Sameer Al-Algam and Minister for Immigration and Citizenship
[2012] AATA 593
[2012] AATA 593
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4960
Re
Sameer Al-Algam
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Hon. Brian Tamberlin, QC, Deputy President
Date 5 September 2012 Place Sydney The decision under review is set aside and the Tribunal decides that the Applicant is of good character. The matter should be remitted for the making of a decision in accordance with these reasons.
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Hon. Brian Tamberlin, QC, Deputy President
CATCHWORDS
Citizenship – Citizenship refused by the Minister – Character grounds – criminal history including driving offences and giving falsehoods and deceptions – (CTH) Australian Citizenship Act 2007 s 21(1), 21(2), 21(2)(h), 25(2)(b).
LEGISLATION
Australian Citizenship Act 2007
Migration Act 1958
CASES
Clough and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1158
SECONDARY MATERIALS
Department of Immigration and Citizenship, Australian Citizenship Instructions, 2012
REASONS FOR DECISION
Hon. Brian Tamberlin, QC, Deputy President
5 September 2012
The Applicant seeks a review of a decision of the Minister for Immigration and Citizenship (the Minister) who refused to approve the Applicant becoming an Australian citizen pursuant to s 24(1) of the Australian Citizenship Act 2007 (the Act), on the basis that he did not meet the good character requirements in s 21(2)(h) of the Act.
BACKGROUND
The Applicant is a citizen of Iraq who arrived in Australia on 27 November 1999.
On 3 March 2000 he applied for a temporary protection visa (TPV), which he was granted on 9 August 2000. He was granted further TPVs on 7 August 2003 and 9 September 2005.
On 17 September 2008 he changed his name from “Sameer Sabbar Kareem” to “Kazm Al Saher”.
On 2 November 2007 he applied for a permanent protection visa (Class XA). He was granted this visa on 13 August 2008 and this visa remains in effect.
LEGISLATION AND PRINCIPLES
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Under s 24(1) of the Act, if a person makes an application under s 21, the Minister must either approve or refuse to approve the person becoming an Australian citizen.
The Act sets out eligibility requirements in order to be approved to be an Australian citizen. Application and eligibility for citizenship relevant to the Applicant is at s 21(2)(h) which provides:
“General eligibility
1A 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.”
SUBMISSIONS FOR THE MINISTER
The Minister submits that the Australian Citizenship Instructions (the Instructions) provide guidance to making an assessment on character which should be followed by the Tribunal, unless the policy is unlawful or its application produces an unjust result in the circumstances. It is common ground that the expression “good character” as referred to in these instructions refers to the “enduring moral qualities” of a person and that the Applicant’s behaviour must be weighed against ordinary community standards of behaviour. It is also common ground that in assessing good character an applicant is presumed to be of good character unless there is sufficient evidence to the contrary to rebut this. Such evidence may be in the form of a serious criminal record but this is not an essential requirement. Matters such as general conduct and associations may also be relevant, but ultimately it is a question of balance involving questions of fact and degree as to whether the character can properly be described as “good character”, I have had regard to the Instructions.
The Minister says that the Applicant’s criminal history, taken together with his general conduct dealing with the Department involving falsehoods and deceptions, rebuts the presumption that he is of good character, having regard to standards of ordinary community behaviour.
EVIDENCE FOR THE APPLICANT
The Applicant gave evidence and was cross-examined. He called two witnesses who gave evidence as to their friendship and association with the Applicant over a period of more than nine years. Although they did not know the details of the conduct relied on by the Minister, they were generally of the view that he was a person of good character to such an extent that they invited him on occasions to their homes, and the Applicant was accepted over this period as a welcome guest by the witnesses and their families.
These two witnesses who testified as to the general good character of the Applicant were impressive, and I accept without reservation what they had to say about him and I have placed some significant weight on this evidence.
It is true, as the Minister’s representative observed, that one would normally expect witnesses to be selected who have a favourable view of the Applicant where they are called to testify as to good character. Even taking this into account the long standing nature and relatively close contact with the Applicant, particularly over the past five or six years, and their evidence as to his conduct, character and general behaviour in my view counts significantly in favour of the Applicant.
The Applicant, in his evidence, conceded that he had made false statements and did not deny the driving offences. I am satisfied, having seen him in the witness box under cross-examination, that he genuinely regrets having done so.
So far as the criminal record is concerned, in my view, it is clearly not sufficiently serious of itself to warrant refusal of the grant of citizenship. It is accepted that citizenship is a substantial privilege which should not be conferred lightly. However, I do not accept for the purposes of a citizenship application that the standard of good character expected of a prospective citizen is any greater or higher than that required under the Migration Act 1958 (Migration Act) for cancellation of a visa as was suggested in the submissions for the Minister. The question is simply whether he is of “good character”. As Deputy President Hotop points out in Clough and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1158 [at 26], the “character test” under s 501 is different from the concept of “good character” in the Citizenship Act.
The Applicant explained the reason for his false statements as to his birth date as being that he had a genuine concern for a person named Mohammad Kareem and wanted to assist his entry into Australia. In order to do so and make his case for entry of Mohammad Kareem stronger he falsified his birth date, and thereby made false statements as to his original identification papers and the details in applications to the Department of Immigration and Citizenship. In addition, he was not frank about admitting his criminal record when re-entering Australia.
The Applicant pointed out that he had nothing to gain financially or otherwise from the statements he made in relation to his birth date and says that these were made in order to assist another person. He also points to the time which has elapsed since last driving offence and the absence of any convictions or proceedings against him since 2009. He was sentenced for his most recent offence in May 2008 and given a driving disqualification period of three years. He was aged 25 when he broke the law by speeding.
In particular, the Minister relies on the fact that between 2000 and 2009 the Applicant allowed the Department to believe his documents were genuine and continued to provide a false birth date. The Applicant also made a false statement that Mr Kareem was his son in order to secure a visa.
The criminal history is not at the most serious end of the spectrum of offences and consists of driving without a licence and, more importantly, driving recklessly and exceeding the speed limit. It is true that there is a pattern of conduct which indicates some lack of respect for the rules of the road up to 2009. His conduct generally is not at the serious section of the spectrum of misconduct. Also, the Applicant has been in this country for over eleven years and that there had been no offence since 2008. It is also important to keep in mind that the exercise of assessing good character begins with a presumption that a person is of good character in the sense of his or her enduring moral qualities. The criminal record of itself is not sufficient to outweigh this characterisation.
The misleading statements are of more concern. However, it is important when looking at “enduring moral qualities” to bear in mind that the conduct was not for the benefit of the Applicant but for Mr Kareem, and it has not been suggested that any damages or adverse consequences have arisen from the statements by him. In addition, having seen the Applicant give evidence in chief and under cross-examination, I am satisfied that he genuinely regrets his misleading conduct. In my view there is very little, if any, real risk that he will engage in such conduct in the future. Such risk is remote.
As noted earlier, I accept and place substantial weight on the evidence of the two character witnesses called and their relationships with, and experiences of, the Applicant over a long period.
Having regard to the evidence and to the guidelines in assessing the requirement of good character, and in particular the initial presumption of good character, I am satisfied that the Applicant is a person of good character for the purposes of the Act. I am conscious in reaching this conclusion that the guidelines indicate that a decision not to cancel a visa under the Migration Act is not a relevant consideration in the assessment of good character for the purposes of the Act and I have not given weight to this matter.
However, having regard to the nature of his record and absence of any criminal record since 2008, on the evidence before me, I consider that the application for review should be granted. The decision of the Minister should be set aside and the correct and preferable decision should be substituted, namely that the Applicant is a person of good character.
The decision under review is set aside and the Tribunal decides that the Applicant is of good character. The matter should be remitted for the making of a decision in accordance with these reasons.
24. I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of the Hon. Brian Tamberlin QC, Deputy President
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Associate
Dated 5 September 2012
Date of hearing 27 July 2012 Applicant In person Advocate for the Respondent Matthew Denning
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