Omara and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 1104

Omara and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1104 (21 April 2023)

Division:GENERAL DIVISION

File Number(s):      2021/8202

Re:Atef Ibrahim Abdeghany Omara

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:21 April 2023

Place:Sydney

The correct or preferable decision is to affirm the decision under review.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – whether the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is satisfied – relevant law and policy considered – applicant’s background and criminal history considered – character references considered – decision under review affirmed

LEGISLATION

Citizenship Act 2007 (Cth) section 21

CASES

Boy19 v Minister for Immigration and Border Protection [2019] FCA 574

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

SECONDARY MATERIALS

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

21 April 2023

BACKGROUND

1. By way of application filed 24 November 2021, the Applicant seeks review of the decision of the delegate of the Respondent dated 18 October 2021, to refuse to grant the Applicant Australian citizenship by conferral. The decision not to grant the Applicant Australian citizenship was made under section 21(2)(h) of the Citizenship Act 2007 (Cth) (the Act), on the basis that the delegate was not satisfied that the Applicant was a person of good character at the time of the making of their decision.

2. I note the Respondent’s Statement of Facts, Issues and Contentions contain a helpful factual summary of this application, much of which is replicated below.

3. The Applicant was born in June 1981 in Egypt and arrived in Australia on a Vocational and Training Sector (subclass 572) visa in September 2007. The Applicant was granted a Former Resident (subclass 151) visa on 11 September 2012.  

4. On 13 April 2018, the Applicant was convicted of ‘Attempt stalk/intimidate intend fear of harm (domestic) – T2)’ and sentenced to a Conditional Release Order for a period of 12 months. The Applicant was also charged with ‘CTH – Use carriage service to menace/harass/offend’ which was proved without conviction.

5. On 11 August 2021, a delegate of the Respondent wrote to the Applicant inviting him to comment on adverse information relating to his application for citizenship.

6. On 25 August 2021, the Applicant wrote to the Department commenting on the adverse information provided on 11 August 2021.

7. On 18 October 2021, the Department refused to grant the Applicant Australian citizenship on the basis that it was not satisfied that the Applicant was of good character.

   THE ISSUE

8. The issue before the Tribunal is whether it is satisfied that the Applicant is a person of good character as required by section 21(2)(h) of the Citizenship Act 2007 (Cth).

   LEGISLATIVE FRAMEWORK

9. The relevant legislation and policy is outlined below.

10. Section 21(2)(h) of the Citizenship Act states:

    (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.

11. The character requirement is satisfied if an applicant ‘is of good character at the time of the Minister’s decision on the application’. The Citizenship Procedural Instruction 15 (CPI15) provides guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, should apply departmental policy unless there are cogent reasons not to do so (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [640] per Brennan J).

12. CPI15 states that a decision-maker may be satisfied that an Applicant is of good character if the Applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship process.

13. Relevantly, CPI15 provides that a person of good character would:

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

    ·not practise deception or fraud in their dealings with the Australian Government, or organisations, for example – concealing criminal convictions; and

    ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct.

14. CPI15 also provides a framework by which decision makers are able to ‘weigh up’ a character decision. Decision makers are required to consider:

    ·whether a person of good character would have behaved the way the applicant did;

    ·what evidence is available to demonstrate that the Applicant has upheld and obeyed the law;

    ·whether the Applicant has behaved in accordance with Australia’s community standards; and

    ·whether the Applicant shares Australia’s democratic beliefs and respects its rights and liberties.

15. In so doing, the decision maker should look holistically at the applicant’s behaviour over a lasting or enduring period of time.

    EVIDENCE OF THE APPLICANT

    Oral evidence of the Applicant:

16. The Applicant gave evidence that he was born in Egypt in June 1981 and came to Australia in 2007.

17. The Applicant was questioned at length about his previous offending, namely the charges of:

    (a)Attempt Stalk/intimidate intend fear of harm;

    (b)Cth – Use carriage service to menace/harass/offend

18. He was also questioned about his failure to disclose his criminal record on his Citizenship Application dated 25 August 2021, where in response to a question which stated as follows:

    ‘Have you been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences detailed in your permanent residence application, and any ‘spent’ convictions)?

    The Applicant had answered no.

19. The Applicant was taken through the police facts relating to his offending behaviour in relation to his previous partner, including a number of separate incidents in 2017, where the Applicant had attempted to contact the victim on numerous occasions.

20. The Applicant disputed the police record and also said that it had all been ‘a misunderstanding’.

21. When asked about the impact of the offending on the victim, the Applicant said that he was ‘only trying to get back to her’, and that they had ‘had a baby together’. He said he was in love with the victim and just hoping to get back together.

22. In relation to his failure to disclose his offences on his application for Australian Citizenship the Applicant gave a number of explanations including that he did not look properly at the questions, that he put the wrong answer ‘by accident’ and that he thought at the time that the Australian Government already had all the information about him.

23. The Applicant said that English was not his first language, and that he did not really know about the consequences of filling in the form incorrectly at the time.

24. The Applicant had not undertaken any counselling or other educational program in order to better understand domestic violence offences, and said that he simply ‘moved on with my life’.

25. The Applicant drew attention to the fact that the convictions occurred five years ago, and that before and after those convictions he had a completely unblemished record. In this regard the Applicant drew the Tribunal’s attention to the many character references filed by others with the Tribunal.

26. The Applicant also referred his having a heart condition and some mental health issues.

    DISCUSSION

27. There is only one issue before the Tribunal, and that is whether the Tribunal can be positively satisfied that the Applicant is of ‘good character’ for the purposes of section 21(2)(h) of the Citizenship Act 2007 (Cth) (the Act).

28. As I explained to the Applicant at the hearing, citizenship is not to be taken lightly. It confers significant benefits and is, in fact, a great privilege which is bestowed, on behalf of the people of Australia, on a non-citizen. This explains why the Tribunal must be positively satisfied that an Applicant is of good character – in other words, the Tribunal must reach an affirmative belief that the Applicant is in fact, a person of good character.

29. Good character is not defined in the legislation, but it has been considered by the courts on numerous occasions, including by the Federal Court in the case of Boy19 v minister for Immigration and Border Protection [2019] FCA 574, in that case O’Bryan J opined as follows:

    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. (emphasis added) The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed or precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgement to be made by reference to undefined factual matters confined only to the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ). Third, and as a corollary of the second point, the expression requires a judgement as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

30. In considering the question of good character, the Tribunal is also guided by part 4 of the citizenship policy 115, which states that the Tribunal should consider factors such as the Applicant’s family life, stable home environment, being responsibly employed and paying taxes, together with any community work that is being undertaken. The Tribunal must make a decision as part of an overall assessment, which includes taking into account an Applicant’s offending, but also includes an assessment of all of the positive aspects of the Applicant’s life. The information must then be weighed in order for the Tribunal to make an assessment as to whether it is able to reach an ‘affirmative belief’ that the Applicant is of good character.

31. The Respondent argued strongly before the Tribunal, that it could not reach an affirmative belief that the Applicant was of good character, because of the nature of his offending and the fact that the Applicant appeared not to accept the gravity of his offences, the impact on his victim, nor the conclusions of the local court.

32. In relation to his incorrect answers on the citizenship application, the Respondent also argued that the Applicant did not take responsibility for his incorrect answers, nor his incorrect declaration, despite a very clear warning as to the importance of truthfulness and the consequences if answers were found to be incorrect.

33. I accept that English is not the first language of the Applicant, and that that may have caused some confusion. However, it is not an excuse for failing to answer questions in an important government document, correctly.

34. I also accept that the Applicant was in love with the victim of his domestic violence offences and wanted to keep the relationship going. It does not, however excuse the Applicant’s failure to listen to his victim when she told him on a number of occasions that the relationship was over and that she did not wish to hear from him. His physical harassment of her and continued harassment via electronic means is quite unacceptable.

35. During the hearing, I explained to the Applicant the importance of him understanding the nature of his offending, and why it was unacceptable. The length of time that has elapsed since the date of offending was of much less importance than the Applicant accepting the validity of his convictions and understanding both, why his behaviour has adversely impacted his victim and led to criminal convictions.

36. I also explained to the Applicant the importance of taking responsibility for filling in Government documents in particular, truthfully and accurately. I told the Applicant that although I had formed no conclusions on the matter and needed to examine the evidence more closely it would be important for him to consider those matters carefully if his application on this occasion were to be refused, and he needed to make another application at a later time.

37. In assessing whether the Tribunal can be positively satisfied that the Applicant is of good character, I am of the view that his offending is not of the most serious kind, although all family violence offences must be taken very seriously. It is of concern that he did not appear to have understood the adverse consequences of his actions on the victim and disputed at least to some degree the police facts sheet and the finding of the court, saying that he had been ‘told to plead guilty’, but could not identify who had given him that advice.

38. I note that the Applicant was not legally represented at the Local Court, and I accept that he did not have the money to pay for legal representation. It is not difficult to accept that the Applicant may not have been fully aware of what was involved in his court appearance.

39. I accept that the Applicant has no record of offending other than in relation to the two convictions before the Tribunal, I also give some weight to the various character references before the Tribunal, although I note that in some instances the writers did not appear to be aware of the Applicant’s offending.

40. I find the Applicant’s explanation as to why he completed his citizenship form incorrectly to be unconvincing. This was the Applicant’s second application and he must have, or certainly should have, realised the importance of the citizenship application form and the correct disclosure of all relevant information. He could have sought advice if his English were not sufficient to fully understand the form.

41. Overall, in coming to the correct conclusion, it is impossible not to give weight to the Applicant’s apparent failure to take responsibility for his behaviour both in relation to his criminal offending, and his failure to provide the correct information in the citizenship application form. It is incumbent on the Applicant to understand the importance of his criminal convictions together with demonstrating respect for both the Australian justice system and the requirement of the Australian Government, that questions relevant to government decision making, in particular, be answered correctly.

42. In all the circumstances the Tribunal is unfortunately not able to reach an ‘affirmative belief’ that the Applicant is of good character for the purposes of the Act. At the very least, to reach an affirmative conclusion, the Tribunal would have to be satisfied that the Applicant understood the nature of his offending, the impact of that offending on his victim, and his responsibility for completing official forms correctly, and truthfully. It is also important that the Applicant demonstrate respect for the Australian justice system.

43. I note that the Applicant is able to make another Applicant for citizenship, and I believe that he is capable of addressing those matters which weighed against him on this occasion. Before lodging any future application, the Applicant may benefit from appropriate legal advice which will help him to understand the reasons for his convictions, why his behaviour towards his victim was unacceptable and the importance of correct disclosure on Australian Government documents.  

44. The correct or preferable decision is to affirm the decision under review.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 21 April 2023

Date(s) of hearing:	4 April 2023
Applicant:	In person
Solicitors for the Respondent:	Ms Isla Tobin