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

Reskalla and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1456 (24 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3295
Re:Bishoy Reskalla
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:24 May 2021
Place:Brisbane

The decision under review is affirmed.
.............................[SGD].................................
Deputy President J Sosso
Catchwords
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – character test – criminal history – failure to disclose past offending in citizenship application – change in life circumstances – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72
REASONS FOR DECISION
Deputy President J Sosso
24 May 2021
INTRODUCTION

Mr Bishoy Reskalla (the Applicant) seeks a review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) made on 20 May 2020 refusing the grant of Australian citizenship by conferral pursuant to s 24 of the Australian Citizenship Act 2007 (the Act).
The Applicant is a 31-year-old Egyptian citizen who arrived in Australia on 28 July 1997 as the holder of an In-Country Special Humanitarian (Subclass 201) visa – Exhibit 1 T9 p. 53.
On 18 March 2019 the Applicant lodged an application for Australian citizenship by conferral (Form 1300t) – Exhibit 1 T4 pp. 13 – 24.
Question 35 of Form 1300t comprised ten subparts which required an applicant to answer in the affirmative or negative to various questions concerning criminal and undesirable conduct. The first of the questions (35(a)) was as follows – Exhibit 1 T4 p. 21:
“Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offenses which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions?”
The Applicant ticked the “No” box, as he did for each of the ten Questions posed.
Part L of the Form is headed “Declaration” and includes the following declaration – Exhibit 1 T4 p. 24:
“I declare that the information I have supplied in this form is complete, truthful and correct in every detail.”
The Applicant signed the Declaration and inserted the date of 23 July 2018.
An officer of the Department of Home Affairs wrote to the Applicant on 3 April 2020 – Exhibit 1 T7 pp. 37 – 39.
The officer was considering his application for citizenship and referred him to information contained in a National Police History Check Report. The Report disclosed that in November 2007 the Applicant appeared twice in the Sutherland Childrens Court charged with common assault and maliciously inflicting grievous bodily harm and in both instances was placed on a bond for 12 months. Further, the Applicant appeared before the Bankstown Local Court on 6 April 2011 charged with assault occasioning actual bodily harm and was placed on a bond and an 18 month probationary service order. Finally, the Applicant appeared before the Sutherland Local Court on 12 February 2018 charged with destroy or damage property and was placed on a bond for nine months – Exhibit 1 T7 p. 37.
The Applicant’s attention was specifically drawn to his answer to Question 35(a) and the officer made the following observations – Exhibit 1 T7 p. 38:
“The above gives rise to the issue of whether you have provided false and misleading information to the Department.
Under Citizenship Policy, an applicant of good character would be truthful in dealings with Government, and would not provide false or deceptive information to the Department in order to engineer a benefit or migration outcome.”
An opportunity was provided to the Applicant to provide comments or explanation concerning the adverse information.
The Applicant availed himself of this opportunity and emailed the Departmental officer on 16 April 2020 – Exhibit 1 T8 pp. 46 – 47. The following statement was made:
“…I am writing in response to the letter I received outlining my foolish and immature past. Please understand it was not my intention to be dishonest as I thought the question I ticked ‘no’ was referring to time spent in prison which I have not. It was never my intention to lie or be dishonest I’m sorry this was just a simple mistake.
Referring to the offence committed in 2018 this was deemed according to the judge ‘a waste of time’ I am not sure why this has come up on my record as I was told by the judge there will be no conviction. Never the less it is there and I will look at getting that removed from my record as it is not accurate.
The earlier offence in 2011 I was walking home from a party with my girlfriend at the time when we were approached by 3 males who simply wanted to start trouble. There was an altercation with these men and because I stood up for myself and one of the gentlemen had a bleeding lip I was charged. Looking at it now I really should have sourced a better lawyer as the charge was excessive for what had actually happened.
The offence in 2007 I honestly don’t recall as this was almost 15 years ago but I was obviously a young idiot.
I can honestly say that anything of that nature is well and truly behind me. I am now a young father of two beautiful children… with my long term partner….
Please do not judge me on my stupid and foolish past, I am no longer that person nor can I believe now that I ever was. I would do anything to take it back but that’s not the way things work, but please know that I am deeply sorry for those things. I’m a proud family man with many things to offer. The reason I am hesitant to provide a character reference is that I am embarrassed of my past and I don’t want anyone to know how foolish I used to be. Please understand I have grown up in the last 15 years…”
As previously noted, on 20 May 2020 a delegate for the Respondent refused the Applicant’s citizenship application. After setting out the Applicant’s criminal history and the information provided in his email of 16 April 2020, the delegate made the following findings – Exhibit 1 T9 p. 57:
“Your personal statement on 16 April 2020, contains some information about your offences, however, in the absence of any court transcripts or police statement of facts I am guided by the nature of the offences, the court’s finding of your guilt, and the sentence imposed upon you. This weighs against you being of good character.
I also note that you have acknowledged the offences however, you have not expressed any remorse for the offences you have committed. That aside, I do accept some aspects of your statement at face value and give the factors mentioned within some weight in my assessment of whether you are of good character.
Under Citizenship Policy the applicant’s present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship….
You have not provided any character references and therefore I cannot be satisfied that you have a good reputation in the community.
In addition to the above, you have also not provided any indication that you have undertaken rehabilitative actions (either court mandated or undertaken by your own initiative). I can therefore give this potential factor no weight in my assessment of whether you are of good character.
I find that the definition of good character as defined in the Citizenship policy makes reference to the enduring moral qualities of a person. The phrase ‘enduring moral qualities’ encompasses characteristics which have been demonstrated over a very long period of time… Having regard to the circumstances and serious nature of your criminal offences, even if taken from the time of the offending noting that your obligation to the court has ceased in 2018. I am not satisfied that a reasonable amount of time has passed to convincingly establish a pattern of good behavior.
It is also noted you have been found guilty of a number of offences…in the period from 2007 to 2018. You are seeking to make a Citizenship pledge that you will uphold and obey the laws of Australia, but you have demonstrated through past actions that this is not likely to be the case as you are a repeat offender. In my view, your criminal history represents a pattern of behaviour that weighs against you being of good character. I give this factor some weight in my assessment.”
In his application for review of the above decision the Applicant provided the following reasons for the application – Exhibit 1 T2 p 9:
“I believe the decision was made based on my past and not the person I am now. I have not had any criminal convictions in 10 years I have shown great remorse and regret and have taken big steps to better myself. I believe I am worthy of becoming a part of this nation. I am now a family man who is career focused every body deserves a second chance as do I.”
ISSUE FOR DETERMINATION
The only issue for determination by the Tribunal is whether the Applicant is a person of good character for the purposes of s 21(2)(h) of the Act.
LEGAL OVERVIEW
Pursuant to s 21(1) a person may make an application to the Respondent to become an Australian citizen. Subsections 21(2) – (8) prescribe the various eligibility criteria. General eligibility criteria are dealt with in s 21(2), and in the reviewable decision the only eligibility criteria the Applicant was found not to have met was s 21(2)(h), namely:
“is of good character at the time of the Minister’s decision on the application.”
