Samhat and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 3027

Samhat and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3027 (22 August 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2884

Re:Mohamad Samhat

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:22 August 2018

Place:Sydney

The decision under review is affirmed.

......................[sgd]..............................................

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant of good character – serious criminal offence – history of aggression – mitigating factors – Tribunal not satisfied reasonable amount of time has passed – applicant found not to be of good character for the purposes of citizenship legislation – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24, 52

CASES

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

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

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

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Senior Member A Poljak

22 August 2018

1. Mr Mohamad Samhat, the applicant, is a citizen of Lebanon. He first arrived in Australia on 2 April 2006, and is currently the holder of a BB155 resident return visa granted on 16 September 2013.

2. On 1 February 2016, the applicant lodged an application for Australian Citizenship by conferral (“Citizenship application”) under section 21 of the Australian Citizenship Act (2007) (Cth) (“the Act”). The applicant disclosed his criminal history in the Citizenship application.

3. On 18 October 2016, a delegate of the Minister for Immigration and Border Protection (“Minister”) wrote to the applicant informing him that there was information before the Department indicating that he may not be of good character for the purposes of his citizenship application, specifically, the offence of assault occasioning actual bodily harm listed in the applicant’s National Police Checking Service report (“procedural fairness letter”). The applicant was invited to comment on the adverse information and to provide additional evidence that may assist his claim to be of good character.

4. In response to the procedural fairness letter, the applicant submitted a character reference on 7 November 2016.

5. On 4 May 2017, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 21(2)(h) of the Act (“the decision”). This is the decision under review in these proceedings.

6. The issue before the Tribunal in these proceedings is whether it is satisfied that the applicant is of good character in accordance with subsection 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

7. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

8. Subsection 24(1) of that Act provides that 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. Section 52 permits a person to make an application to the Tribunal for review of the decision under section 24 to refuse to approve the person becoming an Australian citizen.

9. The Act relevantly provides, at subsection 21(2)(h), that a person is eligible to become an Australian citizen if the Minister “is satisfied that the person is of good character at the time of the Minister’s decision on the application”.

   DEFINITION OF ‘GOOD CHARACTER’

10. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which came into force as of 1 June 2016 (“the Policy”). Further guidance is provided by the Australian Citizenship Instructions (“the ACIs”), dated 1 July 2014, which detail operational instructions and supplements the policy guidance provided in the Policy.

11. The role of the Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

12. As to the definition of good character, the Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [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…

13. The Policy states that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour as being a manifestation of their essential characteristics.

14. The Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevantly, a person of good character would, inter alia:  respect and abide by the law in Australia and not cause harm to others through their conduct.

15. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in citizenship applications:

    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. (Emphasis added)

16. That then leaves the question of mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Policy, the Tribunal is to weigh up certain factors, applying community standards.

17. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant has; the amount of time that has lapsed since offending; whether the applicant has demonstrated that he can uphold and obey the law; whether he has accepted responsibility and shown remorse for his conduct; and any extenuating circumstances relating to the offences.

    CRIMINAL CONDUCT

18. On 29 January 2013, the applicant was convicted in the Kogarah Local Court of the offence assault occasioning actually bodily harm (“the criminal offence”) and directed to enter into a good behaviour bond for 2 years pursuant to section 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which commenced on 29 January 2013 and ended in January 2015.

19. The New South Wales Police Facts Sheet reveals the details of the offence, which occurred on 5 December 2012. In summary, the victim attended the applicant’s unit to serve a small debt claim on him for unpaid work undertaken by the victim for the applicant’s cleaning business. At the time of attendance, the applicant was in his unit with his wife, Mrs Moustapha. The victim handed the small debt claim to Mrs Moustapha when she answered the door and the victim then proceeded to leave the vicinity. Having been alerted to the paperwork by his wife, the applicant followed the victim to the foyer, “at this time, the [applicant] has punched the victim in the back of the head causing immediate pain, but no injuries”. The victim was holding a digital camera and was taking photos of the applicant. The applicant has then attempted to grab the camera. During the struggle for the camera, the applicant called out to his wife to call the police. “The struggle continued and the [applicant] has punched the victim a few times to the head area. The victim has attempted to get away from the [applicant], with the punches continuing”. The victim ran away from the applicant towards his vehicle and applicant chased after him, picking up a 70 to 80 cm piece of laminated timber and yelling abuse. While running, the victim called ‘000’.

20. In these proceedings documents were produced under summons by the New South Wales Roads and Maritime Service and by the New South Wales Police Force.

21. The records produced by the New South Wales Police Force reveal a number of events involving the applicant; most significantly, there are a number of reports of domestic incidents and one report of domestic violence by the applicant against Mrs Moustapha prior to December 2012. As a result of these incidents, the applicant has been the subject of apprehended violence orders. The New South Wales Police reports also reveal an incident of aggression by the applicant in 2011, an incident involving the applicant following a woman in 2013, and two alleged road rage incidents in 2014 and 2015.

22. The most recent incident recorded in the NSW Police records is of a road rage incident in November 2015. However, I note that the Police did not have any corroborating evidence from witnesses or CCTV footage and as a result the Police were unable to prove that any criminal offence occurred.

    MITIGATING FACTORS AND CONSIDERATION

23. I consider the applicant’s criminal history to be serious. The criminal offence, of which he was convicted on 29 January 2013, was violent in nature and included the threat of using an implement.

24. At hearing, the applicant was taken through the New South Wales Police Facts Sheet which set out the circumstances of the incident which resulted in the criminal offence. The applicant agreed with a number of facts, disputed others and couldn’t recall some specific details of the incident. Despite the applicant not agreeing to the exact details contained in the Facts Sheet, he did not dispute his involvement in the incident. At hearing, the applicant expressed that he felt remorse and was saddened about what had happened. He said that he is now living a ‘normal’ life with his family and that he should not have done what he did. Further, the applicant said in his affidavit dated 28 June 2017, that he “had never been violent or aggressive before to anyone and this was not in my nature at all. It was completely out of character for me and I was ashamed for behaving that way. I believe the stress of my father’s illness was also a contributing factor but does not in any way justify my actions.”

25. While I accept that the applicant is remorseful, the evidence of the applicant that his conduct was out of character is contrary to the content of the New South Wales Police Force reports. I accept that the applicant was never charged in respect of the bulk of the incidents contained in the NSW Police records; however the incidents recorded did result in AVOs being issued against the applicant. Without making a finding about the specific incidents contained in the police reports, I do consider that the issuing of an AVO against the applicant is information that is nonetheless relevant and adds less force to the applicant’s submission that his conduct in 2012 was out of character.

26. Mrs Moustapha is an Australian citizen as are the applicant’s four young children. In support of her husband, Mrs Moustapha provided a written statement dated 15 January 2018, in which she stated that she believed the conduct which led to the applicant’s criminal conviction was out of character and that he was not a violent person. At hearing, Mrs Moustapha also gave oral evidence. She said, amongst other things, that her relationship with the applicant was “very beautiful” and that they “were happy together”. She said that they argued sometimes but they cared about each other.

27. The applicant has provided numerous character references in support of his claimed good character in these proceedings which I have read and considered. I accept that all of the referees speak highly of the applicant’s personal attributes and character. I also accept that the applicant volunteers some evenings at the Abdelrahman Mosque in Kingsgrove NSW and has paid his taxes for the financial years 2009/2010 through to 2015/2016. These factors weigh in favour of a finding of good character.

28. However, many good personal qualities can be outweighed by a single serious incident; see Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].

29. The applicant’s obligation to the court, in the form of the good behaviour bond he entered into in January 2013, ended in January 2015. The applicant has not been convicted of any crimes since this conviction and since the end of his good behaviour bond. I do however have some concerns that the applicant has a tendency for aggression which is shown by the nature of his criminal conviction and the bulk of the contemporaneous incidents recorded in the NSW Police records. In particular the Police records detail alleged incidents of domestic violence. I note that the applicant and Mrs Moustapha dispute the bulk of the incidents recorded in the Police records, but the fact that AVOs were issued against the applicant is concerning.

30. The Policy states that a reasonable amount of time will need to have passed since the end of an obligation to a court in order for the applicant to establish a pattern of good behaviour sufficient to justify a conclusion that he is of good character. Having regard to the circumstances and serious nature of the applicant’s criminal offence and the nature of the alleged incidents recorded in the NSW Police records, I am not satisfied that a reasonable amount of time has passed to convincingly establish a pattern of good behaviour.

    DECISION

31. In considering all of the relevant circumstances and weighing the available evidence, I am unable to make a positive finding of good character for the applicant at this time. For this reason, he does not satisfy section 21(2)(h) of the Act. 

32. The applicant is able to make a fresh application for Australian citizenship in the future.

33. The decision under review is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..........................[sgd]..........................................

Associate

Dated: 22 August 2018

Date(s) of hearing:	1 February 2018
Solicitors for the Applicant:	RD Lawyers
Solicitors for the Respondent:	Sparke Helmore