Sfar and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 3020

Sfar and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3020 (22 September 2023)

Division:GENERAL DIVISION

File Number(s):      2022/0407

Re:Gleana Sfar

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:22 September 2023

Place:Sydney

The decision of the delegate of the Respondent dated 25 October 2021 to refuse the Applicant’s application for citizenship pursuant to subsection 24(1) of the Act is set aside. The matter is remitted to the Respondent for reconsideration and determination according to law, with the direction that the Respondent is satisfied that the Applicant is of good character for the purposes of paragraph 21(2)(h) of the Act.

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

Emeritus Professor P A Fairall, Senior Member

Catchwords

CITIZENSHIP – Australian Citizenship Act 2007 (Cth) – refusal of conferral of Australian citizenship – good character requirement – paragraph 21(2)(h) of the Citizenship Act – CPI 15 – enduring moral qualities – passage of time – decision under review set aside and remitted for reconsideration

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

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

Ngechu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2977

Secondary Materials

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

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

22 September 2023

INTRODUCTION

1. On 7 September 2016, the Applicant arrived in Australia on a Global Special Humanitarian (XB 202) visa, granted offshore on 8 June 2016. Three years later, on 9 September 2019, he appeared in the Fairfield Local Court to plead guilty to one count of affray which occurred on 15 February 2019. He was sentenced to a community correction order for 18 months commencing on 9 September 2019 and ending on 8 March 2021.

2. On 27 October 2020, the Applicant applied for Australian citizenship by conferral, under the Australian Citizenship Act 2007 (Cth) (the Act).[1] On 25 October 2021, a delegate of the Minister refused his application, being not satisfied that he was of good character as required by paragraph 21(2)(h) of the Act. This was based on the single conviction described above, as well as two minor traffic violations for speeding.

   [1] T4, 103.

3. The question in these proceedings is whether the Tribunal is positively satisfied that the Applicant is of good character and that accordingly, the decision under review should be set aside pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

4. The concept of “good character” is not defined under the Act, but it is generally accepted as referring to a person’s enduring moral qualities.[2] This is supported by the Citizenship Procedural Instruction, a policy document provided by the Australian Government to assist decision-makers to determine whether the legal requirements to become a citizen are met. The latest iteration is CPI 15 - Assessing Good Character under the Citizenship Act (the CPI).[3] The CPI states “enduring moral qualities” encompass the following:

   ·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.

   [2] T3, 84.

   [3] T3, 80.

5. It is often said that Australian citizenship is a “privilege”. In point of law, a person who satisfies the eligibility requirements set out in the Act is entitled to the grant of citizenship, as of right. There is no residual discretion to be applied by the decision-maker. A finding of good character is a necessary and important pre-condition for Australian citizenship. The Tribunal must be positively satisfied or have an “affirmative belief” that a person is of good character.[4]

   [4] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [55].

6. Evidence of criminal offending tends to count against a finding that a person is of good character. This negative inference may be countered by evidence of mitigating circumstances, the time that has elapsed since the offending, and whether there is evidence of insight, remorse, and rehabilitation.

7. Importantly, the Tribunal is required to reach a conclusion about the Applicant’s enduring moral qualities by approaching its task “holistically”.[5] In other words, the Tribunal must not focus exclusively on an applicant’s poor behaviour, even when they have broken the law. The Tribunal should consider positive attributes along with bad deeds, resisting Mark Anthony’s observation that: “The evil that men do lives after them; The good is oft interred with their bones”.[6] An inquiry may extend to well before they applied for citizenship.[7] This highlights the essential difference between character and reputation. The former refers to enduring moral attributes, whereas a reputation may be sullied by a single misdeed.

   [5] CPI 15 - Assessing Good Character under the Citizenship Act - VM-5292, paragraph 1. T3, 80, 96, 97.

   [6] William Shakespeare, Julius Caesar, Act 3, Scene 2. For the entire quote see Wilson, Hon Nigel, "Lectures on advocacy and ethics in the Supreme Court" [1979] NZLRFOP 15.

   [7] T3, 97.

8. The Respondent notes that the CPI:

   (a)directs decision-makers to consider the Applicant's circumstances in a "holistic way; that is, all aspects of [his] life may be relevant" (paragraph 1);

   (b)directs decision-makers to consider "other information that is relevant to a person's character such as information provided by an applicant about his/her family life" (paragraph 4); and

   (c)provides that the Tribunal may look at evidence of length of employment, stable family life and/or community involvement as they may be indicators of good character (paragraph 14.1 of CPI 15).

9. The Applicant worked as a shop assistant in Syria. He had schooling up to year 9.[8]

   [8] T7, 140-141.

10. Unfortunately, he has been unable to gain paid employment in Australia but does have caring responsibilities for both his brother-in-law and his parents. He receives Carer payments for care he provides to his brother-in-law, who was injured in a football accident in Syria in 2010. His knee injury was poorly treated so that he now walks with a limp, and he suffers serious adjustment issues and PTSD. He receives a disability support pension.[9] Like the Applicant, he arrived in this country as a refugee. The Applicant provides support to him and receives a Carer’s allowance. The Applicant provided evidence of his status as a carer but as noted by the Respondent, provided little information about the daily care he provides.

    [9] Applicant’s Further Evidence, 34.

    CRIMINAL OFFENDING

11. On 15 February 2019, an Assyrian singer from Sweden was performing at the Monamor Reception Centre in Fairfield. Hundreds were in attendance, including the Applicant, his wife and brother-in-law.[10] At some point, a melee erupted. The Applicant and his brother-in-law were involved. His participation resulted in a single conviction for affray. On 9 September 2019 he pleaded guilty to the offence of Affray-T1 and received the sentence described above.[11]

    [10] Police estimates of the crowd attendance figures range from 300 to 1000: SM1, 9-10.

    [11] T11, 163.

12. Police attempts to reconstruct key events run to six pages in the COPS records. Significant passages are redacted and the identity of those described as “victims”, “accused” and “Persons of Interest” swap and change. It is unfortunate that there are no sentencing remarks to assist the Tribunal, or agreed sentencing facts, and one must rely on the COPS records, which are very hard to follow. This is not a criticism of the police, for undoubtedly the chaotic events of the evening involving many participants were extraordinarily difficult to unravel.

13. The following facts appear from the records and the Applicant’s evidence to the Tribunal. A man at an adjacent table made an obscene gesture in the direction of the Applicant’s party. Police notes identify him as a brother of the former wife of the Applicant’s brother-in-law. A glass and ice cubes were thrown (by whom it is not clear). A woman stood on splintered glass from the shattered glass. Passions were running high, and a melee ensued. The fracas continued into the foyer.

14. The Applicant admits that his behaviour was aggressive and frightening, although he asserts that he did not punch, strike, or hit anyone. I accept that he was not the original instigator or aggressor. He claims that he was alternatively seeking to restrain his brother-in-law and the man from the other table who triggered the incident. I accept his evidence.  He states that he detached himself and rushed over the road, to ask the police for assistance. He was scowling and looked frightening to the onlookers as he left. In high dudgeon he is no doubt an intimidating presence. In the police records, his attendance at the police station is recorded at 11:45PM on 15 February, where he is described as the “victim”.[12]

    [12] SM1, 6

15. As noted above, on 9 September 2019 he pleaded guilty to the offence of Affray-T1 and was sentenced to a community correction order of 18 months commencing on 9 September 2019 and concluding on 8 March 2021.[13]

    [13] T11, 163.

16. The Applicant was very clear before the Tribunal in accepting responsibility for his behaviour on the night in question and did not dispute that he was properly convicted of affray. He recognised, as does the Tribunal, that this is a serious offence. It may be assumed that the psychological impact on those in attendance was potentially damaging.

17. The Applicant was provided with an opportunity to provide further evidence. With respect to this incident, he stated:

    I first want to state that on the night of the incident, I was acting as a shield to stop my brother-in-law from injuring other people. I also believe that I did the right thing by calling the police to stop things escalating. My behaviour in storming out of the venue in a violent way may have caused other people to fear that I was going to behave in a violent matter, but that was not the case. I was very worried and concerned as to the safety of my brother. At the time, I was not aware of who was around me. All I could think about was going downstairs to call the police. It was too loud upstairs where the incident took place and I took the initiative of contacting the police to stop the brawl. I also wish to bring to your attention that I voluntarily went to the police station to give evidence.

18. He also stated:

    Since I arrived in Australia, my passion was to establish my own business but that did not work out for me as I had to look after my elderly parents, who are currently living with me. I am a full-time carer on my brother in law who suffers from mental health and he is in need of a carer almost 6 hours per day. I usually take him to doctors’ appointments, administer medications and take him out…I have always been the person who is willing to help others and I believe what I did on the night of the incident clearly shows my nature in calling the police to bring peace to the event and to stop things from escalating.

19. The version of events provided by the Applicant is corroborated by his brother-in-law, who provided a letter to the Tribunal, which included the following:

    Gleana has always been a person of good will and intention. I still remember the day when he stood in my way on the day when the incident took place and he calmed me down and went to call the police. I believe that was something that speaks very well of his character. He took good care of me in good times and bad and has never left me alone. On that day, I was acting in a very angry manner but Gleana was there to calm me down and to tell me that what I did was very wrong and that he was going to call the police to make sure no one gets injured.

20. There is an abundance of evidence from a psychiatrist and a psychologist that his brother-in-law does have serious physical and mental health problems, including a lack of impulse control and a tendency to lose his temper.

21. I also note that the police issued Apprehended Violence Orders (AVOs) to those involved in the affray to ensure that the parties did not interact in the future.[14] They interviewed the Applicant on 29 September 2019 and again on 1 December 2019 to ensure that he was familiar with the AVO requirements. The notes record that on both occasions the Applicant was cooperative and supportive.

    [14] SM1, 15-16.

22. Apart from this incident, there are two speeding fines on the Applicant’s record, committed on 31 August 2017 and 10 June 2019.[15]

    [15] SM1, 17.

    REFERENCES

23. The Applicant provided a reference by way of statutory declaration from Ms Sarah Hamidi, Justice of the Peace.[16] She states:

    Throughout his settlement in Australia I have witnessed Gleana demonstrate a future focus and commitment to securing a safe and stable future for himself and his wife in Australia. Gleana displays the attributes of a kind, family orientated and loyal citizen. He has always presented in a calm, measured and respectful manner, attributes fostered by his parents, particularly his father who was an educator in Syria. Gleana has been a full-time carer for his brother in law Rimoun Adam (01/06/1979) and resides with his elderly parents and wife, further demonstrating a strong commitment to family and community.

    Since knowing Gleana, he has continued to demonstrate Australian values and ideals representative of a good Citizen and one worthy of Australian Citizenship; these qualities being respect for others, kindness, charity, and inclusivity.

    Gleana’s family and friends, in addition to his GP and Church community are a supportive and stable influence.

    I am of the opinion that Gleana shares Australia’s democratic beliefs and will continue to respect its rights and liberties. He is very much aware of the importance of behaving in accordance with Australia’s community standards and he demonstrates a strong commitment to being a good citizen. Gleana has never been a risk to national security.  

    [16] ATB, 36.

24. He also provided references dated 7 October 2021 attesting to this good character from three long-time friends: Maikel Roil;[17] Hani Askaro,[18] and Wileam Abdal.[19]

    [17] T14, 182.

    [18] T14, 184.

    [19] T14, 186.

25. He also provided a reference from the Rev. Paulis Naisan, a Parish Priest of the Saint Zaia Cathedral.[20]

    [20] Applicant’s Further Evidence, 40.

26. I note that he provides a caring role for his parents. In his statement he said:

    I also have to make time for my parents who are elderly and who always require assistance such as bathing, preparing their meals and driving them to their doctor’s appointments and taking them out on the weekends. In our traditions and customs as Assyrians, the native people of Iraq, children are expected to look after their parents and make sure that their needs and wants are met. I have also cared for people before I even care for myself and my wife. I have been serving my parents and my brother in law for many years and I will do so to fulfil my role as someone who is willing to do anything for them. I would never imagine my parents going to a nursing home or anywhere else as long as I am alive.

    CONCLUSION

27. The Applicant has provided sufficient evidence of good character. I note that the CPI refers specifically to caring responsibilities as being relevant to an assessment of character.[21]

    [21] Ngechu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2977 at [30].

28. I take account of the fact that none of the police accounts describe him as the original instigator of the incident, and that he was present with his wife and brother-in-law, who was previously married to the instigator’s sister. His brother-in-law was volatile, and the Applicant failed to contain him, but it was ultimately a difficult situation that erupted suddenly. His spontaneous behaviour fell somewhat below the mark, but in the Tribunal’s view, few caught up in this situation would act with perfect composure. Importantly, he has recognised the impact of his actions on others and does not dispute the correctness of his conviction. His behaviour in detaching himself from the situation and going directly to the police was commendable and speaks to his “enduring moral qualities”.

29. In my view, sufficient time has elapsed to assuage the impact of 15 February 2019.

    DECISION

30. The decision of the delegate of the Respondent dated 25 October 2021 to refuse the Applicant’s application for citizenship pursuant to subsection 24(1) of the Act is set aside. The matter is remitted to the Respondent for reconsideration and determination according to law, with the direction that the Respondent is satisfied that the Applicant is of good character for the purposes of subsection 21(2)(h) of the Act.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 22 September 2023

Date(s) of hearing:	4 August 2023
Date final submissions received:	1 September 2023
Solicitors for the Applicant:	Mr R. Yousif, Hegarty Yousif
Solicitors for the Respondent:	Ms L. Hargrave, Clayton Utz