Tannoury and Minister for Home Affairs (Citizenship)

[2019] AATA 966

Tannoury and Minister for Home Affairs (Citizenship) [2019] AATA 966 (23 May 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1558

Re:Salim Tannoury

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:23 May 2019

Place:Sydney

The decision under review is affirmed.

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Senior Member A Poljak

CATCHWORDS

CITIZENSHIP ­– where citizenship application refused – whether applicant of good character – drug related offences – firearms offences – driving offences – whether reasonable period of time has passed to establish a pattern of good behaviour ­– insufficient passage of time to establish pattern of good behaviour – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
Firearms Act 1996 (NSW) s 7A
Drug Misuse and Trafficking Act 1985(NSW) s 11A

CASES

Fenn v 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
Department of Immigration and Citizenship (Cth), Australian Citizenship Instructions, 1 July 2013

REASONS FOR DECISION

Senior Member A Poljak

23 May 2019

1. Mr Salim Tannoury, the applicant, is a citizen of Lebanon. He first arrived in Australia on 10 November 2006 and is a permanent resident. In May 2007, the applicant obtained an Australian Business Number as a sole trader and opened a tobacconist business in July 2008 (“the applicant’s business”).

2. On 17 August 2015, Police executed a search warrant on the applicant’s business and located a Daisy Airstrike .24 calibre 6mm spring air gun, 61 waterpipes or bongs and 12 ice pipes. On 27 August 2015, the applicant was charged with the possession of an unauthorised firearm under subsection 7A(1) of the Firearms Act 1996 (NSW) (“firearms offence”) and the sale of ice pipes and waterpipes under paragraph 11A(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (“drug related offences”). The applicant pleaded guilty to all charges. On 3 February 2016, the applicant was convicted and sentenced to a non-custodial sentence under subsection 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and entered into a 12 month good behaviour bond in relation to the firearms offence, concluding on 4 February 2017. He was convicted and fined $400 for each of the offences relating to the sale of waterpipes and ice pipes.

3. On 24 May 2016, the applicant lodged an application for Australian citizenship (“Citizenship application”) under section 21 of the Australian Citizenship Act (2007) (Cth) (“the Act”). The applicant disclosed his criminal history in his citizenship application.

4. On 12 March 2018, 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 24(1A) in paragraph 21(2)(h) of the Act (“the decision”). This is the decision under review in these proceedings.

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

   RELEVANT LEGISLATIVE PROVISIONS

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

7. The Act relevantly provides, at paragraph 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’

8. 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.

9. 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.

10. 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…

11. The Policy states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; behaving in an ethical manner; and 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 essential characteristics.

12. 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.

13. In Fenn v 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)

14. 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.

15. 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 AND TRAFFIC OFFENCES

16. I consider the applicant’s drug related offences and firearms offence to be serious. In reaching this conclusion I have had regard to the harm that drugs have on members of the Australian community who are users, and on the wider community in respect of the costs to health and law enforcement resources; and I have also had regard to the fact that a firearm is as weapon and has the potential to cause serious harm. The seriousness of the applicant’s conduct is reinforced by the sentence imposed on him and such sentiment is articulated by Magistrate Connell of the Bankstown Local Court in sentencing remarks as follows:

    “At the end of the day, the court must impose penalties which reflect the objective seriousness of the offences and, in my view, these are relatively serious offences, particularly, in relation to the firearm. But is quite a serious offence. I have indicated the maximum penalty. Although, of course, it is not the most serious offence in terms of the type of fire on that one might see as a result of that charge.

    However, the court must consider specific and general deterrence, in particular, general deterrence. It is a need for deterrence, particular, when persons are selling items to members of the public, to ensure that what they are doing is illegal and the message needs to be sent to others about that, is also does a message very clearly need to be sent about the possession of firearms without a license.”

17. The applicant’s submissions during sentencing and before this Tribunal are to the effect that he was unaware that the selling of ice pipes and waterpipes/bongs was illegal. However the evidence suggests that the applicant had some awareness of the illegality of selling such goods. Namely, when the applicant’s business premises were searched by the Police the ice pipes and waterpipes/bongs were not on display, but kept behind the front counter, in cupboards or in the back store room. The applicant informed Police that the ice pipes were old stock and that he no longer sold them but then advised Police that he last sold an ice pipe “a few weeks prior”. He also advised Police that his last order of waterpipes/bongs came into the store one month prior and that he had been selling them for 12 months.

18. I do acknowledge however that the applicant cooperated with Police when they searched his business in August 2015; was forthright about having water and ice pipes on the premises; and pleaded guilty to all offences at the earliest opportunity. I also acknowledge that the applicant declared his criminal conduct in his application for Australian citizenship.

19. The applicant’s Driving Record (current at 4 May 2018), discloses a total of 6 driving offences committed between 2009 and 2017. While the traffic offences do not constitute “serious offences”, they do demonstrate a history of disobeying road laws which go to the essential safety of the Australian community.

    MITIGATING FACTORS

20. Mrs Tannoury is an Australian citizen as are the applicant’s two young children. In support of her husband, Mrs Tannoury provided a statutory declaration dated 19 October 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 considered the situation humiliating. She said, amongst other things, that the applicant was “a wonderful husband and loving father and that he was a responsible man who works hard to provide for us”. Mrs Tannoury also advises in her statutory declaration that the applicant is the primary carer for his father following surgery for the removal of a brain tumour.

21. 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 very highly of the applicant’s personal attributes and character.

22. These mitigating factors all weigh in favour of a finding of good character. 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].

    DECISION

23. The applicant’s obligation to the court ended on 4 February 2017 and his last traffic offence in the records before me was on 15 May 2017. On the available evidence in these proceedings, the applicant has not been convicted of any crimes since his conviction and since the end of his good behaviour bond. However, the Policy states that a reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour to justify a conclusion that a person is of good character. Having regard to the circumstances and nature of the applicant’s criminal offending I am not satisfied that a reasonable amount of time has passed to convincingly establish a pattern of good behaviour. This is particularly stark given that the applicant applied for Australian citizenship only three months into his 12 month good behaviour bond.

24. In considering all of the relevant circumstances and weighing the available evidence before me, I am not persuaded to make a positive finding of good character for the applicant at this time. It follows that he does not satisfy paragraph 21(2)(h) of the Act. 

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

26. The decision under review is affirmed.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 23 May 2019

Date(s) of hearing:	1 November 2018
Solicitors for the Applicant:	CK Migration
Solicitors for the Respondent:	Clayton Utz