Hadri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Hadri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 41 (25 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/1597
Re:Alaa Hadri
APPLICANT

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

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:25 January 2021
Place:Sydney

The Tribunal sets aside the reviewable decision and remits the matter to the respondent for reconsideration with a finding that the applicant is a person of good character.
................................[sgd]..........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal – good character requirement – drug use – resist officer – negligent driving – effluxion of time – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Irving v Minister of Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
SECONDARY MATERIALS
Citizenship Procedural Instruction (CPI) 15 – Assessing Good Character under the Citizenship Act 2007 (CPI 15)
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
25 January 2021
INTRODUCTION

The applicant is a 39 year old citizen of Syria.[1] He arrived in Australia on 24 May 2007, sponsored by Ms Zahraa Hadri, his Australian born fiancé, on a prospective marriage visa.[2] They were married on 9 September 2007,[3] and have four children, two girls and two boys, all born in Australia.[4] Since 31 March 2011, the applicant has held a Partner (Permanent) (Subclass 801) visa.[5]
[1] T1/2.
[2] T2/7.
[3] Transcript, 6 October 2020, p 10.
[4] T5/62, 63.
[5] T2/7.
On 19 September 2018, the applicant lodged an application for citizenship under the Australian Citizenship Act 2007 (Cth) (the Act).
On 28 February 2020, a delegate of the Department of Home Affairs (the Minister’s delegate) decided to refuse the application on the basis that the applicant was not at the time of the decision, a person of good character (the reviewable decision).
On 18 March 2020, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the reviewable decision.[6]
[6] His first application for Australian citizenship, lodged on 8 May 2013 was refused on 29 August 2013. On 28 August 2014, he lodged a second application, which was refused on 3 November 2014. On 11 October 2016, he lodged a third application, which was refused on 28 March 2017: T2/7.
In his application for review to the Tribunal, the applicant was invited to respond to the question: Why do you claim the decision is wrong? His response was as follows:
I have previously applied for the citizenship and it was refused, then I applied with the AAT for an appeal where the decision was made to wait a period of time before I reapplied, to see if that would change the decision that was made. since then I have reapplied and the citizenship was refused for the same reason as last time. I would like to have the decision reviewed hoping for better outcome.[7]
[7] T1/4.
THE HEARING
The applicant was heard by the Tribunal on 6 October 2020.
The material before the Tribunal consists of materials tendered by the respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents). The respondent also provided a Tender Bundle consisting of NSW Police Records.
The T documents included a number of references provided by the applicant in support of his application:
(a)15.01.20 Statutory declaration of Mona Nahle
(b)15.01.20 Statutory declaration of Rafaela Vasilevski
(c)23.01.20 Statutory declaration of Yousef Zreik
(d)23.01.20 Statutory declaration of William Arthur Lewis
(e)24.01.20 Statutory declaration of Khaled Halabi
(f)24.01.20 Statutory declaration of Mohamed Ali Halari
(g)25.01.20 Statutory declaration of Panjhella Keshvardoust
The applicant gave evidence. The applicant’s wife, Ms Hadri, also gave evidence in support of her husband. Each was examined by the solicitor representing the respondent.
THE APPLICANT’S CRIMINAL RECORD
The applicant’s record shows eight convictions in total: six recorded in 2009, one in 2013 and one in 2016. None of the offences resulted in imprisonment, or suspended sentences of imprisonment. The most serious penalty imposed was that of a 12 months good behaviour bond.
There are references in the police notes to other incidents which, though troubling, did not lead to criminal charges.
A. Criminal offences
(a)Six offences dealt with on 3 June 2009 (committed 10 March 2009); namely
(i)Negligent driving (not occasioning death/gbh) ($400 fine);
(ii)Resist officer in execution of duty (12 months bond);
(iii)Destroy or damage property < $2,000 (12 months bond);
(iv)Possess prohibited drug (12 months bond and attendance at drug program);
(v)Two counts of stalk/intimidate intend fear of physical/mental harm (12 months bond). [8]
(b)A property damage offence committed on 10 March 2013 (sentenced to a good behaviour bond to comply with the terms of an apprehended violence order (AVO) made on 20 June 2013);[9] and
(c)A drug possession offence committed on 7 January 2016 and dealt with on 3 February 2016 ($800 fine).[10]
[8] Tender Bundle, 17.
[9] Tender Bundle, 12.
[10] Tender Bundle, 9.
B. Other incidents in the Police Record
In addition to the criminal convictions, there are some troubling incident reports in the files of the New South Wales Police.