The term “good character” is not defined in the Act. There have been a number of Federal Court decisions on the meaning of this term and the proper application of the good character test. Reference can be made to the following observations of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) (1996) 68 FCR 422 at 431 – 432:
“the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion…A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character…Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
An assessment of good character, then, is an objective exercise governed by a review of the objective evidence presented as distinct from a popularity contest weighed by emotion and only a partial understanding of a person’s character and behaviour.
Such an assessment is by no means an easy task and a decision-maker must reach the requisite state of satisfaction. The Tribunal made these observations in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7]:
“a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”
Although the Act does not define “good character”, guidance is provided to decision-makers by the Citizenship Policy (CP) and the Citizenship Procedural Instructions (CPI).
It needs to be noted that neither the CP or the CPI are made pursuant to a specific provision in the Act. In Minister for Home Affairs v G and Another (2019) 266 FCR 569, the Full Court (Murphy, Moshinsky and O’Callaghan JJ) made the following observations ([18]/574):
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”
Their Honours also made the following observations ([58]/586):
“It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created…”
The Tribunal will generally apply the CP and CPI unless there is a cogent reason not to do so – Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
However, although the CP and CPI provide sound general guidance to a decision-maker, where a level of satisfaction is reached for the purposes of s 21 of the Act, then any further requirements or steps as set out in the CP and CPI need not be addressed – Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72.
Reference can also be made to the non-exhaustive list of characteristics expected of a person of good character set out both in the CP (Exhibit 1 T10 p. 66) and Cl. 4.4 of the CPI (Exhibit 1 T11 p. 81). The relevant characteristics as set out in CPI as relevant to this matter are:
“An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case:
·            respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth)
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o   other material deception during visa and citizenship applications;…
o   concealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
o   giving false names and/or addresses to police…
·not be violent… not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence)…”.
The CPI also deals with the way decision-makers should weigh the information before them. With respect to offences and behaviour, the following characteristics should be taken into account –Cl. 4.11, Exhibit 1 T11 p. 92:
(a)is the offence serious or minor?;
(b)did the offence harm other people?;
(c)who were the victims?;
(d)is there a pattern of behaviour?;
(e)was it a one off incident?;
(f)were there extenuating circumstances?
A decision-maker is also to consider any associations with people or organisations of concern, and to consider any mitigating circumstances:
(a)length of time since the offence was committed;
(b)age at time of offence;
(c)behaviour since completing prison sentence or court obligations;
(d)remorse;
(e)community support (referee reports etc.);
(f)changes in life of the applicant, e.g. moving away from negative influences, marriage, children, treatment for medical conditions.
RESPONDENT’S CONTENTIONS
In summary, the Respondent contends (Respondent’s Statement of Facts, Issues and Contentions – Exhibit 2 para 22) that there are two issues which weigh against a finding by the Tribunal that the Applicant is a person of good character for the purposes of s 21 of the Act:
(a)the seriousness of the Applicant’s offending and his persistent and ongoing efforts to minimise the culpability of his offending; and
(b)the failure of the Applicant to disclose his offending when he applied for citizenship.
APPLICANT’S CONTENTIONS
In his Statement prepared for the Hearing (Exhibit 3), the Applicant outlined his version of the previous incidents that resulted in Court appearances, and concluded by making the following submission (Exhibit 3 pp. 2 – 3):
“…I believe part of being a good Australian is to be honest and hard working and more so that anything be of good character which I believe I am. I may have been a troubled teen but I have completely turned my life around and I am now 30 years old with two beautiful children the most trouble I run into these days is getting my daughter who is 3 to eat dinner and toilet train our 2 year old son. I am at a different point of life, my partner… and I are currently looking to buy our forever home. I also never thought that I would be so in love with gardening. Please don’t judge me on things from 10 years and 15 years ago I am no longer that person, I am a dedicated family man with strong morals I am well presented and respect everyone who I cross paths with. I am ashamed of the person I used to be nor can I believe that I was ever that way I would do anything to take those things back or undo the things I did but that is not the way things work but I am deeply sorry for those things. I guess being who I am now to try and make up for it. I have a great passion for working in aged care and this is where all my experience lyes [sic] due to covid 19 and our recent move to Brisbane I have not landed another managing maintenance role within an aged care home as of yet but once the world starts getting back to normal I will pick up where I left off. I love serving the elderly, you learn manny [sic] things working in aged care and I am proud to say when I left my most recent role both the residents and I got emotional because like it not these people become your family that’s exactly who they were to me and they also rely on you every single day for everything and I was happy doing it.”
THE HEARING
A Hearing was convened in Brisbane on 4 March 2021.
The Applicant was self-represented, appeared in person, and gave evidence and was cross-examined. The Respondent was represented by Mr M Hawker, who also appeared in person.
The only witness called to give evidence was Mr Paul Malaxos.
Leave was given to the parties to provide the Tribunal with written closing statements.
The Respondent’s Closing Statement (RCS) was received on 5 March 2021 and the Applicant’s Closing Statement (ACS) was received on 29 March 2021.
CONSIDERATION
Introduction
It is tolerably clear that there are four major issues before the Tribunal:
(a)the circumstances and seriousness of the Applicant’s offending;
(b)whether he is remorseful for his offending;
(c)the circumstances and seriousness of the Applicant’s failure to disclose his offending in his citizenship application documentation; and
(d)his current circumstances and changes in his life since his offending.
Each of these matters is considered below.
Circumstances and seriousness of the Applicant’s offending
Incident on 4 October 2006 – convicted of common assault
The first incident occurred on 4 October 2006. The Police Fact Sheet which is annexed to Exhibit 2 contains the following information about the incident:
“About 2.25am on Wednesday the 4^th of October 2006, the victim [Ba] and two witnesses [R and Br] attended the McDonald’s Restaurant situated at Formosa Street x Princess Hwy Sylvania.
[Ba, R and Br] have left the Restaurant and were talking outside when they have heard [the Applicant] say, ‘Are you telling us to get the hell out of here, have you got a fucking problem?’. [Ba, R and Br] have tried to ignore this comment and have walked towards the bottle shop at the Crest Hotel Sylvania which is directly east of the Restaurant.
As [Ba, R and Br] got to the bottle shop they have noticed [the Applicant] and two of his friends. These other two males were described as one having a striped shirt and the other male being of smaller build than the other two.
At this time [the Applicant] is still stating, ‘Have you got a fucking problem, did you wanna start something. [Ba, R and Br] have noticed [the Applicant] was holding a knife behind his back in his right hand. The blade of the knife being estimated between (10) – (15) centimetres and the handle black in colour. [The Applicant] was also making comments of, ‘If you’ve got a problem I can put a hole in you. Do we have a problem, do we want to fight’. [Ba] has replied I’m not going to fight you with a knife in your hand.
At this time [the Applicant] has made a sudden forward movement towards [Ba]. [Ba] has immediately jumped back. [The Applicant] has stated words to the effect of ‘Do you want to get stabbed’. [Ba] has replied ‘Nah mate I’m not fighting you.’

A complaint was made to the Police and the car in which the Applicant and his two friends were travelling was stopped by the Police. The car was searched and a 10 cm knife and a pair of scissors were located in the boot. The Applicant and his two friends were subsequently arrested.
At the Hearing the Applicant was cross-examined by Mr Hawker about this incident – Transcript (Tr.) 9.3.2021 p. 20:
“Do you accept what we now know from the records is in terms of the two offences there was a common assault, which involved you threatening someone with a knife? --- Yes, I do recall.
You do accept that? --- But I didn’t – I didn’t threaten him with the knife. I never – I never took the knife out.
You never took the knife out? --- Yes. It says in his statement that I did, which I didn’t.
Correct. Well, do you accept you had a knife? --- Not my knife.
That’s not what I asked? --- I did, yes.
How did he know you had a knife if you never took it out? --- I had it behind my back.
DEPUTY PRESIDENT: Sorry, can I just ask a clarifying question, Mr Reskella, when you say it’s not your knife---? --- That doesn’t mean I didn’t have it. I did have it.
Yes. I’m just – so the fact it wasn’t your knife is a question of ownership, not a question of possession. Were you possessing a knife? --- I was.”
The Applicant was initially charged with armed with intent to commit an indictable offence, common assault and custody of a knife in a public place. Ultimately only the common assault charge was proceeded with – Exhibit 8.3.
The Applicant was convicted on 20 November 2007 at the Sutherland Children’s Court of common assault and placed on a good behaviour bond for 12 months– Exhibit 1 T7 p. 44, Exhibit 8.3.
Incident on 26 January 2007 – maliciously inflict grievous bodily harm on a person
The next incident was more serious than the first as it involved the Applicant physically attacking a young male resulting in the victim suffering facial injuries and requiring medical and dental treatment. The victim of the assault was only aged 15 years. The Police Report of the incident contains the following information – Exhibit 8.2 pp. 18-19:
“About 7.30pm on Friday the 26^th January 2007 the victim in this matter……was in Cronulla with friends…..and….The group attended McDonalds Cronulla and met a female friend of…..who asked them to come to a party with her on the top of the Nando restaurant…..walked over and met the Accused who purchased a four pack of Smirnoff blood orange twists for…..and…..to share. The alcohol was purchased from Mr Liquor on the Kingsway, Cronulla…..has then walked down to the front of Nando’s with the Accused. The victim and…..have then crossed the road and met up with….and the Accused. Upon meeting up the Accused has indicated to come upstairs and the group has followed the Accused up the stairs. There were approximately nine people already on top of the roof area when the victim reached the top of the stairs. The victim received a phone call from his friend….and this was listened to by…..The victim and…..then walked down and met…..outside McDonald’s before returning to the group on top of Nando’s. Once arriving to the rooftop the Accused has said to……’Who are you?’……sand, I’m……’ The Accused then said to the victim, ‘You came up those stairs disrespecting me’. The victim said, ‘I didn’t disrespect you at all, I just walked up the stairs.’ The Accused has then steeped [sic] closer to the victim. Fearing that the victim was going to be assaulted…..steeped [sic] between the two and pushed the Accused backwards slightly. Another male has stepped forward and grabbed the Accused by the arm and tried to pull him away from the victim. The Accused has shaken off the males hand and walked back towards the victim. The Accused started to yell and has then swung a punch at the victim with a closed right fist striking the victim in the mouth. The punch by the Accused has damaged three of the victims teeth on the upper left jaw. As a result of the punch the victims head has been thrown backwards. The Accused said, ‘This is my party, if your [sic] going to disrespect me then get the fuck out.’…”
The victim presented at the Emergency Department of the Sutherland Hospital at 8:27 pm that day complaining of mouth pain and gum laceration. The Resident Medical Officer in a report dated 27 January 2007 made the following observations – Exhibit 8.6:
“[the victim] presented to ED with toothache post blunt trauma, punched on his face, no LOC, neck pain.
O/E there was small gingival laceration, no active bleeding, loose teeth 2 upper left, no other injury found, OPG: no obvious fracture.”
The victim was subsequently treated by a dentist (Dr D Martin) who, in statement dated 2 May 2017 provided the following information – Exhibit 8.5:
“Two of [the victim’s] upper front teeth were tender. The left central and left lateral incisor was loose, tender and displaced. There was redness around his lips and bruises on his chin. I took an x-ray of the teeth and found there was no root fracture. The patient was warned that this kind of injury is usually associated with Concomitant Alveolar fracture. The teeth were repositioned under local anaesthetic and splinted for three months to the adjacent teeth. The injury has caused nerve death for both teeth for which root canal treatment was initiated on the 1^st February 2007. This treatment is now completed.”
At the time the Applicant attempted to downplay his culpability. In a report prepared by two officers of the New South Wales Department of Juvenile Justice, the Applicant gave the following account of the incident – Exhibit 8.4:
“Bishoy admits to his involvement in the offence and pleads guilty to the charge.
States he was having a belated birthday party celebration on the roof of his place of employment, with the permission of his employer, when the victim who was unknown to Bishoy arrived uninvited.
According to Bishoy he attempted to introduce himself to the victim but was ignored he then asked the victim to leave which he refused to do.
Bishoy claims that after he repeatedly requested the victim to leave the party the person approached him in an aggressive manner and it was at this point in time due to concerns for his safety that Bishoy punched the victim.
Bishoy informed the writer that at the time both he and the victim were in states of intoxication.
Bishoy expresses remorse for his actions and acknowledges that he should not have hit the victim although he maintains that he did so in self defence due to concerns for his own well being.”
The Applicant was convicted in the Sutherland Children’s Court on 20 November 2017 of the charge of maliciously inflicting grievous bodily harm and placed on a good behaviour bond for 12 months – Exhibit 1 T7 p. 44.
