr Vahdani dated 27 May 2016 and 2 September 2016. These indicate that the applicant has presented with symptoms of severe depression and anxiety due to the separation from his wife and child and has been on antidepressant medication. The report appears to have been prepared in support of the request to expedite the applicant’s application for the conferral of Australian citizenship. The Tribunal acknowledges that evidence and the fact that the applicant has been receiving treatment.

22. The applicant’s evidence to the Tribunal is that he completed an anger management program in 2018. The program consisted of three sessions and the applicant claims it helped him. The Tribunal acknowledges that evidence.

23. The Tribunal has considered the applicant’s statutory declaration of 23 June 2017 which he presented in support of his citizenship application and adopted in oral evidence to the Tribunal. The applicant describes the incident that led to the conviction and states that while he called the police, the others gave testimony against him and the police decided he was at fault and he was charged. The applicant states that the Judge suggested what happened was not a major incident and common in shared accommodation and the case was dismissed. The Tribunal considers that account problematic. Firstly, the case against the applicant was not dismissed but the applicant was found guilty and a conviction was recorded. The applicant appears to deliberately minimise the seriousness of the incident. Secondly, while Magistrate Swain did find that the offences fell below mid-range of seriousness, she nevertheless found that a conviction was warranted. Yet, the applicant has no appreciation of the seriousness of his own conduct and he appears to be dismissive of his actions. The Tribunal is also mindful that this declaration does not relate to the third offence of common assault, despite the finding of guilt. This also suggests the applicant’s indifference about his offending.

24. In his oral evidence to the Tribunal, when the offences were referred to, the applicant’s response was “this is not true”. The applicant stated that the others started the fight and then colluded against him. The applicant also said they did not have a fight but there was an altercation. In oral evidence, the applicant denied the evidence that formed the basis of his convictions, stating that the others colluded against him. The transcript of the sentencing proceedings, however, indicates that the plea of guilty was entered after negotiation in relation to the facts. In relation to the assault, the applicant denied having thrown things at his girlfriend or pulling her hair. The applicant’s present denial of the facts indicates that he seeks to minimise the gravity of his conduct. The applicant told the Tribunal that because he was not incarcerated, he did not think the offending was serious. The Tribunal is not satisfied the applicant fully appreciates the seriousness of his conduct and that he is genuinely remorseful about his conduct.

25. Information before the Tribunal further indicates that the applicant committed several driving offences between 2012 and 2016. These include exceeding speed limits, driving through a red light, using a mobile phone when not permitted, driving across dividing lines, and parking on or near a crossing. Although the applicant claims many of these occurred when he first started driving in Australia, this is not the case. The applicant obtained his license in 2012 and the driving offences continued until September 2017. Some of these offences are quite recent. The applicant’s oral evidence to the Tribunal is that due to the nature of his work, he spends a lot of time on the road and such offences happen. He appears to be quite dismissive about this conduct. The Tribunal acknowledges that these may not be significant offences. However, the repetitive nature of such conduct represents, in the Tribunal’s view, the applicant’s disregard for the Australian laws and his unwillingness or inability to conform to the rules and values of the Australian society.

26. The Tribunal acknowledges the applicant’s expression of remorse. However, the Tribunal has formed the view that the applicant does not fully recognise the seriousness of his conduct and that he does not genuinely admit to wrong-doing. The Tribunal is not convinced that the applicant’s expression of remorse is genuine.

