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

[2023] AATA 1091

Abuuh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1091 (9 May 2023)

Division:GENERAL DIVISION

File Number(s):      2021/7618

Re:RASHID MOHAMUD ABUUH

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date:9 May 2023

Place:Brisbane

The decision under review is affirmed.

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

Senior Member R Bellamy

CATCHWORDS

CITIZENSHIP – revocation of citizenship by conferral following conviction for serious offences – section 34(2) of the Australian Citizenship Act 2007 – where revocation would not render the Applicant stateless – exercise of discretion to revoke citizenship where allowing Applicant to remain an Australian citizen would be contrary to the public interest – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Director of Public Prosecutions v Smith [1991] 1 VR 63

SECONDARY MATERIALS

Australia Citizenship Policy Statement

Citizenship Policy Instruction 15 - “Assessing Good Character under the Citizenship Act”

REASONS FOR DECISION

Senior Member R Bellamy

9 May 2023

1. The Applicant was born in April 1993. When he was 16 years old, he and his family came to Australia “for a better life”[1]. At age 22, he and two others robbed and raped two sex workers at knifepoint. He lied to the police and was not charged until six months later, after further investigations had taken place. In the interim, he applied for, and obtained, Australian citizenship by conferral. He was ultimately convicted and imprisoned for his crimes. The Tribunal is tasked with determining whether the Applicant’s citizenship can and should be revoked. His citizenship can be revoked if it would not render him stateless, and it would be contrary to the public interest for him to remain an Australian citizen.

   [1] Transcript page 12, line 16.

2. The hearing of this matter took place on 13 February 2023. The Applicant gave evidence via video conference. The documentary material concerning the index offending and related matters, being witness statements and trial transcript etc, was voluminous[2] and not every piece of adverse evidence was put to the Applicant. However, he and his legal representative had access to the material in advance of the hearing and he was ably represented by counsel prior to and during the hearing.

   [2] Listed in Annexure A – Exhibit Register.

   MATTERS RELEVANT TO PUBLIC INTEREST

3. The grant of Australian citizenship by conferral is governed by Subdivision B of Division 2 of the Australian Citizenship Act 2007 (Cth) (“the Act”). Under s 34(2)(b)(ii) of the Act, the Minister may revoke the citizenship of as person who obtained citizenship under Subdivision B of Division 2 if at any time after making the application the person was convicted of a serious offence and the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. Serious offence includes a conviction that resulted in a sentence of imprisonment of at least 12 months.[3] However, subsection 34(3) has the effect that the Minister cannot revoke a person's Australian citizenship under subparagraph 34(2)(b)(ii) if doing so would mean that the person is not a national or citizen of any country.

   [3] Subsection 34(5) of the Act.

4. I have found revoking the Applicant’s citizenship would not mean that he is not a national or citizen of any country, and I will give my reasons after addressing the other issues.  

5. The Applicant’s conduct prior to and since obtaining citizenship speaks to his character and to the risk of harm he poses to the Australian community. Both are key to whether it would be contrary to the public interest for him to remain a citizen. In addition to the robbery and rapes, which I shall refer to as the index offending, the Applicant committed several driving related offences.

6. On the night of 9 February 2013, the Applicant lost control of the vehicle he was driving. He mounted the kerb and the front of the vehicle penetrated the brick wall of a shop. A witness saw the Applicant and some other males attempt to exit the vehicle. He asked if everyone was okay and advised them not to move the car in case the building fell down. The Applicant told him to “Shut up or you’ll get bashed”. The Applicant left the vehicle and the police later tracked him down using the vehicle registration. As he was on a provisional driver’s licence, he was not allowed to have any blood alcohol in his system while driving. However, his blood alcohol content when tested by the police was 0.114. He was constantly rude and argumentative with police.[4]

   [4] Exhibit R2, pages 77 to 78.

7. In 2018 the Applicant told a psychologist, Dr Morris, that the accident was not his fault and that:

   “The brakes failed, which, yes, was my fault for not getting them fixed, but I couldn’t get them fixed until I got some money…”

8. He also told Dr Morris that he had not been drinking before the accident, but he had consumed a bottle of Jim Beam at a friend’s place afterward because his friend told him to, then he had gone to the police station to tell them what happened.[5] In the hearing he admitted that he had consumed alcohol “hours before” the accident but maintained that he handed himself in to police.[6] I find that the Applicant drove under the influence of alcohol. I do not accept that he handed himself in afterwards as it is contrary to the contemporaneous police record and he has previously given a false account of events (to Dr Morris).  

   [5] Exhibit T1 – Section 37 T-documents, T8, page 56.

   [6] Transcript page 14, lines 30 to 34.

9. The police issued the Applicant with a summons to attend court and an Immediate Suspension Notice which he refused to sign. They also seized his driving licence.[7] On 24 August 2013 the Applicant was caught driving with a blood alcohol content of 0.119. The police issued another summons to attend court and another Immediate Suspension Notice. A week later, on 31 August 2013, the police intercepted the Applicant while driving. He told the police that he had a driver’s licence but the police had taken it. He said he had been driving the whole time, did not understand why he could not drive, and would continue to drive. His car was also unregistered.

   [7] Exhibit R2, pages 77 to 78

10. On 22 November 2013 the A.C.T Magistrates Court disqualified the Applicant from holding a licence until 23 November 2015 and released him on an 18 month good behaviour bond.[8]

    [8] Exhibit R2, pages 196 to 200.

11. On 21 May 2015, while the Applicant remained disqualified from holding a licence, he was stopped by police in New South Wales and asked to produce his licence. He said “I don’t have it on me. I was disqualified, that ended and I applied for a new licence”, which was untrue. The registration of his vehicle was expired and he admitted that he knew that but he did not have the money to renew it. The vehicle was also uninsured. He was charged by way of Court Attendance Notice.[9]

    [9] Exhibit R2, page 215.

12. On 31 July 2015, the Queanbeyan Local Court (NSW) fined the Applicant a total of $880 for driving during a disqualification period, driving an unregistered vehicle and driving an uninsured vehicle, and disqualified him from holding a licence for a further two years.[10]

    [10] Exhibit T1 – Section 37 T-documents, T16, Page 134

13. A few days before that, the Applicant had been caught driving in the A.C.T while disqualified and again he falsely claimed that his disqualification period had expired and he was in the process of getting a new licence. He charged by way of summons, and eventually he was fined on 5 April 2016.

14. In November 2015, the Applicant lodged an application for an A.C.T driving licence without disclosing that he was a disqualified driver. He was issued with a provisional driver’s licence that day. A few days later, the A.C.T Road Traffic Authority (“RTA”) sent him a letter advising him that he was disqualified from holding a licence and directed him to surrender the licence within 14 days. He did not do so.

15. On 5 March 2016, police observed him in control of a vehicle with its engine on. He produced the provisional A.C.T licence which the police then ascertained had been cancelled by the A.C.T RTA. The Applicant told the police he had recently got his licence back. The police told him not to drive until they had confirmation that his licence was active. The subsequent enquiries revealed that he had dishonestly obtained the licence and it had been cancelled. A week later, on 11 March 2016, he was caught driving again.

16. The Applicant later asserted[11] that he had believed he was able to reapply for a licence and that “due to a mistake from Access Canberra he had missed their letter advising him to hand his licence back”, without stating what the mistake supposedly was.[12] Even after the police told the Applicant that his licence had been cancelled by the A.C.T authorities and directed him not to drive, he continued to drive which demonstrates dishonesty and disregard for the rules concerning licences. He was ultimately convicted[13] of driving while disqualified (x2), giving false particulars on his application and failing to surrender the license.[14] I do not accept that the Applicant believed that he could apply for a licence, or that it was the fault of anyone other than him that he did not return the licence.

    [11] Through a legal representative, when the Minister was considering revoking his citizenship.

    [12]  Exhibit T1 – Section 37 T-documents T18, page 148.

    [13]  In August 2016

    [14]  Exhibit R2, pages 197 to 198.

17. The index offending occurred on the evening of 12 March 2016. The Applicant was ultimately convicted by a jury of:

    ·     Sexual assault in the third degree;

    ·     Aggravated robbery;

    ·     Sexual intercourse without consent, in company; and

    ·     Attempted sexual intercourse without consent, in company.

18. Had the Applicant pleaded guilty, there likely would have been a statement of agreed facts provided to the court. However, the Applicant pleaded not guilty, claiming that he was coerced by his co-offenders into participating in the offences. The remarks made by the learned trial judge touched on the offending as follows:

    “[The Applicant] acknowledged that one of the sex workers, [Ms B], had performed oral sex on him, but denied that his actions had been voluntary. He denied engaging in penile vaginal sex with [Ms B] or attempting to do so.

    The [Applicant’s] account defied reasonable belief and was plainly rejected by the jury.”[15]

    [15] Exhibit T1 – Section 37 T-documents, T4, page 24.

19. It is reasonable to conclude that the guilty verdicts were based on an acceptance of the Crown case at least to the extent of the facts that established each element of each offence. I have distilled the Crown case that was put to the jury at the end of the trial.  

20. On 12 March 2016, Ahmed Al Abassi, referred to in the trial as “Khaled” made an appointment with a sex worker, “Ms B” for sexual services. There was an agreement between him, his brother (Mohammed Al Abassi) and the Applicant to rob a sex worker and get free sex. The Applicant had been friends with Mohammed for three years and he had known Khaled for a few months. Khaled entered Ms B’s unit and asked if his friend could come in too. She refused. He went outside and got the Applicant and Mohammed. He threatened Ms B with a knife and the men forced her into a bedroom. This was witnessed by another sex worker, “Ms O” who was hiding inside the unit and who sent distressed text messages to her manager, asking for police assistance. Once inside the bedroom, still being threatened with the knife, Ms B was forced to perform oral sex on the Applicant. Khaled then made her perform oral sex on him. While she did that, the Applicant attempted to have penile vaginal intercourse with her from behind but his penis was not erect.

21. Meanwhile Mohammed went to search the rest of the unit for items to steal. He found Ms O and forced her into the bedroom. She saw Khaled and the Applicant sexually assaulting Ms B as described above. She was sexually assaulted, although not by the Applicant. The Applicant snatched her mobile phone from her. At all times, the Applicant willingly participated in the offences.

22. The manager and her boyfriend arrived at the unit and banged on the door. Inside the bedroom Mohammed and Khaled hurriedly tried to get dressed and told the two victims to get dressed and act as if nothing had happened. The Applicant opened the door, keeping the inside latch on, and when he saw who it was, he tried to close the door. The manager and her boyfriend forced it open and said “Get out, the police are on their way”. The two victims were crying. The sexual acts that had been perpetrated upon them had not been consensual and were not paid for. The offenders all left but Khaled accidentally left his phone behind.

23. When Khaled realised his phone was missing, he and the Applicant made up an exculpatory story to tell the police. Essentially, they each told the police that they had each booked and paid for sexual services for an hour but had been kicked out after half an hour. The Applicant said Ms B had performed oral sex on him with a condom and that he then “give it to her doggy style”.[16]  Towards the end of his police interview, he was asked if there was anything further he wished to say about the matter and he said:

    “I want my money back. This is all I want to say. Like, I mean, if not full at least 70 bucks out of my money. Yes. That’s all”.[17]

    [16] Exhibit R2, page 486.

    [17] Exhibit R2, page 490.

24. It is helpful to consider the accounts given by the victims and by Khaled who pleaded guilty and then assisted in the prosecution of the Applicant. Ms B could not be located for the trial, however she had been interviewed by the police in the days following the offences. She said all three men carried her into the bedroom room and told her to take her pants off. She described the Applicant and said he put a condom on his penis and told her to suck it. Khaled asked her to suck his penis, and the Applicant asked her to turn around and tried to put his penis into her vagina but it was not hard.[18]

    [18] Exhibit R2, pages 1406 to 1424.

25. Ms O gave evidence that she heard Ms B say “don’t do it, don’t do it” and that her voice sounded very afraid. When she herself was forced into the bedroom she saw the Applicant with his pants down “raping” Ms B from behind, although she could not see whether there was actual penetration. She saw Khaled getting Ms B to perform oral sex on him at the same time. The Applicant grabbed Ms O’s mobile phone. She was sexually assaulted. She was very scared and complied because she was afraid that the men would hurt her.[19]

    [19] Exhibit R2, page 1605 to 1632.

26. Khaled gave evidence that he, Mohammed and Applicant formed a plan to rob a sex worker because they needed money and drugs. He said the use of a knife to scare the intended victim was part of their plan, discussed by all three of them immediately before they entered the unit block. He said he and the Applicant had one of Ms B’s arms each when they forced her into the bedroom. The Applicant took off his pants and underwear, Ms B performed oral sex on him, and the Applicant had sex with her “doggy style” although Khaled conceded that he did not know if the Applicant’s penis entered Ms B’s vagina. He said the Applicant “took the phones from the girls” and threw the SIM cards away afterwards. Later, he and the others made up a story to tell the police so they would not get into trouble.[20]

    [20] Exhibit R2, page 1661 to 1703.

27. The Applicant gave evidence. He denied having told Ms B to suck his penis, claiming that Khaled told him “Get your penis out, she will suck it for you”so he had to undo his pants “a little bit”.[21] He denied having attempted to have sex with Ms B from behind and stealing Ms O’s phone. He denied having known what Khaled intended to do when they arrived at the unit. He claimed that he went along with the offending because the Al Abassi brothers had been smoking ice which normally made them aggressive and they had a knife.

    [21] Exhibit R2, page 1761.

28. The Applicant has given inconsistent accounts concerning the knife. In his evidence in chief in the trial he said when he saw the knife he was “nearly fainting in shock”.[22] In an affidavit dated 25 November 2022, he claimed that he had not known the Al Abassi brothers had a knife before one of them pulled it on the victims.[23] In the Tribunal hearing, he said “somehow there was a knife involved into the – going into that property…”.[24] However, under cross examination in the trial, he indicated that he had seen a knife in the Al Abassi’s car on previous occasions when they had been driving together. [25] 

    [22] Exhibit R2, page 1755.

    [23] Exhibit A2, page 2, para 16.

    [24] Transcript page 15, lines 36 to 37.

    [25] Exhibit R2, pages 1818 to 1819.

29. On many occasions in his evidence in the trial, the Applicant indicated that he was terrified into committing the offences. For example, he said he was forced into the bedroom and that he had to undo his pants because “this man was really about to kill me, he was trying to get me into what they were doing”.[26] However, he did not claim that any verbal threat was ever made, that the knife was ever directed at him, that any violence was done to him, or that there was any physical impediment to him leaving the unit. He said he had given a false account to the police because Khaled told him to and he was afraid of him.

    [26] Exhibit R2, page 1762.

30. Duress is a complete defence. Once raised, the prosecution must refute it beyond reasonable doubt. As the learned trail Judge said, the jury must have rejected the Applicant’s defence which he described as defying reasonable belief.   

31. The first count on the indictment was sexual assault in the third degree. It is apparent from the sentencing remarks that the Applicant was found guilty of committing this offence in company. Section 53(3) of the Crimes Act 1900 (ACT) essentially provides that it is an offence if a person (“offender”) who, acting in company with any other person, unlawfully assaults or threatens to inflict grievous or actual bodily harm on a person (“victim”) with the intent that the offender or any other person with whom he in company should engage in sexual intercourse with the victim or any other person who is present or nearby. This offence describes the Applicant’s participation in forcing Ms B into the bedroom at knifepoint for the purpose of her being sexually assaulted.

32. Aggravated robbery refers to the Applicant stealing Ms O’s mobile phone.

33. Sexual intercourse without consent in company refers to the Applicant getting Ms B to perform oral sex on him while Khaled (at least) was present. Attempted sexual intercourse without consent, in company refers to his attempt to have penile vaginal sex with Ms B while his co-offenders were present. The mental element for these offences is either knowledge that the victim is not consenting or recklessness as to that fact. 

34. I am satisfied that the Applicant committed all of these offences willingly, without any threat of harm pressing upon him. I am also satisfied that he willingly gave a false account to the police to avoid getting into trouble.     

35. On 27 March 2016, around two weeks after committing the offences against Ms B and Ms O, the Applicant was again caught driving whilst disqualified. On 5 April 2016, the Applicant was disqualified from holding a licence for two years.

36. On 8 April 2016, less than four weeks after committing the index offences, the Applicant lodged an application for Australian citizenship by conferral. Section 21 of the Act provides general eligibility criteria for citizenship by conferral along with special eligibility criteria that apply to certain categories of people. Only people who are under 18 or people who were born in Australia and are stateless do not have to meet the good character requirement.[27] As the Applicant does not fall into those categories, it was incumbent on him to satisfy the Minister (or a delegate) that he was of good character. As there is no evidence that he suffered an impairment that would have exempted him from the citizenship test, he would also have had to successfully complete that test to prove that he understood the nature of the application, and possessed a basic knowledge of the English language and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

    [27] Australian Citizenship Act 2007 (Cth) section 21(5) 21(8).

1. The application form required the Applicant to disclose whether he had been convicted of, or found guilty of, any offences, including traffic offences which went to court. He ticked “Yes”. The form required “ALL relevant details” including “nature of the offence, full details of sentence and dates of any period of imprisonment or other detention”. He merely wrote “traffic offence”, singular.[28] The form also asked if he had any charges pending. He answered “no”. At that time, the police had commenced the process of prosecuting him for the four traffic offences committed in November/December 2015 and March 2016 but it is not apparent from the material before me when they charged the Applicant. He had not yet been charged with the index offending. Had there been any charges pending against the Applicant, it would have constituted a breach of s 24(6) of the Act for his application to have been approved.      

   [28] His sister read him the questions, he answered them, and she wrote the answers because her handwriting is better than his.

2. The Applicant’s mother and sisters had become Australian citizens in 2014. According to the Applicant he applied then but was ineligible because he was subject to a good behaviour bond.[29] This explanation accords with s 24(6)(f) of the Act.

   [29] Transcript, pages 49 to 50. page 51, lines 10 to 15.

3. The Applicant’s good behaviour bond expired in May 2015, yet he did not re-apply until April 2016. When the Applicant was asked about the timing of his application, so soon after having committed the index offences, he said he applied as soon as he was eligible.[30] This is obviously not correct. He denied that when he applied he thought there was a realistic possibility that he would be charged with the index offending, quite unconvincingly claiming that he “Didn’t think about it”. He also claimed to be ignorant of whether people in Australia on visas could have their visas cancelled for committing serious offences. He denied that he applied for citizenship to avoid having his visa cancelled.[31]

   [30] Transcript, page 51, lines 10 to 15; page 52, lines 5 to 10.

   [31] Transcript page 48, line 40 to page 49, line 16.

4. The circumstances of the Applicant’s application for citizenship strongly suggest that he was substantially motivated to apply for citizenship to ensure he could continue to live in the Australian community despite having committed very serious offences. As he has not provided a plausible alternative explanation, I find that this was the case. This was the second time he tried to avoid the legal consequences of his offending, the first being when he gave a false account to the police.

5. On 2 June 2016, the Applicant became an Australian citizen.[32] The remarkable speed with which his application was approved is perhaps something the department should look into. The Applicant said that he obtained a passport that day. On 22 June 2016, he unsuccessfully applied for a visa to Saudi Arabia, where he had spent several years of his childhood.  

   [32]  Exhibit T1 – Section 37 T-documents, T13, page 93.

6. On 8 August 2016, the Applicant was dealt with for the offences he committed in November 2015 and March 2016. He was sentenced to a 12 month good behaviour bond and a total of 120 hours (orders of 40 hours each) of community service.

7. On 29 September 2016, the Applicant was charged with the index offences. Within hours of being charged, he went to a travel agency, Escape Travel, and arranged for a one-way plane ticket to Somalia, although he did not purchase a ticket that day.

8. On 11 October 2016, the Applicant appeared in court for the first time with respect to the index offending and entered into a bail undertaking. His bail conditions included an obligation to be at his mother’s home, where he lived, between 11pm and 6pm each day and to report to the police station every Friday. There is no evidence that he sought the court’s permission to travel to Somalia. Later that day, he returned to Escape Travel and bought a one-way ticket to Mogadishu, departing Sydney on 19 October 2016. This travel would obviously have contravened the bail conditions he had agreed to only hours earlier.   

9. In the trial, the manager of Escape Travel, who had assisted the Applicant to arrange his travel, gave evidence that a one way ticket to Africa normally costs around 85% of a return ticket. She said she told him that and she recommended a return ticket if the Applicant was going to come back within 12 months. He told her there was no need for a return ticket.

10. The Applicant’s explanation was that he was planning to meet a girl, Fatima, with whom he had been in a long-distance relationship since 2013. She lived in Saudi Arabia. He planned to visit her once he obtained Australian citizenship and arrange with their families for him to marry her. When he could not get a visa to meet her in Saudi Arabia, they agreed to meet in Somalia.[33]

    [33] Exhibit R2, pages 1772 to 1773.

11. When the Applicant was asked in the Tribunal hearing if he thought it odd to be going overseas and marrying somebody just after he had been charged with serious offences, he said:

    “…all I wanted was to go and see this girl after talking five years to her and the promises we were making to each other for five years and when the charges came by, I thought this is the most appropriate time for me since I became a citizenship at that time also.”[34]

    [34] Transcript, page 61, lines 40 to 46.

12. The Applicant got his citizenship and Australian passport in June 2016, yet the two events that promoted him to take steps to purchase a ticket were being charged in late September and attending court in October. He sought to explain the delay on the basis that he was saving his Centrelink benefits,[35] however he provided no evidence to corroborate that and it still does not explain why he attended the travel agency on the very day that he was charged and appeared in court, respectively.

    [35] Transcript, page 62, lines 9 to 11.

13. The Applicant claimed that his bail conditions required him to report to his Corrections officer, that his Corrections officer could authorise any changes to his bail conditions, and that he showed his travel documents to someone at Corrections as he wanted permission to go to Somalia. However, the bail undertaking required him to report to the police, not Community Corrections. Nor was there any provision in the bail undertaking for Community Corrections to change his bail conditions. He could have asked the court when his bail was decided but he did not.

14. The Applicant claimed to have booked the ticket thinking that if it was booked he would have better prospects of being allowed to go and return before the next court date.[36] He said he went to show them that he was “just going for a small, short period just to go to see that girl and I will come back for my court date”.[37] I note that a one-way ticket would not convey an intention to go for a short period. The Applicant said the manager was not there, the girl from the office said they would notify him and that night the police arrested him.[38]   

    [36] Transcript, page 22, lines 15 to 24.

    [37] Transcript, page 61, lines 25 to 28.

    [38] Transcript, page 61, lines 30 to 34.

15. A pre-sentence report, written by Community Corrections, indicates that the Applicant sought permission to travel while subject to community service orders, but he had only purchased a one way ticket and he was also on bail.[39] The transcript of the trial indicates that there was a Community Corrections officer who was able to give evidence that on 12 October 2016, the Applicant provided medical certificates and copies of documents from Escape Travel as an excuse for not attending supervision. He did not mention bail conditions. When they mentioned bail, he became very angry and said that bail was none of their business. They called the police.[40] In the trial, the jury were only told that the Applicant disclosed his travel plans to a government official. He denied having become angry and denied realising his bail conditions included a curfew.[41]

    [39] Exhibit R2, page 38.

    [40] Exhibit R2, pages 1741 to 1743.

    [41] Exhibit T1 – Section 37 T-documents, T2, page 1847 and 1852.

16. I am not persuaded that the Applicant’s disclosure of his travel plans to Community Corrections is demonstrative that he wanted his bail conditions varied to allow for a short return trip to Somalia. The evidence of what he actually did gives rise to a very strong inference that he purchased a one-way ticket to Somalia for the purpose of avoiding the charges he was facing, and I find that this was his motivation. This was his third attempt to avoid the legal consequences of his offending.

17. When the police went to the Applicant’s mother’s home to arrest him, he was not there during the hours he was required to be there, in breach of the curfew. He was remanded in custody.[42] On 8 November 2016, he was granted bail and made to surrender his passport. He subsequently breached his bail conditions by failing to report as required.[43]

    [42] Exhibit R2 page 161

    [43] Exhibit R2, page 168.

18. The Applicant’s fourth attempt to avoid the legal consequences of his offending came when he pleaded not-guilty and gave false testimony in the trial in late August 2017. By exercising his right to plead not-guilty, thereby requiring the Crown to prove what he knew he had done, he made it necessary for Ms O to relive the ordeal she had suffered. When questioned about this, he emphasised that Ms O was not the one he was accused of assaulting – he claimed not to have had “anything with her”.[44] His response ignores that fact that Ms O’s memory of what she saw happen to Ms B is inextricably linked with her memory of what was done to her, and that the Applicant stole her phone. When the Applicant was asked if he accepted that it would have been traumatic for her and asked if he regretted putting her through that traumatic experience, he answered “yes” to both questions[45] but I found his responses to be superficial. Some of his expressions of remorse with respect to the victims had to be coaxed. My impression was that he was merely paying lip service without any real empathy or real acceptance that he had done the wrong thing. Generally, he appeared to be more concerned wi.th the impact of the convictions on himself and sometimes with the impact on his family.[46]   

    [44] Transcript, page 41, lines 20 to 25.

    [45] Transcript, page 41, lines 32 to 34.

    [46] For example, his evidence at – page 39, lines 36 to 43 of the transcript.

19. On 12 December 2017, the Applicant was given a total effective sentence of three years and eight months imprisonment, commencing on 12 August 2017, with a non-parole period of two years and two months. His co-offender received longer prison sentences despite pleading guilty and assisting the Crown. It was contended on the Applicant’s behalf that this evidenced an acceptance by the Judge that they had, indeed, pressured the Applicant. However, the learned Judge’s sentencing remarks do not support such an inference. Moreover, the following comment by his Honour indicates that there were other factors that contributed to the longer sentences the Al Abassis were given:

    “…. I think that this offender should be treated in generally the same manner as Mohammed Al Abbasi. It is difficult to achieve precise parity because of other unrelated matters that affected the sentencing of Mr Al Abbasi…”[47]  

    [47] Exhibit T1 – Section 37 T-documents, T13, page 104.

20. On 14 December 2017, the Respondent advised the Applicant that the Minister was considering whether to revoke his citizenship. The Applicant’s (then) legal representatives made submissions to the Minister against his citizenship being revoked. On 17 September 2021, the Minister revoked the Applicant’s citizenship.

21. The Applicant was released on parole on 10 October 2019. On separate occasions in early 2020 he committed two speeding offences and he disobeyed a traffic signal.[48] He has not been charged with or convicted of any offence since then. He is no longer on parole.

    [48] Exhibit R2, page 72.

22. The Applicant sought review of the Minister’s decision in this Tribunal.[49] In the hearing he adhered to the duress excuse he gave in his trial. However, whereas in his trial he denied having attempted to have penetrative sex with Ms B, in the hearing he admitted he did that but “not willingly”.[50] 

    [49] Under s 52(1)(f) of the Act.

    [50] Transcript, page 38, lines 24 to 27.

23. The Applicant indicated that he blamed himself for making the mistake of being in that kind of situation and associating with “these kind of people”, meaning the Al Abassis.[51] When it was put to the Applicant that there was no evidence of him protesting, he said they were on ice (methamphetamine) and when he saw the knife he said to himself “Get out of there as soon as there is opportunity without getting harmed.”[52] He initially claimed the Al Abassi brothers threatened him with the knife, however, when probed about this, he conceded that he had entered the apartment before he saw the knife out, and he conceded that the knife was being held to the victim.[53]

    [51] Transcript, page 39, lines 36 to 37.

    [52] Transcript, page 40, lines 4 to 6.

    [53] Transcript, page 40, lines 40 to 43.

    CONSIDERATION

24. I now turn to consider whether it would be contrary to the public interest for the Applicant to remain an Australian citizen. In DPP v Smith[54] the Supreme Court of Victoria stated:

    “… The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals…”

    [54] [1991] 1 VR 63 at 76.

25. For the reasons that follow, I accept the Respondent’s contention that revoking the Applicant’s citizenship would be of considerable benefit to the Australian community, and therefore in the public interest, because:

    a)it would remove the conferral of citizenship on a person who ought never have been granted it in the first instance;

    b)it would pave the way for the Minister to potentially protect the Australia community from the risk posed to it by the Applicant (by the Applicant being susceptible to visa cancellation) and therefore provide compelling reason for him to behave; and

    c)it would mark the community’s disapproval of serious offending conduct by persons who wish to become Australian citizens, and consequently, also operate as a deterrent to such people.

26. Point (c) is self-evident so does not require explanation.   

27. I will now address point (a). As stated above, the good character criterion applied to the Applicant when he applied for citizenship. “Good character” is not defined in the Act, but it is addressed extensively in the Australia Citizenship Policy Statement (“the Policy”) and the Citizenship Policy Instruction 15 - “Assessing Good Character under the Citizenship Act” (“CPI 15”).[55] These are departmental policies that were not made under a legislative power but in an exercise of executive power. They are not binding but they should be applied unless there are cogent reasons not to.[56] CPI 15 relevantly advises that 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, which is an objective assessment. It notes that a person who has been convicted of a serious crime may show that he or she has reformed and is of good character.

    [55]  Exhibit T1 – Section 37 T-documents, T22 and T23.

    [56]  Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, per Brennan J.

28. CPI 15 states that the phrase “enduring moral qualities” encompasses:

    ·characteristics which have been demonstrated over a very long period of time;

    ·distinguishing right from wrong; and

    ·behaving in an ethical manner, conforming to the rules and values of Australian society.

29. It further notes that a person of good character would respect and abide by the law in Australia and other countries, be honest, be truthful, not practise deception or fraud in dealings with the Australian Government, and not be violent, involved in drugs or cause harm to others. The evaluation of a person's character requires a holistic assessment of the person’s aggregate qualities and their behaviour over a period of time. In relation to offences, CPI 15 states that, a significant amount of time may have to pass before a decision maker could be satisfied that an Applicant is of good character.

30. To my mind, there is no rational possibility that when the Applicant’s citizenship application was approved, the Minister could have been satisfied that he was of good character had the Minister known:

    ·     the nature and extent of the Applicant’s contumacious traffic offending;

    ·     that the Applicant had committed the index offending; and

    ·     that the Applicant had colluded with Khaled Al Abassi to thwart a police investigation into that offending.

31. It follows that the Applicant would not have been eligible for Australian citizenship by conferral. What is more, the Applicant was substantially motivated by a desire to circumvent migration laws. Australian citizenship is a privilege that is not conferred lightly. It should not be used for underhanded purposes. There is a strong public interest in revoking the citizenship of a person who obtained it in these circumstances.      

32. There is a further public interest in revoking the citizenship of a person who is still not of good character. If one considers the Applicant’s character in March 2016, he was, as the Respondent contended, a person without any common decency or morality. He then applied for Australian citizenship, made preparations to leave the country and committed perjury in his trial. It was contended on his behalf that he has reformed. That would require a fundamental change in his character. The Applicant still denies that he willingly committed the index offending, and his regret over that situation is largely attributable to self-interest. He has not demonstrated honesty, an ability to distinguish right from wrong, ethical behaviour and conformity to the rules and values of Australian society over a very long period of time. The mere absence of offending over a relatively short period is not enough to persuade me that he has changed so much that he is now a person of good character.   

33. I now turn to point (b). Following the Applicant’s convictions for the index offending, a pre-sentence report was prepared by A.C.T Community Corrections.[57] The writer assessed the Applicant as no longer having any substance use issues, and posing a medium risk of general re-offending. The assessment was based on an interview with the Applicant, the Level of Service Inventory – Revised[58] and the Alcohol Use Disorder Audit Test. The risk of sexual re-offending was not measured.

    [57] Exhibit R2, pages 38 to 41.

    [58] An actuarial risk assessment tool relevant to general re-offending.

34. In January 2018, the Applicant was assessed by Dr Leesa Morris, forensic psychologist and she produced a report.[59] She diagnosed the Applicant with:

    ·Substance/medication-induced Psychotic Disorder;

    ·Cannabis Use Disorder, Severe, In remission, In a controlled environment;

    ·Adjustment Disorder with Mixed Anxiety and Depressed Mood; and

    ·Attention-Deficit/ Hyperactivity Disorder, Predominantly Inattentive presentation, Moderate.

    [59] Exhibit T1 – Section 37 T-documents, T8, pages 53 to 65.

35. She opined that the conditions are likely to have impacted upon the Applicant’s ability to maintain education or employment, make considered decisions regarding relationships and his judgement regarding acceptable behaviours. Further, empathy can be difficult for individuals with ADHD due to limited ability to focus, and lower emotional intelligence. She observed that the Applicant presented as being emotional and intellectually immature and to have poorly developed coping skills.

1. Dr Morris noted that the traffic offending aligned closely with the periods in which the Applicant said he was using marijuana. There were periods in 2014 to 2016 when he did not use drugs, and it appears he quit permanently towards the end of 2016.

2. The Applicant told Dr Morris he was innocent of the offences, and he was upset by what the media said about him. He said “I’m a good person, and I want to do the sex offender programs to prove I’m not a rapist, I’m not a thief, I’ll do anything to prove I’m not like that.” He claimed his co-offenders lied about him in court and “they have ruined my life in this jail” referring to the break down of his relationship, his mental health and his inability to enjoy his usual activities. He said “I’m not bad, I’m just unlucky.” When asked whether he felt sorry for the victims, he replied “Yeah, for me, my family, for everything that happened.” He was unable to express any further remorse or empathy for the victims.

3. Dr Morris noted that t-he Applicant had completed courses on Anger Management and Blood Spills while incarcerated. She thought he appeared susceptible to the influence of peers, particularly in relation to substance use and deviant behaviour, although resistant to advice from adults or mentors. While he valued his mother’s opinion, he did not always take her advice, which is another common trait of individuals with ADHD.

4. Overall, Dr Morris opined that with the appropriate intervention, and purposeful activity that supports his family, the Applicant would be considered a low risk of serious reoffending. However, without such intervention and support, there was a moderate risk of reoffending. She stressed the importance of intervention being commenced with some immediacy, while the Applicant could be medically supervised and his social influences managed.

5. The Applicant was not involved in any incidents in prison. There is no evidence of drug use since later 2016. While incarcerated, he completed a Certificate II in Foundation Skills and a two-month depression and anxiety course. He was given a job in prison that involved some responsibility. After being granted parole, he moved to Brisbane to join his mother and sisters and he completed a certificate III in Hospitality. He has a steady, full-time job doing local truck deliveries, and he provides assistance to his mother who is not well. In the three years he has been back in the wider community, he has not been in trouble with the law. It was submitted on his behalf that he now looks back on his offending with heavy remorse and he has made genuine efforts to reform his character, although I do not think the evidence goes that far.  

6. Some family members and friends have written letters of support, and some speak of the Applicant in a positive way, but they do not squarely acknowledge or address his offending. The Applicant lived in the family home during the periods when he was offending. There is no evidence before me that suggests that his family would be a deterrent factor in terms of drug use and offending in future. In fact, the sister who wrote a letter of support referred to the Applicant having “learnt a lesson in life which is not to trust people easily”[60] which appears to accept his narrative that he was not responsible for his offending.       

   [60] Exhibit T1 – Section 37 T-documents, T19, page 154.

7. While the Applicant has moved away from Canberra and the people he used to associate with, there is a risk that he will encounter antisocial influences in Brisbane. It took very little encouragement for him to engage in very serious offending. It does not appear that he has had any treatment to address what Dr Morris identified as a susceptibility to the influence of peers in terms of deviant behaviour and a resistance to advice from adults or mentors.

8. There is no evidence that the Applicant has undertaken a sex offender program or rehabilitative treatments as Dr Morris recommended or implemented appropriate risk management strategies. It is abundantly clear that he lacks insight into his wrongdoing which does not bode well in the event that he finds himself in a situation where others are encouraging, or engaging in, criminal behaviour. The Applicant’s traffic offending was not encouraged by others. It demonstrates preparedness to be dishonest, a disrespect for the rules concerning licensing and vehicle registration, and a disregard for the safety of other road users. It is fortunate that when the Applicant drove a car that he knew had faulty brakes, while under the influence of alcohol, he smashed into the wall of an unoccupied building rather than into people or another vehicle. It is trite to say that further behaviour like this could cause death or serious physical and psychological harm to members of the Australian community. The Applicant’s recent clean traffic record is encouraging, and perhaps there are good prospects that it will continue as long as he needs a licence to earn a living and he stays away from drugs.

9. Despite the Applicant’s good behaviour in the controlled environment of prison and his recent good behaviour in the community, there remains a very real risk that he will re-offend in future.       

10. There are some other public interest factors that are relevant. The Applicant’s immediate family, being his mother and two sisters, have done nothing wrong. They lost their husband/father before coming to Australia. They came here seeking safety and shelter, and they each hold Australian citizenship. It is in the public interest, in a humane society that respects the bonds of family, for families who wish to stay together to be able to do that and not live in fear of separation. If the Applicant’s citizenship is revoked, he would then be on an ex-citizen visa[61] and there would be a risk of his visa being cancelled on character grounds, particularly if he commits more offences.     

    [61] Section 35(3) Migration Act 1958.

11. It was submitted that the Australian public has an interest in ensuring a disadvantaged individual can rehabilitate themselves without the threat of a loss of citizenship and return to a country from which they fled.[62] I do not accept this. On the contrary, a strong deterrent against further offending is surely conducive to rehabilitation and to community safety.

    [62] Exhibit T1 – Section 37 T-documents, T13, page 102.

12. Weighing all the factors that are relevant to the public interest, I am satisfied that overall  it would be contrary to the public interest for the Applicant to remain an Australian citizen. Therefore, the power to revoke his citizenship is enlivened.

13. I accept the Respondent’s contention that it would rarely be appropriate to exercise a discretion to allow a person to retain citizenship despite that being contrary to the public interest.   

14. If the Applicant’s citizenship is revoked, an ex-citizen visa would allow him to continue to live in the wider community. However, it would not allow him to re-enter Australia should he leave: he would need a resident return visa.[63] The risk that he could lose his visa or fail to obtain another one due to character consideration is speculative at this point. Decisions of that nature do not only take into account character concerns. Still, losing his citizenship, thereby making him subject to travel restrictions and vulnerable to deportation, would adversely impact the Applicant and I take that into account. I also take into account the potentially adverse impact on his family as a whole, which has been described as close-knit, and the individual members of his family including his mother who is in poor health. There would not appear to be any substantial impact on other members of the Australian community should the Applicant lose his citizenship.

    [63] Transcript, page 90, lines 23 to 26.

15. When one considers the scope and purpose of the Act, particularly the parts dealing with citizenship by conferral, some key themes emerge. Australian citizenship is a status that is carefully regulated. It is intended to be conferred on those who are of good character, who apply in good faith and who appreciate the obligations and privileges that citizenship entails. It would be quite inconsistent with the scope and purpose of the legislative scheme for Australian citizenship to be obtained and used to protect a person from the legal consequences of serious offending.

16. I am not persuaded that I should act against the public interest by declining to exercise the power to revoke the Applicant’s citizenship.

    WOULD REVOKING THE APPLICANT’S CITIZENSHIP RENDER HIM STATELESS?

17. Until immediately before the hearing, the Applicant had consistently represented that he was born in Somalia and that his family later fled to Saudi Arabia before travelling to Australia. His position then changed, and it was contended at the hearing that there is uncertainty about where he was born.

18. In favour of a finding that the Applicant was born in Somalia are the following matters:

    ·     a “Document for travel to Australia” issued by the Australian High Commission in Nairobi in August 2009 states that the Applicant, his mother and his younger sisters were all born in Somalia.[64] The Applicant provided a copy of this document to the Australian government with his citizenship application;

    [64] Exhibit A3.

    ·     a document purporting to be the translation of a birth certificate issued by the Somali Democratic Republic in Mogadishu. The document lists the Applicant’s place of birth as Bosaso[65], which is in Somalia. The Applicant provided a copy of this document to the Australian government with his citizenship application;

    ·     the Applicant told the police on 13 March 2016 that he was from Somalia and that he was a citizen of Somalia;[66]

    ·     a Declaration of Service form lodged by the Applicant as part of his citizenship application gives his place of birth as Bosaso, Somalia and his ethnic group as Somali, although he said he did not have a country of citizenship.[67]

    ·     in his passport application form, he has details of what he said was a Somali passport. He now claims he has never held a Somali passport and that he might have erroneously included details of a travel document given to him to come to Australia. Whether that is the case or not, it is significant that he represented that he had a Somali travel document;[68]

    ·     in 2017, the Applicant told A.C.T Community Corrections that he was born in Somalia.[69] 

    ·     in 2018 the Applicant told Dr Morris that he was born in Somalia and he recalled hearing gunfire at night in Somalia. Dr Morris noted that his family confirmed that he returned to Somalia after being deported from Saudi Arabia;[70] 

    ·     correspondence sent by the Applicant’s former lawyer to the department on his behalf states “We have been instructed that Mr Abuuh was born in the city of Bosaso in Somalia to a Somali father and as a result, he obtained Somali citizenship by birth.”[71]

    ·     the Applicant’s younger sister said, in her statement, that she is originally from Somalia;[72]

    ·     The Applicant’s mother said, in a written statement, that she is originally from Somalia and that she and her family moved to Saudi Arabia in 1999 when her youngest child was three months old;[73] and

    ·     According to the Applicant his mother told him he was born in Bosaso, Somalia.[74]

    [65] Exhibit T1 – Section 37 T-documents, T13, page 94.

    [66] Exhibit R2, page 474.

    [67] Exhibit R2, page 1933.

    [68] Exhibit T1 – Section 37 T-documents, T2, page 1915.

    [69] Exhibit R2, page 38.

    [70] Exhibit T1 – Section 37 T-documents, T8, page 55.

    [71] Exhibit T1 – Section 37 T-documents, T8, page 43.

    [72] Exhibit T1 – Section 37 T-documents, T19, page 154.

    [73] Exhibit T1 – Section 37 T-documents, T19, page 158.

    [74] Transcript, page 10, lines 32 to 33.

19. Nothing on the face of the birth certificate or travel document suggests that they are not authentic and no evidence was presented to that effect. The evidence of the Applicant’s mother and sister supports him having been born in Somalia. If their evidence needed to be corrected, it was incumbent upon the Applicant to have those witnesses put forward further evidence. That did not occur. 

20. The Applicant sought to make something of the fact that when he left Saudi Arabia, he was not allowed to enter Mogadishu (the capital of Somalia) and was redirected to Somaliland which he claimed has become a separate country. After being sent back and forth, he was allowed to enter Hargeisa (in Somaliland) and was re-united with his family who had flown separately.[75] However, his Dr Morris’s report noted that his sister told her that the Applicant was “too scared to get off the plane so they took him to Mogadishu and he saw how bad it was there, so they brought him back home.”[76] This provides an alternative explanation, being that he was originally headed for Hargeisa and, after seeing Mogadishu he chose not to remain there. No evidence was put forward that Somaliland is an internationally recognised nation state independent of Somalia for the purposes of citizenship, so I am not satisfied that it is. In any event, the Applicant’s place of birth, according to his birth certificate, is Bosaso which is not in the area called Somaliland and there is no evidence before me that he was born in an area that it in Somaliland.    

    [75] Transcript, page 11, line 36 to page12, line 9; page 27, lines 32 to 47.

    [76] Exhibit T1 – Section 37 T-documents, T8, page 55.

21. The Applicant produced a document that purports to be from the Government of Somalia and states “we do not recognise Rashid Mohammed Abuuh as a Somali born individual” and that he does not exist in the Somali immigration system. It concludes that “Because of such information it is not to prove for Rashid Mohammed Abuuh to be a Somali.” The document has many indicia of a bogus document. It contains multiple typographical and grammatical errors including referring to the body that issued it as the “Immigration & Neutralization Directorate”, rather than Immigration and Naturalization Directorate. Further, one would not expect a department that deals with migration to hold records of births or to be in a position to assert that a person not recorded in their immigration system is not a Somali. Document fraud is prevalent in Somalia.[77] The Applicant claimed to have obtained the document through some Somalian friends of his mother who were asked to approach the Somalian authorities for identification documents relating to him “in the Somalian Immigration system in Somalia”.[78] Given his mother has always asserted that he was born in Somalia, it does not make sense that she asked for enquiries to be made of the Somali immigration system. This document, and the evidence given in relation to it, lack credibility. I give it no weight. 

    [77] Exhibit, R2, page 2034, Department of Foreign Affairs report on Somalia, paragraph 5.20.

    [78] Transcript, page 56, lines 27 to 40.

22. The evidence that the Applicant put forward in an effort to cast doubt on his place of birth is vastly outweighed by evidence that he was born in Somalia. It follows that the Applicant acquired Somali citizenship at birth under Article 2 of the Law No. 28 of 22 December 1962 – Somali Citizenship. What steps he might have to take to obtain proof of citizenship is a separate issue which is not relevant for present purposes.

23. At the time the Applicant acquired Australian citizenship, Article 8 of The Federal Republic of Somalia, Provisional Constitution (“the Constitution”), adopted on 1 August 2012, provided that a Somali citizen could not be deprived of Somali citizenship, even if they become a citizen of another country. The Constitution is the supreme law and any law, or administrative action that is contrary to the Constitution may be invalidated by the Constitutional Court.[79]

    [79] Exhibit T1 – Section 37 T-documents, T21, page 167.

24. The Applicant’s former lawyer contended that under the 1962 Law his Somali citizenship lapsed when he acquired Australian citizenship. That was not accepted by the Minister and it was not advanced at the hearing. Nor was any evidence led in support of it. I am not satisfied that there is any substance to this claim.   

25. I am not satisfied that revoking the Applicant’s Australian citizenship will render him a person who is not a citizen or national of any country should his Australian citizenship be revoked.

26. The decision under review is affirmed.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

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

Associate

Dated: 9 May 2023

Date of hearing:	13 February 2023
Applicant:	Mr Christopher Watters (Counsel) Mr Numair Altaf Malik (iGlobal Lawyers)
Respondent:	Mr Ben McGlade (Counsel) Mr Jake Kyranis (Sparke Helmore)

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T-documents (209 pages)	R	-	19/11/2021
A1	Applicant’s Statement of Facts, Issues and Contentions (16 pages)	A	14/12/2022	15/12/2022-
A2	Affidavit of Rashid Mohamud Abuuh (3 pages)	A	25/11/2022	15/12/2022
A3	Document for Travel to Australia (front and back)	A	13/08/2009	13/02/2023
R1	Respondent’s Statement of Facts, Issues and Contentions (22 pages)	R	06/02/2023	06/02/2023
R2	Respondent’s combined tender bundle (2038 pages)	R	-	06/02/2023