Sami and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1455

Sami and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1455 (28 May 2018)

Division:GENERAL DIVISION

File Number(s):      2017/5236

Re:Mun Sami

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:28 May 2018

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – resident return subclass BB-155 permanent visa – citizenship by conferral – good character – previous convictions – domestic violence – traffic offences – failure to disclose offences – character references – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s21

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

Re Sharma v Minister for Immigration and Border Protection [2015] AATA 608

SECONDARY MATERIALS

Australian Citizenship Instructions (Cth) issued 1 July 2014

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Dr L Bygrave, Member

28 May 2018

INTRODUCTION

1. The applicant, Mr Mun Sami, is a citizen of Fiji. He first arrived in Australia on 18 October 2001 on a tourist subclass 676 visa. He was granted a subclass BO-115 (permanent) visa on 25 June 2010 and currently holds a resident return subclass BB-155 (permanent) visa granted on 12 August 2017.

2. On 29 November 2015, Mr Sami applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The application was refused by a delegate of the Minister for Immigration and Border Protection (the Minister) on 31 July 2017 on the basis that Mr Sami did not satisfy the good character requirement in paragraph 21(2)(h) of the Act.

4. On 19 August 2017, Mr Sami applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of that decision.

5. The matter was heard in Sydney on 2 May 2018. Mr Sami did not have legal representation. He attended the hearing in person and was accompanied by his partner.

   RELEVANT LEGISLATION AND ISSUES

6. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship as follows:

   General eligibility

   (2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)  is aged 18 or over at the time the person made the application; and  (b)  is a permanent resident:

   (i)  at the time the person made the application; and

   (ii)  at the time of the Minister's decision on the application; and

   (c)  satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   (d)  understands the nature of an application under subsection (1); and

   (e)  possesses a basic knowledge of the English language; and

   (f)  has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and 

   (g)  is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

   (h)  is of good character at the time of the Minister’s decision on the application. [emphasis added]

7. The issue for determination by the Tribunal is whether Mr Sami is of good character as required by paragraph 21(2)(h) of the Act.

   Definition of ‘good character’

8. The term ‘good character’ is not defined in the Act. However, the Citizenship Policy offers guidance on the interpretation and application of the good character requirement. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1] Further guidance is provided by the Australian Citizenship Instructions dated 1 July 2014, which detail operational instructions and supplement the Citizenship Policy.

   [1] [1979] AATA 179; (1979) 2 ALD 634

9. As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:

   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…[2]

   [2] (1996) 68 FCR 422 at [431]-[432]

10. The Citizenship Policy states the phrase ‘enduring moral qualities’ encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.

11. This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. I can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship process.

12. In Re Fenn and Minister for Immigration and Multicultural Affairs, Deputy President Breen discussed the requirement of character in a citizenship application:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.[3]

    [3] [2000] AATA 931 at [8]

13. The Citizenship Policy sets out a non-exhaustive list of characteristics of good character. Relevant to this decision, a person of good character would:

    ·respect and abide by the law in Australia or other countries;

    ·not conceal convictions that could lead to the cancellation or refusal of a visa or citizenship; and

    ·not be violent and not cause harm to others through their conduct, including recklessness exhibited by negligent or drink driving, or excessive speeding.

14. As set out in the Citizenship Policy, the question for decision makers is whether any mitigating factors and/or explanation provided by the applicant outweighs the behaviour in question. This assessment requires considering an aggregate of qualities and weighing up factors, applying community standards.

15. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way Mr Sami did, the amount of time that has elapsed since his offending, whether Mr Sami has demonstrated that he has upheld and obeyed the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to the offences.

    Offences

16. A report from the Criminal Records Office in Fiji shows Mr Sami has the following previous convictions in the Suva Court dating from December 1985 to June 2001:

    ·‘Larceny’ on 16 December 1985, ‘Fined $40 or I/d 40 Days Imp’.

    ·‘Drunk and Disorderly’ on 10 April 1992, ‘Fined $15 or I/d 15 Days Imp’.

    ·‘Assault Occasioning Actual Bodily Harm’ on 7 June 1993, ‘Fined $100 and $50 Out Of Fine To (A1) As Compensation (Tap – 4 weeks)’.

    ·‘Drunk and Incapable’ on 8 January 1998, ‘Fined $50 I/d 55 Day Imp. 28 Days to Pay Fine’.

    ·‘Causing Death By Dangerous Driving’ on 26 June 2001, ‘9 months imp. suspended for 2 years. Fined of $1500.00 i/d 2 months imp. Also disqualified from driving from 6pm-6am for the period of 6 months license to be endorsed.’[4]

    [4] Exhibit T-T23, page 91

17. New South Wales Police records show that Mr Sami’s partner reported to the police on 28 January 2014 that she had been assaulted by him following a verbal argument.[5]

    [5] Exhibit ST-TB2, page 33

18. On 11 February 2014, Mr Sami attended Parramatta Local Court to answer a charge of ‘common assault (dv)-t2’. He pled ‘not guilty’ but was convicted and fined $400.[6] On 25 March 2014, the Court also issued an Apprehended Violence Order (AVO) that remained in force for two years. The conditions of the AVO were, in essence, that Mr Sami must not assault, molest, harass, threaten, stalk or intimidate his partner.

    [6] Exhibit ST-TB2, page 12

19. At the Tribunal hearing, Mr Sami broadly agreed with the details of the charge resulting from the incident on 28 January 2014 as set out in NSW Police documents. He acknowledged that a verbal argument escalated with his partner and he grabbed her by the neck and pushed her onto the bed. Mr Sami’s partner also told the Tribunal that, while they did not seek counselling as a couple after this assault, they now have a plan in place to resolve disagreements between themselves. She further stated that this has been the only occasion Mr Sami has physically assaulted her.

20. Mr Sami’s driving history records the following traffic offences:

Date	Offence	Penalty
10 February 2011	Disobey no stopping sign (school zone)	$258 fine and two demerit points
4 November 2011	Exceed speed limit by more than 30 km/h but not more than 45 km/h whilst driving a motor vehicle	$710 fine and five demerit points
15 November 2011	Exceed speed limit by more than 10km/h but not more than 20 km/h whilst driving a motor vehicle (school zone)	$278 fine and four demerit points
23 March 2015	Parramatta Court 21 February 2015 Drive with low range concentration of alcohol	Disqualified from driving for three months $550 fine

1. These offences, in particular the driving with low range alcohol charge in 2015, show Mr Sami has some disregard for Australia’s traffic laws.

   Failure to disclose offences

2. The Minister contends that Mr Sami failed to disclose all his offences in the section titled ‘Character declarations’ in his application for Australian citizenship. Mr Sami’s response to the question in his citizenship application was as follows:

   Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia? 

   Yes

   Common assault and low range drink and drive[7]

   [7] Exhibit T-T15, page 71

3. Mr Sami also failed to disclose that he had been convicted of ‘a crime or offence in any country’ in his application for migration to Australia by other family members form received by the Australian government on 15 October 2009.[8]

   [8] Exhibit T-T26, page 100

4. At the Tribunal hearing, Mr Sami acknowledged that he did not declare the offences set out in paragraph 16 above and therefore, I am satisfied that he failed to disclose his previous convictions in Fiji in both his application for migration to Australia in 2009 and his application for Australian citizenship in 2015.

   Character references

5. The Citizenship Policy states that:

   …referee reports can shed light upon 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.

6. I also have regard to the relevant paragraphs in the Citizenship Policy that give advice regarding the level of weight to be given to references.

7. Mr Sami produced character references from his partner, his partner’s brother and a colleague. Each of these references acknowledged Mr Sami’s offending behaviour of driving with low range alcohol and common assault, and noted that he is ‘remorseful for his actions’, ‘committed not to reoffend’, and is ‘truthful, loyal, humble and kind’.[9] Mr Sami also submitted job references that were positive about his working attributes and recommended his employment but did not refer to his offending behaviour.

   [9] Exhibits T-T7, T-T8, T-T9.

8. Mr Sami provided a report from his general practitioner dated 20 November 2017, which stated that he underwent urgent coronary bypass surgery in March 2016. This report also noted that he has been diagnosed with diabetes and high blood pressure, and has ceased smoking and drinking alcohol.

9. While the characteristics described in these references demonstrate qualities of someone with good character, I am not satisfied that all of Mr Sami’s references acknowledge the seriousness of his offending behaviour in Australia and Fiji, and so find that they do not outweigh the evidence of his offending behaviour.

   CONSIDERATION

10. Mr Sami was convicted of the serious offence of common assault on 25 March 2014 and low range drink driving in 23 March 2015. He has previous convictions in Fiji between 1985 and 2001 that he did not initially disclose when he applied for migration to Australia in 2009 and Australian citizenship in 2015.

11. These offences are not consistent with the good character requirement in the Citizenship Policy for an applicant to not be violent and not cause harm to others. I also rely on the decision in Re Sharma and Minister for Immigration and Border Protection, in which Deputy President Constance stated that domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character’.[10]

    [10] [2015] AATA 608 at [37].

12. Mr Sami has expressed remorse for his actions. His partner has given evidence that she does not believe that he will reoffend. He has provided character references which state that he is honest, reliable, respectful and responsible. However, the serious nature of the offence does not allow me to consider that he is of good character at this time.

13. I also am not satisfied that Mr Sami has displayed an adequate period of compliance with Australian law. An AVO against Mr Sami remained in force until 25 March 2016, which is four months after he applied for Australian citizenship and less than two years from the date of this hearing.

    CONCLUSION

14. In considering all of the relevant circumstances and weighing the available evidence, I am unable to make a positive finding of good character for Mr Sami and for this reason he does not satisfy paragraph 21(2)(h) of the Act.

15. My conclusion does not preclude Mr Sami from making a further application for citizenship in the future. It may be that with the passage of time, Mr Sami will be able to demonstrate that he does meet the requirements for a grant of citizenship.

    DECISION

16. For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 28 May 2018

Date(s) of hearing:	2 May 2018
Applicant:	In person
Solicitors for the Respondent:	M. Donald - Sparke Helmore Lawyers