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

[2021] AATA 1551

Oraikat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1551 (2 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3318

Re:Samih Hani Oraikat

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member   

Date:2 June 2021  

Place:Sydney

The decision under review, being a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – refusal of citizenship by conferral – applicant citizen of Jordan – applicant applied for citizenship by conferral – respondent’s delegate refused the grant of citizenship by conferral –delegate was not satisfied that the applicant was a person of good character as required by paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – application for review made to AAT –– applicant’s offending and criminal history considered –decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

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

SECONDARY MATERIALS

Australian Citizenship Policy Statement

CPI 15 - Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Mr S Evans, Member

2 June 2021

1. Samih Hani Oraikat (“Mr Oraikat”) is a 34 year old citizen of Jordan who lodged an application for Australian citizenship by conferral on 14 August 2018. On 13 May 2020, a delegate for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) refused Mr Oraikat’s application on the grounds that he was not of “good character”, which is one of the requirements for Australian citizenship. Mr Oraikat contends that the decision to refuse his application did not take into account all the relevant considerations and seeks review of the decision at the Administrative Appeals Tribunal (“the Tribunal”). 

   INTRODUCTION

2. Mr Oraikat first arrived in Australia in November 2011 as the holder of a Global Special Humanitarian (subclass 202) visa. 

3. When lodging his application for Australian citizenship, Mr Oraikat declared that he had been involved in a “problem” with his “half sister”. On 7 April 2020 the Department of Home Affairs sent Mr Oraikat a procedural fairness letter in which he was invited to comment on adverse information indicating he might not be a person of good character. Mr Oraikat responded to the letter providing a statutory declaration and two letters of support. On 13 May 2020 a delegate of the Minister refused to grant Mr Oraikat citizenship by conferral as the delegate was not satisfied that he was a person of good character as required by the Australian Citizenship Act 2007 (Cth) (“the Act”).  On 1 June 2020 Mr Oraikat lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (“the Tribunal”). 

   ISSUE

4. The issue to be determined is whether Mr Oraikat is of good character at the time of the Tribunal’s decision such that he meets the requirements set out in the Act.   

   LEGISLATIVE AND POLICY FRAMEWORK 

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 the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen. 

   Determining questions of character

8. The term “good character” is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (“Irving”) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

   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 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.[1]

   [1] (1996) 68 FCR 422, 431 – 432.

9. The Department’s official guides to decision makers, include both the Australian Citizenship Policy Statement (“the Policy Statement”), which details the overarching legislative requirements for becoming an Australian citizen, and the Australian Citizenship Procedural Instructions. The Policy Statement provides context to the Instructions.

10. The Instruction relevant in this matter is CPI 15 - Assessing Good Character under the Citizenship Act (“the Instructions”). The Instructions provide guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.

11. Informed by the discussion in Irving, subsection 4.3 of the Instruction states that:

    A decision-maker can 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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

12. The Instructions specifically call for the decision maker to “look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities”.[2] A person’s enduring moral qualities encompass:

    (a)characteristics which have endured over a long period of time;

    (b)distinguishing right from wrong; and

    (c)behaving in an ethical manner, conforming to the rules and values of Australian society.

    [2] CPI 15, subsection 4.11.

13. The Tribunal is guided by these considerations in determining whether Mr Oraikat meets the good character requirement for Australian citizenship.   

    EVIDENCE AND FACTS

14. On 17 November 2016, Mr Oraikat pleaded guilty to the offence of common assault (DV) – T2 following an incident with his stepsister (“Ms M”). The Respondent submits that this incident weighs heavily against a finding of good character for the purposes of paragraph 21(2)(h) of the Act.

15. The details of the offence are set out in a NSW Police facts sheet. In November 2015  Ms M, entered into a mobile phone contract to assist Mr Oraikat. Over a period of eight-months, Mr Oraikat incurred a phone bill estimated to amount to $2,200. Arrangements were made for Mr Oraikat to make fortnightly repayments to cover the bill. On 17 July 2016 Ms M attended Mr Oraikat’s residence to speak to him about the bill and his failure to pay. Their discussion turned into a verbal argument. 

16. Using both his hands, Mr Oraikat slapped Ms M on both sides of her face. He then pushed Ms M away from his door. When Ms M attempted to use her phone to call for assistance, Mr Oraikat slapped Ms M across the face once again causing her to drop her mobile phone on the ground. 

17. Following the incident Ms M made a complaint to police. On 17 November 2016 Mr Oraikat appeared before the Liverpool Local Court where he pleaded guilty to common assault (DV) -T2 and was sentenced to a 12 month good behaviour bond. 

18. During the hearing Mr Oraikat addressed the circumstances of the assault. At the time of the incident he was living on his own. He said that not all of Ms M’s account is credible or true and referred the Tribunal to a statutory declaration he made on 22 April 2020 in which he provided further details regarding the incident. 

19. In the statutory declaration Mr Oraikat describes the genesis of the assault as an “insignificant issue”.  He writes that Ms M arrived at his apartment wanting money which he did not have. He told her that he would give her the money as soon as he could. He writes that she “started shouting and using inappropriate aggressive language including death wishes upon me”. He describes how he kept calm and tried to calm Ms M but her shouting continued. Ms M moved “extremely close” to Mr Oraikat whilst shouting aggressively.  Fearing that she was “causing a scene in the neighbourhood” he states that he was “provoked” and “slapped her in the mouth and pushed her away” as he was scared “she would do something”. 

20. At the hearing Mr Oraikat explained that what Ms M was saying that was offensive was that she had started praying and wishing he and his family would die. He submitted that he is not a violent person and knows that what happened was not right, but it was Ms M’s actions that caused him to overreact. He maintains that he has not previously been involved in similar incidents as he does not overreact or lose his temper easily. 

21. Reflecting on the assault, Mr Oraikat explained that at the time Ms M was a troublemaker who had problems with most members of their family. He believes that what happened between he and Ms M could have happened with any household. He notes that Ms M also had disagreements with their mother and he claims to have assisted in their reconciliation by speaking to Ms M and advising her how to behave.

22. Mr Oraikat told the Tribunal that Ms M was aware that her complaint following the assault had caused difficulties for him. He claims that she subsequently asked for his forgiveness for what she had done what had happened between them. Mr Oraikat was clear, however, that Ms M was not apologising for making a formal complaint about the assault to the police.  He stated that Ms M is embarrassed by the situation. He also noted that after the assault he and Ms M lived together at their mother’s house between 2018 and 2020. He submits that she would not have done so if he was not of good character or she was afraid of him. 

23. Mr Oraikat has a number of traffic offences on his driving record which the Respondent contends does not support him being of good character. Specifically, he committed speeding offences in December 2016, May 2017 and June 2017. His driver’s licence was suspended on 29 September 2017 on a demerit point basis, however Mr Oraikat notes that all fines have now been paid and his driver’s licence restored.

24. In relation to his personal circumstances, Mr Oraikat currently lives with his mother. Mr Oraikat is currently unemployed and enrolled in a computer course. He gave evidence that he had applied unsuccessfully for many jobs. He contends that he does not have a passport and has lost the original copy of his Australian visa, which he claims has been a significant obstacle to him securing employment. Though he has been unemployed for most of the time he has been in Australia, Mr Oraikat maintains that he is able to meet his financial obligations because he lives with his family. He said that his brother works and as a family they support each other. However, now that sufficient time has passed since his driver’s licence was suspended, Mr Oraikat is hoping to apply for work which requires him to have a full licence. 

25. Mr Oraikat’s mother is a foster carer of two disabled children who have been part of Mr Oraikat’s family for seven years. He loves the children and takes pride in his role in providing them with a safe and caring home. 

26. In support of his application Mr Oraikat has provided two written references. Eman Mohamed is an out of home care caseworker at Settlement Services International who writes that he has been working with Mr Oraikat’s family since June 2019 and observes Mr Oraikat as having a good attachment with his family members and the two foster children.  Susan Delaney writes that she has known Mr Oraikat for three months and found him to be kind when helping his foster brothers. 

    CONSIDERATION

27. The Respondent contends that Mr Oraikat does not meet the good character requirement in paragraph 21(2)(h) of the Act primarily on account of the assault on Ms M and his poor driving record. 

28. In relation to the assault, Mr Oraikat accepts responsibility and pleaded guilty to the offence, which is to his credit.  All the same, he contends that the argument that preceded the assault was due to the behaviour of Ms M, specifically her aggression towards him, generally unreasonable behaviour and offensive words. Even if true, by using physical violence Mr Oraikat was behaving in a way which is inconsistent with both the law and community values. I note also that Ms M was not called to give evidence. Mr Oraikat explained this was to avoid causing her stress.  Mr Oraikat’s explanation for the offending and his contention that Ms M subsequently apologised for her behaviour at that time would be afforded more weight should she have appeared to give evidence. Based on the evidence which is before the Tribunal, the offence weighs strongly against Mr Oraikat being a person of good character. 

29. What was notably absent from Mr Oraikat’s assessment of what occurred between he and Ms M was recognition of his part in the factors which led to the argument. Mr Oraikat had Ms M take out a mobile phone contract on his behalf. In doing so she became liable for the debt which was accrued. As Mr Oraikat had not met his commitment to pay the debt her liability was growing. The reason she went to his house the day of the assault was to speak to him about his payment of the debt. 

30. The Respondent contends that his failure to properly address a debt he incurred reflects the behaviour of an individual who is unable to distinguish right from wrong, and to take responsibility for his financial obligations. In considering the totality of the circumstances, I am inclined to agree with this assessment. 

31. In relation to Mr Oraikat’s driving record, the offences are certainly at the lower end of the scale in terms of seriousness. However, speeding does have the potential to cause harm to other road users and Mr Oraikat was subject to the good behaviour bond at the time some of the offences were detected. 

32. The Instructions require me to consider Mr Oraikat’s behaviour holistically and over an extended period of time. Mr Oraikat is a relatively young man who presented as capable and articulate and with the potential to make a positive contribution to the community. I accept Mr Oraikat’s affection for the foster children that he lives with and the part he plays in their lives, as confirmed in both the written references that he has submitted.

33. At the same time, the evidence indicates that he has lived a limited life since arriving in Australia. It is to Mr Oraikat’s detriment that he has been unable to find suitable work in Australia, and there is scant indication that he has sought other avenues or pursuits through which he might demonstrate he is of good character. Consequently, when considering his behaviour over time the common assault and his driving offences assume a greater prominence than they might otherwise.

34. For these reasons I find that Mr Oraikat does not meet the character requirements in paragraph 21(2)(h) of the Act at this time. 

35. I appreciate that this decision may be disappointing for Mr Oraikat. As Deputy President Breen noted in the matter of Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, the refusal to grant citizenship is not a second form of punishment and there is nothing to 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.

    DECISION

36. For the reasons stated above the decision under review, being a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, is affirmed. 

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 2 June 2021

Date(s) of hearing:	6 April 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers