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

[2023] AATA 58

Ydkw and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 58 (27 January 2023)

Division:GENERAL DIVISION

File Number(s):2021/5590      

Re:Wisam Ydkw  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mr S Evans, Member 

Date:27 January 2023

Place:Sydney

The reviewable decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse the Applicant’s application for citizenship is set aside. The matter is remitted for reconsideration with a finding that the Applicant is of good character within the meaning of paragraph 21(2)(h) of the Act. 

....................[Sgd]....................................................

Mr S Evans, Member

Catchwords

CITIZENSHIP — Application for Australian citizenship by conferral — Refusal of citizenship application — Whether Applicant has satisfied section 21(2)(h) — Good character requirement — Citizenship Policy — Meaning of ‘good character’ — Enduring moral qualities — Common assault — Alleged domestic violence — No pattern of behaviour established — Driving Offences— Decision under review set aside and remitted.

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kong v Minister for Immigration and Border Protection [2018] AATA 3733
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634

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

Secondary Materials

Australian Citizenship Policy Statement

CPI 15 - Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

27 January 2023

1. Wisam Ydkw (the Applicant) is a 34 year old citizen of Iraq who immigrated to Australia with his wife and young child on 29 June 2016.[1] On 2 November 2020 the Applicant lodged an application for Australian citizenship by conferral.[2] On 12 August 2021 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused his application having found that he was not of ‘good character’, which is one of the requirements for Australian citizenship.[3] The Applicant contends he meets the character requirements for conferral of Australian citizenship and seeks review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal).[4] 

   [1] T3/18

   [2] T4/45

   [3] T9/69

   [4] T1/1

2. For the reasons that follow, the decision of the delegate will be set aside and the matter remitted to the Respondent with the direction that the Applicant meets the character requirement for grant of Australian citizenship.  

   Background

3. The Applicant and his wife, Sahbaa Eesaa, have been married since 2012 and have 3 children together. When Ms Eesaa was 7 months pregnant with their first child, she and the Applicant moved from Iraq to Lebanon. In June 2016 the Applicant, his wife and child immigrated to Australia.[5] 

   [5] Statement of Sahbaa Eesaa (Ms Eesaa’s Statement) in Applicant’s Tender Bundle (ATB), 5

4. On 13 January 2017 the Applicant was convicted of one count of common assault (DV-2) at Fairfield Local Court (the common assault offence) and sentenced to a 12-month good behaviour bond.[6] An Apprehended Violence Order (AVO) was made against the Applicant on the same day.[7]

   [6] T3/39

   [7] T3/41-42

5. After lodging an application for Australian citizenship on 2 November 2020, the Applicant was invited to provide comment on the common assault offence.[8] The Applicant did not respond to the invitation to comment and on 12 August 2021 a delegate of the Respondent refused his application, stating that the common assault offence was serious and contrary to Australian Societal Values.[9]

   [8] T6/56-59

   [9] T2/10-11

   Legislative and policy framework 

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

7. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

8. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen. 

   Determining questions of character

9. The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

   Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character…  Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[10]

   [10] (1996) 139 ALR 84, 94

10. The Department’s official guides to decision makers include both the Australian Citizenship Policy Statement (the Policy Statement), which details the overarching legislative requirements for becoming an Australian citizen, and the Revised Citizenship Procedural Instructions (the Instructions).

11. The policy relevant to this application is found in CPI 15 - Assessing Good Character under the Citizenship Act. The Instructions provide guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.

12. Informed by the discussion in Irving, subsection 3.3 of the Instruction state that:

    A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.[11]

    [11] T12/106

13. The Instructions specifically call for decision makers to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[12] A person’s enduring moral qualities encompass:

    ·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.

    [12] CPI 15, section 14, see in T12/118.

14. It is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[13] The Tribunal is guided by the considerations outlined above when determining whether the Applicant meets the good character requirement for Australian citizenship.

    [13] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ  

    Issue

15. The issue to be determined by the Tribunal is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Act.

    Evidence

16. The Applicant gave oral evidence at the hearing and has submitted a statutory declaration dated 22 November 2021 in which he sets out facts relating to his application including the circumstances of his offending. The Tribunal also heard from Ms Eesaa, Rev. Father Rode Hanna and Savah Saman, all of whom produced written statements and gave oral evidence in support of the Applicant.  

    The common assault offence  

17. The Applicant’s conviction for common assault followed an incident on 13 December 2016.[14] In the Applicant’s statutory declaration he acknowledges that on the day of the incident he was in ‘a bad mood’. He was feeling depressed and lonely as he and his family were in a ‘totally different country’ and he was having difficulty adjusting to the new environment.[15]

    [14] Respondent’s Tender Bundle (RTB), 8

    [15] Statement of the Applicant (Applicant’s Statement), ATB/1

18. The Applicant and his wife began arguing about an ‘old fridge’. He recalls they ‘had an argument … and it ended with me pushing her to the couch’. Ms Eesaa became angry and upset and started screaming at him. The Applicant recalls being incensed. He tried to calm his wife, but she was so angry that she told him she was going to report him to the police.[16]

    [16] Applicant’s Statement, ATB/1

19. Ms Eesaa left their home and filed a police report.[17] When she returned a few hours later, the Applicant had calmed down and he apologised to her. He was sorry, embarrassed and frustrated with himself for letting his emotions and temper get the better of him. He and his wife spoke about what had happened and apologised to each other and ‘everything was forgiven.’[18] 

    [17] RTB1/8

    [18] Applicant’s Statement, ATB/2

20. Three days later police visited the Applicant’s home and arrested him at 2:30 AM. The Applicant, who had been asleep, was handcuffed.[19] Police took the Applicant to Fairfield Police Station where he was held for six hours before being released.[20]

    [19] RTB1/9

    [20] Applicant’s Statement, ATB/2

21. The Applicant was given notice to attend Fairfield Local Court on 13 January 2017 where he plead guilty to common assault. An AVO was put in place and the Court imposed a 12-month section 10 ‘good behaviour’ bond without proceeding to conviction.[21]

    [21] Applicant’s Statement, ATB/2; see also RTB/5 and T3/41

22. During the hearing the Applicant was questioned about the offending. He was taken to a police facts sheet (police facts) which had been tendered to the Court. When it was put to the Applicant that there were differences between what was recorded in the police facts and his own statutory declaration, the Applicant replied that not everything contained in the police facts sheet was accurate. 

23. The police facts state that Ms Eesaa presented to the Fairfield Police Station and provided police with a four-page notebook version of the incident which she signed. She also allowed police to photograph a 5 cm scratch to the left side of her neck, though it is recorded in the police facts that she did not disclose where the scratch came from.[22] When presented with this information during the hearing, the Applicant conceded that he had scratched her when he pushed her, but denied intending to harm her. 

    [22] RTB1/8

24. It was put to the Applicant by the Respondent’s representative that his oral evidence varied from his statutory declaration where he claimed to have just pushed his wife to the couch. The Applicant did not deny what was recorded in the police facts sheet but reiterated he had no intention of harming his wife. Rather, he had sought to calm her down. He claimed not to have mentioned these aspects of the incident in his statutory declaration because he had forgotten them.   

25. The police facts also record that ‘numerous attempts’ to contact the Applicant ‘proved unsuccessful’.[23]  The Applicant told the Tribunal that he was not aware of any attempts to contact him prior to the arrival of police at his home.

    [23] RTB1/8

26. Ms Eesaa has also provided a statutory declaration also dated 22 November 2022. She states that at the time of the assault both she and the Applicant were experiencing difficulty adjusting to their new lives. She recalls being lonely and believes both she and the Applicant were keeping their feelings to themselves so as to not burden each other.[24] In relation to the incident, she writes: 

    My husband and I had an argument before Christmas 2016 over an old fridge. It was over something silly that escalated quickly and next thing we knew, we were shouting at each other… [the Applicant] pushed me to the couch, which I know that he didn’t mean to do, because he was also just as stressed as I was. I was so shocked that I told him that I didn’t want to talk to him. It was out of character for him to do that to me.[25]

    [24] Statement of Ms Eesaa, ATB/6

    [25] Statement of Ms Eesaa, ATB/6

27. She told the Applicant that she would report him to the police, and ‘stormed out the house with my daughter’.[26] 

    [26] Statement of Ms Eesaa, ATB/6

28. Ms Eesaa explains that she went to the police to ask for help ‘with counselling’. As she did not wish to burden her relatives, she was hoping police would help her to access a family and marriage counselling service to support her and the Applicant in adjusting to life in an unfamiliar place.[27] After speaking to the police Ms Eesaa returned home and the Applicant ‘immediately apologised.’ She could see that he felt ashamed for his actions earlier that day and promised to ‘never let his temper get the better of him again’. Ms Eesaa also apologised to the Applicant and told him that she had been to the police.[28]

    [27] Statement of Ms Eesaa, ATB/6

    [28] Statement of Ms Eesaa, ATB/7

29. She writes she was ‘shocked’ when police later arrested the Applicant and claims not to have known why he was detained. Whilst the Applicant was being held at the police station, Ms Eesaa attended the station to ‘try and get him out’.[29]

    [29] Statement of Ms Eesaa, ATB/7

30. Ms Eesaa considers that the consequences of her reporting the assault to the police arose out of a misunderstanding and maintains she ‘had no idea how quickly things would get out of hand’. She ‘never imagined [the incident] would be listed as common assault or domestic violence on his record’.[30] 

    [30] Statement of Ms Eesaa, ATB/7

    Traffic offences

31. The Applicant gave evidence that he obtained his drivers licence in Lebanon. Whilst in Australia he was granted a heavy vehicle licence following written and practical tests. He now works as a delivery driver 6 days a week.  

32. On 7 February 2018 the Applicant was issued a traffic infringement notice for driving with an unsecured load for which he was fined and received demerit points.[31] The Applicant explained that at the time of the offence he had not been in Australia for long and was unfamiliar with some road rules. His routine was to drive his own car to his employer’s home, and then he and his employer would take his employer’s vehicle together to work. Whilst driving his employer’s vehicle, he was pulled over by police who told him the vehicle’s load was unsecured. Though the Applicant did not load the vehicle himself, as the driver he was responsible for ensuring the load was secured correctly. He said his employer paid half the fine and he paid the other half.

    [31] RTB1/3

33. On 14 January 2019 the Applicant was issued a traffic infringement notice for failing to give way.[32] According to police notes the Applicant’s vehicle was observed merging from lane 3 to lane 2 and failed to give way to a vehicle which was already in lane 2. The vehicle in lane 2 was forced to quickly veer to the left to avoid a collision. When questioned about this incident the Applicant recalled the events including being pulled over by the police. He gave evidence that after speaking to the officer, he was of the understanding that he would not receive a fine and was surprised when he received an infringement notice in the mail 5 days later. 

    [32] RTB1/3

34. Upon receiving the infringement notice, the Applicant consulted with his wife and they agreed to let the matter proceed to court. It was the Applicant’s evidence that the matter was dismissed after a video of the incident was shown in Court. Consistent with his account, NSW Justice records confirm the matter was listed for hearing on 18 June 2019 and dismissed.[33]

    [33] T3/40

35. On 16 December 2019, the Applicant was issued a traffic infringement notice for driving across dividing lines in order to make a U-turn, for which he was fined and issued demerit points.[34]

    [34] RTB1/2

36. The Applicant also has been detected exceeding the speed limit by more than 10km/h but less that 20km/h whilst driving a coach or heavy vehicle for which he was fined and lost 3 demerit points.[35]

    [35] Applicant’s Driving Record, ATB/22

37. Most recently the Applicant was issued a traffic infringement notice for not complying with heavy vehicle load requirements on 17 May 2021.[36] The Applicant was taken to NSW police notes obtained under summons which detailed how he was stopped at an inspection bay where police ‘observed an unsecured pallet jack which was freely moving around and not tied down’. When spoken to by the police the Applicant said words to the effect of ‘oh well, what else can I do’.[37] The Applicant recalled the incident and conceded he may have said words to that effect but explained he did not intend to be flippant or dismissive, but it may have been perceived that way owing to his English language skills. Rather he was asking how best to secure the load of 100 trees which were on his truck. The police notes describe the failure to comply with loading requirements as presenting a ‘minor risk’.

    [36] RTB1/2

    [37] RTB1/2

38. The Applicant’s driving record was such that he had lost sufficient demerit points to warrant being issued demerit points warning letters in June 2020 and October 2021.[38] Nonetheless, the Applicant wrote in his statutory declaration of November 2022 that ‘his driving record is good’.[39] Asked by the Respondent’s representative why he made this declaration given his poor driving record, he gave evidence that he believed that his driving record was good as he had not lost his licence. 

    [38] Applicant’s Driving Record, ATB/22

    [39] Applicant’s Statement, ATB/3

    Character references

39. Rev. Father Rode Hanna provided oral evidence at the hearing, a statutory declaration and a letter of support for the Applicant. He is the parish priest for the St Mary’s Assumption Chaldean Catholic Parish and has known the Applicant and Ms Eesaa for two years and confirms they and their children are regular attendees at his church.[40]

    [40] Statement of Rev. Father Rode Hanna (Statement of Rev. Hanna), ATB/13

40. Rev Hanna has visited the Applicant and his family at their home. In the statutory declaration dated 22 November 2021 he writes he is aware of the offending and that both the Applicant and Ms Eesaa had spoken to him about the offences.[41] He considers them to be ‘nice people and very respectful’ who provide a loving environment in which to raise their children.[42]

    [41] Statement of Rev. Hanna, ATB/13-14

    [42] Statement of Rev. Hanna, ATB/15

41. Savah Saman is a former colleague of the Applicant. In a statutory declaration dated 26 September 2022 he writes how he and the Applicant have become good friends since working together.[43] He socialises with the Applicant and Ms Eesaa and believes they have a great and loving relationship.[44]

    [43] Statement of Savah Saman (Statement of Mr. Saman), ATB/18

    [44] Statement of Mr Saman, ATB/18

42. Mr Saman provided oral evidence at the hearing in which he confirmed he was not aware of the Applicant’s traffic offending, but said he expected that the Applicant would have some traffic related offences ‘because he was a truck driver’.

    Consideration

43. In determining if the Applicant is of good character, I am to consider the evidence as a whole and the Applicant’s behaviour over time, including prior to making his citizenship application.

44. I found the Applicant and Ms Eesaa to be credible witnesses. I am satisfied that Ms Eesaa was not influenced by the Applicant when giving evidence in support of her husband’s application.

1. The Applicant has committed a single offence. The Respondent submits that the offence was an act of domestic violence and should be considered serious. Further, the implementation of the AVO indicates the court was satisfied there was an ongoing basis on which to apprehend further acts of violence being perpetrated by the Applicant against his wife. [45] I accept the Respondent’s submission that domestic violence is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.[46]

   [45] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [18]

   [46] RSFIC, [19]

2. The Respondent has directed me to decisions where applicants who have committed domestic violence offences have been denied citizenship including Sharma v Minister for Immigration and Border Protection, where the Tribunal observed: 

   Mr Sharma's convictions for assault occasioning actual bodily harm and destroying or damaging property are serious. The Australian Citizenship Instructions provide that crimes of violence are to be regarded as serious offences. This is particularly so in the case of domestic violence. Such conduct is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.[47]

   [47] [2015] AATA 608, [37]

3. The Applicant concedes that the offence was serious and has expressed his remorse, which I accept as genuine. His wife, who was the victim, gave evidence in support of his application. I found her evidence to be genuine and thoughtful. Based on their accounts of the common assault it is apparent that the Applicant and Ms Eesaa were experiencing difficult and challenging circumstances at that time.

4. None of these factors absolve the Applicant of his responsibility for what took place. That said, the objective facts strongly support a conclusion that what occurred in December 2016 was an isolated incident. There is no evidence to indicate that it is part of a continuum of behaviour or that the Applicant believes it was in any way acceptable. It is appropriate to observe that no incidents of a similar nature have been reported either before or after. Whilst the Instructions provide that a person of good character would not be violent, I am satisfied that the offence was at the lower end of the spectrum in terms of seriousness, that it was an isolated incident and that it occurred in unique and trying circumstances which are acknowledged and understood by the Applicant. As such, I am satisfied that the offending in this instance would not preclude a finding of good character some 5 years after the offence.  

5. In relation to the Applicant’s driving record, the Respondent contends that his traffic offences created a serious risk to other road users and demonstrate a real disregard for road safety laws. Each of the offences resulted in relatively minor penalty notices but in aggregate were serious enough to warrant the Applicant being sent demerit point warning letters on June 2020 and October 2021.

6. As a full-time delivery driver and holder of a heavy vehicle licence, the Applicant is responsible for informing himself of - and abiding by - the applicable road rules.

7. Nonetheless, the Applicant did not disclose these traffic offences on his application and went so far as to submit his ‘driving record is good’ in his statutory declaration of 22 November 2021. Having received two warnings that his licence may be suspended, the Applicant’s sanguine observation regarding his driving record is not accepted.

8. The Applicant completed an Online Traffic Offenders Rehabilitation Program on 26 March 2022 which the Respondent contends was in order to support his application for citizenship rather than any genuine desire not to reoffend. The circumstances and timing of the course strongly support this proposition.  

9. The Respondent identifies cases where citizenship has been refused on the basis of an Applicant’s driving history including Kong v Minister for Immigration and Border Protection (Kong). In Kong, the applicant’s driving record included driving without authority, drink driving and exceeding the speed limit by between 30 and 40km/h.[48] I do not consider the Applicant’s driving history to be of comparable seriousness, but accept the Respondent’s proposition that regular traffic offending presents a serious risk to other road users and demonstrates a real disregard for road safety laws.[49] 

   [48] [2018] AATA 3733, [34]

   [49] RSFIC, [25]

10. The Applicant was taken to each of the traffic offences during the hearing and his evidence was consistent with what was recorded in the police notes. He did not dispute the facts and in relation to the two incidents involving unsecure loads he was able to provide a thorough and detailed explanation of the circumstances. The sum of his evidence indicated an appreciation of the importance of abiding by traffic laws. 

11. The Instructions also refer to mitigating factors and circumstances which should be taken into account when assessing if a person is of good character. These include the length of time since the offence and conviction, whether the applicant has accepted responsibility and shown remorse for their conduct and any extenuating circumstances relating to the offence.

12. The Respondent contends that insufficient time has passed since the common assault given the violent nature of the offence. The offence occurred in December 2016 and the good behaviour bond ended only 3 years before his application for citizenship. Having regard to the seriousness of the Applicant’s conduct and that 5 years have now passed since the offence, I do not agree with this submission.

13. The Applicant and his wife now have 3 children together. He is building a business and is an active member of his church. He claims to be working towards buying a bigger home for his family to live in. I do not consider him likely to reoffend and I am satisfied that what occurred in 2016 was an isolated incident which was out of character and one he sincerely regrets and is genuinely remorseful for. As such, I am satisfied that he has the enduring moral qualities which the Australian community expects of a citizen and find that he is of good character. 

    Decision

14. The reviewable decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse the Applicant’s application for citizenship is set aside. The matter is remitted for reconsideration with a finding that the Applicant is of good character withing the meaning of paragraph 21(2)(h) of the Act. 

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of

...........................[Sgd].............................................

Associate

Dated: 27 January 2023

Date of hearing:	6 October 2022
Solicitors for the Applicant:	Ms W Milojkovic, South West Migration & Legal Services
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor