Estafanous and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 8
•8 January 2025
Estafanous and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 8 (8 January 2025)
Applicant/s: Magdy Estafanous
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/8479
Tribunal:Senior Member S Webb
Place:Sydney
Date:8 January 2025
Decision:The Tribunal affirms the decision under review.
………………[SGD]………………………….
Senior Member S Webb
Catchwords
CITIZENSHIP – application for conferral – ‘good character’ threshold – enduring moral qualities – effects of injuries – change in personality and behaviour – criminal convictions – contested facts – weight of untested medical and character evidence – factors mitigating seriousness of offending conduct – treatment and potential for recovery – passage of time without offending – balance of relevant considerations – requirement for positive satisfaction – evidence not sufficient – eligibility not established – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) s 21, 24
Administrative Review Tribunal Act 2024 (Cth)
Cases
Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2437
Zheng v Minister for Immigration & Multicultural Affairs [199] FCA 731
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660
Balladraf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 698
Spall v Minister for Home Affairs [2024] FCA 849
Secondary Materials
Australian Citizenship Policy, Department of Home Affairs (date), CPI 15 - Assessing Good Character under the Citizenship Act
Statement of Reasons
Magdy Estafanous is an Egyptian citizen. At the age of 32, he first arrived in Australia on 5 September 2006[1] on a Vocational Education and Training Sector (subclass 572) visa.[2] Several months later, he was the victim of a violent robbery in Sydney. He sustained serious injuries, including an injury to his brain. In 2008, he was again assaulted and robbed. These events and injuries had a significant effect on Mr Estafanous from which he has not recovered. On 13 July 2012, he was granted a Protection (subclass 866) visa[3] and became a permanent resident in Australia.
[1] Exhibit 1, T17, 215.
[2] Ibid, T20, 247.
[3] Ibid.
As will appear, in 2009, 2012, 2016 and 2019, Mr Estafanous was convicted of offences involving violence and, in 2010, he was convicted of driving offences.
On 21 April 2022, Mr Estafanous lodged an application for conferral of Australian citizenship. A delegate of the Minister refused the application on character grounds. Mr Estafanous applied for review of this decision by the Tribunal.
The issue to be decided in the review is whether Mr Estafanous is eligible to become an Australian citizen. The sole issue in dispute is whether the Tribunal is satisfied Mr Estafanous ‘is of good character’ for the purposes of s 21(2) of the Australian Citizenship Act 2007 (Cth) (Act).
The Minister asserts Mr Estafanous has a record of criminal conduct and offences which involve violence, including domestic violence, and disrespect for law. The Minister alleges Mr Estafanous has limited insight into his offending conduct. In the Minister’s submission, Mr Estafanous has not accepted responsibility nor expressed remorse for the offences for which he was convicted. The Minister accepts Mr Estafanous suffered injuries when he was violently assaulted in 2007, including a brain injury which likely affects his behaviour, and argues the available medical evidence does not establish a precise causal nexus between his violent offences and the effects of his injuries. Even if the Tribunal accepts such a link, so the argument goes, the available medical evidence suggests Mr Estafanous “has not recovered psychologically or physically from the traumatic events that took place in 2007 and 2008 as these events have affected him severely” and he requires ongoing treatment, including “intensive counselling to assist him cope with his emotional difficulties and resolve symptoms of anxiety and depression”.[4] The Minister contends, in his current condition, there is a risk Mr Estafanous might offend again, should he encounter stressful or difficult circumstances.
[4] Ibid, T6, 150 and 151.
In the Minister’s submission, the violent offences Mr Estafanous committed should be regarded as serious, and the seriousness of his conduct is increased by the domestic violence elements of his offending. The Minister alleges Mr Estafanous’ offence against a law enforcement officer demonstrates his lack of respect for lawful authorities in Australia. This is reinforced, the Minister submits, by Mr Estafanous breaching a domestic violence protection order and failing to disclose his criminal convictions in the application for conferral of Australian citizenship. The Minister contends these considerations weigh heavily against finding Mr Estafanous is a person of good character.
The Minister asserts, in the context of the pattern of Mr Estafanous’ previous offending conduct over a 10-year period, insufficient time has elapsed from his most recent offence to demonstrate he has enduring moral qualities consistent with a person of good character. In the Minister’s submission, this is reinforced by Mr Estafanous failing to disclose his criminal offences in his application for conferral of Australian citizenship. The Minister argues Mr Estafanous has not demonstrated remorse or insight into his offending and violent conduct consistent with an understanding of the values by which a person of good character must abide.
Mr Estafanous submits his previous convictions are in the past and are not frequent or recent. He alleges he has exhibited good behaviour over the past five years, without reoffending, consistent with his good character. Mr Estafanous argues the time required to demonstrate genuine reform depends on the specific circumstances of each case and, in his case, 5 years is sufficient to demonstrate his understanding of Australian values and his adherence to Australia laws, consistent with the good qualities of his character.
Mr Estafanous asserts the convictions do not reflect his true character and each should be considered in the circumstances in which it occurred. He contests the police facts placed before the courts and maintains he was charged on grounds of fabricated and unreliable evidence. He argues defence of his innocence in pursuit of truth in such circumstances demonstrates his insight and enduring moral quality.
Relying on Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[5] Mr Estafanous submits his failure to disclose his criminal offences in his application for Australian citizenship was inadvertent, not intentional, and understandable. He asserts he understood the question posed in the form was in respect of current charges or convictions. This, he alleges, was due to his limited English language ability and completing the form without legal advice or the assistance of an interpreter. He alleges he believed he did not need to disclose past convictions following the expiration of the 14-month Intensive Corrections order to which he was sentenced, and failing to do so in these circumstances does not detract from his good character.
[5] [2021] AATA 2437.
Mr Estafanous alleges his genuine desire to make amends for any past mistakes is supported by his efforts to make a positive contribution to the Australian community since first arriving in 2006. In support of this proposition, Mr Estafanous suggests he has engaged in voluntary activities through church organisations for many years, and in education and training activities. He argues he has developed positive and healthy relationships in the community which support his continued growth and recovery, and with medical and psychological treatment he is now better able to control his emotions.
Mr Estafanous alleges he is a peaceful, law-abiding person who has been subjected to the violent and untruthful actions of others. He contends the Tribunal’s task is to consider all aspects of his character, weighing any failings in the past with the good qualities his recent conduct demonstrates, heeding the caution “the evil men do lives after them; the good is oft interred with their bones”[6].
[6] Julius Caesar, William Shakespeare, Act 5, Scene 5.
While there is some force to these submissions, Mr Estafanous was found to have engaged in violent acts and threatening conduct, including in domestic settings, on 3 occasions in 2008[7], 2015[8] and 2018[9] for which he was charged and convicted.[10] He committed driving offences in 2010[11] and he breached an Apprehended Violence Order (AVO) in 2012[12].
[7] Exhibit 2, SM6, 4.
[8] Ibid, SM3, 22 and 28.
[9] Ibid, SM1,36.
[10] Exhibit 1, T9; T14.
[11] Exhibit 2, SM5, 10-12, 34-36.
[12] Ibid, SM4, 23-27.
Mr Estafanous has the following convictions:
Date
Offences
Result
05/07/2019 Stalk/intimidate intend fear physical etc harm (domestic)-T2
Assault occasioning actual bodily harm (DV)-T2
Intensive correction order: 14 months commencing 05/07/2019 concluding 04/09/2020
Supervision: 14 months commencing 05/07/2019 concluding 04/09/2020 supervised by community corrections service
Community service work: 100 hours
05/02/2016 Assault officer in execution of duty-T2 Bond s9 : 12 months 19/11/2012 Contravene prohibition/restriction in AVO (Domestic) S10a conviction with no other penalty: costs - court: $83 15 Dec 2009 Stalk/intimidate intend fear of physical/mental harm-T2
Assault occasioning actual
Bodily harm (DV)-T2
Bond s9 : 2 years supervised NSW Probation Service obey all reasonable directions for counselling including participation in a domestic violence program attend for mental health assessment treatment and review and anger management inform registrar of any change of address not to assault molest harass or otherwise interfere with victim or incite a third party to do so.
On 15 January 2020, Mr Estafanous completed the community service component of the intensive corrections order sentence he was given on 5 September 2019.
Driving
On 19 August 2010, Mr Estafanous was convicted of driving offences he committed on 23 and 28 July 2010[13], however, the matters were the subject of a severity appeal. The appeal was dealt with by the Parramatta District Court on 22 November 2010 “without proceeding to a conviction”[14]: previous habitual offender convictions were quashed, the 12-month disqualification from driving was upheld and an 8-month s10 bond was imposed.[15]
[13] Exhibit 2, SM5, 40; Exhibit 1, T9, 185.
[14] Exhibit 2, SM5, 2 and 19.
[15] Exhibit 1, T9, 185.
Mr Estafanous stated:
At all relevant times I had an international licence I applied for a NSW drivers licence and was waiting on its arrival I did not know that once I had applied for my NSW licence my international licence would cease, this was a misunderstanding of the law and I have apologised to the court at the time. I now understand that I should have checked the law and ignorance of the law is no excuse.[16]
[16] Ibid, T16, 210.
On 7 February 2022, Mr Estafanous was given a traffic infringement notice for exceeding the speed limit by more than 10 kilometres per hour in a 50 kilometre per hour zone (the radar reading showed he was travelling at 72 kilometres per hour).[17]
[17] Exhibit 2, SM2, 13.
December 2009 convictions
The incident on 11 June 2008 involved Mr Estafanous, his uncle (the uncle) and his uncle’s wife (the wife) at a service station. The initial police notes of the alleged incident were entered on 12 June 2008 and refer to ‘Magdy Estafamoun’. The police notes refer to an argument at a service station in which it is alleged Mr Estafanous swore at the wife, hit her repeatedly with a milk crate, kicked her, grabbed a metal object and threatened to kill her and hit her with the metal object while she was seated in the passenger seat of a motor vehicle. On these notes, the uncle pulled the wife’s hair and drove to their home with the wife screaming, banging on the window and crying out for help. It is alleged the uncle “grabbed her head and hit it on the gear stick”. Police received “a call from a mobile phone with a female screaming and an aggressive male” and, on attending the uncle’s house, separated the uncle and the wife, who informed the attending officers “he hit me” and “he pulled my hair”. The officers took a statement from the wife and photographed abrasions on her left knee and left upper thigh.[18]
[18] Ibid, 28-29.
On 25 June 2008, Mr Estafanous was interviewed by police.[19] He accepted that an argument occurred on 11 June 2008 in which the wife was abusive towards him. He denied assaulting the wife. Following the interview, police updated notes of the incident in reference to ‘Magdy Estafamous’.
[19] Ibid, SM6, 30-69.
On 27 August 2008, Mr Estafanous entered pleas of Not Guilty to charges of Common assault domestic violence related, Assault occasioning actual bodily harm domestic violence related and Stalk or intimidate intending to cause fear of physical or mental harm.[20]
[20] Ibid, 12 and 13.
On 15 December 2009, Mr Estafanous was convicted on the latter two charges. He was sentenced to a 2-year good behaviour bond under which he was required to participate in anger management programs and counselling, including participation in a domestic violence program and mental health assessments and treatment, as directed.[21] A Court Duty Officer’s Report noted that “Mr Estafanous does not agree with the facts” and he became emotional when questioned about his role[22]. The Court Officer reported:
Mr Estafanous did advise that he has been the victim of two assaults since being in Australia, one which occurred in 2007 and left him with a significant brain injury. He spoke of being in the care of the Liverpool Brain Injury Unit and being prescribed medication, to which to date has refused to take as he is concerned about the side effects. It is also to be noted that as a result of these injuries, Mr Estafanous informed that he suffers from a ”deep depression” which has been untreated.
…
There are concerns regarding Mr Estafanous’s mental health and it appears he requires some form of assessment and treatment in this regard…[23]
[21] Ibid, 7-10.
[22] Ibid, SM6, 73.
[23] Ibid, 73-74.
If police tendered a statement of facts to the court, it has not been produced to the Tribunal. The Tribunal does not have the benefit of any sentencing remarks of the magistrate. Consequently, on the materials before the Tribunal, it is not possible to determine the precise facts accepted by the Court on which Mr Estafanous was convicted and sentenced.
Mr Estafanous continues to assert he did not commit the offences for which he was charged and convicted. He alleges the police notes[24] relating to his conduct on 11 June 2008 are not factually accurate[25]. He alleges the wife called him a “son of a bitch” which he considered was deeply offensive and it shamed his mother. He asserts he asked the wife to desist, and she threw a water bottle which struck his head and eye. He alleges he reacted defensively and pushed her away. He denies hitting her with a milk crate, kicking her, attacking her with a hand saw and threatening to kill her. He notes police were not called to attend the alleged assault. He stated:
… I was not legally represented at the time, however I understand that I should not have acted the way I did I should have ran away or called the police.[26]
[24] Exhibit 2, SM2, 28-29.
[25] Ibid, SM6, 42-58.
[26] Exhibit 1, T16, 209.
Mr Estafanous alleges photographs of injuries in various parts of the wife’s body which were tendered in evidence before the court[27] are not reliable, as they do not include information about when, where and in what circumstances they were obtained. He alleges there was a history of domestic conflict between his uncle and the uncle’s wife. I note the black and white copies provided to the Tribunal are of very poor quality and some are dated 11 June 2008[28], while others are dated 14 June 2008[29]. Mr Estafanous challenges the ‘logic’ of the alleged injuries on the left side of the victim’s body, on her left knee and thigh for example. He questions how he is alleged to have inflicted such injuries as the wife was seated in the passenger seat of a locked motor vehicle (with the uncle sitting in the driver’s seat) and it is alleged he “opened the passenger door window where the victim was sitting and he has hit the victim with the metal object”[30].
[27] Exhibit 2, SM6, 14 and 16-29.
[28] Ibid, 16-20.
[29] Ibid, 21-29.
[30] Ibid, SM2, 27 and 28.
While there are real questions about the facts on which Mr Estafanous was convicted, to which I will return shortly, the fact of each conviction remains. The seriousness of the convictions is increased by the domestic violence element. This weighs against finding Mr Estafanous is ‘of good character’.
October 2012 conviction
On 28 September 2012, an interim Apprehended Domestic Violence Order (AVO) was issued against Mr Estafanous for the protection of a male person, “VN”, who resided in the same house.[31] In addition to standard orders, the AVO ordered:
2. The defendant [Mr Estafanous] must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises [address stated].[32]
[31] Exhibit 2, SM4, 7-10.
[32] Ibid, 9.
On the police Facts Sheet, [33] VN had asked Mr Estafanous to move out of the property on a number of occasions and did so again after 2 October 2012, the date the AVO was served. On 7 October 2012, Mr Estafanous attended the premises when VN was present. VN “did not say anything tom [Mr Estafanous] as he is scared of [him] as he is always aggressive towards [VN]”[34] and left the premises to sit in his car. Allegedly, Mr Estafanous approached the VN’s car and took photographs. VN informed police he feared for his safety.
[33] Ibid, 24-26.
[34] Ibid, 25.
Mr Estafanous gave the following statement about contravening the AVO:
I was served with the AVO at the time I was sub-leasing from another tenant we were about 8 people living in the apartment. I did not know that I had to move out from the apartment I was charged with breaching the AVO because I was still living there I did not assault or threaten the landlord nor did I attempt to contact him.[35]
[35] Exhibit 1, T16, 211-212.
Mr Estafanous gave evidence that problems arose when he was late with the rent and VN approached the court. He explained VN lived at a different address, and he required rent to be paid in cash. Mr Estafanous alleges he understood he was entitled to live in the room as his rent was paid. He accepts an AVO was issued, although he explained his English is limited and no interpreter was provided.
Breaching an AVO is a serious matter. It is possible Mr Estafanous did not fully comprehend his legal obligations under the AVO, and his lack of understanding might have been accentuated by his language difficulties and his reduced cognitive functioning after the April 2007 assault. These considerations mitigate the seriousness and the weight this conviction should be given, but not greatly.
February 2016 conviction
On 5 February 2016, Mr Estafanous was convicted of assaulting an officer in the course of his duty.
Substantial parts of the police Facts Sheet have been redacted[36]. Mr Estafanous asserts this was done in Court. On his evidence, he was transported to a police station following a dispute between co-tenants in a shared residential premises. The dispute was over food items allegedly stolen by one of the tenants. Mr Estafanous explained the other tenants confronted the alleged man who became angry. There was an altercation. Later, police attended the premises, hand-cuffed Mr Estafanous and transported him to the Bankstown Police Station. On Mr Estafanous’ account he was falsely accused of assaulting and intimidating the man while armed with a large kitchen knife. On his evidence, there was no knife, no medical evidence in respect of the alleged victim, no witnesses, or statements from co-tenants.
[36] Exhibit 2, SM3, 28.
The police notes refer to an incident on 22 August 2015 in which an altercation arose between co-tenants residing in the premises over a missing plate which appeared in the alleged victim’s drawer. The notes set out the following description:
The accused [Mr Estafanous] then got involved in the conversation and started to insult the victim calling him a “fucking idiot” and “hopeless and useless”. The accused and the victim argued together for a short while when the accuised said “I’m going to punch you” to which the victim said “If you punch me ill call the police”. The accused walked over to the victim and started to push the victim in his left shoulder saying “I’m touching you, call the police”. The victim said to the accused “Ok, no problem”. The accused continued to push the victim a few more times before saying “I’m going to kill you”. The accused reached into his drawer and pulled out a knife around 15-20 centimetre long. The victim immediately stepped away and ran behind the kitchen table which is located in the middle of the room. The accused has followed the victim walking around the same side of the table. The victim continued to move around the table until he was close to the front door. The victim ran to the front door as did the accused. The accused grabbed the victim by the throat, pushing him up against the wall continuing to chock [sic] him. The accused then lifted the knife up towards the victims face, holding the knife in his right hand and held the knife 2 – 3 centimetres away from the victims neck. At this point in time [another co-tenant] ran over and pulled the accused off the victim, giving the victim enough time to run outside to his car. The victim got straight into his car and drove to Revesby Police Station, still holding the wooden spoon he was using to cook dinner.[37]
[37] Ibid, SM2, 18
Police attended the premises. The related police notes include the following description of events of present relevance:
Mr Estafanous was charged with six offences,[38] which he denied. He was granted bail. The Summary of Reasons for Bail Decision of Court contains the following notation:
May have mental illness leading to acts of violence[39]
[38] Ibid, 21-22.
[39] Ibid, 26.
Three of the charges were in respect of intention to commit an indictable offence while armed with a kitchen knife, and intimidation and assault of the alleged victim. These charges were dropped.
The three remaining charges related to Mr Estafanous’ conduct towards police officers: two counts of assaulting an officer while in the execution of his or her duty; and one count of resisting an officer while in the execution of his or her duty. One of the assault charges and the resist charge were withdrawn and dismissed.[40] The remaining charge of assault was in respect of Constable SAFFURI.
[40] Ibid, 16-17.
The police Facts Sheet includes the following account:
Police have then removed the accused [Mr Estafanous] from the Doc area and walked him to the custody counter where he was searched. Whilst this occurred, Constable SAFFURI was performing a search of the accused and he has turned around to Constable SAFFURI and slapped Constable SAFFURI on the Left hand with his left hand. The accused was handcuffed to prevent further assaults to police. The accused was then placed back into the Doc due to his aggressiveness towards police.[41]
[41] Ibid, 28.
Mr Estafanous gave evidence the charge he slapped the left hand of a police officer with his left hand is implausible and a “silly joke”. Mr Estafanous stated:
I pleaded not guilty for this offence I still maintain my innocence from this offence. I was legally represented by legal aid and I advised legal aid that I did not commit the offence.[42]
[42] Exhibit 1, T16, 212.
Albeit the factual circumstances are contested by Mr Estafanous, his conviction of assaulting a police officer in the execution of his duty is an unavoidable fact. The notes of Mr Estafanous’ aggressive and non-compliant conduct when interacting with police on this occasion are also very concerning. These are relevant factors which weigh against finding Mr Estafanous is ‘of good character’.
July 2019 convictions
On 5 July 2019, Mr Estafanous was convicted of two offences arising from a domestic incident on 9 October 2018 involving a man in a share house, “HG”: Assault occasioning actual bodily harm (dv) and Stalk/intimidate intend fear physical etc harm (domestic).
The police notes of the incident entered on 10 October 2018 include the following account of events[43]:
[43] Exhibit 2, SM2, 15.
The notes are substantially consistent with the police Facts Sheet placed before the Court.[44] On 3 May 2019, Mr Estafanous entered a guilty plea.[45] On those facts, Magistrate Walsh convicted Mr Estafanous of both offences,[46] and sentenced him to a 14-month term of imprisonment in respect of each offence. The sentences were to be served concurrently by way of intensive correction in the community, subject to standard conditions and performance of 100 hours community service work.[47]
[44] Ibid, SM1, 37-38.
[45] Ibid, 6 and 8.
[46] Ibid.
[47] Ibid, 9-12.
It is germane to consider other evidence which was placed before the Court.
On 31 January 2019, Dr Jacqueline Youssef, a Mental Health Specialist/Clinical Social Worker, reported:
[Mr Estafanous] is seen to be suffering from high level of stress, severe anxiety, pain, adjustment disorder and is depressed. He also suffers from general fatigue, poor memory and concentration and poor sleep due to pain and worries.
Mr Estafanous is receiving psychological treatment by me, namely psycho-education, counselling, stress and pain management and relaxation and support therapy.
He still needs further sessions to continue treatment to assist him in coping better with his current emotional difficulties.[48]
[48] Ibid, 13.
On 11 February 2019, Dr Naeem Hanna, general practitioner, reported Mr Estafanous “has multiple medical conditions”, including:
- …
- PTSD,Severe Anxiety and Depression Since Being Previously Physically assaulted in Year 2007 & 2008. As a result he became very irritable, Defensive and unable to cope if he expose to any stressful situation.
- Recurrent Temporary memory Impairment
- …[49]
[49] Ibid, 14.
On 1 May 2019, V Rev Fr Samuel Giurguis, wrote a character reference in which he stated he has know Mr Estafanous for a long time since he came to Australia and:
[Mr Estafanous] has always been an active and helpful member of our church, participating in the Church’s service and he has been an excellent role model for those of our church who are seeking a more active and rewarding relationship with God.[50]
[50] Ibid, 18.
On 8 May 2019, a Community Corrections Officer reported that, “Mr Estafanous appears to have underlying mental health issues which require a Justice Health Report”[51]. In a 5 June 2019 Sentencing assessment report, Mr Estafanous was found suitable to undertake community service work and he was “assessed at a Low-Med risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)”.[52]
[51] Ibid, 43.
[52] Ibid, 47.
In these proceedings, Mr Estafanous rejects the police recitation of the facts as a fabrication concocted by the alleged victim. He stated:
This was an incident with my flat mate, we had an argument I was defending myself at the time I was assaulted first and I was protecting myself, I was advised by legal aid to plead guilty so I don’t go to jail I understand in any events that I could have handled the matters quite differently.[53]
[53] Exhibit 1, T16, 212.
Mr Estafanous disputes the photographic evidence placed before the Court of injuries HG suffered,[54] and HG’s declaration he sustained physical and psychological injuries “in the brutal and savage attack inflicted on me, by Mr Magdy Estafanous”.[55] Mr Estafanous accepts there was an argument, but alleges in the argument with HG he was calm and walked away to his car which was parked on the road outside the house. By his account, near the car, “someone put a hand on my shoulder” and this caused a flashback to the assault. He explained he was “ready to defend myself”, but “I know my capacity … I have only small power”. Mr Estafanous asserts he was physically unable to attack HG or to inflict injuries upon him as he has a “bad knee” and he “would fall over if pushed”.
[54] Exhibit 2, SM1, 23-35.
[55] Ibid, 41.
Mr Estafanous rejects the assertion he drove his car at HG and that he used metal rods to attack HG, repeatedly hitting him with the rods.
Even though Mr Estafanous contests the facts underlying the convictions, each conviction stands. Violence and intimidation in a domestic setting, albeit not between family members but between co-habitants in a shared accommodation, is a matter of serious concern. Respect of the rights and liberties of others extends to the right of every person to feel safe in their home. This is an important value in the preamble to the Act which is included in the pledge of commitment made by all those bestowed with the grant of Australian citizenship. It is traduced by domestic violence. For these reasons, the seriousness of Mr Estafanous’ convictions on 5 July 2019 is increased by the domestic violence element.
These convictions weigh against finding he is ‘of good character’.
Incorrect information
Mr Estafanous provided information which was incorrect in the application form for conferral of Australian citizenship he lodged on 21 April 2022.
He answered No to the question about holding citizenship of any country.[56] He gave a single address and answered No to the question Has the applicant had any other residential addresses in the past 5 years?.[57] He answered No to the question Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?.[58] Mr Estafanous made a declaration the information he supplied in the application form is complete, truthful and correct in every detail.[59]
[56] Exhibit 1, T7, 154.
[57] Ibid, 156.
[58] Ibid, 62.
[59] Ibid, 167-168.
In his oral evidence, Mr Estafanous accepted the information he provided in the application form and the declaration he made was incorrect. He alleged he did not understand the questions as his English is limited and he did not have legal assistance to complete the form.
He stated he understood the question about convictions only applied to current convictions, not to convictions in the past where the sentence has been served and the matter is not current.
While it may be accepted language and cognitive difficulties mitigate the seriousness of this conduct to some degree, failing to provide accurate information to the Minister’s Department and making a false declaration are matters of concern which weigh against a finding that Mr Estafanous is of good character.
Contested facts underlying convictions
On the question whether the Tribunal can go behind the convictions to examine contested facts, Bromberg J reviewed relevant authorities in HZCP v Minister for Immigration and Border Protection[60] and distilled the following principles:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[61][60] [2018] FCA 1803.
[61] Ibid, [78].
