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

[2023] AATA 235

John and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 235 (22 February 2023)

Division:GENERAL DIVISION

File Number:          2021/10173

Re:David John

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member

Date:22 February 2023

Place:Sydney

The reviewable decision is affirmed.

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

Mrs J C Kelly, Senior Member

Catchwords

CITIZENSHIP – application for citizenship by conferral – citizenship application refused – import control of tobacco products – whether the applicant is a person of good character – reviewable decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Customs Act 1901 (Cth)

Customs Amendment (Collecting Tobacco Duties at the Border) Act 2018 (Cth)

Customs (Prohibited Imports) Regulations 1956 (Cth)

Customs Tariff Act 1995 (Cth)

Cases

Boy19 v Minister for Immigration and Border Protection [2019] FCA 574

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

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1966) 68 FCR 422

Secondary Materials

Citizenship Procedural Instruction 15 ’Assessing character under the Citizenship Act’

Isobel Roe, ‘Health officials want families to say ‘Shisha, No Thanks’ over cancer fears. But is smoking shisha bad for you?’ ABC News (online, 17 October 2019) < FOR DECISION

Mrs J C Kelly, Senior Member

22 February 2023

Introduction

1. I have to decide whether I am satisfied that the Applicant, Mr David John, is a person of good character at the time I make the decision, as required by section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). If I am not so satisfied, the Applicant’s application must be refused.[1]

   [1] Australian Citizenship Act 2007 (Cth) s24(1A).

2. The Applicant lodged his application for Australian citizenship on 1 December 2015 in his previous name of Saleh Al Shemmary. The Applicant registered his change of name to his current name on 7 September 2018. The Department received his request to correct its records on 3 October 2018. It notified him that it had decided to correct its records in a letter dated 19 June 2019.

3. His application for citizenship was refused on 11 November 2019 because the delegate was not satisfied of his identity. He sought review in the Tribunal. On 1 February 2021, the Tribunal remitted his application for further consideration.

4. On 30 November 2021, a delegate of the Minister refused the application because the delegate was not satisfied that the Applicant was a person of good character. I am reviewing that decision. The delegate wrote:

   Drawing from the definition outlined in Citizenship policy, an applicant of good character would respect and abide by the law in Australia and other countries.  They would not be involved in multiple and repeated attempts at importing tobacco without permission and concealing the truth.  They also would obey and respect the laws of the country and accept responsibility for their actions.

5. The decision was based on 18 seizure notices issued by Australian Border Force (ABF) in respect of seizures between 10 October 2019 and 15 January 2020 inclusive. The grounds for seizure of goods were:

   The following goods (Goods) were seized on the ground that an authorised person reasonably suspects the Goods are special forfeited goods as defined in section 183UA of the Customs Act 1901.

   …Tobacco > Tobacco Products > Molasses Tobacco, regulated under Customs (Prohibited Imports) Regulations 1956 (the goods)

6. The notices relating to seizures in 2019 were addressed to Al Shemmary Saleh. The notices for seizures in 2020 were addressed to David John. It is not disputed that the address was the Applicant’s current residential address in Sydney.

7. The date, number, and quantity of the molasses tobacco seized were as follows: 

DATE	NUMBER OF SEIZURES	QUANTITY OF TOBACCO
10 October 2019	2 seizures	10 kgs each
17 October 2019	4 seizures	10 kgs, 12 kgs, 6 kgs, 6 kgs
18 October 2019	4 seizures	6 kgs each
22 October 2019	1 seizure	12 kgs
23 October 2019	1 seizure	6 kgs
4 November 2019	1 seizure	6 kgs (concealed inside boxes of coffee)
13 January 2020	4 seizures	8 kgs, 8 kgs, 12 kgs, 128 kgs
15 January 2020	1 seizure	96 kgs (with dates)

1. The total amount of molasses tobacco was 354 kilograms. One shipment included dates and another was concealed inside boxes of coffee.

2. Molasses tobacco is commonly smoked through water pipes and is known by various names, including ‘shisha’. It is an ancient practice still common in Middle Eastern communities, including in western Sydney.[2] 

   [2] Isobel Roe, ‘Health officials want families to say ‘Shisha, No Thanks’ over cancer fears. But is smoking shisha bad for you?’ ABC News (online, 17 October 2019) <>

   The Applicant has no criminal record and has not been charged with any offence or had any penalty imposed in respect of the shipments referred to above or a shipment in March 2019, discussed below.

