Suhopoljac and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 150

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 150

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/810

GENERAL ADMINISTRATIVE DIVISION		)
Re		IBRO SUHOPOLJAC

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date18 February 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Dr J D Campbell   Member

CATCHWORDS

AUSTRALIAN CITIZENSHIP – application for grant of Australian citizenship - refusal - issue of whether Applicant is of good character - criminal history – decision affirmed.

Australian Citizenship Act 1948, sections 13(1)(f) and 52A

Australian Citizenship Instructions

REASONS FOR DECISION

18 February 2005 Dr J D Campbell, Member

1.      Mr Ibro Suhopoljac seeks a review of the decision to refuse his application for grant of Australian citizenship made by an assessing officer, of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”), on 9 June 2004.

background

2.      Mr Suhopoljac was born in Bosnia – Herzegovina on 5 April 1960. He migrated to Australia as a permanent resident on 28 August 1998. He was accompanied by his wife and two sons.

3.      On 27 January 2004, Mr Suhopoljac was charged with two counts of common assault.

4.      On 19 May 2004, Mr Suhopoljac was found guilty of the offence in the NSW Local Court; no conviction was recorded and he was placed on a good behaviour bond for 18 months. A condition of the bond is that Mr Suhopoljac must comply with a five year apprehended violence order (“AVO”) which was taken out by his wife against him; the protected persons being his wife and son, born in 1986.

5. On 21 May 2004, Mr Suhopoljac applied for a grant of Australian Citizenship. Mr Suhopoljac did not disclose the offence on the application form. On 9 June 2004, the Respondent’s delegate refused to grant Australian Citizenship to Mr Suhopoljac, not being satisfied that Mr Suhopoljac is of good character as required under section 13(1)(f) of the Australian Citizenship Act 1948 (“the Act”).

issue

6. The relevant issue in this matter is whether Mr Suhopoljac is a person of good character pursuant to section 13(1)(f) of the Act.

decision

7. For the reasons detailed later in this decision, I am not satisfied that Mr Suhopoljac is a person of good character pursuant to section 13(1)(f) of the Act. I therefore affirm the decision of 9 June 2004, which refused Mr Suhopoljac’s application for Australian Citizenship.

evidence of mr suhopoljac

8.      Mr Suhopoljac detailed the following evidence:

(a) He married his wife in 1985. His wife was planning to be a lawyer. He was a policeman/gaoler for eight years and served as a private in the Bosnian Army for three years. He is a Muslim and his wife is Greek-Orthodox. His wife went to Germany in 1992, lived with her sister and secured work in nursing.  Prior to leaving Bosnia in 1995 Mr Suhopoljac had been arrested and gaoled for nine days and expected to be shot. The reason for his arrest was war crimes committed by a relative of his wife.

(b) In 1995 he left Bosnia as he had become depressed following the death of a nephew.  He went to Germany to join his wife who was working in a nursing home. As Mr Suhopoljac was unable to remain in Germany because he could not secure a work permit, he applied for permanent residence in America and Australia in 1998, with a positive response received from Australia.

(c) Since arrival in Australia he has learnt English, secured a TAFE Diploma after three years of study and worked part-time as a security officer.

(d) On the evening of 26 January 2004, his wife told him that she had received a mobile phone call about being photographed. They talked about their futures; Mr Suhopoljac’s desires of furthering his education and his wife’s wish to be a registered nurse. Mr Suhopoljac stated that later that evening he became suspicious of his wife’s assertion that she was unaware of the origin or purpose of the mobile phone call.

(e) On the following morning his wife left with his son to go to the city at 0600 hours. At 0900 hours he answered the mobile phone to find a man asking for his wife. Mr Suhopoljac asked the man about his intention to photograph his wife in various postures and whether they were to be naked. The caller is said to have ceased the call. At 1200 hours his son had a dental appointment at the dental hospital (previously checked). At 1300 hours, his wife and son having returned, he prepared lunch whilst his wife retired to rest for 15 to 20 minutes.

(f) Mr Suhopoljac stated that he then confronted his wife; she tried to hit him with the phone; he shook her by the shoulder; his son intervened and was rude to him. He tried talking to his wife while his son was in another room, but his wife yelled and hit him a couple of times. He was upset and went and sat in the living room, where he was joined by his wife who had calmed down.  His wife then went out and five minutes later the police arrived. He was arrested, spent the night in jail and after his release went to his sister’s house.

(g) Since that time he has seen his wife twice, is unaware as to where his children are and is keen to get on and live his own life, dedicated to poetry. He hates and loves his former wife and currently has no girlfriend. Mr Suhopoljac is not working having lost his security guard licence because of his convictions. He receives Newstart Allowance and his mother, brother and sister are all Australian Citizens.

9.      In a submission to the Tribunal, dated 5 October 2004, Mr Suhopoljac explained that the reason for not detailing positive responses where appropriate to questions relating to character at paragraph 44 of his application for Australian Citizenship, was a misunderstanding between him and the interviewing officer.    

10.     The following individuals provided character references in support of Mr Suhopoljac’s application:

(a) Mr Bayro Helich OAM, Secretary General Australia – Bosnia & Herzegovina Friendship Association and Chairman of the Bosnia & Herzegovina Cultural Society of New South Wales (Exhibit A1).

Mr Helich states that Mr Suhopoljac is well admired by members of society and is respected by the community.  He notes that Mr Suhopoljac is a writer of prose and poetry and that his cultural contribution has been much appreciated by the community. Mr Helich also states that Mr Suhopoljac is an excellent friend, father and husband. Further, Mr Helich believes that Mr Suhopoljac’s wife is a jealous person who tends to exaggerate and that there have been jealous fallouts in the past, which, at times, have taken a physical form. Mr Helich confirmed his written reference in oral examination, at which time he noted the somewhat tempestuous temperament of Bosnian people in resolving disputes.

(b) Mr Thaer Alburgif (Exhibit A3).

Mr Alburgif considers Mr Suhopoljac to be a man of great integrity, dedicated to his family and work, entirely peace-loving, gentle, dependable, reliable, hard working, conscientious and honest. In oral evidence Mr Alburgif confirmed he was aware of the circumstances that led to the court order, and that he and Mr Suhopoljac shared a passion for poetry.

(c) Mr Fahir Zecevic, journalist .(Exhibit A8).

Mr Zecevic considers Mr Suhopoljac to be very honest, hard working, a celebrated writer and poet, with his contribution being priceless for the Bosnian community.

(d) Senada Softic-Telalovic, President of the Australian Council of Bosnian Herzegovina Organizations (Exhibit A6).

Softic-Telalovic considers Mr Suhopoljac to be a highly educated, qualified and experienced individual with a genuine interest in community development, and a person who has strong social justice principles and is exceptionally sensitive to those most disadvantaged.

(e) Felipa De Leon, Fellow Student at Miller Campus (Exhibit A2),

Felipa De Leon considers Mr Suhopoljac to be a man of great integrity, dedicated to his family and work, peace loving and a person with a gentle nature.

(f) Colin Tekely, Diploma Co-ordinator – Miller Campus (Exhibit A4),

Mr Tekely considers Mr Suhopoljac to be hard working, a team player, creative and innovative in problem-solving and a man who does not act in haste, but thinks out problems.

(g) Julio Mercado, TAFE Teacher (Exhibit A5).

Mr Mercado considers Mr Suhopoljac to be an honest, reliable person and gentle person, with a high sense of respect for fellow students and teachers.

consideration and finding

11. I note that the relevant legislation in this matter is section 13(1)(f) of the Act which provides that:

“(1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person, who satisfies the Minister that:

….

(f) the person is of good character.”

12.     I also note the guidance for decision makers contained within the Australian Citizenship Instructions (“ACI”). Such policy should be applied unless it is unlawful or its application produces an unjust decision in the circumstances (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

13.I further note the following paragraphs within chapter 5 of the ACI:

“ 5.4.2 The term ‘good character’ is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of serious criminal record, however, general conduct and associations may be relevant.

5.4.3. If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he /she is in fact of good character. An applicant’s behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.

5.4.4.      Assessment of good character involves:

·establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;

·according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and

·considering the full circumstances relating to the relevant matters and evidence of the applicant’s behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.

...

5.4.7…the seriousness of any offences committed by the applicant in the context of ordinary community standards.

…

5.4.8 …deliberate concealment [of an offence]

5.4.9…whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond

…

5.4.11…whether a crime was a one-off occurrence that can be considered “out of character”

…

5.4.12whether there were extenuating circumstances relating to the crime being committed.

…

5.4.16The applicant’s behaviour since commission [of offence]

…

5.4.17The applicant’s present reputation in the community

…”

14.     In considering the circumstances and events that led to the offences and the subsequent court proceedings and orders issued by the court, I recognise that I have but one story as to those events. Nevertheless it is evident that a domestic dispute did occur, that it escalated to the extent that one party called the police, with the police later arresting Mr Suhopoljac, charging him with two counts of common assault, holding him overnight in jail, prior to releasing him on bail. I also note the magistrate’s rulings and the non recording of the conviction, with Mr Suhopoljac entering into a good behaviour bond for 18 months with a condition that he comply with an AVO, which is for a period of five years.

15.      In such circumstances I conclude that the offences of common assault committed by Mr Suhopoljac were serious in the context of ordinary community standards. In reaching such a conclusion I place weight on the fact that the offences were committed against his wife and son, and that an AVO was to remain for five years to protect both the wife and son.

16.     Further, I must register that Mr Suhopoljac continues to hold bitter resentment against his wife and son relating to the events of 27 January 2004, as evidenced by some of his statements during the hearing.  While Mr Suhopoljac expresses a desire to get on and lead his own life, there remain unresolved issues with his wife and son, including divorce. I believe Mr Suhopoljac’s behaviour during such periods of necessary interaction with his family could prove to be somewhat turbulent.

17.     Further I note Mr Suhopoljac’s reasons for not completing paragraph 44 (“character”) correctly. In stating, as he did to the interviewing officer when applying for citizenship on 21 May 2004, that he had a dispute with his wife, we are currently separated and I am expecting a divorce (statement of 5 October 2004), it becomes evident why the particular questions were answered in the negative. I can only conclude that the full circumstances of what had befallen Mr Suhopoljac in the Liverpool Court some two days earlier were not made known to the interviewing officer. While I note that Mr Suhopoljac is a relatively new permanent resident in this country, I also note his previous experiences as a policeman /gaoler in Bosnia over a period of seven years. In the light of such I consider it more likely than not that Mr Suhopoljac elected not to declare his offences, or his bond.

18.     I note that Mr Suhopoljac has remained unemployed since the incident and that he would wish to further his education, while enhancing his activities as a writer and a poet. While these are laudable ambitions I note that he is receiving Newstart Allowance and that employment may assist him in securing his future goals. 

19.     I also note the references which were provided and that they (Exhibits A1, A3, A8) were given with knowledge of the events of 27 January 2004. The references all point to Mr Suhopoljac being well respected in his community, gentle, hard working, dedicated to his family, peace loving, conscientious and honest as well as being a respected poet and creative writer.

20.     Nevertheless it is my finding that, upon consideration of all that I have noted, Mr Suhopoljac does not satisfy my assessment that he is of good character. In so finding I have placed weight on his offences, the nature of those offences, the good behaviour bond for 18 months and the AVO in place for a period of five years. I have placed weight also on his failure to declare his offence history at time of application of citizenship some two days after his court appearance. I have considered and concluded that while the offences related to a domestic affray, I am not satisfied that Mr Suhopoljac will be able to restrain his underlying bitter resentment against his wife and son until all matters in dispute are resolved or finalised in part by divorce, allowing each party to go their separate ways.

21.     I acknowledge that Mr Suhopoljac in his journey through life has encountered much turbulence and many difficulties. I acknowledge his ability to survive and continue to grow and commit to his community as demonstrated by the many references attesting to such. Nevertheless at this time factors which demonstrate a goodness of character are outweighed by attributes and activities of Mr Suhopoljac that impugn such a good character assessment. A future assessment in some two years or more may alleviate many of the negative issues.

22. It is for these reasons I find that Mr Suhopoljac is not of good character pursuant to section 13(1)(f) of the Act and as a consequence I affirm the decision of 9 June 2004 to reject his application for Australian Citizenship.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         A. Krilis  Associate

Date/s of Hearing  20 January 2005
Date of Decision  18 February 2005
Representative for the Applicant    Self
Solicitor for the Respondent          Ms Catherine Petre