Traboulsi and Minister for Home Affairs (Citizenship)

[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, 4^th 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 Tribunal against a decision made by a Delegate of the Minister to refuse him citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (the Act).

2. The basis of the Delegate’s decision was that Mr Traboulsi is not a person of “good character” under sections 21(2)(h) and 24(1A) of the Act because he has a substantial criminal record and, in the opinion of the Minister, has not demonstrated that he has “rehabilitated, reformed and re-established his good character”[1]  since August 2013 when he was last released from prison.

   [1] Respondent’s Statement of Facts, Issues and Contentions at [2].

   MR TRABOULSI’S CITIZENSHIP APPLICATION

3. Mr Traboulsi was born in the Lebanon in April 1983 and arrived in Australia on 26 September 2003. Between October 2012 and February 2103 Mr Traboulsi was convicted of a number of offences and was imprisoned (see below). He was released from custody on 18 August 2013. Two years later (13 August 2015) he was granted a subclass BB-155 Permanent Five Year Resident Return Visa.

4. On 6 April Mr Traboulsi applied for citizenship by conferral.[2] In his application he disclosed details of his prior convictions.[3]

   [2] Section 37 – T Documents at [77-91].

   [3] Ibid at [85].

5. On 10 June the Department sent Mr Traboulsi a letter stating that they held information adverse to him after their consideration of information received from the National Police Checking Service and inviting him to comment thereon.[4] He provided such a response on 29 June 2017. This response consisted of a Statutory Declaration from Mr Traboulsi together with several letters of support on his behalf.[5]

   [4] Ibid at [113].

   [5] Ibid at [117-120].

6. On 13 March 2018 the Minister’s delegate refused the application, on the grounds specified above and on 28 March 2018 Mr Traboulsi appealed that refusal to this Tribunal which heard the matter on 7 November 2018.

   MR TRABOULSI’S MARITAL STATUS

7. In 2002 Ms Nadia Hammoud, an Australian citizen was visiting Lebanon when she met Mr Traboulsi. There is then some confusion about when they were married. In her statement to the Tribunal, Ms Hammoud stated they were married in 2002,[6] however a Police report gives the date of their marriage as 4 April 2008,[7] and Mr Traboulsi in his testimony stated that they were married in 2008, shortly before he arrived in Australia.

   [6] Ibid at [120].

   [7] Summonsed material at [40].

8. The couple lived together, although their relationship was not stable, it was marked by frequent arguments and in 2011 they separated. In August 2012 they were divorced.

9. Between February 2013 and August 2013 Mr Traboulsi was in prison (see below) but after his release they got back together and re-married in 2015.

10. All of these matrimonial arrangements were made in accordance with Islamic law and practices which are, of course, recognised under Australian domestic law. However as noted, precise dates for the establishment of these relationships are not available to the Tribunal. Ms Hammound is currently expecting their first child.

    MR TRABOULSI’S CRIMINAL RECORD

11. The National Police Certificate records that Mr Traboulsi has been convicted of four charges in two appearances before the courts.[8]

    [8] Section 37 – T Documents at [100].

12. In November 2012 he was convicted of the possession of a prohibited drug, namely 0.1 grams of methylamphetamine (in the form of “ice”). He was fined $250.00. In evidence he admitted to being a regular (“daily”) use of “ice” from about 2008 to 2012. He explained that he became addicted after being introduced to the drug by a friend and while initially under the influence of alcohol.

13. On 18 November 2012 Mr Traboulsi was involved in an appalling incident of domestic violence perpetrated against his partner Ms Hammoud and involving making serious threats against members of her family. The details of the incident are provided in detail in evidence before the Tribunal[9] but in summary: On the evening in question, Mr Traboulsi approached Ms Hammoud at the pastry shop where she was working and where he had previously been known to confront her verbally. On this occasion after a further verbal confrontation he physically assaulted her and gave her what can only be described as a beating. The Applicant repeatedly punched Ms Hammoud’s face and head which forced her onto the floor, pulled her hair and verbally abusing her. She suffered significant bleeding and bruising as a result of this assault. After intervention by third parties Mr Traboulsi walked out of the shop. The whole incident was captured on CCTV footage.

    [9] Summonsed material  at [41-42] and  [81-85].

14. At about the same time, Mr Traboulsi vandalised a car belonging to Ms Hammoud’s father.

15. The following morning Mr Traboulsi made a series of threatening phone calls to the home where Ms Hammoud was residing and made threats against her mother. He then attended those premises, beating on the front door and making further threats against Ms Hammoud and members of her family.

16. It was at this stage that the Police arrived and took him into custody.

17. On 1 February he was sentenced in the Sutherland Local Court on charges of assault occasioning actual bodily harm (domestic violence); stalk/intimidate/intend fear of physical/mental harm (2 charges); destroy or damage property; and use carriage service to menace/harass/offend. On the assault charges he was sentenced to imprisonment for 9 months; on the stalking and related charges to two terms of imprisonment for three months and on the final charge to a fine and being placed on a two-year good behaviour bond.[10] He was imprisoned on 19 November 2012 and released on 18 August 2013.

    [10] Section 37 – T Documents at [100].

18. In written evidence submitted to the Tribunal Mr Traboulsi downplayed the significance of these incidents. In a Statutory Declaration of June 2017 he refers to the incident as “from having a small issue between me and my wife to a night that I never want to look back to.” Leaving aside the matter that Ms Hammound was not (apparently) his wife at the time, this description is woefully inaccurate and inadequate. In a letter dated 13 June 2018 he writes: “In 2012 I had domestic issues with my wife Nadia Hammoud. The issues escalated very quickly and unfortunately I did assault her and I have big regrets for doing so.”[11]

    [11] Applicant’s Submission at Tab [1].

19. In oral evidence Mr Traboulsi admitted that the incidents in question were neither “small” or predominantly “domestic”. He explained that at the time he was seriously affected by drugs, that his drug use was a major cause of friction with his partner and that he was not in his right mind when he committed the assault.

20. It should also be noted that Mr Traboulsi also has a poor record of driving offences. There are numerous offences for speeding, failing to pay fines, driving without a seat belt and disobeying traffic lights.[12]

    [12] Section 37 – T Documents at [103].

    MR TRABOULSI’S RECORD SINCE HIS RELEASE

21. Mr Traboulsi told the tribunal on repeated occasions that he had become a changed man since his period in prison and this claim was supported by both his re-married wife Ms Hammoud and by other testimony (see below).

22. It should be formally noted that Ms Hammoud appeared before the Tribunal as Mr Traboulsi’s representative and conducted proceedings on his behalf. This matter is of course, one of significance. Although the Tribunal is well familiar with examples of where the victims of domestic violence come before it to give exculpatory testimony in support of the offenders, on this occasion there was no reason to doubt the sincerity of Ms Hammoud’s representations on behalf of, and support for Mr Traboulsi.

23. He told the Tribunal that he had undertaken anger management counselling; that he had entirely given up taking drugs (and had been “clean” since his release); he had also abstained from drinking alcohol and that he now conducted himself as a “good Muslim” praying regularly, fasting and attending the Mosque. This latter assertion was also supported by testimony from Mr Khalil Ibrahim, who was the owner of the pastry shop where the assault took place, is a NSW Justice of the Peace and appeared as a witness on his behalf.

24. The Tribunal accepts that Mr Traboulsi has undergone a genuine change of life and attitude since his release. Apart from a minor speeding offence[13] he has not had any further contact with the law. He attended and completed an anger management programme.[14] His parole was completed successfully without incident.[15]

    [13] Idem. The offence was in January 2017.

    [14] Applicant’s Submission at Tab [2] letter from Stephen Walton, Program Coordinator, Men and Family Relationships, Catholic Care dated 19 August 2013.

    [15] Ibid, letter from Department of Justice dated 21 May 2018.

25. In further support Mr Traboulsi submitted references attesting to his work ethic and his employment since January 2016;[16] and to his non-violent nature and contemporary good character and behaviour.[17] There is further letter of support from Ms Hammound attesting to the strength and positive nature of their current relationship.[18]

    [16] Ibid, letter from Sydney Wideform Construction Services P/L dated 2 June 2018

    [17] Personal references from Mr Khalil Ibrahim JP (29 June 2017) and Mr Ahmad Hussein (19 June 2017) at Section 37 – T Documents at [118] and [119] respectively.

