Fahd and Minister for Immigration and Border Protection

[2014] AATA 274

[2014] AATA 274

Division	General Administrative Division
File Number	2013/1901
Re	Abdallah Fahd
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	8 May 2014
Place	Perth

The decision under review is affirmed.

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

S D Hotop

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – citizenship – applicant arrived in Australia in 2003 aged 16 years – applicant convicted of offences in period from 2004 to 2011 – no custodial sentences imposed – Tribunal not satisfied that applicant presently a person of good character – applicant not eligible to become Australian citizen – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 20, s 21 and s 24

CASES

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

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

SECONDARY MATERIALS

Australian Citizenship Instructions, Ch 10

REASONS FOR DECISION

Deputy President S D Hotop

8 May 2014

Introduction

1. Abdallah Fahd (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”), dated 22 April 2013, refusing his application for Australian citizenship.

   The Evidence

2. The evidence before the Tribunal comprised the “T Documents” (T1–T23, pp 1-81) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and:

   ·Exhibits A1 – A4 tendered by the applicant;

   ·Exhibits R1 and R2 tendered by the respondent; and

   ·the oral evidence of the applicant.

   The Factual Background

3. The following background facts are not in dispute and are found by the Tribunal on the basis of the T Documents and Exhibit R1.

4. The applicant was born in November 1986 in Kuwait.

5. The applicant first entered Australia on 7 June 2003 as the holder of a Class BA Subclass 202 Global Special Humanitarian visa.

6. Since his arrival in Australia the applicant has departed Australia on four occasions and has been outside Australia for the following periods:

   ·from 11 March 2006 to 19 May 2006;

   ·from 20 November 2006 to 15 February 2007;

   ·from 13 July 2010 to 27 October 2010; and

   ·from 30 June 2013 to 28 September 2013. (Exhibit R1)

7. On 29 May 2012 the applicant lodged with the (former) Department of Immigration and Citizenship (“Department”) a completed “Application for Australian citizenship” form signed by him and dated 21 May 2012, in which he (inter alia) :

   ·described his present country of citizenship as “Stateless”;

   ·indicated that he first entered Australia as the holder of a permanent visa on 7 June 2003;

   ·answered “yes” to the question:

   “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any spent convictions)?”

   and referred to three offences, namely, assault, fraud, and stealing a car. (T6)

8. A CrimTrac report, dated 23 October 2012, by the National Police Checking Service provided the following information regarding the applicant’s criminal history in Australia:

Source	Court	Date	Offence	Result
WA	Childrens Court	08/06/2004	No Motor Drivers Licence	[SPENT][JUV][Counts] 1 FINE: $25
WA	Childrens Court	08/06/2004	Excess 0.08%	[SPENT] [JUV][Count 1]FINE: $700
WA	Perth Magistrates Court	31/01/2006	Drive Contrary to Learner’s Permit	[Counts1]FINE: $150;MDL CANC & DISQ 3 MTHS
WA	Perth Magistrates Court	13/09/2006	Gains Benefit by Fraud	[Counts1]ADULT CRO: 12 MTHS $1000 UNDERTAKING
WA	Perth Magistrates Court	13/09/2006	(Att) Gains Benefit by Fraud	[ATT][Counts 1] ADULT CRO:12 MTHS $1000 UNDERTAKING
WA	Fremantle Magistrates Court	05/02/2008	Assault Public Officer	[Counts1] $1500
WA	Fremantle Magistrates Court	05/02/2008	Trespass on any part of railway not being a part to which the public are allowed access	[Counts 1] $150
WA	Fremantle Magistrates Court	05/02/2008	Give False Personal Details to Police	[Counts1] $200
WA	Fremantle Magistrates Court	05/02/2008	Assault Public Officer	[Counts 1] $1500
WA	Perth Magistrates Court	02/04/2008	Steal Motor Vehicle (as defined in section 371A Criminal Code)	[Counts1]FINE:$500, Mdl Disqualified S51: 3 mths mand conc
WA	Joondalup Magistrates Court	21/03/2001	Driver fail to ensure passenger >4years<7years has proper restraint	[Counts 1] FINE: $600
WA	Joondalup Magistrates Court	21/03/2011	No Authority to Drive – Fines Suspension	[Counts1] FINE: $200
WA	Joondalup Magistrates Court	21/03/2011	Driver fail to ensure passenger <6 months has child restraint	[Counts1] FINE: $600

1. By letter dated 7 February 2013, an officer of the Department informed the applicant of the offences listed in the abovementioned CrimTrac report and enquired of the applicant whether he disputed any of those offences. (T11)

2. In response to the abovementioned letter of 7 February 2013 the applicant provided the following handwritten statement, dated 8 February 2013, to the Department:

   “…

   I’m writing to the department to explain my criminal conviction from the past.  I will be doing them from the dates in order for you’s to understand.

