Assafiri v Minister for Immigration and Border Protection
[2014] AATA 35
•29 January 2014
[2014] AATA 35
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2570
Re
Wassim Saad Assafiri
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Senior Member J Toohey
Date 29 January 2014 Place Sydney The decision under review is affirmed.
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Senior Member J Toohey
Catchwords - CITIZENSHIP – serious criminal record – whether applicant of good character – whether high standard of good character than under Migration Act 1958 – Tribunal not satisfied in the circumstances that sufficient time had passed – decision under review affirmed
Legislation
Australian Citizenship Act 2007 s 21(2)
Financial Transaction Reports Act 1988 s 29(4)(b)
Criminal Code Act 1995
Crimes Act 1900
Criminal Procedure Act 1986Migration Act 1958 s 501
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mlinar v Minister for Immigration and Citizenship (1997) 48 ALD 771
Ngoc Thien Vo and Minister for Immigration and Multicultural Affairs [2005] AATA 1042
Munther Shukure and Minister for Immigration and Multicultural Affairs [2006] AATA 63
Mohammad Hoaylah and Minister for Immigration [2006] AATA 260
Chun and Minister for Immigration and Citizenship (2011) 122 ALD 419
Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372
Chen and Minister for Immigration and Citizenship (2012) 128 ALD 682Re Al-Agram and Minister for Immigration [2012] AATA 593
Secondary Materials
Australian Citizenship Instructions
REASONS FOR DECISION
Senior Member J Toohey
BACKGROUND
Mr Wassim Saad Assafiri is a 35-year old citizen of Lebanon. He arrived in Australia from Lebanon in July 2002 with his wife, Ghazwa Baltaji, who is a Lebanese-born Australian citizen, and their young daughter. They now have three children. Mr Assafiri was granted permanent residency in March 2005.
In 2006, Mr Assafiri was sentenced to three years and nine months imprisonment for offences relating to a series of international transfers of money. The Court of Appeal reduced his sentence to one year and five months. He was released in February 2008 on as 12 month good behaviour bond.
Mr Assafiri seeks review of a decision of the Minister for Immigration and Border Protection (the Minister) that he is not eligible for Australian citizenship because he is not of good character.
The Minister contends that, having regard to the nature and seriousness of Mr Assafiri’s criminal offences and related conduct, he does not meet the high standard of good character required by the Australian Citizenship Act 2007 (the Citizenship Act) and that insufficient time has passed since the offences and his release from prison for the Tribunal to be satisfied that he is now of good character.
Mr Assafiri accepts that he has been convicted of serious criminal offences but contends that mitigating factors at the time of the offences, together with the time that has since elapsed and his conduct since his release from prison, mean that the Tribunal can now be satisfied that he is of good character.
LEGISLATION
A person is eligible to become an Australian citizen if the Minister is satisfied that she or he meets the requirements in s 21(2) of the Citizenship Act. They include the requirement that a person be of good character at the time of the Minister's decision on the application: s 21(2)(h).
Whether Mr Assafiri is “of good character” is the only eligibility criterion in issue in these proceedings.
The Citizenship Act does not define “of good character”. Guidance is found in the Australian Citizenship Instructions (ACIs). The current ACIs came into effect on 1 January 2014.
The ACIs are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. They are considered in more detail below.
MR ASSAFIRI’S CRIMINAL HISTORY
Mr Assafiri was arrested in May 2005 after a bank officer noticed that the driver’s licence he was using as identification for a transfer of money overseas was false. He was charged with the offences described below. He was released on bail. In April 2006, he made full admissions in respect of all charges.
On 14 September 2006, Mr Assafiri pleaded guilty to three counts under the Financial Transaction Reports Act 1988 (the FTR Act) of making a false statement (the “money laundering offences”) and one of being in possession of property reasonably suspected to be proceeds of crime contrary to the Criminal Code Act 1995 (the “goods in custody offence”). He was sentenced on 27 September 2006 for those offences and for 19 summary offences under s 29(4)(b) of the FTR Act, and seven related summary offences under the FTR Act, the Criminal Code Act 1995 and the Crimes Act 1900.
Sentencing remarks
The sentence imposed by Judge Boulton was set aside on appeal. However his remarks are helpful to understanding the offences for which Mr Assafiri was sentenced.
Sentencing Mr Assafiri on 27 September 2006, Judge Boulton noted that the first three counts on the indictment concerned false statements made to the Commonwealth Bank of Australia and Westpac Bank Corporation involving amounts totalling $135,472 and $149,970 respectively. The fourth concerned possession of $290,020 suspected of being proceeds of crime. Judge Boulton noted that Mr Assafiri was attempting to remit $200,000 to a bank account in Lebanon when he was arrested.
The sentencing remarks show that the 19 summary offences under the FTR Act concerned the making of false statements in a false name in respect of transfers of amounts of $9,500 which Judge Boulton noted was “a fairly obvious device to get around the compulsory notification limit”.
Concerning the related summary offences, Judge Boulton said Mr Assafiri knowingly used a falsified certificate of Australian citizenship to obtain a New South Wales driver’s licence in a false name. He used that name to purchase a company and opened bank accounts in the company’s name using false identities. He provided the Australian Securities and Investment Commission (ASIC) with the address of a derelict house as the principal place of the company’s business. He also used false documents, a false address and another false name to open further bank accounts in the name of another company, and provided a non-existent address to ASIC. He opened accounts with a driver’s licence, Medicare card, NAB flicks card, and Commonwealth Bank key card, all in the false name. He made cash deposits to that account totalling $290,020.
Judge Boulton noted that Mr Assafiri’s offences spanned the period from 25 November 2004 to 26 May 2005 when he was apprehended. I note that the certificate under the Criminal Procedure Act 1986 concerning the related summary charges cites an offence of using a falsified certificate of Australian citizenship to obtain a New South Wales driver’s licence in a false name in June 2004, meaning the offences in fact spanned a period of nearly 12 months.
Judge Boulton considered that Mr Assafiri was entitled to a discount of 20 per cent on account of his plea of guilty. He noted, however, that it was made almost 12 months after Mr Assafiri’s arrest and that, when he was arrested, he declined to answer any questions. He noted that, on his arrest, Mr Assafiri deleted the number of his contact, Frank, from one of his three mobile phones and told police only that he was “Frank from Melbourne”.
In relation to Mr Assafiri’s claim that his actions were motivated by the necessity of supporting his growing family, Judge Boulton said that claim was not borne out by evidence that he had been receiving Centrelink benefits since March 2003; further, his bank accounts showed that he had been receiving “substantial funds” since October 2004 up until shortly before his arrest, which deposits were not explained.
Court of Appeal
On appeal against sentence, the Court of Criminal Appeal said:
12. The facts reveal that the applicant was involved in a significant way with the laundering of money so that it could be sent overseas. There were two distinct sets of transactions involved. The first occurred in November and December 2004. The second occurred in May 2005. Police arrested the applicant at a bank intending to transfer $200,000. The amount then in his possession and money in one of the accounts he operated, totalling $290,020, formed the goods in custody offence. As a result of his activities $9,550 was transferred to Indonesia on 25 November 2004. This comprised the first count on the indictment. On 19 May 2005 two sums, $149,970 and $125,975, were transferred to Lebanon. These amounts gave rise to the second and third counts of money laundering.
13. In order to carry out this activity the applicant used two false identities in which he purchased two companies. He opened five bank accounts, one in the name of one of his false identities and two in the name of each of the companies. In total the applicant transferred $465,942 to banks in Lebanon and Indonesia and the applicant had intended to transfer a further $200,000 to a bank account in Lebanon. The sums transferred were generally in the amount of $9,500 to avoid the compulsory notification limit under section 15 of the Financial Transactions Reports Act 1988 (Cth).
The Court of Appeal noted that, by analogy to drug importation offences, Mr Assafiri was more than a courier but less than a principal in the offences, but his involvement:
… was substantial in both setting up the scheme and carrying it out even if he were working under directions of someone above him. Further the enterprises were not accomplished by a single act of criminality, such as might be the case of a person couriering drugs. This is demonstrated by the number of offences that were before the court, either being taken into account or as related matters.
