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

[2024] AATA 353

Yamacli and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 353 (7 March 2024)

Division:GENERAL DIVISION

File Number:          2023/1430

Re:Cafer Yamacli

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:7 March 2024

Place:Melbourne

The Tribunal affirms the reviewable decision.

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

Senior Member A. Nikolic AM CSC

Catchwords

CITIZENSHIP – application for conferral of Australian citizenship – citizen of the Republic of Turkey – whether the Tribunal is satisfied of the Applicant’s good character – Australian Citizenship Act 2007 (Cth) – Applicant’s criminal history considered – family violence and other offending – multiple convictions between 2016 and 2022 – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

Secondary Materials

Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)

Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021) Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

7 March 2024

INTRODUCTION

1. The Applicant seeks review of a decision to refuse his application for Australian citizenship based on the good character requirement at s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. The hearing was conducted in person at the Tribunal’s Melbourne Registry on 4 March 2024. The Applicant was self-represented. The Respondent was represented by Ms Mary Baras-Miller from the Australian Government Solicitor.

3. For the following reasons the Tribunal affirms the reviewable decision.

   BACKGROUND

4. The Applicant is a thirty-year-old citizen of the Republic of Turkey. He first arrived in Australia on 25 October 2012 on a Prospective Marriage (subclass 300) visa and, on 4 November 2016 was granted a permanent Partner (subclass 801) visa.[1] He was granted a Resident Return (subclass 155) visa on 8 November 2023, which allows for unlimited travel to and from Australia until 8 November 2028.[2]

   [1] Exhibit R1, 8; 13.

   [2] Exhibit R2, 272.

5. While living in Australia the Applicant has answered criminal charges at eight court appearances between 17 June 2016 and 9 December 2022.[3] He has findings of guilt or convictions recorded against him for crimes of family violence against his ex-wife (Ms AA), breaches of conditional liberty, and intentional property damage.

   [3] Exhibit R1, 87-88.

6. On 15 October 2020, the Applicant applied for Australian citizenship by conferral.[4] This was refused on 5 March 2023.[5] He subsequently asked the Tribunal to review the refusal decision.[6]

   [4] Ibid16-43.

   [5] Ibid 8-15.

   [6] Ibid 1-7.

   LEGISLATIVE FRAMEWORK

7. Section 52(1)(b) of the Act confers jurisdiction on the Tribunal to review decisions made under s 24 of the Act.

8. To be eligible for citizenship, a person must meet each of the eight general eligibility requirements under s 21(2) of the Act. This includes that they are ‘of good character at the time of the…decision on the application’ (s 21(2)(h)). Section 24(1A) of the Act prohibits the grant of citizenship unless the decision-maker is satisfied an applicant is of good character. The Tribunal’s decision in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 is often cited for its elaboration on the significance of good character: [7]

   ‘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.’

   [7] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].

9. The term ‘good character’ is not defined in the Act but is intended to be broadly interpreted with regard for a range of conduct and events.[8] O’Bryan J has observed that ‘good character’ is assessed with regard for ‘moral qualities that are regarded as a necessary concomitant of Australian citizenship’.[9] His Honour referred to the word ‘satisfied’ in the context of s 21(2)(h) of the Act as follows: [10]

   ‘…The word “satisfied”…is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite… Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion…. The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character’.

   (Citations removed)

   [8] Citing Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128, [60] (Perram, Yates, and Mortimer JJ).

   [9] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, [53] (O’Bryan J) (‘BOY19’).

   [10] BOY19 (n 8), [54]-[55].

10. The requirement for a global assessment of a person’s character has previously been discussed by the Tribunal in Prasad and Minister for Immigration and Ethnic Affairs:

    ‘…a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness’.[11]

    [11] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (McDonald DP).

    Citizenship Policy Statement and Revised Citizenship Procedural Instructions

11. The Australian Citizenship Policy Statement (Policy) and Revised Citizenship Procedural Instructions (CPIs) are government policy that is intended to guide decision-makers who exercise powers and discharge functions under the Act. Although such policy is not binding on the Tribunal,[12] decision-makers undertaking merits review should generally apply it unless it is unlawful or ‘there are cogent reasons to the contrary.’[13] The Tribunal is mindful, however, of the need to consider the exercise of delegated powers based on the Act and the specific circumstances of each case.

    [12] BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865, [11] (Mortimer CJ).

    [13] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

12. Relevant to this application is Citizenship Procedural Instruction 15-Assessing Good Character under the Citizenship Act (CPI 15). CPI 15 explains the meaning of ‘good character’ based in part on the judgment of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[14]

    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 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.

    [14] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (‘Irving’); See more recently BOY19 (n 8), [51] (O’Bryan J).

