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

[2020] AATA 415

Jaafar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 415 (6 March 2020)

Division:GENERAL DIVISION

File Number:          2019/1329

Re:Bilal Jaafar

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:6 March 2020

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant is of good character – actual assault – domestic violence – good behaviour bond – Citizenship Policy – Australian Citizenship Procedural Instructions – decision under review affirmed  

LEGISLATION
Australian Citizenship Act 2007 (Cth)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608

SECONDARY MATERIALS

Citizenship Policy (1 June 2016)

Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Dr L Bygrave, Member

6 March 2020 

INTRODUCTION

1. The applicant, Mr Bilal Jaafar, is 43 years old and a citizen of Lebanon. He first arrived in Australia on 12 August 2005 and currently holds a Resident Return (Subclass 155) visa that was granted on 29 January 2015.

2. On 13 April 2016, Mr Jaafar applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).[1]

   [1] The application is stamped ‘RECEIVED 29 Apr 2016 Department of Immigration and Citizenship’, Exhibit T, T4, page 23.

3. This application was refused by a delegate of the Minister for Home Affairs (the Minister)[2] on 8 March 2019 on the basis that Mr Jaafar did not meet the good character requirement in paragraph 21(2)(h) of the Citizenship Act.

   [2] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. On 12 March 2019, Mr Jaafar applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review.

5. The application was heard by the Tribunal in Sydney on 13 February 2020. Mr Jaafar had legal representation; he attended the hearing and gave oral evidence in person with the assistance of an interpreter of the Arabic language.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   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.

7. Relevant to this application, subsection 21(2) of the Citizenship Act sets out the general eligibility requirements for Australian citizenship as follows:

   (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.

   Citizenship Policy

8. The Citizenship Act does not define the term ‘good character’; however, the Citizenship Policy offers guidance on the interpretation and application of the good character requirement. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]

   [3] [1979] AATA 179; (1979) 2 ALD 634.

9. Chapter 11 of the Citizenship Policy sets out the following policy guidance I should consider when assessing whether a person is of good character. The decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 is cited as guidance to the definition of good character:

   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.[4]

   [4] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 145.

10. The Citizenship Policy states that good character refers to the ‘enduring moral qualities of a person’ as an indication of whether they are likely to ‘uphold and obey the laws of Australia’.[5] The phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.

    [5] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 145.

11. This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. I can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship application.[6]

    [6] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 146.

12. The requirement of character in a citizenship application is discussed by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.[7]

    [7] [2000] AATA 931, [8].

13. The Citizenship Policy sets out a non-exhaustive list of characteristics of good character.[8] Relevant to this application, a person of good character would:

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

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

    [8] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 147.

14. As set out in the Citizenship Policy, the question for decision makers is whether any mitigating factors and/or explanation provided by the applicant outweigh the behaviour in question. This assessment requires considering an aggregate of qualities and weighing up factors by applying community standards.[9]

    [9] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 149.

15. Mitigating factors relevant to this application include whether a person of good character would have behaved the way the applicant did, the amount of time that has elapsed since his offending, whether the applicant has demonstrated that he has upheld and obeyed the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to his offences; this requires looking holistically at the applicant’s behaviour over a lasting or enduring period of time.

    Australian Citizenship Procedural Instructions (CPIs)

16. Further policy guidance is provided by the Australian Citizenship Procedural Instructions (CPIs), which detail operational instructions and supplement the Citizenship Policy. CPI 15 – Assessing Good Character under the Citizenship Act (CPI 15) was issued on 17 April 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Citizenship Act.

17. Relevant to this application, CPI 15 states that Australian community standards, as reflected in Government initiatives, indicate that ‘domestic violence…in any form is not acceptable in the Australian community’.[10] Further, the factors to be taken into account when assessing whether a person is of good character include whether they have committed a ‘serious offence’, which includes ‘crimes of violence (such as…domestic violence…)’.[11]

    EVIDENCE

    [10] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.3.

    [11] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.7.

    The applicant’s offences

18. In his application for Australian citizenship, Mr Jaafar declared he had ‘been convicted of, or found guilty of’ the offence of common assault (domestic violence) on 2 September 2008.[12] A National Police Certificate dated 13 October 2017 set out that Mr Jaafar was convicted in Parramatta Local Court on 2 September 2008 for common assault (domestic violence) and released on a good behaviour bond for 12 months.[13]

    [12] Exhibit T, T4, page 28.

    [13] Exhibit T, T7, page 62.

19. After Mr Jaafar made his application for Australian citizenship, he was involved in a further incident. A Court Order Notice from Blacktown Local Court dated 8 March 2018 stated Mr Jaafar pled guilty to and was convicted of the offence of common assault (domestic violence) and directed to enter into a good behaviour bond for 12 months.[14]

    [14] Exhibit T, T10, page 76.

20. Summons documents from NSW Police also show police attended the home of Mr Jaafar and his wife on 6 November 2005, 4 December 2005, 2 February 2006, 25 December 2011, 15 May 2015 and 7 April 2016 in response to telephone calls made to the police by either neighbours or Mr Jaafar’s wife reporting arguments.[15]

    [15] Exhibit R1.

21. Mr Jaafar has provided Statutory Declarations on 27 February 2019 and 7 August 2019. On 27 February 2019, Mr Jaafar wrote:

    I am of good character. The incident that happened with the two AVO’s were misunderstanding. I am not a evil person or a angry person. I am a very caring loving husband and dad and try to help others.[16] [replicated as in original]

    [16] Exhibit T, T10, page 72.

22. In his Statutory Declaration dated 7 August 2019, Mr Jaafar provided the following explanations about the ‘incidents’ on 28 August 2008 and 5 January 2018 that led to his convictions:

    Incident of 28 August 2008

    In relation to the incident of 28 August 2008, I concede that I have committed a serious offence.

    I did enter a guilty plea to the charges of common assault against my wife. I did slap her across her face during an argument and I offer no justifications for my actions.

    I sincerely regret my actions and since that incident my relationship with my wife has continued to flourish. I am truly sorry for my actions because I realise that [I] hurt my wife as well as demonstrating a total disregard to Australian law and the standard that the Australian community expects of me.

    I further understand that such actions do not set a good example for my children.

    My contrition towards my wife has been clearly evidenced by the way I have since been treating her, as well as maintaining a loving and harmoniously relationship with our 3 children and 3 stepchildren.

    Assaulting my wife is completely out of character and I state that this was an isolated incident which has never been repeated…

    Incident of 5 January 2018

    In relation to the incident of 5 January 2018, whilst I did plead guilty to the commission of the offence, I maintain that I had no intention to harm my stepdaughter but was merely trying to protect her from being harmed during an argument with her husband…

    During that incident I stepped in between them attempting to place my hand across my stepdaughter’s mouth to stop her swearing at her husband and prevent a violent escalation. Regrettably, in my attempt to do so I accidentally scratch her face...

    I entered a plea of guilty on the advice of a duty legal aid solicitor that an uncontested enter plea would be in my interest…[17]

    [17] Exhibit A1, paragraphs 12-17, 17-19, 21.

23. At the Tribunal hearing, Mr Jaafar, his wife and his stepdaughter gave oral evidence about these incidents and his subsequent convictions. In relation to his conviction of common assault (domestic violence) in 2008, Mr Jaafar and his wife confirmed that they had an argument and he slapped her across her face. They both stated that he subsequently apologised and she accepted his apology; he has never hit her since then and they have a good relationship. Mr Jaafar’s wife said that they have verbal arguments but ‘reconcile within five minutes’; she stated that her first husband had been extremely violent towards her and she would not tolerate any violence from a man in her life again. Mr Jaafar’s wife said that he is a good husband and father/stepfather, and has been employed as a landscaper since arriving in Australia. In response to the NSW Police documents that showed police attending their home on six other occasions, both Mr Jaafar and his wife downplayed these incidents as ‘normal’ verbal arguments.

24. The oral evidence to the Tribunal regarding Mr Jaafar’s conviction of common assault (domestic violence) in 2018, by Mr Jaafar, his wife and step-daughter contained different accounts about the time of day the incident occurred, who was present, and where the incident took place. However, there was consensus that Mr Jaafar intervened in an escalating verbal argument between his stepdaughter and her husband, which had a relationship history of physical violence and an apprehended violence order in place. In attempting to stop his stepdaughter’s yelling and swearing, Mr Jaafar put his hand across her mouth, scratching her face in the process. His stepdaughter subsequently phoned the police and Mr Jaafar was charged with common assault (domestic violence). Mr Jaafar’s stepdaughter told the Tribunal that she later tried to withdraw the charges. Mr Jaafar said that he only pleaded guilty on the advice of a solicitor at the Court; however, he did not believe that he committed any offence.

25. A NSW Roads and Maritime Services Traffic Record Report for Mr Jaafar shows he has a record for traffic/driving offences including ‘exceed speed limit by more than 15 km/h but not more than 30 km/h’, ‘exceed speed limit by not more than 10 km/h (school zone)’, ‘negligent driving’, ‘disobey…sign at intersection’ and ‘drive/tow vehicle with…load causing instability’.[18] While these driving and traffic offences are not considered to be serious under the Citizenship Policy, I note that the most recent offence was in June 2018.

    [18] Exhibit T, T10, page 75.

    Character references provided by the applicant

26. The Citizenship Policy states that ‘referee reports can shed light upon an applicant’s character’ and provides advice about the level of weight to be given to references.[19]

    [19] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 155.

27. Mr Jaafar filed character references with the Department and the Tribunal including from friends, colleagues and family members. A reference from a colleague referred to a ‘misunderstanding’ between Mr Jaafar and his wife in 2008, and described him as ‘a very good generous kind man…a very good husband, father and very good in his work as a landscaper’.[20] Mr Jaafar’s general practitioner recorded that Mr Jaafar had ‘two AVO’s’  but noted he was ‘a family man…honest and hard-working and is always polite and respectful’.[21] Other written references described Mr Jaafar as ‘responsible’, ‘caring’, ‘loyal’, a ‘very supportive father figure’, a ‘very good man…and very good with his family’, a ‘hard worker’, a ‘good neighbour’, and ‘very honest and trustworthy’;[22] however, none of these references acknowledged Mr Jaafar’s convictions.

    [20] Exhibit T, T7, page 60,

    [21] Exhibit T, T10, page 74.

    [22] Exhibits A4, A5, A6, A7, A8, A9, A10.

28. Mr Jaafar’s wife filed a Statutory Declaration with the Tribunal dated 31 July 2019, which acknowledged the incident in 2008. She described Mr Jaafar as a ‘caring and loving father and husband’ and a ‘very gentle person who detests all forms of violence’.[23]

    [23] Exhibit A11.

29. A Statutory Declaration by Mr Jaafar’s stepdaughter filed with the Tribunal and dated 22 July 2019 described the incident in 2018 and stated that she did not accept her stepfather’s apology and explanation at the time because she was angry. She wrote that she has now ‘fully reconciled’ with her stepfather and regrets involving the police. She further noted that her stepfather has a ‘very gentle nature’ and she has ‘never known him to be violent or have violent tendencies’.[24] 

    [24] Exhibit A12.

    CONSIDERATION

30. The issue for determination by the Tribunal is whether Mr Jaafar meets the requirements of good character in paragraph 21(2)(h) of the Citizenship Act.

31. Mr Jaafar has been convicted of two serious offences in the Courts – common assault (domestic violence) – on 2 September 2008 and 8 March 2018. These convictions resulted in Mr Jaafar being released on a good behaviour bond for 12 months; notably, the most recent good behaviour bond expired less than one year ago.

32. I accept the Court’s convictions in relation to these offences. I am also satisfied that these offences are not consistent with the good character requirement in the Citizenship Policy for a person to not be violent and not cause harm to others. I rely on the decision in Re Sharma and Minister for Immigration and Border Protection, in which Deputy President Constance stated that domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character’.[25]

    [25] [2015] AATA 608, [37].

33. I have also weighed the submissions by Mr Jaafar that there were mitigating factors in his conviction for common assault (domestic violence) on 8 March 2018; in particular, that he was attempting to prevent the escalation of a verbal argument into a physical altercation between his stepdaughter and her husband. However, I am concerned that the oral evidence of Mr Jaafar, his wife and his stepdaughter in relation to this incident contained different accounts of where and when the incident occurred, and who witnessed the incident. I find these inconsistences undermine the credibility of the oral evidence of Mr Jaafar, his wife and stepdaughter, especially within the context of an incident of domestic violence.

34. With regard to the character references provided by Mr Jaafar, I note the Citizenship Policy advises that referee reports should acknowledge any offences by the applicant and explain why the applicant is nonetheless considered to be of good character. The Policy further states that:

    …less weight should be given to [references submitted from family members] because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision-makers should take particular care with references from victims of domestic violence. There is a risk that such statements have been coerced either directly or indirectly.[26]

    [26] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, page 155.

1. I am not satisfied that the information in the character references for Mr Jaafar outweigh his offences, particularly as most of his written references do not acknowledge his convictions. I also find that the only statutory declarations that provide comprehensive information about Mr Jaafar’s offending behaviour were written by his wife and stepdaughter, who are the named victims in his two convictions of common assault (domestic violence).

2. I have further considered Mr Jaafar’s history of traffic/driving offences, including his most recent offence in June 2018. These offences are less serious than Mr Jaafar’s convictions but indicate he has some disregard for Australia’s traffic laws.

3. Finally, Mr Jaafar provided extensive evidence to the Tribunal that he has been constantly employed as a landscaper since he arrived in Australia in 2005, and he has successfully established his own landscaping business that employs four fulltime staff. I acknowledge that character references provided positive descriptions of Mr Jaafar as a husband, father/stepfather, colleague, friend and neighbour. While Mr Jaafar is to be commended for his employment and these relationships, it does not diminish his offending behaviour at this time.

4. Weighing all the available evidence, I am not satisfied that Mr Jaafar is of good character at this time, as required by the Citizenship Act. While there may be mitigating circumstances in the incident that led to his conviction of common assault (domestic violence) in March 2018, I find the good behaviour bond placed on Mr Jaafar as a result of this conviction concluded less than 12 months ago. This simply does not support a finding that Mr Jaafar can demonstrate good character over a lasting or enduring period of time.

   CONCLUSION

5. In considering all of the relevant circumstances, I am unable to make a positive finding of good character for Mr Jaafar and for this reason, he does not satisfy paragraph 21(2)(h) of the Citizenship Act.

6. My conclusion does not preclude Mr Jaafar from making a further application for Australian citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he does meet the requirements to be granted Australian citizenship.

   DECISION

7. The decision under review is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

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

Associate

Dated: 6 March 2020

Date of hearing:	13 February 2020
Solicitors for the Applicant:	Mr Sam Issa, Firmstone and Associates
Solicitors for the Respondent:	Mr Jake Kyranis, Sparke Helmore Lawyers