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

[2021] AATA 793

Jaber and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 793 (8 April 2021)

Division:GENERAL DIVISION

File Number(s):      2019/8100

Re:Zeid Jaber

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:8 April 2021

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – application refused – where delegate not satisfied the application was of good character – definition of good character – offenses involving domestic violence – traffic offenses – where Tribunal not satisfied applicant remorseful for his conduct – where applicant has no insight into gravity of his offending – Tribunal not satisfied applicant has demonstrated an enduring pattern of good conduct – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration [2017] AATA 1506

SECONDARY MATERIALS

Australian Citizenship Policy Statement
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

8 April 2021

1. Mr Zeid Jaber, the applicant, is a citizen of Lebanon. He first entered Australia on 20 October 2000 as the holder of a Visitor (subclass 676) visa. The applicant was granted a Prospective Spouse (subclass 300) visa offshore on 11 March 2001 and was later granted a Combined Spouse (subclass UK 820/BS 801) visa. On 17 October 2017, the applicant lodged an application for Australian Citizenship by conferral (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”).

2. On 30 October 2019, the applicant was invited to comment on adverse information before the Minister (“invitation to comment”), namely, offences listed in the applicant’s National Police History Check Report. The applicant responded to the invitation to comment and provided a character reference from Dr Barich.

3. On 2 December 2019, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act (“the decision”). This is the decision under review in these proceedings.

4. The issue for the Tribunal to determine in these proceedings is whether it is satisfied that the applicant is of good character in accordance with paragraph 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

6. Subsection 24(1) of that Act provides that 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. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

7. The Act relevantly provides, at paragraph 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.’

   DEFINITION OF ‘GOOD CHARACTER’

8. The term ‘good character’ is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (“the CPI 15”) and the Australian Citizenship Policy Statement, which came into force as of 27 November 2020 (“the Policy”).

9. The role of the Policy and the CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and the CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

10. As to the definition of good character, the CPI 15 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…

11. The CPI 15 states the phrase ‘enduring moral qualities’ encompasses concepts such as: 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 being a manifestation of essential characteristics.

12. The CPI 15 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; not be violent, and not cause harm to others through their conduct.

13. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    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.

    [emphasis added]

14. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The Tribunal must exercise any statutory discretion bearing in mind the facts of any particular case. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors, some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    THE APPLICANT’S CRIMINAL CONDUCT AND DRIVING RECORD

15. The applicant’s National Police History Report reveals that the applicant has convictions for common assault- T2; a conviction for common assault (domestic violence related (DV)); a conviction for contravene apprehended domestic violence order; and a conviction for assault occasioning actual bodily harm. Details of some of the significant aspects of his offending conduct is summarised below.

16. On 17 May 2005, the applicant was convicted in the Campbelltown Local Court of 'Common Assault'. As a result, the applicant was subject to a two-year good behaviour bond and apprehended violence order (AVO). The circumstances of this offence, as described in the New South Wales Police Facts Sheets relevantly states:

    The [applicant] and [the victim] have been married for about two years and have one child who is 8 months old. [the victim] was in the bedroom sitting on the bed blow drying her hair. The [applicant] was in the bedroom playing with his 8 month old daughter who was crying at the time... It is alleged that the [applicant] has picked up his daughter and put her on the bed and said "Go to sleep". The [applicant] was angry about the baby crying. [The victim] said You don’t do that, do it to yourself and not to her". The [applicant] has then grabbed [the victim] by her hair and said "Take your daughter to bed I want to sleep". .. It is alleged that the [applicant] grabbed hold of the victims hair and pulled her to the floor and started to punch her in the face. One hand holding [the victim] and the other hand punching her. [the victim] was holding their 8 month old daughter at the time... [the victim] has got up and gone downstairs to grab the telephone to contact her mother. The [applicant] has grabbed the phone out of her hands and said "I'll call your mum. [the victim] has tried to get out the front door and the [applicant] has grabbed her hair and pushed her into a wall. [the victim] has tried to run to the driveway and the [applicant] has pulled her back by her hair and punching her to her face with a left closed fist. The [applicant] has then punched her to her back... The [applicant] has then grabbed his daughter and went inside... [the victim] has then run outside where she fell on the concrete and blacked out for a few seconds. She then ran to a neighbours house and police were called…

    …

    The [applicant] then participated in a Electronic Record of Interview where he made admissions to pulling [the victim’s] hair once upstairs and once outside the house. The [applicant] also admitted to smacking the victim on her bum...The [applicant] stated that he had been living in Australia for 5 years but did not know that he was not allowed to assault his wife. The [applicant] stated that in his country of Lebanon males are allowed to punish their woman...

17. On 10 May 2006, the applicant was convicted in the Liverpool Local Court of the offences 'Contravene apprehended domestic violence order' and 'Assault occasioning actual bodily harm-T2'. An additional charge of “common assault- T2” was withdrawn. He was sentenced to 8 months imprisonment with a 4-month non-parole period; suspended on entering a bond to comply with conditions (suspended sentence) under section 12 of the Crimes (Sentencing Procedures) Act 1999 (Cth).  The NSW Police Fact Sheet records the following:

    … the victim, accused and their daughter were travelling home after spending the evening at Bondi.

    As they approached the Toll plaza on the M5 Motor way the victim and the accused began to have a verbal argument. The cause of the argument is unclear.

    During the course of this verbal argument the accused has assaulted the victim.

    …
    The victim stated to police that the accused had grabbed her by the hair and punched her in the side of her head many times and then he head butted her.
    The victim had visible swelling and bruising to the right of her head along with some grazing and therefore was too frightened when requested, to give police a statement.
    …
    During the interview the accused made full admissions to head butting the victim and stated he did this to make her be quiet.

18. Records obtained from the Registrar of the Parramatta Local Court under summons show that the applicant was convicted of 'Common Assault (DV)-T2' in relation to an incident that occurred on 12 July 2009 and that an appeal against the conviction was upheld on 10 February 2010 which resulted in the charges being withdrawn on 10 September 2010.

19. The records provided by NSW Police also showed that the applicant had several traffic events between 2014 and 2020. They are as follows:

    (i)on 27 December 2019 the applicant was issued a traffic infringement notice for an offence described as 'Not stop at stop line at red arrow (motor vehicle)';

    (ii)on 21 April 2017 the applicant was issued with a traffic infringement notice for an offence described as 'Class A motor vehicle exceed speed limit – over 20 km/h – Lidar';

    (iii)on 8 March 2017 the applicant was issued a traffic infringement notice for an offence described as 'Driver use mobile phone when not permitted';

    (iv)on 20 December 2015 the applicant was issued a traffic infringement notice for an offence described as 'Smoke in motor vehicle with under 16 yr-old-driver culpab';

    (v)on 10 September 2015 the applicant was issued a traffic infringement notice for an offence described as 'Disobey no right turn sign-motor vehicle'; and

    (vi)on 17 June 2014 the applicant was issued a traffic infringement notice for an offence described as 'Drive in bus lane'.

    EVIDENCE AND CONSIDERATION

20. The CPI 15 provides that crimes of violence (such as assault and domestic violence, harassment and stalking) are considered serious offences. Senior Member Sosso (as he then was) considered the seriousness of domestic violence offences in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 and stated at [53]–[54] that:

    Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting…There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character…

21. In Prasad and Minister for Immigration [2017] AATA 1506 Deputy President Constance found at [32] that ‘domestic violence in any form and in any circumstances is fundamentally inconsistent with the standard of behaviour expected by the Australian community’.

22. Regarding the applicant’s conviction on 10 May 2006, the pre-sentence report dated 8 May 2006 recorded that the applicant “advised that he tried to calm her down as he was driving, and she kept retaliating, so he stated that he hit her to “shut her up”.” In summary, it was considered essential that the applicant gain access to psychological counselling services and that he would benefit from participation in a Domestic Violence program.

23. In a statutory declaration dated 2 December 2019, the applicant relevantly declared:

    “In 2009, I was charged with common assault following his wife's fabricated story that she reported to Police. Prior to this, we had an argument over money, and she provided false facts to the police to purposely punish me. I was wrongly advised to plead guilty…

    I failed to disclose my common assault charge that occurred in 2009 as I was informed this offence was dismissed. I was unaware that this offence was on my National Police Check report and did not believe it needed to be disclosed.

    …

    I have attended and competed an Anger Management Course. I have also attended counselling sessions regularly to help with my anger issues. Attached is the evidence proving that I have completed these courses and am of good character.