   1)8-6-2004 I was a teenager at the time and can’t remember why I drove without a licence.

   2)31-1-2006 I can’t remember that charge.

   3)13-9-2006 My friend’s girlfriend brought me a laptop on her aunty’s credit card as we agreed that I would pay her back the following day.  I was not aware the credit card was stolen.

   4)13-9-2006 as above.

   5)5-2-2008  I was drinking in Freemantle and had blacked out and  can not remember what had happen.

   6)5-2-2008 was drunk and cant remember giving false details.

   7)5-2-2008 I was drunk and cant remember trespassing on the railways.

   8)2-4-2008  At the time I was working for a trolley company for about two weeks. They didn’t pay me for the hours I had done so I hold the car with me until they finally paid me after two hours.

   9)21-3-2011 My brother wife was really sick and needed medical treatment.  I only drove her and her children around the corner to the doctor’s.  She didn’t have a car seat and there was no one to watch her kids.

   10)  21-3-2011 I had just returned from overseas and was not aware my licence was under suspension.

   …

   I love Australia, I’m a Stateless man and feel I belong to this country.

   I have many many friend and family here and one day hopefully one day I can rise my own family here.

   I feel like a outcast because all my brother and sister’s have Australian Citizenship but me.

   I have been here since a teenager and have no plans of leaving as this is my home, this is my country.

   I’m deeply sorry for the past conviction I was only young and dumb at that time as I was only try to fit in with the other teenager.

   But really I respect Australia’s rules and law’s and belong to this wonderful country.  I have never wanted anything more in my life.

   Please could you kindly help me.

   … [sic]” (T12, pp 60-62)

3. In a typed version of the abovementioned statement, the foot of each page of which has been signed by the applicant, he also accepted that he had committed the offences which, in his handwritten statement, he had stated that he could not remember. (T12, pp 63-65)

4. In response to a letter from the Department, dated 27 March 2013, the applicant provided to the Department three character references (T18, T19, T20).

5. On 22 April 2013 a delegate of the respondent refused the applicant’s application for Australian citizenship on the ground that the delegate was not satisfied that the applicant met the “good character” requirement in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

   The Relevant Legislation

6. Division 2 of Part 2 of the Australian Citizenship Act 2007 (Cth) (“the Act”) contains the following relevant provisions:

   “ Subdivision B – Citizenship by conferral

   …

   20     Requirements for becoming a citizen

   A person becomes an Australian citizen under this Subdivision if:

   (a)the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and

   (b)if the person is required to make a pledge of commitment to become an Australian citizen -  the person makes that pledge.

   Note: …

   21     Application and eligibility for citizenship

   (1)A person may make an application to the Minister to become an Australian citizen.

   Note 1: …

   Note 2: …

   General eligibility

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

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

   (b)   is a permanent resident:

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

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

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

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

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

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

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

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

   …”

   24Minister's decision

   (1)    If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

   Note:…

   (1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

   …”

   Departmental Policy

7. The Australian Citizenship Instructions (“ACIs”), reissued by the Department of Immigration and Border Protection on 23 November 2013 (Exhibit R2), state, by way of introduction, that they ”provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”.  Although the ACIs do not have the force of law and the Tribunal is not legally obliged to apply them, it is appropriate for the Tribunal to have regard to their contents in making its decision.

8. Chapter 10 of the ACIs, which deals with the topic of “Character”, commences as follows:

   “10     Overview to Chapter 10

   ·10.1 Overview

   10.1.1 Background

   The Act requires that applicants aged 18 and over who seek to become Australian citizens must be of ‘good character’. Good character is not defined in the Act. The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’.

   This chapter also provides a framework for assessing an applicant under the ‘good character’ provisions. It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis, that an applicant is, or is not, of good character.

   10.1.2 Summary

   ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship (see section 10.3 What is good character).

   …”

9. Section 10.3 of the ACIs refers to Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (see paragraph 33 below) and states (inter alia):

   “ In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:

   ·characteristics which have been demonstrated over a very long period of time

   ·distinguishing right from wrong

   ·behaving in an ethical manner, conforming to the rules and values of Australian society.

   The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.

   This broad definition means that a decision maker can 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 processes.

   …”

10. Reference is made in the ACIs to the Preamble to the Act, and to the pledge of commitment which must generally be made by a person to become an Australian citizen (see ss 26, 27, 28 of the Act).  The Preamble to the Act states as follows:

    “The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    (a)by pledging loyalty to Australia and its people; and

    (b)by sharing their democratic beliefs; and

    (c)by respecting their rights and liberties; and

    (d)by upholding and obeying the laws of Australia.

    ...”

    The pledge of commitment as a citizen of the Commonwealth of Australia is set out, in two alternative forms, in Schedule 1 to the Act as follows:

    “1  Form of pledge no 1

    From this time forward, under God, I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.

    2  Form of pledge no 2

    From this time forward, I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.”

11. Section 10.5 of the ACIs relevantly states:

    “10.5   Framework for making ‘good character’ decisions

    ·   10.5.1  Background

    This section sets out a range of considerations for decision makers to take into account when assessing good character.  This list is not exhaustive.  The factors may have different weights, depending on the circumstances of the case.  This framework is consistent with the values and standards outlined in the Preamble to the Act and the pledge.

    …

    ·   10.5.2  Factors to take into account

    Behaviour – why the applicant might not be of good character

    Offences

    ·     Has the applicant committed any offences and if so, did they admit that in their citizenship application? Passenger card declarations could also be checked for an acknowledgement of criminal convictions.

    Note: Decision makers are to accept a Court’s findings concerning an offence to be correct and to put weight on it. It is not the role of the decision maker to ‘retry’ the offence, even if the applicant claims that they were wrongly convicted. If the conviction or sentence has been appealed and the appeal decided, the decision maker should take the outcome of the appeal into account.

    ·     If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.  …

    ·     If the applicant has committed an offence, was it serious or minor.  Serious offences include, but are not limited to:

    ·     crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)

    ·     war crimes, crimes against humanity and/or genocide

    ·     crimes against children

    ·     drug trafficking (including importation and supply)

    ·     people smuggling

    ·     fraud (including identity fraud)

    ·     harassment or stalking

    ·     terrorist activity

    ·     extortion

    ·     illegal pornography, including child pornography

    ·     breaches of immigration law, including those that result in removal or deportation from Australia or another country

    ·     other offences incurring prison sentences of 12 months or more.

    Minor offences include:

    ·     shoplifting

    ·     traffic offences which have been included in a criminal record

    ·     offences which do not lead to a conviction or a sentence.

    ·     Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or the disabled, or others who trusted the applicant?

    ·     For more complex cases, consider any Victim Impact Statements that are available. In some cases, it may be relevant to look at literature, such as through an internet search, about the long-term impact of certain offences, eg sexual assault.

    ·     Was the offence pre-meditated?

    ·     Consider the length of the sentence, if one has been imposed. Any sentence is relevant to a consideration of good character but weight should be given to a serious prison sentence, which is defined in the Act as being a period of at least 12 months.

    ·     Are there any ongoing obligations in relation to the sentence received, such as a good behaviour bond following conviction? Note: Section 24(6) prohibits citizenship being approved in such circumstances. …

    ·     Look at decisions made by courts about the applicant, particularly sentencing remarks, as they give an insight into the character of the applicant. Sentencing information can be obtained by application to the relevant court. Parole reports may also give useful information …

    ·     How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?

    ·     a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not ‘uphold and obey’ the law if citizenship is conferred on them.

    …

    Mitigating Factors – could the applicant be of good character anyway

    Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.

    ·     What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? Note: There can be a delay between the time of the offence and conviction (if any) for a variety of reasons, such as delays in being charged and/or protracted court cases. Each case is to be assessed on its own merits and issues such as the seriousness of the offence, the nature of the offence, whether another person was harmed and the rehabilitation process needs to be assessed. In the case of a serious offence, a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character.

    ·     Has the applicant accepted responsibility and shown remorse for their conduct?

    ·     How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?

    ·     It is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.

    ·     Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws? For example, have they undertaken drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other program which addresses risk factors relating to their offending? Have they moved away from bad influences, for example by disassociating themselves from a peer group?

    ·     What was the applicant’s age at the time the offence was committed? If the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character.

    ·     Were there any extenuating circumstances relating to the offence? For example, an offence committed under duress or under periods of psychological disturbance (including involuntary effects of medication or temporary psychological conditions but not including under the influence of recreational drugs), may be given less weight. Any claims of mental illness should be supported by a Psychiatrist’s report. Decision makers should discuss such cases with their supervisors and consult the Citizenship Helpdesk if necessary.

    ·     Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character. Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship. It is open to decision makers to contact individuals who have provided a referee report for the applicant.

    ·     See section 10.6.5 References.

    …

    ·     10.5.3 Factors not to take into account

    Travel plans

    ·     Sometimes applicants will argue that they need to become Australian citizens urgently because they need to travel. Generally, this is not a relevant factor and a decision must be made on the merits of the application itself.

    ·     It is the responsibility of the applicant to maintain the currency of any travel documents issued by their other country of citizenship, where possible. If there are particular reasons why this could not be done, the applicant could contact the Department of Foreign Affairs and Trade concerning emergency documents which may be available, depending on the circumstances of the case.

    …

    ·     10.5.4 Weighing up the decision

    Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

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

    ·what is there to demonstrate that the applicant has upheld and obeyed the law

    ·has the applicant behaved in accordance with Australia's community standards

    ·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.

    …”

1. Section 10.6.5 of the ACIs states:

   ·     10.6.5 References

   Referee reports can shed light upon an applicant's character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of ‘good character’. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.

   More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc. If the referee provides adverse information in these discussions, this information should be put to the applicant for comment.

   It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision makers should take particular care with references from victims of domestic violence. There is a risk that such statements have been coerced either directly or indirectly.”

   The Applicant’s Evidence

2. The applicant confirmed that he had signed the statements referred to in paragraphs 10 and 11 above and that their contents are true and correct.

3. The applicant said that he got married about 8 months ago and that his wife lives in Jordan and he travelled there for the wedding.  He said that his wife is due to give birth in about 3 months and that he is hoping to bring her and their child to Australia.

4. The applicant said that, with his “current passport”, there is no guarantee that he will be able to obtain a visa to visit Jordan in the future.

5. As regards his employment in Australia, the applicant said that, after completing Year 11 at high school:

   ·he first worked at a metal factory in about 2008;

   ·he then worked at a strawberry farm for a short period;

   ·he then got a job pushing shopping trolleys at Galleria Shopping Centre in Morley;

   ·he then worked at a recycling factory/plant in Bayswater and this was his last employment, although he cannot recall when he was so employed;

   ·he then bought a “towing truck” with a view to commencing his own business but this plan “did not succeed because the truck was so old”;

   ·he is presently unemployed for health reasons.

6. The applicant said that, since his last offence about 3 years ago, he has “grown up”.

7. In cross-examination the applicant gave evidence to the following effect:

   ·as regards the offences of which he was convicted on 5 February 2008, he was “completely drunk” and “unconscious”;

   ·as regards the 2 offences of assaulting a public officer of which he was convicted on 5 February 2008, the two railway security officers assaulted him – they attacked him and threw him to the ground “without any mercy as if [he] was an animal”;

   ·they were two big men and he was a little person unable to defend himself so he took off his belt and hit one of them with it in order to defend himself;

   ·he was drunk and they started hitting him first instead of calling the police;

   ·they wrote a report about the incident saying they had done the right thing but they are really “very bad people”;

   ·those security people, most of the time, think they are the “superior people”, and they “should be looking after the safety of people, not the other way around”.

8. The applicant also said that the offences of 8 June 2004 regarding driving without a licence and driving with an excess of 0.08% did not relate to him.

9. The applicant said that he has not committed any offences since his last conviction on 21 March 2011 and that, since that time, he has become “a more calm person”.

   Additional Evidence Relied On by the Applicant

10. Three character references, previously provided by the applicant to the Department, are included in the T Documents, namely:

    ·a letter, dated 5 April 2013, from Noelene Butler (T18);

    ·a letter, dated 7 April 2013, from Mark Saleh (T19); and

    ·a letter, dated 8 April 2013, from Mazen Albattal (T20).

    The Tribunal notes that Ms Butler and Mr Saleh have each since written a more detailed character reference, and these are set out in paragraph 30 below.  Mr Albattal’s letter states as follows:

    “Re: Abdallah Ghazy Fahad [sic]

    The purpose of this is to provide a character reference for Mr Abdallah Ghazy who I have known as a friend for a period of four years.

