Saeidi Shoeili and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 182
•29 March 2016
Saeidi Shoeili and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 182 (29 March 2016)
Division
GENERAL DIVISION
File Number
2015/2884
Re
Kazem Saeidi Shoeili
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 29 March 2016 Place Adelaide The Tribunal:
(a)pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), sets aside the decision under review; and
(b)remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant meets the “good character” requirement contained in s 21(2)(h) of the Australian Citizenship Act 2007.
........... [Sgd] ...............................
Senior Member R W Dunne
Catchwords
CITIZENSHIP – application for Australian Citizenship – application refused on character grounds – criminal record – whether applicant has reformed and is now of good character – decision under review set aside and remitted.
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21(2)(h), 24
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Re Dandan and Minister for Immigration and Citizenship [2010] AATA 539Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
SECONDARY MATERIALS
Australian Citizenship Instructions (Cth)
REASONS FOR DECISION
Senior Member R W Dunne
29 March 2016
Mr Kazem Saeidi Shoeili, an Iranian national, applied for Australian citizenship by conferral on 29 January 2015.
A delegate of the Minister refused the application in a decision dated 9 June 2015. This was on the basis that the applicant did not meet the requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“Act”). This provision requires that the Minister be satisfied that the applicant is a person of “good character” at the time of the decision on the application.
The applicant has applied to this Tribunal for a review of the delegate’s decision.
At the hearing, the applicant represented himself and Ms C Stokes (from the office of the Australian Government Solicitor) appeared on behalf of the respondent Minister. I received into evidence the T documents[1] and the supplementary T documents[2] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
[1] Exhibit R1.
[2] Exhibit R2.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the applicant is eligible to become an Australian citizen pursuant to s 21(2) of the Act. The only issue in dispute is whether the applicant is of “good character” pursuant to s 21(2)(h) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen. Section 21(2)(h) relevantly reads:
“Application and eligibility for citizenship
…
General eligibility
(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.
…”
Section 24 of the Act provides, in part:
“Minister’s decision
(1) 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.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
…”
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions (“Instructions”) have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”. The Instructions reflect Government policy and are not binding on the Tribunal. However, the Tribunal should have regard to the Instructions unless there is good reason not to do so.[3]
[3] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Paragraph 10.1.2 of the Instructions provides, in part:
“‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.”
This reflects what Lee J in the Full Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs,[4] when he 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.” (citations of authorities omitted).
[4] (1996) 68 FCR 422 at 431-432.
After referring to the judgement of the Court in Irving (supra), paragraph 10.3.1 provides, in part:
“In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
§ characteristics which have been demonstrated over a very long period of time
§ distinguishing right from wrong
§ behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.”
The Instructions (in paragraph 10.3.2) refer to the decision of the Tribunal in Zheng and Minister for Immigration and Citizenship[5], where Deputy President Forgie said:
“In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. …”
[5] [2011] AATA 304.
Paragraph 10.5.2 of the Instructions sets out factors that indicate why a person might not be of good character. Those factors include the following:
“Offences
·Has the applicant committed any offences and if so, did they admit that in their citizenship application? Passenger card declarations could also be checked for an acknowledgement of criminal convictions.
·If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.
·If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
o crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death).
o…
·Minor offences include:
o…
ooffences which do not lead to a conviction or a sentence.
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or the disabled, or others who trusted the applicant?
·Are there any ongoing obligations in relation to the sentence received, such as a good behaviour bond following conviction?...
·…
·How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?
…”
The Instructions provide that crimes of violence are to be regarded as serious offences. This is even more so in the case of domestic violence. Such conduct is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual’s character.
Paragraph 10.5.2 of the Instructions also sets out mitigating factors that may be taken into account by the decision-maker in determining whether a person might be of good character in any event. Those factors include the following:
·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application?
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved since being released from prison or upon completion of any obligation to a court such as a good behaviour bond? …
·Has the applicant rehabilitated themselves? …
·What was the applicant’s age at the time the offence was committed? …
·Were there any extenuating circumstances relating to the offence?
·…”
Paragraph 10.5.4 of the Instructions relates to weighing up the various qualities involved in the good character decision. Paragraph 10.5.4 reads in part:
“Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standard. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.”
Paragraph 10.6.5 of the Instructions relates to references and referee reports. These can shed light on an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of “good character”. More weight should be given to references made as statutory declarations, than those which are not. Referees should also explain how long they have known the applicant for, and the context of their relationship.
BACKGROUND
The applicant was born in 1965. He arrived in Australia on 26 May 2009 as the holder of a Refugee and Humanitarian (Class XB) (subclass 200) visa. In question 31 of “Part F – Good character and criminal offences” of his application for citizenship, in answer to the question as to whether he had been convicted or found guilty of “any offence”, he placed a tick in the “no” box. He also did not disclose that he had a criminal conviction when he attended the Citizenship testing appointment on 20 February 2015.
According to a criminal history report provided by Crimtrac, the applicant’s criminal record is as follows:
Court: SA – Adelaide MC – Date: 11/04/2013 – Offence: Commit assault – aggravated offence other – no weapon – Result: Convicted. Good behaviour bond $500 18 months
On 12 June 2015, a statutory declaration was lodged by Ms Aurora Pagetto[6] which stated that she had known the applicant since 2011, and early in 2014 they became partners. The applicant also lodged a witness statement[7]. In it he said that he did not disclose his criminal history as he thought that, given the good behaviour bond had expired, the offence had “cleared”. He also stated that he was very remorseful in relation to the assault incident that happened with his ex-wife. On or about 27 July 2015, the applicant lodged a further statement.[8] Included in this, he said he had sucessfuly completed a number of English and other courses at TAFE, as well as obtaining work experience and undertaking volunteer work with the Salvation Army. On or about 7 August 2015, in response to a summons issued by the Tribunal, the South Australian Police produced documents which revealed:
(c)The applicant’s criminal record comprising the conviction dated 11 April 2013 regarding the assault of his ex-wife.
(d)A statement from the applicant’s ex-wife relating to the assault incident in which she said she argued with the applicant, he swore at her and she ran into the hallway where he threw her into the laundry and punched her with his right hand in a fist and he hit her in the head, back, cheeks and arms over 10 times.
(e)The applicant’s ex-wife provided a further statement dated 24 March 2013[9] in which she deposed that, after the assault, she had been taken to the Royal Adelaide Hospital where she stayed overnight.
(f)A statement was also provided by a police officer which was deposed upon similar lines.
(g)The applicant’s ex-wife then provided another statement[10] in which she deposed that she had known the applicant for 48 years, they had been married for 22 years and had marriage problems for 22 years. For 2 years they had been living in separate rooms. She said the day of the offence was the first time the applicant had used bad words against her and he had never hit her before that day.
[6] Exhibit R2, ST2 pages 2-3.
[7] Exhibit R1, T1 page 5.
[8] Exhibit R2, ST4 pages 5-6.
[9] Exhibit R2, ST22 pages 58-59.
[10] Exhibit R2, ST23 pages 60-61.
On or about 3 August 2015, the Adelaide Magistrates Court produced documents that revealed that the Court made an interim intervention order on 11 April 2013 which restrained the applicant from being within 100 metres of his ex-wife. The applicant pleaded guilty to the charge of committing assault and the Court convicted the applicant and ordered that he be of good behaviour for 18 months.[11]
[11] Exhibit R2, ST10 pages 31-32.
EVIDENCE OF THE APPLICANT
In giving his evidence, the applicant said that he had hit his ex-wife in April 2013 because she had been verbally abusing him and his relatives for 2 years. There were occasions when the verbal abuse took place in front of his children. Although he and his ex-wife lived in the same house, they slept in separate bedrooms. The abuse was caused because of financial problems and she wanted a divorce, but he said nothing. He said one day he lost control and did “that stupid thing”. Although he was still suffering from what she had said to him, he was sorry and regretted what he did. It was the first and last incident between them. When he came to Australia he did his best to improve and to find a job. He undertook several courses and obtained a number of certificates in his education. He was studying while still having financial problems and with the problems he had with his ex-wife.
Evidence of Ms Aurora Pagetto
It was Ms Pagetto’s evidence that she had known the applicant since late 2011. She said that their relationship then was only based on friendship. However, early in 2014 they became partners.
In a further statutory declaration in August 2015, Ms Pagetto said that she was aware of the offence that the applicant had committed in assaulting his ex-wife. She said she had never experienced violence from the applicant and if there was disagreement between them they would give each other space and then talk about the issue. In cross-examination, Ms Pagetto said that the applicant, as a Iranian man, did not like people asking questions about him. And if they did, he would prefer not to answer them.
Evidence of Captain Robert Casburn
In giving his evidence, Captain Casburn said that he is a Salvation Army officer. He said he had known the applicant since July 2013 as a volunteer at the Salvation Army at Campbelltown. He said the applicant had expressed a criminal conviction in relation to a domestic violence case that was against him involving his ex-wife. He said the applicant still felt guilty about the incident and he encouraged the applicant to get support to help him through the problem.
CONSIDERATION
Is the applicant eligible to become an Australian Citizen pursuant to section 21(2)(h) of the Act?
In considering whether the applicant is eligible to become an Australian citizen pursuant to s 21(2)(h) of the Act, I understand the respondent accepts that the applicant satisfies the criteria set out in s 21(2)(a) to (g) inclusive. In analysing s 21(2)(h), the issue is whether the applicant is of good character at the time of the Minister’s decision on the application. Read literally, this reference introduces a temporal limitation. The decision-maker is restricted, on this view, to considering whether the applicant satisfied the criteria of good character at the time the Minister’s initial decision was made. It requires the Minister to be satisfied that the criteria set out in that subsection are met. In other words, the Minister must make a “decision”. As was said by Senior Member Britton in Dandan and Minister for Immigration and Citizenship:[12]
“On review, the AAT places itself in the shoes of the original decision-maker. As such, on review, the reference to the “time of the Minister’s decision” in s 21(2)(h) should be construed as a reference to the time the decision-maker – the Tribunal – makes its decision. The Tribunal must therefore consider whether the applicant was of good character as at the date of its own decision on review.”
[12] [2010] AATA 539.
It is therefore necessary to decide whether Mr Shoeili is of good character at the time my decision is made, and not as at 9 June 2015 – the date the original decision was made by the Minister.
Factors to be taken into account in considering why an applicant’s behaviour might demonstrate that they are not of “good character” are contained in the Instructions. These are referred to in paragraph 13 of these reasons. The Instructions also list a number of mitigating factors that decision-makers should consider in determining whether the person may be of “good character”, notwithstanding their conduct. These factors are set out in paragraph 15 of these reasons.
The Instructions state that, in weighing up the various factors in reaching a decision on whether a person is of “good character”, the decision-maker must apply community standards and, having regard to the words of the preamble to the Act and the pledge to be made if citizenship is approved, should ask those questions set out in paragraph 16 of these reasons.
The decision whether Mr Shoeili is of “good character” is not made by applying the various factors referred to in the Instructions as a checklist. The evidence has to be looked at as a whole.[13] In assaulting his ex-wife, the applicant committed a serious offence. While the existence of a serious offence is relevant in determining good character, it is only one of several factors to be considered.
[13] Instructions paragraph 10.1.1
What is good character? A passage in the reasons for judgement of Lee J in Irving (supra) is commonly regarded as informing the meaning to be given to the words “good character” in s 21(2)(h) of the Act. The passage is set out in paragraph 10 above. One of the distinctions Lee J makes in the passage is between character and repute. That distinction is particularly important in the assessment of the applicant’s application. In the documents, a few people have provided supporting character evidence in writing relating to the applicant. Without hearing directly from any of these individuals involved, I regarded the references with caution because of the tendency for referees to focus only on what might be helpful to the applicant. However, the references provided by Captain Robert Casburn and Ms Wendy Richards from the Salvation Army are noteworthy. They have both been involved in working with the applicant and observing what he has done working as a volunteer at the Salvation Army. Both have indicated that they were aware of the significant misconduct he was involved in in assaulting his ex-wife. However, the witness statements provided by Ms Aurora Pagetto, who is now the partner of the applicant, are not as acceptable and less weight must be given to them because of her ongoing relationship with the applicant.
The lapse of time between an application and an applicant’s past criminal conduct is a relevant, but not necessarily decisive, consideration in an assessment of their character. Past criminal conduct or conviction is not, and in the absence of any specific statutory provision, cannot be regarded as, an automatic barrier to the establishment of a person’s contemporary “good character”: see Minister for Immigration and Ethnic Affairs v Baker.[14]
[14] (1997) 73 FCR 187
As I indicated above, the decision whether the applicant is of “good character” is not made by applying the various factors referred to in the Instructions as a checklist. I must look at the evidence as a whole. In assaulting his ex-wife, the applicant committed a serious offence. In her affidavit dated 12 March 2013 relating to the offence committed the day before, the applicant’s ex-wife said:
“I was at home at … where my husband, Kazem, and I argued about changing the channel on the TV and I told him off for throwing a toy at …, our 3 year old son. The toy hit … . [He] had thrown a toy at my husband first.
I told my husband to change the TV to a cartoon program for … .
My husband swore at me and then I ran away to the hallway and he threw me into the laundry and he punched me with his right hand in a fist. He hit me in the head and my back. He hit me in both cheeks and on my arms. He hit me over 10 times. I feel dizzy and my body feels sore. He had no permission.
I am scared of my husband. It started at about 5:30pm.”[15]
[15] Exhibit R2, ST15 p 48 & 49.
However, in what is described as a further addendum (affidavit), she said:
“This statement refers to the incident that occurred at this address on 11 March 2013.
I have known by husband for all of my life, as we grew up together. So I have known him for about 48 years. We have been married for 22 years. We came as refugees, to Australia, almost 4 years ago.
During our marriage, my husband has never previously assaulted me.
We have had marriage problems for 22 years. He has abandoned myself and our family, on and off, and did not provide money or support to me during these times.
My husband’s behaviour started to change about 2 years ago, when I started going to Tafe to learn English. It became obvious that he was not willing to help me with housework or with our son, ….
For two years we have been living separately under the same roof, sleeping in different beds.
On the 11th March, it is the first time my husband has used bad words against me, in particular when he used a word which roughly translates as ‘bitch’.
He has never hit me before and that is why I am now scared of him and no longer trust him to live with me.
He did try and attack me last year, in 2012, when he tried to run towards me. I was not sure what he was going to try and do to me but my son, … held him back and stopped him. This occurred at my current home …
I am happy for my husband to still have contact with all of our children, but not at wherever I am living. I want the times that he sees them to be prearranged.”[16]
[16] Exhibit R2, ST23 p 60-62.
During the course of the hearing, I was careful in viewing the applicant’s demeanour and I was impressed with his honesty and the unambiguous manner in which he conducted his case. Having regard to various matters contained in the Instructions and considering them further, I find the incident in which the applicant assaulted his wife and hit her to be an aberration. Given the period during which the applicant was continually abused, I believe the applicant’s conduct on 11 March 2013 to be sufficiently isolated, such as to cause me to be satisfied that it is not reflective of a lack of “good character”. I am satisfied that he genuinely accepted responsibility for his conduct and for the incident taking place. I am also satisfied that he showed remorse for the way he behaved during the incident. I am satisfied that his conduct on 11 March 2013 was, on that occasion, out of character.
SUMMARY
The respondent has accepted that the applicant satisfies all the criteria set out in s 21(2) of the Act, excepting s 21(2)(h). In looking at all the evidence and the manner in which the applicant behaved during the hearing, I am satisfied that he is now a person of good character. I set aside the decision under review and remit it to the Minister for reconsideration with a direction to that effect.
DECISION
For the reasons summarised in paragraph 35, the Tribunal:
(h)pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), sets aside the decision under review; and
(i)remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant meets the “good character” requirement contained in s 21(2)(h) of the Australian Citizenship Act 2007.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne .......... [Sgd] ...................................
Administrative Assistant
Dated 29 March 2016
Date(s) of hearing 22 December 2015 Applicant In person Advocate for the Respondent Ms C Stokes Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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