Hamo And Minister for Immigration and Border Protection
[2014] AATA 77
•19 February 2014
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/4486
General Administrative Division )Re: Basim Hamo
Applicant
And: Minister for Immigration and Border Protection
Respondent
TRIBUNAL: Deputy President J W Constance
DATE: 16 April 2014
PLACE: Melbourne
CORRIGENDUM TO DECISION [2014] AATA 77
In accordance with section 43AA of the Administrative Appeals Tribunal Act 1975 (Cth), written reasons dated 19 February 2014 is amended as follows:
In paragraph 32, replace the words:
“silly law”with:
“silly” law
..............[sgd]......................................
Deputy President
[2014] AATA 77
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4486
Re
Basim Hamo
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Deputy President J W Constance
Date 10 February 2014 Date of written reasons 19 February 2014 Place Melbourne The decision under review made 28 August 2013, being the decision to refuse Mr Hamo’s application for citizenship, is affirmed
........................[sgd]................................................
Deputy President J W Constance
Catchwords
CITIZENSHIP – good character – overseas penal clearance – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth) Preamble, s 21
Australian Citizenship Instructions ch 10
Cases
Irving v Minister for Immigration, Local Government, and Ethnic Affairs (1996) 68 FCR 422
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Zheng and Minister for Immigration and Citizenship [2011] AATA 304Written REASONS FOR DECISION
oral decision given 10 February 2014
Deputy President J W Constance
introduction
This is an application by Mr Hamo to review a decision of the Minister, refusing his application for citizenship.
Mr Hamo lodged an application for conferral of Australian citizenship, with the former Department of Immigration and Citizenship, on 15 January 2011. The Minister made a decision refusing his application on 28 August 2013.
For the reasons which follow, the decision of the Minister will be affirmed.
background
I am satisfied of the following facts on the basis of the evidence of Mr Hamo and the documents before me.[1]
[1] Exhibits A1 and R1
Mr Hamo was born in Kuwait in 1970. He arrived in Australia on a temporary visa in January 2004. Approximately three months later, he left Australia, and returned on a visa in November 2004. He has not departed Australia since that time. In 2010, Mr Hamo became a permanent resident.
Mr Hamo is married to an Australian citizen, and has been so married since 2005.
Mr Hamo and his wife have a son, who is presently aged eight years.
They have established two businesses, which they currently operate. Mr Hamo has a Bachelor’s degree in Pharmacy. He has been living in Australia for almost 10 years.
legislation
An application for Australian citizenship is governed by the provisions of the Australian Citizenship Act 2007 (Cth).
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. On reviewing a decision of the Minister under the Act, this Tribunal stands in the shoes of the decision-maker. That means that the Tribunal has to make a decision on the facts before it. It is not a matter of determining that the decision under review was wrong for a particular reason.
Under subsection 21(2), there are a number of requirements for general eligibility for a person to become an Australian citizen. There are, in fact, eight different requirements set out. In this matter, the only issue in dispute is a provision relating to good character. The relevant provision of subsection 21(2) reads as follows:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
In this application the Tribunal must be satisfied that Mr Hamo is of good character as of the date of its decision.
the issue for determination
The issue is whether I am satisfied that, at the time of this decision, Mr Hamo is of good character.
It is important to note that I must be positively satisfied that Mr Hamo is of good character at the present time. That does not mean that by affirming the decision under review I am finding that Mr Hamo is not of good character. I stress that I have to be positively satisfied that he is.
consideration
“Good character” is not defined in the Act. However, there have been various decisions which assist in determining what is meant by “good character”. In Irving v Minister for Immigration, Local Government, and Ethnic Affairs, the Court said:
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[2]
[References omitted]
[2] (1996) 68 FCR 422, 431-32.
I also note what was said by this Tribunal in Zheng and Minister for Immigration and Citizenship[3]. In that matter, Deputy President Forgie found that the Preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour, for the purpose of assessing good character. I note that the Preamble of the Act refers to Australian citizenship as follows:
… 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.
[3] [2011] AATA 304.
In deciding whether Mr Hamo is of good character I am required to consider the Australian Citizenship Instructions. These are instructions issued by the Minister, and set out the policy of the Minister in relation to applications such as this.
In the introduction to the Instructions, the role of the instructions is described as follows:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Whilst I take careful note of the warning that the Instructions are not to be applied inflexibly, and cannot constrain the exercise of delegated powers, it is clear that I should apply the Instructions unless there is proper reason not to do so. This has been made clear on many occasions.[4]
1.[4] See Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634.
In this matter, there is no basis on which I should find that I should not apply, and follow, the Australian Citizenship Instructions. Looking at those Instructions, there is a whole chapter, Chapter 10, relating to the assessment of character. It is clearly regarded as an important part of the policy. There are a range of considerations set out in paragraph 10.5. Paragraph 10.5.1 provides in part:
This section sets out a range of considerations for decision makers to take into account when assessing good character. This list is not exhaustive. The factors may have different weights, depending on the circumstances of the case. This framework is consistent with the values and standards outlined in the Preamble to the Act and the pledge.
It is clear from Chapter 10 that an important factor to be taken into account in assessing good character is the lack of criminal record, or the criminal record if such is the case, of the applicant for citizenship. One of the issues to be considered is whether the applicant committed any offences, and if so, did he or she refer to them in the citizenship application and/or passenger card declarations. There is no evidence whatsoever that Mr Hamo has committed any criminal offences, either in Australia or overseas.
Chapter 10 also makes provision in paragraph 10.6.2, for criminal record checks and, of particular relevance in this matter, for overseas penal clearance as follows:
Conferral applicants should be asked for an overseas penal clearance:
from any country in which they have resided for a period of more than 90 days in the last 20 years or
since the applicant turned 18.
There is no evidence of an overseas penal clearance since the translation certificate provided by Mr Hamo in connection with his application for a visa in 2005[5]. It is a translation of a document which is said to be headed “Good Conduct / Penal Certificate”. Under the heading “Convictions” it states:
The above-mentioned person has not been convicted of any criminal offence or any misdemeanor [sic] related to honour or public manners. This certificate has been issued upon his request.
[5] Exhibit R1 p 77.
The date of issue of that certificate is 8 September 2005. It is the absence of an updated certificate, and a lack of reasonable explanation for its absence, that leads me to conclude that I cannot be satisfied that Mr Hamo is of good character.
The circumstances of the lack of such a certificate have taken up much of the evidence in this application. Following Mr Hamo’s application for conferral of citizenship, the Department of Immigration and Citizenship wrote to him on 2 March 2012.[6] That letter, in part, reads:
To enable the processing of your application, you are required to provide the documents listed below:
Jordanian Penal Clearance / Non-Conviction Certificate – this document is available from the Jordanian embassy.
[6] Exhibit R1 pp 79-80.
In that letter it is to be noted that one certificate was requested. Mr Hamo gave evidence that following this request, he contacted the Embassy of Jordan, and in his Statement of Facts and Contentions said:
[The] Jordan Embassy/Canberra website’s form to get Penal Clearance/Non-conviction highlights how corrupt the Embassy and its shadow agency “General Intelligence Directorate” are. The form is called on the front page of their site … “Good-Conduct – Non-Conviction” Exhibit 7. When one hits the link to download the form, the heading of the form is changed, and called “Application for Good Behaviour Certificate” … This form in Jordan is processed by Jordan’s “General Intelligence Directorate/Department (Mukhabarat: is the Jordanian name)”. That is widely used to blackmail Jordanians financially, sexually and politically by the “General Intelligence Directorate (Mukhabarat)”[7]
[7] Exhibit A1 p 2.
Mr Hamo has declined to request the issue of such a certificate by the Embassy of Jordan. He says that it will be a good behaviour certificate, and not a certificate of lack of convictions. It is clear from his evidence that he was quite able to have made that application, and it could have been made simply online. It is not clear to me how Mr Hamo knows what the result of such an application would have been. His reasons for not making that application are not convincing.
It does appear to me that his reluctance to make the application for the certificate is based on his strong political views, and in part also on a contest he feels he is having with the Department. Neither of those reasons is relevant to this application. I am not required to find, and nor would I even consider embarking on consideration of whether the views expressed by Mr Hamo as to the government and administration of Jordan are appropriate, notwithstanding the considerable evidence which he has put before me of the opinions of others.
Similarly, any contest that Mr Hamo may have with the Department over the manner in which it has dealt with his application to date, is not relevant in my making a decision. As I said at the outset of these reasons, I am required to make this decision anew, standing in the shoes of the decision-maker. There are other means in Australian law to address complaints about the administration of a government department. This Tribunal is not that means for so doing.
It may well have been that a certificate from the Embassy of Jordan to the effect that Mr Hamo has no convictions would have satisfied me that he is of good character, subject of course to being satisfied that he has no convictions in Australia. Unfortunately, Mr Hamo declined even to seek that certificate. I do not know, as of today, what that certificate may have disclosed. It may have been in part a good behaviour certificate. If that was a politically motivated document, it may not have been of a great deal of significance. However, if that certificate had stated as well as Mr Hamo having been of good behaviour that he had no convictions, then that would have had considerable weight in my consideration. The 2005 document in fact dealt with both issues. Despite Mr Hamo’s belief, it may well have been that such a document in this case would have met the requirements of being a certificate that he did not have any convictions.
Mr Hamo raised, rather belatedly, an argument that he was concerned that an application for a certificate may result in some form of blackmail of himself, and/or his family, some of whom still reside in Jordan. However, on the basis of the evidence of general views of various authors, and even taking into account Mr Hamo’s statements, I am not satisfied that he individually, or his family, would have been subject to such blackmail, simply by reason of applying for the certificate. I note that Mr Hamo had no difficulty in approaching the Embassy initially, and it was only because of his view of what that certificate meant and who would issue it that he declined to proceed.
There appears to have been some confusion as to whether there was a need for one or two separate certificates. Mr Hamo placed great reliance on the fact that the Department had directed him to apply to the Embassy, and there was some reference in the Minister’s submissions in this matter to a need for two separate certificates. However, as I have indicated, it is likely that one certificate indicating there had been no convictions would have satisfied me of Mr Hamo’s good character, subject to the other matters I have mentioned.
I note that a letter of 17 October 2012 from the Department to Mr Hamo[8] reads as follows (having referred to previous requests for a non-conviction certificate):
In order to fully assess whether you are of ‘good character’, the department requires both ‘penal clearance’ certificates issued by the Jordanian authorities. You provided the Good Conduct certificate during your visa application however you did not provide a Non-Conviction Certificate. The provision of both certificates is required for assessment of ‘good character’ under section 21(2)(h) of the Australian Citizenship Act.
To enable the processing of your application, you are required to apply to the Jordanian embassy for a new Non-Conviction Certificate. Please provide the original certificate of non-conviction along with a translation [emphasis added].
[8] Exhibit R1 pp.83-84.
I am satisfied that the Department asked Mr Hamo to provide one certificate and that this was the certificate which would be of assistance in assessing whether he is of good character. Mr Hamo continues to decline to apply for such a certificate.
It may be that the reasons given by Mr Hamo for his reluctance to apply for a certificate are the only reasons for this. On the other hand his reluctance may be because he has been convicted of an offence or offences and he believes that this conviction or convictions will be disclosed. In addition I am not satisfied that Mr Hamo has shown a willingness to uphold the laws of Australia in order to meet the requirements for the granting of the privileges of citizenship, with which he disagrees. In his view the requirement that he obtain a certificate of non-conviction is a “silly law.” [9]
[9] Transcript 10 February 2014.
conclusion
The decision under review made 28 August 2013, being the decision to refuse Mr Hamo’s application for citizenship, will be affirmed.
additional comment
In the course of submissions, Counsel for the Minister argued that if I was to set aside the decision, on the basis that I was satisfied that Mr Hamo was shown to be of good character, I should then remit the matter to the Department to consider the other requirements of subsection 2 of section 21 of the Act. As it happens, because I am not going to set aside the decision, this is not a matter that will cause any difficulty in this application. However, I would be concerned if the Department was to continue to follow a practice of rejecting an application on one ground, and then, after the matter is reviewed by this Tribunal, asking that it be remitted to the Department to consider the other grounds. In theory, this could result in a matter coming back to the Tribunal on several occasions, to deal with the remainder of the eight grounds on which an applicant may be found not to meet the requirements.
In my view, the Department should make a final decision on an application, so that the Tribunal is in a position to review the decision in its entirety and give an applicant finality. I can indicate that, had I decided in this matter that Mr Hamo had proved that he was of good character, I would have sought evidence to satisfy myself of the remainder of the requirements of subsection 21(2). I would have been unlikely to have remitted the matter for further consideration.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ........................[sgd]................................................
Associate
Dated 19 February 2014
Date(s) of hearing 10 February 2014 Applicant In person Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
-
Immigration & Refugee Law
Legal Concepts
-
Citizenship
-
Good Character
-
Legitimate Expectation
-
Statutory Construction
0
3
0