Ahmad Hamed and Minister for Immigration and Border Protection
[2014] AATA 916
•10 December 2014
[2014] AATA 916
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1104
Re
Ahmad Hamed
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 10 December 2014 Place Sydney The decision under review, being the decision of the delegate of the Minister made 19 February 2014 to refuse Mr Hamed’s application for citizenship, is affirmed.
..............................[sgd]..........................................
Deputy President J W Constance
Catchwords
CITIZENSHIP – whether the applicant is of good character – previous convictions – domestic violence – failure to disclose convictions on application for citizenship - decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21(2), 24
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Instructions (Cth) issued 1 July 2014.
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Mr Hamed applied for Australian citizenship by conferral on 17 September 2013.
On 19 February 2014 a delegate of the Minister refused Mr Hamed’s application on the basis that the delegate was not satisfied that Mr Hamed had established that he was of good character at the time the decision was made.
For the reasons which follow, the decision under review will be affirmed.
BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of Mr Hamed. I am satisfied of the facts found on the balance of probabilities.
Mr Hamed was born in Lebanon in 1985. He was educated at an American school and speaks English and French fluently.
Mr Hamed migrated to Australia in 2009. He has lived in Australia permanently since.
During the period 2010 to 2012, Mr Hamed was convicted of a number of criminal offences.
On 4 April 2010, Mr Hamed was involved in an altercation with his wife. The Police Facts Sheet which was presented to the Court gives the following description:
The Accused and Victim had a conversation which later resulted in an argument ... To prevent the argument escalating further, the Victim went into her bedroom and closed the door. The Accused banged on the door and demanded that the Victim open it. When the Victim opened the door, the Accused used both his hands and pushed the Victim onto the nearby bed. The Accused then held the Victim onto the bed.
As the Victim attempted to leave the premises, the Accused turned the Victim around and using his right hand, hit the Victim to the left side of her face near her eye. This resulted in the Victim sustaining a bruised left eye. After the Victim was hit, the Victim fell onto the bed and used her arms to cover her face. The Accused used his hands and grabbed the Victim. Due to the pain, the Victim rose to her feet as the Accused was dragging her back into the bedroom and pushed her onto the bed.[1]
[1] New South Wales Police: Facts Sheet, contained in documents produced under summons by Fairfield Local Court.
On 27 May 2010 Mr Hamed was convicted of the offences of assault occasioning actual bodily harm and common assault. The Court released him upon his entering a behaviour bond to be of good behaviour for two years with the additional condition that he not assault or harass his wife. In respect of the offence of common assault, he was fined $500.
In June 2010, Mr Hamed’s licence was suspended for exceeding the speed limit. Approximately three weeks later he was charged with the offences of reckless driving and driving whilst his licence was suspended. The Police Facts sheet records that whilst being followed by police, Mr Hamed made an abrupt turn into the driveway of a car park marked exit only.[2] The police recorded that:
While performing his illegal turn he showed no caution to give way or stop for any motor vehicle ...
He continued to accelerate harshly in the incorrect direction of travel through the carpark. ...
The accused turned left at speed within the carpark driving over an island kerb straight at a motor vehicle entering the carpark entry. The member of the public and accused were required to brake heavily in order to avoid having a head on collision by a 1 metre [sic].[3]
[2] Exhibit R1, Supplementary Documents, p.28.
[3] Exhibit R1, Supplementary Documents, p.28.
On 15 June 2010, Mr Hamed was convicted of both offences and fined $100 for each. He was disqualified from driving for a period of 12 months.
On 20 March 2012 Mr Hamed was convicted of possession of a prohibited drug, being cannabis, and fined $400. He has not been charged with an offence since.
THE ISSUE
The only issue for determination is whether, at the time of the Tribunal’s decision, Mr Hamed is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).
LEGISLATION
Applications for the conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth).
Section 24 of the Act provides, in part:
(1) 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.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 21(2) of the Act establishes requirements for eligibility for the grant of citizenship. It provides, in part:
(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.
It is only this subsection which is in issue in the present application.
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.
The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are ‘cogent reasons to the contrary”.
Paragraph 10.1.2 of the Instructions provides, in part:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[4]
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. (citations of authorities omitted).
[4] (1996) 68 FCR 422 at 431-432.
After referring to the judgement of the Court in the Irving, Paragraph 10.3.1 provides, in part:
In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
§ characteristics which have been demonstrated over a very long period of time
§ distinguishing right from wrong
§ behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
CONSIDERATION
Characteristics of a person of good character
In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include:
·respect and abide by the law in Australia and other countries;
…
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;
…
·not be violent … and not cause harm to others through their conduct.
...
Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. The relevant factors to be taken into account in considering why an applicant might not be of good character (as set out in paragraph 10.5.2) include the following:
·Has the applicant committed any offences and if so, did they admit that in their citizenship application?
· If the applicant has committed an offence, was it serious or minor?
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or disabled, or others who trusted the applicant?
The Offences
Paragraph 10.5.2 of the Australian Citizenship Instructions defines serious offences to include “crimes of violence”, which includes domestic violence. Traffic offences which have been included on a criminal record are regarded as minor offences.
Assault Occasioning Actual Bodily Harm and Common Assault
Mr Hamed stated in evidence that he did not kick or punch his then wife. He stated that his wife became aggressive and he tried to stop her. This is consistent with the account he gave to police. The Facts Sheet records that:
The Accused did admit... to slapping his wife, with an open hand, to the left side of her face.
The accused stated that while arguing with his wife she has slapped and hit him a number (not disclosed) of times to the arms and head. In response he has grabbed her by the elbows and pushed her onto the bed.[5]
[5] New South Wales Police: Facts Sheet, contained in documents produced under summons by Fairfield Local Court.
The offences of which Mr Hamed has been convicted following the assault are both serious as they are crimes of violence. They are within the definition of serious offences contained in paragraph 10.5.2 of the Instructions. As both offences arose out of the one incident I am satisfied that there is no pattern of violent offending. I do not have sufficient evidence to make a finding as to the effects of the assaults upon Mr Hamed’s former wife, from whom he is now divorced.
Traffic Offences
Although Mr Hamed’s traffic convictions occurred within a short timeframe of him receiving a fine and having his licence suspended, again there is no pattern of offending. He has not been convicted of any traffic offences since.
Mr Hamed maintained that the police fact sheet and witness statement produced to the Tribunal were not an accurate portrayal of what occurred. He emphasised that no one was injured and that he did not almost hit a pedestrian. The Tribunal is not permitted to go behind a finding of guilt. I do note however, that a fine of $100 for each offence as well as a twelve month suspension is not an outcome which is indicative of an offence at the more serious end of the spectrum.
Possess Prohibited Drug
The possession of a small quantity of cannabis, in Mr Hamed’s case, should not be considered a serious offence.
Mr Hamed’s attitude to the laws of Australia
Mr Hamed committed five offences within a three year period. Whilst the nature of the offences do not indicate a pattern of offending, the number of convictions does indicate a disregard for the laws of this country. However, I take into account that he has only one relatively minor conviction since 2010.
Failure to disclose convictions
On lodging his application for citizenship, Mr Hamed failed to disclose any of his convictions.
The application form emphasises the need to disclose all convictions. The question asked in the application form as to previous convictions reads:
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia? (Include all traffic offences which went to court including offences declared in your permanent residence application and any ‘spent’ convictions)?[6] [Original emphasis].
[6] Exhibit R1 p.133.
Mr Hamed ticked yes to this question. However, the form proceeds to instruct: “If you answered ‘Yes’ to any of the questions... you must give ALL relevant details” [original emphasis]. In the box provided for an applicant to disclose further details, Mr Hamed merely stated “Traffic offence 24 June 2010” and, in a hand-written addition, “fine and demerit point”.[7]
[7] Exhibit R1 p.133.
Mr Hamed stated in evidence that he would not attempt to hide his convictions as he knew the Department would conduct a police check. I find this implausible. Mr Hamed did not sign the form authorising the police check until 30 September 2013, when he appears to have attended an interview with the Department. This is some thirteen days after lodging his application for citizenship.
I also do not accept that Mr Hamed did not fully understand what was required by the application form. He is well educated and reads and understands English. The question clearly required the disclosure of all prior convictions. Mr Hamed did disclose one traffic offence which demonstrates an understanding of the question.
Mr Hamed similarly failed to disclose his convictions whilst applying for employment with Australia Post.[8]
[8] Exhibit A3.
On the basis of his responses in his application form and in his application to Australia Post I am satisfied that Mr Hamed deliberately misstated the position. He has not been honest in his dealings with the Australian Government and with a government agency.
Character Evidence
Ms Smith
Ms Smith provided a written reference dated 7 October 2014, and gave evidence at the hearing. She has known Mr Hamed for approximately three years.
Ms Smith was aware of Mr Hamed’s criminal history, although not of the exact details. She knew that Mr Hamed was involved in a scuffle between himself and his wife when he hit her, but he did not explain the incident to her in any greater detail. She stated that Mr Hamed is absolutely against domestic violence and “shows remorse regarding certain periods in his life were [sic] he could have handled it with more caution”.[9]
Mr Bikai
[9] Exhibit A6.
Mr Bikai has known Mr Hamed for over 20 years and managed Mr Hamed when he worked as a truck driver in 2013. Mr Bikai stated in a statement dated 5 June 2014 that he has shown regret for “actions that lead to domestic violence” and is “a better person now”.[10] He praised him as a dedicated individual with a strong work ethic.
[10] Exhibit A4.
However, Mr Bikai was not aware that Mr Hamed had been found guilty of assault occasioning actual bodily harm and common assault. He heard about a traffic incident from Mr Hamed’s brother but did not know Mr Hamed was convicted of driving recklessly and of driving whilst disqualified. Mr Bikai was also not aware that Mr Hamed was convicted of possession of a prohibited drug.
Mr Hawcher
Mr Hamed and Mr Hawcher have known each other for the past 5 years and are close friends. Mr Ahmad has also worked as a truck driver with Mr Hawcher’s company. He characterised Mr Hamed as an honest and helpful person, who “never hesitates lending a helping hand to whoever is in need”.
Mr Hawcher referred in a statement dated 30 May 2014 to “minor problems” in Mr Hamed’s marriage which he regrets.[11] He was not aware of any of Mr Hamed’s convictions, and only knew that Mr Hamed had problems with his former wife.
Mr Ghamroui
[11] Exhibit A5.
Mr Ghamroui is the President of the Association of Bhanin El-Minieh (the Australian Arabic Community Welfare Centre). He provided a statement dated 1 June 2014,[12] although did not give evidence.
[12] Exhibit A2.
After his arrival in 2009, Mr Hamed volunteered his evenings to assist the association. He has since remained in contact with the association’s youth groups by attending social events. Mr Ghamroui referred to problems in Mr Hamed’s marriage and stated that “he regrets some decision he made at that time and he have [sic] learned a good lesson that made him a better, wiser ... person”.
Mitigating Factors
Paragraph 10.5.2 provides, in part:
Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.
oWhat is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ...
oHas the applicant accepted responsibility and shown remorse for their conduct?
oHow has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…
oHas the applicant rehabilitated themselves?…
oWhat was the applicant’s age at the time the offence was committed?…
oWere there any extenuating circumstances relating to the offence?
CONSIDERATION
The decision whether Mr Hamed is of good character is not made by applying the various factors referred to in the Instructions as a checklist. The evidence has to be looked at as a whole.[13] Paragraph 10.5.4 of the Instructions provides, in part:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.… A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.
[13] See paragraph 10.1.1 of the Australian Citizenship Instructions.
As noted above, Mr Hamed’s traffic convictions should not weigh heavily against his character. Although reckless driving is conduct which could pose a threat to the safety of the public, the sentence imposed by the court is not indicative of an offence at the serious end of the scale of traffic offences. Mr Hamed’s drug offence was an isolated incident and relatively minor in nature.
Mr Hamed’s convictions for offences involving domestic violence, however, are concerning. The Australian Citizenship Instructions make it clear that assault is a serious offence. This is even more so in the situation of a domestic relationship where Mr Hamed’s spouse could have been expected to trust him. Such conduct is inconsistent with behaviour accepted by the Australian community and not the conduct of an individual whose enduring moral qualities reflect a person of good character.
I do take into account that the assault occurred within 12 months of Mr Hamed taking up residence in Australia. At the time he was only 24 years old.
Mr Hamed maintains that he should have walked away from the domestic incident. Nevertheless, Mr Hamed did attempt to attribute some of the blame to his former wife, stating that both parties were at fault. In the circumstances, and given that Mr Hamed has only been free of supervision from the Probation and Parole Service for just over two years, I am not satisfied that Mr Hamed accepts responsibility for his conduct and has in fact reformed.
The character references provided by Mr Hamed are of little assistance in this regard. None of the witnesses were fully aware of Mr Hamed’s criminal record. In the case of Mr Bikai and Mr Hawcher, each was unaware of the existence of the offences and the conduct which gave rise to them. Comments that Mr Hamed has reformed cannot therefore be given great weight.
Most concerning also is Mr Hamed’s failure to disclose his convictions on not only one, but two occasions. I am satisfied that on both occasions he was dishonest in his dealings with the Australian government.
Taking into account all of the above circumstances, I am not satisfied that Mr Hamed satisfies the legislative requirement to be shown to be of good character at the present time. This does not prevent Mr Hamed from making a further application for citizenship at some time in the future when he may be able to demonstrate that he meets all the requirements for a grant of citizenship.
The decision to refuse Mr Hamed’s application for citizenship will be affirmed.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ...............................[sgd].........................................
Associate
Dated 10 December 2014
Date(s) of hearing 14 October 2014 Date final submissions received 14 October 2014 Applicant In person Solicitors for the Respondent C Hillary; DLA Piper Australia
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Citizenship
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Good Character
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Failure to Disclose Convictions
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Domestic Violence
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Mitigating Factors
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