Slewa Slewa and Minister for Immigration and Border Protection
[2014] AATA 484
•17 July 2014
[2014] AATA 484
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0041
Re
Slewa Slewa
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms J L Redfern, Senior Member Date 17 July 2014 Place Sydney The decision under review is affirmed.
..............[sgd]..........................................................
Ms J L Redfern, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – application refused – whether applicant is of good character – proceedings for an offence against an Australian law pending – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 20, 21, 24
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Al Hashimi and Minister for Immigration and Citizenship (2012) 130 ALD 640; [2012] AATA 534
Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372; [2011] AATA 304Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Australian Citizenship Instructions, Ch 10
REASONS FOR DECISION
Ms J L Redfern, Senior Member
17 July 2014
BACKGROUND
The applicant, Mr Slewa Slewa, is a citizen of Iraq who migrated to Australia from Syria with his family in 2009. Mr Slewa has two older sisters and two younger brothers. His oldest sister recently moved to Australia with her son. Mr Slewa lives with his family.
Mr Slewa was 18 years old when he arrived in Australia. After attending International College to learn English, he attended TAFE to study a trade as a painter and decorator. Mr Slewa completed his Certificate IV in painting and decorating and has been working with a commercial maintenance company as a painter and decorator but has not worked in recent months because of injuries he sustained in a motor vehicle accident.
On 29 March 2012, Mr Slewa was charged with the criminal offence of “destroy or damage property”. He pleaded guilty and was sentenced to a good behaviour bond of 12 months, without conviction. The bond was discharged on 23 May 2013. There was also an apprehended domestic violence order (AVO) made on 23 May 2012 against Mr Slewa in respect of his mother, Mrs Najat Moshi. This order was for a period of six months. There is no evidence that Mr Slewa breached his bond or the AVO during the relevant period. The bond and AVO arose out of a family dispute, principally involving Mrs Moshi and Mr Slewa’s father.
The circumstances that led to the bond and AVO are set out in a facts sheet presented to the Fairfield Local Court. Both Mr Slewa and Mrs Moshi provided further evidence about the circumstances and their accounts were consistent with each other and the facts sheet. Mrs Moshi was reportedly in communication over the internet with a man. Mr Slewa’s father discovered this, became angry and showed Mr Slewa photographs taken of the communications. On his own admission, Mr Slewa became very angry, entered his mother’s room and threw his mother’s computer monitor on the floor, smashing it. Mrs Moshi was crying during this incident, which also involved other members of the family. Mr Slewa agreed that his mother was frightened and upset. She fled the house and later went to the police to complain. Charges were laid against Mr Slewa and his father. Mrs Moshi later returned to the family home and, according to Mr Slewa and Mrs Moshi, she has since reconciled with Mr Slewa and her husband.
On 1 August 2013, the Department of Immigration and Citizenship (as it was then known) received an application from Mr Slewa for citizenship. He was 22 years old at the time of his application. Mr Slewa did not disclose his previous criminal record and in answer to the question “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia”, Mr Slewa responded “No”.
On 24 October 2013 a delegate of the Minister wrote to Mr Slewa advising him that the delegate had become aware of Mr Slewa’s criminal record and was proposing to take this into consideration in dealing with his application. Mr Slewa was given an opportunity to respond. Mr Slewa provided copies of his bond and a letter, which was also signed by Mrs Moshi, to the effect that he was living with Mrs Moshi and the dispute between them had “all been [sorted] out”.
On 13 December 2013 the delegate refused Mr Slewa’s application because he was not satisfied Mr Slewa was of good character. The delegate based this finding on Mr Slewa’s criminal record, the seriousness of his offence, his lack of character references, his failure to disclose his record and, in particular, his failure to establish a “pattern of good behaviour”.
At the hearing, Mr Slewa provided character references and was supported by evidence from his mother. Mr Slewa also gave evidence. He said that he made the application because he loved Australia. Taking into account the difficult experiences of living in Iraq and, especially, Syria, he wanted to be an Australian citizen because he appreciated the benefits and opportunities that were available.
During the hearing it emerged that Mr Slewa is currently facing charges of “driving in a manner dangerous” or, in the alternative, “negligent driving”. This matter is listed before the Court on 19 August 2014, but is unlikely to be resolved on this date and, according to his lawyer, would be likely to be adjourned for a further six weeks. To his credit, Mr Slewa freely gave an account about this incident and assisted the Tribunal in obtaining information from his lawyer to ascertain the precise nature of the charges before the Court.
The existence of these pending proceedings have a critical impact upon Mr Slewa’s application for citizenship and, therefore, his application for review. His application for citizenship cannot be approved at a time when proceedings for an offence against an Australian law are pending. I am not satisfied that Mr Slewa is of good character but given the pending proceedings, his review must fail in any event. I affirm the decision of the delegate and my reasons follow.
STATUTORY FRAMEWORK AND POLICY
The relevant legislation which is the subject of this review is the Australian Citizenship Act 2007 (the Act).
Section 20 of the Act provides that a person will become an Australian citizen if the Minister decides to approve an application under s 24(1) of the Act. This is known as citizenship by conferral.
An application for citizenship by conferral may be made where a person meets the eligibility requirements under s 21 of the Act.
The Minister must not approve an application unless the person is eligible to become an Australian citizen under subss (2) to (8) (s 24(1A) of the Act).
At the time of the decision, s 21(2) of the Act provided:
(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 has completed relevant defence service (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.
There is no contest that Mr Slewa satisfies ss 21(2)(a) to (f) but (g) was not assessed because the delegate was not satisfied Mr Slewa was of “good character” within the meaning of subs (h). There is also no contest that the other grounds for eligibility set out in ss 21(3) to (8) do not apply.
If a person is eligible to make an application, the Minister must either approve or refuse to approve the person becoming an Australian citizen but is not required to approve the application for citizenship simply because the applicant is eligible to make application (s 24(1)). The Minister has discretion as to how to exercise this function.
At the time of the delegate’s decision and the time Mr Slewa’s application was filed with this Tribunal, the key issue in dispute was whether Mr Slewa was of good character. However, consistent with the High Court decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, unless the legislative provisions under which the decision under review was made provide to the contrary, the Tribunal must address the issues raised by those provisions having regard to the facts and circumstances that exist at the time the Tribunal’s decision is made. As such, I must take into account all information available at the time of the hearing in coming to the correct or preferable decision.
This is relevant because since filing his application for review, Mr Slewa has been charged with a criminal offence. This matter must be taken into account given the terms of s 24(6) which provides:
The Minister must not approve the person becoming an Australian citizen at a time:
(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
(b) when the person is confined to a prison in Australia; or
(c) during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or
(d) if the person is a serious repeat offender in relation to a serious prison sentence–during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or
(e) if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence–during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or
(f) if the person:
(i) has been released by a court from serving the whole or a part of a sentence of imprisonment; and
(ii) has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or
(g) if, in respect of proceedings for an offence against an Australian law in relation to the person:
(i) a court does not impose a sentence of imprisonment on the person; and
(ii) the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or
(h) during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
The Department of Immigration and Border Protection has published guidelines to assist decision-makers in respect of the exercise of the powers and functions under the Act, known as Australian Citizenship Instructions (ACI). The ACI is revised from time to time. The ACI considered by the delegate was the ACI, as revised, which came into effect from 1 July 2013. The ACI has been further revised with effect from 1 July 2014. There are no material differences between the 2013 and 2014 versions of the ACI in relation to the matters which are the subject of this review. The guidelines in the ACI are matters the Tribunal should take into account when reviewing the decision of the delegate of the Minister unless there is good reason not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409. Mr Slewa has not challenged the ACI as being contrary to law and I have not identified any deficiencies in respect of the guidance relied on by the Minister said to be relevant to this matter.
There is no legislative guidance in the Act about the meaning of “good character”. Chapter 10 of the ACI provides guidance on how a decision-maker should assess an applicant’s character.
Relevantly, clause 10.1.2 provides:
‘Good character’ refers 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 (see section 10.3 What is good character).
…
This explanation is referred to in more detail in clause 10.3 of the ACI, which notes, at cl 10.3.1, that most cases have adopted the following definition from the Full Federal Court judgment in Irving v 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 whilst the latter is a review 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.
As noted by Forgie DP in Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372; [2011] AATA 304 at [118] to [119], the “enduring moral qualities” of a person may be assessed by reference to “the person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values”. According to Forgie DP, the Preamble to the Act provides assistance in identifying what society considers good, right and proper. I agree with this proposition.
The Preamble provides as follows:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Clause 10.3.3 of the ACI notes that community standards may also be found in the Australian values statement, which is a statement citizens are required to confirm at the time they apply for a visa. This statement includes the following:
Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, Parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair play and compassion for those in need and pursuit of the public good.
While the guidance in Chapter 10 recognises that compliance with Australian laws is a significant factor in assessing a person’s character, mitigating factors such as the length of time that has passed since offending, whether the applicant has accepted responsibility and shown remorse for their conduct and whether a reasonable amount of time has passed since the applicant was free of obligation to comply to establish a pattern of good behaviour are also identified as relevant. For instance, a person who has committed an offence may nonetheless be able to satisfy a decision-maker that they have “re-established” good character by reason of their conduct, behaviour and standing in the community since this time (Re Al Hashimi and Minister for Immigration and Citizenship (2012) 130 ALD 640; [2012] AATA 534).
In summary, whether a person is of good character can be assessed by factors such as their understanding, commitment and compliance with Australian laws and their commitment to community values, as described in the Preamble to the Act and the Australian values statement. The importance of compliance with Australian laws is underscored by s 24(6), which expressly provides that the Minister must not approve an application for citizenship during a period in which the applicant is involved in the criminal process, including proceedings, sentencing, imprisonment or bonds.
CONSIDERATION
Mrs Moshi gave evidence in support of her son and said that they were now reconciled. She said that she was sorry she had made the complaint to police because of the trouble it had now caused Mr Slewa in his citizenship application.
Mr Slewa said he was sorry about “the situation” but had forgiven his mother and they were now living together harmoniously. When asked what he had “forgiven” his mother for, Mr Slewa said for what had happened. He said that he realised his mother was frightened by his actions at the time and he had been angry with her for several months after she returned home. Mr Slewa did not express remorse for making Mrs Moshi frightened. Mr Slewa said he had assistance in completing his application for citizenship because he had some difficulties in reading and writing English but said that he did not disclose the offence in his application for citizenship because he “did not think it was a big thing”. Mr Slewa was questioned about whether the reason he had not answered “yes” to this question was because he thought he was justified and Mr Slewa agreed. He also agreed he was sorry because the offence had prevented him from being granted Australian citizenship.
When questioned about his offending, Mr Slewa expressed the view that his mother was wrong to communicate online with a male friend and to file a complaint with the police. Mr Slewa said he loves his mother, which was consistent with observations of their interactions during the hearing, but it was also clear from his evidence that even though he knew Mrs Moshi was frightened at the time, he felt his actions and his father’s reaction were justified. Mr Slewa struggled with the notion that, regardless of how he felt about his mother’s conduct, violence and aggression against her was not lawful in Australia. He said that in his country his mother would have been asked to explain herself and his actions would not have been questioned. Mr Slewa conceded he had “learned a lot” and did not understand the law in Australia but nevertheless failed to express remorse for his actions against his mother, other than the effect that it was likely to have upon him.
Mr Slewa provided references from his employer, his parish priest, a local politician and his general practitioner. Only one of the references referred to his criminal record and the others simply referred to the issue as “marital” or “family” issues. None of the references indicated that the referees understood the nature of the offences or that an AVO had been made against Mr Slewa. The parish priest was contacted by telephone to clarify his reference but he could not provide any details about the incident. He said that from what he knew of Mr Slewa he was a “good person”. Mr Slewa’s local Member of Parliament stated in a letter that he was confident that Mr Slewa was a “diligent, thoughtful and respectful young man” and that “he was of good character”. However, according to Mr Slewa, he did not know the Member personally and had met him for the first time in his office on 11 March 2014. The Member knew his family and, in particular, his father.
These references are of limited value in assessing Mr Slewa’s character and I give them little weight. What is of the greatest assistance in assessing Mr Slewa’s character is his own evidence about the circumstances leading to his bond, his views about his offending and understanding of Australian law and the recent events which have resulted in charges being laid against him. In respect to the latter, according to Mr Slewa, he was driving along the Old Hume Highway when a driver nearby applied his brakes on several occasions, annoying Mr Slewa. Mr Slewa attempted to overtake him and when he did so, the driver stuck his finger up at him and swore at him. Mr Slewa said that he became very angry, lost control of his car and crashed his car into another vehicle. Mr Slewa was seriously injured as a result of the accident. He spent three weeks in hospital and had an operation on his hip. This incident demonstrates that Mr Slewa has difficulty in managing his anger which has resulted in a serious accident, causing harm and damage to others as well as to himself.
As noted in the ACI, where a person has a criminal record they may nonetheless be of good character having regard to the nature of the offence, any mitigating circumstances and whether sufficient time has passed for them to have reformed and demonstrate a pattern of good behaviour and character.
The lawyer for the Minister submitted that Mr Slewa’s offence was serious and that he had received a moderate sentence. In my view, this is an overstatement of the offence and the sentence. Mr Slewa was not given a custodial sentence nor was a conviction recorded. He was given a bond for 12 months. The offence was serious in that it involved aspects of domestic violence against his mother who was a vulnerable person in the presence of Mr Slewa’s young brother who was 13 years old at the time. However, there is no evidence of a physical assault against Mrs Moshi’s person but rather against her property. The sentence imposed clearly cannot be described as “moderate”, given it was non-custodial and was at the lower end of the range. In my view, this offending would not of itself preclude Mr Slewa from being of “good character”.
The real difficulty is that Mr Slewa does not acknowledge his actions were not justified and while he states that he has “learned a lot”, there is no evidence he accepts and understands that Australian law does not allow violence and aggression against women. While Mr Slewa was not the only perpetrator against Mrs Moshi, he participated in the incident and continued with his aggressive actions even though he knew that his mother was frightened. For instance, he did not cease his aggressive conduct or go to his mother’s aid when she was crying and his father was being abusive. Furthermore, Mr Slewa has now been charged with other offences against Australian law. As already noted, the consequences of his actions in respect of this further incident were serious.
I am therefore not satisfied that that Mr Slewa is of good character at this point of time.
Under s 43(1) of the Administrative Appeals Tribunal Act 1975 I may affirm, vary or set aside a decision under review. If the decision is set aside, I must either make a decision in substitution for the decision so set aside or remit the matter for reconsideration in accordance with my directions or recommendations. Even if I was of the view that Mr Slewa had changed his views, had demonstrated a pattern of good behaviour and was of good character, I could not set aside the decision to refuse his application for citizenship and substitute a decision to approve by reason of s 24(6) of the Act. There is no dispute Mr Slewa has proceedings for an offence against an Australian law pending at this time and those proceedings will not be resolved until at least 19 August 2014, but more likely late September 2014. There would be little utility in setting aside the decision under review and remitting it for reconsideration because of the proceedings pending against him. If Mr Slewa is found guilty and imprisoned or released on a bond, the Minister or his delegate, could not approve Mr Slewa becoming an Australian citizen. These are matters not known at this time but the circumstances leading to the pending proceedings are nonetheless relevant to consideration of Mr Slewa’s character.
Having regard to these matters, I affirm the decision under review.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member ..............[sgd]..........................................................
Associate
Dated 17 July 2014
Date of hearing 10 July 2014 Applicant In person Solicitors for the Respondent Ms C Hillary, DLA Piper Australia
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