13. CPI 15 provides guidance as to the meaning of the term ‘enduring moral qualities’:

    The phrase ‘enduring moral qualities’ encompasses the following concepts:

    ·characteristics which have endured 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.

    The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

14. CPI 15 provides an inclusive list of characteristics generally expected of a person of good character, noting that ‘as a general proposition, a person who is of good character would:’

    ·respect and abide by the law in Australia and other countries;
    
    

    ·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, and pay debts to the Commonwealth);
    
    

    ·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
    
    

    ·intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
    
    

    …

15. Under the heading ‘Community standards’, CPI 15 states that the Preamble to the Act can assist in identifying what the Australian community considers to be proper behaviour when assessing good character:

    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.

16. Under the heading ‘Weighing information’, CPI 15 sets out how a holistic assessment of a person’s character may be made:

    In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:

    Characterise the nature of any offence or behaviour

    ·     is the offence serious or minor?

    ·     did the offence harm other people?

    ·     who were victims?

    ·     is there a pattern of behaviour?

    ·     was it a one off incident?

    ·     were there extenuating circumstances?

    Consider any associations with people or organisations of concern.

    Consider any mitigating circumstances:

    ·     length of time since the offence was committed

    ·     age at time of offence

    ·     behaviour since completing prison sentence or obligations to court

    ·     remorse regarding their offending behaviour

    ·     community support (referee reports etc)

    ·     changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.

    The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.

    EVIDENCE 

    Documentary evidence

17. The following documents were taken into evidence:

    (a)Documents lodged by the Respondent numbering 156 pages;[15]

    (b)Supplementary documents lodged by the Respondent numbering 280 pages;[16]

    (c)Undated and unsigned five-page statement of the Applicant;[17]

    (d)Undated and unsigned one-page document of the Applicant’s wife.[18]

    [15] Exhibit R1.

    [16] Exhibit R2.

    [17] Exhibit A1.

    [18] Exhibit A2.

    Applicant

18. At the commencement of the hearing the Tribunal explained the procedure to be adopted and confirmed that the sole issue for determination is whether the Tribunal is satisfied of the Applicant’s good character within the meaning of s 21(2)(h) of the Act at the time of this decision. The Tribunal explained, and the Applicant said he understood, his privilege against self-incrimination, and that the Tribunal would draw no negative inference if he chose not to answer questions on this basis. The Applicant’s oral evidence is summarised as follows:

    (a)The Applicant accepted the accuracy of his criminal history but was uncertain about some events because of the passage of time.[19] He said that his emotions took control on occasions in the past, which caused him to ‘blank’ out on some details. He expressed remorse for his past conduct, stated he was young at the time of his offending, believes he has changed, and deserves a second chance. He said that decisions about his character should not be based on ‘what happened seven or eight years ago’.

    [19] Exhibit R1, 87-88.

    (b)The Applicant contextualised his marriage to Ms AA as a ‘toxic relationship’ and said his early offending against her was contextualised by the ‘different dynamics’ of having a newborn baby in the home.  He referred to being new to Australia, unfamiliar with Australian laws, unable to properly express his emotions, and regrets doing so in a physical way.

    (c)When asked about his conviction on 17 June 2016, the Applicant agreed he was found guilty of unlawful assault. In his statement he said that he ‘lost control and kicked [Ms AA’s] bum’. When taken by Ms Baras-Miller to the police brief[20] he agreed, however, that he was found guilty of snatching a mobile phone from Ms AA’s hand in a shopping centre, throwing it on the ground, slapping Ms AA on the forearm, and that she fell over.

    (d)When asked about his convictions on 23 February 2017, the Applicant disagreed with aspects of the police brief.[21]  He conceded, however, that he pulled Ms AA to the ground by her hair and kicked her mother’s car. When asked if he did anything else, he responded: ‘I don’t remember’. When asked if he breached an intervention order then in place, the Applicant responded: ‘technically yes’. He subsequently accepted that he was aware of conditions preventing him from going near Ms AA or committing family violence against her.[22] When asked about differences between the police records and the claims in his statement, the Applicant responded:

    ‘When you think about the events of the past, and in that moment you behave with your emotion and if I have done something in the back I have lost control and in different state, that my anger got control and out of consciousness. When you ask me exactly what happened I might not remember every details because I have a blank, I know it was at…a car park but I don't remember that I kicked her from the back. I know we had an argument and she spilt coffee all over me, and I do remember just me and her and I went there after and she went there before when I was sleeping and I joined the party to get my son and then she didn't, like, we started arguing, like, does that make sense? At that moment I was not conscious of this. When you ask me years later that I might not be able to remember, but I do remember that I did not kick her from the back. I do remember that.’

