Al-Debes and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 298

Al-Debes and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 298 (15 February 2018)

Division:GENERAL DIVISION

File Number:           2017/3036

Re:Mohemmed Al-Debes

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:15 February 2018

Date of written reasons:        21 February 2018

Place:Sydney

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

CITIZENSHIP – refusal of application for citizenship via conferral – whether Applicant is of good character – whether Applicant has enduring moral qualities - conviction in two offences – good behaviour bonds for convictions – application of Citizenship Policy - Tribunal not satisfied that the Applicant is of good character – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21, 24

CASES

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

Re Drake Minister for Immigration and Ethic Affairs (No 2) [1979] 2 ALD 634

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

21 February 2018

Written reasons for oral decision

1. On 15 February 2018, the reasons for the decision made in this matter were given orally. Shortly after the hearing, the Tribunal served both parties with a copy of the order setting out the decision that was made. On 15 February 2018, the Applicant requested the Tribunal provide written reasons for its decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth). The written reasons are set out below.

2. The Applicant seeks review of a decision of a delegate of the Respondent, the Minister for Immigration and Border Protection, dated 24 April 2017, made pursuant to s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) to refuse the Applicant’s application for Australian citizenship via conferral.  The delegate refused the application on the ground that the Applicant was not a person of good character as required by s 21(2)(h) of the Act (the character requirements). That is therefore the issue for the Tribunal to determine, whether, as of the date of decision, the Applicant is a person of good character.  That proposition is not in dispute.

   The law

3. Section 24(1A) of the Act provides that the Minister must not approve a person for conferral of citizenship unless the person is eligible under s 21(2) of the Act.  A number of criteria are listed, relevantly s 21(2)(h) of the Act provides:

   (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.

4. The two matters that the Respondent relies on in support of its argument that the Applicant is not of good character, are, firstly, that he pleaded guilty on 17 April 2014 and was convicted of two offences: one of assault occasioning actual bodily harm, and the second being armed with the intention to commit an indictable offence.  He was sentenced to concurrent good behaviour bonds of 12 and 18 months respectively. 

5. The second matter that the Respondent relies upon is the Applicant’s alleged failure to admit to convictions in the citizenship application dated 3 August 2016.  There is a third matter of much less significance, and that is his traffic incident, or traffic convictions. 

6. The Citizenship Policy, which came into effect on 1 June 2016, is relevant in this case.  There was no suggestion that this was a case where the Tribunal should not follow the policy as discussed in Re Drake Minister for Immigration and Ethic Affairs (No 2) [1979] 2 ALD 634 at pages 644-645. The Citizenship Policy provides:

   What is good character?

   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.

   Definition of good character

7. The term “good character” is not defined in the Act.  Most cases in the Federal Court and the AAT have adopted the follow definition from the Full Federal Court judgment in Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432. Unless the terms of the Act and regulations require some other meaning to 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 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.

8. 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.  The phrase “enduring moral qualities” encompasses the following concepts:  characteristics which have been demonstrated over a long period of time, distinguishing right from wrong, behaving in an ethical manner, conforming to the rules and values of Australian society. 

9. The good character requirement looks at the essence of the Applicant.  Their behaviour is a manifestation of their essential characteristics. This broad definition means 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 their migration and citizenship processes. 

   Characteristics of good character

10. The characteristics of good character include to respect and abide by the law of Australia and other countries, be honest and financially responsible, be truthful and not practice deception or fraud in dealings with the Australian Government or other governments and organisations, for example, providing false personal information, concealment 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.

    Weighing up the character decision

11. 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.  Decision makers should place more weight on significant offences, and relevantly one of the questions to ask is, would a person of good character have behaved the way the Applicant did?  What is there to demonstrate that the Applicant has upheld and obeyed the law?  Has the Applicant behaved in accordance with Australian community standards?  Does the Applicant share Australia’s democratic beliefs and respect to its rights and liberties?

12. The Tribunal notes that the offence in question does not fall into the category of offences referred to at page 150 of the Citizenship Policy, which says if a person has committed a very significant offence, the lasting/enduring period would be longer. The examples of a very significant offence include taking a life of another person, sexual assault, crimes against children, war crimes, and so on.  This case is not an example of that.  The relevance of that is that, in those cases, it may be extremely difficult for a decision maker to be satisfied that a person is of good character after having committed such offences, even after the passage of many years.

13. The Citizenship Policy also refers to the matters stated in the pledge of allegiance if citizenship is granted.  Relevantly that pledge says:

    From this time forward I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey

    Background

14. Following is a brief chronology to put this case in context. 

15. The Applicant arrived in Australia on 8 February 2012 holding a student visa.  On 2 January 2013 he was granted permanent residency.  The criminal offences occurred on 14 July 2013.  He appeared at the local court and a hearing was held on 6 November 2013 when he, the victim, and police officers gave evidence.  It was adjourned part-heard until 17 February 2014. The Tribunal would describe that as a contested hearing.  At that time, the Applicant had entered a plea of not guilty shortly after the assault back in July 2013, and maintained that plea of not guilty until 14 February 2014, three days before the resumed hearing, when a plea of guilty was entered and he was convicted of the two offences:  of assault occasioning actual bodily harm and, as stated before, a good behaviour bond of 12 months was imposed; the offence of armed with an intention to commit an indictable offence and a good behaviour bond of 18 months imposed. 

16. The longer 18 month good behaviour bond ended on 17 August 2015, which is now about two-and-a-half years ago. Unfortunately the Applicant has suffered a very serious work injury which has incapacitated his right hand substantially, or almost completely, on the evidence, and he has been receiving workers’ compensation ever since.  He was under the case of specialists until at least 2017.  He does not consider it likely that there will be any improvement in his hand, and he did not really consider that there would be any change in his condition.  He applied for citizenship on 3 August 2016 and on 7 December 2016 he was sent a letter inviting him to comment on adverse information, that is, his criminal record.

17. After that time the Applicant retained legal advisers.  The Tribunal had a concern about the Applicant’s evidence.  The Tribunal found his evidence confusing and sometimes contradictory. Counsel for the Applicant submitted that, despite the shortfall in the Applicant’s evidence, by the end of his evidence his position was clear on relevant matters.  Counsel for the Applicant did not argue that the Applicant’s claimed diagnosis of PTSD following his workplace accident and his taking of medication, Endep, accounted for his sometimes garbled evidence, as described by counsel.  The concerns the Tribunal had about the applicant’s evidence are referred to in relation to particular matters. 

    The circumstances of the offences

18. The offences occurred on 14 July 2013. Two offences were committed.  Those are the only criminal offences the Applicant has, and they were committed nearly five years ago.  There is no dispute that the offences were domestic violence offences.  The Applicant attributed his conduct to being under stress because he was in straightened financial circumstances following the failure of a business that he had begun. He also had attributed it to jealousy because he was in a relationship with the victim at the time.  The Tribunal considers that such offences are serious and contrary to Australian values, and although they are not the most serious incidents, just on their face they are serious in this particular case.

19. The particular circumstances were that the Applicant pleaded guilty to two incidents. The first occurred downstairs in the premises where he and the victim lived, and that involved him punching the victim.  The Tribunal understood the Applicant to say that that was in self-defence, but in any event he did acknowledge that he had punched the victim.  There was some redness and swelling, on the evidence, on the victim.  The second offence, and the more serious one, occurred upstairs.  Importantly, the Applicant denies that there was any physical incident, and specifically that he had no knife.  He said it was a verbal incident.  However, he has pleaded guilty to the offence of armed with intention to commit an indictable offence.

20. The Applicant told the Tribunal that he pleaded guilty to bring the matter to an end, and because his legal aid lawyer told him to.  He said he could not afford a lawyer himself.  The Tribunal accepts that the Applicant did not understand that it would be, to quote him, “Huge like this”.  That is, he did not understand that his plea could impact upon him in the future, including resulting in the refusal of citizenship, and him now being in the proceedings in this Tribunal.  However, the Tribunal cannot go behind the fact that he pleaded guilty to the offences and therefore to the elements of the offences, which included having a weapon.  He did not plead guilty until two days before the second day of hearing, as the Tribunal has noted before.  However, that was contrary to his evidence that he pleaded guilty immediately.  However, in this context his late plea is not adverse to him because it is consistent with his maintaining that he did not commit the offence at the hearing on 6 November 2013. 

    Consideration

21. The Tribunal finds, on the evidence of the first day of the criminal trial that the Applicant was intoxicated at the time of the offences, but he did not rely on intoxication as a significant or excusing factor in his offending.  His counsel in the present proceedings pointed to the obvious fact that a 12 month prison sentence shows the seriousness of an offence, and that it is a serious offence compared to the fact that the Applicant was given two good behaviour bonds of 12 and 18 months each.  In terms of seriousness of the offence compared to the worst kind of offence, clearly it is not that serious.  However, taking into account the length of the good behaviour bonds and the fact that this was a first offence or offences, committed by the Applicant, the Tribunal forms a view that the Trial Magistrate took a serious view of the offence, and in particular, in the context that it was of the nature of domestic violence.

22. The Tribunal has taken into account, in particular, in this case that jealousy was a factor, on the Applicant’s evidence, to the offence that he concedes he committed, and takes into account that there have been no other offences since. However, it also takes into account, on his evidence, that he has not been in another relationship since July 2013 but has only had casual partners.  He says that it will never happen again, he will not do it again.  However, that has not been tested and the circumstances of that offence are of concern, because the offence was one of domestic violence.  The argument that the Applicant has a limited capacity to commit the offence was raised and very carefully put on behalf of the Applicant by his counsel.  However, the Tribunal gives that matter very limited weight.  It may be true that he cannot punch anyone with his right hand, but there are other ways to harm somebody if one is angry and jealous. 