Incident on 23 January 2011 – assault occasion actual bodily harm
The third incident in which the Applicant was charged and convicted of assaulting another person occurred on 23 January 2011. The Police Fact Sheet contains the following account of this incident – Exhibit 8.2 pp. 12-13:
“The accused, Bishoy RESKALLA has been in a relationship with victim 1,…. for the past 3 years. About 1.15am on Sunday the 23^rd of January 2011, the accused was walking along Willarong Road, Caringbah, opposite Woolworths near the intersection of President Ave. The accused and victim 1 were arguing at the time. Witness 1,…. was standing outside the woolworths staff entrance and observed the accused and victim 1 arguing. Witness 1 heard the victim say to the accused, ‘Leave me alone.’ The accused replied with, ‘Just answer the question.’ Witness 1 was about 10 metres from the accused and victim 1. Witness 1 saw and heard the accused slap victim 1 across the face (Offence 1). Witness 1 ran down to the Woolworths staff entrance and called out to witness 2,…. to come out. Both witness 1 and witness 2 walked out the staff entrance where they saw victim 1 lying on the road. Victim 1 was saying to the accused, ‘Don’t pull my hair. Don’t touch me.’ Victim 1 got herself off the ground and started to walk north along Willarong Road towards the President Ave intersection. Victim 1 said to the accused, ‘Leave me alone.’ The accused followed victim 1 and continued grabbing her. Witness 1 called the Police at this time….After witness 1 made the phone call to police, he and witness 2 walked in the direction of the accused and victim 1. Witness 1 yelled out to the accused, ‘Just leave her alone. Just let her go.’ Victim 1 at hearing this had walked towards witness 1 and the accused following behind. Victim 2,…… had been walking south along Willarong Road from the President Ave intersection. Victim 2 observed the accused and victim 1 arguing. Witness 1 at this stage had walked back into the Woolworths staff entrance. The accused shortly after, walked up to victim 2 and took his shirt off. The accused raised his right hand and threw a punch at victim 2 making contact with victim 2 mouth (offence 2). Victim 2 fell straight to the ground, feeling immediate pain to this teeth and lower right lip area. As a result victim 2 suffered bleeding to the right lip area and swelling. The accused continued to stand over victim 2 before witness 2 said to the accused, ‘Hey mate, leave him alone. He hasn’t done anything wrong. Leave him alone.’ The accused turned towards witness 2 and walked towards him. Witness 2 said to the accused, ‘I don’t want to fight you. I’m not here to fight.’ Witness 2 walked back down to the Woolworths staff entrance to get a co worker….”
Shortly thereafter Police arrived and the Applicant was arrested. He was given an opportunity to be electronically interviewed but declined the offer.
On 6 April 2011 the Accused was found guilty of the offence of assault occasioning actual bodily harm at the Bankstown Local Court and was sentenced to be placed on a good behaviour bond for 18 months – Exhibit 1 T7 p. 44.
Incident on 12 December 2017 – destroy or damage property
The last incident which resulted in the Applicant being sentenced occurred early in the evening of 12 December 2017 at the Chemist Warehouse, Caringbah, New South Wales.
The Police Fact Sheet contains the following account of this incident – Exhibit 8.2 p. 2:
“About 17:40 on the 12^th of December 2017, the POI was at the LOC and was attempting to get a script for what is believed to be his knee pain. The POI recently had an operation on his knee/s. It is believed the INF or another staff member had to perform further checks with the POI’s doctor prior to handing the script over to the POI. Contact was attempted with the DR, however, he wasn’t at work. As a result, the script was unable to be issued at the time. Upon hearing this, the POI became immediately frustrated and turned around to walk out. On his way out, in aisle 1, the POI has swiped the shelf with his left arm. This has caused multiple shelving items to fall from the shelf and smash on the ground. The POI continued walking out and left the store. A short time later, police arrived and obtained details from the INF and the security guard on duty… The POI described that he was told to wait for 45 minutes to an hour before being told he couldn’t have his script. The POI stated he turned to walk out and bumped into the shelf accidentally.”
New South Wales Police subsequently obtained CCTV footage of the incident:
“Police viewed this footage and it does work and it shows the POI using his left arm to swipe items off of the shelving units. The POI will be charged with malicious damage as a result.”
The Applicant appeared before the Sutherland Local Court on 12 February 2018 and was convicted of one charge of destroy or damage property of less than $2000 and was placed on a good behaviour bond for 9 months – Exhibit 1 T7 p. 44.
Other incidents
Although the above incidents are the only occasions on which the Applicant has been convicted of criminal offences, the summonsed New South Wales Police records disclose 59 events where the Applicant came to the attention of the New South Wales Police.
The New South Wales Police Fact Sheets which outline various incidents where the Applicant came to the attention of Police are some 28 pages in length. In short, the above incidents which resulted in the Applicant being charged and sentenced are by no means exhaustive of his conduct which was of a nature to bring him to the attention of law enforcement authorities.
Remorse
The Applicant has frequently expressed his remorse for his past actions.
In his email response to the Delegate’s procedural fairness letter, the Applicant refers to his “foolish and immature past”. He claimed that his criminal behaviour “is well and truly behind me” and that he was “no longer that person nor can I believe now that I ever was.” Further he claimed that the was “deeply sorry for those things” – Exhibit 1 T8 pp. 46 – 47.
At the Hearing, the Applicant also expressed his remorse for his past actions – Tr. 9.3.2021 p. 6:
“…as an adolescent I wasn’t a good person. I’ve taken responsibility for all the things that I’ve done. It’s mentioned in these documents as well that I keep downplaying all these previous charges, and that’s not the case at all. I believe I’ve showed remorse, I am sorry for those things; if I could change them I would but unfortunately that’s not the way the world works. These charges are from 15 years ago, some from 10. That was literally half of my lifetime ago. I’m 31 years old, I’m a proud father of two kids, I’ve got a good career, I’ve worked in the aged care industry for the past five years caring for the elderly. So you could say I pretty much look after the most vulnerable people. It’s a job that I care passionately about and I’d love to get back into but due to COVID I’ve had no success since we moved to Brisbane. That doesn’t mean I’ve given up hope.
The timeframe we’re speaking about is a long time ago, and that’s not to take away that I did do those things. I’d also like you to know that I’ve taken responsibility for those things. I’m in no way saying, you know, that I haven’t done this or I haven’t done that, I’ve taken responsibility for my actions….”
Whilst the Applicant was passionate and eloquent in his frequent entreaties regarding his remorse and his more recent redemptive behaviour, the Tribunal was presented with somewhat different written and oral responses when he was pressed about the specifics of his past brushes with the law.
First, in response to the Delegate’s procedural fairness letter which set out his offences, the Applicant provided the following response in relation to the two 2007 convictions – Exhibit 1 T8 p. 46:
“The offence in 2007 I honestly don’t recall as this was almost 15 years ago but I was obviously a young idiot.”
Before proceeding further, the Tribunal finds it implausible that the Applicant did not recall the two incidents, insofar as they resulted in him being arrested and brought before the Court and placed on good behaviour bonds. At the Hearing I asked the Applicant about these incidents and his recollection – Tr. 9.3.2021 pp. 11 – 12:
“DEPUTY PRESIDENT: You say then about the 2007 offence:
I honestly don’t recall as this was almost 15 years ago but I was obviously a young idiot.
So you can’t recall the 2007 event?
WITNESS: At the time, Deputy President, I didn’t recall, but after reading the fact sheet I do recall vaguely the incident.”
In fact, as previously noted, there were two incidents that were dealt with by the Court in 2007. The first of these was the 4 October 2006 incident. Mr Hawker cross-examined the Applicant about this incident, and the following exchange occurred – Tr. 9.3.2021 p. 20:
“Do you accept what we now know from the records is in terms of the two offences there was a common assault, which involved you threatening someone with a knife? --- Yes, I do recall.
You do accept that? --- But I didn’t – I didn’t threaten him with the knife, I never – I never took the knife out.
You never took the knife out? --- Yes. It says in his statement that I did, which I didn’t.
Correct. Well, do you accept you had a knife? --- Not my knife.
That’s not what I asked? --- I did, yes.
How did he know you had a knife if you never took it out? --- I had it behind my back.
DEPUTY PRESIDENT: Sorry, can I just ask a clarifying question, Mr Reskalla, when you say it’s not your knife---? --- That doesn’t mean that I didn’t have it. I did have it.
Yes, I’m just – so the fact I wasn’t your knife is a question of ownership, not a question of possession. Were you possessing a knife? --- I was.”
As the above extracts highlight, the Applicant was less than forthcoming about the incident and his answers about the knife were initially evasive
Mr Hawker subsequently put to the Applicant the Police version of events – Tr. 9.3.2021 pp. 22 – 23:
“But you were making comments to the effect,
If you’ve got a problem I can put a hole in you
--- Not true.
…
And the response to you was,
I’m not going to fight you with a knife in your hand.
You’ve made a sudden forward movement? --- Not true.
He has immediately jumped back and you’ve stated words to the effect,
Do you want to get stabbed?
--- Also not true.
And he replied,
Nah mate. I’m not going to fight you.
You later get picked up by the police for this incident? --- We actually had driven away.”
Although the Applicant testified that he was “not trying to downplay this in any way” (Tr. 9.3.2021 p. 23) his answers to the questions posed by Mr Hawker were in fact an attempt to minimise his culpability and to deny the version of events in the Police record.
In response to Mr Hawker’s question of whether this was the Applicant’s first interaction with the criminal justice system, the Applicant replied (Tr. 9.3.2012 p. 23):
“I couldn’t tell you, to be honest. Probably not.”
The 28 pages of Police Reports of interactions with the Applicant disclose eight pages of interactions between 7 March 2003 and 5 October 2006 – Exhibit 8.2. Again, it is highly implausible that the Applicant would not be able to recall the multiple times that he had interactions with the New South Wales Police in the 2003 to 2006 period.
When pressed by Mr Hawker, the Applicant gave the following account – Tr. 9.3.2021 p. 24:
“…like I grew up in a ghetto. I was always around the wrong crowd. I’m not saying I did what I did because I was around the wrong people but, you know, I had always had interactions with police and when we’d go out on the weekend police would always stop you and write your name in their book which was part of their protocol and it wasn’t my first interaction with police, no.”
The next incident involved the Applicant assaulting a 15-year-old boy resulting in disfigurement of his mouth.
When I posed Questions to the Applicant, he gave this account of the incident – Tr. 9.3.2021 p. 12:
“WITNESS: To be quite honest my memory from that far back is not great. I think I was having a party and a random gentleman just turned up and walked in, on private property might I add, and I had asked him to leave and he wouldn’t leave and I kept asking him to leave and he wouldn’t leave and then he did something, he lunged at me or he came towards me really aggressive and my instinct was to, stupidly, hit him, and that’s – that’s what happened.
DEPUTY PRESIDENT: So you hit him and you’re saying it as self defence, basically, a reaction?
WITNESS: Well, he – yes, he – it was – it was just a reaction to him coming towards me. I mean you don’t turn up to someone’s living room and walk in and make yourself at home or whatever it may have been. But again, that doesn’t change the fact that, you know, I did strike him and that was wrong.
DEPUTY PRESIDENT: Okay.
WITNESS: I’m not taking away from that, I’m just saying that, you know, I don’t’ turn up to random – random house parties and just make myself at home and then when asked to leave he wouldn’t leave and I repeatedly asked him to leave. I specifically remember I kept asking him to leave and he had jumped up out of - I think he was sitting on a crate or something – he had jumped up out of his seat and my instinct was to strike him.”

Subsequently, the Applicant was cross-examined by Mr Hawker about this incident – Tr. 9.3.2021 p. 24:
“This was the incident where you were having the party at the top of your workplace Was this Nando’s, was it? --- Yes.
Someone’s come that wasn’t invited by you? --- Someone’s turned up off the street and, as I recall, the gentleman was much older than us.
The victim was 15 years of age, you know that? --- No, I didn’t know that. I just I remember him being much older for some reason.
He turns up to the party with some of his friends and you were the aggressor, you were the one saying, ‘Why are you disrespecting me’? --- No, that’s---
He never went to punch you. You punched him and you caused disfigurement in his mouth with his teeth, correct? --- No, that’s not how it happened… The gentleman and his friends walk in off the street onto private property and when asked to leave he wouldn’t and---
Your response was to punch him? --- Well, no, that’s not why I punched him. I punched him because he’s lunged at me.
That’s not what the witnesses say in the police records? --- Well, I remind you that I am a man of god and I am under oath. I have no reason to lie to you…”
Mr Hawker went on to put to the Applicant that his version of events was “not reflected in the records or the statements.” He then asked the following Questions of the Applicant – Tr. 9.3.2021 p. 25 – 26:
“It’s just what I’m trying to get an understanding of is what your explanation is for seriously saying to the Department you don’t recall this 2007 sentencing for these offences where there’s been a threatened incident with a knife or you’ve punched someone to the point where you’ve been found guilty, you’ve been convicted of grievous bodily harm and you’re seriously asking the Department to accept, and now this tribunal, that you just didn’t recall these two serious criminal offences? --- Yes, to be honest, I didn’t. Look, again, lets talk about length of time. You know, 15 years ago, 15 years. That’s half my lifetime ago. It was 15 years ago. I suppose I don’t recall because, you know obviously I was in trouble with the police at the time and, you know, that was probably the norm back then. You know, my argument is that it was 15 years ago, it wasn’t because it’s not serious. It is serious and it is stupid but what I’m saying is, ‘I don’t recall,’ doesn’t take away from any of that but I only didn’t recall because of, you know, I’ve put that life behind me. You know, I’m, you know, I’ve got a good career, I’ve got children, I’m sensible, I abide by the law.
You understand what I’m suggesting to you is that it is implausible that you would forget the very first time you ever appeared before a sentencing court? --- Well, no, it’s not implausible because, you know, I’ve forgotten things from last year, I’ve forgotten things from the year before.
You had a pretty good recollection when the tribunal was asking you about your childhood, your schools, where you grew up and the church? --- You recall what school you went to.”
Having carefully listened to the Applicant’s evidence, the Tribunal also found it implausible that the Applicant had very little recollection of his Court appearance. Further, the Tribunal formed the view that the Applicant was deliberately attempting to minimise his culpability for the assault he perpetrated on the 15-year-old victim. All of the witness statements given to the New South Wales Police which appear at Exhibit 8.7 paint an entirely different version of events than that described by the Applicant when he testified. One witness to the assault, was EJS. In her Police Statement of 29 January 2007 she gave this account of the incident – Ex 8.7:
“17. I remember hearing Bishoi say, ‘You came up those stairs disrespecting me.’ Bishoi was yelling and appeared angry.
[H] said, ‘I didn’t disrespect you at all, I just walked up the stairs.’
