Fawaz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 889
•20 April 2020
Fawaz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 889 (20 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3227
Re:Mohamad Fawaz
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:20 April 2020
Place:Canberra
The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
CITIZENSHIP – application for citizenship by conferral – citizenship refused where applicant is not of good character - whether the Tribunal is satisfied that the applicant is of good character – where the applicant has a history of criminal offending – driving offences – assault occasioning actual bodily harm – destroy/damage property - Tribunal not satisfied that the applicant is of good character – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 34J, 37, 43
Australian Citizenship Act 2007 ss 20, 21, 24, 52
Crimes Act 1900 (NSW) s 59
Drugs Misuse and Trafficking Act 1985 (NSW)
Cases
Amosa and Minister for Immigration and Border Protection [2015] AATA 55
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
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
Nejat and Minister for Immigration and Border Protection [2014] AATA 453
Wang and Minister for Immigration and Border Protection [2014] AATA 89
Secondary Materials
Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs, Citizenship Policy, 1 June 2016
Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs, Citizenship Procedural Instructions, 17 April 2019
REASONS FOR DECISION
Member W Frost
20 April 2020
INTRODUCTION
The Applicant, Mr Mohamad Fawaz, was refused Australian citizenship by conferral on 31 May 2019 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multiculturalism (Minister) on the ground that he was not of ‘good character’, as required under the Australian Citizenship Act 2007 (Citizenship Act).
Mr Fawaz applied for review by the Administrative Appeals Tribunal. A hearing of Mr Fawaz’s application was conducted by telephone on 30 March 2020, in circumstances where, as part of its response to the COVID-19 pandemic, the Tribunal determined that all in-person hearings at registries of the Tribunal across Australia were to cease and other arrangements explored. The Tribunal contacted the parties in advance of the hearing and sought their views on whether it could be conducted by telephone or the application otherwise determined on the papers, without requiring a hearing in accordance with section 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act). The parties both requested the hearing proceed by telephone. In the circumstances and considering the objectives of the Tribunal set out in section 2A of the AAT Act, the Tribunal determined that it was reasonable for the hearing to proceed by telephone. Additionally, the Tribunal notes that Mr Fawaz confirmed at the hearing that he did not require an interpreter, after being questioned about this need by the Minister’s representative. The Tribunal is therefore satisfied that the parties were given a reasonable opportunity to give evidence and present their arguments at the hearing, noting sections 33A and 39 of the AAT Act.
The Tribunal considered all of the documents in the bundle of documents filed on 23 July 2019 in this proceeding, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act),[1] and the bundle of additional material relied upon by the Minister, which was filed on 12 October 2019.[2] The following further documents filed in the proceeding were also considered:
(a)Mr Fawaz’s ‘Statement in support of my Citizenship Application’ dated 26 August 2019;[3]
(b)Psychological report of Ms Kris North dated 20 November 2019;[4] and
(c)Minister’s Statement of Facts, Issues and Contentions dated 12 October 2019.
[1] Exhibit 1.
[2] Exhibit 4.
[3] Exhibit 2.
[4] Exhibit 3.
ISSUE
The issue in this proceeding is whether the Tribunal is satisfied that Mr Fawaz is of ‘good character’, as required by subsection 21(2)(h) of the Citizenship Act, to be eligible to become an Australian citizen.
BACKGROUND
On 2 November 1992, Mr Fawaz was born in Lebanon.[5]
[5] Exhibit 1, T4, page 149.
On 4 April 2009, Mr Fawaz arrived in Australia on a BC-100 visa granted offshore on 30 March 2009.[6]
[6] ibid., T2, page 13.
On 20 March 2011, Mr Fawaz was issued with a traffic infringement notice by police for being an unaccompanied learner driver.[7]
[7] Exhibit 4, RM3, pages 42-43.
On 8 September 2011, Mr Fawaz was issued with a traffic infringement notice by police for negligent driving (not occasioning death or grievous bodily harm).[8]
[8] ibid., page 41.
On 3 March 2012, Mr Fawaz was issued with a traffic infringement notice by police for not displaying his ‘P plates’ while driving as a provisional licence holder and not indicating a change of direction with car lights.[9]
[9] ibid., page 40.
On 4 August 2012, Mr Fawaz was issued with a traffic infringement notice by police for using a non-compliant vehicle.[10]
[10] ibid.
On 7 November 2012, Mr Fawaz appeared before Bankstown Local Court having been charged on 20 October 2012 with ‘Drive Etc When Visiting Privileges Withdrawn -1st Offence’.[11] Mr Fawaz was fined $450 and had his licence disqualified for 3 months.
[11] Exhibit 1, T4, page 169; T9, page 189.
On 22 June 2013, Mr Fawaz’s first son was born in Queensland. Mr Fawaz was 20 years old.[12]
[12] ibid., T12, pages 218.
On 12 February 2014, Mr Fawaz was pulled over and questioned by police after driving while his licence was suspended as a result of unpaid fines.[13]
[13] Exhibit 4, RM3, page 36.
On 23 May 2014, Mr Fawaz was issued with a traffic infringement notice by police for not displaying his ‘P plates’ while driving as a provisional licence holder.[14]
[14] ibid.
On 23 June 2014, Mr Fawaz was charged at Bankstown Police Station with the following offences alleged to have occurred on 22 June 2014: ‘Affray’, ‘Owner Not Disclose Identity of Driver/Passenger’, and ‘Take Etc Person Intend Commit Serious Indictable Offence’. These charges were withdrawn.[15]
[15] Exhibit 1, T9, page 190.
On 1 July 2014, Mr Fawaz appeared before Burwood Local Court charged with ‘Common Assault’, which allegedly occurred on 31 July 2013. This charge was dismissed by the Court.[16]
[16] ibid., T9, page 189.
On 3 October 2014, Mr Fawaz appeared before Sutherland Local Court charged with ‘Assault Occasioning Actual Bodily Harm’; the offence occurred on 31 July 2013.[17] Mr Fawaz was sentenced to perform 300 hours of community service. The NSW Police incident report relevantly stated that:[18]
The driver of the offending vehicle [Mr Fawaz] has exited his vehicle and approached the passenger side of the VIC’s [victim’s] vehicle and proceeded to punch VIC1 in the head causing him pain. The driver has then began walking back to his vehicle. VIC1 has exited his vehicle and approached the offending vehicle and told the driver to not go anywhere as he has called the Police. The driver of the offending vehicle has told VIC1 he’s not waiting for anyone and has opened up the van and got a glue gun from the van. VIC1 has run towards his car in fear of being assaulted. The driver of the offending vehicle (POI1 [Person of Interest 1, being Mr Fawaz]); has approached VIC1 and in doing so VIC1 has pushed POI1 out of the way in fear of being assaulted. POI1 has raised the glue gun above his head and made attempts to strike VIC1 in the head with it. At this time the passenger of the offending vehicle (POI2) has exited and held VIC1 from behind so he could not defend himself whilst POI1 struck VIC1 in the head 2-3 times causing him to bleed heavily. VIC2 exited the car and made attempts to break up the fight and in doing so was assaulted by both offenders via a push. Passer- by’s [sic] intervened and tried stopping the fight which in turn made the POI’s return to their vehicle…VIC1 was treated for 2 lacerations to the head, one at the front and one at the rear, 4 stitches were required for each laceration and they were about 3cm each in length.
[17] ibid., T4, page 169; T9, page 189.
