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

[2023] AATA 1026

Elddin and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1026 (5 May 2023)

Division:GENERAL DIVISION

File Number(s):      2022/8251

Re:Moustafa Kamar Elddin

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:5 May 2023

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – whether the applicant is of good character for the purposes of conferral of Australian citizenship pursuant to paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – relevant law, policy and material considered – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Crimes Act 1914 (Cth)

Customs Act 1901 (Cth)

CASES

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

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

Re Drake and 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

5 May 2023

1. Moustafa Kamar Elddin, the applicant, is a citizen of Lebanon. The applicant arrived in Australia on 18 May 2008 as the holder of a Sponsored (Visitor) (Class UL) (Subclass 679) visa. On 2 February 2015 the applicant was granted a Partner (Permanent) (Subclass 801) visa.

2. On 7 December 2018 the applicant was convicted in the Brisbane Magistrates Court (the Court) of ‘Cth – assemble for smuggling’ (the 2018 offending) and sentenced to a term of 9 months' imprisonment, to be served wholly suspended on condition that he pay security by recognisance in the sum of $1,000.00 and enter a good behaviour bond of 3 years' duration. The applicant was separately ordered to pay $25,000.00 as a reparation to the Commonwealth.

3. On 18 December 2020, the applicant lodged an application for Australian citizenship by conferral. In his application, the applicant declared that he was ‘presently under a probation order, good behaviour bond, on parole, released on licence or subject to periodic detention overseas or in Australia’ and he had not been convicted or found guilty of any offences overseas or in Australia.

4. The applicant was invited to comment on adverse information obtained by the Department relating to the applicant’s citizenship application. He provided a response on 23 August 2022.

5. On 12 September 2022, the applicant’s citizenship application was refused as the delegate was not satisfied that the applicant was of good character, and therefore found that the applicant did not meet requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). This is the decision under review in these proceedings.

   Good Character and Consideration

6. 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).

7. 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 and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

8. 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 whilst the latter is a review [of] subjective public opinion…

9. 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 and overseas. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

10. 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)

11. 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.

    The Applicant’s Conduct and Consideration

12. The applicant was convicted of an offence under subsection 231(1) of the Customs Act 1901 (Cth) on 7 December 2018. The Statement of Facts details that the applicant and his co-defendants attempted to import a significant quantity of contraband into Australia, namely 1,992,000 cigarettes totalling 120 boxes. The total amount of Commonwealth revenue defrauded by the applicant and his co-defendants is estimated to be $1.39 million. The applicant was directly and actively involved in the criminal operation, which was demonstrated through his participation in unloading the consignment of cigarettes.

13. The seriousness of the applicant’s offending is reflected by the sentence imposed by the Court. The applicant was convicted and sentenced under paragraph 20(1)(b) of the Crimes Act 1914 (Cth) to 9 months' imprisonment released forthwith on entering recognisance of $1,000.00 and to be of good behaviour for 3 years. The Court ordered that the applicant make reparation to the Commonwealth by way of a monetary payment in the sum of $25,000.00.

14. The applicant’s offending conduct weighs very strongly against a finding that the applicant positively satisfies the good character requirement at paragraph 21(2)(h) of the Act.

15. At hearing, the applicant was afforded the opportunity to discuss the events leading up to his offending conduct and his involvement in the offence. I do acknowledge that the applicant has expressed remorse, which is also corroborated by other lay and expert evidence, however, he has also sought to excuse and minimise his involvement in his offending conduct. He explained the financial pressure and difficulties he was facing because of his struggling business, providing for his wife and six children and the costs of being engaged in Tribunal and Court proceedings and how these stressors contributed to his offending conduct. He explained that he merely saw the exercise of transporting goods as a job to get money and he was just a courier. Despite this, in cross examination, he admitted that he knew his co-offenders were involved in unlawful activities. He said he regretted his actions, should have been more responsible, and accepted that his involvement did not reflect well on his character.

16. The applicant relies on the evidence of Mr Matt Visser, Clinical Psychologist, who he attended on 27 January 2023 for a psychological assessment. In a report dated 3 February 2023, Mr Visser described how the applicant's offending conduct was motivated by improving his financial circumstances, and that he agreed to transport illegally imported cigarettes for 'a chance at “some quick cash"…’. Mr Visser records a detailed history as provided to him by the applicant and his wife. He notes that the applicant commented he felt depressed and guilty about his offending conduct. He also notes that the applicant is a devout Muslim and has never dunk alcohol or taken medication other than as strictly prescribed.

17. In September 2017, the applicant entered an undertaking as to bail. The applicant subsequently failed to comply with bail conditions and the Court's lawful direction. At hearing, the applicant explained that he did not have legal representation at the time, and it appears that there was a misunderstanding on his part regarding the undertaking. In any event, this weighs against a finding that the applicant is of good character.

18. The applicant also has a lengthy history of driving and traffic offences, which includes nine separate offences over a six-year period for speeding, using a mobile phone and disobeying road markings. The traffic offences and subsequent fine defaults resulted in eight licence suspensions. The applicant's history of traffic offending demonstrates a reckless or wilful disregard for Australian laws and the safety of the public. I do note however that the last recorded traffic offence was on 1 May 2017 and as such, I place less weight on the applicant’s driving record.

19. The applicant failed to disclose the details of his criminal offending and traffic offences in his citizenship application. At hearing, the applicant explained how his wife helped him complete the citizenship application and it was not his intention to be untruthful. He said that his lack of disclosure may have been due to a lack of attention or a misunderstanding. When considering this lack of disclosure, I do note that the applicant is not proficient in the English language.

20. The applicant has provided numerous character references in support of this application. They include references from Samah Tabikh, the applicant’s wife, Mouhamed Rima from the Liverpool Islamic Centre, Councillor Eddy Sarkis from Cumberland City Council, Kaven Kassis, Daniel Massri and John Watson. All the references speak very highly of the applicant’s character and express positive sentiments about the applicant’s role as a father, provider, and community member. These references weigh in favour of a finding that the applicant positively satisfies the good character requirement at paragraph 21(2)(h) of the Act.

21. Despite this positive evidence, I am not satisfied that a sufficient period of time has elapsed since being free of his obligations/orders of the Court to establish a pattern of good behaviour. The applicant's good behaviour order only ceased on or around 7 December 2021. Additionally, there is no evidence to demonstrate that the applicant has made partial or full payment in reparation to the Commonwealth as ordered by the Court. At hearing, the applicant confirmed that he has not made any payments but stated that he intends to start a new business and is trying to pay off his obligations.

    Decision

22. 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.

23. The decision under review is affirmed.

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

I certify that the preceding 24 (twenty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 5 May 2023

Date(s) of hearing:	20 April 2023
Counsel for the Applicant	Dr J Donnelly
Solicitor for the Applicant	Ms C   Mr M Kammoun, LawBridge Lawyers
Solicitor for the Respondent	Ms L Taylor, MinterEllison