Khalil and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 1226

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1226

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/460

GENERAL ADMINISTRATIVE DIVISION		)
Re		AYOUB KHALIL

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date4 December 2003

PlacePerth

Decision The Tribunal affirms the decision under review.

...……....(sgd S D Hotop)......................

Deputy President 

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – citizenship – applicant arrived in Australia from Iraq in May 1999 – applicant granted protection visa in July 1999 – applicant convicted on 3 counts of aiding person to escape from immigration detention in May 2001 and sentenced to 3 concurrent terms of 6 months imprisonment – whether applicant a person of good character.

Australian Citizenship Act 1948 s13(1)(f)

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

Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Minister for Immigration and Ethnic  Affairs v Baker (1997) 73 FCR 187

Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

REASONS FOR DECISION

4 December 2003 Associate Professor S D Hotop, Deputy President       

Introduction

1. Ayoub Khalil (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”), dated 19 November 2002, refusing his application for the grant of a certificate of Australian citizenship on the ground that he does not satisfy the “good character” requirement specified in s13(1)(f) of the Australian Citizenship Act 1948 (“the Act”).

2. At the hearing before the Tribunal the applicant appeared in person without representation, and the respondent was represented by Ms T Davies, solicitor. The Tribunal had before it the documents (“T documents” and “S document”) lodged on behalf of the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and a bundle of documents (comprising 10 pages) tendered in evidence by the applicant (Exhibit A1). Oral evidence was given by the applicant and, on his behalf, by Ms Rima Somsmieh, Mr Basil Zeitoon, Mr Raji Ramadan and Dr Omar Alqubaisy. No witnesses were called by the respondent. Ms Najat Obeid, a qualified interpreter in the Arabic language, was also in attendance.

3.      After the hearing the following documents were lodged with the Tribunal:

·a letter dated 18 July 2003 from Recycling Company of WA Pty Ltd was filed by the respondent on 21 July 2003;

·a letter dated 6 August 2003 from ATS Group was filed by the applicant on 8 August 2003.

Those documents have been marked as Exhibit R1 and Exhibit A2, respectively.  Both parties were accorded the opportunity to make written submissions in relation to those documents.

The Factual Background

4.      The essential background facts, which are not in dispute and which are found by  the Tribunal on the basis of the T documents, the S document and Exhibit A1 are as follows.

5.      The applicant was born on 2 July 1972 in Baghdad, Iraq and is an Iraqi citizen.

6.      On 15 May 1999 the applicant arrived in Australia without a visa and was detained at the Immigration Reception and Processing Centre, Port Hedland, Western Australia.

7.      On 18 May 1999 the applicant lodged with the (former) Department of Immigration and Multicultural Affairs a form of “Application for a protection visa (866)”.

8.      On 5 July 1999 a delegate of the respondent made a decision granting a protection visa (subclass 866) to the applicant.

9.      On 14 May 2001 the applicant was convicted, in South Hedland Court of Petty Sessions, on 3 counts of aiding a person to escape from immigration detention and was sentenced to 6 months imprisonment on each count (to be served concurrently).  The relevant offences were committed by the applicant between 9 and 10 January 2001.

10.     On 13 November 2001 the applicant, having served the abovementioned sentence, was released from prison.

11.     On or about 7 July 2002 the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) a form of “Application for grant of Australian citizenship”.  In response to questions in that form, the applicant provided accurate information regarding the abovementioned convictions and sentence.

12.     On 16 August 2002 the applicant was interviewed by an officer of the Department in connection with his application for a grant of Australian citizenship and, by letter from the Department dated 29 August 2002, he was required to provide “evidence of good character”..  The applicant subsequently provided the Department with 2 character references (undated), one from Mahmoud Elnashar, Imam, Perth Mosque, the other from Dr Irfan Hakeem, Manager, Islamic Centre of WA.

13.     On 19 November 2002 a delegate of the respondent refused the applicant’s application for a grant of Australian citizenship, and the applicant was notified of that decision by letter of the same date.

14.     On 28 November 2002 the applicant lodged with the Tribunal an application for review of the delegate’s decision of 19 November 2002.

The Legislation

15. Section 13(1) of the Act provides:

“Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a)       the person is a permanent resident;

(b)       the person has attained the age of 18 years;

(c)       the person understands the nature of the application;

(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f)the person is of good character;

(g)the person possesses a basic knowledge of the English language;

(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia”..

Ministerial Policy

16.     Ministerial policy guidelines regarding the determination of applications for Australian citizenship are set out in the Australian Citizenship Instructions (“the Instructions”) which relevantly state:

“5.4     GOOD CHARACTER REQUIREMENT s13(1)(f)

...

5.4.2The term ‘good character’ is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.

5.4.3If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character.  An applicant’s behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed againt ordinary community standards of behaviour.

5.4.4Assessment of good character involves:

·establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;

·according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and

·considering the full circumstances relating to the relevant matters and evidence of the applicant’s behaviour since then.  Factors to be considered include, but are not limited to, those in the following paragraphs.

5.4.5Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 – 5.4.15, if there is evidence that the applicant:

(a)has, at any time, been sentenced to:

-     death;

-     imprisonment for life;

-     a term of imprisonment of 12 months or more;

-     2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

(b)is a serious repeat offender (see 5.3.9 – 5.3.11);

(c)may have committed, or been involved in the commission of, war crimes or crimes against humanity or human rights (in which case the decision maker is to contact Character Section in Central Office for advice);

(d)has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result been detained in a facility or institution;

(e)may have, or have had, an association with someone else, or with a group or organisation, whom the decision maker reasonably suspects has been or is involved in criminal  conduct;

(f)is subject to proceedings for an offence against a law of another country, including proceedings by way of appeal or review;

-     a person subject to such proceedings for an offence against an Australian law would come within the bar on grant in s13(11)(a) (see 5.3.4); or

(g)is on release from the whole, or a part, of a sentence on parole, licence or security.

...

5.4.7Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards.  For example, crimes of violence, sexual abuse, drug trafficking, major fraud, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment.  Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.

...

5.4.11Consider whether a crime was a one-off occurrence that can now be considered ‘out of character’, or whether the person’s criminal record shows repeated offences for which a conviction has been recorded and a pattern of unlawful behaviour which would suggest that the applicant is not of good character.  Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13 – 5.4.17).

5.4.12Consider whether there were any extenuating circumstances relating to the crime being committed.  For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist.  The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

...

5.4.14A person’s previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person’s behaviour and reputation at the time of the decision that has greatest relevance.  Decision makers must be satisfied that a person is of good character at the time of decision.  A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

...

5.4.16The applicant’s behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions.  Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights.  The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.

5.4.17The applicant’s present reputation in the community should also be considered.  The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship.  Decision makers are entitled to give substantially more weight to statutory declarations than to other statements.  Declarations from character referees that acknowledge the person’s criminal background, and attest to a change in character since, should be given considerable weight”.

The Issue

17. The sole issue for the Tribunal’s consideration and determination in this matter is whether it is satisfied that the applicant is a person “of good character”, within the meaning, and for the purposes, of s13(1)(f) of the Act.

The Applicant’s Evidence

18.     The applicant’s evidence-in-chief centred on the circumstances which ultimately resulted in his being convicted on 3 counts of aiding a person to escape from immigration detention (see paragraph 9 above).   He said that, after his arrival in Australia, he was sent to the Port Hedland detention centre where he became acquainted with, in particular, 2 Iraqi men.  He said that after he was released from the detention centre, following the grant of a protection visa to him in July 1999, those men kept in contact with him and used to request him to buy things for them and send those goods to them at the detention centre, and he did so.  He said that during the next 2 years one of the Iraqi men used to tell him of his worries and of the fact that he had a 2-year old daughter in Iraq whom he had not seen for a long time, and he said that he felt for that man.  Eventually, he said, that man asked him to drive his car to Port Hedland and take him away from there.  His evidence continued:

“But he did not tell me directly and frankly what he intended to do until I reached Port Hedland.  When I reached there I saw him with two other persons that I really did not know that they are going to be with him and he told me the story is this and that, that I’m leaving the camp.  Well, when I heard this I was confronting a fait accompli.  I couldn’t say no because he is a friend so I took them even though I did not want to do that but he is my friend and I cannot say no to him.  While taking them I hit an animal on the road and it caused damage to the car so we had to leave the car and walk to the nearest village.  Then the police came and inquired.  He asked for papers from these men and since they did not have any sort of papers it started – the problem started from then.  The police asked me, do you know that these persons are fleeing the camp, they fled from the camp, and are you aware what you have done.  I answered ‘no’, just to protect myself even though I knew what they were doing but I said, ‘no’, by preservation instinct just to protect myself.  Then, well, my hearing came and the lawyer – my lawyer told me to plead not guilty because there is no proof for the contrary, so you can say not guilty and I pleaded not guilty.  But I wasn’t really at ease with myself.  I knew that I was not telling the truth but since I said not guilty the first time, well, I was ashamed to say guilty again, so the story went on like that.  I never thought that the case was going to take all these dimensions and that they will sentence me.  I thought that it is a simple case, not more.  And the judge sentenced me for 6 months and after spending the 6 months in prison I started a new life.”

(Transcript, p9)

19.     The applicant said that he had studied English for 2 years following his release from the detention centre in July 1999 and that, upon his release from prison in November 2001, he started looking for work and found work with the Recycling Company of WA.  He said that he worked for that company for 6-7 months and that he is presently employed by Solahart as a welder and has been so employed for a month and a half.  He said that he “wanted to be stable and to establish a new life here” and that he “got married” a year ago.  He said that he had also had “some casual jobs” as a cleaner.

20.     In cross-examination the applicant said that he commenced work with the Recycling Company in May 2002 and worked there until the end of 2002.  He added that the position was “casual full-time” and that he used to work for long hours, sometimes 40-45 hours per week.  He was referred to a letter (undated) from Peter Malla, Operations Manager, Recycling Company of WA Pty Ltd (part of Exhibit A1) which states:

“This is to confirm that Ayoub Khalil is currently employed as a permanent part time employee in our company.  Ayoub has been with us in this capacity since 15 November 2002 employed as a factory assistant.  Ayoub works average 30 to 40 hour week.  Ayoub also works extra overtime during the week ...”.

The applicant explained that he did not remember the exact dates of his employment but that he did remember that he had worked for that company “for a long time, at least 6 months”.  He also explained that he was told by them that his position was “casual full-time”.

21.     The applicant said that when he was released from prison (in November 2001) he studied English full-time at school, during which time he received social security payments, but that he “quit study” when he found the job with the Recycling Company.

22.     As regards his employment with Solahart, the applicant said that he works full-time, 38-40 hours per week, but that it is a casual position.  He said that he is a qualified welder, having obtained that qualification outside Australia, and that he intended also to obtain an Australian qualification for welding.

23.     The applicant confirmed that the abovementioned convictions for aiding a person to escape from immigration detention were his only criminal convictions.  His cross-examination continued:

“MS DAVIES:  Do you understand that it is a serious crime that you committed?

THE INTERPRETER:  I don’t know how you consider it as a big crime because I did not kill any person, I did not steal, I did not sell drugs, etcetera.  I don’t know how you consider this a big crime.

MS DAVIES:  But do you not think that the Australian community looks at it as a serious crime, to help people escape from a detention centre?

THE INTERPRETER:  No doubt I consider that I’ve done something wrong, but even among Australians there are Australians who consider this a crime and Australians who go to prisons and try to free these detainees over there.”

(Transcript, p23)

24.     As regards his marital status, the applicant explained that, although he and his wife have been married for one year under Islamic law, they are not yet able to marry under Australian law because her divorce from her former husband has not been finalised.  He confirmed that his wife has 2 young daughters from her previous marriage and that those 2 children are Australian citizens.  He said that, according to Islamic law, when a man marries a woman with children, the children “automatically” become his, and that it was his duty to let his wife’s children live with him and to do everything for them as if he were their natural father.

25.     Asked why he applied for Australian citizenship, the applicant replied:

“Because when I came to Australia, I came to stay.  I like to stay in Australia and I would like to know the future of my children, because if they are Australians and I am not it would be a little bit strange.  So, I would like to know my future, if I have a future here or not”.

(Transcript, p24).  Asked whether he would face any difficulty if he were not now granted Australian citizenship, he replied:

“... yes, if I don’t get the citizenship I might think of leaving Australia and going somewhere where I’ll be accepted as a citizen because I need stability in my life”.

(Transcript, p25).

The Evidence of Other Witnesses

Rima Somsmieh

26.     Ms Somsmieh lives with the applicant as his wife according to Islamic law.  She said that, before she met the applicant, she had been in a “very, very bad marriage” involving violence and that she had a “very bad relationship” with her (then) husband and his family.  She said that she first met the applicant at a friend’s house in July 2002 and, after she had inquired about him in the Muslim community and had been told “good things” about him, they were married within 2-3 weeks.  She said that the applicant is very good to her at home and always helps her with the housework, and that he is also very good with her daughters and always plays with them and buys things for them.

27.     Ms Somsmieh said that she had been in Australia for 3 years and has a permanent visa and that she intends to apply for Australian citizenship next year.  She said that she is an accountant and is presently studying computing at TAFE.

Basil Zeitoon

28.     Mr Zeitoon said that he was born in Kuwait, obtained a degree in engineering in England, worked as an engineer in Kuwait for 8 years, left Kuwait after the invasion by Iraq and went to Jordan from where he applied to migrate to Australia “under the skills program”.  He added that he arrived in Australia in June 1991 and was granted Australian citizenship in June 1993.  He presently works as a contract manager.  He said that he first met the applicant in 1999 and that, since that time, he has had a lot of social contact with him, seeing him at the Islamic Centre for, on average, approximately 3-4 hours each week.  He confirmed that he was aware that the applicant had spent 6 months in prison for “help(ing) to get somebody out of a detention centre, something like that”.  He made the following statement regarding the applicant:

“He is no doubt of good character.  What happened or what – the things he did has been very much unfortunate incident and he does regret that and he admitted to me he made a big mistake.  I was surprised how he did that.  It is out of his character, absolutely out of his character.  That’s why we have spoken to him.  We have guarded him and again he admitted his guilt and he paid for it.  In regard to his character, I’ve known him at the mission before since 1999 and he is absolutely very disciplined, obedient, very polite, and he recently I believe he got married about 1 year ago or less than that, about 6 months ago, and that will settle him more down.  So, I can recommend him for any good things in his career, in his social life and his responsibility, absolute responsibility and how else can I say.  I very much witness and confirm that he is of a very good character and he can be a very good person in the society.”

(Transcript, pp32-33)

Raji Ramadan

29.     Mr Ramadan said that he was born in Palestine and came to Australia in 1994 and was granted Australian citizenship in 1996.  He said that he is a civil engineer and had worked as a private consultant before recently taking up an appointment as Program Manager of Projects with the City of Swan.  He said that he first met the applicant 2-3 years ago at the Islamic Community Centre and that he had regularly seen him there since then.  He said that he was aware that the applicant had been imprisoned for 6 months but he was unsure of the details of the relevant offence, describing it as:

“... he’s been involved in some people ... coming illegally to the country or something in those lines.”

