Yaghoubian and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1334

Yaghoubian and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1334 (22 May 2018)

Division:GENERAL DIVISION

File Number(s):2017/1542      

Re:Arbi YAGHOUBIAN

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION              

Tribunal:Senior Member A Younes

Date:22 May 2018

Place:Sydney

The Tribunal affirms the decision to refuse the application for Australian citizenship by conferral.

..........................[sgd]..............................................

Senior Member A Younes

CATCHWORDS

CITIZENSHIP - application for conferral of Australian citizenship – refusal of citizenship application on grounds applicant does not satisfy the good character requirement - whether applicant of good character – criminal record – domestic violence and traffic offences – mitigating factors – applicant found not to be of good character for the purposes of citizenship legislation – decision affirmed

LEGISLATION

Australian Citizenship Act 2007, ss 21(2), 21(2)(h), 24(1), 24(1A), 21(2), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8)

CASES

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

Re Drake and Minister for immigration and ethnic affairs (No 2) (1979) 2 ALD 634

Sharma v Minister for Immigration and Border Protection (citizenship) [2015] AATA 608

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Instructions, Chapter 10

Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11

REASONS FOR DECISION

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 22 February 2017 to refuse the application for Australian citizenship by conferral, which the applicant lodged on 13 October 2015.

2. The delegate refused the application on the basis that the applicant did not satisfy relevant requirements of the Australian Citizenship Act 2007 (the Act). Specifically, the delegate found that the applicant did not meet the requirements of subsection 21(2)(h) relating to good character.

3. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

RELEVANT LEGISLATION

1. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. In accordance with subsection 24(1) of the Act, the Minister must in writing, approve or refuse to approve the person becoming an Australian citizen. 

2. Subsection 24(1A) of the Act, provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under one of the subsections 21(2), (3), (4), (5), (6), (7) or (8).

3. Subsection 21(2) of the Act provides that:

   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 satisfies the defence service requirement (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.

Policy & Instructions

1. The term “good character” is not defined in the Act.  In Irving v Minister for Immigration, Local Government and Ethnic Affairs the Full Court held that:

   Unless the terms of the Act and regulations require some other meaning to 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 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…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.[1]

   [1] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432

2. There are two documents that contain relevant guidance relating to good character. The Citizenship Policy (the Policy) is supplemented by the Australian Citizenship Instructions (the ACIs). They provide guidance to decision-makers in regards to interpretation, exercise of power, and operational instructions relating to the Act.  As a decision-maker, the Tribunal is required to give regard to, and apply the Policy and instructions in the ACIs unless there are cogent reasons not to do so.[2]

   [2] Re Drake and Minister for immigration and ethnic affairs (No 2) (1979) 2 ALD 634 at 640

3. Chapter 11 of the Policy refers to the decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs[3] and reinforces the expression “good character” should be used in its ordinary sense and that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, including being able to distinguish right from wrong, behaving in an ethical manner, and conforming to the rules and values of the Australian society.

   [3] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432

10.  The Policy stipulates, amongst other things, that the good character requirement looks at the “essence” of the person and that behaviour is a manifestation of one’s essential characteristics, including being truthful, not practising deception or fraud with the Australian authorities, not engaging in violent behaviour or causing harm through conduct.

11.  Chapter 10 of the ACIs provides further guidance. In relation to offences, the ACIs refers to a number of considerations, including whether an applicant has committed an offence, whether any such offence was disclosed in the application for citizenship, the seriousness and nature of the offence, whether there were any victims, whether the offence was premeditated, and the number of offences committed. Relevantly, the ACIs stipulate that domestic violence is a serious offence.

12.  The ACIs guide the decision-maker to also consider any mitigating factors such as the length of time between the date of the offence and the application for Australian citizenship, whether the applicant has accepted responsibility and shown remorse, whether the applicant has complied with any Court obligations, whether the applicant has been rehabilitated, whether there were any extenuating circumstances, and whether there is any evidence of length of employment, stable family and community involvement.

BACKGROUND

13.  The applicant is a citizen of Iran where he was born on 20 January 1977.  He arrived in Australia in 2003 as the holder of a subclass 300 (temporary) visa granted on 15 April 2003. He is currently the holder of a subclass BB155 (permanent) visa granted on 9 February 2017. On 13 October 2015, he applied for Australian citizenship.

