Vanaki and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 2159

Vanaki and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2159 (1 July 2024)

Division:GENERAL DIVISION

File Number(s):      2022/8942

Re:Amirali Vanaki

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:1 July 2024

Place:Sydney

The decision under review is set aside and remitted with a direction that the applicant is of good character, satisfying subsection 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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Senior Member A Poljak

CATCHWORDS

CITIZENSHIP — Application for citizenship by conferral — Whether the Tribunal can be satisfied that applicant is of good character — Application of Citizenship Procedural Instruction 15 — Decision under review affirmed

LEGISLATIONS

Australian Citizenship Act 2007 (Cth)

Children (Criminal Proceedings) Act 1987 (NSW)

CASES

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15)

REASONS FOR DECISION

Senior Member A Poljak

1 July 2024

1. Amirali Vanaki, the applicant, is a citizen of Iran. He first arrived in Australia on 16 July 2015 as a dependent child of his mother on a Woman at Risk (subclass 204) visa.

2. In 2017, the applicant committed the offence of Robbery armed with offensive weapon - SI, and the applicant was found guilty without proceeding to conviction on 17 November 2017 by Parramatta Children’s Court. He was released on probation for 12 months pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW) (C(CP) Act), commencing on 17 November 2017. The conditions of his probation included that he must be of good behaviour and appear before the Court during the bond term if required; accept supervision and guidance of the Juvenile Justice Service for as long as deemed necessary; to report to Juvenile Justice Service at Blacktown Juvenile Justice Office within 7 days; and to attend counselling and programs as directed.

3. In 2019, the applicant committed the offence of Affray - T1. The applicant was initially refused bail. On 24 July 2020, the Parramatta Children’s Court found the applicant guilty without proceeding to conviction. He was released on probation for 6 months pursuant to s 33(1)(e) of C(CP) Act, commencing on 24 July 2020. A non-association order was also issued, prohibiting the applicant from being in the company of or communicating by any means with the 9 persons named in the order from 24 July 2020 to 23 July 2021.

4. On 21 December 2021, the applicant lodged an application for Australian citizenship by conferral.

5. On 5 October 2022, the applicant’s citizenship application was refused as the delegate was not satisfied that the applicant is of good character, and therefore found that the applicant did not meet the requirement under subsection 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). This is the decision under review in these proceedings.

   Good character

6. The issue for the Tribunal's determination in this matter is whether the Tribunal can be satisfied that the applicant is of good character, pursuant to subsection 21(2)(h) of the Act.

7. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).

8. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

9. As to the definition of good character, Justice Davies of the Full Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [424]-[425], [427]-[428]:

   The question whether a person is or is not of “good character” is primarily an issue of fact. …

   It should also be observed that the term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute …

   Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. …

   The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.

10. Justice Lee observed 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…

11. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated 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 and overseas. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

12. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community. (Emphasis added)

13. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    Offending Conduct

14. The applicant's offending is considered to be serious, particularly given that armed robbery is expressly included in CPI 15 as an example of a serious offence. I do note that at the time of committing his first offence of armed robbery, the applicant had only been in Australia for two years and was only 15 years of age at the time.

15. The NSW Police Facts Sheet details the circumstances of the offence and recorded that the applicant was a Year 9 student, attending a high school in Parramatta at the time. On the evening of 2 August 2017, the applicant and 2 other offenders agreed to rob the Speedway Service Station in Harris Park. They confronted the victim, the service attendant, at the counter, and the applicant demanded money and cigarettes, while another held out a folding knife with a 9cm blade toward the victim. The victim placed $1,136 and 18 packets of cigarettes in the bag. The offenders fled. The applicant was located hiding and was arrested. At the police interview, the applicant admitted to taking part in the armed robbery in order to receive a share of the proceeds.

16. As for the applicant’s second offence of affray, NSW Police Facts Sheet record the following:

    (a)On 19 October 2019, a group of 11 males including the applicant had congregated outside the Scooter Hut in Parramatta, where the victim was employed. They entered and exited the store in the lead up and during the offence. At the time, there were approximately 15 customers including young children and 3 staff.

    (b)The applicant remained outside when others entered the store and physically assaulted the victim by punching, kicking and striking with a baseball bat. The customers were warned not to ring police or the group will return and smash windows.

    (c)Throughout the incident, a member of the group recorded the assault and was heard saying ‘Inner West’, which the Police allege is a reference to a youth gang ‘Inner west Brotherhood’ operating in Western Sydney.

    (d)The applicant was later seen on CCTV entering Centenary Mall in Parramatta and secreting black gloves into the hedge on the western side of the mall.

    (e)On 21 October 2019, the applicant was arrested leaving his home. The applicant refused to be interviewed and refused an opportunity to nominate his co-offenders.

17. The applicant’s offending clearly shows his disrespect for the law, rules, and values of the Australian society. The applicant engaged in violent conduct, caused harm to others, and associated with persons involved in anti-social and criminal behaviour. The seriousness of both offences is given significant weight in deciding whether the applicant is of good character for the purposes of s 21(2)(h).

18. The applicant’s most recent offence was committed on 19 October 2019. His Court ordered legal obligations in relation to the offence concluded on 23 July 2021, only 5 months before his application for citizenship. 

    Other Negative Behaviours

19. The respondent contends that the applicant’s behaviour outside of the offences for which he was found guilty also do not demonstrate good character and contends that the available evidence shows that the applicant has frequently engaged in concerning behaviours that came to the Police’s attention from 2016, as well as after his interactions with law enforcement and Juvenile Justice in 2017 and 2019/2020.

20. The NSW Police COPS records record:

    (a)On 22 March 2019, the applicant was observed by the Police to be wearing a known gang shirt with logo ‘Inner West Brotherhood’ and upon search, located a ‘small clear resealable satchel with a small amount of cannabis’ inside his wallet.

    (b)On 26 June 2019, the Police observed the applicant to be loitering with a group of males known to be associated with the ‘Inner West Gang’.

    (c)On 12 October 2019, the Police attended Parramatta CBD where a large group of males, suspected to be associated with the youth gang ‘Inner West 21’, had congregated and were fighting. The Police pursued the applicant on foot to grab him and a baseball bat that was loosely secured to the side of his pants fell.

    (d)On 4 April 2020, the Police attended the applicant’s home to serve a copy of a banning agreement and explain the terms to him. When the Police asked the applicant if he understood everything, he responded “Fucking over the top.”

    (e)Multiple entries for official move on directions by the Police are recorded against the applicant, including on 9 June 2017, 29 July 2017, 24 October 2017, 10 January 2018, 2 June 2018, 14 August 2018, 12 February 2019, 8 October 2019, 18 October 2019, 23 October 2020, 23 December 2020, 9 January 2021, 28 January 2021, and 19 April 2021.

    (f)Multiple entries for transport infringement notices are recorded against the applicant, including on 8 February 2018, 1 September 2018, 14 March 2019, and 8 June 2021.

21. The NSW Police record that the applicant breached his bail on 12 August 2017, on 29 June 2019 and 11 September 2019. This demonstrates the applicant’s disregard for rules and the obligation to abide by the law.

22. Most recently, on 22 October 2021, only 3 months after his non-association order ended on 23 July 2021, the applicant was in a vehicle with 3 other persons who were of interest to the Police due to their lengthy history of drug and gang offences, including a conviction for a serious indictable offence (armed with intent). The applicant was given a consorting warning.

23. In a statement dated 4 September 2023, the applicant explained the following:

    My life has undergone a complete transformation since 2021, including the people I associate with. On the night of the incident in October 2021, I did not commit any crimes. However, I was unaware of the criminal record of the person who was a friend of my friend and who was along that night, which led me to sever ties with him and cease all communication since that time.

    I no longer associate with any of the old crowd of people I used to associate with, as I am now focused on building my life and career in Australia and breaking all ties related to past bad decisions about the people I used to hang around with.

    Mitigating Factors and Consideration

24. The applicant committed both of his criminal offences as a minor, and therefore, the offences are given less weight. The question is whether the applicant has demonstrated maturity and greater respect for upholding the law since his offending conduct.

25. The respondent accepts that it is plausible that the following circumstances contributed to the applicant’s adolescent offending: being subjected to domestic violence as a child; loss of a father figure and a good male role model in his life; the refugee immigration experience as a child; adjustment to living in Australia; poor engagement at school; and alcohol and substance use. However, these circumstances do not entirely alleviate the seriousness of the offences nor the applicant’s culpability, especially considering the repeated offending and other continuous behaviours of concern.

26. The applicant has expressed remorse and claims that he has completely changed his life, taken responsibility for his past actions, and has become a better person. He claims that he has changed the people around him, altered his mindset and now respects and obeys the law.

27. Since his release from juvenile detention, the applicant started working with a company called MTC, which helped him obtain a Certificate III in Retail and a First Aid Certificate. The applicant said they also assisted him in finding a job and offered classes. He said he also was involved in mentoring other young people to stay out of trouble. MTC supported the applicant in joining TAFE to complete a Certificate IV in Real Estate. He hopes to eventually establish his own real estate business and has recently commenced a business course. The applicant said that he currently wants to focus on his study and building his life and career. He has a prosocial support network including his mother and sister, as well as his former Youth Trainer and Mentor, Mr Jay Mani.

28. The applicant explained at hearing that he currently lives with his mother who he cares for when he is home as she suffers from cancer. The applicant explained that he cleans, cooks, helps his mother with shopping, mows the lawn and takes her to the doctors.

29. The applicant relies on numerous statements filed in these proceedings from relatives and MTC Employment Services staff. The character reference letters attest to the applicant’s remorse for his past actions, his maturity, and strong determination to move forward to build a better future for himself and for those around him. Some relevant aspects are set out below.

30. In a statement dated 27 March 2023, Mr Sukru Eris, the applicant’s uncle said:

    “Over the years, I have observed [the applicant’s] growth and transformation into a better, more responsible person. Some specific examples of the positive changes I have witnessed in him Developing a strong sense of accountability for his actions and decisions. Building new friendships and forging connections with positive, like-minded individuals within the community. Pursuing further education and career development opportunities, such as completing a real estate course and preparing to start a business course at MTC.

    [The applicant’s] dedication to personal growth and self-improvement is a testament to his determination to create a brighter future for himself. His newfound focus on education, healthy relationships, and community involvement showcases his transformation into a different, more mature person.”

31. Mrs Faegheh Salami, the applicant’s aunt, also said in a statement:

    “…In my opinion, he is a person of good character and I believe that his previous offending behaviour does not reflect the person he is today. Over the years, I have witnessed [the applicant] mature and grow. He has shown remorse for his actions, and he now realizes the gravity of what he did before. I believe that he has learned from his mistakes and has become a responsible and law-abiding person.”

32. Mrs Salami reiterated her sentiments in the course of giving oral evidence at hearing.  She said she sees the applicant once a week and expressed that he has changed a lot; he is always happy to help people and has a kind heart. Mrs Salami explained that the applicant has done a lot to change his life and he no longer sees his old friends. She said it was stressful for the applicant caring for his mother but he handles it very well and has matured.

33. In an undated statement, Elham Salami, a relative of the applicant, said;

    Over the years, I have observed [the applicant] take responsibility for his past actions and learn from his mistakes. He now understands the consequences of his previous behaviour and has shown a strong determination to move forward and build a better future for himself and those around him. Some specific examples of his growth include:

    1.    Actively seeking out educational opportunities and participating in workshops to enhance his skills and knowledge.

    2.    Providing mentorship and guidance to younger individuals who may be facing challenges similar to those he has overcome.

    3.    Engaging in healthy hobbies and interests, such as sports and fitness, which promote physical and mental well-being.

34. In an undated statement, Jay Mani, Youth Trainer at MTC Australia, who has known the applicant for over 3 years, said;

    I am aware of [the applicant’s] criminal record and his past indiscretions, so it’s even more impressive how he has changed and also to demonstrate that [the applicant] is actively changing his life by keeping good company, expanding his knowledge and involving himself within the greater community.

    I am confident that [the applicant] is a constructive member of society and I have no reservations in championing any endeavour he wishes to pursue.

1. Mr Mani reiterated his sentiments in the course of giving oral evidence at hearing.  He also stated that the applicant did things he didn’t have to do, helps when asked and does courses he doesn’t have to do. He said the applicant has empathy and is a very good member of the community; having developed into a fare standing adult. Mr Mani explained that the applicant would be able to deal with life stressors better and he doesn’t mix with the same cohort anymore. He said the applicant was hurt by his past experiences and he is very conscious of looking after his mother and sister moving forward.

2. In an undated statement, Christina Crouche, a Youth Employment Consultant with OCTEC Limited Employment Services, said:

   Throughout his time at MTC, [the applicant] consistently demonstrated a strong work ethic and dedication to his studies. He was respectful, helpful, and committed to making the most of his educational opportunities. His outstanding performance in various courses showcases his diligence, intelligence, and perseverance.

   I am aware of [the applicant’s] past juvenile criminal history, which includes armed robbery and an affray. Despite these previous offences, I believe [the applicant] has made significant strides in his personal and professional growth. He has successfully completed a real estate course and is soon starting a business course, reflecting his commitment to improvement and development.

   In my view, [the applicant] is a person of good character who has learned from his mistakes. His past actions do not accurately represent who he is today, as he has matured and gained a deeper understanding of the consequences of his actions. I am confident that [the applicant] has the potential to be a valuable and contributing member of the Australian community.

