Sadiq and Minister for Immigration and Border Protection (Migration)
[2016] AATA 463
•1 July 2016
Sadiq and Minister for Immigration and Border Protection (Migration) [2016] AATA 463 (1 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3060
Re
Saddam Sadiq
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 1 July 2016 Place Brisbane I affirm the decision under review.
.............................[sgd]...........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
MIGRATION – visa – whether applicant is of good character – applicant had previously committed offences – applicant had made false statements - decision affirmed under review
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
Crimes Act 1958 (Vic) s 464Z
Sentencing Act 1991 (Vic) s 27
Migration Act 1958 (Cth) s 180ACASES
Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534
Bilouni and Minister for Immigration and Multicultural Affairs [2011] AATA 223
Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94
Ghamraoui and Minister for Immigration and Border Protection [2016] AATA 254
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Shi v Migration Agents Registration Authority (2008) 235 CLR 286SECONDARY MATERIALS
Australian Citizenship Instructions (1 July 2014)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
1 July 2016
INTRODUCTION
Mr Saddam Sadiq (“the applicant”) has applied to the Administrative Appeals Tribunal to review a decision of a delegate of the Minister of Immigration and Border Protection (“the delegate”) dated 25 May 2015 to refuse his application for Australian citizenship by conferral. The application was refused under s 24(1) of the Australian Citizenship Act 2007 (Cth) (“the Act”) on the basis that the applicant did not satisfy s 21(2)(h) of the Act.
BACKGROUND
In 1983 the applicant was born in Pakistan. On 5 May 2007 the applicant arrived in Australia on a student visa. The applicant went on to graduate with a Masters degree. On 19 November 2010 the applicant was granted a permanent VB-886 visa.
On 18 April 2010 the applicant, who was employed as a taxi driver at the time, committed the offence of indecent assault whilst at his place of work. The charge-sheet provided as follows:[1]
The accused at Corio on Saturday 18th April, 2010 assaulted [the victim] in indecent circumstances while being aware that [the victim] was not consenting or might not be consenting while not giving any thought to whether the person is consenting or might not be consenting.
[1] Exhibit D, Charge-Sheet and Summons.
The applicant recounted the events that amounted to the offence in his statutory declaration declared on 14 March 2016:[2]
Whilst driving her home, I engaged in conversation to comfort her and asked her why she was crying and she said that her boyfriend wasn’t paying her any attention or some such thing. I gave her a kiss on the cheek out of sympathy. We began kissing and I believed that she kissed me back. I placed my tongue in her mouth. She became angry and pushed me away and told me that I should not have done that.
[2] Exhibit B, Statement of Saddam Sadiq dated 14 March 2016 at [4].
The statement of the victim dated 18 April 2010 was also in evidence. The victim recounted the events as follows:[3]
…I can remember the driver of the taxi lean over and kiss me on the mouth. As he did this I could feel his tongue enter my mouth…
At this time the driver was leaning well over to my side of the vehicle, I can remember that my left hand was holding my purse and phone and I was using my right arm to try and fend the driver off. The driver then started to caress both my breasts with his right hand. He did this on the outside of my black top and was rubbing across my chest and directly on top of my breasts. I did not give this person permission to do this.
[3] Exhibit C, Witness Statements.
On 11 March 2011 the applicant was convicted of indecent assault at the Geelong Magistrates Court.[4]
[4] Exhibit E, Magistrate’s Court of Victoria Records.
On 28 November 2012 the applicant lodged an application for Australian citizenship by conferral. The applicant failed to disclose that he had been convicted of an offence on the application form. On 19 February 2014 a delegate of the Minister of Immigration and Border Protection refused the application on the basis that the applicant did not satisfy s 21(2)(h) of the Act.
On 22 August 2014 the applicant lodged a second application for Australian citizenship by conferral. On 25 May 2015 a delegate of the Minister of Immigration and Border Protection refused the second application for Australian citizenship by conferral on the basis that the applicant did not satisfy s 21(2)(h) of the Act.
On 19 June 2015 the applicant applied to the Tribunal for a review of the decision of the delegate.
ISSUE FOR DETERMINATION
The primary issue for the Tribunal to determine is whether the applicant was of good character at the time of the Minister’s decision on the application. Section 21(2)(h) of the Act provides that the applicant cannot be approved to become an Australian citizen if he was not of good character at the time of the Minister’s decision which is 25 May 2015.