14.  The issue in the case is whether the applicant is of good character, having particular regard to the offence of common assault (domestic violence), and history of unpaid traffic infringements that led to the suspension of his licence on various occasions.

FINDINGS AND REASONS

·     Does the applicant meet the requirements of  s 21(2)(h)?

15.  The issue in this case is whether the applicant meets the requirements of subsection 21(2)(h).

Possession of marijuana

16.  There is evidence before the Tribunal that in 2010, the applicant received a warning in relation to the possession of a small quantity of marijuana. The applicant disclosed this warning in the application for citizenship.  There is no evidence of any further issues in relation to possession of a prohibited substance. On the material before it, the Tribunal is satisfied that this appears to be an isolated incident.

Conviction for common assault (domestic violence)

17.  In the application for citizenship, the applicant disclosed that he has been convicted of common assault (domestic violence). In relation to the circumstances of that conviction, the evidence before the Tribunal indicates that:

On Friday the 22^nd of November 2013 the victim left home to go to work. About 11:45 AM that same day, the victim received a phone call from the accused, with the accused saying “either you come out and we go to Vodafone and sort this thing out or I am coming in to get you, you choose which one”. The victim has asked her manager to leave work. The victim and the accused have left her workplace and gone to Vodafone. Whilst the victim and accused were at Vodafone, an argument erupted between the two parties. The victim and accused then went their separate ways.

About 05:00pm that same day the victim has returned home and observed that the accused was already home. The victim and the accused became involved in an argument where the accused has started smashing the front door. However no damage was caused as result of this. The accused has then began throwing numerous items around the premises and has proceeded to break one of the stools from the kitchen. The kitchen stool belongs to the accused. The accused has then grabbed the victim and held her down on the floor and has placed his knees on top of her.[4]

[4] Exhibit N - New South Wales Police FACTS SHEET dated 22 November 2013, pp 31-32.

18.  The Police obtained a Provisional Order (ex parte) Apprehended Violence Order (AVO) and the applicant was charged with the offence of Common Assault (domestic violence) on 22 November 2013. The AVO was listed before the Court on 26 November 2013.  The applicant did not attend Court.  The matter was listed before the Court on 29 January 2014 and the applicant did not attend.  The applicant did not attend Court on 2 June 2014 when the Court made a Final Order, in force for 12 months. In oral evidence, he explained his non-attendance by saying that it was too painful for him to attend and he wanted to forget it all. 

19.  In his statutory declaration of 30 November 2017, the applicant stated “I never raise my hand on my former wife. She wasn’t the type who would allow anyone attack or assault her.”[5] The Tribunal notes and prefers the evidence in the police records which contain the police’s observations of bruising on the body of the applicant’s former wife.  The Tribunal however notes that the applicant agreed with the respondent’s representative’s reference to the information contained in the New South Wales Police FACTS SHEET[6] but contended that the conviction was not serious.

[5] Exhibit J – Statutory declaration of Arbi Yaghoubian declared 30 November 2017 at [4].

[6] Exhibit N - New South Wales Police FACTS SHEET dated 22 November 2013, pp 31-32.

20.  The fact is the applicant has been convicted of common assault (domestic violence) and over a 6 month period, he had three opportunities to appear before the Court and defend the charges but did not do so. The Tribunal is neither persuaded nor convinced by his explanations that it was too painful for him to attend and he wanted to forget it all. The Tribunal is of the view that his non-attendances show lack of respect for a legitimate process.

21.  The respondent’s representative put to the applicant that the conviction of common assault was serious. The applicant did not agree that it was serious and he believed that he has shown respect to Australian laws. Subsequent to a brief adjournment, the applicant stated that he was sorry for what had happened. He stated that he was depressed at the time and was taking medication. He stated that he had paid the ultimate price in the sense that he had lost his marriage.

22.  The Tribunal has noted the difference in the applicant’s evidence in relation to his views about the conviction of common assault. As discussed by the Tribunal in the course of the hearing, prior to the adjournment the applicant did not consider the offence of common assault (domestic violence) to be serious but subsequently he was apologising, albeit more so to the Tribunal. The Tribunal considered the evidence very carefully and the Tribunal is satisfied that the applicant did not show remorse or genuine acknowledgement of wrongdoing in relation to the conviction.

23.  The Tribunal considers that a conviction of common assault is a serious matter and it involves violence towards another individual. The offence occurred about four and a half years ago and the Tribunal considers that period of time to be reasonably recent. The Tribunal agrees with the view that domestic violence is “conduct that is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character”.[7] The Tribunal is satisfied that the applicant’s lack of acknowledgement of the seriousness of the conviction of common assault and genuine expression of remorse demonstrate lack of insight, weighing heavily against a finding of good character.

[7] Deputy President Constance in Sharma v Minister for Immigration and Border Protection (citizenship) [2015] AATA 608.

Driving offences

24.  On 2 October 2004, the applicant was issued with an unrestricted licence Class C.  The evidence before the Tribunal indicates that:

·     On 13 January 2005, the applicant was fined $208 for exceeding speed limit by more than 15 km/hour but not more than 30 km/hour. He lost demerit points.

·     On 2 September 2006, the applicant was fined $77 for exceeding speed limit by not more than 15 km/h. He lost demerit points.

·     On 5 June 2009, the applicant was fined $135 for disobeying no parking sign (school zone) and he lost demerit points.

25.  On 6 June 2011, the applicant was issued with an unrestricted licence, Class R.  In relation to that licence, the evidence indicates that:

·     On 14 July 2013, the applicant was fined $405 and lost demerit points for disobeying traffic lights – detected by camera.

·     On 24 November 2013, the applicant was fined $405 and lost demerit points for negligent driving.

·     On 22 July 2014, the applicant was fined $242 and lost demerit points for disobeying left turn/right turn/no turn sign at an intersection.

·     On 15 August 2014, the applicant’s driver’s licence was suspended from 29 August 2014 for fine default, with suspension lifted on 4 October 2014 .

·     On 9 October 2014, a demerit points courtesy letter was sent to the applicant for the offences of 22 July 2014, 24 November 2013, and 14 July 2013.

·     On 18 April 2015, the applicant was fined $519 for standing vehicle in disabled parking space without authority.

·     On 7 July 2015, a demerit points courtesy letter was sent to the applicant for the offences of 18 April 2015, 22 July 2014, 24 November 2013 and 14 July 2013.

·     On 21 November 2015, the applicant’s driver’s licence was suspended from 4 December 2015 for fine default, with suspension lifted on 29 February 2016.

·     On 27 February 2016, the applicant was advised by police not to drive because his licence had been suspended.

·     On 1 March 2016, a demerit points warning letter was sent to the applicant for the offences of 18 April 2015, 22 July 2014, 24 November 2013, and 14 July 2013.

·     On 12 March 2016, the applicant’s driver’s licence was suspended from 29 March 2016 for fine default, with suspension lifted on 12 July 2016.

·     On 13 July 2016, a demerit points warning letter was sent to the applicant for the offences of 18 April 2015, 22 July 2014, 24 November 2013, and 14 July 2013.

26.  On 20 December 2016, the applicant was issued with unrestricted licences (class R, and class C). On 5 July 2017, a fine default suspension of licence classes C and R, to commence on 19 July 2017, was issued.

27.  In oral evidence, the applicant stated that he was depressed and that a number of fines occurred when he was not driving as he was overseas (from 1 May 2017 until 4 June 2017). The applicant claimed that he had no financial means to pay the tolls. The Tribunal accepts the evidence that the applicant when he was overseas had lent his car to a friend in Australia and during that time, the friend drove the car through tollways but did not pay tolls on numerous occasions.[8] However, these only relate to the suspension of the licence on 5 July 2017. In oral submissions to the Tribunal, the applicant’s representative stated that he had advised the applicant to pay the fines which were paid in December 2017. The Tribunal is satisfied that the applicant has paid the outstanding fines but it appears to the Tribunal that this was done because of the representative’s advice rather than a genuine willingness to discharge his obligations. The Tribunal acknowledges that it is the applicant’s friend who drove the car and did not pay the tolls, however the applicant, as the owner of the car, has the ultimate responsibility.

[8] Exhibit I – Email from Revenue NSW to Arbi Yaghoubian dated 1 December 2017 and toll notices from Transport Roads & Maritime Services.

28.  In the course of the hearing, the applicant did not accept that he has an adverse driving record. Initially, the applicant did not accept that it was serious and contended that this was all due to failing to pay fines. Subsequent to the adjournment, he became apologetic, although he continued to assert that they were minor offences and that other people commit more serious offences.  The Tribunal is satisfied that the evidence indicates that the applicant has had a long history of traffic offences. Of particular significance are the suspensions of his licence. The Tribunal acknowledges that the suspensions essentially related to non-payment of fines, however, this does not mean that the suspensions were not serious.

29.  The Tribunal acknowledges that traffic offences do not normally constitute a “serious offence” for the purposes of the ACIs. The respondent’s representative argued that road rules go to the essential safety of the community and the Tribunal agrees with those submissions. The Tribunal considers non-payment of fines, particularly, in the case where a licenced driver had been sent a number of warning letters to be significant. More importantly, the fines were issued due to breach of traffic laws such as negligent driving, speeding, disobeying traffic lights, unauthorised standing in disabled parking, disobeying no parking sign in a school zone, all of which have serious consequences to other road users. Although in isolation, a traffic offence, depending on the circumstances, may not be serious and reflective of bad character but the applicant’s driving history indicates a longstanding disrespect and disregard for traffic laws. The Tribunal is not persuaded that the applicant is genuinely apologetic or remorseful. The multiple instances of not paying traffic fines led to the licence being suspended which occurred as a last resort given the fact that the applicant did not action the multiple correspondence in relation to the payment of fines, inconsistent with being a person of “good character”.

30.  On balance, the Tribunal is satisfied that a fair assessment of the evidence indicates that the applicant has had multiple traffic offences and failures to pay fines relating to infringements indicating a long-standing pattern of disregarding and disrespecting traffic laws. The Tribunal is satisfied that the applicant’s repeated offending is evidence that he may not “uphold and obey” the law if citizenship is conferred on him.

31.  The applicant has provided character references to support his claim that he is of good character. The Tribunal accepts the respondent’s submissions that although those character references refer to some knowledge of the common assault offence, they do not demonstrate an appreciation of the full circumstances of the offence or the apprehended violence order. The fact that none of the witnesses was available for cross-examination is an important consideration for the Tribunal. The Tribunal has noted the explanations provided by the applicant’s representative in relation to the lack of availability of the witnesses, however, the Tribunal does not find those submissions persuasive; they could have been made available by telephone. In light of those comments, the Tribunal has decided to give limited weight to the character references.

32.  In oral submissions to the Tribunal, the applicant’s representative stated that the applicant has now rehabilitated. The representative referred to the applicant selling his car recently. There is evidence that the applicant has been running a business.  The Tribunal is satisfied that the evidence as a whole does not support those submissions. The applicant has had a long history of multiple traffic offences, contrary to the notion of rehabilitation.

33.  The applicant has claimed that he was suffering from depression and anxiety at the relevant times but there is no independent corroborative evidence to substantiate those claims. The Tribunal is prepared to give the applicant the benefit of the doubt despite the lack of corroborative evidence and accepts as plausible that the applicant has suffered from depression and anxiety, however, on the evidence as a whole, the Tribunal is not satisfied that those are mitigating factors or extenuating circumstances that explain the domestic violence or the multiple traffic offences, or that they outweigh other considerations, or that they mean he is of “good character”. As previously mentioned, the applicant did not attend Court on any of the occasions that the apprehended violence order was listed and that was his opportunity to explain to the Court those claimed circumstances. The applicant did not engage with the traffic authorities about the fines and it appears to the Tribunal that he ignored the warning letters demonstrating disregard and disrespect for the authorities.

34.  In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant has shown lack of insight in relation to the seriousness of the domestic violence conviction as well as the multiple traffic offences. The lack of insight as well as the genuine lack of remorse and acknowledgement of any wrongdoing are inconsistent with being of “good character”. In terms of mitigating factors, the Tribunal is satisfied that the applicant’s explanations are not persuasive and in fact they support the Tribunal’s finding that the applicant does not recognise wrongdoing in matters that are serious and involve the safety of others in the community.

35.  For those reasons and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant is of “good character” and therefore he does not meet the requirements of subsection 21(2)(h).

36.  In light of those conclusions, in consideration of the evidence as a whole and for the stated reasons, the Tribunal affirms the decision to refuse the application of Australian citizenship by conferral.

DECISION

37.  The Tribunal affirms the decision to refuse the application for Australian citizenship by conferral.

Senior Member Antoinette Younes

22 May 2018

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Younes

.............................[sgd]...........................................

Associate

Dated: 22 May 2018

Date of hearing:	3 May 2018
Advocate for the Applicant:	Mr F Razzaghipour, Farnam Immigration and Language Services
Solicitors for the Respondent:	Ms R Noronha, Clayton Utz