3. In a statement dated 22 March 2023, Nathanael Lafo, a friend of the applicant, said;

   I am aware of [the applicant’s] past criminal history, which includes armed robbery and affray, and that he spent some time in custody as a result. I firmly believe that these past offences were out of character for the person I know today. [The applicant] has shown tremendous growth and maturity since then, acknowledging his past mistakes and demonstrating a genuine understanding of their consequences.

   In my opinion, [the applicant] is a person of good character. He has recently completed a real estate course, which indicates his commitment to self-improvement and the development of a promising career. Furthermore, as the only male in his household, he has taken on the responsibility of caring for his mother and sister, exhibiting his sense of duty and devotion to his family.

   Considering the progress and positive changes that [the applicant] has made in his life, I am confident that he is more than deserving of Australian citizenship. He has demonstrated a strong capacity for personal growth, and I believe that he will continue to make positive contributions to his community and to Australian society as a whole.

4. The applicant has also provided a psychological report from Dr Jacqui Yoxall, dated 24 April 2023, in which Dr Yoxall opined in conclusion:

   In the 5 years that have passed since the offending, [the applicant] has matured and made conscious and measurable changes to his attitudes, beliefs, behaviours and his life overall. He has completed certificates in retail and in real estate. He has obtained some employment experience and he has established a stable and prosocial life where he contributes in a positive manner to community. He has resolved the issues that contributed to his offending. [The applicant] is now 20 years old. He has not reoffended.

   In considering [the applicant’s] risk to the community, consideration must be given to the fact that he was a juvenile at the time of his offending. the criminal justice system treats juveniles differently to their adult counterparts because their inexperience and immaturity is recognized. It is well established that that crime is disproportionately committed by young people. Some studies have found that the offending rate between ages 15 and 19 is up to 4 times the rate for offending over 20 years of age. Juveniles are more likely to come to the attention of police due to several reasons including: being less experienced in offending; offending in groups; offending in public areas; and offending close to where they live. They also tend to engage in offending that attracts attention and is often unplanned and opportunistic/impulsive. Risk taking and peer influence are common factors in juvenile offending. There is substantial research showing that adolescents, compared to adults, have greater levels of impulsivity, sensation seeking and less ability to regulate arousal and motivation and lower levels of executive functioning (judgment, decision making, prediction of outcomes, reasoning ability) due to their stage of neuropsychological development. Some have used the analogy that adolescents have the ability to start the engine, but lack the skills to drive the car.

   Most adolescent offenders do not go on to offend as adults. Statistics show that most adolescent offenders, ‘grow out’ of crime as they mature. This is one of the most ‘generally accepted tenets of criminology’ (Fagan & Western, 2005).

   In consideration of all available information at hand in regard to [the applicant] and his past offending, it is my view that he has indeed ‘grown out’ of crime. It is my opinion that [the applicant’s] current risk of violent reoffending is very low. It is also my opinion, [the applicant’s] overall general risk of reoffending is very low. [Emphasis added]

5. At hearing, Dr Yoxall, emphasised that juvenile offending is not embedded or predictable for adulthood as development and cognitive function is a factor. She further explained that adolescents are still maturing emotional capacity and there is a discrepancy between physical/emotional ability and an ability to engage in executive functioning. As such, offending as an adolescent is not a clear prediction for adult offending. Dr Yoxall said that when she assessed the applicant, over a year ago, he displayed a notable level of insight and substantive maturity.  She reiterated that if no negative factors have since arisen since her assessment, her opinion about the risk of reoffending being very low remains unchanged. This was despite the events in October 2021. Dr Yoxall emphasised that it has been three years since the applicant’s offending conduct and that three years is a substantial period of time in a young person’s life. As for drug use and any alleged inconsistencies in her report, Dr Yoxall confirmed that the applicant denied use in the past twelve months or current.

   Decision

6. The evidence shows that the applicant has made huge strides towards recognition of his past mistakes as a juvenile offender and has taken full responsibility for his actions. This is further evidenced by the strong support he receives from Australians in the community who have seen him grow and mature into a positive, contributing member of the Australian community. In light of the evidence of Dr Yoxall, I am convinced that enough time has passed since the applicant’s offending conduct to be positively satisfied that the applicant is of good character. 

7. The decision under review is set aside and remitted with a direction that the applicant is of good character, satisfying subsection 21(2)(h) of the Act.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak.

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Associate

Dated: 1 July 2024

Date(s) of hearing:	1 May 2024
Solicitors for the Applicant:	Mr M Northam, Northam Lawyers
Solicitors for the Respondent:	Mr T Goodwin, Australian Government Solicitor