23. The next matter is the Applicant’s failure to disclose convictions in the citizenship application form. It is not denied that he did not answer that question correctly.  He did complete the forms agreeing to a police check and submitted them at the same time.  As the Tribunal understands it, he is required to consent to a police check in order to apply for Australian citizenship. The Applicant gave various versions of evidence about not filling in the form or the answer correctly.  He says he misread the form, he is very ashamed that he has criminal convictions, and it is so hard for him to say that he does.  He also said that he did not mention his convictions during the immigration interview, which is a second time he has not disclosed them.  He has also said that when he applied he understood that he was no longer on the good behaviour bond, which is correct, so he did not need to say it. 

24. The Tribunal accepts that he did not need to say he was on a good behaviour bond, because that had finished.  It does not accept that that was a reason not to answer the question about convictions correctly. The Applicant said he was searching for any excuse not to say it, and said that that was very stupid.  Indeed it was.  The Tribunal finds that the Applicant deliberately ticked the “no” box, because he effectively does not believe that he is a criminal.  It also finds that, in filling out the National Police Checking Service Application consent form there was always a possibility that there would be no check, and his convictions would not be found out.  The Tribunal also notes his evidence that because of his reluctance and shame about his criminal record, his rehabilitation providers and doctors do not know of his criminal record. 

25. In relation to the traffic offences relied upon by the Respondent, the Tribunal takes those into account.  It certainly does not reflect good character, but the Tribunal gives them little weight.

26. Coming to the references provided, the first matter that should be noted is that they are all dated January 2017 and no more recent references have been provided. The Applicant said, as the Tribunal understands it, that the owner of the business where he injured himself very severely is still paying him full pay and not the 80 per cent that he is required to by law.  However, there is no reference from that employer.  In relation to the references that were provided, only one referred to his criminal record, in the most general terms.  There was no indication in that reference that the person knew the details of the offences. 

27. The other references do not indicate that the writer knows anything about his criminal record. Although they indicate that, in the circumstances in which they had known the Applicant, they think highly of him, the concern for the Tribunal is that the writers may form a less positive attitude to somebody if they know of the convictions for two domestic violence incidents.  The Tribunal notes that the longest period of time any of the referees have known the Applicant is two-and-a-half years, and that was as at January 2017, and he had been in Australia at that stage since February 2012, almost five years. 

28. The Tribunal accepts that references do not have to attest to a change in the character of a person since the offence if there has been one offence or incident and the referee considers that offence or incident to have been out of character.  

29. However, because the references do not show an accurate or even any understanding of the offences committed, and these references were provided after it was apparent to the Applicant and his legal advisers that the question of his criminal history was relevant to the determination of the application, the Tribunal gives those references little weight.  Rather, it is making its decision on the Applicant’s past conduct and also his evidence, which to some extent was not satisfactory. 

30. The Tribunal takes into account the Applicant’s contribution to the Australian society in the sense that, although not quite clearly spelled out, he has worked in his own business, which failed after six months, has worked driving a truck for a food provider and for the air conditioning firm where unfortunately he suffered this most severe and life changing injury to his dominant right hand. 

31. As to the matter of remorse, the Applicant says that he takes full responsibility for his actions, but he does not actually take any responsibility for the more serious offence to which he pleaded guilty.  He does accept some remorse in relation to the other offence, but it seems to the Tribunal that his remorse is in respect of the consequences for him of those offences.  He has not really shown any remorse in terms of the impact on the victim.

32. The Tribunal accepts that the Applicant says that he has had a dream of coming to Australia, where there is a more liberal society than the country from where he came, and he can be himself.  He says that he wishes to contribute to Australian society. The Tribunal does have some concern about his claimed capacity to do so in the future, given the severe injury he has suffered.  That is not to criticise the Applicant.  The Tribunal sympathises with the unfortunate circumstance that he now finds himself in.  It accepts that, because of that condition, he has been doing rehabilitation, but the prospects of any real improvement in his condition do not give rise to great optimism. 

1. It is said that he has been refused a job in a hospital because of his criminal record, so he has suffered from the consequences of his pleas of guilty back in 2014.  Whilst the Tribunal has some sympathy for the Applicant’s present circumstances, the Tribunal is not satisfied that, at the present time, he is a person of good character.

2. He is able to reapply for citizenship in the future, and may, in the circumstances at that time, be found to be a person of good character. 

   Decision

3. For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..............................[sgd]..........................................

Associate

Dated: 21 February 2018

Date of hearing:	15 February 2018
Counsel for the Applicant:	Mr O Jones
Solicitors for the Applicant:	Mr S Issa, Firmstone & Associates
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore