Hammoud and Minister for Home Affairs (Citizenship)

[2018] AATA 4752

Hammoud and Minister for Home Affairs (Citizenship) [2018] AATA 4752 (11 December 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2242

Re:Rabih Hammoud

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:11 December 2018

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member K Raif

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – permanent resident – refusal of citizenship – good character – criminal conviction – domestic violence – application of Citizenship Policy – decision affirmed

LEGISLATION

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

CASES

Ahori and Minister for Immigration and Border Protection [2017] AATA 601

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815

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

SECONDARY MATERIALS

Australian Citizenship Instructions (Cth) issued 1 July 2014

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

REASONS FOR DECISION

Senior Member K Raif

11 December 2018

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”).

2. The applicant is a national of Lebanon, born in January 1976. He entered Australia in July 2009 and was subsequently granted a permanent visa in May 2011.

3. The applicant applied for Australian citizenship by conferral on 27 January 2016. On 28 March 2018 a decision was made to refuse that application because the delegate was not satisfied that the applicant was of good character as required by s. 21(2) of the Citizenship Act. The applicant seeks review of the delegate’s decision.

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

   RELEVANT LAW

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

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

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

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

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

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

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

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

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

    IS THE APPLICANT A PERSON OF GOOD CHARACTER?

12. The applicant’s criminal history is set out in the primary decision record. It indicates that the applicant has been convicted in February 2014 of Common assault (DV) and he was given a 12 months bond.

13. The police facts sheet sets out the circumstances of the conduct that led to the conviction. It is stated that in December 2013 the applicant attended the home of his former partner. He used abusive language towards her using a mobile phone, then approached his former partner and slapped her on the cheek. Upon entering the house, it is stated that the applicant destroyed a light bulb, struck his former partner on her head with a clock and then slapped her several times. He threatened to ‘bash’ his former partner if she called the police.

14. As a result of that incident, the applicant was issued with an interim apprehended violence order (AVO). It is stated that in January 2014 the applicant sent a number of text messages to his former partner, in breach of the AVO.

15. In oral evidence to the Tribunal the applicant denies that the police facts sheet accurately represents what occurred on that occasion. The applicant told the Tribunal that his former partner started hitting him, threw out his belongings and threw things at him. The applicant states that he was defending himself. The applicant claims that it was his former partner who hit him with the clock and he hit his wife to prevent being hit.

16. The Tribunal acknowledges that the applicant denies the conduct described in the police sheets and has presented to the Tribunal a different version of events. However, the Tribunal prefers the information in the police records, particularly given the applicant’s evidence that he was legally represented during the proceedings and pleaded guilty. The applicant claims he pleaded guilty because he should not have lost his temper but the guilty plea refers to the very specific circumstances of the offences. The Tribunal also notes that at no time previously did the applicant dispute the circumstances set out in the police fact sheets. The applicant was legally represented in his citizenship application and his representative prepared a written submission to the delegate with regard to the police records. There is no claim that the police fact sheets are inaccurate. The Tribunal is of the view that the applicant was, or should have been, aware of the content of these documents and if he disagreed with the description of events, he had every opportunity to present a different version of events at the time of his criminal proceedings or in his submission to the delegate in relation to the citizenship application.

17. The delegate wrote to the applicant inviting his comments on the above information. In response, the applicant provided a statement in which he claims that at the time the offences were committed he was unaware of the law surrounding marital disputes and the seriousness his actions would have. The applicant states that he has been given a 12 months good behaviour bond and has abided by the conditions and he understands that acts of violence would not be tolerated. He now understands the significance of the law and consequences of any assault.

18. The Tribunal finds that submission problematic. The charge sheet indicates that the conduct leading to the common assault conviction related to the applicant repeatedly slapping, hitting and verbally abusing the victim. The Tribunal does not accept that until the applicant was convicted, he did not appreciate that he could not commit violence against another person, including in a domestic situation, and that he could not hit another person. The applicant may not have appreciated how such offences are treated in Australia but the Tribunal is of the view that the applicant would have been fully cognisant of the fact that his conduct was inappropriate and contrary to the law. To claim that he did not understand the consequences or the laws is an attempt by the applicant to minimise the seriousness of his conduct.

