Kassem and Minister for Home Affairs (Citizenship)
[2018] AATA 4383
•26 November 2018
Kassem and Minister for Home Affairs (Citizenship) [2018] AATA 4383 (26 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2773
Re:Hussein Kassem
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:26 November 2018
Place:Sydney
The decision under review is affirmed.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – Applicants Australian citizenship revoked by the Minister – failure to take pledge – Applicants permanent visa cancelled under character grounds – guilty of criminal offences – failed to satisfy permanent residency requirement for citizenship application – applicant not deemed to be person of good character – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
Abebe v Commonwealth (1999) HCA 14, 197 CLR 510
Al-Kateb v Godwin and Others (2004) 208 ALR 124
AFY18 v Minister for Home Affairs (2018) FCA 1566
Berry and Comcare [2006] AATA 352
Bushell v Repatriation Commission [1992] HCA 47
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307
Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409
Hneidi v Minister for Immigration and Citizenship [2010) 182 FCR 115
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
NXYD and Minister for Home Affairs (Citizenship) [2018] AATA 3144
Park v Minister for Immigration and Border Protection (2018) AATA 2299
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634
Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] 62 ALD 472
Re Rennie and Defence Force Retirement and Death Benefits Authority [1979] 2 ALD 424
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Shi v Migration Agents Registration Authority [2008] HCA 31
SZJSS and Others v Minister for Immigration and Citizenship (2010) HCA 48
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Amnesty International, Amnesty International Report 2017/18, The State of the World’s Human Rights
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015)
Department of Foreign Affairs and Trade, Country Information Report Lebanon, 23 October 2017
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Migration Reform (Transitional Provisions) Regulations
REASONS FOR DECISION
Chris Puplick AM, Senior Member
26 November 2018
Mr Hussein Kassem appeals to this Tribunal against a decision of the Minister (via his Delegate) made on 2 May 2017 to cancel his (the Minister’s) prior approval of Mr Kassem’s application for citizenship by conferral. This is the reviewable decision.
THE DECISION UNDER APPEAL
The sole basis revealed in the decision of the Delegate for the cancellation of the prior approval of Mr Kassem’s application for citizenship was that Mr Kassem was, at the relevant time, not a permanent resident of Australia.
THE LEGISLATIVE REQUIREMENTS: AUSTRALIAN CITIZENSHIP ACT
The relevant time, in this instance is the date on which the decision is made. The requirement to be a permanent resident when applying for citizenship by conferral, is set out in section 21(2)(b)(ii) of the Australian Citizenship Act 2007 (the Act) in the following terms:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
……
(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…”
Section 21(2) contains a number of other requirements enumerated from (a) to (h) all of which must be met to establish eligibility.
The term “permanent resident” is defined in section 5 of the Act, the relevant part of which provides:
(1) For the purposes of this Act, a person is a permanent resident at a particular time if and only if:
(a) the person is present in Australia at that time and holds a permanent visa at that time;
Compliance with this requirement is mandatory. The Act specifies the definition to be met “if and only if” a permanent visa is held.
In short, in order to be considered for a grant of citizenship by conferral, an applicant must (among other things) hold the status of being a permanent resident, which in turn requires the holding of a permanent visa.
Additionally, the Respondent pointed to subsection (h) of section 21(2) of the Act which allows a cancellation (or refusal) to be made on the grounds that the applicant does not meet the qualification that he/she
(h) is of good character at the time of the Minister's decision on the application.
It is important to record that the Tribunal accepts the invitation of the Respondent (not resisted by the Applicant) to look beyond the mere question of cancellation of the prior approval on the sole grounds of non-permanent residency which was the only matter specified by the Delegate for her decision.[1]
[1] Section 37 – T Documents at [8]-[10].
The ability of the Tribunal to take give consideration to other factors in this fashion was dealt with by the Tribunal in Berry where it stated:
“… the fact that the specific issue in question was not dealt with in the reviewable decision should not deprive this Tribunal of jurisdiction to review the decision arrived at.”[2]
[2] Berry and Comcare [2006] AATA 352 at [57] per Deputy President Jarvis.
THE TRIBUNAL IN THE SHOES OF THE DECISION-MAKER
It does not actually matter what basis was used by the Delegate for making their decision, nor indeed the actual decision itself. On appeal that process starts de novo.
The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[3]
[3] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307.
It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:
“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[4]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[5]
“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[6]
“….in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence before the Board.”[7]
“The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and was so obliged to apply the criteria governing the exercise of the power in s 501 CA of the Act at the time of its own decision.”[8]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[9]
“…. the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[10]
[4] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at [640].
[5] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [page 11].
[6] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs [1981] 4 ALD 198; Commonwealth v Twyman [1985] 8 ALD 554 and Re KLGL and Australian Prudential Regulation Authority [2008] AATA 542.
[7] Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] 62 ALD 472 at [72].
[8] AFY18 v Minister for Home Affairs (2018) FCA 1566 at [9] per Charlesworth J.
[9] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
[10] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.
It is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:
“The weighing of various pieces of evidence is a matter for the Tribunal.”[11]
“In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms if the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[12]
[11] SZJSS and Others v Minister for Immigration and Citizenship (2010) HCA 48: unanimous decision of the High Court.
[12] Abebe v Commonwealth (1999) HCA 14, 197 CLR 510 at [580] per Gummow and Hayne JJ.
The Tribunal is invested with the full panoply of powers which were available to any original decision-maker at the time of making their decision.
Section 43 of the Administrative Appeals Tribunal Act 1975 provides that “for the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.” This completeness of powers was noted by the Tribunal in Rennie when it said: “The Tribunal thus has all the powers of the decision—maker”.[13]
[13] Rennie and Defence Force Retirement and Death Benefits Authority [1979] 2 ALD 424 at 17]. Emphasis added in both instances.
This means that the Tribunal may consider not only the specific reason why the Delegate made the reviewable decision but also any other reasons which could have been used by or were available to, the Delegate in making their determination.
The Tribunal was invited to do so by the Respondent and this invitation was not resisted by the Applicant. In particular the Tribunal was invited to consider whether, in the event of it not being satisfied that the Applicant’s non-permanent residential status was fatal to his application, the application should nevertheless be refused on one of the other grounds available to a decision-maker to so determine.
THE MIGRATION ACT 1958 AND THE AUSTRALIAN CITIZENSHIP ACT 2007
In this matter there have been two distinct, but inter-related decisions made in reference to Mr Kassem. The first relates to the cancellation of his visa and the second to his prior approval for citizenship. The decisions have been made under separate pieces of legislation.
The Visa:
1) Under the terms of the Migration Act1958 a person’s visa must be cancelled if they are sentenced to a term of imprisonment of 12 months or more. Put briefly, section 501 (3A) of the Migration Act mandates that the Minister “must” cancel a visa that has been granted to a person if they do not pass the legislated character test. A person cannot pass the character test if they have “a substantial criminal record” (section 501(3A)(a)(i)). A person is defined as having “a substantial criminal record” where they have been “sentenced to a term of imprisonment of 12 months or more” (section 501(7)(c)).
2) On 16 December 2016 Mr Kassem was sentenced to a term of imprisonment for 3 years and 4 months.[14] As a result of this conviction his visa was cancelled on 19 April 2017.[15] This cancellation decision was mandatory. Mr Kassem did not challenge this visa cancellation although he was legally entitled to do so.
The Citizenship
3) Although Mr Kassem had been granted citizenship by conferral under the Australian Citizenship Act (see below) it had not become effective because he had failed to make the Pledge of commitment. Citizenship had been granted but not enlivened as required by the Act. The application was still live and hence still capable of being cancelled by the Minister.
4) With the cancellation of Mr Kassem’s visa he ceased to be a permanent resident (as defined) and as such he ceased to be eligible for citizenship by conferral. The Minister (via his Delegate) took that decision on 2 May 2018.
[14] Section 37 – T Documents at [34]. His offence was “Take/Detain Person in Company with intent to Obtain Advantage.”
[15] Section 37 – T Documents at [26]
A PRELIMINARY MATTER OF LEBANESE CITIZENSHIP
In a submission to the Tribunal dated 11 October 2018, Mr Kassem’s legal representative advised that he was instructed that Mr Kassem was, to all intents and purposes a stateless person.[16]
[16] Letter¸ Birchgrove Legal to Tribunal dated 11 October 2018. Another recent Tribunal decision has examined matters related to the issue of an applicant’s country of birth being contested in evidence: NXYD and Minister for Home Affairs (Citizenship) [2918] AATA 3144 at [16].
The facts appear to be as follows:
·In his Application for Grant of Australian Citizenship Mr Kassem states that he was born in1967 in “Tibnine, Lebanon – – – – – – – South.”
·In the same document he states that his father Kassem Kassem was born in “Melkie, Palestine” and his mother, Jamile Kassem in “Melkie, Lebanon/Palestine”.[17]
·There is a document before the Tribunal which is a certified translation of an Identity Certificate (originally issued in Arabic) which gives Mr Kassem’s place of birth as “Bebnin, Lebanon”.[18]
·The Department advises that “… the applicant arrived in Australia on a Lebanese travel document…”[19]
[17] Section 37 – T Documents at [11]-[12].
[18] Ibid at [19].
[19] Email from Australian Government Solicitor to Tribunal dated 16 October 2018.
The Tribunal finds no difficulty in accepting Tibnine and Bebnin as being the same place given that translations from the Arabic language can often produce such transpositions into English. Clearly the Applicant was born in Tibnine which is a town in the Bint Jbeli District (Nabetieh Governorate) of southern Lebanon. It is a historic town situated very close to the southern border of Lebanon with Israel.
Mr Kassem’s older sister (Ms Hanie Kassem) who gave evidence, was much better informed about their family history. According to her, their mother was born in the Lebanese village of Aitaroun and their father in the village of Al-Malikyya.
Aitaroun is a village in the same District and Governorate as Tibinine but closer to the Lebanon/Israel border and was under Israeli occupation for many years during the period of the Lebanese civil war.
Al-Malkiyya was a village almost directly on the Lebanon/Israel border. Neither Ms Kassem nor the Applicant was able to say when their father was born. She suggested some time between 1910 and 1920, he suggested some time in 1918. Until the establishment of the French Mandate in Lebanon and Syria by the League of Nations in September 1923 (following the Treaty of Sevres, 1920) this village would have been part of the Ottoman Empire, the remnants of which, after the Treaty of Lausanne (1923) became the modern Republic of Turkey. At the time of his birth, it appears Mr Kassem Kassem would have been a subject of the Ottoman Empire having been born in the then Ottoman Province of Palestine.
In the 1920’s the village was registered as part of what was then Greater Lebanon (Etat de Grand Liban) which was declared on 1 September 1920 under the French Mandate.
At some stage, and the Tribunal is unable to establish when, the village was transferred into the British Mandate for Palestine and in the 1930s was registered in a census as part of the Safed District within the Mandate.
During the 1948 Arab-Israeli War (known to the Arab population as the “Nakba” or “the Disaster”) this village was the site of fiercely contested fighting between the armies of Israel and Lebanon. It was occupied by both sides at various times and at the end of the conflict was entirely depopulated. After 1948 that area was incorporated as part of the new state of Israel and in 1949 Kibbutz Milkiya was established on the site, It has a current population in the order of 500 people.
It thus appears, at least as best as can be established by the Tribunal, that Mr Kassem’s father was born as a subject of the Ottoman Empire and that since that time his birthplace has been part of both the French and British League of Nations Mandates, the state of Lebanon and the state of Israel.
Lebanese nationality law does not recognise the right of jus soli – a person born in Lebanon is not automatically entitled to Lebanese citizenship. Citizenship is based on jus sanguinis and is acquired automatically by any child born of a married couple where the father is a Lebanese citizen.[20] The Code also permits dual citizenship and the granting of citizenship to other qualified persons.
