Dandan and Minister for Immigration and Citizenship [2010] AATA 539 (21 July 2010)

Last Updated: 16 August 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 539

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5071

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Anis Dandan

Applicant

And

Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 21 July 2010

Place Sydney

Decision

The decision under review is set aside, and the matter remitted to the Minster for reconsideration with the direction that Mr Dandan is not ineligible to become an Australian citizen by reason of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

....................[SGD].................
Senior Member

CATCHWORDS
CITIZENSHIP – application for Australian citizenship – character test – policy criteria – consideration of applicant’s criminal history

Australian Citizenship Act 2007 (Cth) – s 21(2)(h)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Shi v Migration Agents Registration Authority (2008) 235 CLR 28
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 18
Bates and Minister for Immigration and Multicultural Affairs [2007] AATA 29
Booth and Minister for Immigration and Citizenship [2009] AATA 185

REASONS FOR DECISION

21 July 2010

Senior Member A K Britton

1. Mr Anis Dandan applies to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship not to grant his application for Australian citizenship. The stated reason for the decision was because the delegate was not satisfied that Mr Dandan was of “good character” — one of the statutory criteria for Australian citizenship. Central to that decision was Mr Dandan’s 10 year criminal history, during which he was convicted of a number of offences including possession of prohibited drugs, larceny and shoplifting.
2. Mr Dandan is 37 years of age and a citizen of Lebanon. He has lived in Australia continuously since 1994 when he arrived with his family. He was granted permanent residency in 1997. He is married and has three children. Mr Dandan and his wife have been operating a small business since October 2008.

TIME OF ASSESSMENT

3. An issue that arises in these proceedings is the point in time the assessment of whether Mr Dandan is of “good character” is required to be made.
4. In Shi v Migration Agents Registration Authority (2008) 235 CLR 28 the High Court held that, generally, the AAT’s function is to review on the merits the original decision-maker’s decision using all the material available to it, not just the material before the original decision-maker, and reach a decision on the basis of the facts as they stand at the time it makes it decision, not at the time of the original decision. However, the Court recognised that this general rule was not of universal application and that the enabling legislation may confine the AAT to the facts, and the material that bears on those facts, as they stood at some earlier point in time, such as the date of the original decision.
5. In this matter, the enabling legislation, the Australian Citizenship Act 2007 (“the Act”) sets out the eligibility criteria for Australian citizenship and provides at s 21:

(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.

6. As is apparent, the age and residency criteria must be satisfied at the time the application to become an Australian citizen was made: paras (a), (b) and (c). With the exception of the good character criterion, none of the remaining criteria expressly stipulate the point in time each must be satisfied.
7. Read literally, the reference to “at the time of the Minister’s decision” in para (h) introduces a temporal limitation of the kind referred to in Shi. The decision-maker is restricted, on this view, to considering whether the applicant satisfied the criteria of good character at the time the Minister’s initial decision was made.
8. However, the paragraph must be read in the context of the subsection as a whole. Section 21(2) is expressed in the present tense: “the Minister is satisfied that...”. It requires the Minister to be satisfied that the criteria set out in that subsection are met — in other words, the Minister must make a “decision”. Paragraph (h) then refers to an assessment of the person’s character “at the time of the Minister’s decision on the application”.
9. On review, the AAT places itself in the shoes of the original decision-maker. As such, on review, the reference to the “time of the Minister’s decision” in s 21(2)(h) should be construed as a reference to the time the decision-maker – the Tribunal – makes its decision. The Tribunal must therefore consider whether the applicant was of good character as at the date of its own decision on review.
10. It is therefore necessary to decide whether Mr Dandan is of good character at the time my decision is made, and not as of October 2009 — the date the original decision was made by the Minister.

THE MEANING OF “GOOD CHARACTER”

11. The meaning of the term “good character” has been considered in the context of the Act by the Tribunal (differently constituted) on a number of occasions: see, for example, Booth and Minister for Immigration and Citizenship [2009] AATA 185; "CDCZ" and Minister for Immigration and Citizenship [2008] AATA 644; Long and Minister for Immigration and Citizenship [2010] AATA 464; Haeri and Minister for Immigration and Citizenship [2009] AATA 422.
12. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, the Full Court of the Federal Court considered the meaning of the term in the context of the migration legislation. Lee J said 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... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... . Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.” (citations omitted).

13. Davies J said in the same case at 425:

I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

14. In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said at 197:

The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.

Australian Citizenship Instructions

15. The Australian Citizenship Instructions (“the Instructions”) have been issued under the Act. The stated role of the Instructions is to:

[S]upport the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.

