Safari and Minister for Immigration and Multicultural Affairs (Citizenship)

[2025] ARTA 696

Safari and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 696 (2 June 2025)

Applicant/s:  Alireza Safari

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/6963

Tribunal:General Member S. Fenwick

Place:Melbourne

Date:2 June 2025

Decision:The Tribunal affirms the decision under review.

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

General Member S. Fenwick

Catchwords

CITIZENSHIP – application for citizenship by conferral – national of Afghanistan – whether applicant of good character – single instance of violent conduct – no conviction recorded – decision affirmed

Legislation

Administrative Review Tribunal Act 2924 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660

Maxwell v R [1996] HCA 46

Secondary Materials

Citizenship Procedural Instruction 15 – Assessing good character under the Citizenship Act

Statement of Reasons

BACKGROUND

1. Mr Safari applied for review of the decision of a delegate of the Respondent Minister dated 8 August 2024 refusing the grant of citizenship by conferral on the basis that the Applicant is not of good character.

2. Mr Safari came to Australia in 2017 on a refugee visa and applied for Australian citizenship by conferral in July 2021. In April 2023, the Applicant was involved in a violent altercation with a person in a shopping centre car park. The incident arose from a prior altercation between the victim and Mr Safari’s mother. Mr Safari plead guilty to the following charges: criminal damage (intent damage/destroy); unlawful assault; and, possess controlled weapon without excuse. The matters proceeded before a Magistrate in November 2023 and were finalised without conviction, together with a $300 fine.

3. Mr Safari was represented at the Tribunal and lodged a submission, dated 17 January 2025 (AS). The Respondent lodged documents under s 23 of the Administrative Review Tribunal Act 2024 (Cth) (T), a Statement of Facts, Issues and Contentions (RSFIC), and a Tender Bundle including police records about the incident obtained under summons (TB).

4. The Applicant gave evidence at the hearing, as did a character referee, Mr Mahdawi. Mr Safari’s mother also gave evidence, with the assistance of an interpreter.

   LEGISLATION

5. General eligibility criteria for the grant of citizenship by conferral are found in s 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act). Citizenship cannot be approved unless the applicant is duly eligible (s 24(1A)). Relevantly, under s 21(2)(h), a person must be of good character at the time of a decision.

6. The phrase ‘good character’ is not defined, but has been addressed in a number of authorities. In short:

   (a)it can be understood as concerning a person’s enduring moral character, rather than their standing in the community (Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660) (Irving);

   (b)a person may show they have reformed despite a conviction for serious crime (Irving); and

   (c)the determination involves judgment, and a decision-maker must reach an affirmative belief about good character, but this need not be attained to a high degree of confidence (BOY19 v Minister for Immigration and Border Protection [2019] FCA 574).

7. Policy guidance is found in Citizenship Procedural Instruction 15 – Assessing good character under the Citizenship Act (CPI15). This guidance largely reflects the position in the authorities. It also sets out guidance on how to take account of any offending, including that the seriousness of any offending should be considered, and that verdicst of courts should be accepted as correct [12.1]. In addition, CPI15 recommends a weighing process be undertaken with respect to matters of seriousness, together with mitigating factors such as rehabilitation, and length of time since offending [14].

   ISSUES

8. The single issue before me is to determine whether Mr Safari is, at the time of my decision, of ‘good character’.

   EVIDENCE

9. Before dealing with the evidence at the hearing, it is convenient to set out allegations raised about Mr Safari’s conduct and the context of the incident in April 2023, based upon material lodged in this matter:

   (a)the initial police incident report from the day in question refers to the victim and female driver of another care exchanging words, and taking photos of each other’s cars (TB, 22);

   (b)the report then refers to the victim going to the shops, then, having returned and sat in his car, being approached by the offender brandishing a knife which was used to slash at the window, after which he punched the window repeatedly and ripped off the side mirror;

   (c)it was alleged in the victim statement (TB, 8) that he was cut off by a diver while attempting to park, and that after parking he approached the female driver who told him to ‘fuck off’;

   (d)the victim also alleges that after getting into his car the offender stabbed at the window, punched it, and called ‘get out you bastard’, and that the attack left blood on the car window and left him feeling scared (TB, 9);

   (e)photos of the victim’s car substantiate the damage inflicted, and light injuries to Mr Safari’s hands (TB, 12-21);

   (f)the informant’s statement for the preliminary brief (TB, 3) confirms that Mr Safari had been holding a Stanley knife; and

   (g)it also describes Mr Safari as attending the scene after being called by his mother, and acknowledged holding the knife and punching the car.

10. In a Statutory Declaration dated 12 February 2024 (T14a), the Applicant states that the complainant was ‘harassing’ his mother, had sworn at her, punched her car and was abusive. Mr Safari states that he reacted out of stress, explaining that he had been a victim of family violence growing up. He acknowledges pleading guilty, stating ‘I should not have reacted that way’.

11. Mr Safari stated in evidence that he had been at home sleeping after returning from work when he received a call from his mother who was crying. While he didn’t really know what happened over the parking, he stated that the victim had accused his mother of not knowing how to drive. Mr Safari stated that the knife was in his work clothes because of his job in carpentry. Asked why he attacked the victim’s car, the Applicant explained that he ‘got really pissed; really angry’. Mr Safari denied calling the gentleman involved a bastard. He considered it very unlikely that his mother would use the language she was alleged to have used. The Applicant described himself as a ‘very chill guy’ and that if his mum had not been scared he would not have attended the scene.

12. The Applicant’s mother stated that the victim punched the front window of her car after some confusion over parking, and abused her. She described experiencing domestic violence in her marriage and that she felt scared and called her son. Mr Safari’s mother acknowledged that her son had a knife and punched the victim’s car. She then asserted that the victim followed her to the shops after the incident in the car park. When I put it to her that she used abusive language to the victim she denied this, on the basis that she was fasting for Ramadan at the time and therefore avoided vulgar language.

13. There is a written reference from Mr Mahdawi, dated 27 December 2023 (T14b). He describes meeting the Applicant at school and being a member of the same congregation. He describes Mr Safari as a man of integrity and honesty, and as a community-minded individual who is hardworking.

14. At the hearing, the witness stated that he understood the Applicant was defending his mother, was totally aware of what he had done, and regretted it. Mr Mahdawi found it hard to believe that Mr Safari had carried his knife in the incident.

15. I also note an additional character reference (T14b) from a Mr Mohammadi, dated 12 November 2023. The writer describes himself as a long term friend of the Applicant who is a person of honesty and character. Mr Safari is described as hardworking and dedicated to his family.

    CONSIDERATION

16. At the hearing, the Respondent’s representative highlighted that the evidence was sufficient to establish that Mr Safari had held the Stanley knife, punched the victim’s car, and broken its mirror. It was contended that the incident was violent, and therefore inherently serious and contrary to a finding of good character. To the extent that the evidence suggested variations to the information contained in summons material, the Tribunal should reject those variations which are inventions. These variations, indeed, should be seen as undermining any argument that Mr Safari has insight into the event.

17. In the RSFIC [21] it is also contended that Mr Safari’s conduct should be considered to be in breach of community standards of behaviour, as articulated in CPI15 [3.3]. It is also contended that insufficient time has passed since the incident to demonstrate the Applicant possesses the necessary enduring moral qualities [26].

18. It was submitted for the Applicant that the matter was resolved on a plea of guilty with no conviction. Moreover, Mr Safari has repeatedly acknowledged the physical elements of the conduct that gave rise to the charges. The written submission (AS) also contends: the sentence indicated the offending was of low range of significance; the incident was a one-off; and, Mr Safari is supported by character references.

19. I consider the material overall demonstrates that Mr Safari has acknowledged the elements of his offending. This is, I consider, a matter of some significance and in the absence of a formal conviction, must be understood as acceptance of the elements of the charges involving violent conduct (Maxwell v R [1996] HCA 46).

20. It is self-evident that at the time of his citizenship application, Mr Safari had an unblemished record in the community. This is a single incident in which it appears, from the evidence, Mr Safari reacted in a highly emotional manner to what seems to be an appeal for help, or support of some kind, from his mother. It is regrettable that Mr Safari responded in the way he chose to do. I have some general sense from the oral evidence that the specific circumstances of the incident may have indeed given rise to a sense of intimidation in Mr Safari’s mother. There is, however, otherwise a generally consistent narrative on the face of the documents about the circumstances.

21. Ultimately, whether or not any party verbally abused the other, Mr Safari has committed a quite violent act in a public place. I am not particularly persuaded by the contention that insufficient time has passed since the incident. Rather, I think the inherently violent reaction by Mr Safari itself, notwithstanding the very low level court outcome, is a matter of concern. While I am somewhat sympathetic to the Applicant’s mother, I am not satisfied that there are any extenuating circumstances that mitigate the seriousness of her son’s conduct. It is to Mr Safari’s credit that he has produced referees, however they do not in my view carry sufficient weight to counterbalance his conduct on this day.

22. Accordingly, I do not consider that Mr Safari is of good character and therefore I affirm the decision under review.

    DECISION

23. For the reasons given above, the Tribunal affirms the decision under review.

Date of hearing:	7 April 2025
Solicitor for the Applicant:	Bilal Amani, Amani Lawyers
Solicitor for the Respondent:	Mary Baras-Miller, Australian Government Solicitor