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

[2021] AATA 4170

Dib and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4170 (12 November 2021)

Division:GENERAL DIVISION

File Number(s):      2021/2786

Re:Nabil Dib

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:12 November 2021

Place:Sydney

The correct and preferable decision is that the decision under review is set aside and in substitution it is decided that the Applicant is of good character for the purposes of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) for the conferral of Australian citizenship.

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The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – whether the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is satisfied – relevant law and policy considered – applicant’s background and criminal history considered – character references considered – decision under review set aside and substituted.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

CPI15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

12 November 2021

BACKGROUND

1. Mr Nabil Dib (the Applicant) first arrived in Australia on 19 November 2010 on a working holiday (subclass 417) temporary visa. He subsequently applied for and was granted a partner (subclass 801) visa.

2. On 15 July 2020, the Applicant lodged an application for Australian citizenship by conferral. In his application form, in response to the question: ‘Has the applicant 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)?’, the applicant answered ‘No’.

3. Following his application for Australian citizenship, the Respondent requested further information from the Applicant in relation to his convictions contained within the National Police Check Report obtained on 30 March 2021.

4. On 26 April 2021, the Applicant supplied the Respondent with character references in support of his application.

5. On 31 May 2021, a delegate of the Respondent refused the application for conferral of Australian citizenship because the Applicant did not satisfy the good character requirements under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). The decision was based on the Applicant’s criminal convictions, which are set out below:

Date	Offence	Fine
10 May 2018	Commit act of indecency with a person 16 years of over (DV)	2 year bond
10 May 2018	Common assault (DV)	$400 fine
16 June 2014	Common assault (DV)	2 year bond

1. Documents produced by Manly local court also include an application for an apprehended domestic violence order in favour of the victim of the 2018 assaults.

2. By application dated 3 May 2021, the Applicant has sought review of the delegate’s decision before the Administrative Appeals Tribunal (the Tribunal).

   LEGISLATIVE FRAMEWORK

3. The Tribunal is required to assess the Applicant’s application for citizenship against the ‘general eligibility’ criteria contained in subsection 21(2) of the Act.

4. Subsection 21(2) provides:

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

   (a) is aged 18 or over at the time the person made the application; and

   (b) is a permanent resident:

   (i) at the time the person made the application; and

   (ii) at the time of the Minister’s decision on the application; and

   (c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   (d) understands the nature of an application under subsection (1); and

   (e) possess a basic knowledge of the English language; and

   (f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

   (g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

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

5. Subsection 24(1A) of the Act provides that the Minister (or a person delegated by the Minister under section 53 of the Act), ‘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)’.

   Character Requirement

6. The character requirement is satisfied if an applicant ‘is of good character at the time of the Minister’s decision on the application’. The Citizenship Procedural Instruction 15 (CPI15) provides guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, should apply departmental policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J).

7. CPI15 states that a decision-maker may 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 process.

8. Relevantly, CPI15 provides that a person of good character would:

   … 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: 

   …

   Concealment of convictions that could lead to the cancellation of [sic] refusal of a visa or citizenship

   not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example reckless exhibited by negligent or drink driving, excessive speeding or driving without license or insurance).   

9. CPI 15 also provides a framework by which decision makers are able to ‘weigh up’ a character decision. Decision makers are required to consider:

   (a)whether a person of good character would have behaved the way the applicant did;

   (b)what evidence is available to demonstrate that the applicant has upheld and obeyed the law;

   (c)whether the applicant has behaved in accordance with Australia’s community standards; and

   (d)whether the applicant shares Australia’s democratic beliefs and respects its rights and liberties.

10. In so doing, the decision maker should look holistically at the applicant’s behaviour over a lasting or enduring period of time.

    ISSUE

11. The issue before the Tribunal is whether the Applicant is of good character for the purposes of paragraph 21(2)(h) of the Act.

    DISCUSSION

12. At the hearing, the Applicant gave evidence of his personal and work history, the circumstances of the offences of which he was convicted and his failure to declare those offences in his citizenship application. He expressed remorse for his previous behaviours leading to his convictions listed above.

13. The Applicant said he had tried to defend himself in the court proceedings but did not really understand the law. In any event he accepted his convictions and that his behaviour was wrong.

14. The Applicant also accepted that he had failed to disclose his offences in his citizenship application and again suggested he did not understand the form and what was required. He accepted that his failure to give the information was serious and that honesty in his dealings with the Australian government was a matter of primary importance when it came to determining whether he should be granted citizenship.

15. The Applicant stated that since his convictions, he had not been convicted of any further offences. He spoke of his love for Australia, its culture and its people and said that he really wanted to make his life in this country. He had always worked and continued to work. He was in a stable on-going relationship.

16. The circumstances of his offending were somewhat unusual. In relation to the first offence it appeared that he was reported to police by a third party who did not seem to be known to him or his then girlfriend, Ms M, who did not want to make any complaint as to his behaviour saying it was she who started the argument and that she was first to push him before he responded. Ms M sent in two statements in support of the Applicant which corroborated his version as to the events leading to his first conviction and included a statement that they continued to be friends.

17. The second offence again appeared to involve alcohol and some on-going ‘bad blood’ between the Applicant and the complainant Ms R. The Applicant whilst being somewhat ambivalent about whether all of the statements made by Ms R were true accepted his convictions. He said he accepted and took responsibility for his bad behaviour. I note the statement of Mr Nicolas Berdugo who was not called for cross-examination. Mr Berdugo said that ‘I believe she might have not been honest with her accusations’.

18. Despite the above, the Tribunal is bound by the decisions of the state court. I take very seriously that the Applicant was convicted of domestic violence offences. The Australian community has no tolerance for domestic violence in any form. It is however relevant that in the first instance the victim did not even want to make a complaint and that it was a third party who called the police. It is also clear from Ms M’s written statements in support of the Applicant that she was in no way intimidated or frightened into making a complaint. She simply did not think that the circumstances warranted such a complaint.

19. With Ms R, the relationship seemed rather complex and the complaint was mixed with a dispute over Ms R continuing to live in the house the Applicant shared with her and his then partner.

20. The circumstances of the Applicant’s convictions are of some relevance in looking at the question of character at the time of this application. It is more than three years since the Applicant’s last offence and I am of the opinion, based on his evidence and that of his character references (not all of whom were necessarily aware of his convictions), that the Applicant is unlikely to re-offend. I do not regard the Applicant’s offences, particularly in light of the circumstances surrounding his convictions as necessarily inconsistent with the behaviour of a person of good character although his behaviour was foolish, disrespectful and affected by alcohol consumption.

21. Currently in every aspect of his life the Applicant appears to be of good character. He has worked continuously in service industries and has made friends who were prepared to support him in his application for citizenship. He has settled well into the Australian community. There is evidence in the statements in support of the Applicant from referees such as Mr Scott Main, Ms Sophie Jacobs, Mr Nicolas Berdugo, Mr Dominic Alexander-Serci, Ms Elodie Hervé, Mr Jordan-Thomas Thomas, Ms Kosayo Thomas, Mr Matteo Resta and Mr Renato Gavagnin as to the Applicant’s kindness to others and the supportive network of friends he has developed in Australia. Although, as stated not all of those listed knew of his convictions. It is clear that some did, including Mr Berdugo, who spoke of the Applicant as follows:

    I would describe Nabil’s as character as kind, honest, generous, enthusiastic, and always willing to help his friends. He is also extremely hard-working and I have seen firsthand the leadership qualities he brought to his Job as a Café Manager, and today in his role leading a Sales Team at My Energy Solar.

22. None of the character witnesses were required for cross-examination and I accept their evidence and give it collectively, significant weight as to the Applicant’s character at the present time. It was clear from the evidence that the Applicant shared Australia’s democratic values.

23. As I made clear to the Applicant at the hearing, not being honest and open with the Australian government is to be treated very seriously. I accept he may not have fully understood the form he had filled in but he could have sought assistance if he was unsure. There is no evidence he deliberately sought to hide his convictions although this does not excuse his non-disclosure. I am satisfied that he now understands his obligations.

24. Overall, I am satisfied that the Applicant currently meets the requirements of subsection 21(2) including paragraph 21(2)(h). This is not a decision I have taken lightly given that the conferral of Australian citizenship is a very great privilege extended by the people of Australia to those who wish to live in this country and make a positive future contribution.

    DECISION

25. The correct and preferable decision is that the decision under review is set aside and in substitution it is decided that the Applicant is of good character for the purposes of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) for the conferral of Australian citizenship.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 12 November 2021

Date(s) of hearing:	4 November 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers