Ismat Salameh A Okasheh and Minister for Immigration and Border Protection

[2014] AATA 69

[2014] AATA  69

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3773
Re	Ismat Salameh A Okasheh
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	24 January 2014
Place	Sydney

The decision under review is affirmed.

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

Deputy President RP Handley

Catchwords

CITIZENSHIP – Citizenship by conferral – good character – previous convictions – whether the applicant has reformed – decision affirmed.

Legislation

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

Cases

Chen and Minister for Immigration and Citizenship [2007] AATA 1815

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

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

Haeri and Minister for Immigration and Citizenship [2009] AATA 422

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

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

Deputy President RP Handley

1. Mr Okasheh has applied to the Tribunal for the review of a decision by a delegate of the Minister of Immigration and Border Protection (the Minister) to refuse his application for Australian citizenship.

   BACKGROUND

2. Mr Okasheh was born in Jordan and is aged 39. He arrived in Australia on 12 November 2007 and is currently the holder of a subclass 100 (permanent) visa, which allows him to remain in Australia indefinitely. On 12 November 2011, Mr Okasheh applied to become an Australian citizen.

3. On 5 January 2012, Mr Okasheh was arrested and charged with 62 counts of dealing with stolen property and one count of goods suspected of being stolen being held on his premises. He was held in custody until 15 February 2012 when he was released on Supreme Court bail. On 15 June 2012, at Central Local Court, Mr Okasheh, having previously pleaded guilty to all counts pursued, was convicted and sentenced to: one month’s imprisonment backdated to 5 January 2012 and concluding on 4 February 2012 in respect of 52 counts of dealing with property suspected of being the proceeds of crime and one count of goods suspected of being stolen being held on his premises, and six months’ imprisonment suspended on entering into a bond to be of good behaviour for six months, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999(NSW) in respect of the other 10 counts of dealing with stolen property. The bond expired on 14 December 2012.

4. Mr Okasheh has also been subject to three Apprehended Violence Orders (AVOs) dated 9 April 2009, 11 November 2011 and 16 February 2012, as a result of complaints made by his wife to the Police. On 3 May 2012, he was arrested and charged with stalking or intimidating his wife with the intention to cause fear of physical or mental harm, contravening a restriction or prohibition in an AVO, and breach of bail. He was held in custody until 4 July 2012 when he was released on Supreme Court bail. Mr Okasheh pleaded not guilty to these charges which were not ultimately pursued.

5. In letters dated 13 June 2012 and 7 May 2013, the then Department of Immigration and Citizenship (the Department, now the Department of Immigration and Border Protection) invited Mr Okasheh to respond to information before the Department that it said indicated that he might not be of good character. Mr Okasheh responded to these letters, respectively, on about 25 July 2012 with statutory declarations dated 24 July 2012 and further evidence, and by letter dated 10 June 2013. Mr Okasheh said that since arriving in Australia he has struggled to find suitable employment because his legal qualifications from Jordan and Lebanon are not recognised in Australia. He has also suffered from depression for which he has received medical treatment and is taking medication. In his letter dated 10 June 2013, Mr Okasheh indicated that he and his wife have resolved their problems and now have a stable relationship. He said he stays at home and cares for their four year old son, and undertakes the household tasks while his wife works.

6. In his decision of 4 July 2013, a delegate of the Minister refused Mr Okasheh’s citizenship application on the grounds that he failed to satisfy the good character requirement. The statement of reasons for the decision refers to relevant factors in the decision being Mr Okasheh’s criminal record and a lack of evidence of rehabilitation, but also to a lack of evidence as to his being of good reputation in the community, and a lack of evidence as to his current circumstances, employment and status in the community.

7. On 2 August 2013, Mr Okasheh applied to the Tribunal for a review of this decision.

   LEGISLATION AND ISSUES

8. The issue for the Tribunal to decide is whether Mr Okasheh meets the requirement of good character. Eligibility for Australian citizenship is governed by the Australian Citizenship Act 2007 (Cth) (‘The Act’). Section 21(2) states the general eligibility criteria which apply in each case:

   (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)is aged 18 or over at the time the person made the application; and

   (b)is a permanent resident:

   (i)      at the time the person made the application; and

   (ii)     at the time of the Minister's decision on the application; and

   (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and

   (d)understands the nature of an application under subsection (1); and

   (e)possesses a basic knowledge of the English language; and

   (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

   (g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

   (h)is of good character at the time of the Minister's decision on the application.

9. Of relevance in Mr Okasheh’s case is s 21(2)(h) requiring the Minister to be satisfied that the person is of good character at the time of the Minister’s decision on the application, that is on 4 July 2013.

10. Section 24(1A) provides that the Minister “must not approve the person becoming as Australian citizen unless the person is eligible to become an Australian citizen” under ss 21(2) to (8).

11. The term ‘good character’ is not defined in the Act and the Tribunal must therefore be guided by the ordinary meaning of the words as interpreted by the courts.

12. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving) the Full Federal Court considered the meaning of the expression "good character".  Davies J (with whose reasons R D Nicholson J agreed) said [at 425]:

    ... the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

13. In the same decision, Lee J said [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 ... 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).

14. The Tribunal should also be guided by the Australian Citizenship Instructions (the Instructions), which were developed to assist decision makers in applying the Act. In Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal stated that decision-makers should apply such policy unless that policy is unlawful, or produces an unjust result in the circumstances of the particular case.

15. Mr Okasheh’s previous convictions are a central consideration in determining whether he is of good character for the purposes of being granted Australian citizenship. The Instructions provide that the decision-maker should consider, among other factors, the seriousness of any offence, the number of offences committed and whether these constitute a pattern of criminal behaviour, and the length of any sentence imposed. The Instructions provide that weight should be given to a serious prison sentence (page 117). A serious prison sentence is defined in s 3 of the Act as comprising a minimum of 12 months imprisonment. Although previous criminal sentences are important, as stated by Lee J in Irving, the primary focus must be on an objective assessment of the applicant’s enduring moral qualities.

    MR OKASHEH’S CASE

16. Mr Okasheh told me that he and his wife had met in Jordan and decided to move to Australia. His wife had a teenage son from a previous marriage. In Jordan, Mr Okasheh had practiced as a lawyer in his brother’s legal practice. He also spent 18 months working in Qatar. On arriving in Australia, Mr Okasheh found it very difficult to adapt to the very different culture and language, his qualifications were not recognised, and he was unable to find employment. He and his wife began experiencing problems after about a year because of a lack of money. He tried to do anything to earn money and started buying and selling goods on Gumtree as a means of doing this.

17. According to Mr Okasheh, he began buying goods on Gumtree from a man who told him he had a lot of ‘other stuff’ for sale if he was interested. As time went on, and as he bought more, he realised that some of the goods might be ‘dodgy’. He had goods stored in his garage and some in his house. His wife reported him to the police at a time when they were having problems. When they had an argument, her reaction was often to call the police, hence the AVOs.

18. Mr Okasheh said that when he was in custody, the Police, in putting together the charges, at one time offered to consolidate the charges into one or two if he gave them more time. Mr Okasheh wanted to get out of custody as soon as possible, and it was only an application to the Supreme Court for bail that achieved this.

19. When he was released from custody in February 2012, his wife collected him but refused to allow him to return home with her or to see his son. This, in the end, led to his being charged with breach of an AVO and breach of bail. These charges were not pursued.

20. Mr Okasheh said he was suffering from depression at the time of his offending. He has provided three references as to his good character including from the President of the Jordanian Australian Friendship Association (JAFA). However, two of these references, including that from the President of JAFA, do not indicate that the person giving the reference was aware of Mr Okasheh’s criminal record.

21. Mr Okasheh said that while he and his wife were on holiday in Jordan in May 2013, he had great difficulty finding out from the Department what was happening with respect to his citizenship application. The decision to reject his application was made while he was away and he returned to Australia to seek a review. He finds it difficult re-entering Australia when his wife and son are Australian citizens and he is not. He wants Australian citizenship so that he has more flexibility in coming and going from Australia.

22. Mr Okasheh said his wife and son are currently here with him in Australia. His wife has a full-time administrative job with a fashion business. His son, who is 5, is about to start primary school. Mr Okasheh is currently receiving Newstart Allowance, and, as part of his registration with Centrelink, is working voluntarily 2 days per week for the Salvation Army. They are living in Lakemba in rented accommodation.

23. Mr Okasheh said he and his wife are considering returning to Jordan to enable him to resume work in his brother’s legal practice. However, Mr Okasheh wants to return to Australia for his son’s High School education because the schools are better in Australia compared to Jordan.

24. He said he started suffering depression about a year after arriving in Australia. He saw his GP about this twice, and was prescribed anti-depressants. However, he was scared of taking them, in part because of the effect on his wife who also suffered from depression.  When he was first in custody he saw a Doctor who prescribed anti-depressants, which he started taking, and also saw a psychologist twice. After being released from custody, he continued with the medicine on prescription from his GP. However, he now feels normal and is going to see his GP about gradually coming off the medication.

    THE MINISTER’S CASE

25. Ms Graham, for the Minister, said that s 21(2)(h) of the Act requires that the decision-maker must be positively satisfied that the applicant is of good character: Chen and Minister for Immigration and Citizenship [2007] AATA 1815 at [18] (On this point, see, however, the decision in Da Wei Zheng and Minister for Immigration and Citizenship [2011] AATA 304, where the Tribunal noted, at [37-38], that such an interpretation is referable only to s 13(1)(f) of the Australian Citizenship Act 1948). As the ACIs state, and as has been stated by the Tribunal, “A grant of Australian citizenship is a privilege given to persons who demonstrate good character”: Haeri and Minister for Immigration and Citizenship [2009] AATA 422, at [35].

26. Ms Graham noted that Mr Okasheh was charged with the 63 offences, of which he was later convicted, within two months of applying for Australian citizenship. He has also been charged with other offences, albeit that these charges were not pursued. Ms Graham contended that Mr Okasheh has been unable to demonstrate that he has been of good character for a sufficient period and in particular, through the processing of his citizenship application. Moreover, the Tribunal should not be satisfied that he would be likely to uphold and obey Australian laws given his offending behaviour. Mr Okasheh has not yet been able to establish that he is of good character for a sufficient time since the offending behaviour. Ms Graham submitted that the Tribunal should affirm the decision to refuse Mr Okasheh’s citizenship application, noting that he holds a permanent visa entitling him to reside in Australia indefinitely and that he can re-apply for citizenship in the future.

    DISCUSSION

27. As stated above, the issue for the Tribunal is whether it is satisfied that Mr Okasheh was of good character at the time of the Minister’s decision on the application on 4 July 2013. This requires an objective consideration of his enduring moral qualities. Given his convictions, an important consideration will be whether he has reformed.

28. I am satisfied from Mr Okasheh’s evidence that adjusting to living in the Australian community, separated from his family and friends in Jordan, has proved to be difficult. His legal qualifications – a Bachelor of Laws degree from Jordan and his Master of Laws degree from Lebanon – have not been recognised, and he has been unable to find suitable employment. I also accept that he has suffered from depression. However, these problems do not excuse his criminal conduct. This conduct was not of a serious nature, but, nevertheless, there were a large number of charges and the sentencing magistrate regarded the offences as sufficiently serious to warrant a short period of imprisonment, albeit backdated, and a good behaviour bond.

29. In terms of whether he is reformed, it is only a relatively short time since his good behaviour bond expired in December 2012. In my view, it is too soon to be satisfied that he has reformed. For me to be satisfied of this I would want to see clear evidence of rehabilitation and of Mr Okasheh making a positive contribution to the Australian community, which, in my view, is currently missing. Australian citizenship is a privilege for which an applicant must be able to establish their good character.

30. As the Respondent stated, Mr Okasheh holds a ‘permanent residence’ visa entitling him to remain in Australia indefinitely, and he can re-apply for citizenship in the future. I accept that Mr Okasheh was frank in telling the Tribunal what happened. I am optimistic that he now has a better understanding of eligibility for citizenship and that, if he provides convincing evidence of rehabilitation in the future, he will be able to establish that he is of good character for the purpose of a new application for Australian citizenship.

    DECISION

31. The decision under review is affirmed.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley

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

Associate

Dated 14 February 2014

Date(s) of hearing	24 January 2014
Date final submissions received	24 January 2014
Applicant	In person
Solicitors for the Respondent	A Graham, Clayton Utz Lawyers