[18] Exhibit 4, RM3, pages 36-37.
Also on 3 October 2014, as recorded in the NSW Police incident report, Mr Fawaz was:[19]
given a number of strict bail conditions. One of these conditions was to present himself to the Officer in Charge of Police at Bankstown Police Station within 7 days to submit to the taking of particulars of identification…On Monday, 26 October 2015, police received a report stipulating the above conditions. FAWAZ has failed to comply with the court order.
[19] Exhibit 4, RM3, page 15.
Accordingly, Mr Fawaz did not meet this condition of his bail from October 2014 and the breach was reported to police one year later.
On 24 December 2014, Mr Fawaz was issued with a traffic infringement notice by police for driving a prohibited vehicle that required an exemption from NSW Roads and Maritime Services for a provisional licence holder to drive. Police also seized a mobile telephone and more than $1,400 in cash from Mr Fawaz’s car, together with bags with a substance totalling 1.43 grams that was identified as pseudoephedrine, which is contained in Schedule 1 of the Drugs Misuse and Trafficking Act 1985 (NSW). Police instructed Mr Fawaz to attend Paddington Police Station with proof of ownership of the cash. Mr Fawaz did not do so and the police records state that ‘Police believe the cash seized is of a direct result of proceeds of crime or otherwise unlawfully obtained’.[20]
[20] ibid., pages 30-31.
On 29 December 2014, Mr Fawaz was issued with a traffic infringement notice by police for speeding at greater than 20 km/h over the speed limit.[21]
[21] ibid., page 30.
On 22 February 2015, Mr Fawaz was charged with the following offences alleged to have occurred on 24 December 2014: ‘Deal with Property Suspected Proceeds of Crime’ and ‘Possess Prohibited Drug’. These charges were subsequently withdrawn.[22]
[22] Exhibit 1, T9, page 190.
On 5 March 2015, Mr Fawaz appeared before Sutherland Local Court charged with ‘Assault Occasioning Actual Bodily Harm’.[23] This Court appearance was for the same offence that occurred in July 2013. Mr Fawaz was fined $1,000 and sentenced to imprisonment for 9 months, which was suspended on Mr Fawaz entering a bond for 9 months.
[23] ibid., T4, page 169; T9, pages 189-190.
On 7 April 2015, Mr Fawaz was pulled over and questioned by police after driving while his licence was suspended as a result of unpaid outstanding fines.[24]
[24] Exhibit 4, RM3, pages 28-29.
On 15 April 2015, Mr Fawaz was charged with the following alleged offences: ‘Stalk/Intimidate Intend Fear Physical Harm Etc (Domestic)’, ‘Assault Occasioning Actual Bodily Harm (DV)’ and ‘Common Assault (DV)’.[25] Mr Fawaz was also served with an Apprehended Violence Order.[26] While these charges were later withdrawn,[27] the incident report from NSW Police states as follows:[28]
the accused [Mr Fawaz] has stood up and pushed the victim causing her to fall onto the nearby toilet and then onto the floor. The accused has again approached the victim and has kicked the victim in her arms and legs, the accused has also slapped the victim on the head. The barrage of kicks and slaps has caused the victim to curl up into a ball to protect herself. Whilst on the ground the accused has punched the victim in the face causing the victims [sic] lip to bleed…The victim has screamed for help but the accused has again assaulted the victim by pushing the victim into a nearby bin causing the victim pan in her back and then causing the victim to fall to the floor. The victim has attempted to scream for help but the accused has placed his hands over the victim mouth in an attempt to prevent the victim from screaming for help.
[25] Exhibit 1, T9, page 191.
[26] ibid., RM3, page 25.
[27] Exhibit 1, T9, page 191; ibid., MR3, page 28.
[28] Exhibit 4, RM3, page 28.
On 28 April 2015, Mr Fawaz was issued with a traffic infringement notice by police for speeding at greater than 20 km/h over the speed limit.[29]
[29] ibid., RM3, page 27.
On 28 May 2015, Mr Fawaz was granted bail on the condition that he comply with the Apprehended Violence Order. On 6 June 2015, Mr Fawaz’s alleged victim informed police that, sometime between 22 and 25 April 2015, Mr Fawaz slapped her on both sides of the face causing red marks to her cheeks. The victim told police that the force used by Mr Fawaz was so hard that she was knocked to the ground. This constituted a breach of Mr Fawaz’s bail condition.[30]
[30] ibid., RM3, page 25.
On 12 June 2015, NSW Police served Mr Fawaz with a Firearms Prohibition Order while he was in custody at Fairfield Police Station.[31]
[31] ibid., RM3, pages 24-25.
On 12 June 2015, Mr Fawaz was charged with the alleged offences of ‘Contravene Prohibition/Restriction in AVO (Domestic)’ and ‘Common Assault (DV)’. These charges were subsequently withdrawn.[32]
[32] Exhibit 1, T9, page 192.
On 22 June 2015, Mr Fawaz was issued with a traffic infringement notice by police for being an unlicensed motorbike rider; not wearing or securing an approved helmet; using an unregistered registrable motor vehicle on a road; and using an uninsured motor vehicle on a road.[33]
[33] Exhibit 4, RM3, page 23.
On 7 August 2015, Mr Fawaz was pulled over and questioned by police after driving an unregistered vehicle while his licence was suspended as a result of unpaid outstanding fines.[34]
[34] ibid., RM3, page 19.
On 2 November 2015, Mr Fawaz breached a residence condition of his bail.[35]
[35] Exhibit 1, T9, page 192; Exhibit 4, RM3, page 14-15.
On 5 December 2015, Mr Fawaz breached a condition of his bail to be with a parent at all times when not at home. This breach came to the attention of the police because Mr Fawaz was arrested, charged and convicted for the offence of ‘destroy/damage property in company’, for which he was sentenced on 18 August 2016.[36]
[36] Exhibit 4, RM3, page 13.
On 23 March 2016, Mr Fawaz breached a condition of his bail to report to his local police station.[37]
[37] ibid.
On 18 August 2016, Mr Fawaz appeared before the Parramatta Local Court charged with the offence of ‘Destroy/Damage Property in Company’ that occurred on 5 December 2015.[38] Mr Fawaz was convicted but no further penalty was imposed. Additional charges of ‘Aggravated Enter Dwelling’ and ‘Destroy or Damage Property’ were earlier withdrawn.[39] Two separate narratives from the NSW Police incident report stated that:[40]
the accused with five other co-accused approached the front door…The six accused males entered the house and started walking around inside. The six males searched the house room by room…the door was locked shut…kicked…bedroom door, however it didn’t open. Co-accused…then shoulder charged the door, causing it to break open. Four of the accused entered the room and began to ransack…belongings…A short time later plain clothes police arrived at the location, this caused the six males to abruptly exit the house…Officers from the Public Order and Riot Squad arrived on scene a short time later and assisted…in detaining the six persons on the premises…Police later searched the vehicle…in the boot a large amount of ammunition was located.
Four of the accused entered the room and began to ransack…belongings searching for money that is owed from an alleged drug debt.
[38] Exhibit 1, T4, page 169.
[39] ibid., T9, pages 192-193.
[40] Exhibit 4, RM3, pages 13-14.
On 23 April 2017, Mr Fawaz was issued with a traffic infringement notice by the police for speeding at less than 10 km/h over the speed limit.[41]
[41] ibid., RM3, page 12.
