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

[2022] AATA 4180

Aburumman and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4180 (7 December 2022)

Division:GENERAL DIVISION

File Number:          2021/6129

Re:Rushdi Abdel Rahman Ali Aburumman

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Dr L Bygrave, Member

Date:7 December 2022

Place:Sydney

The Tribunal sets aside the decision under review made by the Respondent on 23 August 2021 and remits the matter to the Respondent for reconsideration with the direction that the Applicant, Mr Rushdi Abdel Rahman Ali Aburumman, satisfies the requirement in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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Dr L Bygrave, Member

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – whether Applicant is a person of good character pursuant to paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – Australian Citizenship [Policy Statement] – Citizenship Procedural Instruction 15 – decision set aside and remitted

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 24

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9

Cases

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

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Secondary Materials

Australian Citizenship [Policy Statement] (27 November 2020)
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)

REASONS FOR DECISION

Dr L Bygrave, Member

7 December 2022

INTRODUCTION

1. Mr Rushdi Abdel Rahman Ali Aburumman made an application for Australian citizenship by conferral on 2 April 2021 pursuant to section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

2. This application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister)[1] on 23 August 2021 on the basis that Mr Aburumman did not satisfy paragraph 21(2)(h) of the Act, which requires that he must be ‘of good character’ at the time of the decision.

   [1] From 1 June 2022, the Minister for Immigration, Citizenship and Multicultural Affairs.

3. On 26 August 2021, Mr Aburumman made an application for review of the Minister’s decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

4. The application was heard by the Tribunal on 13 October 2022; Mr Aburumman attended the hearing and gave oral evidence in person.

   RELEVANT LEGISLATION

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

6. The general eligibility requirements for Australian citizenship are stipulated in subsection 21(2) of the Act and relevantly include:

   (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (h) is of good character at the time of the Minister’s decision on the application. [emphasis added]

   Australian Citizenship [Policy Statement] and Citizenship Procedural Instruction 15

7. The Act does not define the term ‘good character’; however, policy guidance can be found in the Australian Citizenship [Policy Statement] (the Citizenship Statement).

8. The Citizenship Statement outlines the ‘overarching legislative requirements for the process of becoming an Australian citizen’, sets out the rights and responsibilities of Australian citizenship, and lists a framework of related documents. These documents include the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) that was reissued on 26 February 2021 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Act.[2]

   [2] Australian Citizenship [Policy Statement] and CPI 15 – Assessing Good Character under the Citizenship Act, section 1.

9. CPI 15 provides policy guidance on the interpretation and application of the good character requirement in the Act. The Full Federal Court decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs is cited as guidance to the definition of good character:

   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 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. [3] [emphasis added]

   [3] (1996) 68 FCR 422 at [431]-[432].

10. CPI 15 further states that the phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have endured over a long period of time, distinguishing right from wrong, and behaving in an ethical manner including conforming to the rules and values of Australian society.[4] This good character requirement necessitates considering a person ‘in a holistic way’ with all aspects of their life potentially relevant to deliberation of their character.[5] I can be satisfied a person is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout the time they held a visa and their citizenship application process.[6]

    [4] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [5] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [6] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

11. The role of the character requirement in a citizenship application is also explained by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:

    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]

    [7] [2000] AATA 931 at [8].

12. CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevant to this matter, a person of good character would:

    ·‘respect and abide by the law in Australia’; and

    ·‘not be violent… and not cause harm to others through their conduct’.[8]

    [8] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

13. I note that CPI 15 states the application of these principles should be considered in view of the facts of the particular case and ‘should not be applied rigidly or inflexibly’.[9] Further, it is necessary to consider any other information relevant to a person’s character such as their family life, whether they are responsibly employed and paying taxes, the time that has elapsed since their offending and whether they have expressed genuine remorse for their past wrong doing. CPI 15 articulates this process as follows:

    Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.[10]

    [9] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

    [10] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

    EVIDENCE

14. Mr Aburumman is 39 years old and a citizen of Jordan. He first arrived in Australia in April 2008 after he was granted a TU-subclass 570 visa offshore and, in July 2016, he was granted a UK-subclass 820/BS-subclass 801 visa.[11]

    [11] Exhibit T-T2, 11.

15. Mr Aburumman is married with two young children. He worked in customer service prior to commencing a business partnership with his brother in 2016.

    The offence

16. On 29 January 2020, Mr Aburumman was found guilty of the offence ‘common assault (DV [domestic violence])-T2’ in the Downing Centre Local Court and sentenced to a conditional release order without conviction for a period of 18 months concluding on 28 July 2021.[12]

    [12] Exhibit T-T5, 88-89.

17. This offence related to an incident between Mr Aburumman and his brother on 24 January 2020. The following background to and summary of this incident is derived from the documentary evidence filed with the Tribunal, as well as oral and written evidence from Mr Aburumman, his brother and a witness present during the incident.

18. Since 2016, Mr Aburumman and his brother have had a business partnership that includes the joint ownership of a convenience store. Mr Aburumman manages the convenience store (placing orders, paying bills, serving customers and the day-to-day running of the store etc) while his brother operates another business.

19. Mr Aburumman married his wife in Jordan in 2017 and, while awaiting her visa to come to Australia, he visited her in Jordan several times during 2018-2019. During these visits, Mr Aburumman’s brother covered his work at the convenience store.

20. In late 2019, Mr Aburumman went to Jordan as his wife was due to give birth to their first child. He promised his brother that he would only be away for one month and arranged for a friend to assist at the convenience store during his absence. However, after his child was born, Mr Aburumman decided to stay longer in Jordan to be with and support his wife and child.

21. As Mr Aburumman was away for a longer period than expected, his friend stopped assisting at the convenience store due to other commitments and his brother was required to manage the convenience store. Mr Aburumman’s brother was upset as he was losing revenue from his other business because he was having to manage the convenience store and advised Mr Aburumman to return to Australia. Mr Aburumman eventually returned to Australia after two and a half months in Jordan.

22. When Mr Aburumman arrived in Australia, his brother was ‘very angry’ and told him to ‘stay away from the convenience store’ and to ‘not enter until he let [him] in’.[13] Mr Aburumman attempted to commence work at the convenience store several times but was stopped by his brother. Mr Aburumman became frustrated because he owned the convenience store in equal partnership with his brother and was stressed because he needed to earn an income to support his wife and child.

    [13] Exhibit T-T6, 98.

23. On 24 January 2020, Mr Aburumman went to the convenience store and his brother again stopped him from entering the store. Mr Aburumman and his brother had a ‘heated’ verbal argument and his brother threatened to call the police if Mr Aburumman did not leave. Mr Aburumman dropped a lolly bottle on the floor; his brother thought this was a deliberate act and called the police. A witness, who is a mutual friend of the brothers, was present at the store at the time and stood between the brothers so they could calm down.

24. Police attended the convenience store, reviewed the CCTV footage and subsequently charged Mr Aburumman with common assault. This was despite both Mr Aburumman and his brother requesting the report of an incident be withdrawn. Details of the incident outlined in a NSW Police Facts Sheet are also disputed by Mr Aburumman and his brother: they both accept there was a verbal argument and Mr Aburumman grabbed his brother’s hand as he moved away, but deny there was any pushing or Mr Aburumman attempted to hit his brother. This was consistent with the evidence of their mutual friend who was present at the store and witnessed the incident.

25. After the police left the convenience store, Mr Aburumman and his brother apologised to each other, hugged and resolved the matter. They had dinner together the same evening and Mr Aburumman recommenced his work at the convenience store the following day.

26. Mr Aburumman and his brother told the Tribunal they wanted to finalise the incident and resolve the common assault charge. They did not receive legal advice and Mr Aburumman pled guilty at the Local Court as he believed this would be the quickest way to move on from the incident.

27. Court Orders dated 28 and 29 January 2020 (four and five days after the incident) show Mr Aburumman pled (and was found) guilty of the offence, ‘common assault (DV)-T2’, and was directed to enter into a ‘Conditional Release Order for 18 months pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999’ (NSW), with the standard conditions that he ‘must not commit any offences’ and ‘must appear before the court if [he is] called on to do so during the term of the order’.[14]

    [14] Exhibit ST-S9, 18-19.

28. Mr Aburumman correctly declared this offence in his ‘Application for Australian Citizenship by Conferral – General Eligibility 1300t’ made on 2 April 2021.[15]

    [15] Exhibit T-T3, 43-44.

    No other offending behaviour

29. There is no evidence of any other offending or criminal behaviour by Mr Aburumman in an Australian Criminal Intelligence Commission report dated 16 July 2021.[16]

    [16] Exhibit T-T5, 89.

30. A ‘Bail Decision – Reasons for Decision’ dated 28 January 2020 stated Mr Aburumman ‘has no known criminal history’, ‘no history of violence’ and ‘no history of non-compliance with bail’.[17] This document also described the ‘nature and seriousness of the offence’ as ‘spur of the moment’ but noted ‘it is a domestic assault [which] it makes it more serious than a similar incident’.[18]

    [17] Exhibit ST-S8, 16.

    [18] Exhibit ST-S8, 16.

31. A ‘Non Criminal Record Certificate’ produced by the Ministry of Justice, The Hashemite Kingdom of Jordan dated 6 April 2021 declared Mr Aburumman:

    has neither been convicted in a dishonorable nor A public demoralizing crime or offence with any charge or any previous conviction.[19] [reproduced as in original]

    [19] Exhibit T-T3, 64.

    Rehabilitation

32. In his evidence to the Tribunal, Mr Aburumman said the incident with his brother on 24 January 2020 was unexpected and his behaviour was out of character. He said he is usually quiet, polite and happy, and he and his brother had not previously (and have not since) argued. He confirmed that they are the only members of their family in Australia and spend considerable time together socially in addition to their business partnership.

33. Mr Aburumman said that he has not attended an anger management course or seen a psychologist but said that he now does yoga and meditation to relax since the incident. He accepted he made a mistake but has ‘learned a lot’ from what happened with his brother; he respects and understands the importance of following the law.

    References

34. CPI 15 provides limited guidance about the weight to be attributed to character references, noting only that less weight should not be attributed to a character reference ‘merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship’.[20]

    [20] CPI 15 – Assessing Good Character under the Citizenship Act, section 14.1.

35. Mr Aburumman filed references in the form of statutory declarations from seven referees as support for his good character; four of these referees (Mr Aburumman’s brother, the general practitioner of the brothers, and two long-standing friends of the brothers) also gave oral evidence at the Tribunal hearing.

36. In written and oral evidence, Mr Aburumman’s brother reported he and his brother have a close relationship both as brothers and business partners. In relation to the incident on 24 January 2020, Mr Aburumman’s brother said he was yelling at his brother about staying overseas and it was a mistake for him to have called the police. He said he and Mr Aburumman did not – and have never – hit each other. Mr Aburumman’s brother said that he explained to the police when they arrived at the convenience store that the incident had been a misunderstanding between brothers but were told by the police that Mr Aburumman had to go to Court. In a statutory declaration dated 17 May 2022, Mr Aburumman’s brother described him as a ‘very respectful, caring and lovely person’ and a ‘responsible father and husband’ who ‘looks after his family very well’.[21]

    [21] Exhibit A4.

37. The written and oral evidence of Mr Aburumman’s general practitioner and two long-standing friends stated they knew about the incident between Mr Aburumman and his brother. Mr Aburumman’s general practitioner provided a statutory declaration dated 18 May 2022 in which he stated he knew both brothers, described Mr Aburumman as a ‘polite, pleasant, well-mannered person who is a responsible family man’ and opined the incident with his brother was ‘out of character’.[22]

    [22] Exhibit A6.

38. The friend of Mr Aburumman and his brother who witnessed the incident provided the following description in his statutory declaration dated 28 May 2022:

    I was present at his [Mr Aburumman’s] shop at the time of the incident. His brother reported to the police an innocent incident of argument between both in their store. He accidentally dropped the lolly bottle on the floor where his brother thought he tried to throw the bottle at him. He grabbed his brother’s hand to move him away.[23]

    [23] Exhibit A5.

39. At the Tribunal hearing, this friend said both Mr Aburumman and his brother were upset and arguing but he did not see any physical altercation. He said he was shocked because they have a ‘really nice relationship’ and he had never seen them behave like that before. He said Mr Aburumman has a ‘good reputation’ as an ‘honest’ and ‘trustworthy’ person who ‘always pays invoices on time’ and has a ‘good relationships with his workers’.  

    CONSIDERATION

40. The sole issue for determination is whether Mr Aburumman satisfies the requirement in paragraph 21(2)(h) of the Act that he is of good character at the time of the decision.

41. Guided by the policy provisions in CPI 15, I now weigh all the factors relevant to Mr Aburumman’s character including the nature and seriousness of his offence, the time that has elapsed since his offending, his remorse and rehabilitation, and other aspects of his character such as his family life and employment.

42. Based on the evidence, I am satisfied that Mr Aburumman was found guilty but without proceeding to conviction of common assault (DV) following an incident with his brother in January 2020. I note that this was a single offence, the Court directed Mr Aburumman to enter into a conditional release order for a period of 18 months and he complied with the conditions of this order that concluded on 28 July 2021. While I find this offence was serious, I consider the Court’s direction of an 18 months’ conditional release order suggests that Mr Aburumann’s offending was at the low end of seriousness. I am further satisfied that Mr Aburumman declared this offence in his application for Australian citizenship and has not committed any other offences in either Australia of Jordan.

43. I accept there is some discrepancy in the facts about the incident; however, it is not in dispute that the behaviour of both Mr Aburumman and his brother was out of character, the incident (in particular, any physical contact) was not planned or deliberate and followed a period of high and stressful emotions. I also accept that this behaviour has never been repeated by Mr Aburumman.

1. I have also considered the evidence of Mr Aburumman and his referees to the Tribunal. Mr Aburumman presented as a genuine, caring and happy person. He is an engaged husband and father, and has provided evidence about an actively volunteering in the community. He is hardworking and, together with his brother, operates a successful business. I accept the evidence of both Mr Aburumman and his brother that after their argument resolved, they wanted to move forward and did not understand the repercussions of pleading guilty on his police record and citizenship application. I also accept that Mr Aburumman has expressed sincere remorse for this incident, and he both understands and intends to abide by the laws of Australia in the future.

2. Mr Aburumman told the Tribunal that it is his dream to remain in Australia with his wife and children, and he would be proud to have Australian citizenship.

3. Weighing all the available evidence, I am satisfied that Mr Aburumman is of good character as required by the Act, the Citizenship Statement and CPI 15.

   CONCLUSION

4. In considering all the relevant circumstances, I am satisfied that Mr Aburumman meets the requirements of paragraph 21(2)(h) of the Act.

   DECISION

5. The Tribunal sets aside the decision under review made by the Minister on 23 August 2021 and remits the matter to the Minister for reconsideration with the direction that Mr Aburumman satisfies the requirement in paragraph 21(2)(h) of the Act.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 7 December 2022

Date of hearing:	13 October 2022
Solicitors for the Respondent:	Mr H McLaurin, Minter Ellison