Ibrahim Mohamed Hassan and Minister for Immigration and Border Protection

[2015] AATA 961

Hassan and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 961 (14 December 2015)

Division	GENERAL DIVISION
File Number	2015/1244
Re	Ibrahim Mohamed Hassan
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Deputy President J W Constance
Date	14 December 2015
Place	Sydney

The decision under review, being the decision of the delegate of the Minister for Immigration and Border Protection made 25 February 2015 to refuse Mr Hassan's application for citizenship by conferral, is affirmed.

......................[SGD]..................................................

J W Constance
Deputy President

Catchwords

CITIZENSHIP - citizenship by conferral - good character - whether the applicant satisfies the legislative requirement to be shown to be of good character - prior offences - whether any mitigating factors apply - decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24

Cases

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

Secondary Materials

Australian Citizenship Instructions (Cth) issued 1 January 2014

REASONS FOR DECISION

Deputy President J W Constance

14 December 2015 

INTRODUCTION

1. Mr Hassan applied for Australian citizenship by conferral on 20 November 2014.

2. A delegate of the Minister refused Mr Hassan’s application in a decision dated 25 February 2015. The delegate was not satisfied that Mr Hassan was shown to be of good character for the purposes of the grant of citizenship.

3. Mr Hassan has applied to this Tribunal for a review of the delegate’s decision.

4. For the reasons which follow, the decision under review will be affirmed.

   BACKGROUND

5. Mr Hassan is 40 years old.  He is a citizen of Egypt and currently holds a permanent visa.  He first arrived in Australia on 20 April 2010.

6. Mr Hassan married after he arrived in Australia. He has three stepchildren.

7. In May 2014 Mr Hassan established a furniture removal business which he continues to operate as a sole trader.

8. In November 2012 Mr Hassan was living in a unit with his family. For some time there had been disagreements between Mr Hassan and his wife on the one part and a neighbour (“Mr S”) who lived in the unit above them, on the other. On 21 November 2012 an incident occurred which resulted in Mr Hassan being charged with two offences - using an offensive weapon with intent to commit an indictable offence and stalking/intimidating with intent to cause fear of physical/mental harm.

9. Mr Hassan pleaded not guilty to these charges. The matters were heard in the Local Court in April and July 2013. On 17 July 2013 the Court found Mr Hassan guilty of both charges.

   The Court’s decision[1]

   [1] Exhibit R1 ST2.

10. In its decision the Court made the findings set out in the following three paragraphs.

11. Prior to the incident giving rise to the charges, there had been an argument between Mr Hassan's wife and Mr S. about the use of a power supply in a shared laundry. One or both of them called the Police. They were told by the Police that they should complain to the Housing Commission.  Mr Hassan's wife then contacted Mr Hassan who returned home and confronted Mr S.

12. The Court found that Mr S minimised his role in the argument which followed. The Court accepted the evidence of two independent witnesses, that Mr Hassan chased Mr S up the stairs to Mr S’s unit whilst holding a child’s cricket stump.  Mr S prevented Mr Hassan entering his unit. Mr Hassan yelled “I kill you, I kill you” and made a throat slitting motion towards Mr S.

13. The Court concluded:

    21. In relation to the charge of using an offensive implement with intention to assault, I am satisfied that Mr Hassan had the child’s cricket stump in his hand and threatened [Mr S.] with it by following him to [Mr S’s] door. I am satisfied that action amounts to evidence of intention.

    22. In relation to the charge of intimidation, I am satisfied that Mr Hassan did say “I kill you” and make a throat slitting action towards [Mr S.]. [2]

    [2] Exhibit R1 ST2.

14. In respect of the charge of using an offensive weapon Mr Hassan was released on his entering a bond to be of good behaviour for a period of 12 months.  No penalty was imposed in respect of the intimidation charge.

    Police records

15. The Incident Report[3] created by a Police Officer who attended after the incident recorded that Mr Hassan was screaming at Mr S and attempted to gain entry to Mr S’s unit. He was hitting the screen door of the unit with the cricket stump. This version of events was corroborated by the two witnesses.

    [3] Exhibit R1 ST1.

16. The Report also notes that Mr S. was crying and appeared to be in shock. Mr Hassan was acting extremely aggressively towards the Police and screamed at them during the interaction. Mr Hassan was arrested, cautioned and conveyed to the Police Station. During a police interview Mr Hassan denied all aspects of the offences but did state that he had a yellow cricket stump in his hands when he was at the back of the property. He stated that the witnesses were all lying and that Mr S. was the aggressor.

    THE ISSUE

17. The only issue for determination is whether, at the time of the Tribunal’s decision, Mr Hassan is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

    LEGISLATION

18. Applications for the conferral of Australian citizenship are governed by the Act.

19. Section 24 provides, in part:

    (1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

    (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

20. Section 21(2) establishes requirements for eligibility for the grant of citizenship. It provides, in part:

    (2) 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.

    It is only this subsection which is in issue in the present application.

    AUSTRALIAN CITIZENSHIP INSTRUCTIONS

21. The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.

22. The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are cogent reasons to the contrary.[4]

    [4] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.

23. Paragraph 10.1.2 of the Instructions provides, in part:

    ‘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 the other commitments made through the pledge should they be approved for citizenship.

24. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[5]

    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 ... 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. (citations of authorities omitted).

    [5] (1996) 68 FCR 422 at 431-432.

25. After referring to the judgement of the Court in Irving, Paragraph 10.3.1 provides, in part:

    In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:

    § characteristics which have been demonstrated over a very long period of time

    § distinguishing right from wrong

    § behaving in an ethical manner, conforming to the rules and values of Australian society.

    The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.

26. In considering the Australian Citizenship Instructions I have taken into account that they refer to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[6]:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what person a says, in part by what a person does and in part by what a person is heard to say and seen to do.

    [6] [2011] AATA 304 at [120].

27. The Instructions go on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in dealings with the Australian Government.[7]

    [7] Paragraph 10.3.4.

    EVIDENCE OF MR HASSAN

28. Mr Hassan provided a statement dated 11 May 2015 [8] and gave evidence.

    [8] Exhibit A1.

29. In his statement Mr Hassan said:

    Since my arrival in Australia that was the first time ever to attend a court. I have never breached any law. I respect the laws of my home country – Australia and its values. I assimilated well in the society. Since my arrival too I have been working and paying my taxes.

30. Mr Hassan continues to deny that he committed the offences of which he has been found guilty. On 19 January 2015 he wrote to the Department of Immigration & Border Protection and included the following:

    That neighbour was a troublemaker well known to the Department of Housing. …… One day he threw the rubbish under our window and cut the cable of the washing machine. My wife called me and she also called the police. By the time the police arrived, he had already taken the cricket pat which was in the back yard and which was used by my step sons to play. When the police arrived he claimed that I used that pat to threaten him. My wife has reported his actions to the Department of Housing on few occasions.

    To make the story short, we went to court and the second charge was dismissed whereas the first was dealt with under S10.  There was no conviction and no criminal record registered against me. As you know S10 has two parts one with a bond while the other is without but in both cases no conviction would be recorded and it is not a criminal matter. I am not saying this to find excuses but to simply state a fact. [9]

    [9] Exhibit R1 T9.

31. When cross-examined, Mr Hassan denied that he used a cricket stump in any threatening way against Mr S.  He says that he had the cricket stump in his hand to usher the children inside his unit as Mr S was swearing.   Counsel read the following paragraphs of the Court’s Conclusion to Mr Hassan:

    21. In relation to the charge of using an offensive implement with intention to assault, I am satisfied that Mr Hassan had the child cricket stump in his hand and threatened [Mr S.] with it by following him to [Mr S’s] door. I am satisfied that action amounts to evidence of intention.

    22. In relation to the charge of intimidation, I am satisfied that Mr Hassan did say “I kill you” and make a throat slitting action towards [Mr S.]. [10]

    In response Mr Hassan said “nothing like this happened”. [11]

    [10] Exhibit R1 ST2.

    [11] Transcript 09/10/15.

32. In relation to the manner in which he conducts his business, Mr Hassan says that whenever he finds an apparently lost item when conducting a removal he always returns it to his customer.

    consideration

    Characteristics of a person of good character

33. In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include:

    ·respect and abide by the law in Australia and other countries;

    …        

    ·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, ……

    ·not be violent … and not cause harm to others through their conduct.

34. Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. The relevant factors to be taken into account in considering why an applicant might not be of good character (as set out in paragraph 10.5.2) include the following:

    ·Has the applicant committed any offences and if so, did they admit that in their citizenship application?

    ·If the applicant has committed an offence, was it serious or minor?

    ·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or disabled, or others who trusted the applicant?

35. The Instructions provide that this framework should be considered first before considering whether there are any mitigating factors which may indicate that a person is now of good character.

    The offences

36. The Australian Citizenship Instructions provide that crimes of violence are to be regarded as serious offences.[12] Both the offences of which Mr Hassan has been found guilty involve acts of violence, even though no physical harm was caused to Mr S. They are both serious. The fact that Mr S. may have acted inappropriately, and possibly provocatively, in his dealings with Mr Hassan and his family does not justify Mr Hassan's actions. Threatening conduct of the nature engaged in by Mr Hassan is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.  This is particularly so when the victim was threatened in his own home.

    [12] Paragraph 10.5.2.

37. In this case Mr S. was a victim of the offence and, on the basis of the Police report of the incident, I am satisfied that he was upset by the incident

38. Mr Hassan had been a resident of Australia for less than three years when he committed the offences.  In so doing he did not show respect for the laws of this country and did not abide by them. When interviewed by the Police he was not truthful, nor was he truthful when he gave evidence to the Court.  In reaching its conclusion the Court was obliged to be satisfied of the facts found beyond a reasonable doubt. I am bound to accept the Court’s finding as to the facts of what occurred. On this basis I cannot accept Mr Hassan's evidence that he did not act aggressively towards Mr S.