The Court said:
A substantial sentence of full-time imprisonment was required to mark the applicant’s criminal activity over a number of months notwithstanding his previous good character and the other subjective matters that might mitigate the sentence.
The Court noted that it was open to Judge Boulton to make the findings he did in respect of Mr Assafiri’s failure to assist police and to determine not to discount his sentence on that account.
The Court noted that the “money laundering offences” carried a maximum penalty of imprisonment for five years and the “goods in custody” offence a maximum of two years. Taking into account that Mr Assafiri had no prior convictions and was “generally of good character with good prospects of rehabilitation”, the Court determined that the appropriate ratio between the minimum period of custody and the overall term should be 60 percent and reduced his sentence to:
Count 1 – Imprisonment for 14 months from 19 September 2006 and to expire on 18 November 2007.
Count 2 –… Imprisonment for 2 years from 19 February 2007 and to expire on 18 February 2009.
Count 3 – Imprisonment for 19 months from 19 February 2007 and to expire on 18 September 2008.
Count 4 – Imprisonment for 6 months from 19 February 2007 and to expire on 18 August 2007.
The Court confirmed the sentences for the related matters, dating from 19 September 2007. It sentenced Mr Assafiri to a period of 1 year 5 months from 19 September 2006, to expire on 18 February 2008. It ordered he be released on 19 February 2008 on a 12-month good behaviour bond.
MR ASSAFIRI’S EVIDENCE
Mr Assafiri gave evidence that he spoke little English when he arrived in Australia and could only find occasional casual work. He was not entitled to social security payments for a period and he and his wife and daughter had to live on her Centrelink payments. His limited English and lack of financial resources made life very difficult. He tried to start a security business with the help of his cousin but it came to nothing. His first steady employment was in April 2006.
In early 2003, Mr Assafiri was introduced by a friend to a man named Frank who said he needed help transferring funds to overseas bank accounts and would pay Mr Assafiri a small percentage for making the transfers in his name. Frank said he would provide him with a false driver’s licence as identification for each transaction; he said it was not a big deal and Mr Assafiri would not go to gaol if caught.
As set out above at [16], although Judge Boulton’s remarks refer to Mr Assafiri’s offending spanning from November 2004 to May 2005, the first of the related summary offences occurred in June 2004. Although Mr Assafiri could not recall for sure when in 2003 he met Frank, in a statutory declaration in July 2011, he stated that Frank came to see him “at the beginning of 2003” and asked for his help. Giving oral evidence, he agreed that he helped Frank from shortly after they met. As he recalled, he transferred funds “three or four times a year” for about three years.
I accept the submission for Mr Assafiri that there is no evidence of offences before June 2004 but, by his own evidence, his involvement with Frank went back some time before then.
Mr Assafiri gave evidence that he knew what he was doing was wrong but Frank said it was “not a big deal” in Australia, and he did not realise how wrong it was. I accept that Mr Assafiri might not have appreciated fully the risk he was taking and the penalties he was liable to, but there can be no doubt that he was fully aware that what he was doing was illegal.
Mr Assafiri says he was in shock when he was arrested and acted on his solicitor’s advice to say nothing to the police. He says his time in prison was terrible; he was threatened by another prisoner and he was transferred at one point to a prison where his wife and children could not visit him. He found the separation from his family and his experience while in prison deeply distressing. I have no reason to doubt what he says.
Since his release
Ms Baltaji visited Mr Assafiri with their children regularly while he was in prison but they separated around the time of his release. Mr Assafiri went to Centrelink on his release to apply for benefits and was referred to a psychologist. He understands this is usual practice when a person has recently been released from prison. At some point he was granted a Disability Support Pension which he still receives. According to a report from Caroline Hare, a forensic psychologist who assessed Mr Assafiri in July 2013, he was assessed by Centrelink as eligible for the pension on the ground of his depression and anxiety, and symptoms of post-traumatic stress disorder (although he did not meet the diagnostic criteria for this condition).
At Centrelink’s suggestion, Mr Assafiri undertook a number of short courses to improve his prospects of employment. He obtained a RTA Traffic Control Licence; a HC Licence (truck licence); Customs Pass; Forklift Licence; Certificate II in Warehouse Management and Work Cover OH & S Card.
At some point, Mr Assafiri undertook a trial of working as a truck driver but he found it very stressful and did not feel he could do the work. Around mid-2010, he started work as a part-time cleaner for a security firm. He worked several hours each day for about a year until the company closed down.
Mr Assafiri has been employed as a part-time driver since June 2012. He picks up and delivers kitchen cabinets to and from his workplace where they are spray-painted. He goes to work each day but his hours of work depend on what work is available. On average, he works around eight hours a week. He also does voluntary work at his mosque, usually once a week, cleaning and mowing the lawn.
Early in 2013, Mr Assafiri and Ms Baltaji reconciled. They have been living together as a family since suitable housing became available in October 2013.
Mr Assafiri’s Lebanese passport has lapsed. He gave evidence that the Lebanese authorities are aware of his convictions and have refused to re-issue his passport. Without an Australian passport, which he could expect would be issued if he was granted citizenship, he cannot travel overseas. He wants his family in Lebanon to meet his children.
OTHER EVIDENCE
Caroline Hare, forensic psychologist
Ms Hare met with Mr Assafiri for just over two hours in July 2013 for the purposes of conducting a psychological assessment at the request of his solicitors to assist in “assessing the risk that Mr Assafiri may pose as a result of his criminal convictions, which will inform a test of his character”. Ms Hare met with Ms Baltaji separately for approximately half an hour.
Ms Hare has provided a detailed report of her assessment and gave oral evidence before the Tribunal. As well as interviewing Mr Assafiri, she administered basic psychometric tests. Because he struggled with more complex language, she did not administer all psychometric tests but she gave evidence that this did not affect the clinical judgment she was able to reach on the basis of the interview. She concluded that Mr Assafiri currently presents a very low risk of engaging in criminal conduct within the Australian community.
Ms Hare’s assessment was not strictly for the purpose of assessing his good character but I accept the submission for Mr Assafiri that risk of re-offending is relevant to considering a person’s character overall.
Reports of W John Taylor, forensic psychologist
I note that Mr Assafiri was assessed by Mr W John Taylor, clinical forensic psychologist, in September 2010 and March 2011. Mr Taylor did not give oral evidence but his reports are before the Tribunal.
In September 2010, Mr Taylor said he formed the opinion that Mr Assafiri had a “low-moderate risk of recidivism” and good prospects of rehabilitation. He said that, while there was nothing to suggest he did not know what he was doing was wrong, it seemed likely he was vulnerable at the time on account of having recently arrived in Australia and his lack of financial resources and English skills. Mr Taylor noted that Mr Assafiri did not attempt to deflect blame or responsibility for his offending.
In March 2011, having interviewed Mr Assafiri again, Mr Taylor confirmed his opinion that he had a “low-moderate risk of recidivism”. He thought Mr Assafiri “motivated to gain employment and to have stability in his life” and gained the impression that he was “actively involved in his rehabilitation”.
Character references
Written references and oral evidence in support of Mr Assafiri’s application were given by his current employer, Mr Ibrahim Mouammar; his cousin, Rabih El Ayoub, a former director of the Lebanese Moslem Association; and Samier Dandan, President for the past six years of the Lebanese Moslem Association.
All three state that they are aware of Mr Assafiri’s past and they speak well of him. Mr Mouammar says he is a motivated and dedicated employee. Mr El Ayoub says he has seen a great change in him since his release and he wants more than anything for his children to be proud of him. Mr Dandan also speaks well of Mr Assafiri’s voluntary work helping with cleaning and maintenance at the mosque since September 2010.
The Minister submits that little or no weight should be given to the evidence of these witnesses because the similarity in their written statements undermines their independence and reliability.
It is true there is some similarity between the statements, and two are identical in parts. However, each of the witnesses appeared to be truthful and I accept what they say about Mr Assafiri’s employment and voluntary work. I give Mr El Ayoub’s evidence about the change in Mr Assafiri’s character rather less weight because of their close family relationship.
Statements of Ms Baltaji and Ms Assafiri’s
Ms Baltaji has provided a written statement in which she says she has seen “a great change” in Mr Assafiri since his release; he is now a more responsible husband and more loving to their children; he truly regrets his past actions and is ashamed; he wishes only for their children to see him as a role model. She says their marriage is stronger than ever since they have reconciled and she believes he will put his family first and not do anything to jeopardise his happiness by engaging in further criminal activities.
Ms Racha Assafiri is Mr Assafiri’s sister. She used to live with Ms Baltaji but now lives in Abu Dhabi. She has also provided a written statement. She also says she has noticed “a great change” in Mr Assafiri since his release. She describes him as a loving father to his children and a loyal husband to his wife. She supports Ms Baltaji’s comments about their marriage and reconciliation.
Ms Baltaji and Ms Assafiri were available to give oral evidence but were not required for cross-examination and so were not called. Even if they had been called, I would give limited weight to their evidence. I have no reason to doubt what they say but close family members are not generally likely to provide objective assessments of a person’s character. There is a “societal expectation that family members would tend to support one another and play down unacceptable conduct”: ACIs cl 10.6.5
THE MEANING OF GOOD CHARACTER
Chapter 10 of the ACI’s concerns “character”. It offers guidance on the meaning of good character, community standards, why a person might not be considered of good character, and the kinds of mitigating factors that might be relevant. It cites Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, in which the Full Federal Court said:
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 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…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.
The ACIs state that the phrase “enduring moral qualities” encompasses concepts of 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. This broad definition means that “a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes”: cl 10.3.1.
The ACIs set out at length relevant factors when considering the implications of a person’s criminal record for their character. Factors include the nature and seriousness of the offences, the length of sentence and whether it was a “one-off offence” or there was a pattern of criminal behaviour. In this regard, sentencing remarks may prove useful: cl 10.5.2.
Serious offences include fraud (including identity fraud). Crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious: cl 10.5.2.
Mitigating factors may mean that, despite serious offending, a person may be found to be of good character. Factors include the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences. Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful: cl 10.5.2.
For the Minister it is submitted that the standard of “good character” required in relation to an application for citizenship is higher than that required by s 501 of the Migration Act 1958 under which the Minister may refuse or cancel a visa of a person who does not satisfy the Minister that she or he passes the character test in the Act.
A number of decisions of the Tribunal are cited in support of this submission including Mlinar v Minister for Immigration and Citizenship (1997) 48 ALD 771 in which the Tribunal said the test of good character in the Citizenship Act requires a higher standard “because of the importance of citizenship and the greater responsibilities and privileges attached to it”. See also Ngoc Thien Vo and Minister for Immigration and Multicultural Affairs [2005] AATA 1042; Munther Shukure and Minister for Immigration and Multicultural Affairs [2006] AATA 63, [4]; Mohammad Hoaylah and Minister for Immigration [2006] AATA 260, [23]; Chun and Minister for Immigration and Citizenship (2011) 122 ALD 419, [20]; Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372, [39]; Chen and Minister for Immigration and Citizenship (2012) 128 ALD 682, [32], [35].
Citizenship is unarguably a privilege that is not to be conferred lightly but it is not clear to me what it means to say that it involves a higher test of character than required by the Migration Act 1958.
The Migration Act 1958 includes a “character test” for the purposes of approving or cancelling a visa. The test is defined by reference to criminal conduct or associations, and risk of harm or danger to the Australian community posed by a person’s continued presence in Australia. In that sense, it is a narrower test. Whether a person is of “good character” for the purposes of the Citizenship Act will commonly turn on a record of offending but, as the ACIs recognise, the concept is broader than that, encompassing notions of citizenship and positive contribution to the Australian community. It is not necessary, and I am not sure even how helpful it is, to say it is a higher test. No comparison is needed. “Good character” is itself a high standard, especially in the context of conferral of the privilege of citizenship.
I respectfully agree with Deputy President Tamberlin who said in Re Al-Agram and Minister for Immigration [2012] AATA 593:
It is accepted that citizenship is a substantial privilege which should not be conferred lightly. However, I do not accept for the purposes of a citizenship application that the standard of good character expected of a prospective citizen is any greater or higher than that required under the Migration Act 1958 (Migration Act) for cancellation of a visa as was suggested in the submissions for the Minister. The question is simply whether he is of “good character”.
CONSIDERATION
For Mr Assafiri it is submitted that his criminal conduct was essentially an aberration, that he found himself in difficult circumstances when he arrived in Australia, and that he failed to appreciate the seriousness of his conduct. It is submitted that his stable education, and his employment as a mechanic and service in the air force in Lebanon, demonstrate his essential good character before coming to Australia and that his conduct since his release in February 2008 confirms this.
It is submitted that it is nearly nine years since Mr Assafiri last offended, nearly six since he was released from gaol, during which time there is nothing to suggest that he was subject to any disciplinary charges, and five years since he was free of any obligation to the Court. It is submitted that this is sufficient time to demonstrate that he is now of good character.
It is further submitted that, since his release, Mr Assafiri has undertaken courses to improve his qualifications. He has also worked to improve his English language skills which were demonstrated by his oral evidence without the need for an interpreter. He has found employment, albeit part-time, and has reconciled with his wife and is again living with her and their children, and he has shown himself to be a worthy community member though his voluntary work at the mosque.
I accept all that is said in Mr Assafiri’s favour and I accept that he is genuinely motivated to put his criminal record behind him and prove himself a good father and role model to his children. However, I am not satisfied, on the information before me, that sufficient time has passed to be satisfied that he is of good character for the purposes of the Citizenship Act.
There is no formula for determining how much is sufficient time in order to be satisfied that a person is of good character. The ACIs refer to the phrase “enduring moral qualities” as encompassing the concept of “characteristics which have been demonstrated over a very long period of time”: 10.3.1. At 10.5.2 they state that, in the case of a serious offence, “a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character”. A decision-maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any […] application”: cl 10.5.4.
I accept that Mr Assafiri found himself in difficult circumstances being in a new country with almost no English and a family to support. I accept that he may have been vulnerable to offers of easy money but he was apparently receiving Centrelink benefits and, after a time, income from occasional employment. I accept that he might not have appreciated how seriously the offences would be taken in Australia but he knew what he was doing was wrong.
Mr Assafiri had been in Australia for just under two years when he committed the first offence for which he was charged. By his own evidence, his involvement with Frank started some time earlier, within a year of his arrival. Even if his actual offending did not start until June 2004, he was still involved in criminal conduct in a “substantial” and “significant” way within a relatively short time of arriving in Australia and his offences were committed regularly over the next 11 months up until his arrest. He did not cooperate with police for a further 11 months. Given the seriousness of Mr Assafiri’s offending, the period over which he offended and how recently he had arrived in Australia, a very substantial period of time will be required to have passed before he may be considered to be of good character. Just how long will depend on what objective evidence there is of his “enduring moral qualities”.
It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the individual case.
The objective evidence of Mr Assafiri’s good character are the courses he undertook after his release, the fact that he has not re-offended, his employment, his reconciliation with his wife, and his voluntary work at the mosque.
I accept that Mr Assafiri’s voluntary work at the mosque speaks well of his character as do the courses he has undertaken in order to improve himself. I appreciate that he has faced difficulties since his release that made it hard for him to undertake employment. The fact that he is now on a Disability Support Pension indicates that his capacity for employment is limited. That is not his fault but he has only been in part-time employment for approximately 18 months of the five years that he has been free from obligations to the Court.
Mr Assafiri reconciled with his wife only a year ago and has resumed living with her only a few months ago. I understand they were waiting on suitable housing before they could live together again which is not his fault but this too is a relatively short time. Stable employment and housing may be indicators of good character but in Mr Assafiri’s case they have been demonstrated over a short period when considered in light of the time that has passed since his release.
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.
I appreciate the difficulties Mr Assafiri faces without a passport but that is not a matter that generally has any bearing on whether a person is of good character: cl 10.5.3. While Mr Assafiri faces undoubted difficulties without a passport, that of itself does not alter my conclusion.
CONCLUSION
This is Mr Assafiri’s third application for citizenship. I appreciate a third refusal will be deeply disappointing to him. However, for the reasons I have given, I am not satisfied that sufficient time has passed to be satisfied that he is of good character for the purposes of the Citizenship Act.
Nothing about this decision prevents Mr Assafiri from making a further application for citizenship in the future.
I affirm the decision under review.
76. I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 29 January 2014
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