Sharifi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 1597

Sharifi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1597 (9 June 2023)
Division:GENERAL DIVISION
File Number(s): 2021/5353
Re:Ali Reza Sharifi
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:9 June 2023
Place:Sydney

The decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 26 July 2022 is affirmed.
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Mr S Evans, Member
Catchwords
CITIZENSHIP — Application for Australian citizenship by conferral — Refusal of citizenship application — Whether Applicant has satisfied section 21(2)(h) — Good character requirement — Citizenship Policy — Meaning of ‘good character’ — Enduring moral qualities — Common assault — Alleged domestic violence — numerous police records — not positively satisfied — Decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Sharma v Minister for Immigration and Border Protection [2015] AATA 608
Secondary Materials
Australian Citizenship Policy Statement
CPI 15 - Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
9 June 2023
Introduction

Ali Reza Sharifi (the Applicant) seeks to review the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) to refuse the grant of Australian citizenship by conferral. The delegate was not satisfied that the Applicant was of good character, which is a requirement for eligibility to become an Australian citizen.
For the reasons that follow, the decision will be affirmed.
Background
The Applicant is a 31 year old citizen of Afghanistan.[1] In 2011 the Applicant married Wahida Akbari (Ms Akbari) in Afghanistan.[2] On 25 May 2015[3] the Applicant arrived in Australia as holder of a Spouse (subclass 100) visa.[4]
[1] T1/2
[2] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [3]
[3] T12/79
[4] T13/80
Conviction, application and refusal
On 20 March 2019 the Applicant plead guilty and was convicted of Common assault (DV)-T2 (the common assault) in the Blacktown Local Court and sentenced to a 12-month conditional release order (CRO) concluding on 19 March 2020.[5] The details of the offending, which occurred on 16 March 2019, are set out in a Police Facts Sheet tendered to the Court:
The complainant [Ms Akbari] disclosed to police that she was assaulted by the accused [the Applicant] at about 1 am that same day and suffered a small scratch to the left elbow as a result of the assault. The complainant stated that the assault was witnessed by their two children which caused them to cry. The complainant was not willing to provide police with a statement and only requested that police give the accused a verbal warning in relation to his behaviour.[6]
[5] T8/67
[6] ST2/29
The common assault followed an argument between the Applicant and Ms Akbari over a mobile phone charger and Ms Akbari’s sister using the Applicant’s car. The police case notes state that Ms Akbari told police that she had ‘previously been assaulted by [the Applicant] however has not reported them [sic] as she would be frowned upon within the Afghanistan community if it was known that police were contacted.’[7]
[7] ST1/14
On 23 September 2019 the Applicant lodged an application for citizenship by conferral pursuant to subsection 21(2) of the Act.[8] In his application for citizenship, when asked whether he has criminal convictions in Australia or overseas, the Applicant answered ‘yes’ and gave details of the common assault offence.[9]
[8] T3/20-39
[9] T3/33
On 7 June 2021 a delegate of the Minister invited the Applicant to comment on the conviction.[10] The Applicant’s representative responded providing a statement from the Applicant, a statement from Ms Akbari, character references and a certificate of completion of the ENGAGE intervention program on 19 July 2021.[11]
[10] T8/63-65
[11] T10/71-78
On 26 July 2022 the delegate of the Minister refused the Applicant’s application for Australian citizenship by conferral on the basis that they were not satisfied the Applicant was of good character as required by paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).[12] The delegate found that the seriousness of the Applicant’s conviction outweighed the evidence of his good character.
[12] T2/8
On 6 August 2021 the Applicant applied to the Tribunal for review of the delegate’s decision.[13]
[13] T1/1
Issue to be determined
The issue to be determined is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Act.
Legislative and policy framework
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen.
Determining questions of character
The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J 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.[14]
[14] (1996) 139 ALR 84, 94
In determining whether an individual is of good character, the Australian Citizenship Policy Statement and the Citizenship Procedural Instructions provide guidance for decision makers. The policy relevant to this application is found in CPI 15 - Assessing Good Character under the Citizenship Act.
Informed by the discussion in Irving, subsection 3.3 of the Instruction state that:
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.[15]
[15] T15/106
The Instructions specifically call for decision makers to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[16] A person’s enduring moral qualities encompass:
- characteristics which have endured over a long period of time;
- distinguishing right from wrong; and
- behaving in an ethical manner, conforming to the rules and values of Australian society.
The Instructions reflect government police and are not binding on the Tribunal. However, it is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[17]
FACTS AND EVIDENCE
[17] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ
The Applicant’s conduct
In addition to the common assault conviction, NSW Police case notes record the Applicant’s other interactions with police since arriving in Australia in 2015.
According to police case notes, on 15 July 2015 Ms Akbari called police at about noon following a verbal argument with the Applicant regarding his visa status. It is reported that Ms Akbari ‘decided to call police so they could ‘scare’ [the Applicant] into her way of thinking.’ The police notes record Ms Akbari attempted to cancel the call prior to the police attending and that no further action was taken by the police.[18]
[18] ST1/9
On 31 October 2019, Ms Akbari called the police following a ‘heated verbal argument’ with the Applicant about his mother. The police notes record that Ms Akbari attempted to cancel the police call out ‘numerous times’ prior to their arrival, and that when they attended no offences were disclosed.[19]
[19] ST1/13
On 30 June 2021 the Applicant and Ms Akbari attended Blacktown Police Station to have a signature witnessed. It is reported that the Applicant and Ms Akbari began arguing loudly ‘prompting police to intervene’. Whilst speaking with the police both the Applicant and Ms Akbari continued to speak loudly and interrupt each other, with the Applicant observed to talk over Ms Akbari and not allow her the opportunity to speak. Police took Ms Akbari ‘into a separate room to confirm her safety’, and reported Ms Akbari was upset that the Applicant frequently ‘threatens’ to break up with her or to call her family and tell them that he is divorcing her. In the private conversation with police, Ms Akbari confirmed that no offences had occurred since the November 2019 incident but that ‘she had frequent arguments’ with the Applicant.[20]
[20] ST1/11
On 5 November 2019 the police case notes detail an incident that took place between the Applicant and his cousin Wahidullah Akbari (Mr Akbari) at Mr Akbari’s house. It is reported that the Applicant believed that Mr Akbari and other family members were talking about him and his marriage ‘behind his back’. The Applicant reportedly knocked on Mr Akbari’s door and before telling him ‘come out, fight me’. Police spoke separately to both the Applicant and Mr Akbari during which Mr Akbari informed police the Applicant had been invited to his house to discuss a family matter. Though reluctant to supply information about what the Applicant had said to him, Mr Akbari confirmed he was not fearful for his or his family’s safety.[21]
[21] ST1/11-12
The Applicant’s evidence
It was the Applicant’s evidence that the punishment he received following his conviction for common assault had been beneficial. He has learnt from the experience and now has more respect for the law in Australia. The relationship between he and his wife has improved and they now support each other emotionally and the Applicant has become a ‘good communicator.’ He reports the positive change has been both at home and work. The Applicant and Ms Akbari have now purchased their first home and regularly spend time together with their two children.
In written statements from 19 July and 18 October 2022[22] the Applicant expresses his remorse and regret for his ‘wrongful act and abuse’ of his wife. He notes that he plead guilty and accepted responsibility for his actions, and that he did so because he ‘was sorry for making [his] wife upset and hurting her’ and ‘for upsetting’ their children.
[22] T10/72
By way of explanation, the Applicant writes that he was ‘under great stress and pressure’ as his father had ‘just had a heart attack and was very unwell’. He worried that if his father passed away, his mother would be alone and without any family in Afghanistan. When his father did eventually pass away in March 2020, the Applicant’s mother initially did not tell him because of the stress it would cause.
When questioned about his offending, the Applicant did not deny having slapped Ms Akbari and confirmed that their children were present and one had started to cry. He gave evidence that before the assault he was watching news about the Christchurch Mosque shooting on his phone. When the phone battery ran out, he attempted to grab the phone charger so he could continue watching. An argument broke out between the Applicant and Ms Akbari during which he slapped her. It was his evidence that he was emotionally affected by what he had seen on his phone which may have contributed to his conduct.
When giving evidence the Applicant referred to the common assault as ‘an accident.’ He was asked by the Respondent’s representative if he assaulted his wife by accident, and told the Tribunal that he could have been emotional at the time and was not sure if it was an accident or intentional. Asked why he plead guilty to common assault if it was an accident, the Applicant explained that under Australian law ‘even a small touch to a woman’ is common assault. Asked why Ms Akbari did not appear to have told police it was an accident, he said that it was possible that she was emotional. Questioned why his children were crying he said he could not be certain but speculated it may have been because his wife had screamed or they were upset about something else.
Regardless of whether he struck Ms Akbari intentionally or by accident, the Applicant conceded it would have been distressing for his wife. He said he understand domestic violence is not acceptable and that after his conviction he had reflected on his behaviour and is ashamed of what happened and that it happened in front of his children. The Applicant was then taken to the police notes which recorded Ms Akbari advising the police she had been assaulted by the Applicant in the past but did not report him to the police due to it being frowned upon in the local Afghan community.[23] The Applicant denied that there had been any violence between him and his wife either before or after the common assault.
[23] ST1/14
Regarding the argument between he and Ms Akbari at Blacktown police station, the Applicant confirmed that the account contained in the police case notes was accurate. It was his evidence that he and Ms Akbari were ‘just talking’ though he conceded being stressed because he had to drop Ms Akbari home to allow her to pick up their children and was worried he would be late to another appointment. He speculated that his conversation with Ms Akbari may have been mistakenly perceived as an argument as Afghans generally speak loudly.
The Applicant was also questioned about the incident which took place in November 2019 at Mr Akbari’s home. When asked if he had called for Mr Akbari to fight him as recorded in the police report, he explained that whatever was said between he and Mr Akbari would not have been in English. However, he conceded that Mr Akbari’s neighbours may have been able to understand what was said and relayed his comments to police. The Applicant acknowledged that he and Mr Akbari had experienced interpersonal difficulties in the past because of tensions between he and his wife’s family. Their strained relationship had been exacerbated by the court proceedings and his subsequent conviction. Though he concedes having engaged in an aggressive conversation with Mr Akbari, he claims not to have gone to his cousin’s home with the intention of causing problems. The Applicant gave evidence that he now enjoys a great relationship with Mr Akbari who he refers to as ‘uncle’ in accordance with Afghan custom.
Ms Akbari’s evidence
In addition to written statements dated 29 June 2021 and 11 October 2022, Ms Akbari gave oral evidence in support of her husband’s application.[24]
[24] T10/74
Ms Akbari has been married to the Applicant since 2011. In her opinion his offending was a ‘big mistake’ for which the Applicant has apologised ‘many times.’ She does not consider the assault a ‘major incident’ and deeply regrets having ‘contributed to his anger.’ Ms Akbari also gave evidence that the common assault was the only time the Applicant had used violence against her.
Both she and her husband have moved on from the incident and ‘forgiven each other’ and they now share a ‘happy life’ together. She writes that the Applicant is a loving father who works hard to provide for his family. Ms Akbari also gave evidence of the Applicant having made positive changes after the assault. Asked how he had changed, Ms Akbari said he helps with housework and looking after their children when she is busy. The Applicant has also taught her to drive so she can study and work independently.
Ms Akbari is hopeful that the Applicant is granted citizenship so he can travel to Afghanistan and visit his elderly mother.
Reform
The Applicant contends that he has changed since the common assault. He has learnt from the experience and benefited from his rehabilitation and active participation at his church.
Before the Tribunal is a certificate recognising the Applicant successfully completed the 5 part court mandated ‘ENGAGE intervention’ program on 13 April 2019. The Applicant has ‘taken voluntary courses to control his anger and change his behaviour’, and ‘sought guidance and counselling from the Church.’ He also completed ‘voluntary courses’ with a psychologist in 2021’.[25]
[25] ASFIC, [14] – [15]
Psychologist Hamid Attai has provided a report dated 16 June 2021 confirming the Applicant completed a 6-session anger management course and received anger management counselling. Mr Attai reports the course assisted in identifying the underlying causes of anger, recognising personal triggers, practical tools to manage anger, addressing the impact of anger and adopting new behavioural practices to reduce and break the cycle of anger. The Applicant claims to regularly use the techniques he was taught and that they are sufficient to ‘eliminate any prospects of reoffending.’[26]
[26] ASFIC, [14]
Character references
The Applicant has provided character references in support of his application.
In statements dated 19 August 2021 and 11 August 2022, Senior Pastor Zahir Ahmed of the Christian City Church Blacktown writes that he has known the Applicant for approximately six years. He currently sees the Applicant once a week and has experienced him as a generous and pleasant person who helps others. He has been assisting the Applicant as he has ‘faced some discouraging and traumatic situations.’ Reverend Zahir Ahmed is aware of the Applicant’s offending. He believes that the Applicant understands the seriousness of the offence and has shown sincere remorse.
In statements dated 18 August 2021 and 7 September 2022, Reverend Huu Duc Tran writes he has known the Applicant for approximately three years. The Applicant has impressed him with his volunteer work and determination to be baptised. The Applicant gave evidence that he had disclosed his offending to Reverend Huu Duc Tran, who told him that the rules are ‘different’ in Australia and advised him to always be good to his family.
Martin A Brennan does not refer to the Applicant’s conviction but writes he has known him and his family for six years and notes his honesty, integrity and reliability. Co-worker Naresh Mehrok has known the Applicant for 5 years and considers him to be an honest and ethical individual. Pavan Narra writes that the Applicant an ‘upstanding, moral person.’
Barrister AJ Karim writes he has experienced the Applicant to be a person of integrity and honesty. He recounts the Applicant returned money Mr Karim had accidentally left in a washroom. Solicitor Javid Faiz believes it unlikely that the Applicant will reoffend and that the Applicant’s offending was out of character.

The Applicant’s cousin Mohammad Asef Akbari has provided a reference dated 12 June 2021 in which he states the Applicant is a family oriented and hard-working individual.
Ms Akbari’s brother Wahidullah Akbari provided a statutory declaration dated 17 October 2022. Regarding the November 2019 incident which occurred between he and the Applicant at his home, Mr Akbari writes that what happened was a ‘big mistake’ and that he and the Applicant no longer have ‘any problem whatsoever.’ He considers the Applicant to be a ‘good husband for his wife.’ Mr Akbari believes that the Applicant and his sister are very happy together and that the Applicant is working hard to provide for his family.
CONSIDERATION
In determining if the Applicant is of good character, I am to consider the evidence as a whole and the Applicant’s behaviour over time.
The Instructions provide that domestic violence is considered serious and fundamentally inconsistent with the standard of behaviour expected by the Australian community. Accordingly, it will usually weigh heavily against an individual being of good character.[27] In Ahori v Minister for Immigration and Border Protection Senior Member Sosso observed:
[t]here would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character and not a person who deserves the conferral of Australian citizenship.[28]
[27] Sharma and Minister for Immigration, and Border Protection [2015] AATA 608, [37]
[28] [2017] AATA 601, [54]
The Applicant submits that since 2019 he has demonstrated through his actions that he is of good character. He has apologised to his wife and family for the harm he has caused and for breaking the law. He plead guilty to common assault at the earliest opportunity and his offending, whilst serious, was at the lower end of the spectrum.[29]
[29] ASFIC, [11] - [12]
I acknowledge the Applicant was experiencing financial and emotional difficulties at the time of the offending. There is little evidence to support his contentions in this regard, but I accept that his father’s illness would have been particularly stressful given the circumstances. I also accept that the Applicant has made a positive contribution to the community and that his remorse is genuine.
On behalf of the Applicant it is submitted that he has engaged in counselling, completed voluntary sessions with a psychologist and that he did so prior to the decision of the delegate to refuse his application for citizenship.[30] It is argued that outside of his single offence, the Applicant has maintained behaviour consistent with being a person of good character. The Applicant submits that his good character is supported by the character references provided.[31]
[30] ASFIC, [15]
[31] ASFIC, [21]
Beginning in 2015 there have been numerous interactions between the Applicant and police following incidents involving Ms Akbari.[32] These incidents are detailed in police reports which have not been tested in court. However, the Applicant was taken to the police notes and provided an opportunity to comment on those relevant to this application.
[32] Respondent’s Statement of Facts, Issues and Contentions, [16]
The Applicant’s evidence was generally consistent with the police accounts with some material exceptions. The police notes state that in March 2019 Ms Akbari reported having previously been assaulted by the Applicant. However, both she and the Applicant gave evidence the common assault was an isolated incidence of violence. The Applicant’s account of the incident at his cousin’s house was at odds with what was recorded in the police records, though broadly consistent with the statement provided by Mr Akbari who did not feel threatened. Having regard to the evidence, I do not place any weight on either incident.
However, it is of considerable concern that the Applicant was involved in a heated argument with Ms Akbari on 31 October 2019. Notwithstanding the evidence of the Applicant and Ms Akbari, it was evidently of sufficient seriousness for police to intervene. At the time of the incident the Applicant was subject to a CRO and an apprehended domestic violence order was in place to protect Ms Akbari. It also occurred shortly after the common assault offence and the Applicant’s completion of the court mandated ENGAGE program.
The Applicant’s character references indicate that he is an active and appreciated member of the community. The references from Pastor Zahir Ahmed and Reverend Huu Duc Tran in particular demonstrate the Applicant is participating in the community and making a positive contribution.
The Instructions provide that the amount of time that has passed since an offence and conviction is a relevant consideration when determining if an applicant is of good character. In this matter the Applicant’s offending and his obligation to the Court ended relatively recently. The Applicant accepts responsibility and has expressed remorse for the offence, but his numerous and relatively recent interactions with police diminish the weight I place on these mitigating factors.
The Applicant’s offending and conduct does not preclude a finding of good character at some time in the future. However, having regard to the evidence, I am not positively satisfied the Applicant is of good character at this time and the decision under review will be affirmed.
DECISION
For the reasons outlined above, the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 26 July 2022 is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of

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Associate
Dated: 9 June 2023

Date of hearing: 15 February 2023

Solicitors for the Applicant: Ms. M Faiz, Sydney Criminal Law Specialists

Solicitors for the Respondent: Mr. M Burnham, Sparke Helmore

Date of hearing:	15 February 2023
Solicitors for the Applicant:	Ms. M Faiz, Sydney Criminal Law Specialists
Solicitors for the Respondent:	Mr. M Burnham, Sparke Helmore