    Despite my past criminal offences, I have been remorseful since and have not been convicted for offences in the past 10 years” [Emphasis added]

24. Attached to the applicant’s statutory declaration was a letter dated 18 November 2019 from Dr Antwan Barich, a general practitioner from Macquarie Mall Medical, and a letter from Mr Abbas, solicitor, dated 2 December 2019. Dr Barich advised that the applicant had been his patient since his arrival in Australia and that he has had several illness and operations requiring regular treatment and review. He described the applicant as doing “maximum to (sic) his family” and said he had known him to be a gentleman and of excellent character.  Mr Abbas advised that he was friends with the applicant and that he was aware of the applicant’s past convictions. He said the applicant understood his actions were wrong and that he was remorseful for his past actions. Mr Abbas also noted that the applicant “informed me that he has completed the counselling program”. 

25. No evidence was provided demonstrating that the applicant had completed an Anger Management Program and no details were provided, from an appropriately qualified professional, about the counselling sessions allegedly undertaken by the applicant, including, for example, diagnosis, treatment plan details and prognosis.

26. In a further statutory declaration dated 23 March 2020, the applicant relevantly declared:

    “I 2005, I was charged with common assault as a result of my ex-wife. My ex-wife suffers from bipolar disorder and this played a large role in our relationship breakdown. In relation to this incident, my ex-wife had provoked me due to her negligent actions towards our daughter, where the baby was crying, and she did not pick her up because she was straightening her hair. As such I retaliated…

    In 2009, I was charged with common assault again as a result of my ex-wife’s false allegations. Due to her disorder and out toxic relationship, she reported me to the Police, making claims of threats. I did not disclose this charge as I was informed it was dismissed. Had I known that it was on my record, I would definitely have disclosed the information to the Department, as I am an honest person.

    I have since not been charged with a criminal offence since 2009, other than a speeding ticket… I have four children whom I take care of and support financially… I also have severe health issues such as severe cancer, memory loss due to issues of brain failure and weak immunity.  I have undertaken counselling and anger management sessions in order to ensure that I do not reoffend…” [Emphasis added]

27. At hearing, the applicant said he undertook anger management counselling once a week for 1 or 2 years as it was a condition imposed by the Court. There is however very limited evidence available about the applicant’s reform and the professional treatment he has received to deal with his mental health and anger issues. Dr Barich has provided some insight into the applicant’s mental health condition, but no evidence has been provided from the applicant’s appropriately qualified treatment provider, namely his psychologist.

28. Dr Barich has provided two additional letters in these proceedings dated 28 March 2020 and 22 August 2020. Dr Barich details numerous chronic conditions that the applicant has suffered from since his childhood, including, obesity, hidradenitis suppurativa (chronic skin condition), and multiple chronic pain conditions. It is also reported that the applicant has a long history of depression and anxiety since he was in Lebanon which has been affecting him “since childhood till now”. Dr Barich reports that the applicant “has been treated with antidepressants for years (Zoloft, Lovan, Prestiq and more), anti-anxiety tablets (Diazepam and Xanax). He was referred many times to see psychologist first Mr Abu-Arab then he has been seen by one in Parramatta (ordered by the court) and lately seen by Natasha Leader (clinical psychologist for weight loss).” 

29. At hearing, the applicant again blamed his conduct on his ex-wife and resiled from previous admissions. The applicant has previously admitting to police that he headbutted the victim; smacked her on the bum; and that in Lebanon, men were allowed to punish their women. He also disclosed for the purposes of a pre-sentence report that he hit his ex-wife to “shut her up”; and declared in his statutory declarations that he “retaliated” and was “provoked”. Despite these admissions, the applicant said at hearing that it was not true and “it was all lies”. He said he never laid hands on his ex-wife and that she was the one assaulting him. The applicant explained that he remembered the incidents well and that there may have been yelling and pushing but he never pulled her hair or beat her.

1. I acknowledge that the applicant is a father of four children, three of which are with his current wife. The applicant has no criminal convictions for offences involving his current wife. However, having careful regard to the material before me, I am not satisfied that the applicant is remorseful for his conduct nor that he has any insight into the gravity and seriousness of his previous conduct. The applicant’s offending conduct included violence in a domestic situation. This type of conviction is viewed extremely seriously and should not be trivialised. While I acknowledge that the applicant has not been convicted of any offences since 2006, the applicant's lack of insight into the gravity of his offences is very concerning.

2. I am not satisfied that enough time has passed to demonstrate an enduring pattern of good conduct. The decision under review is affirmed. The applicant may re-apply for Australian citizenship at any time.  

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 8 April 2021

Date(s) of hearing:	19 January 2021
Solicitors for the Applicant:	R Sayed, Abbas and Co Lawyers
Solicitors for the Respondent:	A Downie, Minter Ellison