Polat and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 3743
•5 October 2018
Polat and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3743 (5 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0647
Re:Ali Polat
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:05 October 2018
Place:Perth
The decision under review is affirmed.
.....(Sgd)...........................................
Member C Edwardes
CATCHWORDS
CITIZENSHIP – whether applicant of good character – meaning of good character – criminal behaviour – serious offences – domestic violence – Australian values – applicant found not to be of good character at time that the Minister made decision – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(1) – s 21(2) – s21(2)(h) – s 24(1) – s 24(1A) - s 52(1)(b)
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Karatunov and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy, at 1 June 2016 – Chapter 11
REASONS FOR DECISION
Member C Edwardes
05 October 2018
INTRODUCTION
This is an application for the review of a decision of a delegate of the Respondent (the Minister). This decision was made on 25 January 2018 and refused the Applicant’s application for Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused on the basis that the Applicant did not satisfy the character requirements under s 21(2)(h) of the Citizenship Act at the time of the Minister’s decision. (Exhibit R1, T2)
BACKGROUND
The Applicant is a 39 year old citizen of the Republic of Turkey who arrived in Australia on 25 November 2006 as the holder of a Temporary Prospective Marriage subclass TO 300 visa. (Exhibit R1, T2, page 18)
He was granted a Permanent Spouse visa subclass BS 801 on 1 December 2009 and applied for conferral of Australian citizenship on 16 July 2015. (Exhibit R1, T2, page 18). This application was refused on the 25 January 2018 as Applicant failed the character test that was stipulated in section 21(2)(h) of the Citizenship Act.
The Minister stated:
Your Police Check Results Report indicates that you have been convicted of the following offence:
·29/01/2014 Perth Magistrates Court
Common Assault in Circumstances of Aggravation or Racial Aggravation;
(Suspended Imprisonment Order - 6 Months Concurrent, Suspended 12 Months from 29/01/2014 - Concurrent)
·29/01/2014 Perth Magistrates Court
Unlawfully Wounded in Circumstances of Aggravation; (Suspended Imprisonment Order - 8 Months Concurrent, Suspended 12 Months from 29/01/2014 - Concurrent)
Crimes of this nature are considered very serious in the context of Citizenship Policy. I give your criminal conviction, and the nature of your offence, considerable weight.
…
I note in your personal statement you confirmed that the above offences did occur. You go on to say -
"I have never repeated any kind of behaviour as such. In the letters which you will find attached, you will also find statements about my character, about the personal traits I have”. (original emphasis)
You have not provided any evidence that you have completed an Anger Management course. At no point in your personal statement do you express remorse or regret for your actions. I am therefore not satisfied that you appropriately understand the seriousness of your offences or have taken full responsibility for the incidents.
I give your personal statement little weight.
The Tribunal notes that the Applicant has provided various character references. The Tribunal gives little weight to these character references as the referees did not indicate awareness of the Applicant’s previous offences. The Tribunal notes the Minister’s findings:
You provided one character reference from the President (Dr Yesertener) of the Turkish Australian Culture House Inc [sic] in support of your application. The character reference vouches for your good character and indicates an awareness of your previous offences. Dr Yesertener states - "Although Ali gets along very well with his fellow friends and his kids as a family man, to my knowledge, he had been involved in a conflict/arguments with his wife involved [sic] with some anger management issues in 2013, however he learnt his lesson and now lives his life amongst his family, his kids and his community."(original emphasis.)
I give this statement little weight, due to the vague awareness of your previous convictions”.
Due to the seriousness of these offences, I am not satisfied that a sufficient amount of time has passed since your last convictions to justify the conclusion that you are presently a person 'of good character ' (Exhibit R1, T2, page 21).
On the 12 February 2018 the Applicant applied to the General Division of the Administrative Appeals Tribunal to review the decision of the Minister’s delegate (Exhibit R1, T2, pages 3-25).
JURISDICTION
The application for review is made in accordance with section 52(1)(b) of the Citizenship Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made under section 24 of the Citizenship Act.
LEGISLATION
Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Citizenship Act provides 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.
Section 24(1A) of the Citizenship Act provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under section 21(2), 21(3), 21(4), 21(5), 21(6), 21(7) or 21(8).
Section 21(2) of the Citizenship Act sets out the general eligibility criteria for a person to become an Australian citizen. Relevantly, section 21(2)(h) provides 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.
The term “good character” is not defined in the Citizenship Act. There is, however, guidance on the application of the “good character” requirement in the Australian Citizenship Policy (“the Policy”)[1]. The Tribunal will apply Departmental policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634).
[1] The Tribunal notes that the Policy came into force as of 1 June 2016. Further guidance is provided by the Australian Citizenship Instructions (ACIs), dated 1 July 2014, which detail operational instructions and supplement the policy guidance provided in the Policy.
The meaning of good character
Chapter 11 of the Policy provides guidance for assessing an Applicant under the “good character” test prescribed by sections 21(2)(h) of the Citizenship Act. Chapter 11 of the Policy cites Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, in which the Federal Court noted:
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.
(emphasis added)
Chapter 11 of the Policy further states that “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 the Australian society. (Exhibit R1, T7, page 61)
Chapter 11 of the Policy further states that the broad definition of “good character” 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. (Exhibit R1, T7, page 62)
Chapter 11 of the Policy further provides that an Applicant of good character would, among other things:
·respect and abide by the law in Australia and other countries
…
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example,
o… concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship applications
·… not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance) (Exhibit R1, T7, page 64)
The Policy also provides that in weighing up whether an Applicant is of good character, decision makers are required to apply community standards, not their own personal standards. Decision makers must also question whether any mitigating circumstances and/or explanations provided by the Applicant outweigh the Applicant’s behaviour in question. Decision makers are to consider factors including:
·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. (Exhibit R1, T7, page 67-68)
The Policy states that “[a] decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application”. (Exhibit R1, T7, page 66)
The Tribunal is guided by the Policy in how it should assess and assign weighting to referee reports. The Tribunal notes the following:
[Referee reports] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application. (Exhibit R1, T7, page 71)
When considering whether an Applicant who has had previous criminal convictions is a person of good character, Deputy President Wright in Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14] stated:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
ISSUE
The issue for determination by this Tribunal is whether the Applicant was, as at 25 January 2018, a good character for the purpose of satisfying s 21(2)(h) of the Citizenship Act.
EVIDENCE
The application for review was heard in Perth on 18 September 2018. The Applicant appeared in person with an interpreter. He was represented by a migration agent, Mr Goh. The Respondent was represented by Mr Burgess of Sparke Helmore, who also appeared in person.
The Tribunal received the following evidence:
(a)the Applicant’s Hearing Certificate (Exhibit A1);
(b)an Extract of Proceedings from the Magistrates Court of Western Australia, dated 29 January 2014 (Exhibit A2);
(c)the Applicant’s Notice of Conviction from the Magistrates Court of Western Australia, order dated 29 January 2014 (Exhibit A3);
(d)a letter of support from the Applicant’s wife, Neslihan Polat, dated 19 April 2018 (1 page). Letter from the Applicant, undated (1 Page) (Exhibit A4);
(e)Statement of Material Facts of Western Australia Police dated 9 July 2013, and a request for a court transcript of Magistrates Court of Western Australia, lodged 8 May 2018 (Exhibit A5);
(f)supporting character reference letter from Applicant’s wife, dated 14 February 2018 (Exhibit A6);
(g)supporting letter from Applicant’s brother-in-law, dated 13 February 2018 (Exhibit A7);
(h)a letter of support from Tsung-Yu Lin, dated 13 February 2018 (Exhibit A8);
(i)a letter of support from Charmaine Scott, dated 13 February 2018 (Exhibit A9);
(j)a letter of support from Haci M Ipeza, undated (Exhibit A10);
(k)a letter of support from Ali Mesegulu, undated (Exhibit A11);
(l)a letter of support from Glenda Maxwell-McGinn, dated 13 February 2018 (Exhibit A12);
(m)a letter of support from Lucy Bench, dated 13 February 2018 (Exhibit A13);
(n)a letter of support from employee of Applicant, dated 8 February 2018 (Exhibit A14);
(o)the Applicant’s National Police Certificate, dated 1 March 2018 (Exhibit A15);
(p)the T Documents (T1-T7 pp1-72) (Exhibit R1);
(q)the Supplementary T Documents (ST1-ST4 pp1-31) (Exhibit R2);
(r)Summons documents provided by Western Australia Police which includes: Applicant’s history of Court’ Statement of Material Facts, Victim Statement, police notebook entries, photographs and CAD Report (Exhibit R3);
(s)the Respondent’s Statement of Facts Issues and Contentions (SOFIC), dated 29 June 2018 (Exhibit R4); and
(t)the Respondent’s Hearing Certificate (Exhibit R5).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Respondent’s commentary concerning the character of the Applicant is contained in its SOFIC (Exhibit R4, page 2 and page 5) :
4 On 29 January 2014 the applicant was convicted of “common assault in circumstances of aggravation or racial aggravation” and “unlawful wounding in circumstances of aggravation” in the Magistrates Court of Western Australia” (the incident).