19. The applicant told the Tribunal that this part of his declaration was not accurate. The applicant stated that while there may be violence in some relationships, his parents had a happy life and there was no violence in his family. The applicant said that the agent tried to find an excuse for him because such violence often happens in his country but not in his family. The Tribunal considers that evidence highly problematic. The applicant’s declaration was provided in response to the delegate’s letter seeking the applicant’s comments about his conviction. This evidence was quite significant to establishing the applicant’s eligibility for the Australia citizenship. The applicant told the Tribunal that he was not confident about the correctness of that information but did not challenge it. It is of considerable concern to the Tribunal that the applicant considered it acceptable to provide evidence in a statutory declaration which he did not consider to be completely accurate. This suggests to the Tribunal that the applicant was indifferent about the provision of incorrect information to the Department and his willingness to do that suggests that the applicant is not willing to obey and uphold the law.

20. Further, the applicant’s denial of the circumstances in oral evidence to the Tribunal contradicts the applicant’s claim that he is remorseful about his conduct. While the applicant expressed remorse about losing his temper, the applicant’s evidence to the Tribunal suggests that he was responding to the violence initiated by his partner and the applicant denied that he slapped his partner. He also stated that while he used abusive language towards her, he was upset at the time. The Tribunal is not satisfied that the applicant fully appreciates the seriousness of his conduct.

21. The applicant presented a number of character references to the delegate. The Tribunal accepts that those who provided references believe the applicant to be of good character although the Tribunal is mindful that most of the declarants do not refer to the applicant’s conviction and the applicant told the Tribunal that they may not be aware of it. In such circumstances, the Tribunal gives these statements little weight as evidence of the applicant’s good character. 

22. The Minister submits, by reference to Ahori and Minister for Immigration and Border Protection [2017] AATA 601 that there is a presumption that a person convicted of a domestic violence offence is not a person of good character. The Tribunal notes that nothing in the legislation gives rise to such presumption. The relevant Departmental policy sets out the characteristics of good character and the Tribunal has had regard to that policy.

23. The Tribunal has had regard to the totality of the applicant’s circumstances. The applicant has been convicted of a serious offence involving violence towards another person. Such conduct is not a conduct that accords with Australia’s community standards and a person of good character would not have behaved in that manner. The Tribunal acknowledges that the applicant has expressed remorse for his conduct although the Tribunal does not accept the applicant’s expression of remorse in his statutory declaration submitted to the delegate as the applicant’s evidence to the Tribunal is that his representative wrote what they believed the delegate expected to hear. There do not appear to be any extenuating circumstances relating to his offences. In particular, while the Tribunal acknowledges the applicant’s denial of the information in the police records, the Tribunal does not accept the applicant’s evidence for the reasons noted above.

24. There is no evidence of the applicant committing any other offences, or engaging in any other anti-social conduct since the conviction and the Tribunal accepts that close to five years passed since the conviction, which is considerable time. The applicant presented evidence of his employment and there is some evidence of his support for his minor child and the Tribunal acknowledges that such activities show a degree of rehabilitation.

25. The Tribunal has also formed the view that the applicant has been less than truthful in his dealings with the Department in his Citizenship application by providing information in his statutory declaration concerning his family circumstances, which he now claims to be untrue. His willingness to provide inaccurate information because he believes it would assist him with the application also indicates, in the Tribunal’s view, that the applicant has not demonstrated his willingness to uphold and obey the law.  

26. Having regard to the entirety of the applicant’s circumstances, the Tribunal is not positively persuaded that the applicant is of good character.

27. The Tribunal is not satisfied the applicant meets s. 21(2)(h) of the Citizenship Act. He is not entitled to be conferred Australian citizenship. This finding does not preclude the applicant from making another application in the future.

    CONCLUSION

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

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

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

Associate

Dated: 11 December 2018

Date(s) of hearing:	28 November 2018
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor