Etreby and Minister for Home Affairs (Citizenship)

[2018] AATA 4448

Etreby and Minister for Home Affairs (Citizenship) [2018] AATA 4448 (29 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1843

Re:Adam Etreby

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:29 November 2018

Place:Sydney

The Tribunal affirms the decision under review.

.......................[sgd].............................................

Senior Member K Raif

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – permanent resident – refusal of citizenship – good character – criminal convictions – other conduct – application of Citizenship Policy – decision affirmed

LEGISLATION

Citizenship Act 2007 (Cth) ss 21, 24, 52 

CASES

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

Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

Australian Citizenship Instructions (Cth) issued 1 July 2014

REASONS FOR DECISION

Senior Member K Raif

29 November 2018

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”).

2. The applicant was born in Iraq in November 1984. He entered Australia in June 2008 and was subsequently granted a permanent visa in May 2009.

3. The applicant applied for Australian citizenship by conferral on 3 February 2017. On 22 March 2018 a decision was made to refuse that application because the delegate was not satisfied that the applicant was of good character as required by s. 21(2) of the Citizenship Act. The applicant seeks review of the delegate’s decision.

4. The issue before the Tribunal is whether the applicant meets the eligibility requirements for the conferral of Australian citizenship, in particular, whether the applicant is of good character at the time of the decision, as required by s. 21(2)(h) of the Act. For the reasons that follow, the Tribunal has concluded that the applicant does not meet these requirements and that the decision under review should be affirmed.

   RELEVANT LAW

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of that Act provides that if a person makes an application under s. 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 52 permits a person to make an application to the Tribunal for review of the decision under s. 24 to refuse to approve the person becoming an Australian citizen.

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

7. The term “good character” is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy (“the Policy”) and the Australian Citizenship Instructions (“the ACIs”). The Tribunal is not bound to strictly apply the Citizenship Policy but such policy should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: ReDrake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

8. With respect to the definition of “good character”, the Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

   Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character“ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion.

9. The Policy states that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour as being a manifestation of their essential characteristics.

10. In Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815, the Tribunal articulated its approach to interpreting the language of the good character test, as it then appeared in s. 13(1)(f) of the Australian Citizenship Act 1948 (Cth) (at [18]):

    The wording of the test is important. It does not require that the Minister form an adverse view of the applicant's character. The Minister must be positively persuaded that the applicant is of good character.

11. The Policy sets out a 'non-exhaustive' list of characteristics of good character. Relevantly, a person of good character would, inter alia: respect and abide by the law in Australia and not cause harm to others through their conduct. The Policy states that the decision-maker is to weigh up certain factors, applying community standards. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant has; the amount of time that has lapsed since offending; whether the applicant has demonstrated that he can uphold and obey the law; whether he has accepted responsibility and shown remorse for his conduct; and any extenuating circumstances relating to the offences.

    IS THE APPLICANT A PERSON OF GOOD CHARACTER?

12. The applicant’s criminal history is set out in the primary decision record. It indicates that the applicant has been convicted of the following offences between February 2014 and February 2016:

    14/02/14         Destroy or damage property             

    dismissed s. 10 – compensation $115

    05/02/16         Common assault  

    s. 10 bond – 18 months

    05/02/16         Assault occasioning actual bodily harm        

    s. 10 bond – 18 months

13. The delegate wrote to the applicant inviting his comments on the above information and the primary decision record indicates that the applicant did not respond. In his application for review, the applicant states that he has not received that letter and was not informed of it. The applicant told the Tribunal that he had not been given the opportunity to defend his case.

14. The Tribunal has considered the circumstances of the offences. The police fact sheets indicate that the first incident related to the applicant having an argument with a flatmate over housekeeping and the applicant smashing a glass table and a frame that belonged to his flatmate. Despite pleading guilty and the police record indicating that the applicant had made a full admission of the facts, in his oral evidence to the Tribunal the applicant denied these factual circumstances. The applicant initially denied breaking the table and the frame and subsequently said that he could not recall what happened. The applicant suggested that he did not intentionally break the table but maybe it was damaged during the fight, which contradicts the information in the police facts sheet.

15. The two later incidents relate to an occasion when the applicant and a flatmate had a verbal argument which resulted in a fight. Again, despite the applicant’s concession that there was an agreement on the facts, the applicant told the Tribunal in oral evidence that he could not recall the circumstances of these offences and that he pleaded guilty because that was the advice of his lawyer.

16. While the applicant told the Tribunal that he could not recall the circumstances of these offences, the applicant denied that he broke the table during the first incident or a mug during the latter incident, Ms Hassan’s evidence to the Tribunal is that the applicant told her that it did occur. The Tribunal is not entirely convinced that the applicant could not recall the circumstances of the incidents leading to the convictions given his ability to recall and recount these circumstances to Ms Hassan. It is not apparent from the applicant’s oral evidence that the applicant feels remorseful about his past conduct.

17. Following the application for citizenship, the applicant has also been convicted of possession of prohibited drugs in July 2017 and fined $600.

18. There are also before the Tribunal records relating to the applicant’s driving infringements and the use of public transport. These show that the applicant had been issued with several infringement notices and warnings for travelling on trains without tickets or without a correct ticket, not giving a ticket for inspection, not obtaining a driver license, using mobile phone while driving, etc. In oral evidence, the applicant denied some of these offences.

19. The applicant’s offences are multiple. The damage to property, assault and assault occasioning actual bodily harm are offences that involved violence and while the Tribunal acknowledges that during the last incident the applicant claimed self-defence, he was found guilty of the offence. The applicant provided to the Tribunal a letter from his landlord stating that the fight was not his fault and was initiated by the other party. The police records indicate that the prosecution formed the view that the applicant did not use reasonable force in the circumstances.

20. The most recent offence relates to possession of prohibited drugs and that is also a serious offence. The applicant’s evidence to the Tribunal is that he continued to use drugs until recently but he states he has no addiction.

21. There are also multiple offences relating to the applicant traveling without a ticket or without an appropriate ticket. It also appears that the applicant had been driving without a license. These may be relatively minor matters on their own but when considered overall, they demonstrate, in the Tribunal’s view, the applicant’s persistent disregard for the law. The Tribunal is not satisfied that the applicant has demonstrated that he can uphold and obey the law.

22. The Tribunal is mindful that the time that has passed since some of the offences is brief. The most recent offence relating to the possession of a prohibited drug occurred in July 2017, after the applicant made the application for the citizenship. The earlier offences occurred in 2014 and 2016. In the Tribunal’s view, not much time has elapsed since the offending conduct.

23. The applicant provided evidence to the Tribunal that he completed study in Australia and had previously operated his own business. The applicant states that he is of good character. In support of his criminal proceedings, the applicant provided a number of character references and there are additional character references before the Tribunal. Ms Hassan gave oral evidence to the Tribunal about her belief that the applicant is a person of good character and there is evidence from Dr Younan, who has been treating the applicant for a number of years. The Tribunal accepts that those who provided statements and character references believe the applicant to be a person of good character.

24. In his letter to the Tribunal of 9 June 2018 the applicant states that he is of good character and that he wants to be a law abiding Australian citizen and that he has ‘learned a lot’. However, within a short time of this letter the applicant was found in possession of prohibited drugs and convicted of that offence. In his oral evidence, the applicant stated that in his letter to the Tribunal he was referring to the domestic violence offences and while the applicant later said he does not want to engage in any offences, the applicant admitted to smoking marijuana as recently as a month earlier. That is, having been convicted of drug possession – knowing that such conduct was contrary to the Australian laws – the applicant continued to engage in criminal conduct. The Tribunal is not satisfied the applicant’s expression of remorse and stated desire to be a law-abiding citizen are genuine expressions. The Tribunal does not accept that the applicant has a genuine intention of abiding by the Australian laws.

25. In oral evidence to the Tribunal the applicant stated that he changed addresses several times each year in the past few years. His citizenship application form refers to two addresses. The applicant explained to the Tribunal that when he previously made an application for citizenship, his agent told him that it is better to have a stable address and that it was insignificant. The applicant’s evidence indicates that he was willing to provide untruthful information to the Department of Home Affairs because he believed it would be helpful to his application. While the Tribunal acknowledges that the applicant’s address may be insignificant, the applicant’s willingness to provide inaccurate information to a government agency is nevertheless of concern to the Tribunal because it poorly reflects on his character. 

26. The Tribunal has also considered the report of Dr Younan, who diagnosed the applicant as suffering from an adjustment disorder with depressed and anxious mood and prescribed medication. Dr Younan states that throughout his contact with the applicant, he found the applicant to be of good character. The Tribunal acknowledges that evidence and accepts that Dr Younan had been treating the applicant regularly for about two years and has prescribed medication to the applicant. Dr Younan states in the written report that the applicant’s depression was a factor contributing to the offences referred to and that other than the offences referred to, the applicant had never in the past had any problems with the law. It is not apparent that Dr Younan was aware of all of the applicant’s convictions and the other conduct relating to his driving and the use of public transport. Nevertheless, the Tribunal accepts that Dr Younan considers the applicant to be a person of good character.

27. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal notes that the applicant has been convicted of a number of offences. The Tribunal has formed the view that limited time has passed since the offending conduct, particularly as the most recent offence occurred in 2017. The applicant also admits to ongoing drug use. In the Tribunal’s view, the applicant has not demonstrated that he can uphold and obey the law. The applicant has expressed remorse for his conduct but the Tribunal does not consider that expression of remorse to be genuine. The applicant does not appear to have accepted responsibility for his actions, as he denied that he engaged in the offending conduct in his oral evidence to the Tribunal.

28. Having regard to the entirety of the applicant’s circumstances, the Tribunal is not satisfied that the applicant can distinguish right from wrong and conform to the rules and values of Australian society. The Tribunal is not satisfied the applicant is a person of good character. The Tribunal is not satisfied the applicant meets s. 21(2)(h) of the Citizenship Act. He is not entitled to be conferred Australian citizenship. This finding does not preclude the applicant from making another application in the future.

    CONCLUSION

29. Having found that the applicant does not meet the eligibility requirements for conferral of Australian citizenship, the Tribunal affirms the decision under review.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

.......................[sgd].............................................

Associate

Dated: 29 November 2018

Date(s) of hearing:	27 November 2018
Applicant:	In person
Solicitors for the Respondent:	A Ray, Clayton Utz