Toufique and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 10

Toufique and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 10 (7 January 2022)

Division:GENERAL DIVISION

File Number(s):      2021/1377

Re:Syeda Amina Toufique

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member 

Date:7 January 2022  

Place:Sydney

The Tribunal sets aside the decision of a delegate of the Minister dated 15 February 2021 and remits it for reconsideration in accordance with the direction that the Applicant is of good character and meets the requirement of paragraph 21(2)(h) of the Act.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – whether the applicant is of good character for the purposes of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – relevant law and policy considered – relevant material considered – decision under review set aside and remitted.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

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

SECONDARY MATERIALS

Australian Citizenship Policy Statement

Australian Citizenship Procedural Instructions - CPI 15 - Assessing Good Character Under the Citizenship Act

REASONS FOR DECISION

Mr S Evans, Member 

7 January 2022

1. Syeda Toufique is a 35 year old national of Bangladesh who applied for Australian citizenship by conferral on 28 November 2019. On 15 February 2021 Ms Toufique’s application was refused as the delegate for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) was not satisfied that she was of ‘good character’, which is one of the requirements of Australian citizenship. Ms Toufique seeks review of the decision at the Administrative Appeals Tribunal (‘the Tribunal’). 

   LEGISLATIVE AND POLICY FRAMEWORK 

2. Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (‘the Act’) provides that a person may make an application to the Minister to become an Australian citizen. 

3. 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.

4. 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

5. 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 (1996) 68 FCR 422 (‘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. 

6. The Department’s official guides to decision makers, include both the Australian Citizenship Policy Statement (‘the Policy Statement’), which details the overarching legislative requirements for becoming an Australian citizen, and the Australian Citizenship Procedural Instructions (‘the Instructions’). The Policy Statement provides context to the Instructions. Departmental policy will usually be applied by decision makers, including the Tribunal, unless there are cogent reasons not to do so.

7. The Instructions relevant in this matter is CPI 15 - Assessing Good Character Under the Citizenship Act. The Instructions provide guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.

8. Informed by the discussion in Irving, subsection 3.3 of the Instructions 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.

9. The Instructions specifically call for the decision maker to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities’.  A person’s enduring moral qualities encompass:

   (a)characteristics which have endured over a long period of time;

   (b)distinguishing right from wrong; and

   (c)behaving in an ethical manner, conforming to the rules and values of Australian society.

10. I am guided by these considerations in determining whether Ms Toufique meets the good character requirement for Australian citizenship.   

    ISSUE TO BE DETERMINED

11. The sole issue to be determined is whether the Tribunal is satisfied, at the time of its decision, that Ms Toufique is of ‘good character’ for the purposes of paragraph 21(2)(h) of the Act. 

    BACKGROUND AND EVIDENCE

12. Ms Toufique and her husband Mohammad Rahman immigrated to Australia together in November 2014. She is currently the holder of a Skilled Independent (subclass 190) visa.

13. When they arrived in Australia Ms Toufique and Mr Rahman initially settled in Adelaide. After two years in Adelaide Mr Rahman received a job offer and moved to Sydney. Ms Toufique stayed in Adelaide to complete her studies and arrived in Sydney in May 2017. Mr Rahman’s parents travelled from overseas to help whilst Ms Toufique completed a placement out of state.

    Common assault offence

14. On 9 April 2019 Ms Toufique was found guilty of Common Assault (DV)-T2 in the Fairfield Local Court and sentenced to a Conditional Release Order (‘CRO’) without conviction for 12 months.

15. Ms Toufique gave evidence that on 4 December 2018 she and Mr Rahman were driving home together after work. They began arguing and when Mr Rahman, who was driving, stopped the car at traffic lights she got out of the vehicle. Mr Rahman parked the car and followed her. Ms Toufique was upset and crying and pushed Mr Rahman away from her.

16. The details of the offending as recorded by the NSW Police are provided in the NSW Police Force Computerised Operational Policing System. Although broadly consistent with Ms Toufique’s account, it is recorded that Ms Toufique punched Mr Rahman once ‘to the face area’ which resulted in Mr Rahman’s glasses to falling to the ground. After this, Mr Rahman is reported to have slapped Ms Toufique ‘to the head area’ whilst she was seated on the ground. Both Ms Toufique and Mr Rahman were arrested and charged as a result of the incident.

17. Ms Toufique describes a difficult period for the couple prior to the offending. Her father passed away in September 2018 and both she and her husband were busy with their respective jobs whilst managing other priorities. They were also feeling the pressure as they prepared for the purchase of their home in November.

    Application for citizenship

18. Ms Toufique lodged an application for Australian citizenship on 28 November 2019. In answer to the question [h]as the applicant ever been charged with any offence overseas or in Australia that is currently awaiting legal action? she answered ‘Yes’. However, to the question ‘[h]as the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)? She answered ‘No’.

    Driving offence

19. The summonsed documents from NSW Police reveal that Ms Toufique was issued a traffic infringement notice following a traffic offence on 15 June 2020. Police records detail that she was ‘observed to be using a hand held mobile telephone’. It is recorded that whilst her phone was in a cradle, she was observed to be engaged in a video call. Ms Toufique, who is a nurse, explained to the officer that she was talking to family and helping with a diagnosis. She reportedly told the officer that she was ‘only watching YouTube before that’. 

20. During the hearing Ms Toufique confirmed that she received the traffic infringement notice. She told me that she was listening to music on YouTube through her phone when her sister, who lives in Sweden called. Ms Toufique answered the phone through hands free and was talking to her sister on speaker. Her sister feared her husband was experiencing COVID-19 symptoms and wanted to discuss her husband’s condition with Ms Toufique as she is a nurse.    

    Character references

21. In a character reference Dr Mahbuba Akter Shampa, who is the Practice Principal at Icon Health Care Centre, states that she has met Ms Toufique’s family and she considers Ms Toufique a hard working and honest individual who is a pleasure to work with. Dr Akter Shampa does not mention the offending, but Ms Toufique told the Tribunal she was aware of it. In an undated letter Mr Rahman writes that he and his wife have regained their ‘harmony successfully’ after the offending. 

    Rehabilitation  

22. Ms Toufique completed an online course titled ‘Anger Management Techniques That Actually Work’ on 8 March 2021.

    CONSIDERATION

23. The Respondent contends that the offending for which Ms Toufique received a CRO without conviction is both serious and an act of domestic violence. Further, it should be considered that the implementation of an AVO means that the court was satisfied that there was an ongoing basis to apprehend further acts of violence being perpetrated by Ms Toufique on the victim. 

24. Having been issued a 12-month CRO, there is no question as to Ms Toufique’s offending. She did not seek to deny the offending, though there was some dispute about the specifics of what is recorded to have occurred in the NSW Police documents. Ms Toufique is recorded as being both the perpetrator and a victim in the police records. There is no evidence before the Tribunal to indicate that any similar incidents occurred prior to or after the offending I am satisfied that the seriousness of the offending was at the lower end of the scale.

25. Whilst the delegate made the reviewable decision without reference to the traffic offence, it does count against a finding of good character. 

26. The Respondent relies on Ms Toufique’s incorrect answers to two questions in her citizenship application as evidence she does not meet the good character requirement. Specifically, Ms Toufique incorrectly answered a question about whether she had been convicted of a crime. In a separate question she indicated she had been charged with an offence and was awaiting legal action and where asked to give details wrote ‘Charges of common assault’, despite having already been found guilty of common assault.

27. Ms Toufique indicated that the incorrect answers were in part due to English being her second language. I accept the Respondent’s observation that Ms Toufique has a strong grasp of English and her explanation is not entirely satisfactory. However, a poor grasp of English is not a prerequisite for a lay applicant who receives a sentence ‘without conviction’ to answer in the negative a question which begins ‘has the applicant been convicted of…?’. That she answered clearly and spelt out the details of the offence in one of the questions indicates that Ms Toufique was not being untruthful or attempting to mislead. In the circumstances I consider the incorrect answers to be a reflection on the wording of the questions as opposed to Ms Toufique’s character.

28. On 13 January 2021 in response to a procedural fairness letter sent by the Respondent, Ms Toufique wrote that the assault case ‘concluded on 13 December 2009’ and that she had ‘followed my [sic] guideline for the conditional release order without conviction with the duration for 9 months’. Regardless of whether 13 December 2009 was a reference to the date of offending, the date of conviction or the date at which the CRO expired, the date is incorrect. As the actual date of conviction is provided in the letter to which she was responding, I accept that it was an inexplicable act of carelessness rather than an attempt to mislead the Respondent.

29. In considering Ms Toufique’s character I am required to look holistically at her behaviour in reaching a conclusion about her enduring moral qualities. I take into account that she has worked hard and lived away from her family for a period so that she might pursue a career in her chosen field of health care.  

30. The Respondent’s contention about the relative lack of character references is not disputed. As a family member, Mr Rahman’s reference for his wife is afforded limited weight. I accept that the reference from Dr Shampa indicates Ms Toufique is a valued employee. 

31. Ms Toufique was candid about her intention in completing the anger management course. She told me it was an effort to address the observation of the delegate who refused her application who wrote that Ms Toufique had not provided any evidence of rehabilitation.

32. Whilst the delegate’s observation is valid, beyond the single incident which led to the offending there is no evidence to suggest that Ms Toufique requires rehabilitation. In fact, her actions just prior to the offending, corroborated by the Police records, indicate she sought to diffuse the argument with her husband by exiting the car. In doing so I am satisfied that she demonstrated a measure of anger management and conflict avoidance skills. 

    CONCLUSION

33. The common assault offence, whilst serious in nature, is at the lower end of the spectrum, particularly as Ms Toufique was both the perpetrator and a victim during the incident. That the offence occurred during a challenging time for Ms Toufique does not lessen its seriousness but it does indicate it was out of character and diminishes the likelihood of it occurring in the future. To this point in the two years since the offending, there is no evidence before the Tribunal which would indicate further incidents of this nature. The driving offence for which she was issued an infringement notice appears an isolated lapse of judgement and not indicative of a moral failing or disregard for the law. 

34. Ms Toufique impressed as an individual who had been chastened by the consequences of her offending and the subsequent difficulties which arose as a consequence – most notably during the process of applying for Australian citizenship. In considering the totality of the circumstances I find that Ms Toufique meets the requirements to be considered of good character at this time.

    DECISION

35. For the reasons stated above, the Tribunal sets aside the decision of a delegate of the Minister dated 15 February 2021 and remits it for reconsideration in accordance with the direction that the Applicant is of good character and meets the requirement of paragraph 21(2)(h) of the Act.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 7 January 2022

Date(s) of hearing:	17 September 2021
Date final submissions received:	17 September 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms K Gawidziel, Australian Government Solicitor