Saadie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1469
•3 June 2022
Saadie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1469 (3 June 2022)
Division:GENERAL DIVISION
File Number(s): 2019/6939
Re:Khodr Nazem Saadie
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:3 June 2022
Place:Brisbane
I affirm the decision under review.
...............................[SGD].........................................
Deputy President Dr P McDermott RFD
Catchwords
Where applicant’s citizenship application refused on character grounds – where applicant has repeatedly committed domestic violence offences – where applicant lacks insight into offending – where applicant’s evidence inconsistent – decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534
Baker and Department of Immigration and Ethnic Affairs [1995] ATA 13.
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Karatunov and Minister for Immigration and Border Protection [2017] AATA 132
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Prasad v Minister for Immigration and Border Protection [2017] AATA 1506
Umer v Minister for Immigration and Border Protection [2018] AATA 1630
VQLM and Minister for Home Affairs [2018] AATA 3540
Zheng and Minister for Immigration and Citizenship (2011) 55 AAR 94REASONS FOR DECISION
Deputy President Dr P McDermott RFD
3 June 2022
INTRODUCTION
This is an application for the review of a decision of a delegate of the respondent made on 25 September 2019[1] to refuse the applicant becoming an Australian citizenship on the basis that the delegate was not satisfied that the applicant was a person of good character as required by s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
[1] Exhibit A, T-Documents, T2.
BACKGROUND
The applicant first entered Australia on 16 April 2001 as the holder of a Prospective Marriage visa (subclass 300).[2]
[2] Exhibit A, T-Documents, T22.
On 8 April 2008, the applicant was granted permanent residence by a Partner visa (subclass 801).[3]
[3] Exhibit A, T-Documents, T22.
On 7 April 2014 the applicant was granted a Resident Return visa (subclass 155).[4]
[4] Exhibit A, T-Documents, T22.
On 15 July 2016, the applicant lodged an application for Australian citizenship by conferral.[5]
[5] Exhibit A, T-Documents, T4.
By a letter dated 18 July 2019[6] the Department of Home Affairs provided the applicant with his National Police History Check Report which contained information concerning domestic violence offences that the applicant did not disclose in his application for Australian citizenship. The applicant was asked if he disputed the accuracy of that report. In that letter the applicant was advised that the Australian community has a strong stance against domestic violence. The applicant was invited to give any additional comment or explanation concerning this adverse information. The applicant was also asked whether he had taken steps to avoid this repetition of this behaviour and invited to provide any additional information that may assist his claim to be of good character such as psychological reports, anger management courses or other similar items of evidence. The applicant was also invited to provide character references from members of the community.
[6] Exhibit A, T-Documents, T11.
In September 2019 the applicant provided his statutory declaration as well as letters and declaration from members of the community.[7]
[7] Exhibit A, T-Documents, T12-T20.
On 25 September 2019, a delegate of the Minister for Home Affairs made a decision to refuse the applicant’s application for Australian citizenship on the ground that the delegate was not satisfied that the applicant satisfied the requirements of s 21(2)(h) of the Act at the time of the decision.[8]
[8] Exhibit A, T-Documents, T2.
On 28 October 2019, the applicant made an application to this Tribunal for review of the decision of the delegate.
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH)
Section 20 of the Australian Citizenship Act 2007 (Cth) (“the Act”) contains the requirements for becoming an Australian citizen:
Requirements for becoming a citizen
A person becomes an Australian citizen under this Subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b) if the person is required to make a pledge of commitment to become an Australian citizen -- the person makes that pledge.
Note: Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen.
Sections 26 and 27 deal with the making of a pledge of commitment.
Section 21 of the Act provides for the application and eligibility requirements for Australian citizenship and relevantly provides:
Application and eligibility for citizenship
(1)A person may make an application to the Minister to become an Australian citizen.
Note 1: Subsections (2) to (8) deal with eligibility.
Note 2: Section 46 sets out application requirements (which may include the payment of a fee).
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act relevantly provides:
Minister’s decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note:The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
CRIMINAL HISTORY
On 18 August 2004 the Sutherland Local Court placed the applicant on a bond for two years for the offence of contravention of a DVO. No conviction was then recorded.[9]
[9] Exhibit A, T-Documents, T10.
On 14 April 2010 the Bankstown Local Court placed the applicant on a bond for the offence of an assault occasioning actual bodily harm which was recorded as a domestic violence offence. A conviction was then recorded.[10]
[10] Exhibit A, T-Documents, T10.
On 15 March 2011 the Bankstown Local Court placed the applicant on a bond for the offences that he committed on 25 January 2011, these offences being resisting an officer in the execution of his duty and for the contravention of an AVO. A conviction was then recorded for each offence.[11]
[11] Exhibit A, T-Documents, T10.
DOMESTIC VIOLENCE INCIDENTS
On 7 April 2004 an Apprehended Domestic Violence Order was served on the applicant at the Sutherland Local Court.[12] Order 1 of that Apprehended Domestic Violence Order required the applicant not to assault his first wife. The circumstances before the making of the order were on 18 March 2004 an argument ensued about dinner for the evening. The applicant had informed the police officer that he remarked to his first wife: “what have you been doing all day, I come home from work I want something to eat”.[13]
[12] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
[13] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
The applicant injured his first wife by grabbing her wrists and twisting her hands which resulted in a dislocation of her middle finger on her left hand. The first wife was taken to hospital where her rings had to be cut off her finger to enable the relocation of the finger. Before the Tribunal the applicant was questioned about this incident and he confirmed that he remembered the incident remarking: I remember for a little bit. I would try to get the remote, TV remote off her and her finger, may be like, squeeze it or something and break it.[14] The recollection of the applicant was not consistent with the contemporaneous documentary material before this Tribunal. The applicant was questioned about the summonsed material disclosing that his first wife was injured when he was trying to get a hairbrush from her. The applicant answered that he could not ‘remember exactly Hairbrush or TV remote’.[15]
[14] Transcript, page 26.
[15] Transcript, page 26.
The applicant in giving evidence admitted that on 21 April 2004, that he had assaulted his first wife by biting her which left her with bite marks and a large bruise.[16] The applicant confirmed that the incident occurred in front of his daughter and was the basis of his offence of a contravention of the apprehended violence order.[17] The applicant was placed on a bond for two years for the contravention of the order.
[16] Transcript, page 27.
[17] Transcript, page 33.
The applicant was questioned about the incidents on about 26 February 2010 to 27 February 2010 which resulted in his conviction on 14 April 2010 for the offence of an assault occasioning actual bodily harm.[18] The applicant had questioned his second wife about the whereabouts of about $25 in the house which she had stated she had spent on food and groceries. The applicant then proceeded to hit his second wife with a hose on her shoulders.[19] His second wife was then six months pregnant. On the next day the applicant had hit his second wife again with the hose while she was feeding her baby.[20] The police who attended at the home observed his second wife to have bruising and marks on her arms and hands.[21] The police had sought another apprehended violence order on the basis that they held substantial fears for the safety and welfare of the victim, child and unborn baby. The applicant was questioned about these incidents, he remarked: ‘I’m really guilty’.[22] The applicant remembered that his wife went to hospital and that the incidents resulted in another apprehended violence order.[23]
[18] Exhibit A, T-Documents, T10.
[19] Transcript, pages 29-31.
[20] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
[21] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
[22] Transcript, page 30.
[23] Transcript, page 30.
The applicant was questioned about his convictions in 2011 for resisting an officer in the execution of his duty and for the contravention of the apprehended violence order. In giving evidence the applicant admitted that he agreed he had contravened the apprehended violence order. He admitted that he approached his second wife and questioned her about who she had been with and subsequently threatened to kill her as well as removing a mobile phone and home phone out of her hands as she attempted to contact the police.[24] He also admitted that he resisted his arrest by the police. A conviction was then recorded for each offence.
[24] Transcript, page 31.
The applicant was questioned about a temporary protection order that was made in 2014 by the Magistrates Court of Queensland when his second wife and four children stayed with him in Queensland. The applicant stated that he could not remember why that order was made. I have considered that it would not be fair to consider that this was an incident of domestic violence when no evidence was offered in relation to this incident.[25]
[25] Exhibit A, T-Documents, T8.
The number of violent offences perpetrated by the applicant detract greatly from any positive assessment of his character, having regard to the risk of danger to the public from this conduct.
TRAFFIC HISTORY
Evidence was placed before the Tribunal concerning the extensive traffic history of the applicant. The applicant accepted that he had a number of repeated traffic offences for speeding between 2006 and 2007 as well as between 2012 and 2014.[26] However, I accept the explanation of the applicant that one of those offences was committed by a person who drove his car.[27] The most recent offence was finalised in December 2015 before the Magistrates Court at Cleveland when he was fined $227 plus costs of court.[28]
[26] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
[27] Transcript, page 35.
[28] Exhibit A, T-Documents, T8-T9.
The number of speeding offences of the applicant detract from any positive assessment of the character of the applicant having regard to the risk of danger to the public from this conduct.
PSYCHOLOGICAL EVIDENCE
On 15 March 2011 the Bankstown Local Court in placing the applicant on a bond had required him to undergo psychiatric/psychological counselling as directed as well as take prescribed medication in accordance with medical advice from Dr Mariam Ferkh a general practitioner and the Psych Central Psychological Service.[29]
[29] Exhibit A, T-Documents, T10.
The applicant in his personal statement made on 19 March 2021 stated that he saw Ms Dover in 2011 for one session of counselling.[30] When the applicant was giving evidence, he confirmed that she saw Ms Dover for one session.[31] Later, in giving evidence the applicant gave a different account in which he remarked that he again saw Ms Dover some two or three weeks later to advise her that he did not take any medication.[32] I have unfortunately come to the conclusion that the applicant has provided a different account because he considered that it would be advantageous for him to state that he had seen Ms Dover on more than one occasion. If he had indeed seen Ms Dover on more than one occasion he would have reflected this in his personal statement. The evidence of the applicant before the Tribunal differs from his personal statement in another respect. In his personal statement the applicant stated that Ms Dover did not ask him to take medication. However, before the Tribunal the applicant stated that Ms Dover had given him some medication to assist him to relax.[33] I do not accept that the applicant has been truthful concerning his dealings with Ms Dover.
[30] Exhibit E, Applicant’s Letter dated 19 March 2021.
[31] Transcript, page 39.
[32] Transcript, page 40.
[33] Transcript, page 40.
On 25 September 2020, Mr Mahouachi, registered psychologist, gave his report in which he stated that the applicant attended him for six sessions under a mental health care plan. Mr Mahouachi reported that the reason ‘was for stress related to citizenship requirements’. In his report Mr Mahouachi remarked:
Following these sessions, in my estimation, [the applicant’s] mental health issues are not obstructing him to become a citizen. The symptoms he has experienced in the past were more circumstantial and were due to difficulties he experienced in his relationship. [The applicant] says that he is now on good terms with his partner and all of his children.[34]
[34] Exhibit G, Applicant’s email with annexures, Annexure B.
I have unfortunately come to the conclusion that the applicant had sought the sessions with the psychologist because he believed that it would advance his prospects in attaining citizenship. Mr Mahouachi was not called as a witness before the Tribunal so he could not be questioned on the conclusions in his report. It is not apparent that Mr Mahouachi had ever spoken to the victims of domestic violence or was fully informed of the circumstances of domestic violence. It is also not apparent that Mr Mahouachi was aware that the applicant had made a false declaration on his application for citizenship.
Deputy President Wright QC, a former Supreme Court Judge, in Kakar and Minister for Immigration and Multicultural Affairs provided the following useful guidance:[35]
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
[35] [2002] AATA 132 at [14].