[20] The Nationality Code dates from 1926. There are current proposals for changes to the Code to allow nationality to be acquired via maternal descent and for ex-nuptial children not to be excluded from citizenship by descent.
Nevertheless, both Mr Kassem’s parents at some time became naturalised Lebanese citizens. Mr Kassem was not born in Lebanon and Mrs Kassem would not have held automatic citizenship unless her father did.
In order to resolve this matter, at least for the purposes of this hearing, the Tribunal agreed to receive further documentation from both parties after the hearing itself had concluded.
The Applicant was unable to supply anything beyond the material which had been previously presented touching directly on the question of Mr Kassem’s citizenship, although it did take the opportunity to provide further information about the situation of Palestinian refugees in Lebanon. It further sought to make the point that decisions about citizenship eligibility are made “at the time”[21] of either the application or the decision in question and hence advanced the claim that there is no need for an on-going or continuing requirement for this status to be maintained.[22]
[21] Australian Citizenship Act section 21 (2)(b).
[22] Applicant’s Supplementary Submissions dated 23 October 2018.
The Applicant puts to the Tribunal that, although being born in Lebanon, he is “actually of Palestinian heritage” and that as such, if returned to Lebanon he would face sever disadvantage and discrimination.[23]
[23] Similar issues were raised before the Tribunal in a recent case involving Palestinians now resident in Syria, PZZC v Minister for Home Affairs [2018] AATA 4125.
The Department of Foreign Affairs and Trade Country Information Report for Lebanon makes it clear that Palestinians in Lebanon “are considered ‘foreigners’ and do not, therefore, enjoy the same basis rights as citizens of Lebanon.”[24] Restrictions on the rights of Palestinians in Lebanon are also noted by Amnesty International in their 2017/8 report on human rights.[25]
[24] Department of Foreign Affairs and Trade, Country Information Report Lebanon, 23 October 2017 at [3.4].
[25] Amnesty International, Amnesty International Report 2017/18,The State of the World’s Human Rights page [236].
The subsequent submission of the Respondent[26] included reference to the details of the arrivals in Australia of various members of Mr Kassem’s family, in particular his parents, on whose passport he travelled. It again referenced the translation of an Identity Certificate which stated Mr Kassem’s nationality to be Lebanese. However it conceded that the citizenship records for the parents could not be located. What was demonstrated was that the various members of the family arrived using valid travel documents, with clear serial or identification numbers and that in all cases the nationality attached thereto was Lebanese. The citizenship application of Mr Kassem’s sister was located and it is clear that she was the holder of a valid Lebanese passport although that document displays on its identification page the word “Palestinian”.
[26] Respondent’s Further Submissions dated 30 October 2018.
The material from the Department is sufficient, in the opinion of the Tribunal to, to conclude that while members of the family were born in what may have been the mandated territory of Palestine, they were at the time of their arrival in Australia and up until the time of their naturalisation citizens of the Republic of Lebanon.
The fact that Mr Kassem does not currently hold a Lebanese passport is not immediately relevant. If he is a citizen he would, presumably, be able to access one.
The Tribunal appreciates the Applicant’s concerns in this matter as the letter from his legal representatives claims that if “Mr Kassem is not a citizen of Lebanon, the Department’s attempts to deport him will ultimately render him stateless.”[27]
[27] Letter¸ Birchgrove Legal to Tribunal dated 11 October 2018.
He would thus find himself in much the same position as the unfortunate Mr Al-Kateb with the real prospect of being in indefinite (immigration) detention.[28] The Tribunal is, however, as explained, satisfied that this is not the case.
[28] Al-Kateb v Godwin and Others (2004) 208 ALR 124.
THE AUSTRALIAN CITIZENSHIP NARRATIVE
Mr Kassem arrived in Australia on 25 May 1977 aged 9 years and from 1 September 1994 held a Class BF transitional (permanent) visa as a result of the provisions of the Migration Reform (Transitional Provisions) Regulations.
On 15 June 2000 he made an application for a grant of Australian citizenship by conferral under section 13 of the (then) Australian Citizenship Act 1948. His application was approved on 20 June 2000 and he was invited to attend a citizenship ceremony to make a Pledge of commitment as required by section 15(1)(a) of that Act.
Approval of citizenship applications do not, of themselves, complete the process of acquisition. A further step is required, namely the making of the Pledge of commitment and until this is done the approval and grant of citizenship is not enlivened.
This Pledge must be made within a specified period of time, otherwise the approval is deemed to have lapsed. On 8 May 2001 a decision was made to revoke the grant of citizenship on the basis that Mr Kassem had not made the required Pledge by attending a citizenship ceremony and that his current whereabouts were unknown.
There is no evidence before the Tribunal to confirm one way or another that Mr Kassem ever received the notification requiring his attendance at a citizenship ceremony and this Tribunal has had cause to vary negative decisions where it has been shown that advice was sent to an incorrect address, resulting in the non-attendance of the individual at the required ceremony.[29]
[29] Park v Minister for Immigration and Border Protection (2018) AATA 2299.
A new Australian Citizenship Act was passed in 2007 (the Act) and as part of its phased introduction a piece of transitional legislation was also passed – the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the T&C Act).
The decision to revoke Mr Kassem’s grant of citizenship fell foul of certain transitional provisions of the T&C Act (specifically Item 8 of Schedule 3 of Part 1) with the result that on the enactment of the new Citizenship Act 2007 Mr Kassem still had a valid application for citizenship which had been approved. Mr Kassem, at the relevant time, had been granted approval but had not made the Pledge. His approval status was continued by virtue of section 24 of the 2007 Act.
In a complex interaction of two pieces of legislation Item 8(2) of the T&C Act (see above) provided that under section 25 of the new Act, grants of approval were still subject to cancellation.
It is at that point that the Minister had to make a determination of whether or not to cancel Mr Kassem’s original, and still valid, grant of citizenship which had still not been enlivened by the making of the Pledge.
The Minister’s Delegate made this decision on 2 May 2018.[30] She took into account the fact that Mr Kassem’s permanent visa had been cancelled under section 501 (3A) of the Migration Act 1958 on 19 April 2017. This decision was based upon Mr Kassem having a “substantial criminal record” as defined by section 501(7)(c) of the Act having been sentenced to a term of imprisonment in excess of 12 months. At the time of the decision Mr Kassem was in full-time custodial incarceration.
[30] Tribunal Documents at [7]-[10].
It is of considerable significance to note that Mr Kassem took no steps to challenge or seek a review of the Minister’s decision to cancel his visa, although he was fully capable and entitled to do so.
The basis upon which the Delegate made the decision was that Mr Kassem was no longer a permanent resident of Australia.
Section 5(1) of the Citizenship Act defines the term “permanent resident” to mean the holder of a permanent visa and section 25(2)(b)(i) of the same Act allows the Minister to cancel an approval already given if the person in question is “not a permanent resident”.
Thus the cancellation decision of 19 April 2017 (for the visa) enlivened the cancellation decision of 2 May 2018 (of the citizenship approval).
SUBMISSION OF THE APPLICANT
The Applicant makes a submission in the form of the following syllogism:
1.At the time of the original approval of the Applicant for citizenship he was a permanent resident, meeting the eligibility requirements of section 21 of the Act and this fact is not disputed by the Respondent;
2.There is no express requirement under the Act for the Applicant to continue to satisfy that requirement after the grant of the approval;
3.Therefore mere lapse of any residency status is thus not relevant and cannot, ipso facto, result in, or be the basis of any cancellation of citizenship approval.
While it is true that the first two arms of the syllogism are true, it does not follow, in the Tribunal’s opinion, though to the conclusion which the Applicant seeks to draw.