    I have gotten to know Abdallah very well over this time and I can confirm that he is a man of great integrity, is extremely dedicated to his family and work.

    As a friend Abdallah Ghazy is a standout.  He is loyal, honest, considerate and a supportive individual.

    I really cant think of anything of a consequence or a negative when it comes to Abdallah.  All in all I would have to say that Abdallah Ghazy is a fine, well balanced person with an abundance of positive qualities.” (T20)

11. The applicant tendered in evidence the following character references:

    ·a letter, dated 15 November 2013, from Salah Sultan which states as follows:

    “I declare that I know Mr Abdallah Ghazy  for the period of 8 years and I know his family for a very long time.

    I would confirm that Mr Abdullah Ghazy is hard working man with great integrity and dedicated to his family

    I know about his past mistakes and I knew he learn a lot out of them to be the man he is he now being loyal and honest and very supportive

    He was a great help to his brother during bad time and always do his best to help out all in all he is a great guy” (Exhibit A1);

    ·a letter, dated 20 November 2013, from Noelene Butler which states as follows:

    “I confirm that I have known Mr Abdallah Ghazy Fahd for 6.5 years.

    He is the uncle of my previous foster child.

    At all times I have found Abdallah to be dependable, reliable, hard-working, conscientious, honest, polite, courteous and always very helpful in hard situations.  He has been pivotal in helping his brother and sister-in-law to regain custody of their first child and has assisted in keeping the relationship alive between our two families to make life a little better for his nephew, which has been of great benefit for the child.

    I am aware that he has previously been charged with offences when he was a teenager, but since I have got to know him I have never seen any evidence of any illegal activity by him.

    I know Abdallah has recently been married to a girl in Jordan and she is now expecting their first child and he is in the process of relocating her to Australia and I have offered my assistance with this.

    …” (Exhibit A2);

    ·a letter, dated 25 November 2013, from Mark Saleh which states as follows:

    “I Mark Saleh have personally known Abdallah Ghazy Fahd for nine years.  During this time he has become a very close family friend to me.  I have found him to be very reliable and trustworthy.  I am aware of his past history such as driving contrary to learner permit, gains benefits by fraud, assaulting a public officer, and stealing a motor vehicle but through these years, I have seen him grow up to be a very hardworking mature individual.  Abdallah got married on 14th of August 2013, he and his wife are expecting their first child.  I believe Abdullah will make a great dad as he is wonderful with my children.

    We have gone out on many trips together and he has shown generosity and respect when I have needed his assistance or help with anything.  As a friend Abdallah is a real honest, considerate and supportive person who has the ability to see and understand things from another person’s perspective.

    I would recommend Abdallah as a trustworthy person who can be relied upon when life gets difficult.  He will prove to be a valuable colleague and a friend for those who are fortunate to spend time with him.

    …” (Exhibit A3)

12. The applicant also tendered in evidence a letter from Dr Vipin Lal, dated 11 June 2013, stating that the applicant is “a patient … who is likely suffering from PTSD and anxiety”, and enclosing two recent Discharge Summaries issued by Joondalup Health Campus, Emergency Department, relating to the applicant’s suffering from left chest pain, PTSD and anxiety (Exhibit A4).

    The Issue

13. The issue for the Tribunal’s consideration and determination is whether it is satisfied that the applicant fulfils the “good character” requirement in s 21(2)(h) of the Act.

    Analysis

    Is the applicant presently a person “of good character”?

14. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Full Court of the Federal Court of Australia considered the meaning of the phrase “good character” in the Migration Act 1958 and the Migration Regulations 1994. Davies J (with whose reasons R D Nicholson J agreed) said (at 425):

    “ … 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 The 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.”

    Lee J said (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 … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”  (citations of authorities omitted)

15. In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said (at 197):

    “ The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.”

16. The applicant conceded (rightly, in the Tribunal’s opinion) that he was not a person of good character when he committed the various abovementioned offences of which he has been convicted (set out in paragraph 8 above) – although the Tribunal notes that, in his oral evidence, he denied that he had committed the traffic offences of which he was convicted on 8 June 2004.

17. Although the applicant’s recorded criminal history does not include any convictions for serious offences for which a custodial sentence was imposed, it nevertheless represents a pattern of criminal offending which commenced in 2004, when he was 17 years old and less than 12 months after he first arrived in Australia, and continued periodically over the next 6-7 years, culminating in his most recent convictions on 21 March 2011.  In the Tribunal’s opinion, this pattern of behaviour, as stated in section 10.5.2 of the ACIs, “shows a disregard for the law and indicates that the applicant may not ‘uphold and obey’ the law if citizenship is conferred on [him]”.

18. The question is whether, having regard to the evidence before it, the Tribunal can be satisfied that, since his last convictions on 21 March 2011, the applicant has been rehabilitated and has reformed such that the Tribunal can be satisfied that he is now a person “of good character” within the meaning of s 21(2)(h) of the Act.

19. In his oral evidence and submissions the applicant asserted that he is very remorseful for his offending and has since “grown up” and is a “good person” and has not committed any further offences.  However, the applicant has not provided any objective evidence of any positive action taken by him in order to rehabilitate himself, such as counselling (including alcohol counselling).  The Tribunal, furthermore, has serious reservations regarding whether the applicant has fully accepted responsibility for his offending, having regard to the contents of his abovementioned statements (see paragraphs 10 and 11 above) and, especially, his oral evidence regarding the circumstances of the two offences of assaulting a public officer of which he was convicted on 5 February 2008 (see paragraph 26 above).

20. As regards the applicant’s employment in Australia, his evidence (see paragraph 24 above) was somewhat vague but the Tribunal infers from that evidence that he has had several short-term jobs (mostly, in 2008) and has not been in long-term, stable employment, and has been unemployed for a substantial period of time, and is presently unemployed.  In this connection, the Tribunal notes that he has not provided a character reference from a former employer or a former fellow employee or other person who has first-hand knowledge of his employment performance.

21. The applicant has, however, provided several character references (set out in paragraphs 29 and 30 above).  Having considered those references, the Tribunal is of the opinion that relatively little weight should be attached to them because:

    ·each of them was provided by a friend and none of them can be regarded as truly objective;

    ·their contents are general and superficial and none of them indicates that the author has a substantial knowledge of the circumstances of the applicant’s criminal history;

    ·each of them is in the form of a letter rather than a statutory declaration;

    ·none of the authors was called as a witness by the applicant and available for cross-examination by the respondent.

22. The Tribunal also notes the medical evidence tendered by the applicant (see paragraph 31 above) but, in its opinion, that evidence is not relevant to the matter of the applicant’s character and no weight should be attached to it.

23. Finally, the Tribunal notes the applicant’s evidence to the effect that, without Australian citizenship, he is likely to face difficulty in obtaining a visa to enable him to enter Jordan to visit his wife and child.  In his oral submission he reiterated that he “desperately want[s] citizenship to enable [him] to move more freely” to see his wife and child.  As indicated in section 10.5.3 of the ACIs, however, that is not a factor which is relevant to the Tribunal’s consideration of whether the applicant is a person of good character for the purposes of a grant of Australian citizenship.  Accordingly, the Tribunal has not had regard to that factor.

24. Having regard to:

    ·the abovementioned evidence regarding the applicant’s recorded criminal history extending over the period from 8 June 2004 to 21 March 2011, demonstrating that he was not a person of good character in that period; and

    ·the absence of any persuasive evidence supporting the proposition that the applicant, since his last convictions on 21 March 2011, has been rehabilitated and has reformed and re-established his good character;

    the Tribunal is not satisfied that the applicant is presently a person “of good character” within the meaning, and for the purposes, of s 21(2)(h) of the Act.

    Conclusion

25. Because the Tribunal is not satisfied that the applicant “is of good character” within the meaning of s 21(2)(h) of the Act, the applicant is not “eligible to become an Australian citizen” under s 21(2) of the Act.  It is common ground that subss (3), (4), (5), (6), (7) and (8) of s 21 of the Act are inapplicable in this case.

26. Pursuant to s 24(1A) of the Act, therefore, the applicant’s application for Australian citizenship under s 21 of the Act must not be approved.

    Decision

27. For the above reasons the decision under review is affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

.............[sgd D Brodie].................................................

Administrative Assistant

Dated 8 May 2014

Date of hearing	14 March 2014
Applicant	In person (unrepresented)
Representative of the Respondent	Ms S Wende
Solicitors for the Respondent	Sparke Helmore