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

[2021] AATA 163

Yari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 163 (2 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/0343

Re:Ali Yari

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:2 February 2021

Date of written reasons:         10 February 2021

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant is of good character.

........................[Sgnd]................................................

Senior Member Dr N A Manetta

Catchwords

CITIZENSHIP - Applicant’s application for citizenship refused - Whether applicant is of “good character” under s 21(2)(h) of the Australian Citizenship Act 2007 –-  Applicant committed offences under the influence of alcohol – Applicant suffering mental illness -  Lapse of time since offending ––  Decision under review set aside and decision substituted that the applicant is of good character

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

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

Re Zahidy and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2431

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Secondary Materials

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

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

REASONS FOR DECISION

Senior Member Dr N A Manetta

1. After I delivered my decision and oral reasons, I received a request for written reasons, which I now publish.

2. This is an application by Mr Ali Yari seeking a review of a decision of the respondent’s delegate. This decision was taken on 17 December 2019.  By her decision, the delegate refused Mr Yari’s application for citizenship. The application was refused because Mr Yari was not considered to be of “good character”, an essential precondition for the grant of citizenship under s 21(2)(h) of the Australian Citizenship Act 2007 (“the Act”).

   TRIBUNAL’S TASK

3. Hearing the matter fresh on the evidence before me, I must decide whether Mr Yari is of good character. I accept the respondent’s submission that I must evaluate the facts as at the date of my consideration of the matter: see VFWQ v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230. In proceedings such as these, the Tribunal considers the merits de novo. This means that the Tribunal reaches the correct or preferable decision on the evidence adduced before it.  From this it follows that I may set aside a decision of the delegate notwithstanding the absence of any discernible error in the delegate’s reasons; equally, I may affirm the decision under review notwithstanding the presence of an error if that is the correct or preferable result on the evidence adduced before me. At the hearing, Ms Boemia appeared for the applicant; Mr Ellison, for the respondent.

   STATEMENT OF CONCLUSION

4. I have decided to set aside the decision under review and to substitute a decision that the applicant is of good character for the purposes of the Act.

   REASONS
   Background facts

5. Brief reasons will suffice. The hearing before me established the following. Mr Yari, who was born in 1972 and is of Afghani heritage, arrived in Australia unlawfully in 2010 but was granted a protection visa in April 2011.  

6. There is no doubt on the evidence before me that Mr Yari has suffered greatly in his life. He is of the Shia Muslim faith and of Hazara ethnicity. He left Afghanistan when he was 13 years of age and moved to Pakistan. He had to move there because two of his brothers and one sister were killed in Afghanistan.  His mother and father decided to leave the country. I note that his father was also killed when Mr Yari was 22 years of age. He is married, but his wife still lives overseas in Pakistan as do his children. In more recent times, he lost a son there in a bomb blast.

7. Mr Yari was detained on Christmas Island when he first arrived in Australia. While detained, he suffered a stroke, although it was not recognised at the time.  There is no need to recapitulate in detail the health difficulties that Mr Yari has. He still suffers from severe headaches and has memory-loss health concerns. There is also no doubt in my mind that Mr Yari must also suffer from a great deal of unhappiness given the past events that have seen so much death in his family and given also the separation from his family he experiences.

8. Mr Yari began to drink heavily in Australia. It is clear that Mr Yari began this practice at least partly because of his difficult personal circumstances. That is not surprising.  This factor is also referred to in the sentencing remarks of the Magistrates Court: see Ex R1, at p.168.

   Criminal Offending

9. I turn now to consider Mr Yari’s offending.  In 2015, Mr Yari committed the offence of loitering.  He was drunk and sitting on a public footpath.  Presumably he failed to move on when asked to do so by the police.  He was convicted of the offence of loitering and fined $360 but no conviction was apparently recorded: see Ex R1, p.159. The offence is adverted to in passing in later sentencing remarks: Ex R1, p.168. This offending is largely irrelevant to my decision.

10.  More seriously, on 17 March 2017 Mr Yari struck a police officer while he was very drunk. On 31 March 2017 there was further misbehaviour involving Mr Yari when he was fully drunk. Again it resulted in the assault of a police officer and an attempted assault upon another officer. There was other misconduct on these occasions.  Mr Yari pleaded guilty to the offences with which he was charged.

11.  Mr Yari was sentenced in September 2017.  The sentencing Court described the offending as follows (Ex R1, p.168):

“[1] You have pleaded guilty to two charges that occurred on 17 March 2017. Those charges relate to you being fully drunk and abusive at the Naracoorte Hotel. The people there were very upset at your behaviour. You would not leave and the police had to be called. When the police told you you had to go, you refused to go and told them they had to arrest you. Then at the police station you hindered the police by not doing what you were told to do and by striking a police officer. You must have been feeling very strange because you said to the police that they should beat you up. You were released from the police station on bail. Something that you said the police showed that you did not trust the police.

[2] I will reduce the penalty by 30%.

[3] The next incident occurred on 31 March. It was 3.45, the middle of the day, there were lots of people around and there were children there waiting for the school bus. What everybody saw was very upsetting for them.

[4] You were very drunk, people were trying to help you but you did not appreciate that. You were stumbling and falling on the ground but you would not let people help you. Part of this disorderly behaviour also involved you hitting a lady’s car which was very frightening for her and her young child. You were behaving aggressively and the police were called. When the police were taking you away, you kicked out at them. One kick missed the male police officer, the other kick hit a female police officer in the stomach and it hurt.”

12.  Given the circumstances of Mr Yari’s life, which were taken into account by the Court, no term of imprisonment was imposed, but a conviction was recorded and a bond to be of good behaviour was stipulated.  The sentencing took place in September 2017.

13.  In April 2017, Mr Yari engaged in further offending while drunk.   Mr Yari pleaded guilty.  The Court described the offending as follows (Ex R1, p.172):

“[3] On 24 April 2017, you were distressed and threatening to kill yourself. The police got called out to check on your welfare. You were very drunk and very difficult with the police and they sprayed you. The ambulance service came and when the female police officer was helping the ambulance service, she was hit with your saliva. A bit later on you also spat again but it did not hit anybody. You were taken to hospital, the police report says you spent some time in hospital.

[4] Spitting is a very nasty the police officer was very shocked and distressed. She was very worried that she might contract some sort of disease from the spitting and you had previously assaulted the same lady. So this was the most serious thing that you did because it occurred after the offending from 17 March and 31 March.”

14.  The Court sentenced Mr Yari to a term of imprisonment but suspended it. The Court noted that Mr Yari had been complying with the good behaviour bond he had entered in September 2017 and that there had been no “further run-ins with the police since April” (Ex R1, p.172).

15.  I accept Mr Yari’s evidence to me that he has ceased drinking. This evidence was corroborated, at least partly, by the evidence of Mr McDonald, who attended the hearing by phone.  Mr McDonald is a STTARS[1] counsellor.  He indicated that he had not recently seen Mr Yari affected by alcohol and had noted a general and ongoing improvement in his overall wellbeing.  He has assisted Mr Yari in obtaining counselling, including drug and alcohol counselling.  He noted that Mr Yari has developed alternative strategies to cope with his grief and past trauma: see Ex A2.

[1] “Survivors of Torture and Trauma Assistance and Rehabilitation Service”.

Form 80

16.  I need not canvass in detail the various difficulties associated with Mr Yari’s response to a departmental request for further information in connection with his application for citizenship.  It is sufficient to note that he omitted any mention of his criminal offences in the “Form 80” he had to complete and return.

17.  In the event, Mr Yari’s legal representative filed a statutory declaration in the Tribunal (Exhibit A3) accepting full responsibility for the omission and exonerating Mr Yari.  I made it clear during the hearing, and I reiterate now, that the manner in which Mr Yari’s legal advisers conducted the process of interviewing him and collating his answers left a great deal to be desired.  A prefilled form was apparently used, which is unacceptable when there is no knowledge of the true situation.  Furthermore, it would appear that a statutory declaration Mr Yari made in the proceedings before me was not read over to him in his native language before he signed it.  The declaration contained inaccurate information.  That was unsatisfactory in the circumstances.

18.  Nevertheless, the important feature in this is that Mr Yari, on the evidence before me, did not seek to mislead or deceive the Department in his dealings with it. Mr Ellison very fairly conceded that Mr Yari had not behaved dishonestly.

Determination of question of “good character”

19.  Effectively, this means that the question of “good character” is to be determined by the significance I should attach to the episodes of violent drunkenness that occurred in March and April 2017.  Mr Ellison submitted that not enough time had passed for me to conclude that Mr Yari is now of good character.

20.  I note again that my decision must be reached as of the date of the hearing before me. The episodes in question are now approximately three and three-quarter years old.

21.  I accept that I must attach some significance to the fact that there was not simply one episode of drunkenness and violence. After the first episode, which led to an assault, Mr Yari did not take the measures which he needed to take to gain self-control and avoid alcohol abuse.  He knew where alcohol misuse could lead him. I accept that there is force in the submission that that failure was serious.

22.  Nevertheless, as against that I must weigh up the fact that since April 2017, there have been no recorded instances of public drunkenness or other misconduct.  Furthermore, in estimating the moral turpitude of Mr Yari’s behaviour, I believe I should take into account the fact that Mr Yari was drunk and therefore largely unaware of his actions.  Normally, the fact that a person has drunk too much would not excuse aggressive behaviour: it might even be judged to be an aggravating feature of the offending.  But in all the circumstances of this case, the fact that Mr Yari was using alcohol to assuage the upset and trauma he felt at the time was understandable given his life circumstances.  Having drunk far too much, he became aggressive, unsurprisingly, towards others including the police.

23.  In my opinion, the drunken violence does need to be evaluated in the context of a drinking problem referable to Mr Yari’s trauma and unhappiness.  Mr McDonald suggested in his evidence that Mr Yari may in fact have blamed himself in part for the deaths of two family members (his father and his son).  That would be a very great burden to bear.

24.  On the evidence before me, Mr Yari has not drunk since April 2017, which as I have said, is some time ago now.  The evidence before me also suggests that Mr Yari has taken positive steps through counselling to address his underlying problems and has been successful.  That is important.  It is also accepted by the respondent that Mr Yari is doing what he can to support his family overseas and that he also collects money to help the poor in Afghanistan and Pakistan.  These are positive features of his present life.

25.  In all the circumstances, the evidence shows that Mr Yari has put his drinking problem behind him and has taken positive steps to address his underlying psychological problems.  In my opinion, it is important to view Mr Yari’s offending in the context of these problems, which do not reflect adversely on him.  His alcohol abuse was caused at least in part by these problems and has now been resolved. 

26.  Each case must be assessed by reference to its own facts.  I follow the well-known observations in the Federal Court authority of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 432-3 (Lee J), to which the respondent referred me. Mr Yari has, in my opinion, demonstrated that he “has reformed and is of good character” (cf Irving at 433) as at the date of my decision.

27.  Finally, I would note that both parties addressed me on the Australian Citizenship Policy and the more recent Australian Citizenship Policy Statement. There is nothing in these documents that would cause me to alter my conclusion as to Mr Yari’s present good character.  But I would repeat my concerns about the relevance of these documents to the task of the Tribunal.   I addressed this matter specifically in Re Zahidy and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2431 at [25]ff. I observed there that Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Federal Court authority that is frequently cited to justify the Tribunal’s consideration of policy statements, was a case involving a discretionary power of deportation where policy clearly had a role, or might have had a role, to play in guiding the exercise of the statutory discretion in the public interest.

28.  My decision in this case does not involve a discretionary power in the sense of a choice between alternatives in the public interest.  It involves the application of a statutory standard to the facts as I find them to be, not the exercise of discretion.  For that reason I continue to question the Tribunal’s right to apply policy statements when determining whether a person is “of good character”, but, as noted, there is nothing in these documents  that would cause me to revise my conclusion.

FORMAL DECISION

29.  I shall set aside the decision under review and substitute a decision that the applicant is of good character.

1.       I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

   …………[Sgnd]………………………

  Administrative Assistant Legal

  Dated: 10 February 2021

Date of hearing:	13, 27 January, 2 February 2021
Advocate for the Applicant:	Alyce Boemia of BEENA REZAEE LEGAL AND MIGRATION
Advocate for the Respondent:	Tom Ellison of AUSTRALIAN GOVERNMENT SOLICITOR