Jaziba El-Masri and Minister for Immigration and Border Protection

[2014] AATA 75

[2014] AATA 75

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1909
Re	Jaziba El-Masri
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	19 February 2014
Place	Sydney

The Tribunal affirms the decision under review.

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Ms G Ettinger, Senior Member

CATCHWORDS

Australian Citizenship application - Failure to satisfy character grounds - Applicant subject to good behaviour bond - Tribunal prohibited from approving application due to good behaviour bond still on foot – Decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147

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

Mlinar and Minister for Immigration and Multicultural Affairs (1997) 25 AAR 231

SECONDARY MATERIALS

Australian Citizenship Instructions, Chapter 5 - Citizenship by conferral

REASONS FOR DECISION

Ms G Ettinger, Senior Member

19 February 2014

SUMMARY

1. Ms Jaziba El-Masri is a 27 year old woman who was married in Lebanon in 2003, came to Australia in 2004, and was granted a permanent visa (subclass 8001) in October 2006. She separated from her husband in 2008, although the evidence before the Tribunal at the hearing, was, that they were seeking to reconcile.

2. Ms El-Masri seeks review of a decision dated 10 April 2013, made by the then Minister for Immigration and Citizenship, (now Minister for Immigration and Border Control), (‘the Minister’), the Respondent in these proceedings. The decision made by the Respondent was to refuse Ms El-Masri’s application for Australian citizenship on the basis that her criminal convictions precluded her from satisfying the good character requirements of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act)

3. The Respondent also submitted in connection with this review that, pursuant to section 24(6) of the Act, the Tribunal is prohibited from approving Ms El-Masri’s application because she is subject to a good behaviour bond imposed by the Local Court, which will not expire until 22 March 2014

4. Both Ms El-Masri and Mr Hayssam Ahmed El-Masri, her husband, who is a train driver, gave oral evidence before the Tribunal. Ms El-Masri was assisted by an interpreter in the Arabic language, Kifah Lebde.

5. On the basis of the legislation and evidence, I affirmed the decision under review. My reasons follow.

   ISSUES BEFORE THE TRIBUNAL

6. The issues before the Tribunal are:

   ·Whether the Applicant was of good character at the time of the Tribunal's decision pursuant to section 21(2)(h) of the Act (Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147);

   ·Whether the Tribunal is prohibited from approving the Applicant becoming an Australian citizen because of the operation of section 24(6) of the Act.

   LEGISLATIVE FRAMEWORK

7. The relevant legislation in this matter is the Australian Citizenship Act 2007, in particular sections 24(6) and 21(2). The Australian Citizenship Instructions (ACIs), are also relevant. The Tribunal must take Guidelines into account unless there is a cogent reason not to (Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634). Chapter 5 of the ACIs provide guidance on the application of section 24(6) of the Act.

   WHETHER MS EL-MASRI WAS OF GOOD CHARACTER AT THE TIME OF THE TRIBUNAL’S DECISION

8. A person may, pursuant to section 21(1) of the Act, make application to the Minister to become an Australian citizen. Section 21(2) of the Act provides general eligibility. Ms El-Masri has been held to not be of good character because she has a criminal record. In deciding whether Ms El-Masri is of good character (section 21(2)(h) of the Act), I must make the decision on the basis of all the evidence before me at the time of making that decision (Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147).

9. The Respondent submitted in his Statement of Facts and Contentions, that the standard of good character for citizenship purposes is higher than for visa application purposes: Mlinar and Minister for Immigration and Multicultural Affairs (1997) 25 AAR 231 at 236.

10. On reading the decision in Mlinar, I find that the proposition, that the standard of good character for citizenship purposes is higher than for visa application purposes, emanated from the submissions of the representative of the then Minister for Immigration and Multicultural Affairs, and was not an emphasis given to the standard by the Tribunal Member, Deputy President Chappell (as he then was). Deputy President Chappell stated as follows at [20]:

    The Tribunal agrees with Deputy President McMahon’s comments in the Hamwi and Naumovski cases (cited above) that it can receive guidance from the interpretation of “good character” in cases under s 501 of the Migration Act 1958. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, the full Federal Court made observations about “good character” and s 501. Lee J remarked at 94:

    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: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25...

    Davies J commented in the same case (at 87) that “criminal convictions or the absence of them and character references are likely to be an important source of primary information”.

11. The ACIs assist by indicating that an applicant’s behaviour does not need to be faultless, but that the aggregate of their qualities must be weighed against ordinary community standards or behaviour.

12. In coming to a decision regarding whether Ms El-Masri is of good character for purposes of her application for citizenship, I have considered the various indicia discussed in the ACIs. This has included a consideration of the seriousness of the offences of which she has been convicted, whether there was a pattern of behaviour or whether the offence was a ‘one-off’, whether there were extenuating circumstances, the Applicant’s age, and her behaviour since the commission of any crimes. I have also considered the references Ms El-Masri has provided.

13. A further consideration, which will be discussed below, is the application of section 24(6) of the Act, which also provides for the decision maker to address whether a reasonable time has passed since the person has been free of obligations to the Court. That reasonable time test cannot apply in Ms El-Masri’s case, as she remains subject to her good behaviour bond until 22 March 2014.

14. I have next considered the indicia from the ACIs, commencing with a review of the offences of which Ms El-Masri has been convicted.

    Seriousness of the offences

15. Ms El-Masri has committed a number of offences. She drove while her licence was suspended, for which she was convicted on 8 July 2010 of drive on road while licence suspended, and given a 12 months good behaviour bond. She told me that when the police stopped her, and told her she could not drive further, it was evening, and she had no way of getting home, so she drove her car home.            

16. On 24 November 2010, Ms El-Masri was convicted of having goods in personal custody suspected of being stolen, and shoplifting. She was given a 12 months good behaviour bond.

17. On 22 March 2011 Ms El-Masri was again convicted of drive on road while licence suspended, and of having goods in personal custody suspected of being stolen, and shoplifting. As the offences were committed in breach of her bond, she was given a twelve months prison sentence, which was suspended, and a three year good behaviour bond.  The Court also directed that the Parole and Probation Service supervise Ms El-Masri, and that she continue mental health treatment as provided by Sawtell & Associates, clinicians.

18. Ms El-Masri’s evidence was that following the separation from her husband in 2008, she was trying to bring up three children aged four, three and two on her own, and that she was befriended by ‘bad people’ who made her do the wrong thing, and with whom she no longer associates. Ms El-Masri acknowledged that she stole goods from various stores in the company of her then friend or friends, and with some of the children present. She said that she had watched her associates shoplifting without being caught, and they had encouraged her to try it. Ms El-Masri said that she needed certain things for her children because she could not afford them. She also said that she was with her then friend or friends when she was apprehended with stolen goods, but that some of the items were not things she had taken, but had been put into her bag by her friend.

19. Ms El-Masri acknowledged that the November 2010 and March 2011 convictions were close in time, and told me that she knew after the first conviction that what she was doing was wrong, but that she didn’t listen until after she had been convicted the second time.

20. Ms El-Masri told me that she had moved away from those former bad influences, now lives elsewhere, and that she will never re-offend. A written report dated 22 February 2011 from Mrs Kordian, a clinical psychologist, indicated that Ms El-Masri was deeply embarrassed and remorseful, and was highly unlikely to re-offend in the future.

21. The Respondent submitted as follows:

    26. The Respondent contends that the Applicant's offending is serious, as reflected in the sentences that she received: The Respondent also contends that the facts relating to the offences are serious, in that a substantial amount of property was stolen by the Applicant. For example, the Police Facts Sheet relating to the offences of 5 October 2010 allege that the Applicant stole cosmetic items valued at $73.40, clothing valued at $151.0 and jewellery valued at $66.95. Further the Police Facts Sheet relating to 22 December 2010 allege that the Applicant stole 18 items from the Equip jewellery story valued at $204.85 and that the Applicant together with a co-accused stole a total of 33 items which had a total value of $1499.80. The Community Offender Services Probation and Parole Service Pre-Sentence Report states on page 2 that "Mrs El-Masri does not dispute the Police Facts".

    27. The Respondent contends that the Applicant's offending behaviour was serious, and falls far short of ordinary community standards of behaviour.

22. Ms El-Masri told me that she has moved away from the people who influenced her wrong behaviour, has started a new life, is trying to reconcile with her husband, is studying at TAFE, and is training to be a hairdresser. She is also receiving psychological counselling and support as ordered by the Court. In her closing, Ms El-Masri expressed remorse for what had occurred and undertook not to re-offend.

23. Mr El-Masri told me that his wife is now pregnant with their fourth child, and he expected they would reconcile their differences. He said that in 2010 he was worried about his wife, but was not fully aware things were going wrong, and that she was under the influence of undesirable people. He said that he stands by her, and wants to help her through, and will assist with supporting her financially.  He feels that she is a changed person and is now on the right track.

24. I noted that the convictions of November 2010 and March 2011 were quite close in time. The offences were serious in that they involved thefts of a number of items from several stores, reasonably large sums of money, and repeat behaviour. Pursuant to the ACIs, crimes attracting sentences totalling 12 months or more are ordinarily considered serious.

25. Ms El-Masri was sentenced to a 12 month good behaviour bond in 2010, which she breached in 2011 with further convictions. Consequently, her good behaviour bond was extended to a period of three years

26. The police records indicate that not all of the goods stolen were for the children. Ms El-Masri receives social security benefits from Centrelink which, as everyone knows, do not support a lavish lifestyle, but are designed to assist in situations such as Ms El-Masri was facing as a single mother, without employment, bringing up three children. 

27. I am satisfied from the evidence that notwithstanding the remorse Ms El-Masri has expressed, and the explanations she has given for stealing and driving unlicensed, the two convictions for stealing were close in time, being November 2010 and March 2011. As can be seen from the police fact sheet, she stole quite a number of items, mainly not related to her children’s needs, and from a number of stores.  It clearly was not a ‘one off’. 

28. I have given some little weight to the unsworn statements of Ms El-Masri’s referees, noting they did not give any oral evidence.

29. I have no information that she has re-offended during the parole period which is due to end on 22 March 2014.

30. In coming to a decision regarding good character, I will take the above into account.

    Whether the offences were ‘one-off’ or part of a pattern of behaviour

31. The offences of which Ms El-Masri has been convicted have been discussed above. Clearly, based on the police and Court reports, they were not ‘one-off’. Whilst I accept Ms El-Masri’s explanation that, during a period when she was separated from her husband and bringing up her three small children she was influenced by bad company, I discerned a pattern of criminal and unacceptable behaviour in the second half of 2010 and early 2011.

    Whether there were any extenuating circumstances

32. Ms El-Masri told me that the criminal acts she committed were in part because she is alone in Australia, without her immediate family, and that she only had her husband’s family who were not particularly supportive, which made it hard. She told me that they had separated due to emotional abuse by her husband, and that his mother had interfered in their lives.

33. Ms El-Masri said that at the time of the offences, she was separated, and she met the wrong kind of people, and was influenced by them.

34. She said that she drove the car unlicensed because when police stopped her, the first time, she did was not aware of her licence status. On the second occasion, it was late at night, so she drove the car because she had no other means of returning home.

35. The Applicant also told me that she was influenced in her shoplifting activities by undesirable acquaintances, and was driven by a desire to obtain clothes for her children at a time when she was separated from her husband, and money was short. Unfortunately, her evidence regarding stealing clothes for her children was not correct, as the police records indicated that the majority of the stolen items for which the Applicant was convicted were cosmetic items, jewellery and adult female clothing.

    The Applicant’s age at the time of the offences

36. Ms El-Masri was 24 years old when she was convicted of various offences in 2010. She had been married since 2003, been in Australia since 2004, and was separated from her husband in 2008.

    Behaviour since commission of the offences

37. Ms El-Masri was convicted of a motor vehicle offence and shoplifting in November 2010, followed by further convictions for similar offences in March 2011. As she had, in March 2011, breached the one year good behaviour bond imposed in 2010, she had a three year good behaviour bond imposed. I have no information regarding any further offences or convictions in the period leading up to the hearing before me. Unless any other circumstances arise, the bond will be finalised on 22 March 2014.  Consideration may then be given in any future application for citizenship, that a reasonable time had elapsed between March 2011, and 22 March 2014, and the date of that future application.

38. I have noted Ms El-Masri and her husband’s evidence that, in order to change her life and move on, the Applicant has completed TAFE courses in beauty, and that she is currently enrolled for hairdressing.

39. Ms El-Masri also told me that she attended a community women’s support group where they teach about the Koran, where they do sewing, and where there is counselling available. She said that she attended twice a week for a month approximately a year ago.

    Referees

40. The Applicant has provided three character references. They were not sworn statements, and the writers of the references were not called to give evidence at the Tribunal. Further, none referred to Ms El-Masri’s criminal convictions. The letters are mentioned below for completeness, but have been given little weight in my decision making.

41. Angela Markovski, a property manager, stated that Ms El-Masri is a woman of integrity and honesty, that she is polite and punctual, and that she always pays her rent on time. She noted that Ms El-Masri has good relations with her neighbours. Her letter was dated 7 February 2013. 

42. Dr Mariam Ayoubi Ferkh provided a very short character reference dated 15 February 2013 which stated: I have known Jaziba El-Masri for 6 years. She is very well known to me as an honest and sincere person.

43. Alice Challita of a local Family Day Care stated on 15 February 2013 that Mrs El-Masri is a good mother, she looks after her children really well. Ms Chalita stated that she has found her to be reliable, responsible, and honest.

44. Ms El-Masri also provided letters of support from Robby Taouk Kordian, a clinical psychologist, dated 22 February 2011 and 4 September 2013. Mrs Kordian stated that Ms El-Masri suffered from mixed depression and anxiety with multiple stressors. She states that Ms El-Masri had been separated from her husband for the past two years due to emotional abuse, and that she was vulnerable and easily influenced by an individual who was a compulsive shoplifter. She also stated that Ms El-Masri was deeply embarrassed and remorseful, and was highly unlikely to re-offend in the future. In her statement of 22 February 2011, she also stated that Ms El-Masri appeared to be of good character and of good judgment.

45. Ms El-Masri also provided a letter of support from her husband, Hayssam Ahmed El-Masri, dated 19 September 2013. He stated that his wife had completed a TAFE course in beauty and make up, and was currently enrolled in hairdressing. He stated that she was thinking how to improve herself, and was thinking ahead of how to make things better for her children. He referred to her criminal offending. I am mindful that references from close family members cannot be given much weight.

    THE OPERATION OF SECTION 24(6) OF THE ACT

46. I have considered the operation of section 24(6) of the Act in relation to Ms El-Masri’s citizenship application. Section 24(6) follows as relevant:

    24 (6) The Minister must not approve the person becoming an Australian citizen at a time:

    (f) if the person:

    (i) has been released by a court from serving the whole or a part of a sentence of imprisonment; and

    (ii) has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;

    during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

    (g) if, in respect of proceedings for an offence against an Australian law in relation to the person:

    (i) a court does not impose a sentence of imprisonment on the person; and

    (ii) the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;

    during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

1. The ACIs, which I am bound to apply, further clarify the situation, being that conferral of citizenship cannot be granted during the currency of a good behaviour bond.

2. Accordingly, even if I had found Ms El-Masri to be of good character at the time of making this decision, I would be prohibited by the operation of section 24(6) of the Act from setting aside the decision of the Minister and conferring citizenship.

   CONCLUSIONS

3. In coming to a conclusion regarding Ms El-Masri’s application for citizenship, I have considered whether she is of good character, and the effect of section 24(6) of the Act on my decision making.

4. I am bound by the Act and the ACIs, as discussed above, and acknowledge that while Ms El-Masri is serving the good behaviour bond imposed by a Court until 22 March 2014, I am unable to find in her favour in regard to her application for citizenship.

5. I have considered whether or not Ms El-Masri is of good character, mindful that good character is not defined in the legislation but relates to the moral qualities of the person. The various indicia relating to good character from the ACIs, explored above, are not exhaustive, and the particular circumstances of each case must be taken into account. In summary, Ms El-Masri offended in regard to driving a motor vehicle unlicensed on two occasions, and was also convicted of stealing a number of items from a number of retailers both in October 2010, and March 2011. I am satisfied that the items were mainly not, as she said in her evidence, clothes for her children, but adult clothes and cosmetic items. I am also satisfied that the stealing was not a ‘once off’, and that the stealing offences attracted lengthy penalties, and were serious when considered in the context of the law and the ACIs. I have dealt with the extenuating circumstances above. I accept that Ms El-Masri was alone with three children following the separation from her husband, and that she had no family support so that she was influenced by other persons.

6. However, ultimately, I am not satisfied that Ms El-Masri can presently be held to be of good character in the terms of the legislation. Once reasonable time has elapsed after the expiration of her good behaviour bond, and providing she has not re-offended, she may be able to reapply for citizenship, and convince the Minister that she is of good character.

   DECISION

7. The Tribunal affirms the decision under review.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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Associate

Dated: 19 February 2014

Date of hearing	30 January 2014
Applicant	In person
Solicitors for the Respondent	Mr Sean Kikkert