I am not satisfied that the applicant has undertaken psychiatric/psychological counselling and taken prescribed medication in accordance with the court order. There is no documentary evidence from Dr Mariam Ferkh, a general practitioner, or the Psych Central Psychological Service to indicate that the applicant ever fulfilled this condition. On behalf of the applicant, it was submitted that the records of the Psych Central Psychological Service were only kept for seven years. There was no statement from Dr Ferkh or Ms Dover which was admitted into evidence concerning the treatment of the applicant. On the state of the evidence before me I cannot be satisfied that this condition under the court order had ever been fulfilled. I note that the applicant moved to Queensland in the same year when the court order was made. I regard the fact that the applicant did not undertake psychiatric/psychological counselling so soon after his serious acts of domestic violence as showing his failure to accept responsibility for his actions. I have already stated that I do not accept the evidence from the applicant concerning his interactions with Ms Dover.
The applicant tendered a recent medical report from his general practitioner in which the general practitioner stated that he first saw the applicant in August 2016 and that he has not been prescribed anti-depressant medication from the practice. The material before me does not contain any information concerning the medical condition, if any, of the applicant. The applicant was invited by the respondent to provide evidence of his completion of anger management courses. The fact that he has not completed such courses does not reflect well on his character.
CONSIDERATION
Domestic violence
The applicant has committed serious offences of domestic violence against his two wives. The actions of the applicant cannot be characterised or even attempted to be excused on the basis of spontaneous reactions. The applicant assaulted his first wife who received a dislocated finger as a result of his actions. I have concluded that some actions of the applicant in committing domestic violence offences were quite deliberate because the applicant assaulted his second wife who was six months pregnant with a hose on two successive days leaving extensive bruising and marks on her. His actions of domestic violence were not only physical, but he also made threats against his second wife. He at that time threatened to divorce his second wife and told her “I’m going to make sure that your mum is sent back to Lebanon’.[36] The applicant admitted that acts of domestic violence were committed in front of his children. I am not satisfied that the applicant accepts responsibility for his acts of domestic violence because he asserts that he does not remember committing those offences.
[36] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
Australian values
Deputy President Forgie in Zheng and Minister for Immigration and Citizenship[37] has observed that in an application for citizenship, there has to be consideration of whether the applicant has conducted herself or himself in a manner that accords with the values of society. Deputy President Forgie has explained how assistance can be derived from the preamble to the Act which recites that the Commonwealth Parliament recognises that persons conferred with Australian citizenship undertake to accept the obligation to uphold and obey the laws of Australia. The Australian values statement, which is incorporated in the application for citizenship, was signed by the applicant. That statement recognises that the responsibilities for citizenship include obeying Australian laws. I consider that the applicant is not of good character because whilst he has been in Australia, he has not conducted himself in a manner that accords with the values of our society. This Tribunal has clearly and consistently emphasised that domestic violence is contrary to the values of Australian society.[38]
[37] (2011) 55 AAR 94.
[38] Re Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48]; Re Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53]; Re VQLM and Minister for Home Affairs [2018] AATA 3540 at [42]; Re Karatunov and Minister for Immigration and Border Protection [2017] AATA 132 at [34]; Re Prasad v Minister for Immigration and Border Protection [2017] AATA 1506 at [32]; Re Umer v Minister for Immigration and Border Protection [2018] AATA 1630 at [54].
Failure of applicant to declare his offences
In his application for citizenship the applicant answered ‘no’ to the question of whether the applicant had been convicted of or found guilty of any offences overseas or in Australia. This respondent quite properly questioned the applicant about this false statement. The applicant was directed to his application where he answered “no” to the question of whether he had been found guilty of any offences overseas or in Australia. The applicant accepted that his answer ‘no’ was wrong. The applicant initially stated that he completed his application for Australian citizenship by himself but later asserted that he completed the application form with the assistance of another person. The applicant remarked that he could not remember the circumstances of how he completed the form.
I consider that the failure of the applicant to declare to the Department that he was before the Court for his offences, including, the contravention of an AVO indicates that the applicant is not of good character. In Lachmaiya and Department of Immigration and Ethnic Affairs,[39] Deputy President McMahon emphasised that there are “overall requirements important in the administration of immigration”. The learned Deputy President made reference to the “observance of truth in dealing with officials in migration matters” as being an important consideration in evaluating whether a person is of good character. The fact that the applicant made a false declaration in his application for Australian citizenship and his failure to give a proper explanation for making a false declaration counts strongly against him being regarded as being a person of good character.
[39] (1994) 19 AAR 148 at [154]-[155].
Character references
The applicant called Ms Taleb who gave evidence that the applicant was of good character and was not an aggressive person. Ms Taleb has stated that since 2011 the applicant has worked for her as a casual spray painter, she stated that she has never seen any signs of aggression while he was working for her company. Ms Taleb was certainly not aware of the particulars of the offences. Other persons provided references in support of the applicant but were not called as witnesses. His second wife had provided a short reference in support of the applicant by stating that he is a different person and good to her and the children. His second wife would certainly be aware of his actions of domestic violence against her while she was pregnant, but she did not mention the domestic violence committed on his first wife. I am hesitant to place some weight on this reference having regard to the fact that the applicant had previously threatened her. The other reference that was provided by his brother also stated that the applicant has changed but did not acknowledge the nature of the acts of domestic violence perpetrated upon his partners. I can only give limited weight to the references that were provided by the applicant because they do not acknowledge the actions of the applicant in committing domestic violence. None of the character references appeared to be aware that the applicant made a false declaration in his application for citizenship.
Employment
In Al Hashimi and Minister for Immigration and Citizenship,[40] Deputy President Hotop and Member Hogan, remarked that “’stable, gainful employment’ would reflect favourably on an applicant’s character”. The applicant has been employed since 2011, although this work is apparently of a part-time nature, it is to the credit of the applicant that he had this continuous employment. However, there is no evidence that he has accepted the responsibility of regularly paying child support for his children.
[40] [2012] AATA 534 at [53].
CONCLUSION
I am not satisfied that the applicant was of good character at the time of the decision of the delegate or at the time of my decision. The applicant has been found guilty of successively committing domestic violence upon two of his former domestic partners which resulted in them being taken to hospital. It is concerning that his children were present at the time of these acts of domestic violence. It is also concerning that the applicant has not taken steps to accept responsibility for his actions by engaging in rehabilitation. Further, having regard to the evidence before me, and the oral evidence of the applicant, I find that he does not possess any insight into his offending behaviour as when asked why his citizenship application was refused, he stated simply that ‘something happened’.[41]
[41] Transcript, page 16.
The applicant relied upon a statement of Deputy President McMahon in Baker and Department of Immigration and Ethnic Affairs [1995] AATA 13 at [43]; (1995) 37 ALD 744where the learned Deputy President remarked: ‘To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of 12 months or more, no matter when that conviction took place is quite unreasonable’. These remarks were directed to the consequences of a literal application of a policy which is no longer extant. My decision is not based upon that policy but upon the fact that the applicant committed an assault occasioning actual bodily harm, and a number of serious domestic violence offences (which include striking his pregnant wife with a hose on successive days), his failure to take responsibility for his actions by seeking rehabilitation, the making of a false declaration in his application for Australian citizenship, his extensive traffic history and his resisting arrest. The applicant’s controlling behaviour in the domestic setting is also of great concern, in particular the fact that he took steps to prevent his former partner from reporting his acts of domestic violence to police by preventing her from accessing a telephone. I am also concerned by the fact that in his application for Australian citizenship the applicant did not fully declare the circumstances of his compulsory military service in Lebanon.
DECISION
I affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
.................................[SGD].......................................
Associate
Dated: 3 June 2022
Date(s) of hearing: 11 May 2021 Date final submissions received: 13 August 2021 Solicitors for the Applicant: Mr Gomez
Gomez PartnersSolicitors for the Respondent: Ms Letcher-Boldt
Clayton Utz
0
8
0