On 3 June 2017, Mr Fawaz was issued with a traffic infringement notice by the police for driving in excess of 100 km/h, by over 10 km/h, as a ‘P2 licence’ holder.[42]
[42] ibid.
On 18 October 2017, the Department received an ‘Application for Australian citizenship – General eligibility’ from Mr Fawaz.[43]
[43] Exhibit 1, T4, pages 149.
On 27 December 2017, Mr Fawaz was issued with a traffic infringement notice by the police for using an unregistered registrable Class A motor vehicle on a road.[44]
[44] Exhibit 4, RM3, page 12.
On 31 March 2018, Mr Fawaz was issued with a traffic infringement notice by the police for exceeding the speed limit by less than 10 km/h and driving or towing a vehicle with an unsecured load.[45]
[45] ibid., page 11.
On 8 June 2018, Mr Fawaz’s second son was born in New South Wales. Mr Fawaz was 25 years old.[46]
[46] Exhibit 1, T13, pages 220.
On 28 March 2019, Mr Fawaz was issued with a traffic infringement notice by the police for disobeying a ‘no trucks’ sign.[47]
[47] Exhibit 4, RM3, page 8.
On 1 April 2019, the Department sent Mr Fawaz a letter requesting information in order to assess his application for Australian citizenship.[48]
[48] Exhibit 1, T6, pages 174-176.
On 24 April 2019, the Department sent Mr Fawaz an invitation to comment on adverse information in relation to his application for Australian citizenship.[49]
[49] ibid., T10, pages 198-204.
On 1 May 2019, Dr Ali El Jaam, General Practitioner, signed a letter regarding Mr Fawaz’s application for Australian citizenship and attaching a GP Mental Health Treatment Plan dated 15 April 2016 for Mr Fawaz’s ‘Depression’. The letter relevantly stated that:[50]
I have known Mohammad [sic] Akram Fawaz since 2015 as a patient of mine. In that time, I have known him to be genuine, honest, hardworking and of good character.
I am aware of Mr Fawaz’s anger/behaviour issues in 2016, where I had referred Mr Fawaz Mr Hugo Rodriguez (psychologist) for anger management on 15/04/16 (copy enclosed), No correspondence was received from Mr Rodriguez.
[50] ibid., T11, pages 211.
On 2 May 2019, Manh Cuong Vu, Tax Agent, made a statutory declaration supporting Mr Fawaz’s application for Australian citizenship, which stated that:[51]
Have known Mr Mohamad Akram FAWAZ since the beginning of 2015 as a client, managing his tax affairs. He did not mention to me the offences, however I believe the nature of the offences do not truly reflect his current character.
Since the assault offence, Mohamad has demonstrated that he has learnt from his mistakes by taking responsibility for his business and caring for his family. He has managed to buy a property with the profit from the business. Grow his business to have employees and pay taxes. This shows he is living like any other good law abiding citizen.
[51] ibid., page 208.
On 3 May 2019, Mr Hugo Rodrigeuz, Psychologist, certified that Mr Fawaz attended four consultations with him between 31 March and 30 May 2016.[52]
[52] ibid., page 217.
On 15 May 2019, Mr Fawaz made a statutory declaration as follows:[53]
In my application I only disclosed the offences because I did not know I was supposed to, I only write what is listed on my criminal record. I apologise for the mistake witch was unintentionaly done. I have been working as a subcontractor with mainfreight prestons since 2016. I have bought a property in braidwod 2622 and I have 2 kids…Im verry remorseful for my actions and my mistakes in the past have taught me to become a better man and look forward to be more succesful in life. I know my criminal history is not the best and im ashamed of what I have done but in these 3 years I believe that I have shown to be a good law abiding citizen. [errors in original]
[53] ibid., page 205.
On 15 May 2019, Lorraine El-Husseini and Obaida Alameddine completed statutory declarations supporting Mr Fawaz’s application for Australian citizenship. Ms El-Husseni stated that she has known Mr Fawaz since 2010, they have become good friends and she is ‘aware of all his criminal offences’. In addition, Ms El-Husseni said: ‘I believe the nature of the offences do not truly reflect his current character. Since 2016 I have seen nothing but the best of Mohamad who I believe has shown a perfect example of a good law abiding citizen’.[54] Mr Alameddine stated that he has known Mr Fawaz since 2013, they are friends and in early 2017 he started working for Mr Fawaz. Mr Alameddine further said that:[55]
I am aware of his criminal offences and a few times Mohamad would talk to me about them and how ashamed about what he has done…Since 2016 Mohamad has been working very hard to have a better, successful future. Also I believe Mohamad has been a very good law abiding citizen who is looking forward to build a better future for himself, his kids and also his parents.
[54] ibid., page 209.
[55] ibid., page 210.
On 31 May 2019, a delegate of the Minister refused Mr Fawaz’s application for Australian citizenship by conferral because the delegate was not satisfied that Mr Fawaz was a person of good character.[56]
[56] ibid., T2, pages 10-20.
On 3 June 2019, Mr Fawaz applied to the Tribunal for review of the decision to refuse his application for Australian citizenship by conferral.[57] Mr Fawaz indicated in that application that he did not need an interpreter in his dealings with the Tribunal and that ‘I believe the decision is wrong and I was not given a fair chance to become an Australian citizen’.
LEGISLATION & POLICY
[57] ibid., T1, pages 4-9.
Citizenship Act
The Preamble to the Citizenship Act states that:
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.
Part 2 of the Citizenship Act sets out the manner in which a person can become an Australian citizen. Division 2 of Part 2 provides for the acquisition of Australian citizenship by application and Subdivision B of Division 2 sets out how a person is eligible for citizenship by conferral.
Section 20 in Subdivision B of the Citizenship Act relevantly states that a person becomes an Australian citizen under Subdivision B if the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen.
Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Citizenship Act states that if a person makes an application for Australian citizenship by conferral under section 21, the Minister ‘must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Subsection 24(1A) relevantly states that the Minister ‘must not approve the person becoming an Australian citizen’ unless the person meets the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.
Subsection 21(2) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied of a number of matters in relation to the person, including that: they are aged over eighteen at the time of the application; they are a permanent resident both when making the application and at the time of the Minister’s decision; and they satisfy the residence requirements under the Citizenship Act. Relevantly for this proceeding, subsection 21(2)(h) of the Citizenship Act states 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’.
Subsection 52(1)(b) of the Citizenship Act permits a person to make an application to the Administrative Appeals Tribunal for review of a decision under section 24 to refuse to approve the person becoming an Australian citizen.
Citizenship Policy and Citizenship Procedural Instructions
The Tribunal ordinarily applies policy guidance from the government in reviewing a decision, unless cogent reasons are demonstrated for it not to do so.[58] The Minister’s Department has issued a Citizenship Policy document dated 1 June 2016.[59] The Tribunal is not aware of any reasons why it should not apply the Citizenship Policy in this proceeding. Chapter 11 of the Citizenship Policy provides guidance ‘on the administration of the “good character” provisions under the Act and to define, for administrative purposes, the meaning of “good character”’.[60] The Citizenship Policy states that ‘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’.[61] The Citizenship Policy further states that:[62]
‘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 other commitments made through the pledge should they be approved for citizenship.
[58] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
[59] Exhibit 1, T3, pages 70-107.
[60] ibid., page 95.
[61] ibid.
[62] ibid, page 96.
The Citizenship Policy provides that the term ‘enduring moral qualities’ means: ‘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’.[63] Additionally, the Citizenship Policy says[64] the ‘good character’ requirement ‘looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics’ and:
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.