    [18] Ibid at [120].

26. The Tribunal is aware that the Citizenship Policy cautions against placing too much weight on references from family members and gives some guidance as to how character references should be assessed[19]. Similarly there are cautionary warnings against placing undue emphasis upon personal references as distinct from relying upon an assessment of the personal behaviour and actions of the applicant.[20]

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

    at page [155].

    [20] Kiokata v Minister for Immigration and Multicultural Affairs [1999] AATA 1022 at [109].

27. Finally there was a report from Dr Tanveer Ahmed a qualified consultant psychiatrist who concluded that:

    “In my view there is no evidence of any ongoing psychiatric illness or personality disorder. While there is no clear medical definition of what might be construed as good character, from my point of view, there is no risk of him to the wider population from a psychiatric or criminal point of view.”[21]

    [21] Applicant’s Submission at Tab [2], report dated 28 May 2018.

28. Although reliance upon this report was questioned by the Respondent, the Tribunal sees no reason not to accept the conclusion stated above as Dr Ahmed’s professional opinion on the specific point in question.

29. In final submissions the Respondent accepted that there had been a major change in Mr Traboulsi’s behaviour and that he had shown a degree of reform and rehabilitation, although it questioned his failure to attend any courses which might help him deal with any possibilities of his relapsing into drug-using behaviour.

30. The Tribunal does not accept this latter criticism as having great validity. It accepts that Mr Traboulsi has ceased taking drugs or consuming alcohol since his release; that he attends his Mosque regularly and seeks to conform to the basic tenants of the Islamic faith; he has changed his “friendship” network; he is in stable employment and in a more secure and supportive domestic environment. It does not believe he is obliged to do anything more to be credited with making a genuine personal effort at rehabilitation as far as his drug-using behaviour is concerned.

    THE LEGISLATIVE REQUIREMENTS

31. These can be stated very simply.

32. Under the Act (section 21) a person is eligible to seek citizenship by conferral provided that they meet certain requirements which are specified in that section. These are enumerated in section 21(2) from (a) to (h). It is a requirement that all of the requirements be met. In the event that they are, then the applicant can be considered for citizenship. The Minister is obliged to make a decision to grant or to refuse a citizenship application   (section 24(1)) but has discretion in reaching that decision. Finally, citizenship only becomes enlivened once the approved individual has taken the mandated pledge of commitment (section 26).

33. One of the section 21(2) requirements which must be met is that the person:

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

34. This requires the Minister to be satisfied that the applicant is of good character at a specific time, namely when the decision on the application is made. The Minister’s authorised Delegate made that decision on 13 March 2018, believing that, at that date Mr Traboulsi was not a person of good character.

35. 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

36. 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.

37. 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, 4^th 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.

38. It is thus clear that although the original decision-maker has found Mr Traboulsi not to be a person of good character, it is now up to the Tribunal to make that determination.

39. In this respect the Tribunal must have regard to both the Policy which complements the Act and any judicial guidance on its interpretation.

40. The Policy in question is the Citizenship Policy which came into effect on 1 June 2016.

    CONSIDERATIONS

41. 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?

42. 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.

1. 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.

2. 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].

3. 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.”

4. 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].

5. 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.

6. 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].

7. In applying the test in Kakar, what are the relevant answers?

8. The seriousness of the crime: Few crimes are more serious than those of egregious acts of domestic violence. This Tribunal has made it abundantly clear that it regards domestic violence as a serious matter and one to which the Tribunal pays considerable regard when assessing matters such as citizenship applications.

9. In Mendoza I wrote:

   “The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any women, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.”[33]

   [33] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48]. See also Karim and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 916 at [24-25].

10. In Sharma[34] Deputy President Constance made it clear that:

    “The Australian Citizenship Instructions[35] provide that crimes of violence are to be regarded as serious offences. This is particularly so in the case of domestic violence. Such conduct is fundamentally inconsistent with the standards of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.”

    [34] Sharma and Minister for Immigration and Border Protection [2015] AATA 608 at [37].

    [35] Australian Citizenship Instructions superseded by the Australian Citizenship Policy in 2016.

11. He repeated this in Prasad:

    “Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.” [36]

    [36]Prasad and Minister for Immigration and Border Protection [2017] AATA 1506 at [32].

12. He further noted:

    “A decision about whether a person is of good character requires a 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.” [37]

    [37] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].

13. This matter of seriousness has also been discussed in Fahiye[38] where the Tribunal added a few additional matters for any decision-maker to consider:

    “The ACIs require decision makers to turn their minds to any mitigating factors that might mean an applicant is of good character despite his or her criminal convictions. These factors include: the passage of time since offending; whether the person has accepted responsibility and shown remorse; extenuating circumstances related to the offences; whether the person has engaged in anger management counselling; evidence of employment; and, references from independent people and employers.”

    [38] Fahiye and Minister for Immigration and Border Protection [2016] AATA 374 at [20].

14. Length of time since commission: The crime in question occurred in November 2012 that is almost exactly 6 years prior to the date of the Tribunal hearing. The matter of whether the Tribunal should fix this as the relevant time, or adopt the Respondent’s position that the relevant time is 1 February 2015 (the date of the expiry of the two year good behaviour bond imposed at time of the original sentencing) is a matter for discussion below.

15. Degree of rehabilitation: The tribunal has already noted the steps taken by Mr Traboulsi to deal with his anger management issue, stated its opinion in relation to the management of his drug-using issues and noted the representations made on his behalf touching on this matter. They are all favourable to Mr Traboulsi.

16. Responsibility and Remorse: The Tribunal has already noted its degree of concern about Mr Traboulsi’s characterisation of his behaviour as involving “small” issue and “domestic” issue but it does accept that Mr Traboulsi has displayed a readiness to admit to his offences, take responsibility and express what it takes to be genuine remorse. It notes the comments of Ms Hammound that she would not have re-established a relationship with Mr Traboulsi had he not “admitted” to his culpability.

17. Extenuating circumstances: The Tribunal notes that Mr Traboulsi emphasises that all his offences took place as a result of his misuse of drugs and the impact of “ice” in particular. The Tribunal notes that the impact of the “ice epidemic” on society and its significant contribution to increases in both the extent and level of violent crime has been recognised by all Australian governments in the National Ice Action Strategy 2015.[39]  However the Tribunal does not regard the fact that crimes of violence are or were committed under the influence of illicit drugs as constituting extenuating circumstances. Extenuating circumstances are those which could not have been avoided. Misuse of drugs can be.

    [39] Council of Australian Governments (Cth),National Ice Action Strategy 2015 ( 2015) pages 10-11.

18. Anger management counselling: There is evidence, already referred to which shows that Mr Traboulsi took positive steps to deal with this problem.

19. 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.

20. References from independent people and employers: These have been detailed above.

21. 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?

22. 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]

23. 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].

24. 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 and

    Border Protection [2015] AATA 608 at [58].

25. 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].

26. 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.

27. The Respondent also referred the tribunal to the decision in Sui where it was held that six years elapse was not long enough, although in that case the Tribunal found that:  “the record of the applicant in this case is much worse than that in Fenn and extended over a very long period of time.”[46] In this instance the applicant had been convicted of numerous serious drug supply offences and had at various times been sentences to terms of imprisonment of 3 ½ years and subsequently 9 years.

    [46] Sui and Minister for Immigration and Citizenship [2008] AATA 1062 at [72].

28. It is thus clear that the Tribunal has shown some propensity to conclude that a period of five to six years may be appropriate for citizenship applications to be considered from applicants with a criminal record who have maintained a law-abiding and positive contribution to the community since their conviction.

29. However the Tribunal has also expressed a view in these terms:

    “It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that this is so. Time 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 individual case.”[47]

    [47] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [67] per Senior Member Toohey.

30. There is simply no hard-and-fast rule about how long an applicant has to have been a law-abiding individual in order to have their citizenship application considered after having previously being found not to be of good character. Such considerations vary with the seriousness of the offence which led to that conclusion in the first place and the objective evidence of their recent and current level of “moral quality.”

31. Equally there is no binding jurisprudence on this matter.

32. Nor indeed is there any authority as to the date from which such calculations should be made – the date of the offending behaviour which has given rise to the initial negative conclusion – the date of any release from custody – the date of any discharge from the supervision of the courts via bond or parole.

33. The safest position to take is: what is the evidence before the Tribunal at the date of its decision making in determining whether or not the person is of good character in a way that allows their application to be assessed, bearing in mind the provisions of section 21(2)(h) of the Act?

34. The Tribunal has considered and answered,  a series of questions, as follows:

    1Were the offences committed by Mr Traboulsi serious? Yes. They were at the serious end of the spectrum and the Tribunal has identified egregious acts of domestic violence as being particularly serious when assessing applications such as this.

    2Does Mr Traboulsi recognise the seriousness of these offences and admit that his behaviour was utterly unacceptable regardless of the personal circumstances he found himself in at the time? Yes. The Tribunal is persuaded that Mr Traboulsi now appreciates the nature and seriousness of the offence and it takes note of Ms Hammoud’s statements that it was only on the basis of Mr Traboulsi admitting to and demonstrating an understanding of his offending behaviour that she resumed their relationship, remarried him and is starting a family with him.

    3Has Mr Traboulsi accepted responsibility, demonstrated remorse and sought to change his attitudes and behaviour? Yes. The Tribunal is prepared to accept Mr Traboulsi’s said in sworn evidence, that is, his attitude and understanding of his responsibility. The Tribunal has expressed its concerns about some comments of Mr Traboulsi’s which clearly downplayed or minimised the seriousness of the offences but it accepts that he now knows better and accepts that his behaviour was unacceptable under any circumstances.

    4Has Mr Traboulsi taken steps to remediate his behaviour? Yes. He has completed an anger management course, he has abstained from the use of drugs and alcohol, he has become a regular attendee at the mosque and he has had no further negative interactions with the law (a speeding fine excepted).

    5Has sufficient time passed since Mr Traboulsi was released from custody? Yes. Authority in the Tribunal seems to suggest that an application such as this should be accepted for consideration after a period of some 5 or 6 years have elapsed. Because there is no authority on the point to the contrary the Tribunal accepts that the date from which it should make such assessments is the date that the applicant returned to the community. Although they might have been under some form of supervisory regime they were still at sufficient liberty as to be taken as being responsible for their own actions as from that date. The Tribunal is not persuaded by the contrary point of view put to it on this matter by the Respondent.

    6Has Mr Traboulsi demonstrated the “enduring moral qualities” in the way in which they are framed in the comments of the Tribunal in Assafiri quoted above? Yes. There has been sufficient change in Mr Traboulsi’s behaviour to justify a finding by the Tribunal that he now displays those qualities and there is no objective reason to believe that he will not continue to do so.

    7Does Mr Traboulsi have a supportive environment such as to provide serious incentives for him not to relapse in his standards of behaviour? Yes. He clearly has the support of his wife and he has stable employment. The Tribunal also believes that he has understood, as a result of his incarceration and these resultant proceedings that should he reoffend his continuing membership of the Australian community would be at risk. The Minister retains a personal power (section 34 of the Act) to revoke citizenship by conferral. The Tribunal believes that an appreciation of this situation on his part, given the imminent birth of his first child, from whom he risks being separated if he offends further and the Minister exercises his personal discretion, adds to the positive incentives for Mr Traboulsi to continue his current behaviour of obeying the law and keeping out of trouble.

35. The conclusion which the Tribunal has reached is that as of the date of this decision, Mr Chadi Traboulsi’s behaviour has been such, and sufficient time has elapsed, to allow the Tribunal to find that he is a person of good character for the purposes of the Act.

    DECISION

36. 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.

I certify that the preceding 78 (seventy -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 15 November 2018

Date(s) of hearing:	7 November 2018
Advocate for the Applicant:	Ms N Hammoud
Solicitors for the Respondent:	Mr C Brinley, Clayton Utz