On appeal, no fault was found and, in respect of cases to which the second principle might apply (noting the reservations and cautions Derrington J expressed), the Full Court stressed the heavy burden on a person seeking to prove facts which depart from those on which a conviction is based.[62]
[62] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, [71], [150].
This case does not turn on the exercise of power founded on Mr Estafanous’ criminal convictions or sentences, although those facts are relevant when considering if he is presently of good character. Consequently, the facts underlying those convictions are not immune from challenge.
Much as Mr Estafanous attempted to attack the facts reported by police in respect of the 2009 convictions, as he did in his interview with police on 25 June 2008 and, by his account, in his defence at trial in December 2009 (although those records are not before the Tribunal), doing so on the assertion of logical inferences and argument about the probative value of evidence before the court is not persuasive, and it does not meet the heavy onus on him to upset facts on which he was convicted. Nevertheless, Mr Estafanous’ evidence closely aligns with the relevant content of the record of his interview with police on 25 June 2008, and his version of events illuminates aspects of what may have occurred which are of relevance for present purposes.
The same cannot be said with respect to facts underlying the July 2019 convictions. At trial, Mr Estafanous did not contest the police recitation of facts and he entered guilty pleas to the charges levelled against him. By his own account, he entered guilty pleas to avoid the risk of a custodial sentence and imprisonment. Presently in these proceedings, where no custodial sentence is in prospect and conferral of Australian citizenship hinges on satisfaction Mr Estafanous is ‘of good character’, he contests the previously uncontested police facts and evidence placed before the Court relating to the 9 October 2018 incident. Thus, not only does he bear the heavy evidential onus to which I have already referred when contesting facts on which the conviction was based, he must also contend with the effect of such a contest, and any related inconsistency, on the assessment of his good character.
With regard to the former, Mr Estafanous has not met the evidentiary onus of disproving facts on which the July 2019 conviction was based.
With regard to the latter, in a nutshell, inconsistency tailored for the purposes of a particular proceeding, whether by commission or omission in order to obtain a benefit or to avoid a consequence, as a minimum, raises questions of reliability. In the circumstances of this case, however, it is not necessary to go further with this issue. The point is not determinative, as the reliability of Mr Estafanous’ evidence turns on the cognitive and psychological effects of the injuries he suffered in 2007.
There are three key mitigating factors which require further examination. The first is the effects of the injuries Mr Estafanous suffered in April 2007 and June 2008, the second relates to the mitigating effects of provocation, and the third is in respect of Mr Estafanous’ treatment, rehabilitation and insight.
Mitigation
At this point, it is necessary to refer to the policy and Citizenship Procedural Instructions (CPI) issued by the Minister’s Department. It is appropriate to consider and apply the policy and the CPI unless there is good reason not to do so.
Issues relating to the assessment of character for the purposes of s 21(2)(h) of the Act are traversed in CPI 15.[63] In s 3.1 it provides:
[63] Exhibit 1, T3, 119-142.
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…
…
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:
o intentionally providing false personal information (such as fraudulent work experience or qualification documents)
o or other material deception during visa and citizenship applications;
o evading 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;
o knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
o concealing criminal convictions;
o fraud against the Commonwealth such as tax fraud or Centrelink fraud;
o giving 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 decisionmaker must exercise any statutory discretion bearing in mind the facts of any particular case.
…
Under s 14 of the CPI15, decision-makers should consider mitigating factors, including:
- length of time since the offence was committed
- age at time of offence
- behaviour since completing prison sentence or obligations to court
- remorse regarding their offending behaviour
- community support (referee reports etc)
- changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
Under s 14.1, provision is made for consideration of extenuating circumstances in respect of an offence:
An offence committed as a result of duress or psychological disturbance (including disturbance caused by medications other than recreational drugs), may be given less weight. Any claims of mental illness should generally be supported by a report from a psychiatrist or psychologist. Decision-makers should discuss such cases with their supervisors and consult Citizenship Operations if necessary.
While the term ‘good character’ is given no special meaning in the Act, it is a matter about which the Minister (and presently this Tribunal) must be satisfied in respect of the person applying for conferral for the person to be eligible to become an Australian citizen. In ordinary parlance the term refers to the apparent and intrinsic moral and ethical qualities of a person. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving)[64], the Full Federal Court considered the meaning of ‘good character’, albeit in a different statutory context. Davies J (with whom Nicholson J agreed) observed:
It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. See Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.[65]
[64] [1996] FCA 1660.
[65] Ibid, per Davies J at [9].
In the present context, the legislative purpose focuses on the person’s enduring moral qualities which can be objectively assessed rather than the appearance of such qualities in the perceptions of others which turn on subjective opinions about the person’s standing, fame or reputation. This construction of the words ‘good character’, relating to the person’s enduring moral qualities and their disposition, rather than their reputation at the time of the decision, has been found to be apposite for the purposes of the Act and the preceding Australian Citizenship Act 1948 (now repealed).[66]
[66] Balladraf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 698 at [10]-[11]; Spall v Minister for Home Affairs [2024] FCA 849 at [20].
Importantly, a past criminal conviction is conclusive evidence of the criminal conduct to which it related. This is relevant to but not solely determinative of the character assessment under s 21(2)(h) of the Act presently. Guilt of past wrongdoing does not preclude recovery or a finding the person is presently ‘of good character’.
On a related issue, Mr Rami Yousif, Mr Estafanous’ lawyer, informed me that Mr Estafanous had instructed him not to call any witness in support of his case, including people who had provided written character references which appear in the Tribunal documents who the Minister indicated were required for cross-examination.[67] Consequently, the Minister submitted that no weight should be given to these character references.
[67] T1, 7-10.
Following discussion of the implications for Mr Estafanous of this, time was allowed for him to discuss the matter with Mr Yousif. I was subsequently informed Mr Estafanous adhered to his previous intentions and related instructions.
While to some extent the Tribunal has an inquisitorial role, it is for Mr Estafanous and Mr Yousif to determine how best to present his case. Under s 55(1) of the Administrative Review Tribunal Act 2024 (ART Act), the Tribunal is obliged to ensure each party is given a reasonable opportunity to present their case. Thus, if Mr Estafanous chooses not to call any witness in support of his case, that is a matter for him. I am satisfied he was given a reasonable opportunity to take legal advice from Mr Yousif on the consequences of doing so.
The consequences must also be considered in relation to the nature of the character references which have been taken into evidence. Evidence of Mr Estafanous’ reputation, standing or fame in the community which does not address his disposition and the enduring moral qualities of his character is not to the point when determining if he is ‘of good character’.
Nevertheless, I accept the proposition put for the Minister that, generally, little weight should be given to the relevant content of unsworn references or statements given by witnesses who were required but not made available for cross examination, and whose evidence has not been tested. Even though the Tribunal is not a court, and it is not bound by the rules of evidence, it must ensure procedural fairness to each party. It is for this reason the general proposition can be accepted, but it does not follow that the untested character references or statements should be disregarded entirely or given no weight. To the extent they are relevant, they must be considered and given appropriate weight.
Effect of injuries
Despite the absence of directly relevant material of probative value, it is conceivable, even likely, the conduct which resulted in the offences for which Mr Estafanous was convicted is causally related to the effects of the physical and mental injuries he suffered in April 2007 and June 2008.
On 11 April 2007, Mr Estafanous was violently assaulted and robbed after attending an internet café in Sydney CBD.[68] He sustained a serious head injury. While being conveyed to the Royal Prince Alfred Hospital by ambulance, Mr Estafanous became aggressive[69]. Dr Ben Teoh, a consultant psychiatrist, reported:
The hospital records indicated that when Mr Estafanous regained consciousness, he had a Glasgow Coma Scale of 14/15, and that a brain scan indicated that he had a left frontal and temporal contusions with haemorrhage and contusions. He had surgery with right temporal lobe craniotomy and evacuation of an extradural haematoma.
Ms Estafanous was further assessed and the Brain Injury Unit at Liverpool Hospital. A neuropsychological report competed by Ms Kacey Metcalf, dated 16 January, 2008, concluded that Mr Estafanous had cognitive impairment, but Ms Metcalf added, “the severe decline noted in his non-verbal intellectual functioning and processing speed is somewhat unexpected, given the severity of the injury. It is likely that other factors, in addition to his brain injury, have impacted the current results, including his potential difficulty with fine visual discrimination and his severe emotional reaction to the alleged assault”.[70]
[68] Exhibit 2, SM2, 30.
[69] Ibid.
[70] Exhibit 2, SM5, 46.
On 25 June 2008, Mr Estafanous was the victim of another violent assault by three young persons.[71] He was punched in the head several times and treated by ambulance officers who transported him to Westmead Hospital. Police noted Mr Estafanous was released from hospital later that night, “However he stated his vision had been blurry and his head ‘pumps’ since the assault”.[72]
[71] Ibid, 51-52.
[72] Ibid, 53.
On 10 September 2009, Dr Teoh reported:
Following the assault, he has noticed a significant change in his personality and his level of functioning.
It is likely that he has cognitive impairment as a result of the brain injury. However, he has also reported significant anxiety symptoms. He is fearful of leaving his house, and he has been irritable. He complained on memory impairment. He has not been able to return to his studies.
His presentation is consistent with a diagnosis of a Chronic Post Traumatic Stress Disorder (DSM IV diagnostic criteria), complicated by neurological and cognitive deficits as a result of physical injury to the brain.[73]
[73] Ibid, 48.
On 14 May 2010, Dr Yvette Kosch, a staff specialist in rehabilitation medicine in the Brain Injury Rehabilitation Unit of the Liverpool Hospital, reported:
He has had an adjustment disorder/depression as was seeing a psychologist with the Transcultural Mental Health Team, however [Mr Estafanous] terminated the therapy. He feels that he is psychologically “back to normal”…
He reports ongoing memory problems and recently trialled cognitive rehabilitation. The latter was ceased due to compliance problems. [Mr Estafanous] feels like he can adequately manage his memory using his mobile phone calendar/alarm. His last neuropsychological assessment was in April 2007 where he had below the average estimates on non-verbal intellectual functioning, cognitive flexibility, speed of information processing and verbal fluency. In regards to his memory, he had difficulty learning new verbal information and perseverated. The severe decline in the non verbal intellectual functioning and processing speed suggested that other factors, in addition to the brain injury, such as emotional reaction and adjustment disorder, contributed to those test results.[74]
[74] Ibid, 43.
On 15 January 2020, Dr Mahmoud Abu-Arab, treating clinical psychologist, reported Mr Estafanous’ conflict with his ‘flat mate’ in 2018 (which led to him being convicted of Stalk/intimidate intend fear physical etc harm (domestic) and Assault occasioning actual bodily harm (dv) offences[75]), was “out of the client’s character”.[76]
[75] Ibid, SM1, 6-12 and 36-38.
[76] Exhibit 1, T6, 147.
On 20 January 2020, Dr Jacqueline Yousseff (an accredited mental health social worker has provided psychological treatment to Mr Estafanous since 2019) reported Mr Estafanous “has not recovered psychologically nor physically from the traumatic events in 2007 and 2008 as these events have affected him severely. He becomes defensive to try and protect himself”.[77]
[77] Ibid, 150.
On 26 February 2023, police were called to attend Mr Estafanous residence and noted:
A short time later police arrived and spoke with the patient which stated that an unvisible light is shinning into his room and is burning his eyes. The patient states that he wants police to investigate and give all the details of the people that are shinning the light into his room. Police observed the male to be unsteady on his feet and sweating uncontrollable while talking to police, also stating that police aren’t in fully police uniform as the police body worn was not on. Police have asked the patient if he suffers from any mental health with the patient stating that he did not…[78]
[78] Exhibit 2, SM2, 12-13.
Mr Estafanous alleges this incident demonstrates his concern for community safety, and it should weigh in favour of his good character.
With regard to his mental health, Mr Estafanous stated:
At all material times I was assaulted on or about 2007 and 2008 respectively I sustained severe injuries to my head and body, this has caused significant mental health issues, the injuries have affected my behaviour, I have since gotten help and treatment and I am under constant care with my psychologist since this assaults I am always scared and cautious walking the street and have been scared, at the time I was assaulted I was injured in the street and received no medical attention for a whole day after I was assaulted before I was conveyed to hospital.[79]
[79] T16, 213.
Mr Estafanous provided additional medical reports of Dr Yousseff (28 May 2024) and Dr Hanna (23 January 2020) to the Tribunal, but he declined the Minister’s request for each doctor to be called to give oral evidence. In this circumstance, I was informed by Mr Yousif the reports would not be relied upon or tendered.
Doing the best with the available evidence, I am satisfied the psychological, cognitive and personality effects of the injuries Mr Estafanous suffered when he was violently assaulted are presently ongoing. Dr Teoh’s report of Mr Estafanous experiencing a significant change in his personality as a result of the injuries is largely consistent with the reports of Dr Youssef and Dr Hanna, more than 10 years later.
It is probable Mr Estafanous suffers from Post-Traumatic Stress Disorder, anxiety, depression and reduced cognitive function which cause emotional difficulties and affect his behaviour by increasing his defensive reactivity to perceived threats and his difficulty dealing with stressful situations. I am satisfied Mr Estafanous continues to experience increased defensive reactivity in response to perceived threats and difficulty coping with stressful situations. These are material factors when determining if he is of ‘good character’.
