El Salloum and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 1812

El Salloum and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1812 (27 June 2023)

Division:GENERAL DIVISION

File Number(s):      2022/7212

Re:Abdallah El Salloum

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

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

Date:27 June 2023

Place:Sydney

The correct or preferable decision is to affirm the decision under review.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – whether the good character requirement under paragraph 21(3)(f) 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 affirmed

LEGISLATION

Citizenship Act 2007 (Cth) section 21

CASES

BOY19 v minister for Immigration and Border Protection [2019] FCA 574

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

SECONDARY MATERIALS

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

27 June 2023

BACKGROUND

1. I note the Respondent’s Statement of Facts, Issues and Contentions contains a helpful factual summary of this matter, much of which is replicated below:

2. The Applicant is a 36 year old citizen of Lebanon who first arrived in Australia on 28 March 2011 as the holder of a Partner (subclass 309) visa. On 8 December 2011, the Applicant was granted a Partner (subclass 100) visa.

3. On 12 April 2021, the Applicant lodged an application for Australian citizenship by conferral. In the application he did not declare that he had been convicted of any offences overseas or in Australia.

4. On 16 November 2021, the Department wrote to the Applicant to invite him to comment on adverse information, being that he had disclosable court outcomes that may cause a delegate to conclude that he was not of good character. An extract of a criminal history check noted the following offences:

Date	Offence	Result
29 August 2013	POSSESS CANNABIS	Convicted and discharged
29 August 2013	-    Poss Proh Weapon W/O Exemption/approval (2 charges) -    Prohibited Person Possess a Firearm	-    Convicted and Community Correction Order – 12 months -    Unpaid Community Work Perform 150 hours of community work -    12 months from 29 August 2013
9 October 2013	Variation of sentence – Prohibited Person Possess a Firearm	- 4 Months imprisonment concurrent, suspended under Section 27 of the Sentencing Act 1991, with a 12 month Operational period.
21 October 2015	Act Prejud Sec/Good Order/Management Gaol	-    Convicted and discharged
15 February 2018	Possess Dangerous Article in Public Place	-    Convict and aggregate fine of $1000.00
15 February 2018	Contra-Fam Violence Final Intervent Order	-    Convicted, with aggregate fine of $1000.00

1. On 13 December 2021 and 3 February 2022 the Applicant provided responses to the invitation to comment, which included a statutory declaration by the applicant and character references.

2. On 19 August 2022, a delegate of the Minister made a decision to refuse the Applicant's application for Australian citizenship by conferral, pursuant to section 21(3)(f) of the Citizenship Act 2007 (Cth).

3. On 5 September 2022, the Applicant applied for review of the delegate's decision with the Administrative Appeals Tribunal.

   ISSUE:

4. The issue before the Tribunal is whether it is satisfied that the Applicant is a person of good character pursuant to section 21(3)(f) of the Citizenship Act 2007 (Cth) (the Act).

   LEGISLATIVE FRAMEWORK

5. The relevant legislation and policy is outlined below.

6. Section 21(3)(f) of the Act states:

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

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

7. 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 (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [640] per Brennan J).

8. 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.

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

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

   ·not practise deception or fraud in their dealings with the Australian Government, or organisations, for example – concealing criminal convictions; and

   ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct.

10. CPI15 also provides a framework by which decision makers are able to ‘weigh up’ a character decision. Decision makers are required to consider:

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

    ·what evidence is available to demonstrate that the Applicant has upheld and obeyed the law;

    ·whether the Applicant has behaved in accordance with Australia’s community standards; and

    ·whether the Applicant shares Australia’s democratic beliefs and respects its rights and liberties.

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

    EVIDENCE OF THE APPLICANT

12. When questioned about the offences of August 2013, the Applicant accepted that he had plead guilty and was convicted of those offences. His evidence was that the illegal items were placed in the house by his ex-partner, RP, and that he had plead guilty because he was young, in love, and unfamiliar with Australian laws.

13. He said that when the illegal objects were found by the police in RP’s house, his ex-partner had told him that if she was charged she would lose her children, and asked him to tell the police they were his.

14. He said that when he later tried to tell the police he had falsely claimed responsibility for the illegal items, he was not listened to and did not know the laws and procedures to pursue an appeal. When the Representative of the Minister put to the Applicant that he had successfully applied for his sentence to be varied to a 4-month suspended sentence, and so he must have some knowledge of Australian legal procedures, the Applicant stated that RP had arranged it for him when he threatened to ‘come clean’ about the true facts.

15. In relation to an allegation that he had threatened a member of RP’s family with a taser, he denied that event taking place, and said that he was an artist and singer who would not do such things.

16. He could not specifically recall receiving a family violence safety notice in June 2014, but could remember the general events of that time. He said when he first received an IVO he did not really know what it meant and that he had not been given the documents by police. He denied that he had parked his van in view of his ex-partners house or sent texts contravening the IVO.

17. When asked about the offence of 21 October 2015, the Applicant said that he could not remember, because it was a long time ago, and due to his mental illness he had some trouble with his memory. When the representative for the Respondent drew his attention to the guilty plea he had entered regarding this offence, he said that the police were fabricating things, and that all his offences were because of a conspiracy between his ex-partner and the local police.

18. The Applicant did not elaborate on the incident that led to receiving an IVO in July 2016 in relation to RP’s son and daughter. He stated that he did not understand why the IVO had been made in relation to the daughter, and that he had video evidence of RP’s son attacking him. He said the IVO should have been issued against RP’s son because the son and his friends had come to his home and attacked him.

19. The Applicant did not accept the police facts of the incident in the shopping mall in January 2017. His evidence was that he had been shopping for tools and was attacked, and during the attack a tyre iron fell out of his pocket. He said he had picked it up and had tried to use it to scare away his attacker.

20. He said that he never committed any offences, and that he didn’t accept that his conduct had impacted other people. His evidence was that he was the victim of all of these offences, having lost all of his teeth from being attacked, and was still being harassed 5 years after he had left Victoria. He said that RP still had his car and he was regularly receiving notices for traffic offences, that he received death threats from private phone numbers and that his car had been vandalised.

21. When the Applicant was questioned about the omission of his criminal offences from his citizenship application, he said that his carer had filled it out, and that he should not be held responsible as he is not mentally well. He said that he had not asked his carer what she would put in the application, as he trusted her. His evidence was that he was not involved in any mechanical aspect of the application, including the response to the invitation to comment.

22. The Applicant gave evidence that his difficulties with mental health were due to his experiences in Victoria. He said he has had regular engagement with mental health services, and that he feels it is important for him to become healthy again. The Applicant gave evidence that he was taking various medication for depression, anxiety, schizophrenia, and daily anti-inflammatory medication due to the lasting injuries he had sustained from the assaults. He said that since he had come to New South Wales in 2018 he had not had any issues with the police.

    DISCUSSION:

23. The only issue before the Tribunal is whether it can be positively satisfied that the Applicant is of good character for the purposes of section 21(3)(f) of the Citizenship Act 2007 (Cth) (the Act).

24. As I explained to the Applicant at the hearing, it is not open to the Tribunal to go behind the convictions recorded against him in the Victorian Criminal Courts. In this regard I note that a lot of the evidence given to the Tribunal by the Applicant related to the circumstances/background relating to those convictions, and the Applicant’s perception of injustice.

25. I note that the Applicant’s convictions relate to the period when he lived in Victoria, and that since the Applicant had moved to New South Wales in 2018, there is no evidence that he has engaged in any offending behaviour.

26. The only recent issue of concern is the fact that the Applicant failed to answer a question on his Citizenship application correctly, and thus failed to disclose to the Department his criminal history. The Applicant said that this was because he had relied on another person to fill in the form.

27. Citizenship is not to be taken lightly, as it is a significant privilege which is bestowed on behalf of the people of Australia to a non-citizen. Accordingly, the Tribunal must be positively satisfied that the Applicant is of good character.

28. Good character is not defined in the Act, but it has been considered by the courts on numerous occasions, in the case of BOY19 v minister for Immigration and Border Protection [2019] FCA 574, where O’Bryan J said at [51]:

    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. (emphasis added) The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed or precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgement to be made by reference to undefined factual matters confined only to the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ). Third, and as a corollary of the second point, the expression requires a judgement as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

29. The Tribunal also takes into account part 4 of the Citizenship Policy 115, which says that the Tribunal should consider factors such as the Applicant’s family life, stable home environment, being responsibly employed and paying taxes, along with any community work that is being undertaken. The Tribunal must make its decision as part of an overall assessment which includes taking into account the Applicant’s offending, but also an assessment of the positive aspects of the Applicant’s life. All of the information must then be considered and afforded appropriate weight in order for the Tribunal to make an assessment as to whether it can reach ‘affirmative believe that the Applicant is of good character’.