·22 December 2010: an allegation of assault, subsequently withdrawn, by a person described as the applicant’s ex-partner. The applicant did admit to having a three-month affair with this person;[11]
·8 February 2011: file note confirming that the initial complaint had been withdrawn by the person;[12]
·15 February 2011: police caution regarding possession of small quantity of cannabis;[13]
·14 January 2017: the applicant was cautioned in relation to interactions with his former sister in law, who complained to the police about him.
·30 May 2020: allegation of smoking cannabis and throwing property off second story balcony and appearing naked on the balcony.[14]
[11] Tender Bundle,14.
[12] Tender Bundle, 15.
[13] Tender Bundle, 14.
[14] Tender Bundle, 3.
LEGISLATIVE AND POLICY FRAMEWORK
Under the general eligibility criteria for citizenship specified in paragraph 21(2)(h) of the Act, a person is eligible to become an Australian citizen if the Minister is satisfied that the person, inter alia, is of good character at the time of the Minister’s decision on the application.
By virtue of subsection 24(1A) of the Act, the Minister must not approve a person becoming an Australian citizen unless the person satisfied the eligibility criteria under subsection 21(2).
The task for the Tribunal is to determine whether the applicant is of good character at the time of the Minister’s decision on the application, which for present purposes is the time of the Tribunal’s decision: see BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [3] per O’Bryan J; VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [32] per Banks-Smith J. In confirming that the relevant time for consideration of the applicant’s character is the time of the Tribunal’s decision, Banks-Smith J noted:
I also note that the term 'good character' is not defined in the Citizenship Act, which indicates that Parliament intended the term to be used in a broad way and allows the decision-maker to consider a range of events and conduct connected with the applicant: Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128 at [60] (Perram, Yates and Mortimer JJ); and BOY19 at [46]‑[53]. A construction of s 21(2)(h) that does not limit the use of subsequent relevant information is consistent with that intention.
Based on the applicant’s criminal history, the Minister’s delegate was not satisfied that the applicant was of good character under paragraph 21(2)(h) of the Act, and was therefore required, by reason of subsection 24(1A), to refuse the application.
In deciding whether the Applicant is of good character, the Tribunal is required to take into consideration the material that was before the Minister’s delegate and any new material before the Tribunal.
In Irving v Minister for Immigration, Local Government and Ethic Affairs (1996) 68 FCR 422, the Full Federal Court considered a challenge to the Minister’s decision to refuse to issue a visa on character grounds. The following passage from Lee J’s judgment has been widely quoted.
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.[15]
[15] (1996) 68 FCR at 431-432.
The concept of ‘enduring moral qualities of a person’ provides the bedrock notion of good character. It is consistent with the notion that the content of a person’s character is the sum of a person’s deeds, and that an occasional lapse of moral virtue does not strip a person of good character, unless the wrongful deed or deeds is or are particularly heinous. A person’s character is judged holistically, and has to do with a person’s moral propensities. A person’s conduct over a period of time provides the best indication of these enduring moral qualities. A person’s reputation is more transient. It can be lost in an instant on the basis of a single instance. A person may be of good character even though their reputation has been sullied by a particular event; just as a person who would not be regarded as of good character may be highly regarded in some quarters.
The Tribunal was referred to the Citizenship Procedural Instruction (CPI) 15 - Assessing Good Character under the Citizenship Act 2007 (CPI 15).[16] CPI 15 states, under the heading ‘Procedural Instruction’:
[16] T4/33-55.
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.[17]
[17] T4/36.
Paragraph 4.3 of CPI 15 provides:
4.3 What is good character
Definition
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431-432:
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not 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… 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.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character. [emphasis added]
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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
Paragraph 4.4 of CPI 15 provides:
4.4 An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision maker must exercise any statutory discretion bearing in mind the facts of any particular case.
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.[emphasis added]
Paragraph 4.6 of CPI 15 provides:
4.6 Assessing good character under the Act
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
·A good decision-maker does not seek out and only consider information that supports the decision that they want to make. All relevant information must be considered. This includes all information before the Department whether or not that information was provided for the purposes of a citizenship decision.
·Information such as character references provided by people who know the applicant must also be considered.
·Decision-makers must guard against making erroneous assumptions.
Paragraph 4.7 of the CPI 15 sets out a non-exhaustive range of factors that a decision-maker may take into account in determining whether a person is of good character.[18] It is stressed that the decision-maker must take into account all the relevant facts of the case.
[18] T4/43.
One aspect concerns how the applicant has behaved with regard to government officials, and specifically whether the applicant has been honest in his or her dealings with Government. The provision of false or incorrect information to a government department may be particularly relevant in this regard.[19]
[19] T4/43.
Paragraph 4.7 also provides guidance with respect to the assessment of criminal offending.[20] The decision maker must determine whether the offence is serious.
[20] T4/44-45.
For example:
·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
·war crimes, crimes against humanity, genocide;
·crimes against children;
·drug trafficking (including importation and supply);
·people smuggling;
·fraud (including identity fraud);
·harassment or stalking
·terrorist activity
·extortion;
·illegal pornography, including child pornography
·breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
·offences incurring prison sentences of 12 months or more.

Paragraph 4.7 also refers to the assessment of the relative seriousness of the offending.
Assessing the relative seriousness of the offence
·Consider the length of the sentence. Longer sentences carry more weight on a person’s character.
·Are there any ongoing obligations such as a good behaviour bond? …
·Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information…
·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
·Were there victims of the offence? Were they children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?
Paragraph 4.7 also refers to a pattern of criminal behaviour and states:
A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.[21]
[21] T4/45.
Paragraph 4.7 also refers to the relevance of pre-meditation in this context.
Sentencing remarks or court transcripts may provide insight into whether or not the judge was of the view that the offence was pre-meditated. That is, the person planned the offence. Pre-meditated offences would usually incur a heavier sentence, and therefore be given more weight in the assessment of character.[22]
[22] T4/45.
Paragraph 4.11 provides guidance on weighing the information.
Paragraph 4.12 refers to mitigating factors in considering whether the applicant could be of good character despite the adverse information.
·Has the applicant made an effort to rehabilitate?
·What the applicant’s age at the time the offence was committed?
·Were there any extenuating circumstances relating to the offence?
The Tribunal is required to make a judgment about the applicant’s character, but that does not mean that his entire life must be weighed in the balance. It is inevitable that there will be a sharp focus on matters which have caused the decision-maker to decline to make a finding of good character. The focus on specific instances of a negative character should not detract from the broad range of factors, positive and negative, that bear upon the applicant’s ‘enduring moral qualities’.
The delegate’s decision focuses heavily upon the applicant’s criminal record. The decision record notes:
In your response to the Departments letter dated 16/12/2019, you have provided a statutory declaration, acknowledging your criminal record. In your declaration you state you have been in Australia for 13 years. You state that you have been involved in a couple of incidents where you were caught in conflicts. You state that you were at a friends house in 2009 and that you don’t recall anything that happened that night until you woke up in hospital. You state that you had taken some prescription painkillers with a mix of alcohol and marijuana, which caused the effects of you not being aware of your actions. You state that you and Glen made up and that you apologised for the offence.
You state that in 2013 there had been some prior issues between you and your wife’s Uncle. You state that you asked the Uncle to leave your home as you were angry at him for prior issues and that as you got up to leave you took your anger out on his car. In relation to the 2016 offence you state that you forgot that you had marijuana in your back pocket and that you were caught in possession of the drug. You state that you are a changed person and that you try to keep away from conflict. You state that you have grown as a person and as a member of your community. I give this statement some weight in my assessment of whether you are of good character.
I am guided by the court’s finding of your guilt, the pattern of serious offences involving violence from 2009 to 2016, the sentences imposed upon you and the Australian community rightly having no tolerance for your offences. Based on these factors, I find that the offences you have committed were serious, and give this significant weight in my assessment. [emphasis added]
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.
In your response to the Departments letter dated 16/12/2019, you have provided a number of statutory declarations in support of your application. The declarations state that you are a kind, generous and helpful person. Whilst the declarations state you are polite, respectful and hard-working they do not acknowledge your criminal record. Therefore, I give these statements lesser weight in my assessment of whether you are of good character.
On 03/02/2016 you were last sentenced by Liverpool Local Court and it is acknowledged that you appear to have committed no further offences since 2016. The Policy states that a reasonable amount of time will need to have passed since the end of an obligation to a court in order for you to establish a pattern of good behaviour sufficient to justify a conclusion that you are of good character. I find that the definition of good character as defined in Citizenship policy makes reference to the enduring moral qualities of a person. The phrase ‘enduring moral qualities’ encompasses characteristics which have been demonstrated over a very long period of time, distinguishing right from wrong and behaving in an ethical manner and conforming to the rules and values of Australian society. Having regard to the circumstances and serious nature of your serious offences between 2009 and 2016, I am not satisfied that a reasonable amount of time has passed to convincingly establish a pattern of good behaviour. I give this factor considerable weight in my assessment of whether you are of good character. [23]
[23] Letter dated 28 February 2020: T19. The Decision Record may be found at T2/7.
It is apparent that the decision maker found against the applicant by reference to an assessment of the serious nature of the criminal offending.
ANALYSIS
The 2009 offending
The most serious offending took place in March 2009, not long after the applicant’s arrival in Australia. The police notes are as follows:
About 6.30pm on Tuesday the 10^th of March 2009 victim 1, was at her home address of Also at the address was victim 2, the accused, Alaa HARDI and another male only known as Titu. The accused, victim 2 and Titu began consuming alcohol (beer) at this time as well as smoking cannabis. The accused, victim 2 and Titu had been drinking and smoking for about an hour and a half when the accused began to talk and then yell in a language that wasn't English. The accused has stood up from his seat and ripped his shirt off. At this point victim 2 has told victim 1 to leave the room.
Victim 1 has gone to her bedroom and closed the door. The accused walked out the front of the address but returned back into the lounge room a short time later. The accused has walked towards victim 2 and a wrestle has ensued with victim 2 having to restrain the accused by grabbing his arms. Victim 2 let go of the accused and walked into the kitchen the accused followed him. As the accused walked past the dining room table he picked up a chair and smashed it through the glass top of the lounge room table… Victim 1 was still in her bedroom at this stage and had locked herself inside of her wardrobe. Victim 2 tried to calm the accused down with no effect. The accused just yelled at victim 2," I'm gonna kill everyone".. Victim 2," Look at what you've done to my house". The accused said," Fuck your house" The accused began to the leave the address and said," Fuck you. I'll come back and kill you tomorrow". . The accused walked out of the house and got into vehicle and drove away from the address. . During this entire incident victim 1 and 2 felt scared and intimidated by the actions of the accused.. Shortly after the accused was driving north along Waminda Avenue, Campbelltown in vehicle… when he veered left off the road. The rear near side of the vehicle collided with a telegraph pole causing the vehicle to spin and end up facing south along Waminda Avenue. The accused exited the vehicle and walked in a northerly direction along Wamdina Avenue. A short time later Police arrived and located the accused. At which point he was cautioned and arrested. All safeguards under s201 of The Law Enforcement (Powers and Responsibilities) Act 2002 were complied with whilst dealing with the accused. The accused was directed by Constable to lay down on the ground to which the accused complied.
Constable approached the accused and attempted to handcuff him at which time the accused flung his hands up away from Constable and attempted to stand up. Constable forced the accused to the ground and restrained him once he was on the ground. The accused was searched and during this search a small package wrapped in newspaper was found in his left front pocket. Constable retained the package and placed the accused into the rear of a caged vehicle. The accused was transported to Campbelltown Hospital and treated for a small laceration to his forehead which was caused during the accident.. Whilst at the Hospital Constable opened the package and inside was a small resealable clear plastic bag containing a green vegetable matter. Whilst at the Hospital the accused had blood and urine samples taken. The accused was treated and taken to Campbelltown Police Station. Upon arrival the accused was taken to the Custody Room and introduced to the Custody Manager. The green vegetable matter was weighed inside of a small clear plastic resealable it came to a weight of 9.7 grams. Due to Police being of the opinion that the accused was under the influence of a mixture of drugs and alcohol he was not interviewed. The accused was then charged with the matters before the court. Police are seeking compensation on behalf of the victims in the amount of $300 for the damage to the table.[24]
[24] Tender Bundle, 16-17.
Sometime after this incident, the relationship between the applicant and his wife broke down completely, and they decided to separate.
Between July and October 2010, the applicant had a relationship with another woman. This relationship ended badly, with allegations and counter allegations of assault. The police investigated but took no action.[25]
[25] Transcript, 6 October 2020, p 54.
Perhaps surprisingly, the applicant’s marriage survived this turmoil, and they resumed cohabitation in late 2010.
The 2013 property damage offence
This was a property damage offence committed on 10 March 2013, for which the applicant was sentenced to a good behaviour bond to comply with the terms of an apprehended violence order (AVO) made on 20 June 2013.[26]
[26] In relation to the interaction said to have occurred on 10 March 2013, the applicant was with his uncle in law, swearing at him and threatening him with a knife (not charged with assault or threatening or stalking – only property damage).
This offence involved the infliction of damage to a motor vehicle belonging to a family member. The police attended but nobody present was willing to give a statement to the police with some saying that it was essentially family business.
In evidence, the applicant admitted that he smashed the windows of his wife’s uncle’s car. He said that he attended at a family gathering and was angry to see his wife’s uncle there because of a previous falling out. The applicant held the uncle responsible for causing such shock to his wife that she lost a baby. In evidence, he explained the falling out as follows:
The thing is what happened, look, you know, since we are talking about things here, so I want to be clear about it, you know, because it’s, yes, it’s a serious matter that we are dealing with at the moment here. My sort of, you know, case. But the thing is, I believe ‑ I believe that, because the uncle, okay, sent something to my house and my wife was in the house. And she got scared.
…he actually sent some drugs to the house.
And when my wife saw the drugs, she sort of, you know, panicked, you know. Got really, really scared. And that’s why she had a miscarriage (indistinct) ‑ ‑ ‑[27]
[27] Transcript, 6 October 2020, p 44.
She didn’t actually see the drugs. As soon as she heard that it is drugs, she got panicked, you know, scared. And that’s what happened. And that was the reason why she had a miscarriage. The thing is, I don’t believe that he should have done anything like that, you know. I believe he, sort of, you know, exploited in a way his niece, you know, in order to do something like this. My wife doesn’t smoke, doesn’t do anything whatsoever, like, you know. She doesn’t even want to hear about drugs. But that’s what happened. As soon as she heard, you know, the word drugs, she got really very scared and she had a miscarriage.
MS ROBERTS: So Mr Hadri, are you saying that your wife’s not aware of your history of drug‑taking?
WITNESS: She will never see the drugs, my wife. That’s what I’m believing. She will never even (indistinct)…
I didn’t know about, actually, what the uncle sent home, you know. I didn’t know anything about it, you know, until, you know, after the miscarriage and we had a chat about it. That’s when I was, or I became aware of the fact that he was sending some drugs home.
SENIOR MEMBER: But where was he sending the drugs from?
I don’t know. To be honest with you, I don’t know. But the thing is, when that incident happened, or took place, we had some sort of a misunderstanding ‑ no, we had some sort of an argument or discussion, and I, since then, you know, I didn’t have anything to do with him. And it wasn’t until I saw him at the in‑laws’. [28]
[28] Transcript, 6 October 2020, p 45.
…
SENIOR MEMBER: And what happened to the drugs that were sent to your house?
INTERPRETER: The thing is I don’t know exactly, I don’t know if there was drugs or back then I didn’t know if there was drugs or not. The thing is what happened is the uncle came to us, you know, came to our house and he slept over and then the following day I wasn’t home, okay. And we received a slip from the postman, okay, to go and collect the parcel from the post office, okay. And it didn’t have a name on it but because, you know, the address was our address so my wife decided to go and collect with the uncle. So the uncle asked her to go and collect the parcel. So that’s what happened. They went to the post office, they collected the parcel and that’s what happened. But we did not know that there were drugs until afterwards when one of the family members or relatives told us that, you know, he usually deals with drugs and he sends or he receives drugs via post.
SENIOR MEMBER: So why did he take your wife with him to the post office to collect drugs?
INTERPRETER: Because the street that was left over there had the address, our address, my home address. In order for someone to go and collect the parcel from the post office they needed to have some form of identification card or some form of identification with the address on it.
SENIOR MEMBER: And what was the relationship between this man and yourself, exactly?
INTERPRETER: Well, it was all respect, you know. I used to respect him. We had that sort of, you know, mutual respect, you know. The fact that he is the uncle of my wife which sort of, you know, like, you know, like her father, so we have that respect, sort of mutual respect between us. And I remember that I visited him once and that’s part of our traditions, you know, you have to respect, you know, the uncle of the – your wife, you know, the same as you respect the father.
SENIOR MEMBER: Do you know, Mr Hadri, what was in the parcel? Was it Cannabis?
INTERPRETER: Sorry, can you please repeat the question again?
SENIOR MEMBER: I’m asking Mr Hadri if he knows what was the contents of the package that his wife and this gentleman went to the post office to collect.
INTERPRETER: Honestly speaking, I didn’t know and I don’t know to be honest with you. And the thing is I think my wife would be able to give you more or shed further light on this particular sort of, you know, incident as soon as – you know, when you call her to give some evidence. And the thing is we later on became aware, all right, through one of the family sort of, you know, friends, relatives that, you know, there were some drugs in the parcel. [29]
….
SENIOR MEMBER: Was. Was. I mean, look, just to simplify it, Mr Hadri, did you know at any point that this man was using your address for the purpose of sending drugs?
WITNESS: I swear to God I didn’t know anything about it.[30]
[29] Transcript, 6 October 2010, p 47.
[30] Transcript, 6 October 2010, p 47.
The 2016 offence
On the evening of 7 January 2016, the applicant was the driver of a car that was stopped by police. The car was searched and a small quantity (two grams) of cannabis was found. The cannabis was confiscated, and the applicant was summonsed to appear in Liverpool Local Court on 3 February 2016, when he was fined $800. The respondent did not rely heavily upon this offence.[31]
[31] Transcript, 6 October 2020, p 50.
The delegate’s description of the applicant’s offending as involving a pattern of serious offences involving violence from 2009 to 2016 is, with respect, an exaggeration, for the following reasons:
·The 2009 incident (considered in greater detail below) led to two counts of stalk/intimidate intend fear of physical/mental harm, and one count of resist officer in execution of duty. His criminal record does not reveal any other offences involving violence against the person.
·There was an allegation of assault in 2010 made by a woman not his wife. However, when the police investigated the complaint, some six weeks after it was made, it was withdrawn. The complainant said that she was highly inebriated and attacked the applicant’s car. No charges were laid, although one of the police officers expressed the opinion that she was not lying when she made her initial complaint.[32]
·There are two property offences, one that forms part of the 2009 incident, and a separate matter in 2013. Neither can be regarded as particularly serious.
[32] Tender Bundle, 15.
I do not think that it is accurate to describe the applicant’s offending as revealing a pattern of serious offending involving violence over the period 2009 to 2016.
The 2017 incident with his former sister in law
The applicant was the subject of complaint by OW in 2017. The police note states that the applicant was in an intimate relationship with the victim for a period of six years. She said that he was seeking to ‘control’ her. The applicant had called her repeatedly. He said that this was to do with the failure of his brother’s marriage (which he had arranged) and he wanted to talk about this with her. According to the police note:
The accused denied ever being in a relationship with the victim and stated that she is his sister-in-law as she is married to his brother who lives in Lebanon. The accused agreed that mobile phone number was his mobile phone number. He stated that the victim always visits his residence on weekends to spend time with him and his family as she is also family to him. When asked about the phone calls he made to the victims mobile phone over the course of two days he stated that he was concerned as she did not come over this weekend. He stated that his wife was also concerned along with his mother who lives in Syria and his brother in Lebanon. The accused stated that he is the only one that uses his mobile phone and he made admissions to calling the victim over 100 times. When asked why he called so many times he stated that he thought something may have happened to the victim and that he thought someone else may answer her phone. When asked if he thought to call Police or Ambulance to check on the welfare of the victim he stated he did not. The accused also denied ever receiving a phone call from Green Valley Police where they asked him to stop contacting the victim. The accused stated that his wife also made attempts to contact the victim and admitted having a key to the victims house and that she also had a key to his house. When asked why the victim would say that she is afraid he might kill her, the accused said, "She is mental." He stated that the victim lived at his house for three to four years and he used to take her to the doctor. He stated that he thought she was bi-polar. When asked how he thought his constant phone calls might make the victim feel he stated, "I don't know what she would be feeling. Why would I want to kill her for?" The accused was served an Apprehended Domestic Violence Order and the conditions were fully explained to him.[33]
[33] Tender Bundle, 7-8.

Moreover, the police note records:
The Victim did not feel very confident in providing her version to the police and it appeared as though the Victim was making certain parts up to prompt the police to speak with the person named. Police explained to the Victim the procedure of an application of an apprehended domestic violence order should any offence take place or further incidents to occur.[34]
[34] Tender Bundle, 8.
No charges were laid in relation to this incident and I do not attach any adverse weight to it in relation to the applicant’s character.
Use of Cannabis
The applicant’s use of cannabis over what appears to be a number of years is of some concern to the Tribunal. The consumption of non-prescription cannabis is problematic because it demonstrates a willingness to break the law. However, the applicant does not have an extensive record of drug taking and there is no evidence that he has been involved in the drug trade in a more extensive way. Occasional recreational use of cannabis is regrettably a commonplace in Australian society and in some jurisdictions the criminal law reflects a benign tolerance of this fact. This is not to justify, condone or approve of such conduct, but merely to recognise that a record of occasional cannabis use does not of itself point to a lack of good character.
In the applicant’s case, the evidence of both the applicant and his wife is that his occasional use was essentially therapeutic. His wife commented as follows:
What was your attitude towards that, if I may ask? Were you – did you accept that that was a reasonable usage?‑‑‑Because of the way he was using it, he wasn’t, like, abusing it in any way, he was just using a little bit before he would go to bed so I just, like – I know it was helping him relieve the pain. Like, you know when you kind of want something to work but you kind of are against it but just to help him sleep pretty much because he has suffered from depression and anxiety and heaps of things due to his pain as well, and just due to things happening overseas.[35]
[35] Transcript, 6 October 2020, p 64.
The applicant gave evidence to the Tribunal that he no longer used cannabis because essentially it did not alleviate his pain.
Mental Health Issues
The most recent entry relating to the applicant’s bizarre behaviour on the balcony is of some concern. In the police note, the applicant is described as a mental health patient (MHP).
NARRATIVE: The MHP had been using marijuana that day. The MHP was very agitated and was throwing property off a second floor apartment onto the road. Police were very concerned for the MHP's welfare as he seemed fairly disorientated and kept reciting prayers in Arabic. The MHP was a harm to himself and the members of the public as he was throwing objects onto the road. When Police arrived the MHP was on the balcony of the second story building naked.
A member of the public saw the MHP throw objects onto the road and was concerned for the MHP's welfare. The MHP said to Police that "this happens like once a year" and that he would come speak to Police tomorrow. The MHP was not aware of his actions.[36]
[36] Tender Bundle, 3.
