Australian Immigration Daily News

There are so many real benefits for a person who is present in Australia as a permanent resident to take the next step and seek Australian citizenship. 

One of the benefits – although one would think that it would be needed only by a very tiny percentage of people who are living in Australia – is that having citizenship effectively insulates a person from the possibility of having their visa cancelled on character grounds and being deported back to their country of origin. 

Of course, an Australian citizen could conceivably commit a crime of the worst imaginable description and the consequence would only be a prison sentence.  For the non-citizen who is here on a visa but wishes to remain, there is a “double sanction” – not only will they suffer whatever sanction the criminal justice sees fit to impose, but, after they finish their prison term, they will be ushered into the “delightful accommodations” that are provided in immigration detention and then “sent packing” to wherever it is they may have come from. 

As the case of Ricardo Bolvaran that was covered in the Sydney Morning Herald illustrates, deportation can be especially difficult for a person who has lived in Australia since very early childhood, has never spent time in their home country, and does not know the language and culture. 

And some people who have been here since a very early age may simply take it for granted that they are “Australian”, and not be aware of the legal distinction between being a permanent resident and a citizen or of the other niceties and nuances of the migration laws.  For people in this situation, finding out that their visas have been cancelled would come as a terrifically rude shock. 

Well, perhaps some of you may be thinking: “There’s an easy answer to all of this. All you have to do is obey the law, and do not commit criminal acts, and you won’t find yourself in this circumstance!”  Or, “Why didn’t you get your Australian citizenship when you had the chance?  It’s an easy thing to do!” 

OK, what about the person who has committed a criminal offence that has not resulted in a sentence of imprisonment of 1 year or more (thus causing them to “flunk” the character test) – are their chances of getting citizenship completely sunk? 

The answer every lawyer loved to give of course,  is “it all depends”! 

But a case from the AAT that was handed down last week provides an example of “what not to do if you don’t want to destroy your chances of getting citizenship”.  The case, Hassan and Minister for Immigration and Border Protection (Citizenship) 2015 AATA 961 (14 December 2015) also provides some very valuable lessons about the kinds of things that applicants for citizenship can do to overcome a history of minor criminal offending. 

The history in Hassan was actually pretty remarkable! 

As recounted in the AAT’s judgment, Mr Hassan is a citizen of Egypt who arrived in Australia in 2010. He is married, has three stepchildren and has established a furniture removal business. 

The problems for Mr Hassan developed when he became involved in a dispute with his neighbour.

Apparently, this dispute started when Mr Hassan’s wife became involved in an argument with the neighbor about the use of a power supply in a shared laundry. Evidence in Local Court proceedings that were brought against Mr Hassan was to the effect that Mr Hassan chased the neighbor up a set of stairs while holding a child’s cricket stump, made a throat slitting motion and said to the neighbor “I kill you, I kill you.”  There was also evidence that Mr Hassan attempted to gain entry to the neighbour’s apartment unit, and that he hit the neighbour’s screen door with the cricket stump. 

Two charges were brought against Mr Hassan.  They were “using an offensive weapon with intent to commit an indictable offence” and “intimidating with intent to cause fear of physical/mental harm”.    

The outcome of these charges in the Local Court were that Mr Hassan was given a 12 month good behaviour bond for the charge relating to the use of an offensive weapon, and the intimidation charge was disposed of without penalty. 

It was of importance to the ultimate outcome of his citizenship application that when he was interviewed by the police, Mr Hassan did not accept responsibility for his conduct.  He denied all aspects of the offences other than that he had had the cricket stump in his hand, claimed that all the witnesses who gave evidence against him had been lying and asserted that it was his neighbor, and not himself, who had been the aggressor in the incident. 

After the citizenship application was refused by the Department on the grounds that Mr Hassan was not a person of good character, and an appeal was taken to the AAT against the refusal, Mr Hassan continued to deny that he was responsible for the offences. He provided a statement to the AAT in which he said that “I have never breached any law.”  And when he was confronted with the findings of the Local Court at the hearing before the AAT, he asserted that “nothing like this happened”. 

As one might imagine, the approach that Mr Hassan adopted, of steadfastly refusing to accept responsibility for his behaviour, essentially backfired.

The AAT cited Mr Hassan’s failure to be truthful when he was interviewed by the police, and in the Local Court proceedings, as reasons for concluding that he did not have respect for the laws of Australia and was not a person of good character. The AAT also found that the mitigating factor of “remorse” was absent from the case, as Mr Hassan continued to maintain that he did not commit the offences and to blame his neighbour for the incident. 

It also did not help Mr Hassan’s cause that he was unable to provide evidence that he had taken steps to rehabilitate himself. 

This, even though Mr Hassan was able to provide character references to the AAT to the effect that he was “honest, well-mannered, hard-working and mindful of the welfare of the others”, these references were not sufficient , when weighed against the nature of the offences and Mr Hassan’s refusal to accept responsibility or to display remorse. 

It also hurt Mr Hassan’s case that he filed his citizenship application only one year after he had been released from the good behaviour bond that had been imposed by the Local Court. The AAT was not satisfied that the passage of this relatively short period of time, without further evidence, was enough to demonstrate that Mr Hassan had reformed.  

So what are the lessons of this case? They are several. 

First, of course, committing a crime involving an element of violence is surely going to weigh against a citizenship application, surely more so than a non-violent or “victimless” offence.   

Second, “when it’s over, it’s over”. If the applicant has been convicted of an offence, it will certainly not enhance his/her prospects before the Department or the AAT if they continue to try to argue that “they were really not guilty of anything after all”. Far better to accept reality and to acknowledge responsibility for the offence and to show that one recognizes that the conduct was wrong and to apologise for it. 

Thirdly, allowing time to pass between the time of the offence and the citizenship application is probably a sound strategy in moist cases.  The more time that goes by after the offence, the easier it will be to show that the applicant has reformed her/his ways and that the incident was an isolated episode that is not reflective of the applicant’s true character.  

Finally, I might say that as an American who knows a lot about baseball and next to nothing about cricket (saying that publicly might get me kicked out of Australia, I know!!) I might add that no matter what, it is always a better idea to leave the cricket stump in the ground where it belongs!!!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837