Fattah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 2938

Fattah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2938 (12 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/4473
Re:Atef Fattah
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:12 August 2020
Place:Sydney

The decision under review is set aside and remitted to the Respondent with the direction that Mr Fattah satisfies section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
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Mr S Evans, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – whether the Applicant is of good character – common assault – domestic violence – driving offences – good behaviour bond – Citizenship Policy – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 18B
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Mohammed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5601
SECONDARY MATERIALS
Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Mr S Evans, Member
12 August 2020

The applicant, Atef Fattah, seeks review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”) to refuse his application for Australian citizenship on the basis that he did not meet the good character requirement.
Mr Fattah is a 34 year old citizen of Lebanon who first arrived in Australia on 2 November 2005 and currently holds a Class BB Subclass 155 Resident Return Visa. He lives with his wife and their four children in Sydney. Mr Fattah applied for Australian citizenship in February 2013 and March 2015 and both these applications were refused.
The application for Australian citizenship which is the subject of these proceedings was lodged on 16 March 2017. On 19 June 2019 Mr Fattah’s application was rejected by a delegate of the Minister who formed a view that Mr Fattah was not of good character on account of his criminal convictions and driving record.
Mr Fattah has appealed to this Tribunal for review of the delegate’s decision.
Hearing
The matter was heard on 1 June 2020 and Mr Fattah, his legal representative and the legal representative for the Minister, all appeared via video conference in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). The witnesses for Mr Fattah appeared by video conference or telephone. Mr Fattah provided evidence to the Tribunal under affirmation.
For the reasons which follow, the decision to refuse Mr Fattah’s application for Australian citizenship by conferral will be set aside.
ISSUES FOR THE TRIBUNAL
The sole issue for determination is whether, at the time of the Tribunal’s decision, Mr Fattah is of good character within the meaning of the Australian Citizenship Act 2007 (Cth) (“the Act”).
LEGISLATIVE AND POLICY FRAMEWORK
Under section 21(2)(h) of the Act a person is eligible to become an Australian citizen if, among other things, the Minister is satisfied that the applicant:
“is of good character at the time of the Minister’s decision on the application”.
Determining questions of character
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that if a person makes an application under s 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
The term "good character" is not defined or qualified by the Act. Its meaning was considered by the Full Court in Irving v Minister for Immigration, Local Government & Ethnic Affairs[1] (“Irving”) in the context of the power of the Minister to refuse to issue a visa. Justice Davies said:
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 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.[2]
To similar effect, Lee J said:
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 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.[3]
[1] (1996) 68 FCR 422; [1996] FCA 663.
[2] (1996) 68 FCR 422 at [425].
[3] Idem at [431].
The Department’s official guide for decision makers, the Citizenship Policy[4] (“the Policy”), provides guidance for decision makers including the Tribunal in determining whether Mr Fattah is of good character.
[4] 1 June 2016
Informed by the discussion in Irving, the Policy provides 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.[5]
[5] The Policy, Chapter 11 – Character, p146.
The Policy specifically calls for the decision maker to look holistically at an applicant's behaviour over a lasting or enduring period of time[6]. Relevantly, the Policy calls upon decision makers to consider if the applicant has committed an offence, and whether that offence was a serious or minor offence.[7]
[7] Idem, p 156.
The Policy also notes that minor offences may include offences that lead to a finding of guilt, but no conviction or sentence. In each Australian jurisdiction there are sentencing arrangements for summary offences where there is discretion not to record conviction.
The Tribunal was guided by these considerations in determining if Mr Fattah meets the good character requirement for Australian citizenship.
EVIDENCE AND FINDINGS
Mr Fattah’s offending
Mr Fattah has been convicted of multiple driving offences. Notably, on 23 January 2009 he was convicted in the Bankstown Local Court of two offences: one count of organise/promote/take part in race between vehicles – 1^st off; and one count of exceeding the speed limit by over 45km/h. For the racing offence, he received an 18 month good behaviour bond, was ordered to pay court costs of $73, and was disqualified from driving for six months. For the speeding offence, he received a $600 fine, was ordered to pay court costs of $73, and was disqualified from driving for six months. Both driving disqualification periods were to run concurrently from 10 August 2008.
Following the street racing incident, Mr Fattah recorded a number of other driving infringements between July 2008 and December 2012, including:
·22 November 2012 exceed speed limit by more than 20km/h not more than 30km/h whilst driving a coach or heavy vehicle (fined $521)
·30 November 2012 Park on / near crossing (fined $298)
·17 December 2012 Following too closely (fined $397)
·17 December 2012 not give particulars after crash (fined $298)
On 31 October 2011 Mr Fattah was convicted of one count of common assault (domestic violence) for which he received an 18 month good behaviour bond and an $81 court fine.
On 8 March 2013 Mr Fattah was convicted of one count of common assault and received a two year good behaviour bond and an $83 dollar court fine.
In relation to the January 2009 street racing/speeding offences, Mr Fattah told the hearing that they occurred after stopping at traffic lights. The driver of the vehicle next to him indicated he wanted to race, and Mr Fattah did not realise that the police were behind him at the time.
Mr Fattah’s legal representative drew my attention to the fact that the street racing offences occurred 11 years ago and Mr Fattah’s his last traffic infringement was seven years ago. It was also noted the most recent of the two assault convictions was seven years ago.
In relation to the domestic violence assault, Mr Fattah writes in a statutory declaration dated 10 March 2020:
8. …At the time, it was the beginning of our married relationship with my wife. I came from a different cultural background where domestic violence awareness is not common in the community.
9. We had our first baby and we were both very stressed and young. We got into an argument and in the heat of the moment, my judgement lapsed. I should not have acted in that way…
Mr Fattah’s wife told the Tribunal that when the domestic violence offence occurred, the couple had been arguing about Mr Fattah’s involvement with the practical aspects of raising their new child. She recalls the couple were arguing about Mr Fattah not helping enough with the care of their first child, who was just ten months old at the time. She said that they were both raised with different norms and expectations and both were upset and tired at the time because of the strain of having a newborn. The argument escalated into pushing and shoving and she called the police. She maintains that Mr Fattah did not physically hit, punch, choke or kick her.
Mr Fattah’s wife recalled that an apprehended violence order (“AVO”) was recommended by the police who interviewed her straight after the incident. She said that within hours of the incident they had both calmed down, began speaking and returned home together.
In relation to the second assault conviction, Mr Fattah described the incident as follows:
15. I was working close to my home, so I decided to stop by to grab some water, say hello to the kids and go. The speed zone in my area at 50km/h. I was standing next to my truck; someone was speeding next to my car almost ran me over. I yelled at him to slow down as everyone has kids in that area. He stopped and reversed back to me.
16. At that time, my kids and wife were standing outside of the house. The gentlemen [sic] got out of the car and walked towards me, then he pushed me. I defended myself. He was way bigger and taller than me and I felt threatened, especially in front of my kids and wife. Because of what he did, I punched him in defence. This resulted in him backing away. He called some members of his family and he also called the cops. His family members made a statement that they were witnesses and I got charged with the common assault offence.
17. When I saw a lawyer after I got charged, he advised me to plead guilty so i don’t ‘waste my time and money’… Because of that, I did not defend the charge and was convicted.
Rehabilitation
Mr Fattah writes in a letter dated 14 March 2017 that he has learnt from his past mistakes. He also submits that his mental health was a contributing factor to his offending.
On 12 May 2012 he completed a domestic abuse for men course which required attendance at 20 sessions. Mr Fattah completed this program following the domestic violence offence and writes in his 10 March 2020 statutory declaration:
At the program, I learned how to properly treat people, men and women. I learned the importance of not assaulting people, and not emotionally, physically or verbally abusing people… this course helped me a lot with my perspective on my life. I have not committed any offences with domestic violence since then.
He submits that due to his “Lebanese background” he does not have a history of talking about his mental health and this has been to his detriment. His anxiety and depression was at the time of the offending unacknowledged and he felt “very sad and down all the time”. Mr Fattah submits that his mental health contributed to his behaviour at the time of his offending.
Mr Fattah began taking medication for his depression in 2016 and started seeing a psychologist and has been done so regularly since. He has worked with the psychologist on furthering his anger management skills and to focus on the positive aspects of his life.
In a letter dated 6 May 2020 which was submitted in support of Mr Fattah’s application for citizenship, Dr Khaled Osman notes that Mr Fattah had reported feeling stressed about the refusal of his previous citizenship applications.
At the hearing Mr Fattah described his personal growth since the last offence. He said that he was initially reluctant to consider treatment but his wife persuaded him to do so, and that he has found it helpful. Mr Fattah says he gets a lot out of his sessions with the psychologist and it has helped him immensely.
In a report dated 10 March 2020 psychologist Bill Singh confirms that Mr Fattah has been seeing him since 2016 and has been treated monthly for depression and anxiety. Mr Singh writes that Mr Fattah had emotional regulation and risk-taking issues when he was younger and confirms the role that family issues played in his offending. He writes that Mr Fattah has “demonstrated deep remorse and increased awareness” of how to deal appropriately with challenges and regulate his emotions. He opines that Mr Fattah “presents as a mature individual deserving of his citizenship”.
Mr Fattah’s wife’s evidence in relation to the changes she had seen in Mr Fattah was instructive. She confirmed that he has a different outlook, he has become more accommodating of others and flexible in his approach. She admits to being in admiration for the close relationship Mr Fattah has with his children, particularly their daughter. She observed that Mr Fattah has calmed as a result of counselling and having children. He is more forgiving and knows how to deal with challenges.
Character references and community service
Mr Fattah has provided a significant number of character at various times: in March 2017 in support of the citizenship application; in May 2019 in response to an invitation from the Respondent to comment on adverse information; and in March 2020 in support of his application for review to this Tribunal.
On 9 May 2019, Mr Fattah provided eight character references in the form of statutory declarations to the Respondent on 9 May 2019. These included references from Mr Fattah’s wife, his brother-in-law and two sisters-in-law, and the rest were from friends or family friends. These statutory declarations follow almost identical format and wording, attesting to a change in Mr Fattah’s behaviour, the precise date at which Mr Fattah lodged his application and that he had completed the citizenship test. They are all dated either 5 or 6 May 2019.
Mr Fattah was asked about the similarities in wording at the hearing and he maintains it was a coincidence. He denied instructing his referees what to write. He argued that it was possible the members of the individual families co-ordinated the writing of the references with each other. Mr Fattah’s explanation for the similarities does not clarify why the references from friends and family friends follow the same format as those provided by his family members.
When questioned by the Respondent’s legal representative, Mr Fattah submitted he could not provide an explanation as to the similarities and that he did not have time to read them prior to submitting them so was unaware they were so similar.
I note that there are similarities in other references as well. In her reference dated 14 March 2017, Mr Fattah’s wife writes:
My beloved husband has unfortunately been involved in some offences however, no jail term was given and was only given 2 good behaviour bonds the last of which expired on 8 MAR 2015.
In similar terms, Dr Osman provides a statement in support of Mr Fattah on March 2017 in which he writes:
To my knowledge, he [Mr Fattah] has unfortunately been involved in some offences however, no jail term was given and was only given 2 good behaviour bonds the last of which expired on 8 MAR 2015…
The Respondent submits that the character references should be afforded little weight because they are written by family members, the authors demonstrate little knowledge of the extent of nature of Mr Fattah’s offending, they are of identical wording, or a combination of these factors.
Mr Fattah’s explanation for the similarities in references provided was not convincing and the Tribunal has afforded little weight to the references where similarities exist, which is the majority. I considered if Mr Fattah may have been deceptive in his dealings with the Australian government in providing some of these references, however I consider they were authentic in so much as they were prepared and signed by the referees. In considering the evidence and listening to Mr Fattah, there is also a sense of exasperation and anxiety around the process of applying for citizenship. This appears to have contributed to the submission of so many references, many at the last-minute, which were apparently not reviewed or considered by Mr Fattah.
Mr Fattah said that around 2015 and 2016 he fed homeless people by purchasing pizzas and distributing them to people on the streets. He has also donated blood and there is evidence of him having done so before the Tribunal.
Incoming passenger cards
Incoming passenger cards submitted by Mr Fattah upon his arrival in Australia consistently record that he failed to acknowledge his criminal convictions by marking “no” next to the question ”Do you have any criminal convictions?” Incoming passenger cards indicate this occurred on five occasions with the most recent being 25 May 2018.
In his statutory declaration of May 2019, Mr Fattah provides an explanation for his failure to declare his convictions. He writes that he believed the question on the incoming passenger cards was asking about new, or recent, convictions. The Respondent acknowledges that Mr Fattah declared his convictions on his application for citizenship dated 6 March 2017 and it is appropriate that neutral weight should be afforded to his failure to declare his convictions on incoming passenger cards.
CONSIDERATION
Mr Fattah has lived in Australia since 2005. He has made Australia his home. He has married an Australian and started a family in Australia. He wishes to have equal status with his wife and children, who are all Australian citizens.
When Mr Fattah arrived in Australia he was a relatively young man at just 20 years of age. His offending, which included assault convictions and serious driving offences, was serious. In his statutory declaration dated 6 May 2019, Mr Fattah wrote that “the offences were minor” and the Respondent submits this shows a lack of understanding, insight and remorse on his part.

I am reluctant to afford undue weight to the specific wording of this observation. In light of the totality of the evidence, I am satisfied that Mr Fattah views the offences as serious. It is apparent he was attempting to distinguish his offending from other, more serious crimes. Unarguably, far more serious crimes are perpetrated and the non-custodial sentences he received indicate that his offending was considered by the courts to be at the lower end of the spectrum of offending. There must be some allowance in these matters for plain language which reflects conversational English but has an altogether more significant and nuanced meaning in the context of the Act and the Policy. Having served as a basis for his application for citizenship being refused on three occasions, I do not doubt that Mr Fattah appreciates the seriousness of his offending.
Mr Fattah’s wife’s account of the altercation that led to Mr Fattah’s domestic violence assault charge does not diminish the seriousness of the charge. She did not attempt to downplay her husband’s difficulties in the past and she was insightful as to the cause of his offending and did not seek to shift responsibility. Her explanation of the common assault conviction of which she was the victim, appeared both direct and honest. It also provides context which assisted the Tribunal in understanding Mr Fattah’s qualities.
She testified that at the time of the offence, they were a young couple starting a family and working out how to live together as adults. This is not an unusual circumstance. The matter was complicated by Mr Fattah not having the skills to deal with his emotions, particularly anger, and his underlying depression.
It is indicative of Mr Fattah’s character that he has committed to self-improvement in the interests of himself and his family. He has sought to manage his anger and address his mental health through counselling. He has done so over an extended period and continues to do so even though he has not offended since 2013. I consider these to be important indicators of Mr Fattah’s character. His wife’s testimony regarding his personal change and her respect for his role as a father and provider for their family was compelling.
The Respondent argues that the Tribunal cannot be assured by Mr Fattah’s rehabilitative efforts in circumstances where a second assault conviction followed his completion of an anger management course. This would certainly be the case but for the fact Mr Fattah has continued to address his mental health and behavioural issues for many years after completing the anger management course.
Mr Fattah’s legal representative drew the Tribunal’s attention to the matter of Mohammed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Mohammed”)[8]. In Mohammed, Senior Member Pintos-Lopez considered an application for Australian citizenship where the applicant had been convicted of domestic assault six years prior. The applicant’s wife gave evidence that the applicant had changed completely since the offending. Senior Member Pintos-Lopez writes at [66] that “In the circumstances, the wife’s evidence is to be given particular weight”.
[8] [2019] AATA 5601.
It is further submitted that in Mohammed, the Senior Member states that there is no prescription as to the adequate amount of time that needs to elapse before the applicant’s good character can be reassessed. It is noted that in Mohammed the offending occurred six years prior to the hearing, a shorter period than has elapsed since Mr Fattah’s last offence.
When considering whether an applicant who has committed criminal offences is a person of good character, the Tribunal stated in Kakar and Minister for Immigration and Multicultural Affairs (“Kaker”) that:
The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.[9]
[9] [2002] AATA 132 at [14].
I accept that Mr Fattah meets the requirements set out in Kaker above. In Mr Fattah’s circumstances the time which has elapsed since offending is in the Tribunal’s view adequate, when the nature and seriousness of the offences is considered in the context of the ongoing work he has done to address the causes of his offending. Mr Fattah has not been complacent and has continued to prioritise self-development and counselling to this day.
CONCLUSION
A further year has passed since the reviewable decision, during which Mr Fattah has not reoffended. It is the Tribunal’s role to assess whether Mr Fattah is of good character at this time. In the past he has committed acts which a person of good character would not have, but this does not permanently preclude him from obtaining Australian citizenship.
For the reasons outlined above, the Tribunal finds that Mr Fattah is of “good character” for the purposes of section 21(2)(h) of the Act.
DECISION
The decision under review is set aside and remitted to the Respondent with the direction that Mr Fattah satisfies section 21(2)(h) of the Act.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 12 August 2020

Date(s) of hearing: 1 June 2020

Solicitors for the Applicant: Immi House Legal

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	1 June 2020
Solicitors for the Applicant:	Immi House Legal
Solicitors for the Respondent:	Australian Government Solicitor