The applicant appeared to be genuinely embarrassed by this incident. He told the Tribunal:
WITNESS: I shouldn’t. I shouldn’t smoke. But I have back pain before and it used to help, but it’s not helping anymore. It’s not relieve the pain. That’s how I start to smoke, you know mean, because and then every time I smoke it start affect me. So that’s why I said I better not. And then, I smoke again, and it’s that what happened. I apologise to you guys, but you know, I shouldn’t do that. I’m nearly 40 years old. But it happened. I’m so sorry. I didn’t mean to be against anyone. I didn’t mean to hate anyone. I’m being honest to youse. I’m not just saying it because we having conference now. That’s me. Like, I don’t ‑ I try to help people. I love to help people, not hate people. But I didn’t (indistinct). Some people, they get scared when they see me like this. And when I lost it and they call the police on me. And that happened couple of time, you know what mean? Like ‑ ‑ ‑[37]
[37] Transcript, 6 October 2020, p 38.
Failure to Disclose
The respondent also submitted that in his application, he failed to disclose that he had also been convicted of stalk/intimidate and resist officer in execution of duty, and that this showed a disregard of the law or an attempt to conceal offences, especially since it was his fourth application for citizenship.[38]
[38] Respondent’s Statement of Facts, Issues and Contentions, 7.
The Application for Australian citizenship form states:
If you answered 'Yes’ to any of the questions at Question 39, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention.
In response, the applicant stated:
2009 – Negligent Driving, Possession of marijuana – fines and 12 months Good Behaviour Bond & fine
2013 – Damage of Property – 12 months Good Behaviour Bond.
2016 – Possession of Marijuana – Fine.
It is apparent from a comparison of the disclosures made on the application form and the police records that four offences were omitted. The offence of resist officer in execution of duty is omitted, as well as the two offences of stalk/intimidate and the property damage offence.
The applicant said that his wife had helped him fill out the forms. In evidence he said:
Look, I’m not going to lie to you, I’m going to be very honest with you. Most of the times my wife actually was helping me with filling out the forms and she’s put, you know, dates and other things but for me when it comes to me I’m not really good at these things and filling out forms so she used to help me all the time.[39]
[39] Transcript, 6 October 2020, p 11.
The respondent drew from the fact that because this was the applicant’s fourth application for citizenship, he should have been well aware of the importance of making full disclosure with regard to any criminal wrongdoing.[40]
[40] Transcript, 6 October 2020, p 6.
The applicant had no clear explanation for the omissions. He said that he thought that most of the charges had been dropped and he relied upon his wife to complete the form although he did not want to blame her.[41]
[41] Transcript, 6 October 2020, p 25.
The applicant’s wife explained the discrepancy as follows:
I didn’t notice it at the time but it’s because, like, with that particular incident you’re referring to from what I remember is that my husband’s friend did write a letter because they made up and it was just the matter of that night for what had happened, but I didn’t know that it was part of the actual conviction because I was there at the court, like, when he was convicted and it was like mostly referred to as the negligent driving and the possession, so that’s what I put in the application.[42]
[42] Transcript, 6 October 2020, p 61.
I also note that the subject of the stalk/intimidate offences was the applicant’s friend.
Employment
The Tribunal does not have accurate details as to the applicant’s employment record since arriving in Australia. In his application for citizenship made on 19 September 2018, he listed his status as ‘unemployed’.[43] According to his wife, he is a labourer who suffered an injury to his back and was out of work ‘for quite a while’, but has been in the ‘same job for, I think, two to three years now, I think it is.…’.[44]
[43] T5/57.
[44] Transcript, 6 October 2020, p 64.
A pattern of violent offending?
The respondent’s solicitor conceded that the delegate’s characterisation of the applicant’s criminal record as revealing a pattern of violent offending was unjustified.[45] She put the case somewhat differently. She said:
MS ROBERTS: I’m prepared to accept, and I think it’s proper to accept that it has been a very long time since the applicant’s last conviction but the underlying issue which seems to have contributed to this is potentially mental health and we seem to have only just touched on that very briefly in this hearing but also issues of substance abuse. I think we could just as easily say issues of anger management, and there’s little evidence of any effort by the applicant to rehabilitate himself or to accept responsibility for these offences because when we’ve discussed them with the applicant today what we’ve heard is, “I can’t remember what happened. I was under the influence of drugs. I had a grievance against this person.”[46]
[45] Transcript, 6 October 2020, p 69.
[46] Transcript, 6 October 2020, p 73-74.
The point made by Ms Roberts is a good one. There are clear signs that the applicant suffers from some chronic physical and mental health problems. His use of cannabis especially, when mixed with alcohol and prescription medication, has been problematic. The applicant appears not to have received any structured mental health support for any underlying mental health issues. I note that the applicant was required to attend a drug program as part of his sentence for the drug possession offence, but does not appear to have done so. The respondent contends that the evidence shows that the person is ‘volatile, prone to drug-taking and unpredictable in his behaviour’.[47]
[47] Respondent’s Statement of Facts, Issues and Contentions, 7.