    (e)When asked about his conviction on 22 February 2018 for contravening a conduct condition of bail, the Applicant claimed he ‘forgot about the court date’. When asked about a report that the contravention instead related to attempting to contact Ms AA, the Applicant agreed he contacted her from a telephone with a blocked identity on 20 February 2017.  When asked by Ms Baras-Miller if he agreed this constituted a breach of his bail conditions, the Applicant claimed he ‘misunderstood the bail order’ and thought he was permitted to call Ms AA. When pressed by Ms Baras-Miller that the bail undertaking expressly precluded ‘contacting or communicating with the protected person(s) by any means’,[23] the Applicant insisted there was ‘a chance [he] could have misunderstood it’.

    (f)The Applicant could not recall why he was convicted of breaching a Community Correction Order on 15 May 2018 or three counts of contravening a Family Violence Final Intervention Order (FVFIO) on 17 July 2018. When pressed by Ms Baras-Miller, he agreed that he ‘might have gone’ to Ms AA’s home and asked a mutual friend to contact Ms AA to enquire if an iPad he purchased was delivered to their child. He said this was done with ‘innocent’ intentions. When put to the Applicant that his reason for contact did not justify an FVIO breach, he responded: ‘Now it makes sense but then it didn’t’.

    (g)In terms of a finding of guilt on 2 April 2019 for driving while suspended, the Applicant agreed he was required by the Court to make a $200 donation to a charity and subsequently failed to comply with that condition.

    (h)When asked about further breaches of an interim FVIO in 2020,[24] the Applicant disagreed with aspects of the police brief, but accepted he contacted Ms AA in breach of conditions. He could not recall why he was convicted of persistently contravening a Family Violence NTC Order on 9 December 2022, but subsequently agreed with Ms Baras-Miller that this involved him visiting Ms AA’s home, leaving a box of fruit at her door, and emailing her, all of which were in breach of FVIO conditions.[25] He submitted: ‘I know it was wrong, and I broke the law, but I couldn't resist my little boy's request, and I did what most fathers would do’.[26]

    (i)At times in his evidence the Applicant invoked language and cultural issues as contextually relevant to his offending, claiming it took him ‘quite a bit of time to adjust to the legal system [in Australia] and how it works’. He also referred to the ‘emotional stress’ he was under during the relationship with Ms AA and did not believe his ‘good intentions’ should be punished. 

    (j)The Applicant invokes his standing in and contribution to the community as positive indicators of his character. The Tribunal has considered statements and other evidence he has submitted from ten people and a document titled: ‘Charitable Donations and Community Engagement’. [27] Most of these do not refer to his offending and two only do so obliquely. The Applicant did not call the statement authors as witnesses at the hearing.

    (k)In closing submissions the Applicant said he made ‘big mistakes in [his] past relationship’, but that ‘history doesn’t reflect who [he] is today’. He said that his cultural background made it a ‘real struggle for the first five or six years’ of his life in Australia and he has since worked hard to be a better man and father. He claimed to now ‘understand the values of this country’ and said he ‘takes pride in applying those rules’. He referred to seeking expert assistance from a psychologist to learn how to better express his ‘feelings and emotions’ rather than by ‘acting out of anger’.

    [20] Exhibit R2, 2.

    [21] Ibid 51.

    [22] Ibid 54-55.

    [23] Ibid 87.

    [24] Ibid 186.

    [25] Ibid 168.

    [26] Exhibit A1, 3.

    [27] Exhibit R1, 97-100, 228-238; 276-278.

1. Only the Applicant’s current wife and her stepfather gave oral testimony at the hearing. His wife said she is an Australian citizen and is aware of ‘everything [the Applicant] has gone through with his ex-wife and son during the last five years’. She said ‘it’s only his ex-relationship’ that casts doubt on his character and referred to ‘challenges’ the Applicant encountered after separating from Ms AA. She claimed that the relationship between her, the Applicant, and Ms AA is now much better. The Tribunal notes no evidence was lodged from Ms AA. The Applicant’s current wife said he has made ‘huge changes’ in recent years and ‘can’t do any better as a person or professionally’.

2. The Applicant’s father-in-law said he only knows a ‘limited amount’ about the Applicant’s offending and could only judge him based on what he observed. He said the Applicant is a ‘terrific father’, hardworking, and a ‘person of good repute’ despite ‘making some mistakes’. He said that since remarrying, the Applicant has made ‘every post a winner’.

3. Both the Applicant and his current wife referred in their evidence to recent consideration by the Respondent regarding possible refusal of the Applicant’s Resident Return Visa application. The Tribunal notes this visa was ultimately granted but the following formal warning accompanied this approval: [28]

   ‘On this occasion your application for a Return (Residence) (Class BB) visa will not be refused under section 501 of the Act. The application will continue to be assessed by the Department of Home Affairs….

   However you are warned that if you engage in any future conduct that brings you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may then be considered and if so, the fact of this warning may weigh heavily against you.

   We note in particular, that the Australian Government considers domestic violence to be very serious, regardless of the sentence imposed by the Courts. This means that where a non-citizen engages in conduct which constitutes domestic violence, especially towards women or children, that person should ordinarily expect to forfeit their right to enter or remain in Australia’.

   (Emphasis in original)

   [28] Ibid 267.

   Respondent

4. The Tribunal has considered the Respondent’s Statement of Facts, Issues, and Contentions dated 14 February 2024. During the hearing Ms Baras-Miller said the Applicant breached court orders despite having bail and IVO conditions explained to him. She said the Applicant’s purported ‘good intentions’ did not outweigh the conditions he was subjected to.  Ms Baras-Miller said the Applicant’s persistent offending over a period of four years reflects a disregard for the law and not enough time has passed for him to display the enduring moral qualities required for citizenship. In terms of the supportive statements relied upon by the Applicant, Ms Baras-Miller said most did not refer at all to his crimes. She said the Applicant’s criminal history was a surer guide than the statements he relied upon.

   CONSIDERATION

5. The Applicant has not consistently obeyed Australian laws. During his 11 years in Australia, he has findings of guilt recorded against him in 2016, 2017, 2018, 2019, and 2022. He has been subjected to conditional liberty arrangements for periods of up to 14 months, several of which he has breached. His conduct involved actual violence against Ms AA, intentional breaches of orders implemented to protect her, property damage, and driving while suspended. This reflects a pattern of behaviour over several years that cannot be regarded as isolated or impulsive and weighs substantially against a finding of good character.

6. The Tribunal places little weight on the Applicant’s uncorroborated claims about Ms AA’s purported conduct. There is no evidence she has ever been charged or convicted of an offence. Little weight is also placed on the Applicant’s claims about misunderstanding conditional liberty arrangements and that his limited English abilities and cultural factors impacted his ability to express himself and made it ‘hard for [him] to control [his] anger’.  These aspects of his evidence came across as self-serving when regard is had for the frequency of his offending and the clear language of the conditions he was subjected to. The Tribunal also does not accept the Applicant’s submission that his character issues relate to conduct that ‘happened seven or eight years ago’. It is much more recent than that.

7. It is accepted the Applicant is remorseful for his past conduct and well thought of by those who wrote supportive references. As noted earlier in the reference to Irving,[29] the term ‘good character’ relates to the enduring moral qualities of a person and not their good standing, fame, or repute in the community. In any event, only two of the statement authors make somewhat opaque references to the Applicant’s crimes. This diminishes the persuasive value of the written references.

   [29] Irving (n 13); See more recently BOY19 (n 8), [51] (O’Bryan J).

8. The Tribunal accepts Ms Baras-Miller’s contention that the Applicant’s crimes reflect a lack of respect for Australia’s law enforcement framework. The evidence discloses that in addition to his crimes, he failed to pay a $200 fine to the Children’s Hospital as directed by the Court, only partly disclosed convictions in his citizenship application,[30] and continued to commit offences after lodging this application on 15 October 2020. Someone who genuinely ‘understands the values of this country…[and]…takes pride in applying those rules’, as the Applicant claims he does, would not have acted as he did for such a protracted period.

   [30] Exhibit R1, 28.

9. The Tribunal accepts that a person can overcome a criminal history through a lengthy period of law-abiding conduct. But the positive and law-abiding characteristics the Applicant refers to have not endured for a sufficient time for the Tribunal to be satisfied he is currently of good character. This is so notwithstanding the positive effects of his new relationship and the community contributions he has made.

10. The Tribunal does not accept the Applicant’s claim that the grant of a Resident Return Visa following a visa refusal consideration process under the Migration Act 1958 (Cth),[31] weighs in favour of his current application. The character test under s 501(1) of the Migration Act differs from the good character requirement under s 21(2)(h) of the Act.

    [31] Exhibit R2, 272-275.

11. Refusal of the Applicant’s citizenship application does not affect his visa status in Australia, nor deprive him of any benefits he is currently entitled to. He is also not prevented from making a new citizenship application when his claims regarding the good character requirement are more persuasively established.

    DECISION

12. It follows that the Tribunal affirms the reviewable decision.

31.      

I certify that the preceding thirty (30) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate

Dated: 7 March 2024

Date of hearing:	4 March 2024
Advocate for the Applicant:	Applicant in person
Advocate for the Respondent:	Ms Mary Baras-Miller
Solicitors for the Respondent:	Australian Government Solicitor