    Mitigating Factors

39. Paragraph 10.5.2 provides, in part:

    Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.

    oWhat is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ...

    oHas the applicant accepted responsibility and shown remorse for their conduct?

    oHow has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…

    oHas the applicant rehabilitated themselves?…

    oWhat was the applicant’s age at the time the offence was committed?…

    oWere there any extenuating circumstances relating to the offence?

    Character Evidence

    Relevant to the consideration of mitigating factors are the character references provided to the Tribunal by Mr Hassan.

    Mr Shehata

40. Mr Shehata is a Leader at the Church attended by Mr Hassan. He has known Mr Hassan since about January 2013.

41. In his statement of 16 January 2015[13] Mr Shehata described Mr Hassan as “a good, responsible and reliable character who …… is always willing to serve and help.”  When he gave evidence, Mr Shehata said that he had not asked Mr Hassan if he had committed the offences of which he had been found guilty.  Mr Shehata did not appear to accept the Court’s finding against Mr Hassan.

    [13] Exhibit R1 T9.

    Further Character References

42. Mr Hassan has provided the Tribunal with a number of additional written references. These references attest to Mr Hassan’s standing in the community rather than his good character and have provided little assistance in this matter.

    Consideration of Mitigating Factors

    Time from finding of guilt to application

43. Only 16 months passed between the time that  Mr Hassan was found guilty and the date on which he lodged his application for citizenship. For twelve months of this period, Mr Hassan was subject to a good behaviour bond.  This is a relatively short time and does not assist Mr Hassan in this application.

    Behaviour since release of obligations under the good behaviour bond

44. The Court did not make its final decision on penalty until 26 August 2013.[14]  Mr Hassan did not cease to be subject to the bond until 25 August 2014.  There is no evidence that Mr Hassan has been charged with any offences since the expiry of the bond. Nonetheless, the relatively short period between the expiry of the bond and the date of this decision, being just over one year, means that I cannot be satisfied, without more, that Mr Hassan has reformed.

    Remorse and acceptance of responsibility

    Mr Hassan has always maintained that he did not commit the offences and he continues to blame Mr S. for the situation in which he finds himself. He has shown no remorse and does not accept responsibility for his actions.

    Rehabilitation

    [14] Exhibit R1 T5.

45. There is no evidence that Mr Hassan has undertaken any form of rehabilitation. It is apparent from the Police Report that his anger played a role in the commission of the offences.

    Age

46. Mr Hassan is 40 years old. Age is not a factor which mitigates the seriousness of his conduct.

    Weighing the various factors

47. In deciding whether I am satisfied that Mr Hassan is of good character, the evidence has to be looked at as a whole. Paragraph 10.5.4 of the Instructions provides, in part:

    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.

    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, 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.[15]

    [15] Paragraph 10.5.4.

48. The offences of which Mr Hassan was found guilty are serious and involved violence, including a threat to kill. As noted above, they weigh heavily against his good character.

49. I have considered the character references provided by Mr Hassan. They indicate that he is honest, well-mannered, hard-working and mindful of the welfare of others. However while they attest to Mr Hassan's standing in the community, they are of little assistance in deciding whether he is of good character.

1. I accept Mr Hassan's evidence that he was not convicted of any offence in Egypt.

2. Mr Hassan disclosed the findings against him in his application for citizenship.

3. Nonetheless, Mr Hassan was only released from his obligations to comply with the good behaviour bond in August 2014. Without evidence of any steps that Mr Hassan has taken to rehabilitate himself, the period since his release from the bond is not long enough for me to be satisfied that Mr Hassan has in fact reformed. This is even more so when it is considered that, despite the passage of over three years since the commission of the offences, Mr Hassan has not expressed any remorse, or accepted responsibility, for his conduct.

4. Mr Hassan also characterised the conduct of which he was found guilty as not criminal. He clearly does not appreciate the seriousness of the finding of guilt against him. In these circumstances, I cannot find that Mr Hassan holds the values which the Australian community expects of an Australian citizen.

5. Taking into account all of the above, I am not satisfied that Mr Hassan presently satisfies the legislative requirement to be shown to be of good character.

   conclusion

6. The decision under review, being the decision of the delegate of the Minister for Immigration and Border Protection made 25 February 2015 to refuse Mr Hassan's application for citizenship by conferral, will be affirmed.

7. My conclusion does not preclude Mr Hassan from making a further application for citizenship.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of

......................[SGD]..................................................

Associate

Dated 14 December 2015 

Date of hearing	9 October 2015
Date final submissions received	9 October 2015
Applicant	In person
Advocate for the Respondent	K Eskerie
Solicitors for the Respondent	Sparke Helmore