30. At the hearing the Respondent argued that the Tribunal could not reach an affirmative belief that the Applicant was of good character because of the nature of his offending, the fact that he had not accepted responsibility for his offences, and because that he had failed to disclose his offences in his citizenship application dated 12 April 2021.

31. In considering the evidence of the Applicant’s offending, I note that the Respondent put to the Tribunal comments by Senior Member Puplick, to the effect that there was a presumption that anyone convicted of domestic violence offences was not of good character. I do not accept such a proposition, but rather, each case must be considered on its own merits. There are many circumstances, including mental health, which must be taken into account in reaching any conclusion.

32. For the purposes of the current matter, it is enough to note that the Applicant was convicted of a domestic violence offence, and all such convictions must be taken very seriously. Although they do not, in my opinion, conclusively define a person’s character.

33. Many of the other issues raised by the Respondent related to police reports of various incidents involving the Applicant, his former partner, and her family, in which the Applicant was alleged to have been involved. These matters were not tested in court.

34. Overall, I give limited weight to the Applicant’s conviction in 2013 and 2014. His conviction in 2018 is more recent, but also occurred before the Applicant moved to New South Wales.

35. I accept that the Applicant himself appears to have suffered significant physical and psychological harm from various incidents at least one of which does not appear to have been recorded by police.

36. The Applicant gave evidence that he had lost all of his teeth as a result of being assaulted, and that he had also suffered other ongoing physical effects. He was taking a variety of medications including medication for depression, anxiety, and schizophrenia, along with anti-inflammatory treatments.

37. There was limited evidence available to the Tribunal as to the Applicant’s current living arrangements, but he appears to be in a stable and loving relationship, at least as of December 2022. There was no evidence as to his employment circumstances, or any community engagements. There was some evidence of his having previously performed as a singer as part of his community. I note also that the Applicant appears to have maintained a positive relationship with the woman who originally brought him to Australia on Partner visa, including the Applicant living with her in Ballarat, prior to coming to New South Wales. 

38. Dr Sana Zaarour, in the most recent psychological assessment of the applicant stated as follows:

    Based on consultations with Mr Salloum during the approximately 2 year period he was receiving treatment, Mr Salloum was very co-operative in treatment and appeared to be implementing strategies to help him cope better with his stressors and conditions.

    Mr Salloum does not appear to have any current violent or narcissistic tendencies that may be harmful to the Australian community or way of life.

39. The Applicant said that remembering the past was painful for him, and that he did not want to live in the past. It is important however, that Dr Zaarour in her assessment said:

    In relation to his matters and offences during his past in Melbourne, the client has not accepted full responsibility for the matters and aims to fight the charges made against him in court.

40. In assessing whether the Tribunal can be positively satisfied that the Applicant is of good character I find that his offending is not of the most serious kind, although all family violence offences must be taken very seriously. It is of concern that he did not accept his convictions and felt that the police and his former partner, RP, were involved in a conspiracy against him. It may be that this issue will be resolved as a result of ongoing counselling and treatment. It is important that the Applicant comes to terms with his convictions in order to properly move on. I accept however, that there may have been circumstances which left the Applicant feeling aggrieved and a victim of injustice. I also take into account that English is not the Applicant’s first language.

41. I place limited weight on the fact that the Applicant failed to answer a question in the citizenship Application correctly. It is, however, important that proper attention is paid to Government documents and that questions are answered correctly, whether or not an Applicant relies on another person to fill in the form.

42. Overall, although it is impossible not to feel some sympathy for the Applicant, it is not possible at this time to come to a positive conclusion that the Applicant is of good character for the purposes of section 21(3)(f) of the Citizenship Act.

43. In particular, the Applicant is able to make another application at a time in the future, and I believe that such an application is likely to be successful if the Applicant continues with his mental health treatment, and is able to fully come to terms with his convictions and all of the other difficult circumstances he had to deal with in Victoria. Continuing to demonstrate a stable homelife, and successful management of his mental health issues will be important. There is no reason for the Applicant not to feel optimistic about a future application, in which a decision will be made based on the circumstances at that time, including the effluxion of time since his last conviction.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 27 June 2023

Date(s) of hearing:	24 May 2023
Applicant:	In person
Solicitors for the Respondent:	Harry McLaurin