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

[2022] AATA 1745

AlKanj and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1745 (20 June 2022)

Division:GENERAL DIVISION

File Number(s):      2021/3552

Re:Ahmed AlKanj

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:20 June 2022

Place:Sydney

The decision under review is affirmed.

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Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – where applicant has been convicted of domestic violence offending – where the applicant has committed multiple traffic offences – whether the applicant is of good character for the purposes of conferral of Australian citizenship – relevant law and policy considered – relevant material considered – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

20 June 2022

1. Mr Ahmed AlKanj, the applicant, is a citizen of Syria. He first entered Australia on 20 April 2010 as a holder of a student visa, which was granted offshore. On 14 February 2013, he was granted a Permanent Protection (subclass 866) visa onshore.

2. The applicant first lodged an application for Australian Citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) on 8 January 2016. He was granted Australian citizenship.

3. On 2 August 2016, the applicant was convicted of the offences ‘assault occasioning actual bodily harm’ and ‘attempt choke person and render insensible’. Accordingly, the applicant’s approval for Australian citizenship was cancelled as it was determined that he was no longer of good character.

4. The applicant lodged a second application for Australian citizenship on 15 August 2017, which was refused.

5. On 9 October 2020, the applicant lodged his third application for citizenship (Citizenship application). The applicant answered in the negative to Question 39(a) of the citizenship application which asked whether he had 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. The Department requested further information from the applicant on 1 March 2021. On 3 March 2021, the applicant provided a competed Form 80 with a statutory declaration dated 3 March 2021, declaring his two criminal convictions. The covering email from the applicant’s representative noted that the applicant’s prior convictions were inadvertently omitted from the citizenship application.  

7. On 29 March 2021, the applicant was invited to comment on adverse information before the Minister and his failure to disclose the offences in his citizenship application (invitation to comment). The applicant’s representative responded to the invitation to comment and provided further evidence in the form of a statutory declaration from the applicant, a report of Tim Watson-Munro, a consultant psychologist, and character statements.

8. On 17 May 2021, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act This is the decision under review in these proceedings.

9. The issue for the Tribunal to determine in these proceedings is whether it is satisfied that the applicant is of good character in accordance with paragraph 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

10. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

11. Subsection 24(1) of that Act provides that 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. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

12. The Act relevantly provides, at paragraph 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application.”

    DEFINITION OF “GOOD CHARACTER”

13. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).

14. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

15. As to the definition of good character, the CPI 15 cites the decision of the Full Federal Court 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 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…

16. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated 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. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

17. The CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevantly, a person of good character would, inter alia: respect and abide by the law in Australia; 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).

18. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    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.

    (emphasis added)

19. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. 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 several 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.

    SERIOUSNESS OF THE APPLICANT’S CRIMINAL CONDUCT

20. On 1 October 2021 and 25 January 2022, the Tribunal directed that the publication or disclosure of the summons documents produced by the Australian Federal Police (AFP) is restricted the parties and their representatives, and persons participating in the hearing (confidential summonsed material). Accordingly, the specific details of these documents are omitted from these reasons. Further details are provided in the confidential reasons.

21. As already mentioned above, the applicant has been convicted of two offences, namely ‘assault occasioning actual bodily harm’ and ‘attempt choke person and render insensible’.   For the assault offence, the applicant was sentenced to 3 months imprisonment to be served as full time detention backdated to 29 March 2016. For the choke offence, the applicant was sentenced to 8 months imprisonment suspended and released after serving 1 month and 7 days and entering into a good behaviour bond for 12 months. The sentences were imposed on 2 August 2016.

22. I do simply note in these reasons that the circumstances of the offences are outlined in the confidential summonsed material. Of significant relevance, is that the AFP statement of facts outlines that the applicant’s offences relate to an instance of domestic violence.

23. In Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601, the Tribunal stated:

    Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting…

    … There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character…

24. I view the applicant's conduct as very serious, and that this should weigh heavily against a finding that the applicant is a person of good character.

25. The applicant acknowledges that he also has a poor driving record. From 2018 to 2021 he received 10 fines including for speeding, and fines for disobeying traffic lights, using his mobile phone while driving and driving unlicensed. The applicant’s driving record demonstrates a pattern of offending and a disregard for Australian laws. I find this factor weighs against a finding that the applicant is a person of good character.

26. The applicant’s failure to disclose his criminal offences as part of the Citizenship application also weighs heavily against a finding that the applicant is of good character. The applicant only rectified his mistake after being asked to complete a Form 80.

    MITIGATING FACTORS

27. For the following reasons, I am not positively satisfied that the applicant has sufficiently rehabilitated to demonstrate a pattern of enduring moral qualities associated with good character subsequent to his criminal offending.

28. The applicant accepts that the offences are not consistent with the good character requirement in the Citizenship Policy for a person to not be violent and not cause harm to others. The applicant expressed some remorse for his actions in his statutory declaration dated 20 August 2021, in that he offered no excuses for his past offending but took responsibility for his actions and said he had learnt from his past mistakes. The circumstances of the applicant’s offending were put to him at hearing. He said he took full responsibility for his actions, was sorry for the victim and what he put her through, that he felt ashamed and “really bad” and that the offending conduct was all his fault. However, in cross examination, the applicant said the details contained in the Police Fact Sheet were exaggerated.

29. The applicant explained at hearing that at the time of his offending conduct, his mental health had a role in his behaviour against the victim. He said he was under a lot of pressure, was very depressed and “took it out on her”. At that time, he explained that he feared for his family in Syria. He was worried about their safety and was working in Australia to support them financially. The applicant said he was alone in Australia and had no one to turn to for support.

30. Soon after his release from prison the applicant resumed fulltime employment as a carpenter from January 2017 until March 2018. In January 2018, the applicant suffered a serious work-related injury. He was subsequently the recipient of workers compensation payments for a period of approximately 12 months.

31. After receiving a lump sum payment, the applicant says he has endeavoured to turn his life around and make positive contributions to the Australian community. After recovering from his work-related injuries, the applicant utilised his lump sum workers compensation payout to start his own Tobacconist retail business in August 2020. He currently employs one full time employee and two trainees. He has been making tax contributions. The applicant is slowly building up the business and hopes soon to employee further fulltime employees. At hearing, the applicant said he was thinking about opening a second store and felt excited that his life was turning around.

32. I accept that the applicant has and is continuing to make a positive contribution to the Australian society through his business, this factor weighs favour of his application. I also note that the applicant makes regular monetary contributions to various local and overseas charities.

33. The applicant has completed a “Preventing Violence Managing Anger” course which was conducted over a ten-week period. At hearing, the applicant said he had benefited from the anger management course. He said it taught him not to be violent, how to control himself, the impact on victims, how to respect women and how violence against women is not tolerated in society.

34. There is no evidence that the applicant takes any drugs or drinks alcohol. He maintains that his depression and anxiety levels are dissipating.

35. Mr Tim Watson-Munro, consultant psychologist provided a report dated 25 September 2020. He said:

    It is clear from my history taking that [the applicant] has a complex and trauma clinical and developmental history. It is also apparent that he has learnt from his experiences and that he is remorseful for his past behaviour. It is apparent that his past history impacted upon his judgment and impulse control at a level of significance at the time that his offending behaviour occurred. On a more positive note, he has undertaken the EveryMan Australia program to address his issues and I further note that there is no history of illicit drug use in this case. His orientation appears to be pro-social and [the applicant] is endeavouring, to move forward with his life. Beyond the program he has undertaken, he has not had any ongoing treatment and it may be advisable for him to undertake some sessions with a suitably qualified Psychologist, who is experienced and skilled in dealing with refugees who are the survivors of warfare and trauma.

36. Mr Watson-Munro opined that the applicant’s risk of reoffending was low. He opined:

    [The applicant] has clearly matured. It is apparent that his time in custody had a salutary impact upon him and at examination he expressed a strong desire not to reoffend. He also expressed remorse for actions.

37. There is no evidence that the recommendations of Mr Watson-Munro for ongoing psychotherapy have occurred. Nor is there any medical evidence of specific psychotherapy treatment previously obtained by the applicant to address his claimed mental health issues.

38. The applicant has provided numerous references in support of his good character. They are as follows:

    (a)Statutory Declaration from Mr Mohamed Asaad (undated)

    (b)Statutory Declaration from Mr Wajih Asaad (undated)

    (c)Statutory Declaration from Mr Ahmed Alomar (undated)

    (d)Statutory Declaration from Ms Alsu Zaripova dated 10 August 2020

    (e)Statutory Declaration from Mr Ahmed Al-Ahmed dated 10 August 2020

39. Although the statutory declarations of Ms Zaripova, Mr W Asaad and Mr Al-Ahmed provide evidence in relation to the applicant’s caring and honest personality as well as to his good work ethic, they do not refer to the applicant's criminal history in any specificity. Mr Alomar and Mr M Asaad both gave evidence orally at hearing. Their statutory declarations attest to the applicant’s good character, positive work ethic and rehabilitation. However, none of the written statutory declarations refer to the applicant’s offending in any specific detail. At hearing, Mr Alomar and Mr M Asaad were asked in cross examination about specific details of the applicant’s offences. It was evident that they were not fully aware of the specific details of the applicant’s offending conduct. As such, I give these references very little weight in support of the application.

40. Despite the applicant’s claimed rehabilitation, he has committed five driving offences since he lodged his citizenship application in October 2020. Most recently, the applicant was fined for exceeding the speed limit by more than 45km/hr on 25 January 2021. The applicant also attended Bankstown court on 27 May 2021 for driving while unlicensed on 13 April 2021.

41. The applicant acknowledges the seriousness of his traffic offences and the privilege and responsibility that is afforded to a licensed driver. He completed a traffic offenders’ course on 19 May 2021. The applicant said he viewed the traffic offenders’ course as having a constructive impact on his driver awareness and road skills.

42. The period of the applicant’s sentence and parole period has now been discharged. The good behaviour bond placed on the applicant concluded on 2 August 2017. Having regard to the serious domestic violence nature of the applicant’s offending, his recent traffic offences and for the reasons contained in the confidential reasons, I am not persuaded to make a positive finding of good character for the applicant at this time. This is despite the passage of time since his good behaviour bond concluded.

43. While the applicant is making a positive contribution to the Australian community through his business endeavours, he has not provided any evidence of treatment he has received to address his mental health issues, which he says, played a role in his offending conduct. It follows that he does not satisfy paragraph 21(2)(h) of the Act.

    DECISION

44. The decision under review is affirmed.

45. The applicant can make a fresh application for Australian citizenship in the future.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 20 June 2022

Date(s) of hearing:	27 January 2022
Solicitor for the Applicant:	Mr S Issa, Firmstone & Associates
Solicitor for the Respondent:	Ms I Leonard, AGS