Rahman and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 2008

Rahman and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2008 (12 July 2023)

Division:GENERAL DIVISION

File Number(s):      2022/2342

Re:Azizul Rahman

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:12 July 2023

Place:Sydney

The correct or preferable decision is to set aside the reviewable decision of 14 March 2022, and in substitution it is decided that the Applicant is of good character for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth). 

...............................[SGD].........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – whether the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is satisfied – relevant law and policy considered – Applicant’s background and criminal history considered – character references considered – decision under review set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth) section 21

CASES

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

12 July 2023

BACKGROUND

1. I note the Respondent’s Statement of Facts, Issues and Contentions contain a helpful factual summary of the background of this matter, much of which is replicated below.

2. The Applicant is a stateless Rohingya person born in Myanmar in 1988. He arrived in Australia in June 2012 as an irregular maritime arrival. He did not hold a visa at the time.

3. The Applicant was granted a Protection (subclass 866) visa in July 2013, and currently holds a Resident Return (subclass 155) visa granted in 2018.

4. On 25 July 2017, the Applicant applied for Australian citizenship by conferral in the ‘General Eligibility’ pathway. This application was refused in October 2019.

5. On 22 May 2020, the Applicant applied for Australian citizenship by conferral in ‘General Eligibility’ pathway. The Applicant, in his application, disclosed that he had been convicted of an offence in Australia.

6. The Applicant included:

   (a)a copy of an Apprehended Domestic Violence Order;

   (b)a National Police Certificate dated 2018 which indicated that the Applicant was given a 6 month prison sentence in the Liverpool Local Court in October 2014;

   (c)a release certificate dated March 2015.

7. On 11 February 2022, the Department obtained a Results Report from the Australian Criminal Intelligence Commission, which revealed that:

   (a)In October 2014, the Applicant appeared before the Liverpool Local Court, and was given a 16 month prison sentence for the offence of ‘Reckless Wounding (DV)’;

   (b)In February 2015, the Applicant appeared before the Parramatta District Court. His sentence was reduced to 6 months.

8. On 22 February 2022, the Applicant was invited to comment on adverse information obtained by the Department.

9. On 25 February 2022, the Applicant responded to this invitation to comment through his solicitor.

10. On 14 March 2022, a delegate of the Minister refused the Applicant’s application for Australian citizenship by conferral, on the basis that the delegate was not satisfied that the Applicant was of ‘good character’ for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

    LEGISLATIVE FRAMEWORK

11. The relevant legislation and policy is outlined below.

12. Section 21(2)(h) of the Act states:

    (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.

13. The character requirement is satisfied if an applicant ‘is of good character at the time of the Minister’s decision on the application’. The Citizenship Procedural Instruction 15 (CPI15) provides guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, should apply departmental policy unless there are cogent reasons not to do so (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [640] per Brennan J).

14. CPI15 states that a decision-maker may 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 process.

15. Relevantly, CPI15 provides that a person of good character would:

    ·respect and abide by the law in Australia and other countries;

    ·not practise deception or fraud in their dealings with the Australian Government, or organisations, for example – concealing criminal convictions; and

    ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct.

16. CPI15 also provides a framework by which decision makers are able to ‘weigh up’ a character decision. Decision makers are required to consider:

    ·whether a person of good character would have behaved the way the applicant did;

    ·what evidence is available to demonstrate that the Applicant has upheld and obeyed the law;

    ·whether the Applicant has behaved in accordance with Australia’s community standards; and

    ·whether the Applicant shares Australia’s democratic beliefs and respects its rights and liberties.

17. In so doing, the decision maker should look holistically at the applicant’s behaviour over a lasting or enduring period of time.

    EVIDENCE OF THE APPLICANT

18. The Applicant affirmed his statement of May 2023. The Applicant gave evidence that his background was Rohingyan, from Myanmar, and that he arrived in Australia as a refugee from June 2012.  

19. The Applicant currently holds a Resident Return (subclass 155) visa, granted in October 2018.

20. Following his arrival in Australia, the Applicant was placed in immigration detention for some time and following his release from immigration detention lived in Liverpool with 3 housemates.

21. The Applicant has a wife and family who live in Bangladesh. He supports his family from Australia and has visited them when possible.

22. The Applicant is currently employed and has worked for the same employer since 2015. The Applicant has also saved and purchased a house in Toowoomba, where he plans to live with his wife and family once they are able to come to Australia.

23. The Applicant has been receiving treatment from a psychologist and is taking medication to assist him with sleeping and the anxiety he suffers as a result of his separation from his wife and family. The Applicant said he worried about his wife and family all the time.

24. In September 2014 the Applicant was involved in an altercation with O, one of his housemates, which escalated into violence. The Applicant gave evidence that the fight had been caused by O bringing his girlfriend to the house against the Applicant’s wishes.

25. The Applicant said that he did not have a knife at the time, which was contrary to what was recorded in the police facts sheet. The Applicant said, however, that he accepted that everything was his fault.

26. When asked how it was that the victim had been stabbed, the Applicant gave a number of explanations including that the victim have fallen and cut himself.

27. When asked why the victim had accused the Applicant of stabbing him, the Applicant said the victim would have said what suited him at the time.

28. The Applicant accepted that he had entered a plea of guilty at the hearing at the Liverpool Local Court. He had received a sentence of 16 months imprisonment which was appealed on the basis that the penalty was too severe.

29. The Applicant said that he accepted that his offending was serious but said that he did not have an interpreter or legal advice at the time of the hearing.

30. The Applicant said that he was not calling his victim a liar, but that he did not know how he had received stab wounds.

31. The Applicant said that he did not deny his offending behaviour, and that he acknowledged his mistake in getting into a fight with the victim. He said that he had apologised to the victim and that they were friends again. He had last seen O in the post office queue at Lakemba some 3 years ago, and he said that he also saw him when he came into the butchers shop where the Applicant works. He also said he sometimes greets him if he sees them at their mosque. The Applicant had asked O to give him a character reference but O did not return his calls.

32. The Applicant had completed the ENGAGE course on domestic violence on 1 February 2020. He denied that he had completed the course in order to demonstrate to the Department of Immigration that he was of ‘good character’ for the purpose of his citizenship application.

33. The Applicant said that he had been seeing Dr Al Shamali since 2020, and that he had been diagnosed with depression and anxiety, primarily caused by worry about his wife and children.

34. He was very concerned about the effect of his conviction on his ability to become an Australian citizen, in particular because he needed to be a citizen in order to bring his wife and children to Australia.

35. The Applicant was questioned about his character references. In particular the references from Dr Al Shamali and Dr Saeed were in almost identical terms. However, the Applicant said that they were completed independently, and that he saw each of them write their reference.

36. In relation to other references which were identical the Applicant said that each wrote ‘what they thought’, and that he knew one of the people from his time in Myanmar.

    EVIDENCE OF THE APPLICANT’S WIFE

37. The Applicant’s wife currently lives in Bangladesh and is a citizen of that country. She has never visited Australia.

38. The Applicant’s offending had taken place while she lived in Bangladesh but she had been told about the offending by the Applicant.

39. She said that the knew that the Applicant and the victim had been living together and that they had got into a fight. She agreed that the victim’s wounds had been inflicted with a knife.

    EVIDENCE MR S

40. Mr S gave evidence that he was from Myanmar and that he knew the Applicant from Myanmar.

41. He had shared a house with the Applicant from 2015 after the incident with O. He said he had never had any problems with the Applicant.

42. Mr S said that he was aware of the Applicant’s conviction and prison sentence, but prior to the incident he did not live in Sydney.

43. He said that he believed that the incident was out of character for the Applicant.

44. When cross examined the witness said that he had not written his witness statement as he was unable to read and write, and that a lawyer had written it for him. He said that he told the lawyer that the Applicant was a good person. He said that he was not aware that his reference was in identical terms to others and did not know about it. He had been to the lawyer with Mr M, with whom he had also previously shared accommodation.

45. He believed that the victim of the Applicant’s offending had been accidentally wounded in an argument, but he was not sure how it had happened.

    DECISION

46. The only issue to be determined in this case is whether the tribunal can be satisfied that the Applicant is a good character for the purposes of section 21(2)(h) of the Act.

47. “Good character” is not defined in the act, but there is some guidance in the case law. The Federal Court in the case of Boy19 v Minister for Immigration and Border Protection [2019] FCA 574, the court considering the question of character, stated as follows:

    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. (emphasis added) The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed or precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgement to be made by reference to undefined factual matters confined only to the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ). Third, and as a corollary of the second point, the expression requires a judgement as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

48. The Tribunal, in considering the question of good character, is guided by part 4 of the Citizenship Policy 115, which states that the Tribunal should consider information provided by the Applicant about their family life, being in a stable home environment, being responsibly employed, and paying tax, together with any community work being undertaken. It is a decision to be taken as part of an overall assessment which would include a person’s offending, but also including an assessment of all the positive aspects of their life. The Tribunal must then weigh all of the information in order to reach an ‘affirmative belief’ that the Applicant is a person of good character.

49. On its face, this case should have been a simple one. The Applicant was convicted of a serious offence some 10 years ago, he served a relatively lengthy prison sentence, and since his release has not been guilty of any further offending. In fact, all of the evidence points to his having been a hard-working and law-abiding member of the community. He has supported his wife and children, one of whom has a disability, and who are living in Bangladesh. He is clearly devoted to his wife and children whom he has visited in Bangladesh from time to time.

50. In his evidence before the Tribunal, the Applicant accepted responsibility for his offending, and expressed his remorse, which I believe to be genuine.

51. The difficulty is the conflicting evidence, both oral and written, in relation to the wounds suffered the victim. The Applicant’s inability to accept that a knife was used seems to contradict the Applicant’s acceptance of responsibility for his offending, and indicates desire to mislead those around him, and the authorities.

52. If the Applicant had accepted that he had used a knife, this case should not have been unduly complex. The Applicant had been found guilty of reckless wounding by the Liverpool Local Court in May 2015, and initially sentenced to 16 months imprisonment, which was later reduced by the Parramatta District Court to 6 months imprisonment, commencing in September 2014 and concluding in March 2015. The Tribunal cannot go behind the findings of the criminal courts, including the finding that a knife was used.

53. The offence is clearly a serious one and resulted in injury to the victim. I accept the Applicant’s evidence as to the circumstances of the offence, and I also accept his evidence that he takes responsibility for the crime committed and is extremely remorseful of his actions.

54. I note that the offence was committed against the Applicant’s housemate at the time, and therefore can properly be considered as domestic violence. However, it would appear that the victim was to some extent responsible for the dispute, which arose because of his being determined to take his girlfriend to the house he shared with the Applicant, although he knew the Applicant objected.

55. It is relevant that the Applicant came to Australia as a refugee. He spent time in immigration detention and was separated from his wife and family in Bangladesh. He has suffered trauma, both is the result of circumstances in Myanmar and on the journey to Australia. This has impacted his mental health.

56. The Applicant has been permanently employed since he arrived in Australia and is still with the same employer. He has been able to pay a deposit on a house in Toowoomba to which he would like to relocate with his family and was also able to secure a mortgage in respect of the property. Thus, it is clear that the Applicant has made a contribution to Australia through his work as a butcher and has made a commitment to long-term housing for himself and his family. The Applicant suffered a work injury in 2020 for which he required hospital treatment but has continued to work in his current occupation.

57. The Applicant has not been guilty of any offence since his release from prison in 2015.

58. I note that the court issued an Apprehended Violence Order against the Applicant which lasted for two years. There was no breach of that order.

59. The Applicant has received treatment for his mental health issues and he has also completed the ENGAGE program in 2020.

60. The Applicant produced a number of character references before the Tribunal and evidence was given on his behalf by his wife and former housemate. The Applicant was questioned at length about the similarity between the references of Dr Al Shamali and Dr Saeed, which he was unable to explain. He did, however, tell the Tribunal that each doctor had independently and personally written the report.

61. In relation to the references of Mr S and Mr M, it was explained by Mr S that their references had been prepared by a lawyer. This was necessary because he was unable to read or write. He did say, however, that he had told the lawyer what he should say. I accept Mr S’ evidence, and it would certainly not be unusual, especially where a witness cannot read or write, for statements to be prepared by a third party, and although perhaps it might be said to indicate a lack of care on the part of those preparing the references, the similarity of two separate references does not necessarily detract from the sincerity of the character witness.

62. Accordingly, I do not accept the argument on behalf of the Respondent that I should not give weight to the various character references. I do, however, give lower weight to the references, given that on their face they seem to demonstrate a lack of real thought or insight. I note also that the witnesses were not in direct contact with the Applicant at the time the offences were committed.

63. As noted above, the complicating factor in this case is the Applicant’s apparent inability to accept that he was guilty of using a knife in the attack on his victim, and to seek to explain the victim’s injury as somehow either having been self-inflicted or due to accident. For example, at the hearing, the Applicant said:

    We were running and went out to the ground, there were long grass and bushes there, so he actually fell I think, and because we were running on the road there was a lot of glass and things on the road.

64. He also does not appear to have told his friends that the incident involved him using a knife. His wife, in her evidence accepted that a knife had been used, although there was no evidence as to why she was of this view, and in particular, no evidence as to whether the Applicant had given her this information. All of the witnesses were consistent in describing what happened as somehow an accident. It was quite clear that the Applicant had not disclosed all of the circumstances of his offending, and on one view had sought to minimise his behaviour. This sits rather oddly with the Applicant’s clear acceptance of responsibility for the incident, his acceptance of his sentence, and what I accept are genuine expressions of remorse. It is of some relevance that the Applicant said that at the time he was convicted, he was not provided with legal advice, nor the services of a translator.

1. If it were not for the ambiguity around the Applicant’s acceptance, or non-acceptance, that he used a knife to stab his victim, it would, in my view, be highly likely that the Tribunal would find that the timelapse between the Applicant’s offending and now is sufficient for the Tribunal to come to the view that the Applicant is of good character for the purposes of section 21(2)(h) of the Act.

2. The Applicant’s failure to accept all of the circumstances of his offending make the decision much more problematic. Essentially, it weighs against the finding of good character that an Applicant does not accept the factual findings of the criminal courts for his conviction.

3. In the current case the Applicant accepts responsibility for the altercation which occurred and led to his conviction and accepts the sentence imposed upon him. He has consistently refused to accept that he used a knife to wound the victim. He also appears to have trivialised the offending when disclosing it to his wife and friends. It does not appear to have been explained to him that the Tribunal cannot go behind the findings of the criminal courts.  There is no reason why it should seek to do so in this case, even if such a course were permissible.

4. There may be cultural or other reasons why the Applicant has not been frank with his wife and his friends, he may simply feel a sense of shame. The evidence also suggests that he may feel that he did not get the opportunity to fully explain his side of the story to the Local Court. What the Applicant said:

   I plead guilty because of our fighting the Australian Government has to spend a lot of time and effort. Also because of that incident he was injured. During the incident, when I was required to provide evidence no interpreter was provided, I felt there was a lot of miscommunication.

5. It may be that the Applicant’s past trauma led him to disassociate from the realities of his offending. It is unfortunate however, that no evidence was adduced in this regard. In fact, there was no attempt at all, to explain why the Applicant continued to assert that he did not use a knife, even though that was against his best interests in presenting his case to the Tribunal.

6. The Tribunal is left in a very unsatisfactory position, where on the one hand, the Applicant has led a blameless life since his offending, has a good work history and has shown his commitment to building a life in Australia for himself and his family. On the other hand, the Applicant appears to downplay the seriousness of his conduct, whilst at the same time, accepting his sentence and expressing remorse for his behaviour. It is unlikely that this dilemma will change with the further effluxion of time. In fact, it would appear odd if the Applicant were to significantly change their story on a future occasion unless there was a very clear explanation.

7. Taking into account all of the evidence, including the Applicant’s unblemished record since leaving prison, his work history, his ongoing stable commitment to his family and his efforts to secure their future in Australia, together with the Applicant’s genuine remorse and acceptance of responsibility for the altercation which occurred, I am of the view that the weight of the evidence is in favour of the Tribunal reaching an affirmative view that the Applicant is of good character for the purposes of section 21(2)(h) of the Act, despite the adverse weight which must be given to his failure to accept the findings of the court as to the behaviour which led to his conviction.

8. In short, the fact that the Applicant seems to have a mental block in relation to the circumstances of his offending, which has not been explained, does not of itself, define his character or outweigh those aspects of the evidence which weigh in his favour.

9. Accordingly, the correct or preferable decision is to set aside the reviewable decision of 14 March 2022, and in substitution it is decided that the Applicant is of good character for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).  

I certify that the preceding 73 (seventy - three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..........................[SGD]....................................

Associate

Dated: 12 July 2023

Date(s) of hearing:	22 June 2023
Solicitors for the Applicant:	Daniel Taylor
Solicitors for the Respondent:	Kate Gawidziel