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

[2023] AATA 4490

Sabri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 4490 (3 October 2023)

Division:                  GENERAL DIVISION

File Number(s):      2022/4656

Re:  Rami Saadi Sabri

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:                  Senior Member Dr Linda Kirk

Date:  3 October 2023

Place:  Sydney

The Reviewable Decision is affirmed.

.

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

Senior Member Dr Linda Kirk

CATCHWORDS

CITIZENSHIP – Application for citizenship by conferral – delegate not satisfied the Applicant was of good character – paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – CPI 15 – criminal offending - enduring moral qualities – passage of time – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Assafiri and Minister for Immigration and Border Protection [2014] AATA 35

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Grass v Minister for Immigration and Border Protection [2015] FCAFC 44

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187  

Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

SECONDARY MATERIALS

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)

REASONS FOR DECISION

Senior Member Dr Linda Kirk

3 October 2023

1. Mr Rami Saadi Sabri (‘the Applicant’) is a citizen of Iraq who was born in 1993.[1] The Applicant’s family follow the Mandean religion, and in Iraq they experienced discrimination and threats from Muslim religious groups.[2]  The Applicant arrived in Australia with his family when he was aged 13 years on 17 March 2006 as the holder of a Subclass 202 Global Special Humanitarian visa.[3]

   [1] Section 37 T-Documents, T1, 2.

   [2] Applicant’s Statutory Declaration dated 4 July 2023, [1].

   [3] Ibid, T2, 27.

2. On 6 April 2021, the Applicant lodged an application for Australian Citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[4]

   [4] Ibid, T4, 126-142.

3. On 4 May 2022, the Applicant was invited by the Department of Home Affairs (‘the Department’) to comment within 28 days on adverse information relating to his application.[5] The letter informed the Applicant that before he could be approved for Australian citizenship, the delegate must be satisfied that he is of good character under section 21(2)(h) of the Act. It noted that the Applicant’s failure to disclose his entire criminal history in his citizenship application and the offences listed in his National Police History Check Report dated 17 February 2022[6] would be considered.

   [5] Ibid, T19, 211-215.

   [6] Ibid, T1, 17.

4. On 23 May 2022, the Applicant provided to the Department written submissions and letters of support in response to the Department’s invitation to comment letter.[7] 

   [7] Ibid, T20, 224-226.

5. On 3 June 2022, the delegate refused the Applicant’s citizenship application (‘the Reviewable Decision’).[8] The delegate was not satisfied that the Applicant was of good character at the time of the decision as required by section 21(2)(h) of the Act.

   [8] Ibid, T2, 27-35.

6. On 5 June 2022, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[9]

   [9] Ibid, T1, 1-6.

7. The review application was heard in Sydney on 11 August 2023. The Applicant attended the Tribunal hearing in person and was represented.  The following persons gave oral evidence and were cross-examined at the hearing:

   ·the Applicant;

   ·Mr John Barbaro, Business Manager, ANC;

   ·Mr Behrooz Zahrooni, Zahrooni Corp

8. The following documents were before the Tribunal:

   ·Respondent’s Statement of Facts, Issues and Contentions dated 30 January 2023 (‘RSFIC’);

   ·Section 37 T-documents (T1 – T20, pp. 1 – 229);

   ·Respondent’s Tender Bundle (R1 – R17, pp. 1 – 179);

   ·Applicant’s Post Hearing Statement of Facts dated 16 August 2023;

   ·Letter by Loumis Drwish (undated);

   ·Letter by Behrooz Subbi Zahrooni (undated);

   ·Letter by Zeeshan Maher dated 12 May 2022;

   ·Letter by John Barbaro dated 16 May 2022;

   ·Letter by John Barbaro dated 31 August 2022;

   ·Letter by Mayssa Jabbouri dated 19 September 2022;

   ·Letter by Behrooz Subbi Zahrooni (undated); and

   ·Letter by Rishama Salah Chohili dated 4 October 2022.

9. The Tribunal has reviewed the evidence before it and refers to the relevant materials below.

LEGISLATIVE FRAMEWORK

The ‘good character’ test

1. The issue before the Tribunal is whether it is satisfied that the Applicant is of ‘good character’ in accordance with section 21(2)(h) of the Act which provides:

   (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (h) is of good character at the time of the Minister’s decision on the application.

   Citizenship Policy Statement and Revised Citizenship Procedural Instructions

2. The Australian Citizenship Policy Statement (‘Policy Statement’)[10] and the Revised Citizenship Procedural Instructions (‘CPIs’)[11] guide decision-makers exercising powers and discharging functions under the Act.

   [10] Australian Citizenship Policy Statement, issued 27 November 2020.

   [11] Revised Citizenship Procedural Instructions, reissued 26 February 2021 – current version dated 14 August 2022.

3. Relevant to this review application is Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (‘CPI 15’). Paragraph 1 of CPI 15 states that decision makers ‘should not apply policy inflexibly and should consider the merits of each individual case’.

4. Paragraph 3.1 of CPI 15, under the heading ‘Procedural Instruction’, states:

   Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.

   This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:

   ·consider any character issues that arise on the facts of a case;

   ·consider all relevant information;

   ·guard against bias;

   ·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

   ·be mindful that a person who may not have been of good character can become a person of good character;

   ·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.

   In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.

   The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.

5. Paragraph 3.3 of CPI 15 explains the meaning of ‘good character’ with reference to the judgment of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[12]

   Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not 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 while 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.

   [12] Paragraph 4.3 citing Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432.

6. Paragraph 3.3 also provides guidance as to the meaning of the term ‘enduring moral qualities’:[13]

   The phrase ‘enduring moral qualities’ encompasses the following concepts:

   ·   characteristics which have endured over a long period of time;

   ·   distinguishing right from wrong; and

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

   [13] Ibid.

7. It emphasises that in assessing good character it is necessary to view an applicant’s circumstances holistically:

   The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

   A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

8. Paragraph 4 of CPI 15 provides the characteristics that are generally expected to be exhibited by a person of ‘good character’:

   4. An applicant who is of good character

   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.

   As a general proposition, a person who is of good character would:

   ·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

   o   intentionally providing false personal information (such as fraudulent work experience or qualification documents) or

   o   other material deception during visa and citizenship applications;

   o   evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;

   o   knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;

   o   concealing criminal convictions;

   o   fraud against the Commonwealth such as tax fraud or Centrelink fraud;

   o   giving false names and/or addresses to police;

   ·not be the subject of any extradition order or other international arrest warrant;

   ·not be violent, involved in illegal drugs or unlawful sexual activity, and 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);

   ·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;

   ·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide

   ·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.

   Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

   It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

9. Paragraph 12 of CPI 15 sets out a framework for the consideration of any criminal offences:

   12.  Offences

   12.1 Were offences disclosed if the applicant has a criminal record?

   The current citizenship application, previous citizenship applications, visa applications and passenger card declarations may also be checked for an acknowledgement of criminal convictions. 

   Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. With convictions by overseas courts it may be necessary to take account of the independence of the judiciary in the particular country.

   The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).

   If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.

   If the applicant has committed an offence, was it serious offence? For example:

   ·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death);

   ·war crimes, crimes against humanity, genocide;

   ·crimes against children;

   ·drug trafficking (including importation and supply);

   ·people smuggling;

   ·fraud (including identity fraud);

   ·harassment or stalking;

   ·terrorist activity;

   ·extortion;

   ·illegal pornography, including child pornography;

   ·breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;

   ·offences incurring prison sentences of 12 months or more.

   Cases involving a finding of not guilty by reason of mental impairment should be discussed with CICH prior to a decision being made. 

   Minor offences may include:

   ·shoplifting;

   ·some traffic offences that have been included in a criminal record. An ‘on the spot’ fine would usually have little weight in a character assessment, unless the applicant has a history of such fines. This disregard for the law may be relevant to the assessment of character;

   ·offences that lead to a finding of guilt but no conviction or sentence. In each Australian jurisdiction there are sentencing arrangements for summary offences (heard by a judge alone) where there is discretion not to record a conviction. A judge may take into account whether the offending is trivial, the antecedents of the offender, whether the chance of rehabilitation is high or it is otherwise appropriate to not record a conviction. Refer to CPI 33 – Prohibitions on approval. 

10. Paragraph 12.2 of CPI 15 provides guidance to decision-makers in considering criminal convictions recorded against an applicant:

    12.2 Assessing the relative seriousness of the offence

    Consider the length of the sentence. Longer sentences carry more weight on a person’s character. 

    Are there any ongoing obligations such as a good behaviour bond?

    Note: Subsection 24(6) of the Act prohibits citizenship being approved in such circumstances. Refer to CPI 33 – Prohibitions on approval.

    Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information (parole reports may be on the s501 visa cancellation file, should such a file exist). In some cases, victim impact statements may be relevant.

    It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, outlaw motorcycle gangs or youth gangs.

    Consider whether there were victims of the offence?

    If so, were the victims children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant? 

    Is there a pattern of criminal behaviour?

    A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.

    Was the offence pre-meditated?

    Sentencing remarks or court transcripts may provide insight into whether or not the judge was of the view that the offence was pre-meditated. That is, the person planned the offence. Pre-meditated offences would usually incur a heavier sentence, and therefore be given more weight in the assessment of character. 

11. Paragraph 14 of CPI 15 provides a framework for decision-makers in weighing information:

    14. Weighing information

    In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:

    ·characterise the nature of any offence or behaviour

    ·is the offence serious or minor?

    ·did the offence harm other people?

    ·who were victims?

    ·is there a pattern of behaviour?

    ·was it a one off incident?

    ·were there extenuating circumstances?

    Consider any associations with people or organisations of concern.

    Consider any mitigating circumstances:

    ·length of time since the offence was committed

    ·age at time of offence

    ·behaviour since completing prison sentence or obligations to court

    ·remorse regarding their offending behaviour

    ·community support (referee reports etc)

    ·changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.

    The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.

1. Paragraph 14.1 of CPI 15 outlines ‘mitigating factors’ relevant to the assessment of good character:

   14.1 Mitigating Factors

   Could the applicant be of good character despite the adverse information?

   The discussion below expands on the points made above. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.

   What is the length of time since the offence and conviction?

   There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.

   Has the applicant accepted responsibility and shown remorse for their conduct?

   How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits. 

   What was the applicant’s age at the time the offence was committed?

   If the applicant committed the offence at a young age, the offence may be given less weight. The person may have matured and gained greater respect for upholding the law, and criminal offences from that period of life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences.

   Were there any extenuating circumstances relating to the offence?

   An offence committed as a result of duress or psychological disturbance (including disturbance caused by medications other than recreational drugs), may be given less weight. Any claims of mental illness should generally be supported by a report from a psychiatrist or psychologist. Decision-makers should discuss such cases with their supervisors and consult Citizenship Operations if necessary.

   Is there any other evidence that the person is of good character?

   Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.

   Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.

   It is open to decision-makers to contact individuals who have provided a referee report for the applicant.

   Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose. 

1. Paragraph 14.2 of CPI 15 guides decision-makers in weighing up the evidence:

   14.2 Weighing up the evidence

   The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.

   Decision-makers should consider the following matters:

   ·Would a person of good character behave the way the applicant did?

   ·What evidence is there to demonstrate that the applicant has upheld and obeyed the law?

   ·Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?

   ·Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?

   ·Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?

   ·Are there any other factors that are relevant to an assessment of the applicant’s character?

   …

   A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral. 

   If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years. Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.

2. Paragraph 14.2 refers to Tribunal’s decision in Prasad and Minister for Immigration and Ethnic Affairs where it stated: [14]

   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.

   [14] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7].

   ISSUE FOR DETERMINATION

3. The sole issue for determination by the Tribunal is whether the Applicant satisfies the ‘good character’ requirements of section 21(2)(h) of the Act.

   EVIDENCE BEFORE THE TRIBUNAL

   Migration to and early years in Australia

4. In his Statutory Declaration dated 4 July 2023, the Applicant described his early experiences in Australia:[15]

   As an Australian immigrant at the age of 13, I have faced cultural clashes due to the differences in the environment and laws.

   Coming from a non-English speaking family made it even more difficult to adapt and learn the new lifestyle or standard. As a teenager when you ask your teacher or your friends for a reasonable explanation to certain actions but you’re unable to obtain the correct answer or when one party contradicts the other, you start to follow your desired decision without questioning your actions and that’s exactly what happened with me at a younger age. Being unaware of my consequences, rights and obligations in Australia made it very difficult to choose the right group of friends and make effective and informative decisions.

   [15] Ibid, [1]-[2].

   Criminal offending in Australia

Court	Court date	Offence	Court result
PARRAMATTA DISTRICT COURT	16 August 2013	Robbery in company-SI	Imprisonment: 2 years and 3 months with a non- parole period of 9 months
PARRAMATTA LOCAL COURT	4 March 2013	Supply a prohibited drug (2 counts)	Imprisonment: 6 months
PARRAMATTA LOCAL COURT	4 March 2013	Organises/conducts/assists drug premises - first offence	Imprisonment: 6 months
FAIRFIELD LOCAL COURT	19 March 2012	Drive on road etc. while license suspended	Fine: $150; disqualification: 12 months
CAMPBELLTOWN CHILDRENS COURT	8 November 2010	Common assault-T2	Bond s 33(1)(b): 18 months supervision by juvenile justice
CAMPBELLTOWN CHILDRENS COURT	12 January 2010	Assault occasioning actual bodily harm	Bond s 33(1)(b): 18 months supervision by juvenile justice

1. The Applicant’s National Police History Check Report dated 17 February 2022 records the following convictions: [16]

   [16] Section 37 T-Documents, T9, 151-152.

   January 2010 conviction

2. On 12 January 2010, the Applicant was convicted in the Campbelltown Children’s Court of Assault occasioning actual bodily harm and he was directed to enter into a good behaviour bond for 15 months pursuant to section 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW).[17]

   [17] Respondent’s Tender Bundle, R2, 4-5.

3. The facts underlying this conviction are recorded in a NSW Police Facts Sheet dated 23 June 2009.[18] It records that the Applicant and another male student wanted to join a soccer game being played by their classmates at Fairfield High School. The students did not want the Applicant and the other male to join the game, and the Applicant attempted to take the soccer ball from the victim who held onto it and refused to allow the Applicant to take it. The Applicant ‘became angry and threatened to punch the victim if he did not give him the [soccer] ball’ and he then punched the victim a number of times to the face’. The Police Facts Sheet further states that the victim ‘attempted to fend the Applicant off but was too small to stop him’. The Applicant reportedly continued to assault the victim which resulted in his two front teeth being knocked out, and he suffered heavy bleeding from his mouth and was in severe pain. The Applicant suffered a cut to his right knuckle. Several students and a teacher intervened in the assault and pulled the Applicant away from the victim.  An ambulance was called, and the victim was taken to hospital where he underwent ‘several operations and procedures on his mouth and teeth as a result of this assault.’[19] The Applicant was sent home and suspended from the school.

   [18] Ibid, R1, 1-3.

   [19] Respondent’s Tender Bundle, R1, 3.

4. In his Statutory Declaration, the Applicant described his recollection of this incident:[20]

   Not long after my arrival, the first incident occurred between me and one of my colleagues in PE class. When I took the soccer ball from him, he got really aggressive, he laid me down and punched me so I had to punch him back to defend myself but unfortunately my punch was severe because I was underneath him. I didn't intend to harm him; I just wanted to defend or save myself from him at the time of the incident.

   [20] Applicant’s Statutory Declaration dated 4 July 2023, [3].

5. The Applicant’s evidence is that this was an ‘unintentional and spontaneous crime’ and before the incident ‘he was a normal thirteen-year-old child in Year 8 in public school’ and he ‘had no issues with the victim or with any other student at the school’.[21] The Applicant ‘apologised to the victim and his family for the harm and suffering they experienced’ and he and his family visited the victim and offered compensation, which the family declined.[22]

   [21] Applicant’s Post Hearing Statement of Facts dated 16 August 2023, [9].

   [22] Ibid, [10].

6. During cross-examination at the hearing, the Applicant was asked about the discrepancies between his account of the incident and that recorded in the Police Facts Sheet. He told the Tribunal that every time he tried to explain what had occurred, they made him out to be ‘like the monster’.[23] He agreed that he pleaded guilty to the offence on the basis of the police facts.[24]

   [23] Transcript of proceedings, 11 August 2023, 15.

   [24] Ibid, 17.

7. In his Statutory Declaration, the Applicant outlined the events that led to him being expelled from school and the consequences of his expulsion:[25]

   The principal and the teachers had estimated the severity of the injury based on the long-term damage that the victim has sustained. The school did not question the reason for the incident and the person who started the physical assault. The costs of the severity of injury had been discussed with my parents and myself, we have tried to reach out to the victim and his family to support them financially to prevent the escalation of this incident, but the school principal and teachers decided to expel me and terminate my school enrolment shortly after the incident due to severity of the offence. After the implementation of the decision my friends from Fairfield High School disowned me and my chances of finding a good school has been eliminated and my chances of meeting good friends had been narrowed.  At the age of 14 I was a school leaver with language, education and employment barriers. I felt very disappointed and upset for being unfairly treated. After the termination of my school enrolment, my opportunities for a good career path and a good employment status have been narrowed as I have not received the right amount of education and skills that can allow me to succeed in life or make the right decisions.

   [25] Applicant’s Statutory Declaration dated 4 July 2023, [3]

8. During cross-examination, the Applicant was asked whether he believes he was treated unfairly because he was expelled from school as a result of this offence. He said he does think he was unfairly treated and said that they could have just given him ‘another chance’ or been ‘more strict’ with him.[26]

   [26] Transcript of proceedings, 11 August 2023, 17.

9. The Applicant was asked whether following this incident he took the opportunity to reflect on his behaviour and to consider what path he wished to take. He stated:[27]

   Not really.  It’s just - well, at the time, I was (indistinct words) very young. I just didn’t know when to stop. And (indistinct) I didn’t know like my limits and obviously I didn’t - I didn’t think - didn’t know if I was an alcoholic. (Indistinct) and whatever I was doing and it might come back and (indistinct). Was just - I wasn’t thinking about stuff like that at all.

   [27] Ibid, 18.

10. In his Statutory Declaration, the Applicant described his experiences in finding another school following his expulsion:[28]

    I reached out to Centrelink, and I asked if I can be referred to any school so I can complete my education. Luckily, I had a good case manager who found a school in Cabramatta that could accept me for my student performance report. Open Family school had the lowest level of educational performance and careless teachers.

    The students in my class never paid any attention to the lessons given to us, their school hours were playtime and the teachers went with the flow, they could not care less about our performance. I have tried to listen and to learn to become a better version of myself. I was the only one in the class who paid attention to the teacher and tried my best to succeed but unfortunately, I was bullied and criticised by the other students day after day.

    [28] Applicant’s Statutory Declaration dated 4 July 2023, [4]-[5].

11. The Applicant described his interactions with his peers which followed him losing interest in his studies:[29]

    As a teenager with no friends and no healthy education competition I started to lose my motivation and enthusiasm towards my studies, and I started to feel lonely and isolated from the groups. I needed a sense of belonging, I wanted to belong with a group of friends. Friends that I can develop strong and healthy long-term friendships with each other to therefore eliminate the bullying and criticising behaviours towards me. Therefore, I decided to disregard my studies and think of ways to fit in with the students in the school. I started to change my values, behaviours and attitudes to please and impress the group. The group boosted my ego in an unconsciously blind way that I could not see the consequences of my actions. I felt so empowered and supported by the group in a way that no matter what happens we will go through it and solve it together. Slowly and surely, I have gained my respect and value in the school.

    [29] Ibid, [5].

    November 2010 conviction

12. On 22 August 2010 at about 10:50pm, whilst still subject to the good behaviour bond, the Applicant was involved in an incident at Macquarie Street Mall in Liverpool where he approached an unknown person and asked him for some cigarettes, which he gave him. The Applicant then started to abuse the victim and grabbed him by the shirt and threatened to hit him with a beer bottle. The victim managed to escape, and the Applicant threw the beer bottle at the victim as he ran away.[30]

    [30] Respondent’s Tender Bundle, R17, 166-167.

13. On 8 November 2010, the Applicant was convicted of Common assault-T2 at Campbelltown Children’s Court.[31]  A background report prepared by Juvenile Justice NSW recorded that the Applicant said he was ‘heavily intoxicated’ at the time of the offence. It was recorded that the Applicant denied that he had an alcohol abuse problem. He ‘appeared to lack insight into his offending behaviour and consequences’ and ‘found it difficult to articulate victim remorse and empathy’.[32]

    [31] Ibid, R7, 20-21.

    [32] Ibid, R3, 9.

    March 2013 convictions

14. A NSW Police Facts Sheet dated 12 January 2012[33] records that in July 2011, Strike Force FACE was established by Fairfield detectives to investigate a criminal group, of which the Applicant was a member, involved in the supply of prohibited drugs. The group was placed under surveillance. The Applicant was observed receiving telephone calls from the group’s ‘clients’ and packaging the drugs. On 12 January 2012, the Applicant was observed on a surveillance device answering a phone, telling the caller ‘I’ll come and see you’ and then pulling out a number of small resealable satchels, which appeared to contain small quantities of prohibited drugs, before leaving the premises. According to the Police Facts Sheet, the Applicant had been involved with the group for four years by that time.[34]

    [33] Ibid, R10, 29-35.

    [34] Ibid, R10, 32.

15. Another NSW Police Facts Sheet dated 12 January 2012[35] records an incident witnessed by police described as ‘a drug deal’ taking place in a car near Fairfield train station.[36] The other party to the transaction admitted to police that he had paid the Applicant $200 for methylamphetamine and cannabis. The Applicant was convicted at Parramatta Local Court on 4 March 2013 of two counts of Supply a prohibited drug and one count of Organises/conducts/assists drug premises.[37] A pre-sentencing report from the NSW Probation and Parole Service records that the Applicant agreed with the police facts, and offered no reason for his offending other than that he was ‘young’ and ‘did not recognise the gravity of his actions.’[38]

    [35] Ibid, R4, 11-12.

    [36] Ibid, R17, 156.

    [37] Section 37 T-Documents, T18, 209.

    [38] Respondent’s Tender Bundle, R11, 36.

16. In his oral evidence, the Applicant was asked how he became involved in dealing drugs. He said that he was ‘at a young age’ and ‘wasn’t thinking right’ and ‘one thing led [him] to another.’ He ‘[j]ust kept getting bad friends; kept hanging out with bad friends.’[39]  He told the Tribunal that he knew that what he was doing was illegal, and the reason why he committed an illegal act was because of ‘friends’.[40]  He was asked whether he blames other people for the choices he made, to which he replied:[41]

    I blame myself and my actions. I made the choices. Like I did what I did. I’m (indistinct) blaming my sister or - like just being around bad friends, that’s like led me to (indistinct). Like if there’s anyone to blame.

    [39] Transcript of proceedings, 11 August 2023, 10.

    [40] Ibid, 21.

    [41] Ibid.

    August 2013 conviction

17. On 26 September 2012, following his arrest and before he was sentenced for the supply offences, the Applicant boarded a train with two other males and stole an iPad from another passenger on the train.[42] The NSW Police Facts Sheet records that the Applicant and his friends sat in front of the victim on the train facing him, and one of them punched the victim in the head. The victim lost his vision for a few seconds and then he felt someone take his iPad. He saw the person who had taken the iPad running towards the train door. The Applicant and his co-offenders disembarked the train. All three were observed on CCTV ‘laughing and smiling as they decamped’. The victim received a laceration to his right eyebrow area, a laceration to his forehead, and redness and swelling to his right eye. [43]

    [42] Respondent’s Tender Bundle, R9, 26-28.

    [43] Ibid, R9, 28.

18. A case note recorded by the NSW Department of Corrective Services on 25 June 2013 records that the Applicant had stated that he did not think it was fair that bail was refused while he was awaiting sentencing for the offence.[44]

    [44] Ibid, R16, 63.

19. On 16 August 2013 the Applicant was convicted in the District Court of Robbery in Company – SI and sentenced to imprisonment for two years and three months with a non-parole period of nine months.[45]  In sentencing the Applicant and one of his co-offenders, Judge Townsden noted the offence carried a maximum penalty of 20 years imprisonment.[46] 

    [45] Section 37 T-Documents, T9, 151-152.

    [46] Respondent’s Tender Bundle, R14, 42.

20. At the hearing, the Applicant was asked why he described this offending in his Statutory Declaration as follows:[47]

    One of the group members got into a fight with a victim and he stole his mobile and I have been involved in the illegal offence for not stopping the fight or checking up on the victim.

    [47] Applicant’s Statutory Declaration dated 4 July 2023, [7].

21. He told the Tribunal that he dictated his statement to his fiancée who typed it for him. He denied that he had minimised the seriousness of his conduct in his Statutory Declaration.[48]

    [48] Transcript of proceedings, 11 August 2023, 26.

22. During cross-examination, the Applicant denied that he hit the victim.  He explained that this is the reason why the charges against him were ‘dropped’ to Robbery in company, to which he pleaded guilty.[49]  The Applicant told the Tribunal:

    … nothing was planned.  Well, I didn’t plan anything to harm the victim or anything like that. It’s a victim when you commit something wrong.

    [49] Ibid, 24, 27.

23. The Applicant was asked whether he agreed that his actions would have been intimidating and have frightened the victim. He did not agree. He stated:[50]

    It’s not true because I never spoke to the victim. I never like, I never came up to his face or anything like that. It’s just me being there, this is what happened. Like he got punched, (indistinct) took his iPad, and just me being there and that’s why I got the …

    [50] Ibid, 27.

    Other incidents

24. A NSW Police Computerised Operational Policing System (COPS) report dated 9 April 2016[51] records that police responded to a 000 call about a woman being ‘pushed’ from a moving vehicle. The police located a woman who said she had ‘stepped out’ of the vehicle while it was stopped at traffic lights because of an argument with her boyfriend (the Applicant) who was threatening to show intimate photographs of her to her parents, so they would know ‘what she has apparently been up to’.[52] The Applicant was asked about this report during cross-examination. He said he does remember a police officer phoning him about this incident, but there were no charges laid against him. He does not remember the officer asking him whether he had threatened to show photos to his girlfriend’s parents.[53]

    [51] Respondent’s Tender Bundle, R17, 132-133.

    [52] Ibid, R17, 133.

    [53] Transcript of proceedings, 11 August 2023, 29.

25. A COPS report dated 20 April 2017 records that the Applicant’s uncle reported that the Applicant had called him from a private number and ‘started yelling and swearing’ at him. The Applicant reportedly said he was going to his uncle’s house to sleep with his wife and threatened to ‘kill him’ if he saw him in the street.[54] The Applicant was asked about this report during cross-examination.  He said that he argued with his uncle at his mother’s funeral..[55] His uncle then phoned him about money, or his mum, and the Applicant does not remember exactly what he said, but he ‘was saying whatever thing just to get off that phone.’[56]

    [54] Respondent’s Tender Bundle, R17, 132.

    [55] Transcript of proceedings, 11 August 2023, 29.

    [56] Ibid, 30.

1. A COPS report dated 18 July 2019 records that a male, who had been friends with the Applicant’s girlfriend for four years, made a complaint about the Applicant to police.[57] It records that the male had lunch with the Applicant’s girlfriend, and she uploaded a photo of them to Instagram. The Applicant contacted the male through Facebook Messenger, and they agreed to meet up to discuss the situation. When the male arrived at the agreed location, the Applicant is reported to have thrown a brick at him from a balcony of a unit.[58] The Applicant was asked about this report during cross-examination. He denied this incident occurred. He said that his then girlfriend was being around a ‘bad group of people’, and she did not want to be told what to do by him and ‘it didn’t work out’.  He said he had ‘better things to worry about … [and] to focus on.’[59]

   [57] Respondent’s Tender Bundle, R17, 130.

   [58] Ibid, 131.

   [59] Transcript of proceedings, 11 August 2023, 31.

   Responsibility and remorse for offending

2. The Applicant’s evidence is that he has accepted responsibility and showed remorse for his past conduct.[60] He has ‘strongly expressed his determination and resolve to keep away from trouble and not to go back to prison ever again.’[61] 

   [60] Applicant’s Post Hearing Statement of Facts dated 16 August 2023, [14].

   [61] Ibid, [19].

3. In his Statutory Declaration, the Applicant stated:[62]

   I acknowledge my actions and acts in the past have had a severe impact on my life.  I accept the consequences of those actions as I look forward to moving on with my life.

   I am remorseful for those poor and selfish choices that have led me on the wrong and stray (sic) path. I was misguided and failed to reach out for help and direction or take advice from those who wanted my best interest and help me succeed in life.

   I recognise the impact and severity of the pain that those actions have caused my family and those that care and love me. I have a strong and loved family who always remain together. I feel I have disrespected their care and love.

   …

   I recognise that I have mistreated and disrespected the laws of this beautiful nation that is (sic) given me more than I could ask for.

   [62] Applicant’s Statutory Declaration dated 4 July 2023, [14]-[16], [18].

4. The Applicant claims that since the time of his first offence when he was aged 13, ‘he has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of his life are less indicative of his current character.’[63]

   [63] Applicant’s Post Hearing Statement of Facts dated 16 August 2023, [20].

   Time in gaol

5. In his Statutory Declaration, the Applicant described how he felt when he was in gaol:[64]

   I felt when I was in prison, like I was just buried, in a dark room with my loud thoughts and my life flashing in front of me waiting for that judgement day to come and hoping for a good outcome or perhaps a second chance to make things right.  I have questioned myself every minute while I was there, was it worth risking my life and my name to be part of this group?

   I asked myself if I have gained anything from this group besides being dragged into prison and causing pain to myself and my loved ones.

   [64] Applicant’s Statutory Declaration dated 4 July 2023, [9]-[10].

6. In his oral evidence at the hearing, the Applicant described his behaviour in gaol:[65]

   I just kept things to myself. I just tried not to get involved too much with others’ business, and I tried to - every time I used to get (indistinct) I used to go ahead and just find a job and just serve my time and stay busy.

   [65] Transcript of proceedings, 11 August 2023, 11.

   Rehabilitation

7. The Applicant’s evidence is that he undertook ‘all the programs/courses which address risk factors relating to his offending’ while in custody.[66]  He has ‘behaved well since being released from prison’ and has ‘rehabilitated himself and made a conscious effort to obey and uphold Australian laws.’[67] He has ‘relocated and moved away from bad influences [and] disassociated himself from all his former peer groups.’[68]

   [66] Applicant’s Post Hearing Statement of Facts dated 16 August 2023, [18].

   [67] Ibid, [16], [18].

   [68] Applicant’s Post Hearing Statement of Facts dated 16 August 2023, [18].

8. In his Statutory Declaration the Applicant stated:[69]

   After I came out of custody, I built a solid wall between my shameful and embarrassing past from my flourished present. I have fully removed myself from my group of friends and I have distanced myself from any illegal activities and/or gatherings. My family and I relocated to Liverpool to stay closer to my cousins and the community. My friendship circle is oriented towards family, cousins and one friend from the Mandean community. I started to work with my brother-in-law in the NBN installation business.  I ended up opening my own business for NBN installation, however, the business went bankrupt.

   [69] Applicant’s Statutory Declaration dated 4 July 2023, [12].

9. The Applicant’s evidence is that during the past decade he has ‘progressively and consistently worked on [himself] to live a better future.’[70] Since early 2022, he has been employed as a full-time permanent HR truck (delivery) driver for ANC Delivers.[71] In March 2022, he commenced a Certificate IV in Building and Construction.[72] He will soon complete this certificate, after which he plans to enrol in a Diploma.[73]

   [70] Ibid, [13].

   [71] Transcript of proceedings, 11 August 2023, 33-34.

   [72] Section 37 T-Documents, T20, 220; Applicant’s Statutory Declaration dated 4 July 2023 [13]; Applicant’s Post Hearing Statement of Facts dated 16 August 2023 [13]; Transcript of proceedings, 11 August 2023, 32.

   [73] Transcript of proceedings, 11 August 2023, 33.

10. In his Statutory Declaration, the Applicant stated:[74]

    I have grown to understand the values and traditions and become a better person not only for the community and society but for myself so that I can hold my head up high and say yes, I acknowledge my past but also have been given a second chance.

    [74] Applicant’s Statutory Declaration dated 4 July 2023, [19].

    Family members

11. The Applicant’s mother was diagnosed with terminal breast cancer and was told she had only a few years to live.[75] The Applicant and his family did not cope well with this news, which he described as ‘one of the most painful life experiences that anyone could live through at a younger age.’[76] The Applicant had ‘never felt so useless in [his] life more than the moment that [he] saw [his] mother suffering from the pain and not being able to do anything to prevent it.’[77]

    [75] Ibid, [7].

    [76] Ibid.

    [77] Ibid.

12. Following his mother’s death, the Applicant ‘has been playing a major role in the (sic) providing care, support and attending to the needs of his father who has been going through major medical issues, and his younger brother, who has become a person with special needs.’ In addition to providing financial support to his family, ‘he has been doing all the house chores of the family, including cooking, cleaning, laundry, shopping and transportation.’[78]

    [78] Applicant’s Post Hearing Statement of Facts dated 16 August 2023, [12].

13. In his Statutory Declaration, the Applicant described the care he provides to his father and his 17-year-old brother:[79]

    After the death of my mother my family collapsed. My father’s health deteriorated and my younger brother experienced a physiological and emotional trauma as a result of my mother’s death. Until now he is incapable of supporting himself both mentally and physically, and his learning capacity and performance has degraded ever since. My role at home has changed, I am now the person responsible for cooking, cleaning, grocery shopping and paying for the services and utilities. I am also the person providing physical assistance mental support to both my father and my brother.

    [79] Applicant’s Statutory Declaration dated 4 July 2023, [12].

    Plans for the future

14. In his Statutory Declaration, the Applicant described what he would like to achieve in the future:[80]

    To become a better role model for my brother, my nephew, and my own future kids. I want to thrive and succeed in this country.  I want to become a better example (sic) someone who is respected and loved for his humble and gently (sic) kind heart and for his giving and caring character.

    I want to lead a life that is not limited by my past, but one that is a lesson to propel me into my future success and contribute to the economy and society in the best shape and version of myself.

    [80] Ibid, [20]-[21].

15. During his oral evidence, the Applicant said that he wants to put a deposit on a house and that he and his fiancée of two years will get married.[81] He agreed that he would take the opportunity to talk to young people in his community and tell them about the importance of abiding with Australian law.[82]

    [81] Transcript of proceedings, 11 August 2023, 33.

    [82] Ibid, 12.

    Grant of Australian citizenship

16. The Applicant’s evidence is that Australian citizenship ‘means a lot to [him]’ and he ‘wants to pay back the favours Australia bestowed on him and his family since their arrival in Australia as refugees.’[83] The Applicant told the Tribunal:[84]

    It means a lot to me, to be honest with you. It’s just all my family are Australian citizens (indistinct) and it’s just what - what this country has provided for me and my family, it’s just - like I wish I can - I can pay this country any - any (indistinct) I’m more than happy. I’ll have my first name down as a nominee, or anything you want, but it’s just, I - it means a lot. It means a lot, yes.

    Supporting evidence

    [83] Applicant’s Post Hearing Statement of Facts dated 16 August 2023, [24].

    [84] Transcript of proceedings, 11 August 2023, 31.

    John Barbaro, Business Manager, ANC

17. Mr Barbaro provided two reference letters for the Applicant dated 16 May and 25 August 2022 and gave oral evidence at the hearing. Mr Barbaro stated that he is the Business Manager for a company to which ANC supplies transport and delivery services, and he manages all fleet and driver matters. At the date of his second letter, Mr Barbaro had known the Applicant for almost 12 months.  He has weekly dealings with the Applicant, either in person or by phone, in relation to any operational matters. The Applicant has demonstrated to Mr Barbaro that he ‘completes his responsibilities with a high level of loyalty, respect and punctuality’ and ‘performs his duties to 100% expectation and abilities and shows his colleagues, customers and supervisors the respect, kindness and attention that makes him an extremely valued member of the fleet.’  Mr Barbaro stated that he appreciates that the Applicant ‘has been guilty of convictions in the past’ and ‘he is now in complete understanding of what he has been responsible for in his younger years and has greatly learned from these experiences.’ These ‘past acts’ by the Applicant ‘occurred at a time when he lacked the maturity, responsibility and respect that he has now gained, and at a time when he was influenced by people who are now no longer part of his life.’

18. In his oral evidence at the hearing, Mr Barbaro told the Tribunal that he interacts with the Applicant on a daily basis.[85]  He is aware that the Applicant ‘has a past’ but he is unaware of the details, and the Applicant has been ‘very up front and honest’ with him.[86] In the 18 months to two years that he has interacted with the Applicant, he has found him to be ‘very, very trustworthy’.[87]

    [85] Ibid, 35.

    [86] Ibid, 35-36.

    [87] Ibid, 36.

    Behrooz Zahrooni, Director Zahrooni Corp

19. Mr Zahrooni provided two undated reference letters and gave oral evidence at the hearing. In his second letter, he stated that he has known the Applicant for nearly five years since he started working for his company. He stated that he has found the Applicant ‘to be a kind, earnest trustworthy, and hardworking man’ and he ‘has always been punctual’. He has ‘no doubt’ that if the Applicant’s ‘application for permanent residency is approved’ he ‘will continue to give back to his local community and to the wider national one.’

20. In his oral evidence at the hearing, Mr Zahrooni told the Tribunal that he has known the Applicant for six years and he employed him for ‘a good two to three years’ at his company which did work for the NBN.[88] He told the Tribunal that the Applicant worked full-time and he left the company when it was ‘downsized’ and that he did not have the requisite ticket for construction work.[89] The Applicant was always punctual, did the right thing and knew how to treat his fellow employees. He knows that the Applicant has ‘done wrong before’ but this was ‘many, many years ago’, and he has ‘never seen him do anything bad’ and he ‘deserves a second chance.’[90] 

    [88] Ibid, 38, 39.

    [89] Ibid, 39.

    [90] Ibid, 38.

    Loumis Drwish, Applicant’s fiancée

21. Ms Drwish provided an undated letter of support, in which she wrote that she met the Applicant at a community youth gathering ‘a few years ago’, after he ‘reach[ed] out’ to her on Instagram in April 2021.  She observed his ‘mature behaviour and perspective’ and he gave her the ‘impression of a good person, caring, respectful and honest.’ Their friendship ‘started to develop’, their ‘life goals started to align’, and they took their friendship ‘to another level of being a girlfriend and boyfriend’. Their relationship ‘became official recently’ and she has introduced the Applicant to her family.

22. The Applicant has opened up to Ms Drwish ‘about his past’ and ‘how it has affected his self-development and progression’. He is an ‘optimistic person’ and is ‘trying his best to shift the negative perspective of him in the Australian community and society into positive prospective (sic).’ He is ‘also trying to be the greatest role model to his younger brother so he can overcome his psychological trauma after the death of his mother.’

23. Ms Drwish’s family ‘loved’ the Applicant’s ‘character and behaviour’ and he showed respect and love for them. Her parents ‘could not believe’ that the Applicant had ‘committed any of this (sic) offence’ as ‘they had not seen any obstacles or concerns’ from his behaviour. The Applicant ‘was very embarrassed’ to tell her parents about his ‘past actions’ and he tried to explain to them that ‘he has made the wrong choice as a younger teenager in which it has resulted in serious consequences.’  He is ‘not proud of his previous action and he feels very ashamed and embarrassed.’  Ms Drwish stated she can confirm that the Applicant is ‘definitely not a threat to the Australian community or society’, and he ‘is a man that made a mistake at a younger age due to his unawareness and lack of knowledge as an immigrant.’  She stated that it is important to ‘choose our friends wisely’ and this is ‘the lesson’ that the Applicant ‘has learned the hard way.’ He has ‘met the criteria of self-development and he became the perfect fit of a good Australian character.’

    Zeeshan Maher, Operations Manager, ACTA College

24. Mr Maher provided a reference letter dated 12 May 2022, in which he confirmed that the Applicant had been a student at ACTA College since March 2022 and enrolled in the Certificate IV in Building and Construction. The Applicant’s ‘attendance has been constant since the beginning of the course’ and he ‘communicates well in the class and respects his fellow classmates and the class trainer.’ He is ‘working hard to complete this qualification’ to help him gain employment in the building and construction industry.

    Mayssa Jabbouri, Compliance/Administration, ACTA College

25. Ms Jabbouri provided a reference letter dated 19 September 2022, in which she confirmed that the Applicant had been a student at ACTA College for more than 12 months and enrolled in a Certificate IV in Building and Construction. She wrote that the Applicant had disclosed to the management team that he had a criminal record ‘for an incident that happened almost 10 years ago.’ The College had encouraged the Applicant ‘to continue focusing on his future and not let his past hinder his abilities to improve himself.’  She stated that the College has found that the Applicant ‘is a dedicated, well behaved and punctual student and he is trying his best to shape his future and not letting his past actions and previous life situations stand in his way of moving forward and excelling in his life.’

    Rishama Salah Chohili, Religious Leader, Sabian Mandean Community

26. Mr Chohili provided a letter of support dated 4 October 2022. He stated that he understands that the Applicant had been in prison about nine years ago for offences he committed. He confirmed that the Applicant ‘comes from a good family, well raised and well behaved.’ However, his ‘wrong decisions and selection of friends as a young adult have negatively impacted his life.’  The Applicant ‘realised his wrongdoing behaviour and attitude’ and ‘decided to move away from the environment that he once associated with’. He began to associate with the Mandean community, and ‘he participated in youth events and education lectures.’ He ‘had the courage to stand up in front of the education lecture to talk about himself and to give advice to young adults not to follow his past path.’  He encouraged them ‘to concentrate on their career path and to stay away from the wrong group of friends as they would destroy their lives like it destroyed his.’  Mr Chohili can see the Applicant’s ‘enthusiasm for achieving his lined up goals and for becoming the best version of himself.’

    CONSIDERATION AND REASONS

27. The sole issue for determination by the Tribunal is whether the Applicant satisfies the requirements of section 21(2)(h) of the Act which requires it to decide whether he is of ‘good character’.

    The meaning of ‘good character’

28. The term ‘good character’ is not defined in the Act. The Full Court of the Federal Court has found the term is to be interpreted broadly:[91]

    [91] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, [60].

    … Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…

29. There have been numerous Federal Court decisions on the meaning of ‘good character’ and the application of the good character test. The classic exposition of the meaning of this term is found in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (‘Irving’).[92] Lee J stated:[93]

    [92] (1996) 68 FCR 422.

    [93] Ibid, [431]-[432].

    Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review 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.

30. The question of whether a person is or is not of ‘good character’ is primarily an issue of fact.[94] As Davies J remarked in Irving:[95]

    The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.

31. In Minister for Immigration and Ethnic Affairs v Baker, the Full Federal Court stated:[96]

    The words “good character” in this section should, as Lee J pointed out in Irving (at 431-432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.

1. In Fenn and Minister for Immigration and Multicultural Affairs,[97] Deputy President Breen discussed the character requirement for citizenship:

   The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home … The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

2. In determining whether it is satisfied that an applicant for citizenship is of ‘good character’, the Tribunal is ‘entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act’.[98]

   [94] Irving v Minister for Immigration Local Government and Ethnic Affairs at [424] per Davies J (with whom Nicholson J concurred).

   [95] Ibid, [427]-[428].

   [96] (1997) 73 FCR 187 at [197].

   [97] [2000] AATA 931, [8].

   [98] Drake v Minister for Immigration and Ethnic Affairs(1979) 46 FLR 409 at 420 per Bowen CJ and Deane J.

3. Paragraph 14.2 of CPI 15 refers to the decision in Prasad and Minister for Immigration and Ethnic Affairs,[99] in which the Tribunal explained:

   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.

   Is the Applicant of ‘good character’?

   [99] [1994] AATA 326, [7].

   Criminal offending

4. Based on the evidence before it, the Tribunal finds for the reasons which follow, that given the seriousness of the offences for which the Applicant has been convicted, it cannot be satisfied that he has the ‘enduring moral qualities’ characteristic of ‘good character’.

5. Paragraph 4 of CPI 15 outlines particular categories of offences which, by their nature, are considered more serious. Specifically, it recognises that an applicant of good character would not be violent, and not cause harm to others through their conduct. The Applicant has been convicted of several violence-related offences, including Assault occasioning actual bodily harm, Common assault and Robbery in company. The Tribunal finds that the Applicant’s criminal behaviour is contrary to Australian societal values and that his offending is serious.

6. Paragraph 12.2 of CPI 15 recognises that a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that an applicant for citizenship may not ‘uphold and obey’ the law if citizenship is conferred on them. The Applicant’s offending from June 2009 until he was imprisoned in August 2013 displayed a pattern of behaviour involving violent and aggressive behaviour, including against a minor aged child. Given the seriousness and the frequency of the Applicant’s offending, the Tribunal cannot be satisfied that he will uphold and obey the laws of Australia should his application for citizenship be approved.

   Mitigating factors

   Acceptance of responsibility and remorse for conduct

7. Paragraph 14.1 of CPI 15 recognises the relevance of an applicant for citizenship accepting responsibility and showing remorse for their conduct to an assessment of ‘good character’. The evidence before the Tribunal is that the Applicant has not shown remorse, has not taken responsibility for his criminal offending, and continues to deny that he acted in the manner recorded in the Police Facts Sheets relevant to his offending.

8. The Applicant’s description in his evidence and submissions to the Department and the Tribunal of the circumstances that led to his first conviction as a minor, being Assault occasioning actual bodily harm, indicates that he has misrepresented what occurred and minimised the seriousness of his offending. The NSW Police Facts Sheet describes the Applicant and another boy attacking a classmate who was smaller than them because he would not give them a soccer ball. The Applicant pleaded guilty to the offence on the basis of the police facts, however in his evidence to the Tribunal, he claimed he was acting in self-defence when he assaulted the victim.  His failure to take responsibility for his offending and lack of remorse for his actions more than a decade after the event indicates that he has not taken responsibility for the crime he committed as a minor, and that he seeks to blame the victim for his offending. Furthermore, the Applicant’s contention that he was treated unfairly by his school when it expelled him for this offending demonstrates his failure to appreciate the seriousness of his conduct and his refusal to accept responsibility. These matters weigh strongly against a finding that the Applicant is a person of good character as he denies responsibility for his criminal behaviour more than 14 years later, blames the victim for his actions, and believes the decision to expel him from school was unfair.

9. The Applicant’s conviction for two counts of Supply a prohibited drug and one count of Organises/conducts/assists drug premises for which he was sentenced to six months imprisonment in March 2013, is not mentioned in the Applicant’s Statutory Declaration or in his submissions in response to the Department’s invitation to comment. The Police Facts Sheet records that the Applicant had been a long-standing member of the criminal group that was under surveillance by police, and that he had been observed to be actively engaged in the supply of methylamphetamine and cannabis. The fact that the Applicant omitted these serious offences from his Statutory Declaration and submissions indicates that he has not taken responsibility for these offences. His oral evidence confirmed that he knew his actions were illegal, but he nevertheless committed these offences because of ‘bad friends’, thereby suggesting that had he not associated with these people, he would not have offended. Whilst more than a decade has passed since the Applicant was convicted of these offences, the Tribunal cannot be satisfied that he is presently remorseful for this criminal behaviour or that he appreciates the serious harm caused by such offending to individuals and the community.

10. In relation to his conviction in August 2013 for Robbery in company, the Tribunal also cannot be satisfied that the Applicant has taken responsibility for his actions or appreciates the seriousness of this offending. In his Statutory Declaration, he described this offending as ‘not stopping the fight’ between the victim and his co-offender, and not ‘checking up on the victim’. He appears to mistakenly believe that Robbery in company is not as serious an offence as Robbery,[100] and claims that because the offending was not planned and he did not speak to or physically harm the victim, that his contribution to the offending was not significant. The Applicant does not accept that his behaviour would have intimidated and frightened the victim. Despite the fact this offending occurred more than a decade ago, the Applicant presently minimises the seriousness of his offending and fails to appreciate the psychological impact of his actions on the victim.

    [100] Both the NSW Sentencing Bench Book and R v Murchie (1999) 108 A Crim R 482 at [20] indicate that an offence of Robbery in company is of equivalent seriousness to that of Armed Robbery. The relevant sections of the Crimes Act 1900 (Cth) provide that while the offence of Robbery is liable for a term of imprisonment for 14 years (s 94), Robbery in company is liable for a term of imprisonment for 20 years (section 97).

11. The Applicant’s downplaying of his criminal behaviour, and his apparent inability or unwillingness to appreciate that his violent and threatening actions directed towards his victims is unacceptable, indicate that he is not a person who takes responsibility for his behaviour and its impact on others. The Tribunal therefore cannot be satisfied that the Applicant’s present attitude towards his past offending indicates that he possesses the ‘enduring moral qualities’ characteristic of a person of ‘good character’.

    Length of time elapsed since the offences were committed

12. Paragraph 14.1 of CPI 15 recognises that in the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is of good character. In some very serious cases, it may never be possible for this state of satisfaction to be reached.[101]

    [101] Part 14.1, CPI 15.

13. Although it has been more than a decade since the Applicant’s last recorded conviction in August 2013, there is no ‘rule of thumb’ for establishing how much time must pass for a person to demonstrate that they are now of good character.[102] The Tribunal acknowledges that the absence of any evidence of any further criminal charges since the Applicant’s release from gaol in February 2014 weighs in his favour. However, the weight to be attributed to this factor must be moderated by the fact that the Applicant was subject to parole conditions until 26 August 2015, which would have had a continued deterrent effect on his behaviour for the period they were in force. Furthermore, as outlined above, the Applicant clearly does not appreciate the seriousness of his offences or the impact they would have had on his individual victims and the wider community, which is relevant to assessing whether sufficient time has elapsed for the Tribunal to be satisfied that he is now a person of good character.

    [102] Ibid.

14. The Tribunal does not consider that sufficient time has elapsed for it to be satisfied that the violent offences the Applicant committed in 2009 and 2013, and the drug supply offence he committed in 2012, were out of character. In making this finding, the Tribunal has had regard to the seriousness of the Applicant’s criminal conduct. The Tribunal notes that paragraph 14.1 of CPI 15 provides that in determining the period of the enduring/lasting moral qualities of an applicant, the nature of the offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. In Assafiri and Minister for Immigration and Border Protection, Senior Member Toohey stated that the passage of time since the applicant’s offending is not itself demonstrative of their ‘enduring moral qualities’:[103]

    Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.

    [103] [2014] AATA 35, [67].

15. In relation to the Applicant’s conviction in August 2013, his evidence to the Tribunal is that he pleaded guilty after the original charges were ‘dropped’ to Robbery in company. The Tribunal does not accept this evidence for reason that Robbery in company carries a maximum penalty of 20 years imprisonment which is indicative of the seriousness of the offence. The fact that the Applicant committed the robbery ‘in company’ with two co-offenders is an aggravating rather than a mitigating factor relevant to the offence. He also refuses to acknowledge or does not understand that the intimidation of the victim and the psychological harm that results from Robbery in company is as significant as the deprivation of the victim’s property. The Applicant’s evidence is another indication of his attempt to minimise the seriousness of his offending, and his refusal to take full responsibility for his criminal behaviour.

16. Relevant to the Tribunal’s assessment of whether a sufficient period of time has elapsed since the Applicant’s offending is his inability or unwillingness to appreciate its impact on his victims. The Applicant clearly appreciates the consequences of his offending for himself, particularly on his educational and work opportunities, and its impact on his family. However, he demonstrates little empathy for his victims or understanding of the consequences of his actions on them. This shows his lack of insight into his offending and indicates that he has not reached the level of maturity he claims to have achieved in the past decade. That the Applicant has not yet taken responsibility for his offending nor appreciated its effect on his victims indicates that more time is necessary for him to accept that his behaviour was criminal, consistently with what would be appreciated by a person of good character.

17. The Tribunal cannot be satisfied that the Applicant is a person of good character despite the passage of a decade since his most recent conviction. The serious nature of the Applicant’s criminal behaviour, coupled with his reluctance to accept responsibility for his actions, are such that the Tribunal finds that the passage of this time is insufficient for it to be satisfied that the Applicant has demonstrated the ‘enduring moral qualities’ associated with ‘good character’.

    Age at the time of the offences

18. Paragraph 14 of CPI 15 recognises that if an applicant offended at a young age, the offence may be given less weight, but this will depend on the nature of the offending and any subsequent offences.[104] The Applicant was convicted of his first offence in January 2010 when he was a minor aged 16 years. His most recent offence, Robbery in company, was committed in September 2012 and he was convicted in August 2013. The Applicant was an adult at the time of his most recent offending demonstrating that him growing older did not enhance his maturity nor temper his propensity to offend. The Tribunal therefore cannot be satisfied that the Applicant has exhibited the ‘enduring moral qualities’ associated with ‘good character’.

    [104] Part 14.1, CPI15.

    Behaviour since completing obligations to the court

19. Paragraph 14 of CPI 15 recognises the relevance of an applicant’s behaviour since completing any obligations to the court relevant to their convictions. Although the Applicant has not been charged or convicted of any further offences in the eight years since his parole obligations ceased in August 2015, there have been numerous complaints made to the police about his behaviour. The fact that the Applicant has not been charged with any offences for a period of eight years indicates that he is managing to better control his anger and aggression, which weighs in favour of a finding that he is a person of good character.

    Changes in the Applicant’s life

20. Paragraph 14 of CPI 15 encourages decision-makers to have regard to any positive changes in the life of an applicant for citizenship since their offending. The Applicant’s evidence is that he was employed full-time at Zahrooni Corp for two to three years, and he operated a NBN installation business until he became bankrupt. Since early 2022, the Applicant has been a contracted driver with ANC where he is well-regarded. He has been enrolled in a Certificate IV in Building and Construction since March 2022, and when he completes the requirements of this course he will enrol in a Diploma. The Applicant also has been involved with the Mandean community and participated in its youth events and education lectures. In addition, he has provided daily care and support for his father and 17-year-old brother.

21. The Applicant’s employment, his undertaking of study, and his positive engagement with the Mandean community, and daily assistance to his father and brother, indicate that he is involved in work and other activities that will assist him to develop the characteristics of a person of good character. Although there is evidence before the Tribunal which indicates that the Applicant has made positive changes in his life by pursuing education and employment, these changes are very recent. Whereas the Applicant is on the right path towards achieving his career and personal goals, the period of time during which this has occurred is too limited for the Tribunal to be satisfied that he has made permanent changes to his life to demonstrate the ‘enduring moral qualities’ associated with ‘good character’.

    Other evidence demonstrating ‘good character’

22. The Applicant provided character references attesting to his employment activities, his studies, and to his resolve not to re-offend and pursue his life goals.  Whereas the Tribunal accepts that the statements made by the persons who provided these references were genuine, the Tribunal is not satisfied they are fully aware of the nature and extent of the Applicant’s criminal offending. Given the Applicant’s mischaracterisation of his offending in his statements to the Department and evidence to the Tribunal, it is unlikely that the Applicant’s referees have an accurate understanding of his offending. Accordingly, the Tribunal has placed limited weight on these references, particularly that provided by his fiancée, Ms Drwish, whose evidence cannot be regarded as impartial, in assessing whether the Applicant has demonstrated the ‘enduring moral qualities’ associated with ‘good character’.

    CONCLUSION

23. The grant of Australian citizenship is a privilege not bestowed lightly.[105] In determining whether the Applicant is of good character for the purposes of section 21(2)(h) of the Act, the Tribunal is required to reach an ‘affirmative belief’ that the Applicant is a person of good character.[106] There is insufficient evidence before the Tribunal for it to reach an affirmative belief that the Applicant is of good character. Despite more than a decade having passed since the Applicant’s most recent offending, his offences were serious, and some  involved actual or threatened violence, including against a minor child.

    [105] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].

    [106] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574; (2019) 165 ALD 39, [55].

24. There are some mitigating factors weighing in the Applicant’s favour including him working full-time, providing assistance and support to his father and brother, undertaking study, and involving himself in youth activities organised by the Mandean community. However, these positive factors are outweighed by the seriousness of the Applicant’s past offending, his ongoing refusal to take full responsibility for his criminal behaviour, his lack of remorse, and his failure to appreciate the seriousness of his crimes and their impact on his victims and the community.

25. Having considered the Applicant’s circumstances and weighing the available evidence, the Tribunal is unable to make a positive finding of ‘good character’ in relation to the Applicant. Accordingly, the Tribunal finds that the Applicant does not satisfy section 21(2)(h) of the Act.

26. This conclusion does not preclude the Applicant from making another application for citizenship in the future. It may be that with the passage of more time, he will be able to demonstrate that he does meet the ‘good character’ requirement for the grant of Australian citizenship.

    DECISION

27. The Reviewable Decision is affirmed.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

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

Associate  

Dated: 3 October 2023

Date(s) of hearing:	11 August 2023
Advocate for the Applicant:	Dr M. Al-Nakeeb, Al-Nakeeb Immigration and Education Services
Solicitors for the Respondent:	S. Roberts, Mills Oakley