Al Shimmery and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3410

Al Shimmery and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3410 (8 September 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0043

Re:Abdullah Al Shimmery

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:8 September 2021

Date of written reasons:        27 September 2021

Place:Sydney

The Tribunal sets aside the decision under review and remits the matter to the Respondent for further processing, with the direction that the applicant is of good character in accordance with paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

.................................[SGD].......................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – offence of affray – plea of guilty – sentenced to 12-month good behaviour bond – other minor offences – decision set aside and remitted.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

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

SECONDARY MATERIALS

Citizenship Procedural Instruction (CPI) 15 - Assessing Good Character Under the Citizenship Act

WRITTEN REASONS FOR ORAL DECISION

Emeritus Professor P A Fairall, Senior Member

27 September 2021

1. On 20 April 2015, the applicant applied for citizenship by conferral. I note that the application has been in train for more than 6 years. 

2. On 4 January 2021, a delegate of the Respondent (Delegate) refused the application for conferral of Australian citizenship on the basis that the applicant was not a person of good character as required under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). The decision was based on a single conviction of affray committed on 26 January 2018, for which the applicant was sentenced on 11 April 2018 to a 12 month good behaviour bond. 

3. On 5 January 2021, the applicant applied for review of the Delegate’s decision before the Administrative Appeals Tribunal (the Tribunal).

4. The Tribunal heard the matter on 8 September 2021 and was ably assisted by an Arabic interpreter. The applicant was represented by a migration agent, Mr Alkafagi. The Minister was represented by Ms Hill, of Minter Ellison Lawyers.

5. Having heard from the applicant, and from both party’s representatives, I decided that the decision of the Respondent dated 4 January 2021 should be set aside and remitted with a direction that the applicant is of good character under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

   LEGISLATION AND POLICY FRAMEWORK

6. It is well established that for the purposes of assessing ‘good character’ under the Act, the words refer to the ‘enduring moral qualities of a person’.[1]

   [1] Irving v Minister for Immigration, Local Government and Ethic Affairs (1996) 68 FCR 422, at 431-432.

7. I note the Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act (the Instruction),[2] which states, under the heading ‘Procedural Instruction’:

   [2] I note that CPI 15 has been recently revised, although it appears that the delegate relied upon the outdated version, contained in the T docs. The revised version would make no difference in the circumstances of this application.

   Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.

   This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:

   ·consider any character issues that arise on the facts of a case;

   ·consider all relevant information;

   ·guard against bias;

   ·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

   ·be mindful that a person who may not have been of good character can become a person of good character;

   ·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.

   In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.

   The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.

   [emphasis added]

8. Paragraph 4.3 of the Instruction provides:

   4.3 What is good character

   Definition

   The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC 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 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… 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 endured over a long period of time;

   ·distinguishing right from wrong; and

   ·behaving in an ethical manner, conforming to the rules and values of Australian society.

   The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

   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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

   Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.

   [emphasis added]

9. Paragraph 4.4 of the Instruction provides:

   4.4 An applicant who is of good character

   An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.

   As a general proposition, a person who is of good character would:

   ·respect and abide by the law in Australia and other countries;

   ·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

   ·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example

   ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or

   oother material deception during visa and citizenship applications;

   oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;

   oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;

   oconcealing criminal convictions;

   ofraud against the Commonwealth such as tax fraud or Centrelink fraud;

   ogiving false names and/or addresses to police;

   ·not be the subject of any extradition order or other international arrest warrant;

   ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);

   ·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;

   ·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide

   ·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.

   Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

   It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. 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.

   [emphasis added]

10. Paragraph 4.7 of the Instruction sets out a non-exhaustive range of factors that a decision-maker may take into account in determining whether a person is of good character. It is stressed that the decision-maker must take into account all the relevant facts of the case.

11. Paragraph 4.7 also refers to the assessment of the relative seriousness of the offending.

    Assessing the relative seriousness of the offence

    ·Consider the length of the sentence. Longer sentences carry more weight on a person’s character.

    ·Are there any ongoing obligations such as a good behaviour bond? …

    ·Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information…

    ·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.

    ·Were there victims of the offence? Were they children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?

    [emphasis added].

    CRIMINAL HISTORY

12. The applicant’s criminal record consists of the offence of affray, and six minor traffic offences. There is nothing else against him over the 11 years that he has been in Australia.

    THE DELEGATE’S DECISION

13. The Decision Record states:

    I acknowledge the mitigating factors surrounding your actions, the number of character referees that wrote in support of your application and absence of any further re-offending.

    However, having given regard to the above AAT guidance and CPI15 – Assessing Good Character Under the Citizenship Act, I give considerable weight to the matter of your very recent criminal history in terms of my assessment and find that this does outweigh the aggregate of any good qualities you may possess for the purposes of this assessment. There is no impediment to you making a further application for Citizenship when you can demonstrate a longer period of good behaviour and positive contribution to the Australian community.

    In light of the above, I am not satisfied that you are of good character, and find that you do not satisfy Subsection 21(2)(h) of the Act.

    [emphasis added]

14. The applicant gave evidence to the Tribunal. He said that he was born in 1986 and was stateless, and that he had arrived in Australia from Kuwait in 2010 and was on a protection visa. He did not have any criminal record. He said that when he was released from immigration detention in 2011 he started working in construction but his shoulder was injured and he had to undergo surgery. He said that he had not worked since this injury, and his situation was compounded because he did not speak English very well.

15. In 2018 he suffered a personal tragedy when his brother died in Sydney while he was working in Victoria. He said that his parents blamed him for not doing more for his brother and this affected his mental health. He changed his name in 2014,[3] and again in 2018,[4] most recently to honour the memory of his brother. In 2018 he was married to a permanent resident of Australia.

    [3] T3/32.

    [4] T8/104.

16. He said that the incident which gave rise to the conviction for affray occurred when he and two friends were going to a shopping centre. He said that there had been some verbal interactions between one of his friends and another group of men. He was not an instigator of the fight. His friend was attacked and he intervened to stop the violence. He did not remember hitting anyone in the fight. He said that if he hit anyone it was out of fear and he was defending himself.

17. He agreed that it was a busy day but the incident took place on the side of the shopping centre. He was aware that a mother and her children had witnessed the incident and was very sorry and recognised that this would have had a negative impact on their well-being.

18. He was asked what he regretted most about the offence, and he said that he should never have got involved, and that it was his biggest mistake. He said that he was unaware that it was forbidden to assist a friend, and felt very great remorse. He said it was a good lesson that he should ‘never interfere in something’. He regretted getting involved.

19. He said that he pleaded guilty out of remorse and received a good behaviour bond. He had served out the period of his bond and had not been charged since.

20. He also said that he was a blood donor, and was committed to living peacefully in Australia.

    CHARACTER REFERENCES

21. The Tribunal was provided with a number of character references, including:

    ·a letter from Dr Samer Farhan, dated 28 March 2021;

    ·a letter from Hussainyat Ale Yassin, dated 31 March 2021.

    ·a letter from Dr Yaser Mohammad, dated 8 April 2021;

    ·a receipt from Australian Red Cross Lifeblood, dated 9 April 2021; and

    CONSIDERATION

22. The traffic offences are regarded, rightly, by the Respondent as minor.

    ·Class A motor vehicle exceed speed limit – 10km/h and under – Lidar on 14 September 2019;

    ·Disobey keep left unless overtaking sign – motor vehicle on 5 July 2017;

    ·Disobey no right turn sign – motor vehicle on 12 September 2016;

    ·Disobey no right turn sign – motor vehicle on 11 September 2015;

    ·Class A m/v exceed speed > 10km/h – Lidar on 12 January 2013; and

    ·Not stop at/before stop line/stop sign on 25 September 2012.

23. With regard to the affray, I am satisfied that the applicant was involved in an affray.

24. I am satisfied that the applicant was not an instigator and that initially he went to the assistance of his friends.

25. I am satisfied that his involvement went beyond mere presence – and that it involved physical conduct. But I am satisfied that his conduct was defensive in nature. This finding is not inconsistent with his conviction for the offence of affray.

26. I am satisfied that he feels remorse, and considers that he should not have interfered at all. He now considers that it was not his business.

27. He said that the lesson he learnt is that everyone should mind their own business and never interfere with anyone else. He said that he focused on his own business and ‘that’s it’.

28. Unfortunately, the applicant seems to have drawn the wrong lesson from this incident. The law does not require passivity in the face of violence. The law does not require passive acceptance of any assault on one’s person or the person of a family member. Going to the assistance of a person who is facing a serious physical threat from group violence is not inconsistent with being a person of good character. Everything will depend on the circumstances.

29. I note that the applicant cared for his brother who had by all accounts serious physical, psychiatric and social problems. I note that he has now passed away and for this the applicant has been made to feel somewhat responsible by his parents.

30. I also note that he himself suffers from various health problems. He has received medical attention from Dr Samer Farhan for various unspecified co-morbidities (Letter 28 March 21). I also note the letter dated 8 April 2021 from Dr Yaser Mohammad stating that he suffers from adjustment disorder with depressive mood.  Both practitioners said that he was of good character. I also note the reference dated 31 March 2021 from Hussaineyat Ale Yassin which I understand to be a religious charity, where he is said to be pleasant, kind hearted, honest and righteous. The letter also says that he encourages mateship, abides by the rules of the community, and helps other members of the community who may be going through conflict.

31. The Respondent urges me to accept that insufficient time has passed since the commission of the offence. I do not accept this submission, in view of the circumstances of the offending and the minor nature of the traffic offences. I note that his good behaviour bond came to an end on 11 April 2019.

    CONCLUSION

32. I therefore find that the applicant satisfies the good character requirement under paragraph 21(2)(h) of the Act.

    DECISION

33. For the reasons given orally at the conclusion of the hearing of this matter and as outlined above, the Tribunal decides that the decision under review, being the decision of the Respondent dated 4 January 2021 is set aside and is remitted for reconsideration with a direction that the applicant is of good character under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

................................[SGD]........................................

Associate

Dated: 27 September 2021

Date(s) of hearing:	8 September 2021
Advocate for the Applicant:	Mr A Alkafaji
Solicitor for the Respondent:	Ms E Hill, Minter Ellison