Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 (1 March 2002)

Last Updated: 6 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 132

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/450

GENERAL ADMINISTRATIVE DIVISION )

Re FARID AHMAD KAKAR

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date 1 March 2002

Place Perth

Decision The decision under review is affirmed. Application for citizenship not to be reconsidered before 23 June 2003.

..............(sgd)......................

Deputy President

CATCHWORDS

Immigration - Australian citizenship - "good character" - application by male Afghan national convicted of causing grievous bodily harm.

Australian Citizenship Act 1948 - s13(1)(f)

REASONS FOR DECISION

1 March 2002 The Hon C R Wright QC., (Deputy President)

1. The applicant entered Australia as a permanent resident on 22 February 1994. He applied for Australian citizenship on 9 October 1996. The application was approved on 13 November 1996. The applicant was sentenced to 18 months imprisonment for grievous bodily harm on 8 November 1996. He received a Warning of Liability under Section 200 of Migration Act on 6 May 1997. The applicant was released on parole from 8 May 1997 to 6 November 1997. Approval of the citizenship application was revoked on 2 January 1998. The applicant was advised, in a letter dated 28 January 1998, that he would not be eligible to apply for citizenship until 8 May 1999. An application lodged on 6 May 1999 was refused on 15 December 1999.

2. The applicant lodged a further application on 20 December 1999. This was refused on 1 November 2000. The applicant now asks the Tribunal to review that decision.

3. Section 13(1)(f) of the Australian Citizenship Act 1948 requires that an applicant for citizenship must satisfy the Minister that he is of "good character". Policy guidelines to assist in this assessment are contained in Citizenship Instructions clause 4.8.15 and following.

4. The applicant was born in Kabul, Afghanistan on 18 December 1965. He is presently aged 36 years. He lives in Perth, Western Australia with his wife, children and elderly mother.

5. On 8 November 1996 the applicant appeared in the District Court of Western Australia before Sadlier DCJ charged upon indictment that on 23 June 1996 at Ballajura he unlawfully did grievous bodily harm to Susan Kakar. He entered a plea of guilty and was represented by legal counsel.

6. Counsel for the prosecution, Ms Boyatzis stated the following facts to the Court:

""Your Honour, the facts are as follows: in this case the complainant is a 23-year-old female and is the niece of the prisoner. Both persons are Afghanistan refugees who arrived in Australia about 3 years ago.

On the evening of Saturday¸22 June 1996, the complainant and her mother, who is the prisoner's sister, travelled by public transport to visit the prisoner and his family at his home in Ballajura. The complainant visited her uncle because his 3-year-old daughter had been ill. They arrived at his home at 8.00 in the evening. During the evening a conversation took place in their native Afghanistan language, Dardic.

After watching a video depicting people dancing a conversation commenced that the complainant had been dancing at nightclubs. The prisoner began to insult the complainant by calling her a prostitute and of having an Australian boyfriend. The complainant is a practising Muslim and it's an insult to her, I'm instructed, to be accused of these things and the prisoner was well aware of this.

The complainant and her mother decided to leave the prisoner and he stated that he would give them a lift in his vehicle. The complainant refused because she was frightened of the prisoner. She believed that if she left the house she would be assaulted by him and decided to stay longer. The prisoner became angry and continued to insult the complainant. The prisoner told her that he wanted to hit her but couldn't hit her in his own home. The complainant states that it's against their religion to strike someone in your own home.

The complainant became scared of the prisoner and she, with her mother, decided to leave the house. At this point in time it was 3 am the next morning. The complainant and her mother walked from the prisoner's home to Rosella Court, a short distance away. The prisoner followed in his vehicle. He continued to shout insults at the complainant and he was telling them to get into his car. He stopped his vehicle and approached the complainant. He grabbed hold of her hair with his left hand and punched her in the right eye. He again punched her on the nose.

The complainant immediately felt pain to the right eye and it began to water profusely. The prisoner punched the complainant to the back of the head and continued to abuse her and insult her. She managed to break free and run away. She felt something hit her in her back. She saw that the accused had thrown one of his slippers at her. He was also throwing rocks at her as she ran off. The complainant and her mother ran off and waved down a passing taxi. The police were subsequently contacted and the complainant attended at QEII hospital for treatment.

She was hospitalised from that date until 5 July 1996. She suffered, as well as eye injuries, bruising and swelling to her nose. As at yesterday, I was instructed by the police that her eyesight is still very, very blurred and she is due to be reassessed on 19 November 1996.

On 25 June 1996 the prisoner was interviewed by detectives with the assistance of the interpreter and he was interviewed on the video. He denied that he assaulted the complainant. He admitted telling them to leave his house and he pushed them to the door. He denied following them in his car and says that he didn't punch the complainant. He was then arrested and charged.

7. During further discussion between counsel and the judge it emerged that the complainant has 50% sight in the injured eye, but for all practical purposes she is blind in that eye. It was suggested that there may be some future improvement but this was not expected.

8. In his plea in mitigation on behalf of his client, counsel for the applicant said:

"Your Honour, my client is 31 years of age and was born in Kabul in Afghanistan. He has three brothers and three sisters and one of his sisters Delbar is the mother of the complainant Susan Kakar. When the Russians invaded Afghanistan in 1978 he was 13 years old Now, part of his family moved to Pakistan at that time but he stayed to finish his education in Afghanistan and became a graduate biology teacher but rather than work under the regime in Afghanistan he also left and went to Pakistan in 1989 where he worked for the United Nations immunisation program, mostly among the Afghan refugees but also among the local population.

He married in 1992 and they had two children in Pakistan. His wife is also from Afghanistan and is a high school teacher. The two children are now 5 and 3. It was the 3-year-old who was in hospital just prior to this incident. My client has helped and supported his sister Delbar in various ways over a number of years. While they were still in Afghanistan she was widowed and her late husband's family wanted to marry her to another member of their family. Now, this was against the wishes of Mrs Delbar Kakar so my client and his brothers removed her out of Afghanistan to Pakistan.

In Pakistan when my client had joined them and was in employment he supported his sister and other members of his family. He paid for the wedding of her eldest son Hamid. When they came to Australia as refugees the family came one by one and because Farid Kakar had the best employment in Pakistan he stayed until the rest of the family had left. The last one was in fact Mrs Delbar Kakar and her children, including the complainant. The prisoner, in Pakistan at that time, paid for new clothes for Delbar and her family and gave them a $1000 in cash to help them resettle in Australia and hired a mini-van to take them to the airport.

In 1994 the prisoner came with his mother and his wife and children to Australia so that there are now three brothers and two sisters with their families in Perth. They are of course a close-knit unit. In Perth the prisoner continued to help Delbar in particular because she is the widowed one and in particular she did not have a car so he acted as taxi for her and her family. He worked hard to learn English and has been learning new skills for the months prior to this incident. He was working on a Job Skill program and I will hand up references briefly.

Just before this incident his little girl was in hospital for about 2 weeks with a serious lung problem and he had been working during the day and staying at the hospital in the evening because his wife had to stay at home to look after the elderly grandmother and the other younger child. We agree that on Saturday the 22^nd the complainant and her mother came to the prisoner's house at 8.00 in the evening and they were still there at 3 o'clock the following morning.

There was obviously an argument. It sounds, from the statement of facts, that this was, shall we say, an Islamic thing. My client wants me to stress that he is not in any way an Islamic fundamentalist. They are in fact refugees from that system. Mr Kakar and all of his family wear, for example, western clothes. He is not concerned with what his niece does. He is not considering himself as any kind of - in the position of parent of the girl or her family at all.

This matter has taken a while to come to court. He has pleaded guilty at the very first opportunity, which was as soon as we had the medical report. He is desperately upset and sorry about what happened. This was a situation, I believe, where the man had been too tired. He snapped because of some stupid senseless argument and with one punch - there where admittedly a number of blows, but one particular punch has damaged this part of the girl's eye."

In passing sentence Sadlier DCJ said:

"Farid Kakar, would you stand. The facts of this offence are fully stated, what has been said by the prosecutor and by your counsel, Mr Glenn. When the complainant, Susan, and her mother were at your house an argument developed between them and you. In that argument you began insulting Susan, you called her a prostitute and used other insults to her.

When she and her mother left your house in the early morning, you followed them in your car, you continued to shout insults. You got out and you attacked Susan. You took her by the hair, you punched her in the area of the right eye. You punched her to her nose and to the back of her head. These were violent blows. When she broke free and ran away you threw objects at her and you left her and her mother to make their way then back home.

The injuries she suffered have been described and you are well aware of the damage you inflicted. In the interview by the police, you said that you had told Susan and her mother to leave the house. For various reasons you denied that you followed them or that you acted in the way that now you admit.

In the video interview you give the appearance of being arrogant and indifferent about the injury to the complainant or about your behaviour but I accept from what Mr Glenn has said that you were not aware at that time of the extent of injury. I accept that now you are repentant. I must take into account in your favour also these testimonials as character evidence which shows that you have been very highly regarded in your work in this state. You are, of course, an intelligent man and you have in the past had a close protective role in relation to the complainant and her mother. You have also experienced a very difficult background of trauma and deprivation in your original home country, but on this particular night you had some sort of fixation or complex about the behaviour of your niece and members of her family. You were worked up into a state of anger which you did not control. You inflicted these brutal blows to your niece with very serious consequences to her.

In her impact statement she describes the continued painful state from which she suffers; depression, her fear of losing her sight and a fear of you. Now, I have considered alternatives to imprisonment but I cannot regard this as anything other than a serious offence of violence for which there is a need for punishment and general deterrence. I appreciate your concern now and you will have to live with the injury you caused.

In the normal way I would sentence you to imprisonment for a term of 3 years but by reason of your early plea of guilty and the other matters in your favour, you will be sentenced to a term of imprisonment of 18 months. I direct you will be eligible for parole. Stand down."

9. During the review proceedings before the Tribunal on 9 October 2001, the applicant gave sworn evidence and was cross-examined by counsel for the respondent.

10. He said that at the time of the assault upon his niece he believed that she had been disrespectful to his mother and had acted contrary to Afghan cultural tenets. He said that he now realised that his conduct was unacceptable to Australian cultural standards and he also said that he had made a special effort since his imprisonment to understand and conform to Australian behavioural norms. Unfortunately, I gained the clear impression that the applicant was giving lip service to those things which he believed the Tribunal would need to hear to be satisfied that his violent behaviour to his niece was out of character and that he was now a changed man. It was clear to me from several responses he made to questions by counsel for the respondent that he was prepared to attempt to justify his violent behaviour and to blame his niece and her mother for his punishment and his consequent feelings of shame. At several points he seemed to be suggesting that he had not been instrumental in causing any injury to his niece or the loss of sight in her right eye, and it was only when placed under pressure by counsel that he was prepared to resile from this stance. I am by no means persuaded that his outlook towards women, and his implied right to assert power over them has undergone significant change since 1996. Insofar as he claims to the contrary I think he is not being frank or is, at best, self deluded.

11. In coming to this conclusion I have not overlooked the many written references speaking highly of the applicant which were referred to at the hearing, some of which asserted that an act of violence is completely "out of character" for the applicant. Whilst questioning this particular conclusion, it should not be thought that I discard the other valuable information contained in those references which clearly show that the applicant has been very active in community work, assisting people with disabilities, and attempting through educational channels to bridge the cultural gap between Afghanis and other members of the Australian community in his role as Secretary of the Afghan Social Council Inc.

12. The applicant is currently employed with an office cleaning company in Perth and is regarded by the proprietor as "a conscientious, caring, trustworthy and reliable employee". Similar opinions have been expressed by a number of prominent members of the community. The theme throughout the references is that he is helpful, caring and even tempered. All these qualities augur well for his capacity to avoid violence in future and to develop a level of maturity which was not present 1996. I have read and considered all the material provided by the applicant in Exhibit A3 and I have also considered the sworn evidence given by Dr John Crouch.

13. "Good character" within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community. In the present context the words of Lee J in Irving v Minister for Immigration (1996) 68 FCR 422 @ 431-432 are of particular relevance. His Honour 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 and 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 subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers (ACT) (1994) 117 FCR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1128-1129 per Lord Radcliff, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 at 416 per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character."

14. When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.

15. The offence of inflicting grievous bodily harm in a very serious one indeed. It transcends assault and wounding in the hierarchy of crimes against the person. Nearly always it results in a substantial gaol sentence, as indeed it did on this occasion.

16. The applicant is not having his character assessed as a potential criminal deportee in which case other factors would need to be considered. The simple question is whether he is of such character that he should be accorded the privilege of Australian citizenship.

17. In my opinion the cloud cast over his character by the beating he administered to his niece still lingers, despite the many positive steps he has taken towards redemption. In my view sufficient time has not yet passed to enable me to be satisfied that the applicant is now a person of good character.

18. In my opinion the decision under review should be affirmed and his application for citizenship should be deferred for reconsideration until at least 23 June 2003.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed: K L Miller (Personal Assistant)

Date/s of Hearing 9 October 2001

Date of Decision 1 March 2002

Representative for the Applicant Ms Jane Saunders

Counsel for the Respondent Mr Ari Jenshell

Solicitor for the Respondent Aust Government Solicitor