Razak and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 391

Razak and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 391 (10 January 2024)
Division:GENERAL DIVISION
File Number(s): 2022/4902
Re:Faizal Shafeel Razak
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date(s) of hearing: 10 January 2024
Date of written reasons: 8 March 2024
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 9 June 2022 to refuse Mr Razak’s application for Australian citizenship by conferral, is affirmed.
................................[sgd]........................................
Mr S Evans, Member
CATCHWORDS
CITIZENSHIP - Applicant citizen of Fiji – Application for Citizenship conferral refused – ISSUE: whether the Applicant is of ‘good character’ under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) - lengthy history of criminal offending – convictions for violent crimes including domestic violence related offences - multiple failures to declare criminal convictions - determining questions of character - serious nature of certain repeat offending - lack of candour in relation to Applicant’s dealings with the Australian government – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Zhang and Minister for Immigration and Border Protection [2014] AATA 136
SECONDARY MATERIALS
Citizenship Procedural Instruction 15 ‘Assessing Good Character under the Citizenship Act’
REASONS FOR DECISION
Mr S Evans, Member
8 March 2024

The applicant, Faizal Shafeel Razak, is a citizen of Fiji who currently holds a Resident Return (Subclass 155) visa. On 5 September 2021, Mr Razak applied for Australian citizenship by conferral. [1] On 9 June 2022, his application was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs. The delegate was not satisfied that Mr Razak was of good character, which is a requirement of eligibility to become an Australian citizen.[2]
[1] T-Documents, T2, p. 7.
[2] Ibid, p. 15.
Mr Razak now seeks review of the delegate’s decision at the Tribunal. For the reasons which follow, the reviewable decision will be affirmed.
ISSUE TO BE DETERMINED
The issue to be determined is whether, at the time of the Tribunal’s decision, Mr Razak is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).[3]
FACTS AND EVIDENCE
[3] Respondent’s Statement of Facts, Issues and Contentions, [16].
Mr Razak’s offending and other conduct
Mr Razak has a lengthy history of criminal offending between 1994 and 2016.[4] He has convictions for violent crimes including domestic violence offences:[5]
·assault officer in execution of duty-T2, on 10 September 1998
·assault and 3 counts of resist police, on 24 January 2001
·assault occasioning actual bodily harm-T2, on 18 February 2004
·common assault (DV)-T2, on 27 April 2016
[4] T-Documents, T9, p. 68-70.
[5] Respondent’s Statement of Facts, Issues and Contentions, [29].
Mr Razak has also been convicted of 4 counts of contravene apprehended violence order (AVO) and 17 traffic related offences.[6] On 24 January 2001, he was sentenced to a term of imprisonment for offending including contravene AVO, malicious damage, resist arrest and driving while disqualified.[7]
[6] Ibid, [32]-[33].
[7] T-Documents, T9, p. 69.
Mr Razak has not re-offended since being convicted of Common assault (DV)–T2 and sentenced to a two-year s 9 bond on 27 April 2016.[8]
[8] Ibid, T2, p. 10; Respondent’s Statement of Facts, Issues and Contentions, [36].
EVIDENCE
Mr Razak gave evidence at the hearing and provided a statement dated 12 October 2022.[9] At the hearing he was taken to his criminal history as set out in a New South Wales Police Force Criminal History report, which he agreed was accurate.[10]
[9] Respondent’s Tender Bundle, p. 1-2.
[10] Ibid, p. 7-44.
While giving evidence Mr Razak was questioned about the 18 February 2004 convictions for Assault occasioning actual bodily harm-T2 and Contravene apprehended violence order.[11] Mr Razak was taken to a NSW Police Events, intelligence and charges report of 4 January 2004 in which police record he had been arguing with his then wife.[12] The argument escalated and as his wife attempted to leave the premises. Mr Razak ran after her and ‘punched … [her] to the head and face with both his closed fists’. His wife then called 000 to prevent any further assault by Mr Razak who again punched her in the head and face. When police arrived, Mr Razak is reported to have told his wife to tell police there was nothing wrong. Police observed several bruises on Mr Razak’s wife and a small amount of bleeding from her lip.
[11] T-Documents, T9, p. 68-70.
[12] Respondent’s Tender Bundle, p. 18-19.
At the hearing Mr Razak could not recall the January 2004 incident but accepted the accuracy of the police account. Mr Razak was also taken through the details of the incident which led to the conviction for Common Assault (DV)-T2 in April 2016 as recorded in a police report.[13]
[13] Ibid, p. 11 - 13.
In summary, the victim of the offence was Mr Razak’s second wife, Mrs Razak. On 24 April 2016, Mrs Razak and the couple’s two children returned from visiting family in Fiji. Mrs Razak and the children spent the first night back in Australia staying with Mrs Razak’s mother-in-law because she and Mr Razak had been arguing while she was overseas.
Mrs Razak returned home with the couple’s children about 9:00am the following day. Mr Razak was at home and refused to allow her into the house. Mr Razak contacted police who attended to find Mr Razak was ‘slightly intoxicated’. He agreed to allow his wife and children to enter the house and to leave the location to sober up.[14]
[14] Ibid.
When Mr Razak returned, Mrs Razak allowed him into the house. Mr Razak became aggressive and raised his tone, verbally abusing Mrs Razak who asked him to stop. He refused, and the argument continued until Mr Razak approached his wife up close and placed his forehead onto her forehead. Mrs Razak is reported to have walked outside because she feared being assaulted. Mr Razak followed her and took hold of her by bear hugging her around the torso from behind. Mrs Razak began screaming for help prompting the couple’s eldest child to intervene. Upon being released from Mr Razak’s hold, Mrs Razak ran to a neighbouring house to seek refuge but was unable to gain entry. Mr Razak caught up with her, apologised and asked her to come back inside. Mrs Razak had contacted her sister who called the police. When police attended a short time later Mrs Razak told them what happened and Mr Razak was arrested.[15]
[15] Ibid.
Mr Razak accepts the account of the incident as outlined but does not accept that Mrs Razak was ‘scared’. He argues that if she were scared, she would not have taken him back and they would not have had a third child together.
Failure to declare criminal convictions
Where asked in his application for citizenship if he had been convicted of, or found guilty of, any offences overseas or in Australia, Mr Razak incorrectly answered that he had not. Mr Razak explained that this was an error due to his not having read the question properly. At the hearing he also claimed to have told departmental officials he had a criminal record when he undertook the citizenship test. Mr Razak accepts he has a criminal record, and was unable to explain why he wrote in his application to the Tribunal that he is ‘not a criminal’.[16]
[16] T-Documents, T1, p. 5.
Mr Razak also falsely declared in multiple Incoming Passenger Cards that he did not have any criminal convictions, most recently on an Incoming Passenger Card completed on 3 January 2023.[17]
Character references
[17] Respondent’s Tender Bundle, p. 59 – 81; Respondent’s Statement of Facts, Issues and Contentions, [34].
Evidence of Nitashja Razak
Mrs Razak met Mr Razak in 2007 and they married in 2010. In her statement of 12 October 2022, Mrs Razak writes that her husband works hard to support his family and that they live a ‘happy life together’.[18]
[18] Respondent’s Tender Bundle, p. 3 - 6.
In her statement, Mrs Razak recalled the period preceding the 2016 offence was difficult for her and her family due to her mother’s declining health. Mrs Razak was unable to afford to visit her mother in Fiji which made her stressed.
Mrs Razak’s father-in-law helped her buy tickets for she and her two children to visit her mother. However, when she returned from Fiji she was stressed. She writes that on the day of the incident Mr Razak was ‘under influence of alcohol [sic]’ she was ‘terribly upset’ and they started arguing.[19]
[19] Ibid, p. 5.
Mrs Razak called police to take Mr Razak away from her. She writes that he later returned home and ‘apologised for the whole thing’. She confirms that Mr Razak had stopped drinking alcohol as of April 2016, and that both she and Mr Razak had received counselling. She also recalls Mr Razak was very supportive when her mother passed away in October 2016.[20]
[20] Ibid.
Statement of Alvin Lal
Mr Lal and Mr Razak have been friends for 20 years. Mr Lal writes that Mr Razak is a changed person who is now a good businessman who cares for his family. He acknowledges there was a ‘rough time’ in Mr Razak’s life, particularly when his first marriage did not work out and ‘he started consuming alcohol’.[21]
[21] T-Documents, T12, p. 78.
Statement of Ronit Leelson Ram
Mr Ram has known Mr Razak for more than 10 years. Mr Ram used to work with Mr Razal and considers him a changed person who took charge of his family’s business and looked after his elderly parents and young family. Mr Ram acknowledges that Mr Razal has acted unlawfully in the past but observes it was ‘not very serious’.[22]
[22] Ibid, p. 79.
Statement of Zahid Mushtaq
Mr Mushtaq has known Mr Razak for 10 years through the Blacktown Islamic Association. He writes that Mr Razak has confronted his mistakes ‘caused by alcohol’ and, that he is now a positive role model who shows respect for women.[23]
[23] Respondent’s Tender Bundle, p. 58.
LEGISLATIVE AND POLICY FRAMEWORK
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen.
Determining questions of character
The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:
“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”.[24]
[24] (1996) 139 ALR 84, 94.
In determining whether an individual is of good character, the Australian Citizenship Policy Statement and the Citizenship Procedural Instructions (the Instructions) provide guidance for decision makers. The policy relevant to this application is found in CPI 15 - Assessing Good Character under the Citizenship Act.
Informed by the discussion in Irving, subsection 3.3 of the Instruction state 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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed”.
The Instructions specifically call for decision makers to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities’.[25] A person’s enduring moral qualities encompass:
- characteristics which have endured 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.
The Instructions reflect government policy and are not binding on the Tribunal. However, it is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[26]
[26] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.
CONSIDERATION
Mr Razak has a lengthy criminal history which includes crimes of violence against women and police officers in the performance of their duty. He received one sentence of imprisonment in January 2001. It is apparent from his criminal record that his conduct has not always conformed to the rules and values of Australian society. The Tribunal has previously observed that any offence of domestic violence is serious, particularly in the presence of a child, as was the case in April 2016.[27]
[27] See Zhang and Minister for Immigration and Border Protection [2014] AATA 136 at [39].
The Instructions provide a non-exhaustive list of factors that decision makers may consider when assessing whether an applicant is of good character. These include mitigating factors which may indicate the person is of good character despite adverse information.
Relevantly, the factors identified include the length of time since the applicant’s offences and convictions, whether the applicant has shown remorse, extenuating circumstances that existed at the time of the offence and other evidence that a person is of good character.
Mr Razak contends that the seriousness of his offending is outweighed by the fact that he has not offended since being convicted of common assault in 2016. In his written statement, Mr Razak expressed deep remorse for the 2016 offending. He credits the incident with helping him realise that alcohol was not the solution to his problems. He subsequently stopped drinking and took an oath in the Mosque that he will not consume alcohol again. He writes he sought ‘counselling and support from…community leaders to re-establish [himself] in … society and to my family’.[28]
[28] Respondent’s Tender Bundle, p. 1 -2.
Mr Razak claims his life ‘turned around’ when he stopped drinking alcohol. He had let down his wife and family, but gradually regained their respect when he stopped drinking. The changes he has made personally and to his lifestyle have provided him the opportunity to manage his family’s business, which he has done successfully. His goal now is to focus on the future of his family and to provide his children with a better life and good education. He supports his elderly parents, has gained confidence in himself and is proud of what he has been able to achieve. Mr Razak’s claims to have worked hard to be a better person, husband, father and son are supported by Mrs Razak’s evidence and the absence of criminal convictions since 2016.[29]
[29] Ibid.
Mr Razak has not provided any evidence of rehabilitation which the Respondent contends counts against a finding of good character. I acknowledge the counselling he has done at the Mosque and there is no evidence to suggest he is not committed to his continued sobriety. Based on the evidence, I am satisfied that Mr Razak has genuine insight into his past conduct and is committed to maintaining his sobriety so he may be of service to his family.
Although his last recorded offence was in April 2016, Mr Razak was sentenced to a 2-year section 9 bond, meaning his obligation to the court ended in April 2018.[30] In any event, a significant period has passed during which Mr Razak has demonstrated meaningful change. However, this mitigating factor is tempered by Mr Razak’s long history of offending which stretches back to 1994. I also note that Mr Razak’s criminal record includes previous extended periods of time passing without his offending.[31]
[30] T-Documents, T2, p.10.
[31] Respondent’s Statement of Facts, Issues and Contentions, Annexure A, p. 8 – 15.
I agree with the submission of the Respondent’s representative that Mr Razak’s referees do not appear to appreciate the extent of Mr Razak’s offending, including the nature of the offences and the extended period over which his offending occurred. For this reason, I afford limited weight to the written references he has provided.
In Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs, Senior Member McCabe observed at [23]:
“I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly…”. [32]
[32] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255.
Mr Razak’s failure to declare his criminal convictions on both his citizenship application and multiple Incoming Passenger Cards is of concern. On 17 May 2022, Mr Razak emailed the Department apologising for his failure to declare his criminal offending when he applied for citizenship. On an Incoming Passenger Card completed on 3 January 2023, Mr Razak again stated he did not have any criminal convictions. On this basis, I accept the Respondent’s contention that it is reasonable to conclude that Mr Razak does not to appreciate the importance of being truthful when dealing with the Australian government.
When considering a person’s enduring moral qualities, I am required to look holistically at an applicant’s behaviour over time. While there are strong indications that Mr Razak has made meaningful changes, in the context of his lengthy history of offending, the serious nature of some of his repeat offending, and his lack of candour in relation to his dealings with the Australian government, I cannot be positively satisfied that Mr Razak is of good character at this time.
DECISION
The reviewable decision is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 8 March 2024

Date(s) of hearing: 10 January 2024

Applicant: In Person

Solicitors for the Respondent: M. Teo, Australian Government Solicitor

Date(s) of hearing:	10 January 2024
Applicant:	In Person
Solicitors for the Respondent:	M. Teo, Australian Government Solicitor