ANALYSIS OF APPLICANT’S SUBMISSION
The Act has several relevant parts which must be taken together:
(a)Section 21 (1) provides that a person may make an application to become an Australian citizen;
(b)Section 21(2) sets out the requirements which have to be met by the applicant and which have to be met to the satisfaction of the Minister. These are enumerated from (a) to (h) and all of them have to be met;
(c)Section 21(8) allows for the grant of citizenship to people who are stateless, provided they were born in Australia;
(d)Section 24(1) provides that the Minister must either approve or refuse to approve a citizenship application once validly made;
(e)Section 24(1A) requires that the Minister must not approve a grant of citizenship unless the requirements of section 21(2) (and others) have been met;
(f)Section 24(2) provides that the Minister may nevertheless refuse to grant citizenship to a person who is otherwise eligible under s 21(2) (and others);
(g)Section 24(6) prohibits the Minister from granting citizenship to people in relation to certain criminal offences or convictions or terms of imprisonment;
(h)Section 26 provides that, in order to actually become a citizen by conferral, an eligible person must make a pledge of commitment; and
(i)Section 25 provides that the Minister may cancel an approval of a grant of citizenship where, at the time when the Minister makes the decision, the person is not a permanent resident (s 25(2)(b)(i)), or is not of good character (.25(2)(b)(iii)), or has failed (for a specified reason) to make the pledge of commitment (s25(3)).
It is necessary to examine the inter-relationship of the T&C Act provisions with those of the principal Act.
THE RELEVANT PARTS OF THE T&C ACT ARE TO BE FOUND IN ITEM 8 OF SCHEDULE 3 OF PART 1:
8 Person granted certificate of citizenship under the old Act
but not an Australian citizen under the old Act
(1) If:
(a) a person has been granted a certificate of Australian
citizenship under section 13 of the old Act before the
commencement day; and
(b) the certificate is in force immediately before that day; and
(c) the person has not become an Australian citizen under
section 15 of the old Act immediately before that day;
the certificate is, on and from the commencement day, taken to be an
approval given to the person under section 24 of the new Act.
Cancellation of approval under the new Act
(2) For the purposes of applying section 25 of the new Act to such an
approval:
(a) if the person was granted the certificate of Australian
citizenship under subsection 13(1) of the old Act—paragraph
25(2)(a) of the new Act is taken to apply to the person; and
(b) the reference in paragraph 25(3)(a) of the new Act to the day
on which the person received notice of the approval is taken
to be a reference to the day on which the person was notified
of the Minister’s decision under section 13 of the old Act to
grant the certificate.
It is thus quite clear that in relation to a person who was the holder of an approval for citizenship (but had not the Pledge), the power of the Minister to cancel that approval was still on foot when the transition from the 1948 Act to the 2007 Act was completed.
Under section 25 of the 2007 Act the Minister may cancel an approval as follows:
25 Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
Failure to make pledge of commitment
(3) The second situation applies if:
(a) the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and
(b) the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.
The relevant section, outlined above is section 21(2) .
In Mr Kassem’s case:
(a)The approval of his grant of citizenship wasprovided under the old 1948 Act;
(b)Although it had been cancelled it was nevertheless taken to have been continued as valid under the transitional provisions of the T&C Act;
(c)The effect of the T&C Act was to transfer Mr Kassem’s approval into the regime of the new 2007 Act;
(d)Under the 2007Act the Minister had the power to cancel Mr Kassem’s prior approval on a number of grounds including his failure to hold a permanent resident visa due to a determination that he was not of “good character”;
(e)The Minister proceeded to do so.
The Tribunal can find no grounds for supporting the Applicant’s proposition that there was no need for Mr Kassem to “continue” to hold a permanent residence visa once the initial application had been granted.
As explained, the approval was live and open but had not been given effect by the taking of the Pledge. It was thus open to the Minister to cancel it and the cancellation had to be based on the Minister’s determination of Mr Kassem’s status “at the time” that the Minister’s decision was made.
It is simply a matter of fact that at the time that the Minister made his decision, Mr Kassem was not the holder of a permanent residence visa, that having been automatically cancelled under the provisions of section 501 (3A) of the Migration Act.
On that basis alone the decision under review should be affirmed.
THE QUESTION OF “GOOD CHARACTER”
In the event that the Tribunal has misunderstood the law in relation to Mr Kassem’s status in terms of not holding permanent resident status, it will accept the invitation of the respondent to consider whether or not Mr Kassem’s approval should be cancelled on the basis that he is not a person of “good character” as required under the Act.
In determining what constitutes “good character”, the Tribunal is bound by the decisions of the Courts and assisted by the statement of government policy which is contained in the Australian Citizenship Policy (the Policy) of June 2016.
The Act itself contains no definition of what constitutes “good character”, nor indeed does the Policy.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
“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.
….
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.[31]
[31] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.
The courts have also elaborated by holding that it is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[32]
[32] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
Relevantly, in Mr Kassem’s case the court has also made clear that:
“When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”[33]
[33] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
The Policy itself then goes on from this to outline what the characteristics of good character might amount to. These are set out at some length as expecting that applicants would (inter alia):
·respect and abide by the law in Australia and other countries
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia[34]
[34] Citizenship Policy page 147.
The Policy elaborates by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
·“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.” [35]
Policy however is not the same as law. As this Tribunal said in Aston:
“Policy is not law. A statement of policy is not a prescription of binding criteria.”[36]
[35] Ibid page 145.
[36] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [376].
Nevertheless the Tribunal must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions of good character.[37]
[37] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, Hneidi v Minister for Immigration and Citizenship [2010) 182 FCR 115.
This then leads to an assessment of Mr Kassem’s record of criminal and other behaviour in Australia viewed against these criteria.
MR KASSEM’S CRIMINAL RECORD
It is extensive, covering a period from 2000 to 2016. It includes convictions for multiple offences ranging from
“numerous traffic offences to having custody of an offensive implement/knife in a public place, possessing housebreaking implements, contravening apprehended domestic violence orders, drug offences, possessing an unregistered firearm, reckless wounding, suspected stolen goods in possession and, most recently, take/detain person in company with intent to obtain advantage.”[38]
[38] Respondent’s Statement of Facts, Issues and Contentions at [29].
His record goes on to indicated at least six separate incidents of committing acts of misconduct while in custody, including failing urinalysis tests on three reported occasions.[39]
[39] Supplementary Tender Documents at [50].
On at least 11 occasions Mr Kassem has been sentenced to terms of imprisonment ranging in length from 2 months to his most recent sentence of 3 years and 4 months.[40]
[40] National Police Certificate, Further Supplementary Documents at [1]-[10].
Mr Kassem does not deny any of these findings and it not necessary for any of them to be examined in further detail. They speak for themselves.
EVIDENCE ON BEHALF OF MR KASSEM
Mr Kassem gave evidence on his own behalf.
The Tribunal noted his approach to giving evidence when he was asked, if taking an oath whether he would prefer to take it on the Holy Bible or the Holy Qu’ran to which his reply was: “Bible or Qu’ran, whatever.”
Mr Kassem gave evidence about his family background in Lebanon/Palestine and in particular noted that all his family (10 or 11 of an original 17 siblings) were living in Australia and that he had no immediate family ties in Lebanon. He said that he was living at home with his frail aged mother and a brother who suffers from some sort of disability and needs home care. He speaks “broken Arabic” with this mother at home as she speaks no English.
In relation to his criminal offences, while not denying that any of them had taken place he told the Tribunal that most of them were as a result of his problems with drugs. In relation to the breaches of AVOs,[41] he went on to assert that the allegations that he had ever actually committed any acts of domestic violence were false and said, “I have never laid a hand on my wife”, a statement contrary to the Police report in question.[42] In relation to the failed urinalyses he told the Tribunal, “Jail is not rehab – they don’t help you with drugs”. Nevertheless he went on to say that he had successfully weaned himself off drug use since that time.
[41] Police records of events in Supplementary Documents at [114]-[115].
