Rabbani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 1370

Rabbani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1370 (30 May 2022)

Division:GENERAL DIVISION

File Number(s):       2021/1863

Re: Abdullah Rabbani

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:30 May 2022  

Place:Sydney

The decision under review is affirmed.

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Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – where applicant was convicted for the offence of committing an act of indecency with or towards a person of the age of 16 years or above - whether the applicant is of good character for the purposes of conferral of Australian citizenship – relevant law and policy considered – relevant material considered – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)
Crimes Act 1900 (NSW)

CASES

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

30 May 2022

1. Mr Abdullah Rabbani, the applicant, was born in Pakistan. He was granted a Subclass 988 - Maritime Crew visa on 13 September 2012 and entered Australia on 14 September 2012. The applicant was granted a Subclass 866 - Protection visa on 5 January 2017.

2. On 22 February 2018, at the Newtown Local Court, the applicant was convicted for the offence of committing an act of indecency with or towards a person of the age of 16 years or above, pursuant to section 61N of the version of the Crimes Act 1900 (NSW) existing at the time.

3. On 11 December 2019, the applicant lodged an application for Australian Citizenship by conferral (Citizenship application) under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). In his citizenship application the applicant declared his offending.

4. The applicant’s Citizenship application was refused on 9 March 2021 on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act. This is the decision under review in these proceedings.

5. The issue for the Tribunal to determine in these proceedings is whether it is satisfied that the applicant is of good character in accordance with paragraph 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

7. Subsection 24(1) of that Act provides that 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. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

8. The Act relevantly provides, at paragraph 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.”

   DEFINITION OF “GOOD CHARACTER”

9. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).

10. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

11. As to the definition of good character, the CPI 15 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…

12. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated over a 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 being a manifestation of essential characteristics.

13. The CPI 15 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; not be involved in illegal drugs, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence).

14. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s time when he can demonstrate a longer period of positive contribution to the Australian community.

    (emphasis added)

15. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    SERIOUSNESS OF THE APPLICANT’S CRIMINAL CONDUCT

16. On 25 October 2017, the applicant committed an act of indecency with or towards a person of the age of 16 years or above, being an offence pursuant to section 61N of the version of the Crimes Act 1900 (NSW) existing at the time. The maximum penalty for this offence was 18 months’ imprisonment.

17. The disturbing circumstances of the offence are described in the NSW Police Facts Sheet which state that the applicant boarded a train towards Liverpool and masturbated in a motion towards the victim while sitting opposite her in the vestibule of the train. the applicant then sat directly next to the victim and exposed his penis after the victim stood up and told the applicant that she would be filming this incident. The applicant then covered his crotch area with his hands and his Esky bag and walked off the train. The victim was of 18 years of age at the time of the incident.

18. The applicant was convicted and sentenced to 400 hours of community service and fined $600.00.

19. The circumstances of the applicant's offending were serious as the offending was of a sexual nature; occurred in a public space and the victim was someone who was around 20 years his junior.  

20. For these reasons, I view the applicant's conduct as serious, and that this should weigh heavily against a finding that the applicant is a person of good character.

    MITIGATING FACTORS AND CONSIDERATION

21. For the following reasons, I am not positively satisfied that the applicant has sufficiently rehabilitated to demonstrate a pattern of enduring moral qualities associated with good character after his criminal offending.

22. A couple of days after his offending conduct, the applicant presented himself to the police station when requested and only after the victim posted a recording of the incident to Facebook. The applicant participated in an electronically recorded interview in which he denied all allegations. The Police Fact Sheet records that “the accused outright lied to police in the electronically recorded interview in an attempt to escape justice. In doing this, the accused has shown no remorse and has taken no responsibility for his actions”.

23. The applicant underwent an interview conducted by the Parramatta Community Corrections Office in 2018 for the purposes of a Pre-sentence Report. In the report dated 20 February 2018, the officer noted that, while the applicant eventually expressed remorse about his offending when he stated that "no-one in their right mind would do such a thing", the applicant had also initially denied any memory of the offences, which he attributed to “taking vitamins to assist with stress”. The applicant admitted to offending on further questioning, stating that “on boarding the train he noticed an “attractive” woman and that he may have misinterpreted her smiling at him, after which he committed the offences”. He claimed, “that the victim “smiling” at him had in some way prompted his offending and suggesting that the victim had done the wrong thing by posting the video online”. The Officer notes that the applicant appeared to present with a limited level of insight into the factors that led to his offending and was focused on the immediate consequences that his offending may have on his and his family's situation.

24. In a report by Catherine Sapula, forensic psychologist at Corrective Services NSW, dated 16 February 2018, Ms Sapula noted that the applicant maintains regular contact with his parents, siblings and wife, “however he has not disclosed his offence to any family members”.  She opined that the applicant “now accepted some responsibility for his offending behaviour”. However, noted that his understanding of the factors that contributed to his decision to offend remained limited. Ms Sapula noted that the applicant believed the victim demonstrated some interest in him, however she reported that this “does not adequately account for his decision to engage in masturbation before a stranger in a public location”. Ms Sapula recorded information obtained by Community Corrections which suggested that the applicant had “some difficulties with sexual dys-regulation, specifically pre-occupation and possibly using sex to cope”.  She advised that the applicant’s “dynamic risk factors are likely to include: lack of pro-social supports, social isolation/ loneliness, intimacy deficit (as a result of prolonged separation from his family), and sexual self-regulation”. Ms Sapula estimated that the applicant had an average risk of sexual recidivism, however the presence or absence of the dynamic risk factors may alter the overall risk level and his suitability for treatment. She opined that should the applicant be sentenced to a custodial sentence; he would require a two-year custodial sentence “to have sufficient time for assessment and treatment”.

25. Bulent Bill Ada, consultant psychologist, provided an independent psychological progress report dated 19 February 2018. He noted that the applicant “reported he still felt shocked and humiliated about the incident. He had difficulty describing the details of the event, stating it was too ‘embarrassing’ and that he felt ‘ashamed’”. He also reported “fear that he has sabotaged his application for a family visa. He feels ashamed of and apologetic his action”. He stated that the applicant had “expressed remorse for his actions and suffering feelings of guilt and shame following indecent act” but had “previously denied allegations due to the likely impact on his immigration status and application for family visa”. Mr Ada opined that given the results of the current mental health assessment, the applicant is diagnosed with Major Depressive Disorder and Exhibitionist Disorder which needs further assessment. Pending a non-custodial sentence, he recommended a 12-18 session course of psychological treatment supervised by a suitably qualified psychologist and/or psychiatrist with follow-up assessment within the next 9 to 12 months to ascertain any need for further treatment. He recommended a course of psychological treatment such as Cognitive Behavioural Therapy “to help manage any distorted thinking or maladaptive behaviours related to his mood dysregulation”.

26. In emails to the Department dated 2 and 15 February 2021, the applicant asked for forgiveness and advised, “Still no one knows about this incident my family, my close friends, relatives except me my lawyer and the police department , that incident kill me every day because it is inside in my body, i couldn't take it out to share someone my grief.”

27. In a statutory declaration declared on 11 February 2021, the applicant explained that on the day he committed the offence, he took extra medication to help him cope with work. He said he drank alcoholic drinks at lunch, which mixed with his depression medication and he “was very high”. He stated, he was very ashamed, embarrassed, and remorseful and that from that day he has not touched an alcoholic drink and has sought professional assistance from a psychologist and his doctor. He claimed the “therapies helped me a lot and now I am ok”.

28. At hearing, the applicant agreed with the facts as set out in the Police Fact Sheet. He stated that the “small incident” ruined his life and character and he felt “very bad”, “felt guilty inside”, and the “incident killed him every day”. He explained how his life was very hard due to his criminal record and that “after four years he still cannot get out from the situation”. In cross examination, the applicant agreed that he lied to Police initially about he offence but stated that he was afraid and did not accept the report made by the victim because he could not remember the event happening. He said he was “very high” and that when his medication was mixed with alcohol, “he can’t control his brain properly” and he has a “uncontrolled body”. The applicant said he could not share the details with his family and friends as it was “not acceptable”. He explained that he did not know why he committed the offence, but it was not because the victim smiled at him.  As to treatment, the applicant advised that despite the recommendation that he attend 12-14 sessions of treatment, he had attended only three sessions with a psychologist. He said this was because he had to “buy everything for his family and pay rent”.  

29. The applicant has demonstrated very little remorse or insight into his offending conduct. It is plain from the bulk of the evidence that the applicant’s shame and regret about his offending conduct is due to potential negative consequences for him and potential impacts on his family’s visa status.

30. The applicant has not provided any objective evidence of treatment he has received either by a psychologist or GP or of any rehabilitation programs he has completed to address his offending conduct.  Despite the applicant now being reunited with his family, who’s absence was considered a dynamic risk factor and major stressor for the applicant, there is no evidence that he has undergone further assessment. This is particularly relevant when considering his risk of reoffending and what treatment is recommended for the applicant in support of his rehabilitation.

31. The applicant has provided several character references in the form of letters and statutory declarations including:

    (a)Statutory declaration from Shahabuddin Ahmad dated 1 June 2021;

    (b)Statutory declaration from Shabaz Khan dated 1 June 2021;

    (c)Letter from Kishwar Kham, Pukhtoon Welfare Association dated 27 May 2021;

    (d)Letter from Abdul Ghaffar Khan, Pukhtoon Welfare Association dated 10 February 2021;

    (e)Letter from Mark Woodford dated 8 February 2021;

    (f)Letter from Vanessa Olla, Amtek Pty Ltd dated 19 July 2021;

    (g)Letter from Marin Lisica dated 18 July 2021; and

    (h)Letter from Shahi Zeba dated 19 July 2021.

32. Although the character references provide positive evidence in support of the applicant, including evidence regarding his character, work ethic, and role as a father, other than Mr Khan and Mr Ahmad who advised that they knew of the applicant’s criminal offending at hearing, none of the other references refer to the applicant's offence. I give these references very little weight in support of the application.

33. Mr Ahmad and Mr Khan explained at hearing that the applicant’s criminal offending was out of character. Their evidence has some weigh in support of the applicant’s application.

34. I also note that on 12 March 2019, the applicant had completed all the requirements of the community service work condition of his Community Corrections Order made on 22 February 2018.

35. Having regard to the nature of the applicant’s offending, his lack of insight and remorse and his lack of evidence regarding treatment and rehabilitation, I am not satisfied that despite the period since his offending, he has established a pattern of good behaviour.

    Decision

36. In considering all the relevant circumstances and weighing the available evidence before me, I am not persuaded to make a positive finding of good character for the applicant at this time. It follows that he does not satisfy paragraph 21(2)(h) of the Act.

37. The applicant can make a fresh application for Australian citizenship in the future.

38. The decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 30 May 2022

Date(s) of hearing:	28 September 2021
Solicitor for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Solicitor for the Respondent:	Mr K Kim, Clayton Utz