I am satisfied these considerations mitigate the weight which should be given to Mr Estafanous’ convictions.
Provocation
One thread running through Mr Estafanous’ evidence of the circumstances underlying his convictions is that he was provoked and unfairly or badly treated by people who (dishonestly) complained about him to police, and that his responding actions were defensive.
For example, Mr Estafanous alleges on 11 June 2008 his uncle’s wife provoked him in two ways: firstly, he alleges she used a phrase (“son of a bitch”) which he considered to be deeply offensive and shaming in reference to his mother; and secondly, she threw a water bottle which struck him in the face. While these alleged provocations do not diminish or excuse the facts accepted by the court, if true they assume some significance in the context of the effects of the injuries Mr Estafanous suffered on 11 April 2007.
It can be accepted Mr Estafanous’ perceptions and his responses to the incident in June 2008 were likely affected by the effects of the injuries he sustained two months previously on 11 April 2007. Those effects include increased defensive reactivity, difficulty dealing with stressful situations and diminished cognitive functioning. To some degree, this illuminates Mr Estafanous’ behavioural response to the situation he encountered with the wife and it is a mitigating factor when considering the weight to be given to the offences he committed on 11 June 2008.
The same can be said of Mr Estafanous’ evidence that someone (impliedly HG) put a hand on his shoulder in the incident with HG on 9 October 2018 and this caused a flashback to the assault in 2007. On Dr Youssef’s untested evidence, Mr Estafanous has past mental instability with post-traumatic stress disorder which “relapsed” in the incidents which led to his conviction in 2019.[80] If true, this might shed light on his response, although Mr Estafanous denies attacking HG with metal rods or causing the injuries which are plainly visible in the photographic evidence in the Court documents.
[80] Exhibit 1, T6, 150.
I am satisfied a pattern emerges from close examination of the untested medical evidence and the factual circumstances of the incidents on11 June 2008, 28 September 2012, 22 August 2015 and 9 October 2018. The pattern is demonstrated by Mr Estafanous’ repeated inability to cope with stressful situations. Even though Mr Estafanous denies many of the facts underlying his convictions and he professes to be a calm, peaceful man, there is clear and compelling evidence of his reactivity in circumstances which are stressful or difficult, particularly in response to provocations he perceives or encounters, where his emotional reaction escalates in a disinhibited manner and the risk or threat of violence increases.
The extent of Mr Estafanous’ behavioural reactivity is demonstrated by police notes of an incident on 21 September 2016, in which Mr Estafanous was filling in a job application in a shopping centre and he was asked to leave when the centre closed:
The POI [Mr Estafanous] refused to leave because he was half way through his job application and he wished to complete it. The VIC informed him that he could save his job application and complete it tomorrow. This has upset the POI causing him to verbally abuse the VIC.[81]
[81] Exhibit 2, SM2, 16.
On the untested evidence of Dr Youssef, Dr Hanna and Dr Abu-Arab, Mr Estafanous’ disinhibited and aggressive behaviour when reacting to stressful situations and perceived provocations are out of character for him. Dr Youssef reported “Mr Estafanous is usually a calm and well-presented intelligent man”.[82] Dr Hanna stated Mr Estafanous “has a very Stable and Pleasant character”.[83]
[82] T6, 148.
[83] Ibid, 145.
This evidence reinforces the episodic pattern of Mr Estafanous’ reactive behaviour in stressful circumstances involving perceived provocations, threats (including flashback triggers) or unfair treatment.
No relevant probative material has been produced to suggest this pattern has resolved or come to an end. Mr Estafanous’ disinhibited and escalatory behaviour on the first day of the hearing strongly suggests it is presently ongoing. These are material factors which are relevant when determining if he is ‘of good character’.
Treatment, rehabilitation and insight
On 20 January 2020, Dr Youssef recommended Mr Estafanous continue with intensive counselling. The doctor expected further treatment might assist Mr Estafanous to deal with his emotional difficulties and resolve his symptoms[84]. Even though Mr Estafanous has been struggling with the effects of his injuries for more than 17 years, Dr Yousseff’s evidence (albeit untested) suggests his experience of a significant post-traumatic change in personality and his past mental instability and psychological symptoms, might not be permanent.
[84] T6, 151.
It is not clear if Mr Estafanous has engaged in further treatment of the kind Dr Youssef recommended.
Mr Estafanous explained he tries to manage his condition and he consults a doctor, a massage therapist and a psychologist when he feels negative. His evidence that he has no mental health problems which affect how he behaves, and he is not a man who loses his temper, is not consistent with the documentary record of Mr Estafanous’ conduct, which supports a contrary conclusion. It is also not consistent with his conduct during the hearing before the Tribunal.
Having carefully considered the evidence given by Mr Estafanous and the documents in evidence, I am satisfied he lacks insight into his mental condition and the effect this has on his behaviour. This is reinforced by his evidence about the circumstances underlying his criminal convictions, including his perception that in each case he was the victim of provocation or unfairness. While there might be elements of truth in his perceptions, these are outweighed by evidence of his periodic adverse reactions to stressful situations and his related disinhibited behaviour.
The remorse Mr Estafanous expressed is coloured by his powerful sense of being badly treated or wronged by the people who levelled complaints against him or who he perceives as a threat.
These are material factors when determining if Mr Estafanous is presently ‘of good character’.
Making such a determination involves a value judgement about which reasonable minds acting reasonably might differ. The distinction drawn between a person’s enduring moral qualities and their standing, fame or repute in the community is one of substance, at least to the extent that the former is a question of objective fact whereas the latter involves ‘a review of subjective public opinion’[85].
[85] Irving, per Lee J at [19].
Addressing the former, the extent to which Mr Estafanous has engaged in social and support activities with the Coptic Orthodox Church[86], the Australia Upper Egypt Charity Association[87] and the Australia Christian Alliance[88] is of material relevance. There are only scant details of such engagements in the evidence before the Tribunal, however.
[86] Exhibit 1, T1, 8.
[87] Ibid, 9.
[88] Ibid, 7.
Dr Samar Shenouda refers to Mr Estafanous “welcoming congregation [and] offering his services free of charge to assist particularly new immigrants to get settled”.[89] Hikmat Odesh, of the Australian Christian Alliance (ACA), refers to Mr Estafanous as “one of our supporters who actively participate in most of ACA social activities, such meetings, community work and educating people about Christian values and belief”.[90] Father Daoud Grgis and Father Samuel Guirguis, parish priests of St Mary’s and St Mina’s Coptic Orthodox Cathedral, describe Mr Estafanous as “an active and helpful member of our church, participating in the Church’s service and he has been an excellent role model for those of our Church who are seeking a more active and rewarding relationship with God”.[91] Talaat Nasralla, a vice president of the Upper Egypt Charity Association, refers to knowing Mr Estafanous for 14 years as “an active member in our non-profit organisation” who is “an upstanding member of our community and always helpful, volunteer his time in the service of preparing our Association’s functions of fund raising, honest, good in relationship with others and has a good character”.[92]
[89] Ibid, 8.
[90] Ibid, 7; Exhibit 2, SM1, 18.
[91] Exhibit 1, T1, 10.
[92] Ibid, 9.
It is Mr Estafanous’ evidence:
I am closer to church and volunteering has improved my behaviours and attitude on life I am now in control of my emotions and my treatment with my psychologist has helped me tremendously. I am now able to control my emotions, behaviour and reactions to incidents there is no violence on my part I am able to think through things, I am now able to manage and control my behaviour and anger this is due to my treatment.
Objectively considered, this does not align with Mr Estafanous’ conduct and behaviour at the outset of the Tribunal hearing, the first day of which was rendered abortive by his reactive and disinhibited emotional state. While one can readily accept appearing in a tribunal hearing might be stressful, his emotional response underscores the persistence of the reactive, defensive difficulty he experiences coping with stressful situations which Dr Yousseff referred to.
Prior to the injuries he suffered in 2007 and 2008, Mr Estafanous was engaged in studies in his chosen field of technology. His experience of language difficulties and separation from his immediate family did not deter him from pursuing his ambition. The injuries he suffered in April 2007 and June 2008 interrupted his efforts and adversely affected his cognitive functional capacity as well as his personality and behaviour. This notwithstanding, Mr Estafanous returned to study in 2017 and he obtained three certificates.[93] He explained the extra efforts he made, repeating units of study and engaging with a supportive teacher after hours to achieve these results. I accept he approached his studies with diligence, perseverance and commitment despite the additional difficulties he experienced as a result of the effects of his injuries and English not being his first language.
[93] Exhibit 2, SM1, 17, 20, 21.
It has now been 5 years since Mr Estafanous was last convicted of a criminal offence. It has been little more than one year since he called police to investigate lights burning his eyes at night in his room. Whether he will be able to persist with treatment and recover further from the effects of the injuries he suffered in April 2007 and June 2008 is unknown. If he does and he develops greater insight into his condition and his behaviour, the risk he might engage in further violent conduct can be expected to diminish.
On balance, I am satisfied these considerations mitigate the seriousness of Mr Estafanous’ past criminal convictions.
Good character
The ‘good character’ threshold under s 21(2)(h) of the Act requires positive satisfaction.
Positive satisfaction requires relevant evidence and material of probative value. Generally, bare assertions or protestations by an applicant seeking conferral of Australian citizenship are not sufficient.
Grant of Australian citizenship confers rights and responsibilities within the Australian community. It is not bestowed lightly. Questions about the enduring moral qualities of an applicant’s character are informed by the values a citizen is expected to uphold. As the Tribunal explained in Zheng v Minister for Immigration and Citizenship[94]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another. The ways are not finite.
[94] [2011] AATA 304 at [120].
The sharp point in this case is the issue of satisfaction. To be satisfied Mr Estafanous is presently of good character the extent of his adherence to the values I have discussed must be measured by what he has said and done, by his conduct and his actions.
The Tribunal must make the correct or preferable decision on the available materials and the evidence before it.
The preponderance of the available materials address Mr Estafanous’ offending conduct and his convictions, and the effects of his injuries. There is very little to go on when considering what Mr Estafanous has done in the last 5 years. People who might have been able to give detailed evidence about his activities, his conduct and his disposition in this period have not been called to do so. Where character references have been provided, the referees have not been made available and their accounts have not been tested. Frankly, there are only scant materials in support of Mr Estafanous’ case, which substantially relies on his own evidence.
This is problematic. Without being critical of Mr Estafanous, his evidence cannot be accepted as reliable. In parts it is inconsistent. In other parts it is not coherent. It frequently strays into irrelevant lengthy observations, generalities and argument. In all likelihood, these are consequences of mental illness and the persisting effects of the injuries Mr Estafanous suffered in April 2007 and June 2008.
I am sympathetic to Mr Estafanous’ case. He travelled to Australia as a student to obtain education and a qualification. Instead, he was violently assaulted and severely injured, and left in a condition where he is unable to work and has struggled to resume his studies. These are not matters of his choosing and they serve to mitigate aspects of his subsequent conduct when determining if he is presently of good character.
Nevertheless, good character cannot be assumed. It must be established by relevant probative materials or reasonably drawn inferences to the satisfaction of the decision-maker, presently this Tribunal.
The lack of current medical evidence addressing the nature and efficacy of treatments Mr Estafanous may have obtained and the present state of his mental health is problematic. On the available materials, noting the Sentencing Assessment report on 5 June 2019[95], the Tribunal cannot make relevant findings about such matters and the present risk Mr Estafanous might react violently to stressful circumstances.
[95] Exhibit 2, SM1, 46-47.
Unfortunately for Mr Estafanous, the materials are not sufficient to meet the threshold of satisfaction required to positively find that he is ‘of good character’ for the purposes of s 21(2)(h) of the Act. The untested witness evidence points to positive elements of his character, but the available materials are not sufficient to enable the Tribunal to be satisfied such a finding is presently justified.
Consequently, Mr Estafanous does not presently meet the eligibility criteria for conferral of Australian citizenship and, under the terms of s 24(1A) of the Act, his application must be refused.
This is a value judgment informed by relevant evidence. It does not mean Mr Estafanous is of bad character, and I make no such finding. It does not mean his aspiration to obtain Australian citizenship is at an end. With more time the effects of continuing treatment may assist his further recovery and enable greater insight into his condition. More time may also enable Mr Estafanous to make further contributions to the Australian community, evidence of which may support any further application for grant of citizenship.
With regard to his question about how long a person such as he must wait before being welcomed into the Australian community as a citizen among equals, there is no fixed answer. I would simply observe time provides opportunity for Mr Estafanous to engage in further conduct demonstrating enduring moral qualities and adherence to values which bind citizens in the Australian community.
Decision
The Tribunal affirms the decision under review.
Date(s) of hearing: 2, 3 & 12 December Solicitors for the Applicant: Mr. R Yousif, Hegarty Yousif Pty Ltd Solicitors for the Respondent: Mr. A Zhang, Clayton Utz
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