[42] Ibid at [127].
He confirmed the details given in his written statement to the effect that in 2000 he married and in 2004 a daughter was born. The relationship, which appears to have involved a degree of instability, leading to the issuing of AVOs, eventually broke down and his wife took his daughter and left him while he was in custody in 2006. He said that he has no idea where his ex-wife and daughter are now (he suggested perhaps in Fiji) but that he misses his daughter very much.[43]
[43] Applicant’s Statement (undated) at Tab [2].
He remarked to the effect that “one year in Immigration (detention) was worse than ten years in jail”, and that it was this recent experience which had convinced him of his need to turn his life around and eschew any further criminal conduct.
His sister, Ms Hanie Kassem was an impressive witness and gave clear evidence gave the Tribunal providing details of their parent’s history and of the family’s migration to Australia, essentially confirming all the details given by her brother. She confirmed that Mr Kassem lived with his mother and disabled brother and provided care for both of them and that he and his mother communicate only in very basic Arabic. She confirmed that she had her own passport and had held it for many years and that it was an official Lebanese passport.
Ms Bothania Makki, who is Mr Kassem’s niece indicated that she had some knowledge from time to time of the Applicant’s daughter but was not pressed on the point. Apparently she is related to the child’s mother. She indicated in her evidence that Mr Kassem appeared to have undergone a significant personality change in about 2006 as a result of his incarceration, separation from his daughter and other domestic issues. She stressed the degree of dependency of his aged mother on Mr Kassem’s presence.
Both Ms Kassem and Ms Makki were clear in their support for Mr Kassem, although neither knew the full extent of his criminal history. They presented parts of a close-knit family anxious for Mr Kassem to remain in Australia to support his mother and other family members.
CONCLUSIONS
It is quite obvious that Mr Kassem’s record of criminal behaviour is extensive and has taken place over a long period of time. There is nothing by way of evidence before the Tribunal to suggest that Mr Kassem has taken serious steps at personal rehabilitation and indeed his counsel conceded that, in the future, there was “some possibility” of his reoffending. He is clearly not a person of “good character.”
The Applicant’s formal submission concedes as much but it invites the Tribunal to consider, against this, Mr Kassem’s poor state of health, his lack of employable skills, his unfamiliarity with and lack of support network in Lebanon and the general adverse situation of life in that country.[44]
[44] Applicant’s Submission at Tab [1], letter from legal representative dated 5 October 2018.
It is not for the Tribunal to consider what might become of Mr Kassem in the event that the Minister’s decision is affirmed. If he has genuine concerns about his physical safety if returned to Lebanon he has the option of applying for a Protection Visa, which is one class of visa for which he could be considered despite the prohibitions otherwise outlined in section 501E of the Migration Act.[45] There is also the option for him to apply for the exercise of Ministerial discretion under section 195A of that Act.
[45] Migration Act 1958 section 501E (2)(a).
There are thus two grounds upon which Mr Kassem’s original grant of citizenship could be revoked:
(1)on the basis that he was not a permanent resident at the time of the grant and hence not eligible to have his application considered (Citizenship Act section 21(2)(b)) and
(2)on the basis that he was not of “good character” at the time the Minister made his decision (Citizenship Act section 21 (2)(h)).
The former was the basis upon which the Delegate made the original decision. The latter was a ground open to and available for her to use, and although she did not do so, it is a ground upon which the Tribunal can rely if it is so minded.
The Tribunal finds that there is a good and proper reason for Mr Kassem’s prior granting of citizenship to be cancelled on each of the grounds stated above.
DECISION
The decision under review is affirmed.
I certify that the preceding 96 ninety six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd].........................................
Associate
Dated: 26 November 2018
Date(s) of hearing: 17 October 2018 Date final submissions received: 30 October 2018 Counsel for the Applicant: Mr I Chatterjee Solicitor for the Applicant: Mr K Elkheir, Birchgrove Legal Solicitors for the Respondent: Ms D Watson, Australian Government Solicitor
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