16. Chapter 10 of the Instructions states that:

The term “good character” is not defined in the Act. Decision makers must therefore be guided by the ordinary use of the words in making assessments.
It is the responsibility of the applicant to show that they are of good character. If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.
...
An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. ... An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.
...

17. The Instructions list a number of factors that decision makers should have regard to where a person has a criminal record. They include:

the seriousness of any offences against ordinary community standards
...
whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond
...
whether an offence was a one-off occurrence that can now be considered "out of character", or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see below).

whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

the applicant’s age at the time the offence(s) were committed

A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person's behaviour immediately prior to the making of a decision.

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 and thus justify a conclusion that a person is now of good character.

CRIMINAL HISTORY

18. A copy of Mr Dandan’s criminal history was tendered in these proceedings, and for convenience is summarised below.

Offence	Sentencing Date	Sentence
Shoplifting <$2000	6 February 1997	Fine - $150
Possess Prohibited Drug	16 July 1997	Fine - $200
Possess Prohibited Drug	17 June 1998	Fine - $100 18 month good behaviour bond
Licence cancelled drive vehicle cancelled for	15 October 1998	Fine - $300 Costs - $51 6 months licence disqualification
Driving unregistered vehicle	15 October 1998	Fine - $50
Drive uninsured motor vehicle	15 October 1998	Fine - $50
Trespass	24 February 1999	Fine - $200
Driving while disqualified	24 February 1999	Fine - $1000 Costs - $52 12 months disqualification concluding 14 April 2000
Possession of stolen goods	12 August 1999	Fine - $500 Costs - $52
Shoplifting <$2000	5 November 1999	Fine - $400 Costs - $54
Larceny <$2000	17 May 2000	Fine - $500
Driving while suspended	26 September 2000	12 month good behaviour bond
Driving unregistered vehicle	26 September 2000	Fine - $300 Costs - $56
Driving uninsured motor vehicle	26 September 2000	Fine - $300
Larceny <$2000	4 July 2002	Fine – $250 Costs – $59
On or about drug premises	19 September 2002	Convicted – s 25(2) warrant to issue
Shoplifting <$2000	21 October 2002	12 month good behaviour bond Costs - $59
Possession of suspected stolen goods	21 October 2002	12 month good behaviour bond Costs - $59
Receive/dispose of stolen goods <$2000	21 October 2002	Filed in court
On or about drug premises (first instance warrant)	11 November 2002	Fine - $400 Costs - $59
Possession of suspected stolen goods	5 December 2002	Convicted – s 25 warrant to issue
Larceny <$2000	9 January 2003	Community service order – 100 hours
Possession of suspected stolen goods (first instance warrant)	30 January 2003	12 months good behaviour bond Take prescribed medication and attend counselling in accordance with medical advice
Shoplifting <$2000	7 April 2004	Community service order – 150 hours
Shoplifting <$2000	22 September 2004	Community service order – 100 hours
Shoplifting <$2000	22 September 2004	Community service order – 100 hours
Larceny	22 September 2004	Community service order – 100 hours
Larceny <$2000	3 December 2004	Fine - $2000
Shoplifting <$2000	14 February 2005	Convicted – s 25(2) warrant to issue
Shoplifting <$2000	5 July 2005	12 month suspended sentence Report to probation and parole service Directed to drug/alcohol treatment.
Shoplifting <$2000	31 October 2005	12 months imprisonment; 6 month non-parole period. Conviction confirmed in District Court on 22 November 2005 – in lieu, 2 month non-parole period
Shoplifting <$2000	4 July 2006	18 months probation.
Possession of prohibited drug	5 October 2007	Fine - $300 Costs - $70

HISTORY OF ILLICT DRUG USE

19. According to Mr Dandan, he started using opiates in about 1997, developed an addiction, and later became involved in criminal activity.
20. Mr Dandan testified that he has not used illicit drugs since October 2005, when he commenced a 12 months custodial sentence (six months non-parole) following conviction on two counts of shoplifting. He claimed that shortly after his incarceration he decided to “stay clean”.
21. On his release from prison in March 2006, Mr Dandan undertook and successfully completed, the MERIT [Magistrates Early Referral into Treatment] program — a 12 week supervised drug treatment program provided to persons released on parole assessed as motivated to undertake drug treatment. At the same time he was also referred to an opiate treatment program operated by the Sydney South West Area Health Service. Under that program Mr Dandan was provided with a range of clinical, counselling and welfare services. References provided by staff of the Area Health Service indicate that Mr Dandan has been compliant in his treatment. Regular testing conducted by the Service supports Mr Dandan’s claim that he has not used illicit drugs since his incarceration in 2005. In October 2009, the Service assessed his condition as stable and concluded that he no longer required its services.
22. Since October 2009, Mr Dandan has been under the care of Dr Geoffrey Needham. In a letter tendered in these proceedings, dated 14 January 2010, Dr Needham wrote that Mr Dandan “has been of excellent behaviour at all times with no evidence of any current drug-related issues”.
23. Mr Dandan testified that he understands that he suffers from a life-long addiction, but is confident he will not relapse. He said that it had been “a long battle” and one that he won in 2005.

MOST RECENT OFFENCE

24. The sole offence for which Mr Dandan has been charged since his release from prison in 2006 is “possess prohibited drugs”. That offence was committed in February 2007. At the time, Mr Dandan was on an 18 months good behaviour bond. In these proceedings, Mr Dandan testified that this was the first and only time he had attempted to use illicit drugs after commencing the custodial sentence in 2005. He said he now believed he had been fortunate to have been arrested because it meant that his time free of drug use was not “thrown away”. When asked why he decided to use drugs again after being drug-free for over 12 months, he said he could not explain his actions but thought it possible that it was because it was a difficult time in his life — he had been unable to find employment, and was experiencing financial problems.
25. The sentencing magistrate fined Mr Dandan $300 and directed that no action be taken in relation to the breach of the bond. On sentencing the Magistrate commented:

Mr Dandan it is unfortunate for you to be back before the Court for this type of offence. For when I read the material, the Sydney South West Area Health Service there have been no drugs detected in your system since May ’05, so for someone that has had a significant drug problem in the past and your record is clearly one that has been someone that has wrestled with drug addiction it seems to me... [A]nd so in a sense it was fortunate that the police came upon you before you had the opportunity to inject because otherwise the progress you made in the 18 month or so, more like 20 months from the period from May 05 to February 07 could have been jettisoned entirely that is a very positive thing... you still remain drug free and that is pretty good.
You’ve done MERIT and you did well with that. This is not the world’s most serious offence and drug, in saying that, it has to be borne in mind that any drug offence is a serious offence but in the scale of such offences this matter falls towards the bottom of the scale and I will deal with it accordingly.

Decision

26. It falls to Mr Dandan to rebut the presumption that he is not of good character as a consequence of his criminal record. To decide whether the presumption has been rebutted it is necessary, among other things, to have regard to the factors listed in the Instructions as set out above.
27. The seriousness of any offences: None of the offences for which Mr Dandan was convicted involved physical violence. They involved offences against property, traffic and drug-related offences (possession of drugs and entering drug premises). With the exception of the 2005 conviction for shoplifting, none resulted in a custodial sentence. That conviction related to two counts of shoplifting. Each involved the theft of confectionary to the value of about $300. On appeal, the NSW District Court commented:

The sentence imposed...appears to be an abuse of section 12 [Crimes (Sentencing Procedure) Act 1999 (NSW)]. But there is nothing this court can do about that.

28. Sides DCJ considered that a non-parole period of two, not six months to be appropriate, but did not vary the original sentence as he of the opinion that he was without power to do so.
29. While it goes without saying that any criminal conduct is serious in nature, in my opinion all of the offences were at the low end of the scale. That view is consistent with the relatively lenient sentences imposed, apart from that relating to 2005 conviction.
30. On-going sentencing obligations: Mr Dandan’s section 9 bond [Crimes (Sentencing Procedure) Act] was discharged on 4 January 2008. Apart from the 2007 offence, there is no evidence of non-compliance with conditions of the bond.
31. Age at time of offending: Mr Dandan’s criminal history spanned a period of ten years, 1997- 2007, commencing when he was about 24 years of age.
32. Offending conduct: Mr Dandan has been involved in criminal activity for over half his adult life. His offending conduct cannot be dismissed as an aberration. It is therefore necessary to decide if Mr Dandan has, as claimed, been “rehabilitated” and any likelihood of recidivism.
33. The evidence makes plain that Mr Dandan’s criminal activity corresponded with a period of heavy drug use. Apart from the 2007 “possess prohibited drug” offence, there is no evidence of Mr Dandan having been involved in criminal activity during any period when he was drug-free. While it would be simplistic to suggest that his offending conduct resulted from his drug use alone, the evidence nonetheless suggests that the two were closely linked.
34. There is no evidence and nor is it suggested that Mr Dandan has used illicit drugs since October 2005 or attempted to do so since February 2007.
35. In a report dated 20 June 2008, clinical psychologist Anthony Williams provided an opinion that Mr Dandan was fit to hold a hold a taxi driver’s licence. In his opinion, Mr Dandan did not suffer from any mental illness. He concluded that Mr Dandan had “a very strong chance of leading a drug free life from now on”. That opinion was based on, amongst other things: Mr Dandan’s resolve to remain drug free; his strong desire to retain his status as a “worthwhile man in the eyes of the family, his culture and himself”; and his willingness to assist with all the demands of the treatment process and support provided by medical practitioners and other support professionals.
36. I am satisfied that since October 2005, Mr Dandan has made a genuine and diligent effort to tackle his addiction. The evidence makes plain that he has been compliant and diligent in his treatment throughout this period. Mr Dandan’s own admission makes it apparent, however, that his battle with addiction has not been easy as evidenced by his attempted relapse as recently as January 2007. Given the strength of an opiate addiction, it is not possible to exclude the possibility of a relapse. However it seems to me, given Mr Dandan’s responsiveness and commitment to treatment over an extended period, together with the evidence that he has been drug-free for close to five years, that a relapse is unlikely.
37. Behaviour immediately prior to the making of a decision: Mr Dandan and his wife have been operating a small business since 2008. The testimonials provided in support of Mr Dandan, support his account that he has worked hard in his business and is a devoted family man. As noted, there is no evidence of Mr Dandan being involved in any criminal activity since February 2007.
38. Reputation in the community Mr Dandan provided the Tribunal with seven character references (see Exhibit A1 - A9). These include references in the form of letters from family members, family friends and persons who have been involved in his treatment. All are apparently persons of good repute. All speak highly of Mr Dandan. Some make no mention of his criminal history or addiction. A number refer to the “past” in general terms. A number refer to the change in behaviour in Mr Dandan over the past few years and his success in battling his addiction.
39. As the Minister points out, little weight can be given to those references that make no mention of Mr Dandan’s criminal history or addiction. Nonetheless the subjective assessment of his good character supports Mr Dandan’s self report that over recent years he has taken a responsible attitude to the performance of his obligations to his family and the wider community.
40. Conclusion The parties agree that the key issue raised by Mr Dandan’s application is whether the passage of time since his last offence is sufficient to rebut the presumption that arises as a result of his criminal history that he is not a person of good character.
41. The Minister contends that an insufficient period of time has elapsed for Mr Dandan to rebut the presumption of bad character. Mr Dandan not surprisingly disagrees.
42. The following factors in my opinion are supportive of a finding that Mr Dandan is now of good character. First, the evidence of being drug-free for close to five years. Second, the evidence of Mr Dandan receiving intensive treatment for his addiction for over four years and his record of compliance with treatment. Third, the absence of any further convictions or evidence of non-compliance with supervision orders since 2007. Fourth, the evidence that Mr Dandan has insight into his condition as demonstrated by the evidence given in these proceedings and his willingness to seek treatment and assistance. Fifth, the opinion of family members and friends that Mr Dandan is a reformed person. Sixth, the evidence of Mr Dandan’s efforts to establish a business to support his family. Seventh, the evidence of Mr Dandan’s willingness to assume responsibility in his role as father and husband.
43. In reaching this assessment, I have given consideration to the argument put for the Minster that given the link between Mr Dandan’s drug use and offending behaviour, the period since his last attempted drug use — now about 43 months — is insufficient to allow me to comfortably conclude that he will not relapse into drug use in the future. In support, the Minister cites Booth and Minister for Immigration and Citizenship [2009] AATA 185 and Bates and Minister for Immigration and Multicultural Affairs [2007] AATA 29. In both cases the applicant had a history of drug related offending. The Tribunal in each matter concluded that the applicant was not of good character despite being drug free for more than five years (Booth) and three years (Bates).
44. In my view, these cases are of limited assistance. Whether an applicant with a drug related criminal history can rebut the presumption that they are not of good character will turn on the facts of their case. Similarly, the period of abstinence necessary to support a finding that a person is unlikely to return to drug use cannot be reduced to an arbitrary formula. Each matter must be assessed on its merits. For the reasons canvassed above, I consider a period of 43 months in this case to be sufficient to allow me to be comfortably satisfied that Mr Dandan will not relapse into drug use.
45. I am satisfied that Mr Dandan has demonstrated a pattern of good behaviour over a reasonable period. I am also satisfied that for the reasons referred to above he is now a person “of good character” within the meaning of s 21(2)(h) of the Act.
46. For these reasons, I have decided to set aside the decision under review and remit the decision to the Minster for reconsideration with the direction that Mr Dandan is not ineligible to become an Australian citizen by reason of s 21(2)(h) of the Act.
    

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ...................................[SGD]........................................

Associate to Senior Member Britton

Date of Hearing: 28 June 2010

Date of Decision: 21 July 2010

Representative for the Applicant: Mr A Sandroussi, AYS Legal

Representative for the Respondent: Mr G Johnson, DLA Phillips Fox