Bishoi then walked half a step closer to [H], at the time Bishoi’s hands were by his side. [H] was just standing there with his hands next to him as well.
18. I walked over and stood between them, because I thought Bishoi was going to hit [H]. I pushed Bishoi back a bit and he just moved away a bit. Bishoi’s friend came over and grabbed Bishoi by the arm and tried to pull him away. Bishoi shook him off and walked back towards [H].
19. As Bishoi was walking towards [H] I started to cry, ‘I said please don’t.’ I thought he was going to do something really bad and I walked over to my friend [C] as I didn’t think it was safe to get between them again.
20. I could hear Bishoi yelling, but I could not understand what he was saying because he was drunk and I was crying.
21. I looked at Bishoi and [H] and all of sudden Bishoi hit [H] in the mouth. Bishoi and [H] were near the top of the stairs and Bishoi hit [H] with his right fist. It was definitely a closed fist. The punch hit [H] in the front left side of his mouth. [H’s] head went backwards a bit and as he looked back down he felt his teeth and I walked over to him. I was crying and hugged him.
Bishoi was just staring at him and his friend said something to him but I am not sure what it was.
Bishoi said, ‘This is my party, if you are going to disrespect me then get the fuck out.’
[H] said, ‘You just fucking knocked my teeth out. I never disrespected you, of course I am going to leave.’”
The fact that the Applicant testified that the victim, H, was older than him and that he acted in self-defence after the victim lunged at him is in stark contrast to what actually occurred. In reality, the Applicant, without provocation, viciously assaulted a boy younger than him, and, in the process, inflicted serious injuries to the victim. In the circumstances the Tribunal formed the view that the Applicant was not truly remorseful about his assaults despite his protestations to the contrary.
The next incident was the assault occasioning bodily harm on 23 January 2011. On this occasion the Applicant was arguing with his then girlfriend and struck her. Subsequently the Applicant assaulted a bystander for no apparent reason.
In his email response to the Delegate’s Procedural Fairness letter, the Applicant set out a version of events quite different to that appearing in the Police records – Exhibit 1 T8 p. 46:
“The earlier offence in 2011 I was walking home from a party with my girlfriend at the time when we were approached by 3 males who simply wanted to start trouble. There was an altercation with these men and because I stood up for myself and one of the gentlemen had a bleeding lip I was charged. Looking at it now I really should have sourced a better lawyer as the charge was excessive for what had actually happened.”
At the Hearing, the Applicant again propounded this version of events – Tr. 9.3.2021 pp. 27 – 28:
“This was the next explanation you gave in your statement at page 46 about the three males who simply wanted to start trouble? --- Well, yes. They approached out of nowhere. Out of the darkness.
Out of the darkness three males approached you? --- What I said….
…you were near the entrance, or near a Woolworths, and you were arguing with a female partner at the time. And this actually attracted the attention of these good Samaritans unknown to you, correct? --- I was arguing with my partner at the time, yes. I mentioned that earlier…
Okay, and this argument was sufficient to lead this witness to call the police before even approaching you. You’ve seen that in the timeline of events? --- I didn’t know that they had called the police before approaching us, no.
The first witness, the male, made a call to police. Then, it was him and a second male which walked in the direction of you and the female. And they yelled out, “Just leave her alone.’ Correct? --- No….
You recall the two males retreated somewhat, and then a third male came along to the aid of the female? --- No—
And this is where you take your shift off and ultimately, you punch this person who comes to the aid of the female? --- No, I remember – I remember being approached by three men. I don’t remember being approached by two, or one. I remember being surrounded by three guys. There was three guys around us.”
I asked the Applicant the following Questions – Tr. 9.3.2021 p. 29:
“DEPUTY PRESIDENT: So Mr Reskalla, what you’re telling the tribunal is that you felt threatened and you acted in self-defence? Is that what you’re saying? --- I would say yes, because all of a sudden there was just three guys out of nowhere.
So you weren’t the aggressor. You felt you were under threat and you acted accordingly? --- Yes, because I was surrounded by three men.”
The Applicant’s version of events is so at odds with the Police report that it calls into question whether the Applicant has any genuine remorse for his actions. In fact, in his email response to the Delegate quoted above, the Applicant seeks to blame his lawyer for his conviction.
The Applicant portrays himself as an innocent victim who only acted in self-defence. In reality, as the Police report highlights, the Applicant was acting in an aggressive manner and assaulted a good Samaritan who was attempting to assist the Applicant’s girlfriend, who, it would seem, was also assaulted by the Applicant.
The Applicant’s email response to the Delegate strongly suggests that the only genuine remorse the Applicant holds is that he was convicted of an assault and not that he committed the assault itself.
The fact that the Applicant continues to downplay this incident and seeks to shift blame to others for his conviction suggests to the Tribunal that the Applicant has either deliberately tried to rewrite history or lacks the maturity to accept his wrongdoing and manifest genuine remorse for what was unacceptable and criminal behaviour.
The final incident was the destroy or damage property charge at the Chemist Warehouse at Caringbah on 12 December 2017.
Again, the Applicant has sought to downplay this incident. In his email response to the Delegate’s Procedural Fairness letter, the Applicant claimed that the Judge thought it was “a waste of time” and he “was not sure why this has come up on my record as I was told by the judge there will be no conviction.” – Exhibit 1 T8 p. 46.
The Applicant initially denied he had intentionally damaged property and claimed it was an accident. The following information appears in the Police Fact Sheet – Exhibit 8.8:
“About 19:50, police attended the defendant’s home address and cautioned him and asked him what happened. The defendant stated he was told to wait 45 minutes to an hour before being told he couldn’t have the script. The defendant stated he turned to walk out and bumped into the shelf accidentally. The defendant stated he did not turn around to look. Police informed the defendant that they would record the conversation in their notebook and request the defendant to sign after the completion. The defendant said, ‘How about you go and come back at a convenient time for me?’ Police replied, ‘We are here now.’ The defendant replied, ‘It’s not convenient for me.’ Given the fact the defendant had already provided a version under caution, police determined this request was unreasonable and advised the defendant further investigation would be completed prior to taking any action.
About 12:00 on the 18^th of December 2017, police viewed the CCTV from Chemist Warehouse and it clearly shows the defendant extending his left arm toward the shelving units. The defendant’s arm extends into the shelving units in aisle 1 causing a number of items to fall to the ground, including the damaged property.”
At the Hearing the Applicant denied that he told the Police he had accidentally bumped into the shelf and also denied the Police version of events – Tr. 93.2021 pp. 33 – 34.
This offence has to be viewed in light of the fact that the Applicant had recently had a knee operation, was in pain, had waited a lengthy period of time for his script to be processed and was clearly frustrated. Nonetheless, none of these matters can excuse either the Applicant’s angry outburst which resulted in the destruction of property or his attempts to deny his culpability when interviewed by the Police. Further, even at the Hearing the Applicant’s answers to Mr Hawker’s questions were defensive with clearly an intent to downplay the incident.
The Tribunal, therefore, formed the view that the Applicant was not remorseful for his actions but certainly was remorseful that his conduct resulted in him facing charges and appearing in Court.
Failure to disclose offending in citizenship application documentation
As previously noted, the Applicant falsely claimed that he had not been convicted of, or found guilty of, any offences overseas or in Australia in his Application for Australian citizenship – Exhibit 1 T4 p.21.
The Applicant provided this excuse in response to the Delegate’s Procedural Fairness letter – Exhibit 1 T8 p. 46:
“Please understand that it was not my intention to be dishonest as I thought the question I ticked ‘no’ was referring to time spent in prison which I have not. It was never my intention to lie or be dishonest I’m sorry this was just a simple mistake.”
At the Hearing the following exchange occurred between Mr Hawker and the Applicant – Tr. 9.3.2021 pp. 15 – 16:
“But based on what we now know and what is before this tribunal, you would have to agree that the answer to that question is false. Effectively, it’s false? --- Not intentionally.
I’m not asking you about intent at the moment, I’m asking that you have to agree that that is a false answer. Whether or not your intended, the answer is false? --- It was a wrong answer, yes.
Yes. And---? --- I will just – I will just say, it’s foolish to think that you can hide a criminal conviction from the tribunal. Also, Immigration is on the federal level, it’s foolish to think that I could been ticked no thinking that I will just try and pass this through, it’s really foolish to think it ---
Well, it’s more than foolish, Mr Reskella, it’s reflective of bad character. You understand that’s the case? --- Well, no, because it wasn’t intentional.
We will come to that. Because by this point in time, what I understand from reading your material is you had previously appeared in court earlier that year, but to your mind it was really a waste of time? --- Not to my mind, no.
And you record what you claim the judge said about it being a waste of time? ---Well, that’s why I had to get the transcript, but I wasn’t able to.
And you say in your statement to the tribunal that it’s inaccurate, that you were going to get it taken off the record? --- Well, it’s not meant to be there because there was no criminal record recorded.
And in terms of your earlier offences, you also make the point, before the evidence today, that you believe that when your application is being considered, it shouldn’t be considered in light of your past conduct, but just looking just at the present, correct? --- Yes. Yes.
Yes. So as far as you were concerned, when completing this form, you’ve got the earlier incident that you were sentenced for in 2018 which you say look, the judge said it was a waste of time. You’ve got earlier conduct which you say, well, that shouldn’t have a bearing? --- No, that’s not what I’m saying.
So, when you’ve answered no it’s because in your mind what you’re really thinking is, well, this shouldn’t impact the Department’s decision about citizenship? --- No, not really. That’s not what I’m saying.
And you’ve answered, ‘no’, knowingly. You knew you had a criminal history but you’ve answered, ‘no’? --- No, if you look at that question it says down the bottom, ‘Spent convictions.’ What I thought spent convictions means is that I’ve spent time in prison…
How do you explain the fact it also says, ‘include any traffic offences’? --- I don’t have any traffic offences…”
The Applicant’s explanation that he ticked the “No” box because he thought that Question 35(a) related to time spent in prison lacks credibility.
Question 35(a) specifically asks if an applicant has been convicted, or found guilty of offences in Australia or overseas, including traffic offences and, inter alia, “spent convictions”.
In short, the Question covers all offences, including, but not limited to, spent convictions.
Further, the very next Question (35(b)) asks whether an applicant has been confined in a prison. If the Applicant actually believed that spent convictions referred to time spent in prison, then he would have seen that this was not the case, otherwise Question 35(b) would be redundant.
Having observed the Applicant give testimony on this matter, the Tribunal formed the view that he was being evasive and attempting to make excuses for what was a misleading answer.
The Tribunal therefore finds that the Applicant knowingly provided false and misleading information by failing to disclose his criminal offences.
Current circumstances and changes in life
Both in his written statements and when giving testimony, the Applicant informed the Tribunal that he is now a changed man and that his youthful indiscretions are now a thing of the past.
The Applicant attached to his email of 16 April 2020 to the Delegate a photograph of his family which shows the Applicant, his wife and his two young children – Exhibit 1 T8 p. 48.
When the Applicant was being sentenced for the Chemist Warehouse offence the Court was presented with a character reference from Ms Annika Thomas dated 7 February 2018 – Exhibits 6, 8.8. Ms Thomas had worked with the Applicant for approximately three years at that time and was his Manager. Ms Thomas made the following observations:
“The nature of the offence is surprising as I have always found Bishoy Reskalla to be a respectful and patient person…
Bishoy Reskalla is the Maintenance Supervisor in an aged care home and has been working with company now since August 2014. He is a very trusted member of the team and much loved by the residents and staff alike. He is hard working, reliable, dependable and passionate about his work and always has time to stop and listen and put a smile on a resident’s face. Bishoy lost his father in 2011 which had a devastating affect on him emotionally and financially. He has been assisting with financial support of his mother since and in March last year he became a first-time father. He is the sole provider for his partner and young baby and is extremely dedicated to his family.
I share in Bishoy’s dismay regarding the commission of the offence and am confident that he will take responsibility for his actions. I have been providing Bishoy counselling in the capacity of his manager and a health professional. I feel assured that Bishoy will move forward with a renewed positive and calm approach when dealing with situations. I am confident he will not reoffend.”
The Court was also presented with a further character reference from another co-worker of the Applicant, Ms Olive Mukayiranga – Exhibit 8.8. In her character reference of 9 February 2018, Ms Mukayiranga said:
“…Bishoy Reskalla is my colleague for three years from 2014 to now. Bishoy commenced working for IBIS Care Miranda one year after me and he continuously demonstrates at all times a professional and ethical attitude towards his work, residents and their family members. Bishoy is a motivated and dedicated employee… I have known Bishoy as an honest person with extended patience.”
The Tribunal had the benefit of receiving a Statutory Declaration from Mr Paul Malaxos which is dated 6 July 2020 (Exhibit 5) as well as receiving testimony from him.
Mr Malaxos made the following declaration:
“I…SOLEMNLY AND SINCERELY DECLARE THAT BISHOY RESKALLA IS:
-A loving family man and father to his two (2) children…and his partner..
-I have known Bishoy Reskalla for 12 years in by any means has shown me and his friends a strong moral character providing empathy and leadership when asked upon
-Been a (sic) influence on my life mentoring me as an older brother and providing guidance through my adolescence
-A hard working and inspiring gentleman providing assistance with the elderly in his previous career in NSW (Sydney).”

Mr Malaxos testified that he had known the Applicant for twelve years and thought of him as an older brother. He went on to give this character analysis of the Applicant – Tr. 9.3.2021 p. 40:
“…I found that you have a strong moral character, you’ve shown a lot of leadership to myself and to other friends as well. You know, I am obviously two years younger than yourself and you know, I’ve always had somebody to be able to provide a leading hand or have someone to talk to or to ask for any advice….You’ve helped me along my ways growing up and to be honest, some pathways and decisions…I wouldn’t be where I am right now.”
When asked about the Applicant’s character as a parent, Mr Malaxos gave this testimony – Tr. 9.3.2021 p. 41:
“As a parent? I would say you’re a great dad and you’re always going to be a great dad, just seeing us grow up together. You love your partner…so much. You’d do absolutely anything for her. You’ve got good morals, good qualities, you know, you’ve got two beautiful kids that you’ve watched grow up. You’ve taken that opportunity to start in another state and you always have the best interests for your family. And you know, I would say you’re exceptional man, a very strong person and a very strong character. Yes. I take my hat off to you.”
The Tribunal was also presented at the Hearing with three further character references. The first was an undated two-page statement from the Applicant’s partner MD – Exhibit 9. The second was a Statutory Declaration of 3 March 2021 from Mr Philip Villarroel who has been a family friend for almost 25 years – Exhibit 10. Finally, there was a very short character reference from Father Bishoy Wassef, the Parish Priest of Saint Mark and Saint George Coptic Christian Church dated 2 March 2021 – Exhibit 11.
None of the persons who gave these character witnesses were called to give evidence, and, as such, were not able to be cross-examined by Mr Hawker.
Nonetheless, each of the character references are consistent with the views expressed the other persons quoted above, and the Tribunal does not doubt the sincerity of the persons involved.
The Applicant, in his written Closing Statement, also highlighted the steps he has taken to reform his life and to become a person of good character. Set out below are some of those submissions:
“…I have worked many jobs and have maintained a consistent job since the first job I had, I have worked in a men’s formal wear shop, I have managed a small restaurant, I have even worked in a smash repair shop and have done many hours on the hard tools as a labourer and trades assistant.
I have also studied consistently and have continued to grow and try to better myself, I have studied retail and business management, fitness certificate III, certificate I in construction and I later on studied and completed my certificate III in carpentry and obtained my full carpentry trade, also while being unemployed the past few months I have not let this time go to waste I am currently studying to obtain my full real estate license while I actively looked for work, I have also completed many other side tickets such as senior first aid, working at heights, working in confined space, elevated work platform and Chief head warden….
Deputy President I am a 31 year old man with 2 children and a loving partner, I continue to obey our laws, I have matured since being 15, my hair is starting to thin and I am definitely feeling my age, it is a horrible feeling to say you do not belong to any country, my children and my partner are Australian citizens, which means I could never take my children on a holiday or if my daughter or son wanted an overseas wedding I could not attend, this for me is a horrible feeling. I have also been a great candidate for many jobs but have been unsuccessful due to not having a passport or birth certificate, my only form of identification is my drivers license….
I promise to continue to obey and uphold our laws as I have for the past 10 years, Australia is my country, it is my home, as it has been for the past 25 years, it is where I will continue to grow old and raise my children. I have had ups and many downs but Australia was always and still is great to me and my family, I understand to be an Australian citizen is a privilege not a right and I believe I hold many values that make me a great Australian…”
It is tolerably clear that the Applicant has been a hard-working person and has, until recently, been in continuous employment. The statement provided by the Applicant’s partner supports the Applicant’s submissions that he is a loving father and partner. Further, the statements provided by his friends and work colleagues support the proposition that he is a good friend to those he holds in regard and has, on the whole, been a productive member of the Australian community. Clearly, the statements of his friends and work colleagues support the proposition that in the main the Applicant is a caring, hard‑working and compassionate person. In particular, the Tribunal was impressed with the passion the Applicant has shown for working with the elderly.
The Tribunal, therefore, formed the view that the Applicant has consciously tried to reform himself. The Tribunal accepts that the Applicant as an adult and father is a different person than he was as a teenager.
In reaching my conclusion, I have taken into account all of the character references provided in support of the Applicant, as well as his testimony and the submissions in his Closing Statement.
Conclusion
As was pointed out in Irving, the assessment of whether a person is of good character is a contemporary exercise based on a careful weighing of objective criteria. The fact that a person may have a past littered with indiscretions and criminality is not determinative of whether he or she by the time of the Hearing has reformed themselves. A decision-maker would be in error if regard were only had to past actions or contemporary views of the public, when those contemporary views are formed on past actions and not current conduct.
The Tribunal has taken into account that the Applicant does not have an extensive criminal history, and the assaults he committed occurred when he was a young man, and, it would appear, whilst he was intoxicated.
The Tribunal has also taken into account that the Applicant has been a hard-working man who has been in continuous employment (until recently) since leaving school.
The character references provided to the Tribunal by his partner, priest, friends and co-workers all suggest that the Applicant is a good employee, friend, father and husband. All of these references count in favour of the Applicant.
As previously noted, the Tribunal accepts that the Applicant has matured and his youthful behaviour is not a good indicator of the Applicant’s current personality and mode of operation.
Despite this, the Tribunal does not accept that the Applicant meets the character test required of the Act.
Both in his statement and testimony, the Applicant constantly attempted to downplay his criminal actions. Time and time again the Applicant refused to accept the true nature of his previous criminal behaviour and, for whatever reason, both downplayed his actions and attempted to blame others. The Tribunal formed the view that the Applicant, despite his protestations to the contrary, lacked true remorse, and, perhaps, insight, for his past actions.
The Applicant was diagnosed with an anger management issue a decade ago, and his actions at the Chemist Warehouse suggest that he continues to have issues with anger management. A Police Report of an incident in the carpark of Woolworths Caringbah on 3 May 2019 also suggests that the Applicant has problems with his temper – Exhibit 8.2.
However, whilst a different point of view could be reached on the interpretation of the Chemist Warehouse and carpark incidents, the Tribunal was presented with the Applicant’s deceptive dealings with the Commonwealth with respect to his false answer in his Citizenship Application.
It became clear to the Tribunal during the course of the Hearing that the Applicant was being evasive in his answers and was attempting to excuse away what was clearly a misleading answer. The Tribunal formed the view that the Applicant was being less than truthful.
On the balance, therefore, the Tribunal finds that the Applicant does not meet the character test. This finding does not preclude the Applicant from applying for citizenship in the future. If the Applicant continues to mature, does not come to the attention of the Police, does not give false answers in any subsequent application forms and consciously accepts his past actions, then there is no apparent reason why a future citizenship application would not be favourably considered. Whilst a person cannot change the past, they can make the future. In the case of the Applicant, his path to obtaining Australian citizenship lies in his hands. He has taken steps towards reforming himself and if he continues down the path he has taken as an adult, then his aspirations towards obtaining citizenship will, in due course, be realised.
DECISION
The decision under review is affirmed.

I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..........................[SGD]........................
Associate
Dated: 24 May 2021

Date of hearing: 4 March 2021

Date final submissions received: 28 March 2021

Counsel for the Respondent: Mr Jake Kyranis

Solicitor for the Respondent: Mr Matthew Hawker

[2021] AATA 1456

24 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Date of hearing: 4 March 2021
Date final submissions received: 28 March 2021
Counsel for the Respondent: Mr Jake Kyranis
Solicitor for the Respondent: Mr Matthew Hawker