[63] ibid.
[64] ibid., pages 96-97.
The Citizenship Policy relevantly provides that an applicant of ‘good character’ would:[65]
·respect and abide by the law in Australia…
…
·not be violent, involved in drugs…and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
…
·not be the subject of any verifiable information causing character doubts.
[65] ibid., page 98.
The Citizenship Policy also provides that decision makers should incorporate the following steps when preparing a decision in relation to good character:[66]
·identify any offence or other reason why the person may not be of good character
·summarise the nature of the offence/incident, its seriousness, victims, other matter
·identify any mitigating factors and summarise them
·analyse any references and identify the weight given to each of them…
[66] ibid., page 107.
The Citizenship Policy sets out the following guidance on an applicant’s character:[67]
[67] Ibid., pages 100-101.
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. Decision makers should place more weight on significant offences.
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 [to the Citizenship Act], 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.
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
In relation to references provided in support of an application for citizenship, the Citizenship Policy provides that:[68]
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. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
[68] ibid., page 106.
Chapter 15 of the Citizenship Procedural Instructions issued on 17 April 2019 by the Minister’s Department (Citizenship Instructions) ‘provides guidance on relevant matters to be taken into account when making a decision as to whether a person is of ‘good character’ for the purposes of the Act’.[69] Paragraph 4.4 in Chapter 15 of the Citizenship Instructions relevantly states that:[70]
As a general proposition, a person who is of good character would:
· respect and abide by the law in Australia…
· not be violent, involved in illegal drugs…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…
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
[69] ibid., page 125.
[70] ibid., page 129.
Paragraph 4.7 of the Citizenship Instructions provide factors that may be taken into account by decision-makers and relevantly states that:[71]
[71] ibid., page 135.
·If the applicant has committed an offence, was it [a] serious offence? For example:
ocrimes of violence (such as…assault…)…
·Minor offences may include
osome traffic offences that have been included in a criminal record. An ‘on the spot fine’ would usually have little weight in a character assessment, unless the applicant has a history of such fines. This disregard for the law may be relevant to the assessment of character;
ooffences that lead to a finding of guilt but no conviction or sentence…
Has the applicant engaged in conduct that would reasonably cause another individual to be severely apprehensive, fearful, alarmed or distressed about the applicant’s behaviour towards that individual or their property or that of any other individual?...
Paragraph 4.12 of the Citizenship Instructions lists a number of mitigating factors that decision makers should consider when assessing whether an applicant may be of good character. These factors relevantly include the following:[72]
· What is the length of time since the offence and conviction?
· 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?
· Has the applicant made an effort to rehabilitate? 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 dissociating themselves from a peer group or bad influences?
· 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. The person may have matured and gained greater respect for upholding the law, and criminal offences from the period of their life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences.
· Is there any other evidence that the person is of good character? 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.
[72] ibid., pages 139-140.
COMMON LAW
The term ‘good character’ is not defined in the Citizenship Act, however the Courts and the Tribunal have provided guidance on its interpretation. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Irving), the Federal Court of Australia noted at [94] that:
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 while the latter is a review of subjective public opinion.
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (Fenn), the Tribunal stated at [8] that:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.
In Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, the Tribunal said at [14] that:
When criminal offences have been committed by an applicant they will obviously be taken into account. 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.
WITNESSES
Mr Fawaz
Mr Fawaz provided the Tribunal with a statement dated 26 August 2019 in support of his citizenship application, which relevantly stated that:[73]
[73] Exhibit 2.
I came to Australia/Sydney in 2009 with my family, under the Special Global Humanitarian Program. I came here with very limited English. It was a big step for everyone in my family including my parents, to adapt to the new lifestyle…I started work hoping to achieve a better life than the one I had in Lebanon.
In 2010 my parents started having relationship issues, which led to domestic violence and later to divorce and breakdown of the family in 2011 after 29 years of marriage. That did really leave a very bad impact on me and on the whole family. I and my siblings became bewildered, confused and frustrated without guidance, leadership and directions. As a result of the new and abnormal environments, I completely became unhappy and confused; where I didn’t want to be at home and/or belong to that home!
I started hanging out with the wrong people and peers.
In December 2011 I met my wife. And without any parental support and guidance, we got married and had a child son in 2013 who was born in Rockhampton.
I was thinking at the time that if I have a family I would settle down and become a responsible man and father. However, the hardship and difficult circumstances I was experiencing proved me otherwise. It proved that I wasn’t at the right state of mind, young teenager with no support, advice and directions. It proved that I was nowhere near ready for responsibility and/or to have a family.
Few months later, family issues, quarrels and arguments became the norm in our family household. That was compounded by the fact that there was no one that we could trust and seek advice and support; even my immediate family!?
Few months later my wife left home without my knowledge as a result of the family issues. Everything collapsed around me. I was well bonded, connected and attached to my son. I developed high levels of stress and depression. I became somewhat sad and unhappy. I started going out more, felt lost and very angry, unsettled and unaccepted. I started behaving in an inappropriate way, I didn’t care about anything around me, I became careless, irresponsible and didn’t care about the consequences. As a result of my ex-wife leaving, I had to go to court in Queensland to be able to see my son. I was not coping well with all the family problems I was facing; I became very angry, frustrated, and easy prey for manipulation. I didn’t know what to do without the right and appropriate support from the people around me and/or specialised organisations, so I was creating more problems to myself and to my family.
The series of events were too much to handle. Those circumstances and events were the main contributing factors to my offending.
I appeal to your sense of judgement to consider these maters collectively which led to my offending.
My 1st offence was in 2012 drive etc when visiting privileges withdrawn, Assault occasioning actual bodily harm when I was surrounded with the wrong people, I would do things just to feel that I belong with them. Arrest Destroy/damage property in company which was finalised on the 18/8/2016 where the last offence was on the 4/11/2015.
The series of events was too much to bear, my parents’ problems, my own family problems, deprivation from seeing my son for two years and court case in Queensland were all too much and difficult to handle, realise and comprehend. They impacted on myself very badly and that really led to some serious mental health issues where I saw a psychologist for treatment of the problems, which made me realise that after all I have not achieved anything in life, I also realised that being involved with the wring people gets you to nowhere in life.
…
I do acknowledge the seriousness of the offences, however I see them as a good hard lesson for me which I have learnt.
…
I am now a completely different person, caring, responsible, understanding and mature who is trying to do the right thing to have a better future and become a good abiding citizen.
I am very sorry for my bad past, criminal and/anti-social behaviour for which I do sincerely and unreservedly apologise to the community, the authorities, courts and to any party and/or individual for security, safety, harm and inconvenience that I may have caused.
Examination-in-chief
Mr Fawaz gave evidence under affirmation to the Tribunal at the hearing. Mr Fawaz confirmed he was born in Lebanon in 1992. He is the second youngest child of his parents. Mr Fawaz also stated that in 2006 his mother came to Australia when he was thirteen years old and was not reunited with her until the rest of the family arrived in 2009. Mr Fawaz confirmed that his parents divorced shortly thereafter, which had a profound impact on him.
Mr Fawaz told the Tribunal that he was provoked by the victim of the July 2013 offence and it was a ‘two-sided’ incident. Mr Fawaz also told the Tribunal that he accepts responsibility for his actions and is very remorseful about his criminal offending. Mr Fawaz agreed that he was completely changed since 2016 in relation to his family, finances and socially.