27. The Tribunal notes that in his application for citizenship, the applicant failed to disclose his convictions in response to the question whether he had been convicted of, or found guilty of, any offences including traffic offences. The applicant also failed to disclose that he had been on the good behaviour bond. In his submission to the delegate dated 15 July 2017, the applicant claims that he was unclear whether the offences were reportable offences because the bond was very low. The applicant further states that the assault conviction caused him embarrassment. In oral evidence to the Tribunal, the applicant stated that he did not understand the form and also thought the convictions did not count because he was not incarcerated. The Tribunal finds the applicant’s submission unconvincing. Having been charged and convicted and having participated in the criminal process, the applicant would have been well aware of his convictions. The sentencing remarks show that his criminal representative did explain the nature of the penalty to him. The applicant also signed the good behaviour bond. The Tribunal does not accept that the applicant did not appreciate the significance of the offences or did not believe these were reportable, particularly given the detailed reference in the relevant question on the form to all kinds of convictions and records. Neither does the applicant’s indication that he was embarrassed by the incident exonerate his failure to mention the convictions. As for the applicant’s claim that he did not understand the form or that it was not translated to him by the person assisting, the Tribunal is of the view that if that was the case, the applicant had the opportunity and the responsibility to seek help from someone he could communicate with and who could explain the questions to him. That would ensure that he was not misleading in his application.

1. The Tribunal is of the view that the applicant’s failure to disclose the convictions and the good behaviour bond in his citizenship application was deliberate and, in the Tribunal’s view, it represents the applicant’s ongoing attempt to deceive. It contradicts his evidence that he has reformed, feels remorseful about his past conduct, and that he is a person of good character.

2. Further, in July 2017 the applicant’s migration agent provided a letter to the Department in which she refers to the applicant being married and his wife being overseas. That letter states that the applicant intends to reapply to bring his wife to Australia. The psychological report from Mr Vahdani, which is also addressed to the Department, refers to the applicant being affected by his separation from his wife and son. The report states that the applicant wanted his application for citizenship expedited as he wanted to sponsor his wife and child. However, the applicant told the Tribunal in oral evidence that he divorced his wife in Iran before travelling to Australia. He also told the Tribunal that his relationship with his current partner started by mid-2014. If that is the case, the Tribunal finds that the information the applicant supplied to the Department, in the form of two psychological reports and the covering letter of 15 July 2017, contained information that was false or misleading. The applicant explained to the Tribunal that his ex-wife told him he would have to sponsor her as well if he wanted to bring his son to Australia. The applicant appears to be suggesting that he was willing to sponsor his wife for a Partner visa, even though they were no longer in a spousal relationship and their relationship was not to the exclusion of all others. The applicant appears to admit that he intended to engage in immigration fraud in order to ensure that his son could live in Australia. The applicant made that submission to the Department as recently as in July 2017. In the Tribunal’s view, this contradicts the applicant’s evidence that he has reformed in recent years ever since starting his present relationship. The applicant’s intention to provide false information in support of a Partner visa application shows the applicant’s disregard for the law and his unwillingness to obey the Australian laws. The Tribunal is not satisfied the applicant is able to distinguish right from wrong.

3. Overall, the Tribunal places weight on the applicant’s past conduct, his failure to truthfully answer questions in the citizenship application, his apparent failure to appreciate the seriousness of his past conduct, and the applicant’s willingness to engage in immigration fraud. The Tribunal is not satisfied that the applicant has demonstrated that he can uphold and obey the law. Despite the applicant’s assurances that his behaviour has now changed, the Tribunal is not satisfied that the applicant has accepted responsibility and shown genuine remorse for his conduct. The Tribunal is not satisfied that a sufficient amount of time has elapsed since offending. The Tribunal places weight on the fact that the applicant’s misconduct continued as recently as his present citizenship application made in 2016 with representations being made in support of that application in July 2017. The Tribunal is not satisfied that the applicant can distinguish right from wrong and conform to the rules and values of Australian society.

4. Having regard to the entirety of the applicant’s circumstances, the Tribunal is not satisfied the applicant is a person of good character. The Tribunal is not satisfied the applicant meets s. 21(2)(h) of the Citizenship Act. He is not entitled to be conferred Australian citizenship. This finding does not preclude the applicant from making another application in the future.

   CONCLUSION

5. Having found that the applicant does not meet the eligibility requirements for conferral of Australian citizenship, the Tribunal affirms the decision under review.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

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

Associate

Dated: 13 November 2018

Date(s) of hearing:	6 November 2018
Advocate for the Applicant:	AATC Immigration Services
Solicitors for the Respondent:	Sparke Helmore Lawyers