Sarmusak and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 3966

Sarmusak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3966 (22 October 2018)

Division:GENERAL DIVISION

File Number:2017/7598           

Re:Deniz Firat Sarmusak

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:22 October 2018

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd]......................................................................

Dr Damien Cremean, Senior Member

Catchwords

CITIZENSHIP– decision to refuse application for citizenship by conferral – good character test­ – history of offending – assault occasioning bodily harm – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21(2), 24(1), 24(1A)

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815

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

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

22 October 2018

1. Mr Sarmusak (the Applicant) makes application for review of a decision of a delegate of the Respondent, the Minister for Immigration and Border Protection (the Minister). The decision was made on 9 October 2017 under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act) to refuse his application to become an Australian citizen by conferral.

2. The Minister refused his application on the basis that the Applicant failed the character test under s 21(2)(h) of the Act as he has a significant criminal record and after taking other information into consideration.

   RELEVANT LEGISLATION AND POLICY

3. Relevantly, section 24 of the Act provides:

   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.

   …

   (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).

   …

4. Section 21(2) of the Act specifies:

   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)

5. Good character is not defined in the Act. In order to determine the question of whether the Applicant is of good character, I also take into consideration the Citizenship Policy (Policy) issued by the Department. In Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (at 635) the Tribunal stated that:

   The Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in a particular case will be considered, but cogent reasons will have to be shown against its application…

6. Additionally, Chapter 11 of the Policy provides guidance on the administration of the good character provisions under the Act. It defines good character as:

   …refer[ring] 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.

   BACKGROUND

7. The Applicant is a national of Turkey.  He was born in Istanbul, Turkey, on 20 May 1986.

8. He left Turkey at about 19 years of age and arrived in Australia on 13 November 2005 as the holder of a Vocational education and training visa (Subclass 572). He is currently the holder of a subclass 801 Partner visa granted on 13 April 2015.

9. The Applicant is a single man. He is currently employed as a Marketing Manager by Lush Productions. He has worked there since approximately May 2018. He has completed a Bachelor of Commerce (Marketing) at Macquarie University and a Diploma of Business Administration.

10. At the hearing in this matter Mr Sarmusak appeared on his own behalf and gave affirmed evidence. He submitted that the decision under review should be set aside and substituted with a decision that his application for citizenship not be refused under s 24 of the Act. The Respondent lodged documents under s 35 of the Act (known as the T documents and Supplementary T Documents) and these were received into evidence.

11. The Minister was represented by Mr D Brown, solicitor from the Australian Government Solicitor, who submitted that the decision under review should be affirmed.

12. The Applicant called no witnesses but relied on character references in the T Documents and a further character reference from Lush Productions dated 19 September 2018. The Minister called no witnesses but cross-examined the Applicant.

    Applicant’s Convictions

13. The T documents record that the Applicant has a number of convictions.

14. Those convictions include two offences of driving in excess of the prescribed alcohol limit and two for driving whilst disqualified. He was fined and placed on community service orders for those offences.

15. Then on 15 March 2012, at Ryde Local Court NSW, the Applicant was convicted of assault occasioning actual bodily harm, for which he was sentenced to seven months imprisonment. On appeal, in lieu, he was fined $2500 by the Parramatta District Court on 29 March 2012. Following this, on 7 November 2014, the Applicant was given a bond for 18 months for possession of a prohibited drug.

16. In his oral evidence the Applicant acknowledged his criminal record.

17. The Applicant said he did not recall the actual amounts of alcohol he had consumed that resulted in his traffic convictions for exceed prescribed alcohol limit. He said he could not recall why he had repeated driving whilst disqualified after his first conviction for that offence less than a year before. He did recall the offence of possess prohibited drug and said it related to possession of about 1 gm of marijuana.

18. In the Supplementary T Documents there are detailed statements made and taken by Police members about the traffic matters, and about the incident which took place on 15 October 2011 which lead to the Applicant’s assault conviction.

19. That incident, which is a serious one, occurred at the Macquarie University residences at about 11.55pm when the Applicant struck the victim, punching him in the area of the left eye. The victim said that his eye instantly swelled up. He fell down and was then grabbed around the neck causing him to struggle to breathe. He said I was gasping for air. He says the Applicant then said to him ‘If you touch my girl again, I’ll fucking kill you cunt’. After this the victim said he felt a sharp blow to the back of my head. He said he was face down on the ground in extreme pain and agony. A short time later some people came to his assistance and called the police. As a result of the assault the victim said he suffered a severely swollen left eye and a lump on the back of his head together with grazing to his elbows and knees.

20. In his evidence before the Tribunal the Applicant was vague about several aspects of the incident. He said he was provoked by the victim into hitting him because on the dance floor the victim had been trying to grab his (the Applicant’s) partner for the evening. He said the victim had a bad reputation and that he was known for bad behaviour towards females.

21. The Applicant was unable to explain clearly exactly what it was that the victim did that was wrong. He said the victim’s conduct would not be tolerated in Turkey.

22. The Applicant also said that after seeing the victim on the dance floor he left the premises and returned about 30 minutes to an hour afterwards and it was then that he struck the victim. He told the Tribunal that he caused pretty significant damage to the victim’s eye and cheek and that he could have killed him. He stated that he was very angry and as a result did not think about the good behaviour bond then in force. The Applicant further stated that he wanted to have a fight with [the victim] because he was harassing his girlfriend.

23. Later during the week of the assault, the Applicant says he bumped into the victim at the University bar the Applicant was managing at the time and apologised to him; but the victim did not say anything in reply. On reflection to the Tribunal about the assault, the Applicant stated that his actions had been cowardly and not worth it.

    CONSIDERATION

    Does the Applicant satisfy the good character requirement under s 21(2)(h) of the Act?

24. In Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815 the Tribunal articulated its approach to interpreting the language of the good character test, as it then appeared in section 13(1)(f) of the 1948 Act (at [18]):

    The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character.

25. The meaning of good character was considered by Lee J in in Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431-432):

    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 while the latter is a review of subjective public opinion…

26. The Applicant told the Tribunal that he has changed his behaviour since his latest offending in 2014 because he has adapted to the rules and behaviour of Australian society. However, in considering the Applicant’s criminal convictions, I regard the incident of 15 October 2011 as a most serious one, signifying the Applicant’s attitude towards another young person out socialising on the night in question. I am unable to make any finding that the Applicant’s conduct was provoked by the victim.

27. In any event, even if I could be satisfied that there was some provocation on the victim’s part, I find the Applicant’s response was wholly disproportionate and unjustified. I therefore reject any explanation by the Applicant that would seek to minimise his conduct on the occasion.

28. In relation to history of the Applicant’s offending behaviour, I find also that insufficient time has passed since his offending behaviour. I note that the evidence before me shows that the Applicant’s offending behaviour spans from 2009 to 2014. The Applicant’s last appearance in court was in November 2014, where the Downing Centre Local Court Redfern ordered the Applicant be subject to a good behaviour bond for a period of 18 months. Therefore, the Applicant was only released from this obligation to the Court on 7 May 2016, little over two years ago. Consequently, in applying the definition of good character as articulated in Irving, particularly in relation to the enduring moral qualities of a person (emphasis added), I find that there is insufficient evidence to satisfy this requirement.

29. In the circumstances, especially given his criminal history, and in applying Chapter 11 of the Policy, I am not satisfied that Mr Sarmusak is likely to uphold and obey the laws of Australia, in the sense that he will not commit further criminal offences.

    Character references

30. I have considered the character references in the T documents but I do not find they are of assistance.

31. I have also considered the character reference given by Lush Productions, the Applicant’s employer, but it has little utility because in evidence the Applicant told the Tribunal that he has never mentioned his criminal history to his employer.

    CONCLUSION

32. Having considered the above, I am satisfied Mr Sarmusak fails the character test under     s 21(2)(h) of the Act.  His offending, particularly the assault, is of a most serious nature. Consequently, in applying the decision in Re Chen, I am not positively persuaded that the Applicant is of good character.

33. There is no other ground arising in the case calling for me to find that the decision under review should be set aside. Accordingly, by reason of the Applicant having failed the character test, I affirm the decision under review.

34.     I certify that the preceding  33 (thirty-three) paragraphs are a true copy of the reasons herein of Dr Damien Cremean, Senior Member

[sgd]......................................................

Associate

Dated:    22 October 2018

Date of hearing

Applicant

20 September 2018

In person

Solicitors for the Respondent

Mr David Brown, Australian Government Solicitor