   Import control of tobacco products

3. The Customs Act 1901 (Cth) (the Customs Act) controls imports of tobacco products, including molasses tobacco. A package of legislation was passed with effect from 1 July 2019 to strengthen border controls for the importation of tobacco products. It included the introduction of a permit system and the requirement for importers to pay import duty on importation.[3]

   [3] Customs Amendment (Collecting Tobacco Duties at the Border) Act 2018 (Cth); see also (Customs (Prohibited Imports) Regulations 1956).

4. Before 1 July 2019, entering tobacco products into a licensed warehouse without payment of import duty was allowed and duty could be paid on a weekly or monthly basis.  

5. Importing any prohibited imports is an offence of strict liability. The penalty depends on whether the duty payable or the value of the goods can be determined. Otherwise, it is 1,000 penalty units.

6. There are also specific offences involving tobacco products, which the Applicant’s solicitor addressed.[4]  They include importing  with the intention of defrauding the revenue, conveying or having possession knowing that the goods were imported with intent to defraud the revenue, importing and being reckless as to whether there would be defrauding of the revenue, and conveying or possessing tobacco products and being reckless as to whether the goods were imported with intent to defraud the revenue.

   [4] Customs Act 1901 (Cth), s 233BABAD.

7. Penalties range from 500 penalty points to 10 years imprisonment and a fine.

8. Import duty payable for the import of molasses tobacco is calculated according to the Customs Tariff Act 1995 (Cth). The applicable rate for molasses tobacco, Item 2403.11.00, from 1 September 2019 was $1,291.77/kg of tobacco content.

   The Applicant’s response to the seizure notices

9. The delegate sent the Applicant a Natural Justice Letter dated 6 October 2021 which included copies of the seizure notices.

10. He replied in a statutory declaration sworn on 15 November 2021. He denied importing the goods or being involved in any prohibited imports under Customs Regulations 1956. He wrote that he was self-employed with Uber Eats and owned a vehicle he used for that purpose. He did not receive any Centrelink payments, including the COVID-19 disaster payments. He had asked someone in the UAE (United Arab Emirates) in 2018 to import coffee and dates to Australia with the intention of starting a small business. If there was any mistake, it was not his. He was not familiar with the shipping details and had no idea why the imports of tobacco were attached to his name.

11. In his statutory declaration sworn on 25 May 2022, the Applicant provided the following details about that matter.

12. The person he asked was called Khaled Mishaal Abdullah (Khaled). The Applicant intended to open a small business because he was under financial stress. He has a wife and two children (who are in Iraq). The idea came to him when he was shopping in Coles and noticed how dear dates were, compared to the price in the Middle East. His idea was to open a coffee shop where he would sell coffee and sweets, especially dates.  It is an Arabic tradition to have dates with Arabic coffee.

13. The Applicant visited Iran to see his wife and children who travelled from Iraq. He met Khaled, who used to reside in the UAE. Khaled told the Applicant that he worked in the import/export industry. The Applicant suggested that Khaled send him dates and coffee ‘in order to start’ his business.

14. After he received two shipments of dates and coffee, he looked for a shop to rent. The first shipment was about six boxes of dates and the second was about four boxes of coffee. His hopes ‘were crushed’ when he discovered the dates and coffee were not of good quality and could not be used. The Applicant called Khaled to tell him and asked for a refund.  Khaled promised to deliver premium quality dates and coffee to compensate him. The Applicant tried unsuccessfully to call Khaled. The Applicant does not read or write Arabic or English and was unable to communicate with the UAE authorities to complain about Khaled.

15. The Applicant works from 6am to 5pm as an Uber Eats driver. He is not a businessman and does not deal in international transactions. He was shocked to see the seizure notices in his name. He has no idea about the shipments of molasses tobacco. He is not at fault.

16. During cross-examination, the Applicant said that the dates were the right kind but were rotten and then said that they were a different kind. He then ‘remembered’ that they were the right kind. When asked about saying that the dates were only good for a few weeks, the Applicant said that if they were genuine, they were no longer any good after five days.

17. When asked if he received the shipments in 2018, he said maybe 2019. He received two shipments one day apart at his current address.

18. In response to being asked why he trusted Khaled, the Applicant explained that a friend he had met on Facebook who was in Iran introduced them. The Applicant asked his friend if he sold or exported the type of date he wanted. He had found a small shop with reasonable rent. He said let us start working. He then said that their friendship began before he had his business idea. His friend said that he would find a suitable person to help him. His friend spoke both Persian and Arabic which was very helpful.

19. The Applicant paid Khaled $9,700 in 2018 which he borrowed from a friend, Waleed Al Jourani, who lives near him. The amount of $18,000 was also mentioned.

20. The Applicant said he first paid Khaled in 2018 and the last time was about 20 months before the hearing. The Applicant used to call Khaled but he would not respond.

21. The Applicant considered leasing a coffee shop in the Merrylands shopping centre in Sydney but did not proceed to do so. The owner of the shop wanted a four-week bond, two weeks in advance, and to see his equipment. 

22. His business idea was to earn money to bring his family to Australia who he misses dreadfully. His 13-year-old son sends him desperate messages. His wife blames him for not bringing her to Australia. That is why he is working so hard for Uber Eats.

23. When asked if he was aware of a package of tobacco being sent to him on 10 October 2019, the Applicant said that he was expecting a shipment of dates and coffee. Khaled said to wait.

24. The Applicant said that five people lived in the house where he lived and nobody brought him the seizure notices. He left in the morning and took the person he was caring for to the park in the afternoon for coffee. He did not know whether any of his friends were importing molasses tobacco.

    Attempted collection of two international mail articles in Victoria in March 2019

25. In addition to the seizure notices considered by the delegate who made the reviewable decision, before the Tribunal, the Respondent raised a further matter allegedly concerning the Applicant in its Statement of Facts, Issues and Contentions dated 26 August 2022. 

26. It alleged that about 22 March 2019, the Applicant attempted to collect two international mail articles from Sanctuary Lakes Local Post Office in Point Cook, Victoria. The articles were declared as food. They contained dates and some concealed molasses tobacco. The sender was Omar Faruk, PO Box 1099, Sharjah, United Arab Emirates. The addressee was JOHN David at an address at Point Cook, Victoria.  

27. The ABF Information Report (the ABF Report) about that incident attached copies of the Applicant’s NSW photo card, Medicare card, and drivers’ licence, a receipt from VicRoads dated 21 March 2019 for ‘1 APPOINTMENT $18.50’, a licence appointment card from VicRoads for 28 March 2019 and an international post slip and package label showing the Applicant’s name, Point Cook address, and a telephone number ending in 294. 

28. The ABF Report narrative included the following.  

29. Information was received from a security officer of Australia Post on 22 March 2019. Three males presented at the post office attempting to collect two international mail articles and ‘their behaviour was observed by the facility licensee as being “a bit off”’. The Applicant and another person (Ahmed) provided identification. The Applicant’s address was in Sydney (his previous Sydney address). The delivery address was at Point Cook, Victoria. Ahmed’s address was a different Melbourne address. ABF records showed no record for David John.

30. On 23 March 2019 the two articles were returned for inspection. Both articles were declared as food and both were sent from the same entity (set out above) to John David. Each article contained three large cardboard boxes of dates. Concealed under the dates were a number of packets of molasses tobacco product. The total was 1.5 kgs in each box ‘under the threshold for referral’. Both were sent for duty assessment.

31. The name and details of AL SHEMMARY Saleh (including his previous Sydney address and a telephone number ending 959) were recorded on Departmental databases. There was no evidence of a link in the Department’s holdings indicating a lawful change of name to David John. ‘It is highly likely AL SHEMMARY has obtained the identification of David JOHN by fraudulent means’. 

32. The telephone number ending in 294 was linked to a person I will refer to as Nawaf who was recorded at the same Sydney address as the Applicant. The third person who attended the post office, Mohammad, was recorded at the delivery address.

33. The ABF Report concluded that it was ‘highly likely’ that the Applicant, Ahmad, and Mohammed, were all involved in illicit activity involving both the international mail, air cargo stream and identification fraud. It recommended further research and referral of the ABF Report to the Visa processing/cancellation department for further investigation.

34. The Applicant acknowledged that he attended the post office in Victoria in March 2019 when he was living there for a short time. He said that he had a call from the post office advising him there were some items to collect. When he went, he was told that his address was not up to date and to bring someone who shared his address. He took Ahmed. He was told that the articles would be delivered to his place. He explained that when he went to VicRoads, the relevant motor vehicle licence authority in Victoria, he was told it would take four weeks to update his licence. He denied knowing the sender or that molasses tobacco was in the packages.

35. The Applicant said that he still had the idea for the business when he moved to Victoria because no-one would employ him here and he wanted to do formwork to earn some money. He knew Ahmed who helped him find a job. He was there for six weeks to two months but could not find a job. He said that he and Ahmed only knew about dates, not molasses tobacco.

36. The Applicant told Khaled he would work while preparing to start his business. Khaled told him he would receive dates and coffee and to tell him if the Applicant changed his address.

37. When asked why he had the dates sent to Victoria if he was planning the business to be in NSW, the Applicant said that he had not done business with dates and repeated that Khaled had told him to tell him when he changed his address.

    Assessing ‘good character’

38. The Act does not define ‘good character’. Justice Lee said 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. 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.

39. In Boy19 v Minister for Immigration and Border Protection [2019] FCA 574, Justice O’Bryan wrote at [55]:

    … In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character. Further, where a power is conferred by statute, Parliament is taken to intend that that power will be exercised reasonably..

    And at [88]:

    … respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship. Conversely, disrespect for the Australian Government, the laws of Australia and governmental departments reflects adversely on a person’s character in the statutory sense.

40. The Australian Citizenship Policy Statement and the Citizenship Procedural Instructions (CPIs) provide guidance to decision makers assessing a person’s identity and deciding whether someone is of good character. These are policy documents which the Tribunal will generally apply unless there are cogent reasons not to do so.[5] 

    [5] Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 640. (per Brennan J).

41. CPI 15 provides guidance about assessing whether a person is of good character. Relevantly, a person of good character is a person who is honest and respects and abides by the laws of Australia.

    Consideration

42. The Applicant was born in Kuwait in 1985 and later moved to Iraq. His wife and two children live there. In 2010, he arrived in Australia by boat. He currently holds a BB-155 permanent resident return visa.  

43. He was assisted by an interpreter during the hearing.

44. The Applicant’s movement records show that he departed Australia on 29 November 2017 and returned on 30 December 2017. I accept that he visited his wife and children in Iran during that time.

45. The Applicant’s evidence in response to the seizure notices and about attending the Victoria post office in March 2019 to collect two articles, was not cogent or coherent.

46. The Applicant’s legal representative made the following submission. The Applicant is a Bidoon. Bidoons have a completely different understanding because they live in the desert. That is a possible explanation for the repetition of questions and the problems the Applicant had understanding questions, even in Arabic. I do not accept that submission. 

1. I do not accept that the Applicant had the business idea he claimed or sort to lease premises in Merrylands. There is no reliable evidence to support his claim, such as records of receipt of the shipments, text messages complaining to Khaled, or evidence of the loan he claims he had from Waleed Al Jourani. A person with that name provided a reference for the Applicant. The reference did not mention giving the Applicant a loan to establish a business. If the person who lent the money was a different person, there was no evidence from that person. There is no bank record of a deposit of the various sums the Applicant mentioned when talking about the loan and no record of a transfer to Khaled.  

2. His evidence about the timing of looking for business premises to lease and the arrival of the shipments of dates and coffee is inconsistent. He claimed that the produce was not fit for purpose but claimed to look for premises after he received the shipment. It seems highly unlikely that he would not have opened the boxes as soon as he received them to check the goods, given his reason for starting the business was to earn money to help his family and he had borrowed money for the purchase. His claimed ignorance of, and inexperience running a business, do not overcome that inconsistency.

3. His attempt to explain why a shipment was made to Victoria when he was planning to establish his business in Sydney was unconvincing.

4. He claimed to have the business idea before he met Khaled in about December 2017.  There is no evidence of any shipment of anything before March 2019. He said that he received the shipments from Khaled in 2019. There is no explanation for the delay in establishing his business, which is inconsistent with the importance to him of earning money from it.

5. The Applicant’s evidence about how long he pursued Khaled is unclear. He was expecting a shipment in March 2019 and he said that he was expecting a shipment of coffee and dates around 10 October 2019. He said that his last contact with Khaled was in 2020 and about 18 months before the hearing which would be about March 2021.

6. He was not a credible witness.  

7. I now turn to a chronology of events that is supported by reliable evidence.

8. On 7 September 2018, the Applicant changed his name from an Arabic name to an Anglo/Australian sounding name. He denied changing his name to confuse authorities. He did not explain why he did change his name. It is not speculative to consider that sending molasses tobacco to a person with a non-Arabic name may help avoid attention from ABF. Changing his name is consistent with being knowingly involved in the importation of prohibited tobacco products.

9. Around 22 March 2019, the Applicant tried to collect articles from the post office in Victoria.  The articles were declared as food. They contained dates and some concealed molasses tobacco. The addressee was the Applicant, JOHN David at an address at Point Cook, Victoria. His conduct is consistent with being knowingly involved in the importation of prohibited tobacco products.

10. On 13 occasions between 10 October 2019 and 4 November 2019, ABF seized a total of 102 kilograms of molasses tobacco products addressed to the Applicant’s previous name at his current residential address.                

11. ABF made four seizures on 13 January 2020 of 8 kgs, 8 kgs, 12 kgs, and 128 kgs of molasses tobacco. On 15 January 2020, one seizure of 96 kgs was made. The addressee was David John at his current residential address.

12. The following is noteworthy. The addressee in March 2019 was the Applicant’s then legally changed name. After those articles had been seized, from October 2019 to November 2019 articles were addressed to the Applicant’s previous name. After those articles had been seized, the articles were again addressed to the Applicant’s changed name. I infer that whoever was sending the articles was responding to the seizures.

13. There is no corroborative evidence that the Applicant received or was aware of the seizure notices issued in October 2019 to January 2020 before the delegate brought them to his attention in the notice dated 6 October 2021. There is no evidence that he responded to any of them. He denied importing molasses tobacco.

14. However, not responding to the seizure notices is consistent with being knowingly involved in the importation of prohibited tobacco products.

15. The submission was put on behalf of the Applicant that his financial circumstances do not reflect financial benefit from the importations. It is also consistent with attempted importations being unsuccessful because they were seized by the ABF. I infer that the Applicant’s financial circumstances were the motive for getting involved in the importation of prohibited tobacco products.

16. Because I do not accept the explanation the Applicant gave and based on the reliable evidence, I am satisfied that he was involved in the importation of molasses tobacco, a prohibited import, to the extent that he was knowingly acting as the receiver.  I do not accept that he was the innocent victim of an unscrupulous Khaled.

17. The Applicant’s conduct was for financial gain and shows that he does not respect or abide by Australian law. He has shown no remorse for his dishonest conduct. To the contrary, he has sought to conceal his involvement for the purpose of obtaining citizenship.

18. He has no criminal record and has not been charged with any relevant offence, however, his conduct does not demonstrate the enduring moral qualities of a person of good character. 

19. The Applicant provided six references which were in the same terms except for the period of time the referee had known the Applicant. They are to the effect that he is a person who the referees regard to be of good character and demonstrate no knowledge of the Applicant’s conduct. I give them no weight.

20. He provided documentation that establishes that he has been working for Uber Eats since March 2021. His previous work history is minimal. He mentioned being a carer for someone around the time of the seizures at the end of 2019 and the beginning of 2020. I give this evidence little weight.

21. The Applicant provided medical reports to the effect that he and his wife suffer from mental health issues. The report about his wife is not clearly dated. The psychologist’s report about the Applicant is dated 7 September 2017. It may be accepted that their present circumstances cause both the Applicant and his wife considerable distress. However, I am assessing whether the Applicant is a person of good character. The evidence does not persuade me that the lack of cogency and coherence of Applicant’s evidence was caused by a mental health issue. It does not lead me to alter my conclusion about his conduct.  

22. The Applicant complained about the length of time his citizenship application has taken to be processed and the effect of Ministerial Direction 80 which means that his family’s application for a visa is the lowest in the order of priority. I accept that he feels very much aggrieved by those matters, however, they are not relevant to the assessment I am required to make.

    Conclusion

23. For the above reasons, I am not satisfied that the Applicant is a person of good character as required by section 21(2)(h) of the Act.

    Decision

24. The reviewable decision is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kelly

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

Associate

Dated: 22 February 2023

Date of hearing:	28 September 2022
Solicitor for the Applicant:	Mr A Alkafaji, Alkafaji Lawyers Pty Ltd
Solicitors for the Respondent:	Ms G Ho, Clayton Utz Mr O Morris, Clayton Utz