Ozturk and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 489

Ozturk and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 489 (13 July 2016)

Division	General Division
File Number	2015/6673
Re	Mustafa Ozturk
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	13 July 2016
Place	Sydney

The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 4 December 2015 to refuse Mr Ozturk's application for Australian citizenship is set aside.

The matter is remitted to the Minister for Immigration and Border Protection with a direction that as at the date of this decision Mr Ozturk is of good character within the meaning of subsection 21(2) of the Australian Citizenship Act 2007 (Cth).

............[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 - where applicant has previously resided unlawfully in Australia – where applicant has previous traffic offences - whether any mitigating factors or explanations outweigh the behaviour in question - decision set aside and remitted.

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2), 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

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Deputy President J W Constance

13 July 2016

INTRODUCTION

1. Mr Ozturk applied for Australian citizenship by conferral on 10 September 2015. A delegate of the Minister refused the application on the ground that he had not established that he was of good character on 4 December 2015, being the date the decision was made. Mr Ozturk has applied to the Tribunal for a review of the delegate’s decision.

2. For the reasons which follow the decision under review will be set aside and the matter will be remitted to the Minister to reconsider Mr Ozturk’s application with a direction that Mr Ozturk is of good character at the time of this decision.

   BACKGROUND

3. Mr Ozturk was born in Germany. He is a citizen of Turkey.

4. He first visited Australia in 2003 having obtained a tourist visa for three months. He complied with the terms of this visa and returned to Germany when the visa expired, accompanied by his partner and her two children. The following year the family decided to return to Australia planning to live here permanently.

5. With the assistance of his partner, Mr Ozturk spoke to an officer of the Australian Embassy in Germany and enquired as to the type of visa which would allow him to remain in Australia indefinitely. He was informed that he should apply for a second tourist visa and that once he and his partner married, he could apply for a spouse visa to remain in Australia. Relying on this advice Mr Ozturk applied for, and was granted, a tourist visa and the family returned to Australia.

6. Mr and Mrs Ozturk married in Australia in December 2004.

7. Shortly after the marriage Mrs Ozturk made enquiries on behalf of her husband in relation to an application for a spouse visa. She was informed that Mr Ozturk’s visa was subject to an 8503 condition which prevented his making a further valid application for a substantive visa while he remained in Australia. She informed Mr Ozturk of this.

8. On 26 February 2005 Mr Ozturk's tourist visa expired and he became an unlawful non-citizen. In circumstances to which I shall refer later in these reasons, Mr Ozturk remained in Australia and has lived here ever since. He continued to be an unlawful non-citizen until 21 August 2007, a period of just under two years and six months. On the latter date he was granted a bridging visa and in November 2010 he was granted a permanent visa.

   ISSUE FOR DETERMINATION

9. The issue before me is whether, at the time of my decision, Mr Ozturk is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

   LEGISLATION

10. Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth). Section 24 of the Act provides:

    (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).

11. Section 21(2) of the Act establishes the requirements for eligibility of 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.

12. This is the only subsection that is in issue in the present application. As the Tribunal stands in the shoes of the decision-maker these requirements of the law are applicable to the decision that I must make.

    Citizenship Policy

13. The Citizenship Policy has been adopted by the Minister to guide those making decisions under the Act. Chapter 11 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.

14. The Citizenship Policy reflects government policy and is not binding on the Tribunal. However the Tribunal should apply the Policy unless there are “cogent reasons to the contrary”[1]. I am satisfied in this matter that there are no reasons why I should not apply it.

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

15. Chapter 11 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.[2]

    [2] P.145.

16. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[3]

    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).

    [3] (1996) 68 FCR 422 at 431-432.

17. After referring to the judgement of the Court in Irving, Chapter 11 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.[4]

    [4] At p.145.

18. In considering the Citizenship Policy I have taken into account that it refers to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[5]  in which the Tribunal said:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a 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 by what a person does and in part by what a person is heard to say and seen to do.

    [5] [2011] AATA 304 at [120].

19. The Policy goes on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in his or her dealings with the Australian Government.[6] All of these authorities along with the Citizenship Policy make it clear that abiding by Australian laws is a very important factor that I need to consider.

    CONSIDERATION

    [6]  At p. 147.

    Characteristics of a person of good character

20. Chapter 11 provides a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of the Chapter. They include:

    respect and abide by the law in Australia and other countries

    ……

    not have evaded immigration control …… .

21. It is a matter of weighing up the various factors in the evidence before me. Under the heading of Weighing up the character decision, the Policy provides:

    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. Decision makers should place more weight on significant offences.

    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]

    I note that, once again there is a reference to the question of whether an applicant for citizenship has upheld and obeyed the laws of Australia.

    [7] PP. 149-150.

    The circumstances of Mr Ozturk's presence in Australia as an illegal non-citizen

22. Mr Ozturk said that when he learned that he could not be granted a spouse visa whilst he remained in Australia on a tourist visa, he and Mrs Ozturk sought the assistance of a migration agent, Mr Zafar, who assured them that he could arrange for the waiver of the 8503 condition and for Mr Ozturk to be issued with a bridging visa.  He told them also that it could take 12 months or more for a court hearing in respect of his applications and that he should wait until he was notified of a court date. Relying on this information Mr Ozturk did not leave Australia when his tourist visa expired on 26 February 2005.

23. On the basis of the evidence of Mr and Mrs Ozturk and a copy of a Statutory Declaration made by Mrs Ozturk on 16 February 2005[8], setting out the circumstances in relation to the visas issued to Mr Ozturk, I am satisfied that Mr Ozturk approached Mr Zafar prior to his visa expiring. The copy of the Statutory Declaration bears a certification by Abu Zafar dated 17 February 2005.

    [8] Exhibit R1 document FST2.

24. A copy of an email from the address [email protected][9] to Mr Ozturk corroborates Mr Ozturk’s evidence that he engaged Mr Zafar to act for him before his tourist visa expired. The email is dated 11 February 2005 and includes a tax invoice for “Application of 8503 Waiver”.

    [9] Exhibit R2.

25. On 29 March 2005 the Department wrote to Mr Ozturk concerning his request to waive condition 8503.[10] Mr Ozturk does not recall receiving this letter, but he does not deny that he received it. Mrs Ozturk gave evidence that she does recall the letter being received.  The letter advised Mr Ozturk that “…. your request has been denied and the condition remains in effect. …… I note that your current visa expired on 26 February 2005. You must now make arrangements to depart Australia.”

    [10] Exhibit R1 FST3.

26. There was a further email from the address [email protected] to Mr Ozturk sent on 6 April 2005.[11] This email requested that Mrs Ozturk provide further documents to Mr Zafar for the purpose of an MRT (Migration Review Tribunal) review. This was a curious request given that a decision not to waive an 8503 condition could not be reviewed by the Migration Review Tribunal.

    [11] Exhibit R2.

27. According to the evidence of Mr and Mrs Ozturk, they did not hear further from Mr Zafar for some time. Mr Ozturk attempted to contact him but was unsuccessful in doing so. Mr Zafar’s telephone was unanswered and the office which Mr Ozturk had previously attended was no longer occupied.

28. Sometime after receiving the letter of 29 March 2005, Mr Ozturk contacted a solicitor and sought advice as to his options for continuing to reside in Australia. He was advised that he should leave Australia for the required 14 days and travel to Turkey where he could apply for another tourist visa. By reason of the cost involved and the fact that Mrs Ozturk was pregnant with their first child, Mr Ozturk did not follow this advice.

29. The evidence varies as to the timing of the discussion with the solicitor. Mr Ozturk says that it occurred after they were unable to contact Mr Zafar which may have been more than 12 months after they initially spoke to him. Mrs Ozturk’s recollection is that she and Mr Ozturk spoke to the solicitor shortly after receiving the letter from the Department. Having heard both Mr and Mrs Ozturk give evidence I formed the view that Mrs Ozturk’s recollection of what occurred at this time is more reliable than that of Mr Ozturk. I am satisfied on the balance of probabilities that Mr Ozturk sought advice from the Solicitor in about April 2005.

30. I am satisfied further that Mr Ozturk took very little further action in relation to his residency status until August 2007. Both Mr and Mrs Ozturk made some enquiries as to a suitable person to assist them but took no further steps. I am satisfied that Mr Ozturk was aware that he was not entitled to remain in Australia and took no further action to remedy the situation in which he found himself. When giving evidence he said that “probably he did not take it seriously”.[12] However, I am satisfied that he did not attempt to evade officers of the Department during this time.

    [12] Transcript 04/07/2016.

31. In August 2007 Mr Ozturk received a message to call an officer of the Department. A file note held by the Department and dated 14 August 2007[13] reads:

    Note details:

    Mr Mustafa OEZTUERK returned my call:

    Mr Mustafa OEZTUERK returned my call. Informed Mr Mustafa Oeztuerk that he is currently unlawful in Australia, his visa has ceased on 26/02/2005 and needs to contact DIAC Compliance ASAP to discuss his visa status.

    Mr Mustafa Oeztuerk informed that he had lodged an 8503 waiver request beginning of 2005, may be in March or April 2005 as he do not remember exactly and the 8503 waiver was refused. The agent (referred by the client as Farshad Zafar - who had an office in Rockwood road i.e. the road between Lakemba and Bankstown) who helped him with the 8503 waiver request informed the client that he is still waiting for the hearing from the court and it will take some time for the hearing. The client later on tried to look for (search) the agent and was unable to locate the agent (Farshad Zafar).

    The client informed that he applied for visitor visa in Germany and his intention was to marry in Australia.

    Informed a/n that the current service standard for processing requests for waiver of Condition 8503 is two weeks.

    [13] Exhibit R1 FST4.

32. Following this telephone conversation Mr Ozturk applied for a bridging visa which was granted to him on 21 August 2007. From that time he has been a lawful resident in Australia.

    Mr Ozturk's record of traffic infringements

33. Mr Ozturk has the following record of traffic infringements in Australia:

    a.    10 June 2007- Exceed speed limit by not more than 15km/h while driving a motor vehicle (camera detected)

    b.    8 February 2008- Exceed speed limit by not more than 15km/h whilst driving a motor vehicle (camera detected) (school zone)

    c.    29 February 2011- Exceed speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected)

    d.    23 January 2012- Exceed speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected)

    e.    16 August 2012- Exceed speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected)

    f.   19 September 2012- Disobey left/ right turn/ no turns sign at intersection

    g.    5 December 2013- Exceed speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected)

    h.    24 February 2014-  Exceed speed limit by more than 10km/h but not more than 20km/h whilst driving a motor vehicle (camera detected)

    i.   29 May 2014- Driver use mobile phone when not permitted

    j.   26 August 2014- Exceed speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected)

    k.     1 September 2015- Exceed speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected) (school zone) [14]

    [14] Exhibit R1 ST2.

34. Mr Ozturk described his driving record as “not really major” and “not that serious”.[15] He said that since 2009 he has operated his own business and drives approximately 25-30,000 km each year.  In September 2015 he was advised that he was within one demerit point of again having his driver’s licence suspended. He has not received any further infringement notices since that time.

    [15] Transcript 04/07/2016.

    Weighing the various factors

35. Mr Ozturk's failure to obey Australian law by remaining in this country as an unlawful non-citizen is a serious matter. I am satisfied that he was aware of his unlawful status. Although he made a reasonable attempt to avoid this situation by contacting Mr Zafar, once that attempt failed he did nothing constructive until he was contacted by the Department over two years later.

36. The Policy repeatedly refers to the importance of the observance of Australia’s laws in assessing character. Unfortunately, Mr Ozturk has also displayed a tendency to ignore the laws relating to the use of Australia’s roads. His repeated infringements cover the period from June 2007 until September 2015. It appears that only the threat of his licence being suspended has caused him to modify his behaviour.

37. Failure to obey this country’s laws, and in particular its immigration laws, would usually indicate that a person is not of good character for the purposes of the Citizenship Act. However, there are a number of factors which outweigh Mr Ozturk's disregard of the law in this case.

38. It is now nine years since Mr Ozturk ceased to be an unlawful non-citizen. Once he was contacted by the Department, he was quickly granted a bridging visa. The 8503 condition was waived on the basis that “compelling and compassionate circumstances have developed over which [he] had no control and that resulted in a major change in [his] circumstances.[16] He was not deported. Since that time (apart from his traffic infringements) he has been a law-abiding resident. As soon as he was permitted to do so he obtained employment and in 2009 established his own business, which he continues to operate. Mr Ozturk has also shown himself to be a family man, helping to raise his wife’s two children of her former marriage and then his own daughter.

    [16] Exhibit R1 ST1.

39. Mr Ozturk argues that his traffic infringements are relatively minor. I agree that, viewed individually, most of them are. However, his repeated failure to obey the traffic laws shows a pattern of disregard for Australian law.

1. Weighing up all these factors, I am satisfied that, in view of the time during which Mr Ozturk has lawfully resided in Australia and his contribution to Australia as a family member and as a business operator, he is a person of good character.

   CONCLUSION

2. The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 4 December 2015 to refuse Mr Ozturk's application for Australian citizenship will be set aside.

3. The matter will be remitted to the Minister for Immigration and Border Protection with a direction that as at the date of this decision Mr Ozturk is of good character within the meaning of subsection 21(2) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 13 July 2016

Date of hearing	4 July 2016
Date final submissions received	4 July 2016
Advocate for the Applicant	Mr A Keshary; Lapen Migration Services & Consultancy
Solicitors for the Respondent	Ms P Blackadder; Sparke Helmore