Traboulsi and Minister for Home Affairs (Citizenship)

Case [2018] AATA 4253

Traboulsi and Minister for Home Affairs (Citizenship) [2018] AATA 4253 (15 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1608

Re:Chadi Traboulsi

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:15 November 2018

Place:Sydney

The matter is remitted to the Minister with the direction by the Tribunal that Mr Chadi Traboulsi satisfies the good character requirements of the Act and that his application for citizenship should be assessed accordingly.

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

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – refusal – whether applicant of good character – criminal record – possession of prohibited drug – domestic violence – stalk/intimidate intend fear of physical/mental harm  – damage property – use carriage service to menace/ harass/ offend – assault occasioning actual bodily harm – whether applicant of good character – meaning of good character – seriousness of offence – acceptance of responsibility – steps taken to remediate behaviour – time elapsed since return to community – enduring moral qualities – likelihood of reoffending – application remitted with direction

LEGISLATION

Australian Citizenship Act 2007

CASES

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

Bushell v Repatriation Commission [1992] HCA 47

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307

Darwich and Minister for Immigration and Citizenship [2007] AATA 2106

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409

Fahiye and Minister for Immigration and Border Protection [2016] AATA 374

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 93

Hneidi v Minister for Immigration and Citizenship [2010) 182 FCR 115

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

Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14]

Karim and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 916

Kiokata v Minister for Immigration and Multicultural Affairs [1999] AATA 1022

Mendoza and Minister for Immigration and Border Protection [2018] AATA 686

Prasad and Minister for Immigration and Border Protection [2017] AATA 1506

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

Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366

Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634

Sharma and Minister for Immigration and Border Protection [2015] AATA 608

Shi v Migration Agents Registration Authority [2008] HCA 31

Sui and Minister for Immigration and Citizenship [2008] AATA 1062

Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13

Zheng v Minister for Immigration and Citizenship [2011] AATA [2011] AATA 304

SECONDARY MATERIALS

Council of Australian Governments (Cth), National Ice Action Strategy 2015 ( 2015)

Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015)

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

REASONS FOR DECISION

Chris Puplick AM, Senior Member

15 November 2018

  1. Mr Chadi Traboulsi, a citizen of the Lebanon appeals to the…

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Details
AGLC
Traboulsi and Minister for Home Affairs (Citizenship) [2018] AATA 4253
Case
[2018] AATA 4253
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by Mr. Traboulsi against the Minister for Home Affairs' refusal to grant him Australian citizenship. The refusal was based on the applicant not meeting the "good character" requirement, due to a criminal record that included offences such as possession of a prohibited drug, domestic violence, stalking, intimidation, property damage, using a carriage service to menace, harass or offend, and assault occasioning actual bodily harm.

The central legal issue before the Tribunal was to determine whether Mr. Traboulsi was of "good character" for the purposes of the Citizenship Act. This required the Tribunal to interpret the meaning of "good character" in the context of the applicant's past criminal conduct, considering the seriousness of the offences, the time elapsed since their commission, and any steps taken towards rehabilitation. The Tribunal also had to consider the relevant provisions of the Citizenship Policy, while acknowledging that policy is not law.

The Tribunal reasoned that "good character" refers to a person's enduring moral qualities, rather than their reputation, and requires evidence of adherence to Australian societal values. While past criminal conduct is a significant factor, the assessment must focus on contemporary behaviour and reputation. The Tribunal noted that the weight given to criminal conduct depends on the seriousness of the offence, the time since its commission, and the degree of rehabilitation. In this instance, the Tribunal found that the applicant's criminal history was serious and that insufficient time had elapsed since his release from jail to definitively establish enduring good character, despite evidence of his employment and references.

Consequently, the Tribunal remitted the application to the Minister with a direction to grant citizenship, indicating that while the applicant had not yet met the good character requirement, the matter should be reconsidered with a view to a favourable outcome, implying that further time and continued positive behaviour would be necessary.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Evidence of employment: This has been provided by an employer who has known Mr Traboulsi for some time and has employed him since his release from jail. He attests to his being a good worker, dedicated to his job.[40][40] Applicant’s Submission at Tab [2] letter from employer dated 2 June 2018. References from independent people and employers: These have been detailed above. The Tribunal is thus brought back to the issue of how much time should it expect to elapse before it can determine that a person who failed the character test at one time now satisfies it? Furthermore, from what date does that time calculation start? Senior Member Taylor in Darwich stated that:“Although past criminal conduct can be a potent indicator of character, the ultimate matter to be assessed is the applicant’s contemporary behaviour and reputation.”[41] [41]Darwich and Minister for Immigration and Citizenship [2007] AATA 2106 [40] There is no clear guidance as to what might or might not be “sufficient” time for the Tribunal to give favourable consideration to any application. However a useful general approach is stated by Deputy President McMahon as follows:“In my view these guidelines[42] go well past the bounds of reason if applied literally. To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of 12 months or more, no matter when that conviction took place is quite unreasonable. It is necessary in assessing character to look at all the relevant circumstances including the age of the convictions.”[43][42] Referring to the Guidelines then in place, since replaced by the Citizenship Policy.[43] Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13 at [43]. Again this is a matter which will vary with the determined “seriousness” of the offence – the more serious the offence, the greater the time without further incident will be required to establish any sort of favourability for the applicant[44]. In this case the Deputy President did not consider a lapse of three years to be sufficient after a serious domestic violence incident and in the absence of genuine remorse on the part of the offending applicant.[44] See comments of Deputy President Constance in Sharma v Minister for Immigration andBorder Protection [2015] AATA 608 at [58]. The respondent drew to the attention of the Tribunal the decision in Fenn where Deputy President Breen addressed the issue of length of time since the commission of an offence. The Deputy President said:“That Mr Fenn is making a concerted effort to turn his life around, is a positive step; however it will take longer than five years for there to be sufficient evidence that his character has been restored to the level required fort a grant of citizenship.”[45][45] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]. Mr Fenn had been sentenced to imprisonment for 3½ years and 2 years (to be served concurrently) and ordered to pay $892,700 reimbursement costs to the victims of his criminal behaviour.

Decision

Reasons for decision

The Tribunal must now make that decision as of 7 November 2018 and do so on the basis of the material which it has before it. The decision is de novo and the facts are those most contemporary. The judicial authority for this proposition is as stated below.THE TRIBUNAL “IN THE SHOES” OF THE DECISION-MAKER The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[22][22] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307. It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[23]“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[24]“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[25]“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[26]“…. the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[27][23] Re Drake and Minister for Immigration and Ethnic Affairs(No.2)[1979] 2 ALD 634 at [640].[24] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [page 11].[25] Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs [1981] 4 ALD 198; Commonwealth v Twyman [1985] 8 ALD 554 and Re KLGL and Australian Prudential Regulation Authority [2008] AATA 542.[26] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.[27] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.

Ratio Decidendi

Legal Principle Established

The Policy in question is the Citizenship Policy which came into effect on 1 June 2016. CONSIDERATIONS There are a series of questions which the Tribunal has to answer:·What is the meaning of being of “good character”?·What parts, if any, of the Citizenship Policy are relevant in this decision?·Does Mr Traboulsi, at this point in time, meet that “good citizenship” definition? The Act contains no definition of what constitutes “good character” but in making its determination the Tribunal is guided by judicial interpretation and by the Citizenship Policy. In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:“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.”[28][28] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432. It is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[29][29] Zheng v Minister for Immigration and Citizenship [2011] AATA [2011] AATA 304 at [120]. The Citizenship Policy (at p. 145) elaborates this by attaching to the phrase “enduring moral qualities” the further qualifications, namely:·“characteristics which have been demonstrated over a very long period of time·distinguishing right from wrong·behaving in an ethical manner, conforming to the rules and values of Australian society.” Policy however is not the same as law. As this Tribunal said in Aston:“Policy is not law. A statement of policy is not a prescription of binding criteria.”[30][30] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [376]. Nevertheless the Tribunal must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions of good character.[31][31] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, Hneidi v Minister for Immigration and Citizenship [2010) 182 FCR 115. Relevantly, in Mr Traboulsi’s case the court has also made clear that:“When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”[32][32] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14]. In applying the test in Kakar, what are the relevant answers?