FINDINGS
I gleaned the following from the evidence presented to the Tribunal:
·The applicant and his wife were married on 9 September 2007;[48]
[48] Transcript, 6 October 2020, p 10.
·In 2009, their marriage faltered;
·A serious breakdown occurred in March 2009 which gave rise to six criminal charges against the applicant, as outlined above;
·The married couple separated for at least three months in 2010;
·During this separation the applicant had a relationship with another woman OW, which lasted for at least three months;
·In 2010, the applicant returned to his wife;
·In 2010, OW laid a complaint against the applicant, which she subsequently withdrew;
·In or about 2012, his wife fell pregnant but miscarried;
·The loss of the baby led to bad blood between the applicant and his wife’s uncle. The applicant blamed the uncle for causing some psychological distress to his wife while she was pregnant. The uncle asked Ms Hadri to accompany him to the Post Office to collect a parcel addressed to her house. She found out later that the parcel contained drugs. She was distressed by this discovery. She was unaware of the presence of drugs and disapproved of drugs generally. The applicant believed that her distress was a significant contributing factor for the loss of her baby.
·In 2013, by chance the applicant and the uncle were at the same family function. An argument ensued and the applicant smashed the windows of the uncle’s car;
·The applicant suffered from a ruptured disk and consumed cannabis on a regular basis for pain relief. At the time of the hearing he said that he had given up this habit of consuming cannabis because it did not work;
·His consumption of cannabis has produced aberrant behaviour on several occasions, most recently in May 2020 when he was seen standing on the balcony naked and throwing things onto the street;
·It appears that OW was for a time married to the applicant’s brother in Syria, but the marriage did not last and her former husband remains in Syria.
CONCLUSION
Good character is a quality difficult to define but not to discern. It is perhaps easier to discern a person who is not of good character. There are some troubling instances in the applicant’s past history, at least since coming to Australia in 2007. The consumption of alcohol and drugs by the applicant may have been a factor in the early breakdown of his marriage and if so, this could be said to be relevant to a character assessment. There is unfortunately not much evidence to assist the Tribunal to understand the family dynamic. However, I was impressed by the applicant’s wife’s evidence and her support for her husband. But I am very conscious that the Tribunal has been exposed to a very small perspective on their lives, which makes the assessment of character a very difficult task.
I note that the applicant’s criminal record is not extensive and his offending occurred for the most part more than a decade ago. The major cluster of offences occurred in March 2009; the property damage offence in 2013 (which appears to have arisen out of a highly charged family dispute); and the cannabis possession offence in 2016. I agree with the respondent’s solicitor that this latter offence carries little weight in the overall assessment. The offences were committed 12, eight and five years ago, when he was 27, 32, and 35 years of age. He is now 39 years of age.
A person of good character is neither a paragon of virtue nor an exemplary citizen. Persons of good character make mistakes and strive to improve. I note in this context that the applicant’s statutory declaration dated 24 January 2020 states ‘I hope to keep growing and becoming a person who can set examples for my children and show them how to grow as decent humans… I am the backbone of my family and hope to keep showing my kids wrong from right and how to be law abiding citizens in life’.[49]
[49] T15/100.
A person’s good character may survive a minor breach of the criminal law, and a person’s good character may be demonstrated by the manner in which they recover in the aftermath of a criminal conviction. A person lacking respect for the law is unlikely to be a person of good character.
My conclusion is that I am not satisfied that the respondent has demonstrated that the applicant is not a person of good character. I do not suggest that there is a burden of proof upon the respondent, or that there is a presumption of good character that arises in the absence of proof of serious wrongdoing. The Tribunal must assess all the evidence, positive and negative. I am satisfied, based on the evidence of the applicant’s wife and his many referees, that the applicant has demonstrated sufficiently good enduring moral qualities such that a finding of good character is justified. I note that many of the references use similar words and expressions, and this tends to detract from their weight, but nevertheless they provide some value in assessing the applicant’s character.
I find that the applicant is of good character.
For these reasons, the Tribunal sets aside the reviewable decision and remits the matter to the respondent for reconsideration with a finding that the applicant is a person of good character.

I certify that the preceding 72 (seventy two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..............................[sgd]..........................................
Associate
Dated: 25 January 2021

Date of hearing: 6 October 2020

Applicant: Self-represented

Solicitors for the Respondent: Ms S Roberts, Mills Oakley Lawyers

[2021] AATA 41

25 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date of hearing:	6 October 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms S Roberts, Mills Oakley Lawyers