…
20 The applicant’s offences weigh against his being of good character.
21 The applicant’s convictions for “common assault in circumstances of aggravation or racial aggravation” and “unlawful wounding in circumstances of aggravation” are extremely serious and this is reflected by the comments of Magistrate Hogan in finding that a term of imprisonment was warranted for each of the applicant’s convictions.
The Statement of Material Facts (A5, page 2) provided by the Western Australian Police states:
The Complainant and Accused are a married couple with two small children. This is their first reported Domestic Violence incident.
On Tuesday 9th July 2013, at about 5.00pm, the accused was at [his home address].
The accused was present at the address with the complainant, and their two small children, aged 3 and 4 years of age. A [sic] argument has erupted between the couple, relating to jealousy issues and allegations of infidelity being made by the accused.
The argument turned physical, the accused grabbed his wife by the head, pulling it down and elbowed her in the back. He punched her to the left side of her face, before going to the kitchen and obtaining a kitchen knife. The accused returned from the kitchen, grabbing the complainant, pulling her into the lounge room where he pushed her onto a chair.
The complainant screamed in fear, so the accused struck her again to the face, telling her to shut up and not to move. He held the tip of the kitchen knife against the complainant's right thigh, pushing down, causing the tip of the knife to pierce her clothing and her skin, causing a small puncture wound approximately 1cm deep.
The accused then allowed his wife to use the bathroom, which she entered and locked the door behind her before screaming for help out the bathroom window. A member of the public has heard these screams and contacted Police. The accused has forced open the bathroom door, pulling his wife from the room, and threw her on their bed. The complainant's father attended the address and restrained the accused, and the complainant fled the house and contacted Police...
The Applicant was charged and convicted of two offences – “common assault in circumstances of aggravation or racial aggravation” and “unlawfully wounded in circumstances of aggravation” on the 29 January 2014. For the first offence he received imprisonment 6 months (concurrent) suspended for 12 months, and for the second offence he received imprisonment 8 months (concurrent) suspended for 12 months, (Exhibit A5).
The Tribunal notes the remarks of the sentencing Judge regarding the seriousness of the Applicant’s offending:
“…The law treats an assault upon a person's partner very seriously. This was a situation that, following an argument, led to you pursuing your wife for a period of time. You elbowed her in the back. You twice hit her face, and you also pulled her out of the bathroom and threw her on the bed. They are the facts that lead to the charge of common assault.
But things got worse in that during this behaviour, you went to the kitchen and got a knife. Obviously this frightened your wife very much, and not only did you get the knife, but you used it against her so that she suffered a small puncture wound to her thigh. Fortunately, her father appeared, and the assault came to an end. Apart from the wound to her thigh, she also had swelling to her face. Not only would that have been painful for her, but also she has to wear the embarrassment of the fact that her husband has attacked her in such a way to call [sic] injury to her face.
This sort of behaviour is behaviour that warrants imprisonment (Exhibit A2).
Evidence at the Hearing
Mr Goh did not make an opening statement.
The Respondent opened by relying on its SOFIC (Exhibit R4).
Applicant’s evidence
Mr Goh did not ask the Applicant any questions.
Mr Burgess cross examined the Applicant who gave evidence that:
·his driver’s licence was suspended in 2014 for traveling at 122km in a 100km speed zone; and
·he pleaded guilty to the two 2014 convictions of “common assault in circumstances of aggravation or racial aggravation” and “unlawfully wounded in circumstances of aggravation.” These are outlined in exhibit R3.
Ms Polat, the Applicant’s wife, was called by the Applicant as a witness. Mr Goh did not ask Ms Polat any questions.
Mr Burgess cross examined Ms Polat who gave evidence (through the interpreter) that:
·She and the Applicant have been married for 11 years.
·The Applicant and Ms Polat married in Turkey when Ms Polat was 18 years of age.
·The Applicant and Ms Polat have 3 children together.
·Ms Polat recalled giving a statement to the police in relation to the offences that took place in 2013. The statement was given shortly after the incident occurred.
·Ms Polat agreed that she signed each of the pages of her statement (contained in R3 – “Summons documents provided by Western Australia Police which includes: Applicant’s history of Court’ Statement of Material Facts, Victim Statement, police notebook entries, photographs and CAD Report”).
·Ms Polat said that at the time of the incident, both she and the Applicant were “under stress.”
·The Applicant had accused her of “cheating” on him with a relative in Turkey and that she had refused to answer the Applicant’s accusation as she felt aggrieved by the line of questioning.
·Ms Polat said that she never wanted to go through a similar experience again.
·Ms Polat stated that her memory was a bit hazy given that the incident was 5 years ago.
·The incident arose out of an argument, it was violent and the Applicant tried to stop her leaving from their home.
·the “knife incident” only occurred because Ms Polat moved around as the Applicant held her.
During the course of being cross examined, Ms Polat asked the Tribunal if she could cease using the interpreter and continue her evidence in English. Her evidence was:
·the knife incident did occur, as did the incident in the second living room. This is consistent with Ms Polat’s witness statement that she made at the time that the offences occured.
·She claimed that some aspects of the Statement of Material Facts were different to what she remembered had occurred.
The Tribunal was not satisfied that the Applicant had been properly briefed by his representative about the content of the Statement of Material Facts. Therefore, the Tribunal asked Mr Goh to read each paragraph of the Statement of Material Facts out to the Applicant. This was interpreted accordingly.
In response to hearing the Statement of Material Facts, the Applicant made the following submissions to the Tribunal explaining his feelings and remorse for the incident :
·The Applicant said that the incident was a “big mistake”.
·The Applicant said that he does not want to lose his family. He loves his wife and children.
·The Applicant is a hard working businessman.
·After the incident (involving his wife), the Applicant had a restraining order put against him for 3 months.
·The incident at the time resulted from the the Applicant’s anger issues The Applicant suggested that he called his wife’s family to the scene of the incident as he did not plan to “do something more serious.”
·The Applicant suspected his wife of cheating on him and he had phone records (not admitted as evidence) which indicated that Ms Polat had constant contact with a particular number.
·The Applicant stated what he did was wrong and that his actions were only conducted to scare his wife. The Applicant acknowledged however, that the incident had escalated.
·The Applicant has not undertaken any anger management courses.
Mr Goh closed the Applicant’s case by stating that the Applicant was a strong family man, who had been law abiding since the offences took place. Mr Goh said that such an incident would never happen again and that the Applicant should be given another chance.
Mr Burgess closed the Respondent’s case by stating that the offences committed by the Applicant were very serious and there was insufficient compelling evidence at this point in time to indicate that the Applicant satisfied the requirements of section 21(2)(h) of the Citizenship Act.
Mr Burgess outlined that the “stress” of the parties, as referred to by Ms Polat in her evidence, could not be used as a mitigating circumstance.
Mr Burgess submitted that the references provided in support of the Applicant were of little value and they lacked acknowledgement of the Applicant’s serious offences. Mr Burgess further submitted that the referees were the Applicant’s friends and family members, as such, they were most likely biased.
Mr Burgess submitted there was always the potential for witness and reference coercion in cases involving domestic violence.
CONSIDERATIONS
In determining whether the Applicant was of good character at the time that the Minister made his decision, the Tribunal must take into account a number of considerations. These are outlined below.
Was the Applicant of good character at the time of his application and at the time of the Minister making the decision?
The Respondent made contentions in its SOFIC (Exhibit R4) regarding the seriousness of the Applicant’s offences, which it asserts weighs “heavily” against the Applicant’s case. Most notably:
21 The applicant’s convictions for “common assault in circumstances of aggravation or racial aggravation” and “unlawful wounding in circumstances of aggravation” are extremely serious and this is reflected by the comments of Magistrate Hogan in finding that a term of imprisonment was warranted for each of the applicant’s convictions
22 SM Sosso (as he then was) recently considered the seriousness of domestic violence offences in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 where he stated that:
Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting... There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character…
23 … SM Tavoularis recently made similar findings regarding the seriousness of such offending in Karatunov and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 132 where he noted that:
The Commonwealth government takes a very serious stance on domestic violence. Numerous and costly measures are currently being taken to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness. I find this material a persuasive statement of the government’s view on domestic violence…
The Tribunal notes that the only written submission from the Applicant before the Tribunal is his statutory declaration, dated 2 April 2016. This includes a number of character references (Exhibit R2, ST4, page 24). The Applicant’s statutory declaration stated:
…I have never repeated any kind of behaviour as such…
The Tribunal notes a number of references attesting to the character of the Applicant, including one from his wife:
…He is very good person from heart [sic], cheerful, helpful’ [sic] responsible father, and loved by his social community. I am very concerned about Ali not being granted citizenship for his future rights because of only one offence/crime/violence that his involved in the records show Ali has not been involved in any other crime and I can assure you that he will not commit a crime most importantly family violence...” (Exhibit A6).
The Tribunal also notes the comments of Deputy President Kendall, as his Honour then was, in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (XFKR) at [45]:
… in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
The Tribunal is mindful, that to attain citizenship, one must satisfy the character test as the citizenship document is an important part of the process of being accepted into the “Australian family.” The Tribunal notes that Australian citizenship brings both tangible and intangible benefits.
The Tribunal found the Applicant to be a truthful witness who seemed genuinely remorseful for his offence. The Tribunal does not doubt that the Applicant is a hard working member of the community, who is committed to his wife and children.
The Tribunal however, has broader considerations that it must take into account when assessing such an application.
The Tribunal notes that the Applicant received imprisonment sentences (suspended) for both of his offences and this reflects the seriousness of his actions.
It is the Tribunal’s view that domestic violence does not reflect the values of Australian society and it is considered unacceptable behaviour by the wider Australian community.
The Tribunal notes from statements and the transcript provided that the Applicant’s acts of violence and aggression may well have resulted in more serious consequences had it not been for the intervention of the victim’s father. The Tribunal notes that it is to the Applicant’s credit that he contacted the victim’s parents for assistance.
The Tribunal views domestic violence as a very serious crime and notes that the Applicant was sentenced for his offences in 2014, only 4 years ago.
It is the Tribunal’s view that this is not sufficient time to evaluate if the Applicant could be a valuable member of the Australian society in the future. At this point in time, the Tribunal is not satisfied that the Applicant understands what is required to be a law-abiding citizen in Australia.
That is not to say that if the Applicant continues being a hard working member of the Australian community, and maintains commitment to his family, that a similar application made some time in the future would not be successful.
For these reasons the Tribunal agrees with the views of the Minister, that the Applicant did not satisfy the character test pursuant to section 21(2)(h) of the Citizenship Act at the time of the Minister’s decision.
Was the Applicant of good character at the time of his application: character references
The Tribunal has considered the references provided on behalf of the Applicant.
In summary, the references describe the Applicant as:
·a very caring and understanding person;
·a very kind and friendly person;
·as having worked at a kebab store for 8 years;
·well behaved and friendly person in the Turkish community;
·very helpful in the Turkish community.
The Tribunal is mindful of the weight attached to these submissions and is mindful of the bias that might potentially be attached to character references.
The Tribunal notes evidence given by the Applicant’s wife at the hearing, where she stated that the acts of violence against her were mitigated by a “stressful” family situation. Ms Polat stated that at that time of the Applicant’s offence, the Applicant was very stressed as his older sister had recently passed away.
While the Tribunal understands that this situation may have been very stressful for the Applicant, it must however agree with the Respondent that stress is not a mitigating factor for the purpose of the offences committed by the Applicant.
Having carefully considered all the evidence before it, the Tribunal supports the Minister’s decision that the Applicant did not satisfy section 21(2)(h) of the Citizenship Act at the time of the Minister’s decision on the application.
CONCLUSION
The Tribunal is not convinced that the Applicant appreciates the seriousness of his offences.
It is the Tribunal’s view that the Applicant may have a genuine desire for Australian citizenship, but Australian citizenship is more than a mere piece of paper, it is about a person embodying and reflecting the values of Australian society in everyday life; a person abiding by and upholding Australia’s laws. It is the Tribunal’s view that Australian values involve embracing and practising principles of gender equality.
The Tribunal is of the view that more time needs to pass before a proper assessment can be made in determining whether the Applicant may be considered as satisfying the character requirements in the Citizenship Act.
Having considered all the evidence before it, the Tribunal is not satisfied that at this point in time, that the Applicant is of good character for the purposes of section 21(2)(h) of the Citizenship Act.
DECISION
For the reasons stated above the Tribunal affirms the decision under review.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
....(Sgd)...................................
Associate
Dated: 05 October 2018
Date(s) of hearing: 18/09/2018 Advocate for the Applicant: Don Goh, National Australia Migration Services Solicitors for the Respondent: Ashely Burgess, Sparke Helmore
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