Rafiq and Minister for Immigration and Citizenship
[2008] AATA 50
•17 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 50
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0172
GENERAL ADMINISTRATIVE DIVISION )
Re Yousif RAFIQ
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date17 January 2008
PlaceSydney
DecisionThe decision under review is affirmed.
..............[sgd]................................
Professor GD Walker
Deputy President
CATCHWORDS
CITIZENSHIP – application for Australian citizenship refused as applicant found to be not of good character – applicant has numerous criminal convictions spanning over an eleven year period – applicant failed to disclose almost all of his convictions on his application form – to conclude that the applicant is rehabilitated would be premature – statutory bars also deprive the Minister and the Tribunal of any power to grant citizenship in this case – decision under review affirmed.
…
RELEVANT ACT/S:
Australian Citizenship Act 1948 (Cth): ss 13, 52A
Australian Citizenship Instructions: Chapter 5.4
Migration Act 1958: s 501
…
CITATIONS
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Mlinar and Minister for Immigration and Multicultural and Indigenous Affairs (1997) 48 ALD 771
Irving v Minister for immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Twilley and Minister for immigration, Multicultural and Indigenous Affairs [2004] AATA 1213
…
REASONS FOR DECISION
17 January 2008
Professor GD Walker, Deputy President
Basic facts
1. The applicant Mr Yousif Rafiq applied for Australian citizenship on 26 September 2006 (T pp27-39).
2. In his application, he stated that he was born in Baghdad, Iraq on 16 January 1979. He had not answered a question seeking his present country of citizenship (T p28), but reported that both his parents were born in Iraq (T p29). At the hearing, he conceded that he is probably an Iraqi citizen but said he was not sure.
3. Between 1996 and 2007, he was convicted of numerous criminal offences and in 2005 – 2007, he served two periods in custody resulting from separate sentences of imprisonment for 12 months each.
4. Over the 11-year period of his criminal history, he was sentenced to terms of imprisonment on seven separate occasions, six of those terms being for 12 months or more of imprisonment. He was also fined for 17 offences, received nine bonds, was required to pay compensation on one occasion, and received two disqualifications from driving.
5. In answer to question 46 in the application form (T p33), he ticked the box stating that he had been convicted of offences in Australia, but declared only a speeding offence. He also indicated that he had been confined in a prison or psychiatric institution by a court order in connection with criminal proceedings and also that he had committed or been involved in the commission of war crimes or crimes against humanity (T 33).
6. On 2 January 2007, a delegate of the respondent, Mr Banjo Boonkong, refused Mr Rafiq’s application for citizenship on the ground that he does not meet the requirement that he be of good character within s 13(1)(f) of the Australian Citizenship Act 1948 (Cth) (the Act) (T pp3-4).
7. The applicant applied to this tribunal on 24 January 2007 for review of that decision (T p2). It may be noted that nine of his convictions were recorded after the date of the delegate’s decision and his application for review.
8. The applicant’s criminal history (Exhibit R2), of which he acknowledged the correctness at the hearing, includes common assault, breaking and entering, larceny, resisting an officer in the execution of duty, maliciously destroying or damaging property, bringing or introducing of syringe into a place of detention, taking and driving a conveyance without the consent of the driver, driving while license expired, goods in custody and possession of prohibited drugs.
9. At the hearing, the applicant appeared in person, while the respondent was represented by Mr Brendan O’Brien of DLA Phillips Fox. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant and his two witnesses gave oral evidence in person.
Applicable law
10. The tribunal has jurisdiction to review the decision of the delegate pursuant to s 52A(1)(a) of the Australian Citizenship Act 1948 (Cth) (the Act).
11. Section 13(1)(f) of the Act relevantly provides:
…
(1)subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfied the Minister that:
…
(f) the person is of good character
…
12. In determining whether an applicant is of good character for the purposes of s 13(1)(f) of the Act, decision-makers (including the tribunal) may be guided by the Australian Citizenship Instructions (ACI). Decision-makers will ordinarily apply policy such as the ACI unless the policy is unlawful or its application produces an unjust decision in the circumstances (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
13. The minister contends that the ACI are lawful in their application and that their application is not unjust in the circumstances of this case.
14. Chapter 5.4 of the ACI guides decision-makers in determining whether an applicant is of good character as required by s 13(1)(f) of the Act. In particular:
…
5.4.2The term ‘good character’ is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.
5.4.3If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character. An applicant’s behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.
…
Evidence at the hearing
15. In his oral evidence, the applicant said that his criminal history was due to a drug problem he had when he was growing up. When he was at school, friends had influenced him to believe that it would be “cool” to smoke marijuana and he progressed from that drug to heroin, which conflicted with and destroyed his Moslem upbringing.
16. Since completing his second prison term in October 2007, he had been undergoing counselling as part of merit program administered by Odyssey House, a church organisation. He is currently participating in a subutex program, similar to a methadone program, which has enabled him to defeat his heroin addiction. He obtains the subutex tablets through a clinic in Newtown.
17. He is currently on parole and is subject to conditions requiring him to abstain from drugs or any other unlawful activities. He has not used drugs for approximately a year.
18. For the past two weeks, he has been working in a company owned by the father of a friend, A & C Formwork, doing formwork and construction labouring. Although he has been working for the company only for a couple of weeks, he did work for them for a period two years ago.
19. He is not married but has a partner of seven years’ standing. He hopes that when he gets on his feet and saves some money, he will be able to marry her.
20. He believes that he has psychologically matured in recent times, whereas previously he was childish in his attitudes. He is “sick and tired of that life” and thinks that, at 28, he should move beyond it.
21. Asked if it might be too soon for a deciding authority to conclude that he was reformed and rehabilitated, he replied that it is “still a bit soon”, but it is a “work in progress”. As long as he stays on the right track he will be successful, and he is currently heading the right way.
22. He did not know why he had ticked the “Yes” box in answer to the question about being involved in war crimes or crimes against humanity or human rights, and thought it must have been a mistake. He acknowledged that he had been convicted of other offences in addition to the speeding charge that he had reported in his application (T p33).
23. As regards his medication, he said that it is up to the individual when he or she believes he or she is ready to cease taking subutex. He repeated that as regards drugs his rehabilitation is a work in progress.
24. Mrs Margaret Lenore Harrigan gave evidence by way of a written statement (Exhibit A1) and orally. She has known the applicant since his family were her neighbours in Kensington in the 1980s. She had observed that he displayed great social qualities evident in organising sporting events and that he generously contributed his time and energy to community activities.
25. In more recent years when she has visited the family at Chifley, she has noticed that he is quick to help around the home and undertake difficult tasks. She believes he is a caring and concerned person. He comes from a good family and is supported by two fine brothers. The whole family are exemplary Australian citizens.
26. Mrs Harrigan said she had a niece who had been in a position similar to that of the applicant. Through determination, hard work and the help of her family, she had rehabilitated herself, and Mrs Harrigan believes that given a chance the applicant will be equally successful.
27. In recent times she has seen the family about four times a year, although there was a period when she did not see the applicant.
28. In a written statement dated 16 June 2007 (Exhibit A2), Dr Samen, a consultant obstetrician and gynaecologist, stated that she had known the applicant since 1992 when she and her family first arrived in Australia. She had known him to be honest, caring and a responsible young man.
29. It was very unfortunate that he had been affected by a difficult drug problem. He has a very caring family, including an elder brother who is a mechanical engineer and another brother studying construction management. Both brothers support him in any way they can. His parents have enrolled him in rehabilitation in the past, but he relapsed a few times.
30. Dr Samen last saw the applicant a few months ago and had a deep conversation with him about his problem. She offered him the opportunity to attend Narcotics Anonymous and said she would arrange sponsors.
31. She is aware that he is currently on a subutex program and is also aware of his prison sentences. She last saw him about five weeks ago after his release and knows that he has been enrolled at Odyssey House. She is not aware if he has yet attended any Narcotics Anonymous meetings. Nevertheless, she is convinced that he has learned his lesson and that given a chance he will stay away from drugs and become a useful citizen. He comes from a very good family that has the means to help him financially with rehabilitation. She believes he is quite intelligent and that he will take advantage of the support his family and friends offer him. They will help him to avoid relapsing.
32. The applicant tendered a letter of support from Mr Murray Scott, of Kariong, New South Wales (Exhibit A3). Mr Scott speaks very highly of the applicant’s family and states that during the period he has known the applicant he had come to appreciate him for his scholastic ability, kindness and his urge to explore as he was growing up. He shares the democratic, egalitarian and tolerant beliefs of other Australians. “He is committed to living by the rule of law in Australia, upholding and obeying the law and respecting its rights and liberties”. Mr Scott believes he would make an excellent Australian citizen if given the opportunity to participate fully in the community.
Consideration
33. There are two character-related tests for applications under s 13 of the Act. The general good character requirement is imposed by s 13(1)(f), while s 13(11) erects a number of bars on the grant of citizenship in circumstances where a person may not be considered to be of good character.
34. In applying both tests, the tribunal will normally be guided by the Australian Citizenship Instructions (ACI). Although the ACI do not have the force of delegated legislation and are thus not strictly binding on the tribunal, they will normally be followed unless there is good reason for not doing so (Re Mlinar and Minister for Immigration and Multicultural and Indigenous Affairs (1997) 48 ALD 771 at para 21). The tribunal may also receive guidance from the interpretation of “good character” in cases under s 501 of the Migration Act 1958 (Cth) (Mlinar at para 20). Thus, in Irving v Minister for immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Davies J noted at 87-88:
…
It should also be observed that the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute: see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
…
35. Also relevant in this case are the remarks of Deputy President Wright in Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at para 13:
…
"Good character" within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community. …
…
36. In Mlinar also the respondent submitted that the standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it (at para 17). Deputy President Chappell appears to have accepted that submission.
37. In this case the applicant has been convicted of offences that the ACI treat as serious, including six offences that have incurred a prison sentence of 12 months and numerous others, including offences involving violence (ACI para 5.4.7).
38. The existence of numerous convictions recorded on many separate occasions over an 11-year period negates any possibility of treating any of the applicant’s offending behaviour as isolated occurrences. That being so, it is necessary to consider whether he has been rehabilitated (ACI para 5.4.11).
39. The fact that the applicant disclosed only one of his convictions in his application is an aggravating circumstance. The ACI treat the fact of deliberate concealment as an indicator of a continuing lack of good character (ACI para 5.4.8). At the hearing the applicant admitted that he had disclosed only one of his convictions, and a minor one at that, in his application form, and offered no explanation for that fact.
40. Nor are there any relevant extenuating circumstances (ACI para 5.4.12). Drug addiction is not such a circumstance, although the applicant's claims to have defeated it are relevant to the question of rehabilitation.
41. Character references may be taken into account, but if they do not refer to, acknowledge or deal with the offending behaviour, they merit little weight: Re Twilley and Minister for immigration, Multicultural and IndigenousAffairs [2004] AATA 1213 at para 27. The reference from Mr Scott in particular does not meet that criterion, claiming as it does that the applicant is “committed to living by the rule of law in Australia, upholding and obeying the law and respecting its rights and liberties”. The evidence of Dr Samen and Mrs Harrigan showed more awareness of his troubled past but dealt mainly with his drug addiction and his efforts to overcome it rather than his extensive record of offending behaviour, much of it serious.
42. They are, however, both emphatic about the applicant’s prospects for rehabilitation. They strongly believe that with the help of his upstanding family and continued counselling, he will be unlikely to relapse into drug taking or into the law breaking into which it has previously led him.
43. The applicant is in regular employment, but only for the last couple of weeks before the hearing, although he has previously worked for the same employer in the past. There is no evidence that he is involved in any constructive community activities.
44. The tribunal is required to evaluate the applicant’s character as at the date of the decision. While the applicant has taken some highly positive steps towards rehabilitation, it would be premature at this stage to conclude that he is rehabilitated. He concedes that his drug rehabilitation is a “work in progress” and that it might be “a bit soon” to conclude that he has finally broken with his criminal past. Dr Samen’s evidence is essentially to the same effect. He is still participating in the subutex program and has never been put to the test of whether he can remain free of drugs without pharmacological support. In the past his parents have arranged drug rehabilitation for him but he has relapsed.
45. I am therefore unable to conclude that the applicant is of good character within the meaning of s 13(1)(f) of the Act at the present date.
46. In any event, two statutory bars in s 13(11) deprive both the minister and the tribunal of any power to grant citizenship at the present time. At the time of the delegate’s decision on 2 January 2007, two years had not elapsed since the expiration of his then latest non-parole period on 25 August 2005. At the date of the tribunal’s decision, two years have not elapsed since his last release from prison in October 2007 (s 13(11)(c)(ii)).
47. Furthermore, the fact that he is still on parole and will be until August 2008, activates the automatic bar in s 13(11)(d).
48. Accordingly, the decision under review must be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................[sgd]..................................................
R. Wallace, AssociateDate/s of Hearing: 6 December 2007
Date of Decision: 17 January 2008
Solicitor for the Applicant: Unrepresented
Solicitor for the Respondent: Brendan O’Brien, DLA Phillips Fox
0
3
0