Al-Jumaili and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3969

Al-Jumaili and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3969 (28 October 2021)

Division:GENERAL DIVISION

File Number:2020/4181          

Re:Shelam Al-Jumaili  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 October 2021

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian Citizenship by conferral – whether the applicant is of good character – failure to disclose criminal offences in Citizenship application – 13 offences – seriousness of offences – limited rehabilitation – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24, 52

CASES

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

28 October 2021

1. Mr Shelam Al-Jumaili, the applicant, is a citizen of Iraq. He first entered Australia on 1 April 2011 as a holder of a Global Humanitarian (subclass 202) visa. On 20 October 2017, the applicant lodged an application for Australian Citizenship by conferral (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”).

2. The applicant answered in the negative to Question 39(a) of the citizenship application which asked whether he had been “convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application and any 'spent' convictions')”.

3. On 12 May 2020, the applicant was invited to comment on adverse information before the Minister (invitation to comment). Namely, the offences listed in his National Police History Check Report which included larceny, possess prohibited drug, and goods in personal custody suspected being stolen offences. The applicant did not respond to this invitation to comment.

4. On 24 June 2020, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act This is the decision under review in these proceedings.

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

   RELEVANT LEGISLATIVE PROVISIONS

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

7. Subsection 24(1) of that Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

8. The Act relevantly provides, at paragraph 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application.”

   DEFINITION OF “GOOD CHARACTER”

9. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).

10. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

11. As to the definition of good character, the CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

    Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion…

12. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated over a long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

13. The CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevantly, a person of good character would, inter alia: respect and abide by the law in Australia; not be involved in illegal drugs, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence).

14. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

    (emphasis added)

15. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    SERIOUSNESS OF THE APPLICANT’S CRIMINAL CONDUCT

16. The applicant has been convicted of 13 offences between 22 April 2015 and 20 October 2016 including:

    (a)'Larceny value <=$2000-T2' on two occasions (20 January 2016 and 20 October 2016;

    (b)'Possess prohibited drug' on five occasions (two counts on 22 April 2015, two counts on 16 March 2016 and one count on 20 October 2016);

    (c)'Possess/attempt to, prescribed restricted substance' on one occasion (11 May 2016);

    (d)'Goods in personal custody suspected being stolen (not m/v)' on four occasions (two counts on 6 January 2016, and one count on 12 January 2016 and 20 October 2016); and

    (e)'Drive motor vehicle while licence suspended – 1st off' on one occasion (12 January 2016).

17. The applicant's record indicates a pattern of behaviour as he has been convicted of many similar and repeat offences. The period in which these offences were committed is relatively short, approximately a year and a half, and some were committed while he was subject to a bond from earlier offences. This behaviour is indicative of his disregard for the law and important institutions.

18. For these reasons, I view the applicant's conduct as serious, and that this should weigh heavily against a finding that the applicant is a person of good character.

    MITIGATING FACTORS AND CONSIDERATION

19. The applicant’s failure to disclose his criminal offences as part of the Citizenship application and when completing Form 80—Personal particulars for assessment, weighs heavily against a finding that the applicant is of good character.

20. For the following reasons, I am not positively satisfied that the applicant has sufficiently rehabilitated to demonstrate a pattern of enduring moral qualities associated with good character subsequent to his criminal offending.

21. In statutory declarations dated 29 September 2020 and 4 December 2020, the applicant explained a difficult childhood involving family violence and how he got involved with “bad friends” at school. He said he started using methamphetamine and at that point, “it only made everything worse I started getting stopped by cops and going to courts”. The applicant claimed that he “stopped smoking ICE without going to rehab” after fearing he would end up in jail.

22. At hearing, the applicant explained that regarding his drug offences, he wasn’t selling but was buying “meth and weed”. He described himself as “young and stupid”. Regarding his larceny offences, the applicant said he had no money and was often high on drugs. He described himself as “stupid to do it”. The applicant explained that since his last offence, he was trying to improve and that he wants to be a better person. He said he did not seek any professional help but claims to have done it all on his own. The applicant explained that he stays away from his bad friends, who are now mostly in jail, and only has good people around him.

23. On 4 August 2016, the applicant commenced the Drug Health Services Magistrates Early Referral into Treatment (MERIT) program. On 10 October 2016, the applicant voluntarily withdrew from the program. In a letter dated 10 October 2016 Mr Amoroso, a MERIT clinician, advised:

    “As part of the MERIT assessment, [the applicant] signed a MERIT program treatment agreement which detailed his responsibilities, in particular in relation to attendance of weekly appointments. As [the applicant] has been unable to maintain these responsibilities at this time he would like to voluntarily withdraw from the program. He last attended MERIT on the 6 September 2016 and reported he abstained from methamphetamine use for 1 week and cannabis use for over 1 week. [The applicant’s] sister had contacted the service on 30 September 2016 to advise [the applicant] has gained full time employment and could not continue participating with the MERIT program.

    [The applicant] has attended 4 appointments over the course of MERIT and engaged well in the counselling process. [The applicant] reports he has ceased socialising with his friends and increased socialising with his family and siblings, to limit his drug use and to prevent further criminal activity. He reported his methamphetamine and cannabis use had been reduced. [The applicant] was provided with a referral for ongoing counselling with drug and alcohol at Liverpool…”

24. In a letter dated 19 January 2017, Corrective Services informed the applicant that it had come to their attention that he had been falsely claiming to be attending counselling sessions for his gambling addiction. He was reminded that it was a condition of his order to accept the Supervision and Guidance of the Community Corrections. Failure to do so would result in his matter being returned to court.

25. In the NSW Department of Corrective Services notes, the supervision summary notes for 24 January 2017, record “Gambling: Not related to his offending however it was identified during contact with CSNSW that he has a severe gambling problem and was referred to Uniting Care to address”. At hearing, the applicant confirmed that he did not attend counselling sessions for his gambling but “did it on his own”.

26. On 8 February 2021, the applicant was also enrolled in Certificate III in Plumbing at TAFE NSW. At hearing he explained that he had started classes one day per week and worked four days a week as an apprentice in plumbing. He also works with the community on the weekends through volunteering. I do accept that this is a positive for the applicant’s rehabilitation.

27. While I commend the applicant on his desire and positive intention in improving his life and living drug free, I am concerned that he has not maintained or sought professional help while in the community for his extensive past drug use and gambling addiction. As drug use and financial stress appear to be contributing factors to his offending conduct, without professional help, I cannot be satisfied that he has sufficiently rehabilitated. He voluntarily withdrew from the MERITS program and lied to Corrective Services about undertaking counselling for his gambling addiction.

28. The applicant has provided numerous references in support of his good character. They are summarised as follows:

    (a)Dr Kalid said in a letter dated 22 September 2020, that the applicant was very committed, respectful, and was a fit and proper person.

    (b)In a letter dated 7 July 2020, Rishama Salah Chohili, the religious leader of the Sabian Mandaean Community in Australia, said that the applicant was a good and honest member of the community and always tried his best to help as a volunteer.

    (c)Crystal Mckerlie-Dias, explained, in an undated letter, that she had known the applicant for approximately eight years. She described how she first met the applicant when he was “heavily using hard drugs which lead to bad situations”. Ms Mckerlie-Dias said that since the applicant’s last charge in 2016, he decided to turn his life around and with the support of his family and friends, he is now drug free. She said she believed the applicant was sincerely sorry for his actions and now understands the seriousness that his record has had on gaining employment and its potential impact on gaining Australian citizenship.

    (d)In an undated letter, Simon Sari, advised that he had known the applicant for nine years. He described the applicant as a “good gentleman” and explained how he had been led down the wrong path. Mr Sari said that the applicant regrets what he has done and has “learned from the bad to see the good”.

29. Although the character references provide evidence in relation to the applicant’s personality, work ethic, desire to improve himself, and familial relationships; only one of these references refer to the applicant's criminal history and only does so indirectly, mentioning the applicant's most recent appearance at court, not the offence or the incident relating to the offence. I give these references very little weight in support of the application, including in support of the applicant's claimed rehabilitation, noting that they do not refer to the offences or incidents.

30. The applicant's obligations to the court ceased on 19 October 2017; less than four years ago. Having regard to the repetitive nature and breadth of the applicant’s offending and noting his lack of evidence regarding any efforts at rehabilitation, I am not satisfied that a sufficient period of time has elapsed to establish a pattern of good behaviour.

    DECISION

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

32. The applicant can make a fresh application for Australian citizenship in the future.

33. The decision under review is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 28 October 2021

Date of hearing:	22 March 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms E Hill, Minter Ellison