Having regard to the remarks of Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 301 the terms of s 21(2)(h) of the Act provide a statutory “warrant” (to use the terminology of Kirby J) for considering the state of the evidence as at the time of the decision of the delegate. If I am incorrect in this view, the parties did not contend that there was any material difference if the Tribunal had to consider the state of the evidence as at the date of my decision.
CONTENTIONS
The applicant’s contention is that he was a person of good character as at 25 May 2015 and has been at all material times. This contention was supported by four character references in the form of statutory declarations.
The applicant contended that the offence of indecent assault would not be classed as highly serious. It was contended that the applicant has reformed as he has not reoffended.
The applicant contended that he is an active member of the community and his local mosque. He also contributes in his working life and was previously involved in projects such as the national rollout of Vodaphone’s 2G and 3G network.
The respondent’s contention is that the applicant was not a person of good character as at 25 May 2015.
The respondent contended that the offence was serious because it occurred in circumstances where the application was in a position of power over the victim and the offence led to a conviction and sentence. The applicant had attempted to downplay the offence and this reflected a lack of remorse.
The respondent contended that limited weight should be attributed to the statutory declarations lodged by the applicant. Part of this contention was that two of the declarants were located in Victoria and that the applicant had relocated to Queensland over three years ago.
CONSIDERATION
Section 21(2) of the Australian Citizenship Act 2007 (Cth) (“the Act”) provides that:
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.
It was decided in Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94 at 103 that the standard of proof is that of on the balance of probabilities.
The Act does not define the expression “good character”. The expression was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 when reviewing a decision made under the former s 180A of the Migration Act 1958 (Cth). Deputy President McMahon stated (at 154-155):
The Macquarie Dictionary defines character as
“1. the aggregate of qualities that distinguishes one person or thing from others;
2. moral constitution, as of a person or people;
3. good moral constitution or status;
4. reputation;
5. good repute;
6. an account of the qualities or peculiarities of a person or thing.”
In assisting the Minister to determine whether a person has a good aggregate of
qualities, as distinct from a bad one, regard should be had to the structure and
purpose of the legislation.
In Da Wei Zheng v Minister for Immigration and Citizenship, Deputy President Forgie remarked (at 133):
It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Lee J of the Full Court of the Federal Court remarked (at 431):
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 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 while 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…
Davies J remarked (at 427-428):
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…
I am required to have regard to the evidence before the Tribunal to make a “value judgment” of whether the applicant is of good character at the time of the decision of the delegate.
The Australian Citizenship Instructions (“the Instructions”) provide some guidance as to the matters that I should consider in determining whether the applicant was of good character.
Employment
I am able to consider the applicant’s contribution to society through his employment in determining whether he is of good character. In Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534 this Tribunal remarked at [53] that “stable, gainful employment” would reflect favourably on an applicant’s character. The applicant declared in his statutory declaration dated 14 March 2016 that he is a telecommunications engineer and that he has completed work for a number of organisations as a contractor, including the national rollout of Vodafone’s 2G and 3G networks. However, there are no references from previous employers or contractors. The applicant is currently unemployed and attributes his unemployment to suitable positions requiring candidates to be Australian citizens.
The offence
I am required to have regard to the criminal history of the applicant when determining whether he is of good character. Chapter 10.3.4 of the Instructions states that an applicant who is of good character would “respect and abide by the law in Australia and other countries”.
Chapter 10.5.2 lists the factors which might indicate that the applicant is not of good character. The Instructions note here that:
If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
- crimes of violence (such as murder, manslaughter, assault, sexual assault domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
…
- other offences incurring prison sentence of 12 months or more.
Minor offences include:
- shoplifting
- traffic offences which have not been included in a criminal record
- offences which do not lead to a conviction or a sentence.
The applicant was convicted of indecent assault on 11 March 2011. I regard the offence as a serious offence rather than a minor offence based on the criteria set out in the Instructions, as it involved an assault and led to a conviction for which the applicant was sentenced to three months imprisonment which was wholly suspended for a period of 12 months.
At the hearing, the applicant outlined the advice that he received from his legal representative at the time which may have related to whether to plead guilty or perhaps whether to appeal a finding of guilt. The evidence of the applicant was effectively that he did not touch the breasts of the victim and that he believed that she consented to him kissing her at the time of the offence. I do not accept that he pleaded guilty at the first opportunity or at any time at all in view of the documentary evidence from the court; it may well be the case that he chose not to appeal a guilty verdict because of legal advice that he received about the costs that would be involved.
The applicant has disputed the facts that were put forward by the victim of the assault. However, as explained by Deputy President Forgie in Da Wei Zheng v Minister for Immigration and Citizenship (at 134):
It is not my task to ascertain the precise facts of the offence. I cannot go behind the convictions themselves and question whether they were properly reached. I cannot question whether the essential elements of each offence were made out and must accept that they were.
Therefore, I accept that the applicant has committed the offence of indecent assault for which he was convicted when assessing whether he is of good character. In this matter I have given weight to the circumstances of the offence put forward by the victim of the assault.
A prior conviction is certainly not fatal to a determination of character. In Re Lachmaiya and Department of Immigration and Ethnic Affairs, Deputy President McMahon stated (at 154-155):
“Good character” cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The applicant in his statement of facts, issues and contentions relied on the decision of the Tribunal in Bilouni and Minister for Immigration and Multicultural Affairs [2011] AATA 223 where the Tribunal determined that the applicant was of good character despite being previously convicted for shoplifting on the basis that (at [50]):
The shoplifting offence was relatively minor. The Applicant pleaded guilty and she appears not to have re-offended in the two and [a] half years since.
The current matter can be distinguished from Bilouni where the applicant in that case pleaded guilty. First, the evidence is that the applicant in the current matter pleaded not guilty and was found guilty at a hearing. Secondly, the applicant in the current matter had committed a far more serious offence, namely, the indecent assault of a passenger over which he held a position of power and trust. The evidence before this Tribunal indicates that the victim of the offence was in a highly distressed state. The offence that was under consideration in Bilouni was shoplifting which is regarded as a minor offence in the Australian Citizenship Instructions. The value of the goods in question in Bilouni was a modest amount.
The applicant stated in his statutory declaration dated 14 March 2016:[5]
The police interview and having to appear in Court made me feel ashamed and remorseful and I could not bear to think about the incident or to discuss it with anyone, because I considered it a shameful and offensive act and have done everything possible to try to put the incident behind me.
[5] Exhibit B, Statutory Declaration of Saddam Sadiq declared 14 March 2016 at [11].
Four individuals completed statutory declarations in support of the applicant’s application. I accept that each of the four declarants sincerely consider the applicant to be of good character. Each of the applicant’s character references indicate that the offence was not in line with their impression of the applicant’s character. However, those references do not set out the circumstances of the offence.
False statements
I am required to have regard to the false statements made by the applicant in his current and previous applications.
Honesty in making statements is certainly indicative of good character. In Re Lachmaiya and Department of Immigration and Ethnic Affairs, Deputy President McMahon stated (at 155-156):
These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.
In the previous application, the applicant responded “no” to the question whether the applicant had ever been convicted of an offence and imprisoned. The applicant stated in his statutory declaration dated 14 March 2016:
15. Thinking back, I may have misread the question, because I did not deliberately try to mislead the authorities. I did the application on line while I was working without any professional assistance.
16. I had discussed making the application with a lay person and that I should answer the question in the negative because I was not sentenced to imprisonment. I realise that I should have indicated that I had a previous conviction.
As seen in Bilouni and Minister for Immigration and Multicultural Affairs, the making of a false statement is not fatal to a determination of good character. One question is whether the applicant’s false statement arose out of a misunderstanding of the question or a wilful attempt to mislead the delegate. The applicant stated at the hearing that he misunderstood the question and answered “no” because he had not been imprisoned. The explanation of the applicant is not convincing as he was indeed sentenced to a term of imprisonment although the term was suspended. I do not accept the applicant’s explanation that he did not understand the question having regard to the fact that he has successfully completed postgraduate studies in Australia.
In his current application for citizenship, the applicant has made inconsistent statutory declarations about whether he pleaded guilty to the offence at the first opportunity or whether he pleaded not guilty and was found guilty after a hearing.
In his first statutory declaration dated 24 February 2015 the applicant declared that he received advice from his solicitor to plead guilty:[6]
He said that I did not have the money to fight the case and even if I did, it would be dragged out. He advised me to plead guilty. So I pleaded guilty at the first opportunity.
[6] Exhibit A, T-Documents, T10 at p. 31.
In his recent statutory declaration dated 14 March 2016 the applicant declared:[7]
Because I was not eligible for Legal Aid, I had to obtain the services of a solicitor and engaged Shane Balkin to represent me. I was offered the opportunity to plead guilty but I did not believe that I should do so because I maintained that I did not touch the passenger’s breasts as the police alleged. This was a major allegation that I denied.
[7] Exhibit B, Statutory Declaration of Saddam Sadiq declared 14 March 2016 at [8].
The second recent statutory declaration was made after a summons had been issued on the application of the respondent to obtain court records concerning the offence. I consider that the applicant in making his first statutory declaration had made a false statement about not only whether he pleaded guilty at the first opportunity but also about whether he would “fight the case”.
The court records disclose that the pleaded not guilty. A certified extract of the court order provided that the applicant “PLEADED NOT GUILTY AND ACCORDINGLY DISCOUNT ON SENTENCE NOT AVAILABLE”.[8] The applicant was sentenced to three months imprisonment which was wholly suspended for a period of 12 months pursuant to s 27 of the Sentencing Act 1991 (Vic).
[8] Exhibit E, Magistrate’s Court of Victoria Records.
Acceptance of responsibility
In the recent decision of Ghamraoui and Minister for Immigration and Border Protection [2016] AATA 254 Member Professor McCallum AO explained at [15] that mitigating factors include “whether the person has accepted responsibility and shown remorse for their conduct”.[9]
[9] See also, Australian Citizenship Instructions (1 July 2014) at 10.5.2.
In his statutory declaration dated 24 February 2015 the applicant asserted that he pleaded guilty to the offence at the first opportunity. This is incorrect as he pleaded not guilty. Ordinarily in such a prosecution the victim would give evidence and be subject to cross-examination. The applicant asserted at the hearing that the victim did not give oral evidence. I do not accept that this assertion of the applicant is correct as he asserted that the whole point of him defending the prosecution was because he denied caressing the breasts of the victim. There is no transcript of the prosecution in evidence and I am not satisfied that a transcript is unavailable.
In evidence are the court documents referring to the conviction including the statement of evidence of the witnesses for the prosecution. The statement of the victim and her close friend were made to the police on the day of the offence. In her statement the victim details the conduct of the applicant including her claim that the applicant touched her breasts. The statement of her close friend verifies that she made a first complaint about the applicant touching her breasts to him soon after the offence. I give great weight to these contemporaneous statements.
The applicant in his recent statutory declaration dated 14 March 2016 continues to deny that he caressed the breasts of the victim. The applicant was found guilty and sentenced to three months imprisonment which was wholly suspended for a period of 12 months. The conduct of the applicant was such that the court made an order under s 464Z of the Crimes Act 1958 (Vic) for the applicant to undertake a forensic procedure for the taking of an intimate sample from any part of his body. Having regard to the making of this order I infer that the court accepted the version of the evidence of the victim and her close friend. This was not a case where the applicant was disadvantaged by being unrepresented; he had legal representation as his solicitor engaged the services of a barrister. I do not consider that the applicant accepts responsibility for his actions by continuing to deny the complaint of the victim.
CONCLUSION
I affirm the decision of the Minister’s delegate dated 25 May 2015. I am not satisfied that the applicant was of good character at the time of the decision of the Minister’s delegate or at any later time such as the date of this decision. On 11 March 2011 the applicant was convicted of an indecent assault which is a serious offence. On 28 November 2012 he made a false statement to the respondent about his conviction. On 24 February 2015 he made a false statutory declaration where he declared that he pleaded guilty to this offence at the first opportunity and in which he made clear that he did not defend the prosecution for the indecent assault case because he had no funds to “fight the case”. In his statutory declaration dated 14 March 2016 he declared that what he had earlier declared was incorrect. The statutory declaration of 24 February 2015 was made some three months before the decision of the delegate and reflects adversely on my assessment of whether he was of good character at that time and now. I also consider that the applicant has not accepted responsibility for his actions.
DECISION
I affirm the decision of the Minister’s delegate dated 25 May 2015.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ...........................[sgd].............................................
Associate
Dated 1 July 2016
Date(s) of hearing 20 May 2015 Counsel for the Applicant Mr A B Balzamo Solicitors for the Applicant Mr R Sahay, Stephens and Tozer Solicitors Solicitors for the Respondent Mr M Hawker, Sparke Helmore
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