Cross-examination
Under cross-examination from the Minister’s representative, Mr Fawaz confirmed that he is a permanent resident of Australia and learnt English following his arrival in 2009. Mr Fawaz started working as a cabinet maker soon after his arrival.
Mr Fawaz currently resides in Sydney with his mother, his younger brother. Mr Fawaz’s two minor children also currently reside with him because their mother is overseas.
In relation to Mr Fawaz’s first offence, being ‘Drive Etc When Visiting Privileges Withdrawn’, for which he appeared in Court in 2012, he said he was ‘young and all this…especially in the Western suburbs in Sydney’. Mr Fawaz said he could not recall the incident. After some time, he said he was driving while disqualified and because of the people he was associating with ‘you just want to drive and be stupid…I got caught the first time, then second time, then third time, three times in a row within a month. Then they took me to court and then they took it [his licence] for two years’.
In relation to the July 2013 offence that resulted in a charge of ‘Assault Occasioning Actual Bodily Harm’, Mr Fawaz said he pleaded guilty. He was driving his work van to a job site. Another driver was blocking Mr Fawaz’s lane. When stopped at the traffic lights, the driver started swearing at Mr Fawaz. They ‘had a punch on’ and the police were called. The driver was ‘really hurt, you know, ‘cause, he asked for trouble’. Mr Fawaz said he regretted this offence.
Mr Fawaz was asked if he was remorseful and he said, ‘of course I am’, but that at the scene the victim had a ‘metal bar in his hand and you either get hit or you self-defend yourself’. It was put to Mr Fawaz that the police records and video of the incident do not disclose that a metal bar was used. Mr Fawaz maintained that there was a metal bar being wielded by the victim, but Mr Fawaz also admitted that he started the incident. Mr Fawaz said he extracted himself from the fight and headed back to his van, but the victim still ‘wanted to go’.
Mr Fawaz said he breached his community service order because he had work at the same time and other things to attend to; his solicitor was to seek to resolve this conflict but he was already in breach of this order. He again said he was ‘regretful’, but ‘it just happened’. It was put to Mr Fawaz that he did not comply with his obligations to the Court because he wanted instead to attend work, to which he said ‘of course I didn’t think that’; Mr Fawaz admitted his breach of the community service order was self-inflicted, but went on to tell the Tribunal that he was waiting for his solicitor to ‘send papers’ for the community service or to ‘appeal’ the sentence. Mr Fawaz was asked why he did not think he was required to comply. He then said he went once to Bankstown Community Centre and recorded his name so as to not be in breach of the order. Afterwards he spoke to his solicitor and said, ‘this isn’t happening’ and the solicitor said he would investigate other options.
Mr Fawaz was asked whether at the time of the offence he had a problem with aggression and violence, to which he said that he was ‘going through a lot of depression’ because his partner had taken away his young son and moved to Queensland.
Mr Fawaz was taken to the police records that said in April 2015 he was arrested and charged with assault in relation to a domestic incident. Mr Fawaz said there was an argument between him and a ‘different girl’ and he pushed her back. The charges were dismissed and Mr Fawaz said she was ‘lying’ about the incident. Mr Fawaz ultimately agreed that he did have a problem with aggression and violence around this time, but he had matured and was focused now only on family and work. This was ‘completely different’ to his younger years.
Mr Fawaz was asked why earlier driving offences had not curtailed his behaviour. Mr Fawaz said, ‘when you get in trouble once…you’re always going to get in trouble until you wake up to yourself…even if you don’t mean to do trouble’.
Mr Fawaz was asked about the charge of ‘Destroy/Damage Property in Company’ in December 2015 for which a conviction was recorded without further penalty. It was put to Mr Fawaz that the police record represented an entirely different situation to that which he recounted to Ms North for the purpose of his psychological assessment provided for use in the Tribunal proceeding. The police records state, in summary, that a group of youths including Mr Fawaz broke into the house, forcefully knocked down a bedroom door and ransacked that room, with a public order and riot squad called to the scene. Mr Fawaz disputed this version of events and said the damage was around $1,000 for a door, a friend had asked them to attend the house, they played soccer and PlayStation, a girl at the house left and then the police attended. They were refused bail because of the police report that ‘made it so big’. The reason they were held on remand for over two months was said to be because it was Christmas time. Mr Fawaz said he did ‘nothing wrong at all’, if they wanted to do damage to the property they would have done so, and the police damaged the door that they were required to pay for.
Mr Fawaz was asked why he continued to breach the traffic laws since 2016 and up until 2019. Mr Fawaz referred to having bigger tyres than allowed on his vehicle, having a bull bar in the back of the car and travelling in excess of the speed limit. This speeding was apparently explained to Mr Fawaz by someone that aligned his wheels as being due to the ‘big wheels’ on the vehicle. Mr Fawaz said the time had passed to appeal the traffic offence.
Mr Fawaz also said he did not know his car was unregistered and was ‘so confused’ when he was pulled over but then realised that he had paid for a six month, rather than twelve-month, registration.
Finally, Mr Fawaz said he was ‘not proud’ of what he had done in the past and did not want to remember those events, but ‘it happened’ and he could not change them.
Re-examination
Mr Fawaz was asked whether he had ever shown any physical violence or anger towards his partner. Mr Fawaz said he had arguments, but he was ‘never’ violent.
In relation to the July 213 offence, Mr Fawaz said the victim ‘didn’t hit me’, he tried but he could not, because his hand was held by Mr Fawaz in self-defence. He was asked how he felt when the victim was using swear words about religion and ‘mothers’. Mr Fawaz said it causes a lot of anger, but he acknowledged he should not have reacted as he did.
Ms Kris North - Psychologist
At the request of Mr Fawaz’s representative, Ms Kris North, Psychologist, assessed Mr Fawaz over two hours on 14 November 2019. Ms North’s subsequent report relevantly stated that:[74]
[74] Exhibit 3, pages 2-10.
In summary, Mr Fawaz expressed remorse for his past offending behaviours, and it was my opinion that his one (1) offence of a violent nature was uncharacteristic of his regular behaviour as he presented with no other history of aggression. It is therefore requested that the context of this offence be taken into consideration, with Mr Fawaz alleging that he had been provoked by a racial slur and that his victim had also physically assaulted him. Despite this, Mr Fawaz accepted his behaviour had been unacceptable and had taken responsibility for his offence. With regard to his other two (2) offences, these were considered to be of a less serious nature, however Mr Fawaz had also expressed remorse for these offences.
In relation to his risk of reoffending, a pertinent issue in terms of the refusal to grant him citizenship on character grounds, Mr Fawaz was assessed to be in the low range…he presented with a stable employment history, enjoyed a strong social support network (consisting of family and friends), endorsed prosocial attitudes, had engaged in treatment, and expressed remorse and accepted responsibility for his behaviour. It is my opinion that these factors indicate him to be of god character, and it is respectfully requested that these points be taken into consideration in his current review.
…
After arriving in Australia, Mr Fawaz commenced working as a cabinetmaker for four and a half (4 ½) years prior to starting his own business at the age of twenty (20). He reported his business, Fawaz Pty. Ltd., was involved in cabinetmaking for up to two (2) years, after which time he purchased a truck and began working as a courier in 2015.
…
Mr Fawaz presented with no history of serious mental health issues. He identified he had previously completed an Anger Management Course (Enough is Enough) in 2016 after his 2014 offence…and denied any issues in managing his anger or aggression since this time. Of particular interest, Mr Fawaz denied having ever been in any other physical altercations throughout his life, indicating this offence to have been out of character.
…
Mr Fawaz was first charged in 2012 in relation to driving without a license. He received a fine and disqualification perod for this offence. He was next charged in 2014 for assault occasioning actual bodily harm (AOABH), for which he received a community service order (CSO) of 300 hours. When questioned about this offence, Mr Fawaz stated this charge was in relation to a “roadrage” incident. Her reported the car in front of him had been driving erratically, and that upon stopping the driver’s husband exited the vehicle, approached Mr Fawaz’s vehicle and called him a “muslim dog”. He stated this racist slur had provoked him, and he had punched the male prior to walking away, however the victim had subsequently come after him holding a tyre iron. Mr Fawaz stated he believed the man was going to hit him, and he grabbed a silicone caulking gun from the back of his van to protect himself. Mr Fawaz stated he subsequently hit the man and that the victim had still been attempting to continue the fight when Mr Fawaz walked away. When asked as to how he felt about this incident, Mr Fawaz stated he regretted this incident and reported he had accepted responsibility for this offence.
Mr Fawaz was charged for a breach of bail in 2015 when a former partner accused him of assault, at which point his CSO was called up and he was placed on a nine (9) month suspended sentence. Mr Fawaz stated these allegations were false and not proven in court, and as such no further charges were laid (consistent with his criminal history).
Mr Fawaz’s last offence occurred in 2015/2016 and consisted of destroy/damage property offence. He identified these charges were due to a misunderstanding, resulting in him initially being charged with a break and enter and spending two and a half (2 ½) months in remand. Specifically, Mr Fawaz reported going to a friend’s house with some mates, stating they were let into the house by his friend’s flatmate. Mr Fawaz stated his friend had asked them to wait for him and they subsequently waited at the house for up to six (6) hours, during which they played playstation and ordered pizzas. Another housemate subsequently called the police to report a break-in, resulting in the police attending the scene. Mr Fawaz stated that when the police arrived, he believed “they were trying to break in” and identified he was later charged for damage to the door caused by the police. It was noted he received a Section 10A for this offence and no conviction.
…
Whilst Mr Fawaz’s version of events does not condone his behaviour, it is my submission that the context of his offence should be taken into consideration. [Footnote: ‘However, it should be noted that the author did not have access to the Facts Sheet or Sentencing Remarks related to this offence, and as such Mr Fawaz’s account and his official criminal history were the sole basis for this opinion’.]
With regard to Mr Fawaz’s assessed risk for reoffending, this was assessed to lie within the low range according to the LSI-R [Level of Service Inventory – Revised], indicating it is unlikely he would reoffend. In addition to presenting as a low risk, Mr Fawaz has expressed remorse for past behaviours and has engaged in treatment to both reduce his risk (including anger management) and to improve himself as both a father and a person in general (including a parenting course and sessions with a Psychologist). These past treatment experiences indicate he has engaged in suitable treatment, and his most recent treatment with a Psychologist indicates he is motivated towards making further positive changes to his life.
Lastly, when questioned as to his reason for appealing the decision to refuse citizenship, Mr Fawaz identified that he considered Australia to be his home and wanted to be a part of this country. He acknowledged that it was unlikely he would lose his residency, however felt it was important that he became a citizen. Of secondary concern, Mr Fawaz also noted that his opportunities for future travel would be affected if he continued to travel of [sic] a Lebanese passport, noting there were certain countries he could not obtain a visa for.
Examination-in-chief
Ms North gave evidence under affirmation to the Tribunal at the hearing and Mr Fawaz’s representative took Ms North through her report dated 20 November 2019, to which she confirmed adherence.
Cross-examination
Under cross-examination, Ms North confirmed that her assessment of Mr Fawaz was constituted by a two-hour interview with him.
Ms North also confirmed that she was not provided with any facts of Mr Fawaz’s offences, other than his own recollection of those incidents, or with a detailed medical history or clinical notes. In this way, Ms North only had the materials to assess Mr Fawaz that were provided by him or on his behalf and was reliant on a referrer for the relevant sources of information. Ms North confirmed that she would usually have criminal and clinical records, but she did not in this situation, therefore she based her assessment on the material provided to her. To confirm, Ms North said it was unusual not to be provided with this information.
In this regard, Ms North said she requires detailed criminal and clinical records to understand a patient’s history, which is pertinent to good character and any mental or other health issues, but Ms North had to rely on the limited information she was provided for Mr Fawaz’s assessment. It was contended by the Minister that it was difficult to give Ms North’s report much weight in light of the lack of evidence before her; Ms North agreed and said she would have provided an updated report if she had received the requested information, but she had not received such information in advance of the hearing.
Following cross-examination, Ms North was not re-examined by Mr Fawaz’s representative.
CONTENTIONS
Mr Fawaz
At the hearing, Mr Fawaz’s representative informed the Tribunal that he is now 27 years old. Mr Fawaz’s mother travelled to Australia in 2006, when he was 14 years old. Mr Fawaz’s mother was granted a visa to remain in Australia because of the war between Hezbollah and Israel. Mr Fawaz and his remaining family arrived in Australia in 2009 and his parents soon divorced. Mr Fawaz had little or no support as a result of this family breakdown. He therefore did not have assistance in settling in Australia.
It was acknowledged that the July 2013 offence, of which Mr Fawaz was subsequently convicted of Assault Occasioning Actual Bodily Harm, was ‘very serious’. It was also noted that the 2015 offence attracted a conviction but no further penalty. This offending was submitted to not be at a level of seriousness to warrant the Tribunal refusing Mr Fawaz’s application for Australian citizenship.
It was contended that Mr Fawaz did not currently present an unacceptable risk to the Australian community. Mr Fawaz’s previous criminal offending was said to be due to frustration, anger, confusion, a lack of support and guidance; he had no offences before 2014 and none after 2016. This was contended to not be an extensive criminal record and therefore a decision maker could not conclude that Mr Fawaz presents an unacceptable risk to the community. They were said to be isolated incidents that needed to be seen in the context of his relationship breakdown and the resulting loss of contact with his then only son. In this regard, Mr Fawaz was said to have very clear records for the last three and a half years; he is very remorseful; and he has matured.
It was further contended that Mr Fawaz has expressed remorse for his conduct. He was said to be very sorry for his past offences and to have learned a good lesson from his anti-social, criminal behaviour. In this way, the Tribunal was informed that Mr Fawaz accepted full responsibility for his actions and the accompanying punishment.
Mr Fawaz was said to be a hard-working, responsible family man. He cares for his mother, partner, children and siblings. Mr Fawaz runs his own successful business sub-contracting with the transport and logistics business, Mainfreight, for which he owns two trucks. Mr Fawaz was said to pay his and his business’ taxes as required and has bought a property in Braidwood, NSW, which is currently leased. Mr Fawaz was also said to own multiple cars and a boat.
It was submitted that the Department would not have granted Mr Fawaz a visa to travel from Australia to Lebanon in 2017[75] if it was concerned about his character. In this way, it was contended that Mr Fawaz had met all the requirements of the Citizenship Act for him to be eligible for conferral of Australian citizenship, except for one requirement because a delegate of the Minister did not consider he was of good character. Mr Fawaz, it was submitted, should be given another chance; he has had ‘very clear records’ for three and a half years, he is a mature, hard-working and committed person and is not a risk to the Australian community. Mr Fawaz was said to love Australia and consider it his home.
[75] Exhibit 1, T2, page 13; T4, page 162.
By way of closing submissions, it was contended on behalf of Mr Fawaz that when the offences were committed, he was new to Australia and did not know its legal system; Mr Fawaz was immature and too young to understand what was happening around him. Mr Fawaz was not provided with information about the effect of a community service order and a breach of such order. In this way, it was submitted, Mr Fawaz had a lack of experience and knowledge, with no support.
However, it was contended, Mr Fawaz has changed and he has explained the circumstances surrounding his offences, including the traffic incidents. Mr Fawaz has ‘worked hard’ on himself and attended courses to do so. His earlier lack of support and personal circumstances led him to make bad choices, but he has reformed and should be given an opportunity to be conferred Australian citizenship; a reasonable amount of time has passed since his last offence.
The Minister
By way of his Statement of Facts, Issues and Contentions dated 11 October 2019, the Minister contended that Mr Fawaz’s criminal history shows that he has been convicted of three offences, comprising one driving offence, a violent offence and one property damage offence. Additionally, Mr Fawaz has had a significant number of interactions with the police from 2013 onwards, with the most recent being in 2019.[76]
[76] Respondent’s Statement of Facts, Issues and Contentions dated 11 October 2019, page 8.
In relation to the offence of ‘Assault occasioning actual bodily harm’ in July 2013, the Minister noted that it arose from a road rage incident, which Mr Fawaz rapidly escalated, and was said to be the primary perpetrator, by punching the victim to the head and attempting to and in fact striking the victim in the head with a glue gun while his co-offender restrained the victim so he could not defend himself, which attack resulted in lacerations to the head requiring stitches. The Minister further noted that the disagreement leading to the offence appears to have been provoked by Mr Fawaz and his co-offender, they resisted attempts to de-escalate the altercation and the incident occurred in a public area, while Mr Fawaz and the victim were driving.[77]
[77] ibid., page 9.
While Mr Fawaz was sentenced for this offence in October 2014 to a community service order of 300 hours, he was re-sentenced in March 2015 for failing to comply with his obligations under the order. As a result, Mr Fawaz received a suspended sentence upon entering a bond for 9 months.[78]
[78] ibid.
Accordingly, the Minister submitted, Mr Fawaz’s offence is objectively serious; it is an offence under section 59 of the Crimes Act 1900 (NSW) where conviction can attract imprisonment for 7 years. While Mr Fawaz did not receive a custodial sentence, the maximum sentence highlights its seriousness. In this regard, it was contended, the offence demonstrates Mr Fawaz’s ‘violence towards a member of the Australian community, in which he deliberately sought to cause harm to his victim’.[79] The Citizenship Policy refers to the expectation that a person of good character would not be violent and would not cause harm to others. Additionally, Mr Fawaz’s lack of compliance with the original sentence demonstrates that he was unable to comply with court orders, and the Citizenship Policy refers to the expectation that a person respect and abide by the law in Australia.[80]
[79] ibid.
[80] ibid.
In relation to the offence ‘Drive Etc When Visiting Privileges Withdrawn’ in October 2012, the Minister noted that Mr Fawaz’s NSW driver privileges had been withdrawn for a period of three months between September and December 2012 because he was deemed not to be a fit and proper person in light of his recorded offences.[81] The Minister further noted that Mr Fawaz has been ‘pulled over by police on at least 16 occasions between 2011 and the present’ and issued with the following infringement notices: 5 for speeding; 3 for driving an unregistered registrable vehicle; 1 for negligent driving; and 7 for other offences.[82] Accordingly, the Minister contended, Mr Fawaz’s traffic offences involve repetitions of the same conduct, they do not include any additional infringement notices issued by NSW Roads, the offences should be considered holistically, with their frequency and seriousness evidencing a pattern of recklessness and disregard for Australian road laws which the Tribunal has observed ‘go to the essential safety of the community’.[83] In this regard, the repeated and cumulative nature of multiple driving offences can be taken to indicate ‘a disrespect and/or disregard to that aspect of the law’, notwithstanding that each individual offence might be considered on its own to be less serious, and indicates a disregard for Australian laws and the safety of other road users[84] and is inconsistent with Australian community values.[85]
[81] ibid., pages 9-10.
[82] ibid., page 10.
[83] Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] (Apire); Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7].
[84] Amosa and Minister for Immigration and Border Protection [2015] AATA 55 at [33]; Brown and Minister for Immigration and Border Protection [2015] AATA 414 at [25]-[26]; Apire; Nejat and Minister for Immigration and Border Protection [2014] AATA 453 at [32].
[85] Respondent’s Statement of Facts, Issues and Contentions dated 11 October 2019, page 10.
In relation to the offence of ‘Destroy/Damage Property in Company’ in December 2015, the Minister submitted that the conduct and surrounding circumstances should be viewed as objectively serious; although a non-conviction order was imposed on Mr Fawaz he was at least associated with people who were involved in drugs, anti-social or criminal behaviour; Mr Fawaz was still subject to the suspended sentence order imposed in November 2015 following being re-sentenced for the July 2013 road rage offence demonstrating his disregard for, and non-compliance with, court orders; this repeat offending demonstrates that Mr Fawaz is not of good character and there is no meaningful or substantive evidence illustrating his remorse.[86]
[86] ibid., page 11.
In relation to Mr Fawaz’s breaches of bail between October 2014 and March 2016, the Minister contended that, although the charges for which Mr Fawaz was on bail during these breaches were withdrawn, the breaches represent a disregard for the law and for obligations owed to a court and weigh against a finding of good character.[87]
[87] ibid.
In relation to mitigating factors, the Minister noted that there are a number of potential mitigating factors which may weigh in favour of a finding that Mr Fawaz is of good character. However, these factors are outweighed by the seriousness of Mr Fawaz’s offending and the insufficient period of compliance with the law in order for the Tribunal to be satisfied that he is presently of good character. In this context, the Minister contended, Mr Fawaz has not provided any evidence demonstrating that he is genuinely remorseful for his offending, takes responsibility for his offences and that he has any insight into his conduct.[88]
[88] ibid., page 12.
The Minister further submitted that the three statutory declarations provided on behalf of Mr Fawaz in support of his application state that they are aware of his criminal history, but do not provide any specific detail about his offending and they also do not comment on or acknowledge Mr Fawaz’s other interactions with the police.[89]
[89] ibid., pages 12-13.
At the hearing, the Minister’s representative noted that the test under the Citizenship Act is not whether Mr Fawaz is of bad character, but whether he is of good character. The Minister contended that Mr Fawaz’s criminal history weighs against the Tribunal finding that he is of good character for the purpose of subsection 21(2)(h) of the Citizenship Act and he is accordingly not eligible for citizenship pursuant to subsection 24(1A) of the Citizenship Act. Therefore, the Minister submitted the Tribunal should, in accordance with subsection 43(1)(a) of the AAT Act, affirm the decision under review to refuse to grant Mr Fawaz Australian citizenship.
CONSIDERATION
The Tribunal is not satisfied that Mr Fawaz is of ‘good character’ as required by subsection 21(2)(h) of the Citizenship Act to be eligible to become an Australian citizen.
It was not in dispute between the parties that Mr Fawaz meets all other requirements to be eligible for Australian citizenship under subsection 21(2) of the Citizenship Act. However, at this time, the Tribunal is not satisfied that Mr Fawaz meets the requirement to be of good character in order to be eligible for conferral of Australian citizenship.
When considering Mr Fawaz’s criminal offending and traffic offences in their totality, the Tribunal cannot at this time be satisfied that he is of good character. In making this assessment, the Tribunal has considered Mr Fawaz’s application for Australian citizenship together with all the evidence before the Tribunal, including the Citizenship Policy, the Citizenship Instructions and previous Court and Tribunal decisions regarding an assessment of good character.
The Tribunal finds that Mr Fawaz has not had any interactions with the police for approximately one year, he is running his own business and has a good relationship with his two children. Mr Fawaz has also started to develop positive links and make contributions within the community. This is evidenced by the statutory declarations provided in support of Mr Fawaz’s application for Australian citizenship, while noting that they do not address the specific details of his offending or other interactions with police.
The Tribunal finds that Mr Fawaz’s very recent positive behaviour is outweighed by his criminal offending and long-running engagement with police since 2011. The length of time since Mr Fawaz’s last offence is a relevant mitigating factor, but his obligations to the Court pursuant to a suspended sentence only expired 14 months before making his application for citizenship in October 2017 and his most recent interaction with the police was in 2019, after his application for citizenship was made to the Department. In this regard, the Tribunal said in Apire that the applicant’s ‘record of repetitive offending, albeit not involving serious deceit or crimes occasioning actual harm, points to another aspect of his character which has led him to flout Court orders, disregarding the law and any potential harm that may result from his behaviour’.[90] In Mr Fawaz’s case, he has a long and largely unbroken record of repetitive offending from 2011 to 2019 and has been convicted of a crime involving actual bodily harm which, from the police report, saw him assault another person in 2013 with his fists and a glue gun, the latter attack occurring while the victim was being restrained by Mr Fawaz’s co-offender. Plainly, this is an objectively serious offence; it attracts a maximum custodial sentence of 7 years in NSW, where it was committed. Mr Fawaz was re-sentenced for this offence because he breached a bail condition following his conviction, further demonstrating a disregard for Australian laws. In evidence before the Tribunal, Mr Fawaz sought to downplay the incident and his involvement in the attack on the victim. In this way, the Tribunal considers that Mr Fawaz has a lack of insight into his offending that further weighs against a finding of good character.
[90] Apire at [21].
Mr Fawaz continued to offend after 2013, which also included numerous traffic offences, ranging from unlicensed driving to excessive speeding, thereby putting the Australian community at risk because of his wilful disregard for the road laws. In 2016, while still owing obligations to the Court from his conviction for assault in 2014, Mr Fawaz was convicted of a further offence, being ‘Destroy/Damage Property in Company’. Again, Mr Fawaz sought to downplay this incident and said in evidence that he had done nothing wrong, despite his criminal conviction. This demonstrates a lack of insight from Mr Fawaz into his offending. Additionally, seeking to assign blame to Mr Fawaz’s solicitor for breaches of his bail conditions and to victims for their assault further evidences a limited insight into offending or breaches of Australian laws. It also potentially demonstrates a risk of reoffending, although the Tribunal considers this to be a low risk. However, in this regard, the Tribunal can only give minimal weight to the report of Ms North, Psychologist, given she was not apprised of the usual documentation, being criminal or clinical records of Mr Fawaz, required to make a full assessment of his psychological state, including the risk of reoffending. Ms North readily admitted under cross-examination that, despite her requests, she was not provided with the requisite documentation in order to make a full assessment of Mr Fawaz.
While taken in isolation, each of Mr Fawaz’s traffic offences may not be objectively serious sufficient to lead to the conclusion that he is not of good character, their cumulative effect over such a long period of time demonstrates Mr Fawaz’s continued breaches and disregard of Australian laws.
The Tribunal accepts that a mitigating factor weighing in Mr Fawaz’s favour is his relationship with his two children, his family and his developing work and community connections. These were evidenced by the statutory declarations provided by people known to Mr Fawaz in support of his application for citizenship. However, these factors do not outweigh the factors finding that Mr Fawaz is not of good character. That is not to say that Mr Fawaz is of bad character, which is not the test under the Citizenship Act.
The Federal Court in Irving stated that ‘good character’ referred to the ‘enduring moral qualities of a person’. The Citizenship Policy states that ‘good character’ refers to these enduring moral qualities being ‘an indication of whether an applicant is likely to uphold and obey the laws of Australia’. The Citizenship Policy provides that ‘enduring moral qualities’ means, amongst other things, ‘distinguishing right from wrong’; and ‘behaving in an ethical manner, conforming to the rules and values of Australian society’.[91] Plainly, based on the Tribunal’s findings, Mr Fawaz does not meet these principles set out in the Citizenship Policy. More specifically, the Tribunal is not satisfied that Mr Fawaz is of good character because he does not demonstrate ‘good enduring/lasting moral qualities’.[92] In this regard, the Tribunal’s determination as to whether an applicant meets the requirement for good character ‘imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions…the expression [good character] requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship’.[93]
[91] Exhibit 1, T3, page 96.
[92] ibid.
[93] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51].
The Tribunal finds that an insufficient period of time has passed for Mr Fawaz to demonstrate his enduring moral qualities. Mr Fawaz has been convicted of a violent offence and has a significant number of traffic offences which demonstrate that he has little regard for Australia’s laws, evidenced by these offences spanning the period from 2011 to 2019. The totality of the evidence in relation to Mr Fawaz’s convictions and traffic offences, together with the lack of insight into his offending apparent from his evidence, leads the Tribunal to the conclusion that there are deficiencies in the moral qualities of Mr Fawaz that have not yet been sufficiently addressed or rectified at this time and the Tribunal is therefore not satisfied that he is of good character under the Citizenship Act so as to be eligible for the conferral of Australian citizenship.
Accordingly, the Tribunal is satisfied that the Australian community would not consider that a person of good character would have behaved in the manner in which Mr Fawaz has been found to have done between 2011 and 2019, including during the time when his application for citizenship was being considered by the Department. As a result, because the grant of Australian citizenship is a privilege not bestowed lightly,[94] an applicant must be found to be of good character; at this stage, the Tribunal is not satisfied that Mr Fawaz meets that requirement for eligibility to become an Australian citizen.
[94] Fenn at [8].
CONCLUSION
The Tribunal acknowledges that Mr Fawaz and his family experienced difficult events surrounding their settlement in Australia from 2009. However, Mr Fawaz secured employment and a driver’s licence shortly after his arrival in Australia. On balance, the Tribunal is not satisfied that Mr Fawaz’s offending was the result of his poor transition into the community and failure to understand Australian laws. This offending is central to the question of his character and enduring moral qualities.
For the reasons sets out above, the Tribunal is not satisfied at this time that Mr Fawaz is a person of good character. He is therefore not eligible to be conferred Australian citizenship, because he does not meet all of the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.
The Tribunal notes for completeness that Mr Fawaz is a permanent resident of Australia and can re-apply for Australian citizenship in the future.
DECISION
The decision under review is affirmed pursuant to section 43(1)(a) of the AAT Act.
I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 20 April 2020
Date(s) of hearing: 30 March 2020 Date final submissions received: 11 October 2019 Representative of the Applicant: Mr Atef Hamie, Metro Assist Ltd. Solicitors for the Respondent: Mr Christopher Brinley, Clayton Utz Lawyers
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