(Transcript, p41).  He made the following statement regarding the applicant:

“... I see Ayoub in the community and in the mosque and I have become aware that he has had problems in terms of his citizenship, I think, in relation to his citizenship and he has – that he was rejected, and this is when he approached me  and asked me if I can be a character witness to him and I said:  fine.  I have known Ayoub – you know, I’ve got to know Ayoub and meet Ayoub and see him in the community I would say, from memory, at least 2 to 3 years – 2, 2-and-a-half years.  I haven’t heard anything bad about Ayoub.  He has been always a good community member and he has always been a positive person.  Ayoub is a social person.  He’s recently – well, when I say recently about a year now he’s got married to a lady that we recognise and know in the community and she has two daughters.  It’s been known about him that he’s a very caring – very caring father.  ...”.

(Transcript, p37).

Omar Alqubaisy

30.     Dr Alqubaisy said that he was born in Baghdad, Iraq, came to Australia in 1997 and was granted Australian citizenship in 1999.  He said that he is a qualified medical practitioner and that since 1999 he has worked full-time as a resident medical officer at Princess Margaret Hospital in Perth.  He said that the applicant had been introduced to him at the Perth Mosque 2-3 years ago and that he had seen him at the Mosque, or socially, at least once per week since then.  He confirmed that he was aware that the applicant had been convicted of helping some people to escape from a detention centre and that he had served 6 months imprisonment for that offence.  He added that he had visited the applicant in prison.  He made the following statement regarding the applicant:

“He’s very good man.  I never heard he’s done anything wrong or I never heard that he done – or anything bad and, currently, he’s getting – currently he’s married and he’s – he got married and he’s responsible about – about two kids and they’ve – from – I heard it from him, he loves his family and the family love him and he love his – love his kids.  So, he’s just very friendly and he’s very co-operative and, actually, he’s very helpful man, or never somebody asking for help or for – he’s – he’s very keen, very keen, actually, to – to give a hand for anybody who – for – who depends on the – yeah, that – that I can say about him.”

(Transcript, pp45-46).  Later he added the following:

“Do you have anything else you would like to say about the character of Mr Khalil?---Look, as I said, I mean – I mean, he – he is  very good man.  I never heard anything bad about him.  He’s very friendly man, he’s very co-operative.  He’s – I mean, and now he is very – I mean, now – now, too, he gets married now.  He is responsible about big family, about two kids and his wife.  I never heard any complaint from him wife about him or from the kids that he lives.  However, they are not his kids – his wife’s kids but he is looking after them and I’ve found all the family, they love him.  And not only the family, actually, all the friends.  That’s – that’s – that’s all.  What can I say about him?

Hm mm?---And I – I mean, very very – I commend him to get a – the citizenship.”

(Transcript, p48)

Additional Material

31.     The applicant tendered in evidence (part of Exhibit A1) a letter (undated) from Dr Irfan Hakeem, Manager, Islamic Centre of WA, and a letter dated 13 March 2003 from Mahmoud Elnashar, Imam, Perth Mosque.  The contents of Dr Hakeem’s letter are as follows:

“This is my second letter in support of application of Mr Ayub Khalil for Australian citizenship.

I am aware that Ayub was gaoled for a misfortunate incident, which emanated from his good will and sincere personality.  He, in good faith helped some people that he knew as mates in the detention centre when he was waiting for his refugee status to be confirmed.  His help to these people confirms his simple hearted youthful spirit of recognizing mateship as a highly considered value.  This led him not to wonder about their status assuming that their status has been legalized as they told him.

I hope that this unfortunate incident, for which he has paid dearly, will not be an impediment in granting him the Australian citizenship for he is a hardworking, faithful, and spirited young man.’

The contents of Imam Elnashar’s letter are as follows:

“I did not know that Ayub Ali was detained and was gaoled for helping some detained people to escape.  Now I know, and this does not change my previous opinion on him.

Since I met and knew him three years ago in the mosque, he was and is still a straightforward person of good behaviour and manners of faithful and sincere heart.  Ayub is trying always to be positive and helpful and never interfere with anybody.

I recommend Ayub for all good things in life because he is worthy of them, and I hope that this will intercede for him.”

32.     The respondent filed, after the conclusion of the hearing and with the leave of the Tribunal, a further letter from Recycling Company of WA Pty Ltd, dated 18 July 2003, regarding the duration and status of the applicant’s employment with that company.  The contents of that letter (Exhibit R1) are as follows:

“...

1.        Mr Khalil commenced employment on the 1^st of November 2002.

2.        Mr Khalil ended his employment on the 15^th of April 2003.

3.The manager at the time of Mr Khalil leaving, Mr Peter Malla, has since left the company. The Employment Separation Certificate indicates that Mr Khalil left due to there being a shortage of work available.

4.We further advise that the updated letter from Mr Malla is also incorrect in relation to the employment status of Mr Khalil. He was employed on a casual part time basis

….”.

33.     On 8 August 2003 the applicant filed a letter from ATS Group (The Labour Management Company), dated 6 August 2003, regarding his subsequent employment. That letter (Exhibit A2) states:

“This is to certify that Ayoub Khalil has been employed by ATS Group on a casual basis since 12/5/03.

Year to date 2002-2003 gross wages: 2799.01

Final day working for ATS - Wednesday June 18, 2003

…”.

In an accompanying signed statement, dated 8 August 2003, the applicant provided the following relevant information:

“…

4. …Attached is a letter from the ATS Group who employed me and contracted my services out to SolaHart. I was employed by ATS Group and contracted out to SolaHart in this manner form 12 May 2003 to 18 June 2003 inclusive.

5. As the hearing in this matter was held during the day of 19 June 2003, I was not able to attend work for SolaHart on that day. As a consequence, my employment was terminated, as SolaHart refused to grant me one days leave to attend the hearing. This explains why the letter from ATS Group indicates that my final day working for ATS Group was 18 June 2003.

6. I have subsequently been able to find work as a cleaner, cleaning for a private cleaning company. I started employment with this company on a casual basis on 1 August 2003.

…”.

The Submissions

34. The parties made submissions addressing, in particular, the “good character” requirement in s 13(1)(f) of the Act, and the relevant provisions in the Instructions, as applied to the circumstances of the present case. Ms Davies (for the respondent) made substantial oral submissions at the hearing. The applicant made a brief oral submission at the hearing but he had previously, on 18 June 2003, lodged with the Tribunal extensive written submissions in response to the respondent’s Statement of Facts and Contentions and Statement of Issues. The Tribunal has carefully considered the submissions, both oral and written, made by the parties and it is unnecessary to set them out here.

Consideration

35.     The meaning of the expression “good character” has been considered by the Full Court of the Federal Court of Australia in the context of the provisions of the Migration Act 1958 authorising the respondent to refuse to grant, or to cancel, a visa.  In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Davies J (with whose reasons R D Nicholson J agreed) said (at p 425):

“ …the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary, meanings 1,2,3,4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”

Lee J said (at pp 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.”

In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Court said (at p 197):

“The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’..  Conduct may make those qualities visible, but it should never be confused with them.  In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.”

The abovequoted dicta of Lee J in Irving have also been cited with approval by the Tribunal for the purposes of s 13(1)(f) of the Act: see, for example, Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 at 776-777; Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at para 13.

36.     According to the undisputed evidence before the Tribunal the 3 offences of aiding a person to escape from immigration detention, which the applicant committed on 9-10 January 2001 and of which he was convicted on 14 May 2001 and for which he was sentenced to 6 months imprisonment on each count (to be served concurrently), constitute his only criminal history both within and outside Australia. In the opinion of the Tribunal, however, those offences constituted serious breaches of Australia’s immigration law by a person who had himself, only 18 months previously, been granted a protection visa under that law. The seriousness of those offences was, furthermore, reflected by the not insubstantial custodial sentences imposed therefor on the applicant by the Court.

37.     The Tribunal is not satisfied that there were any mitigating or extenuating circumstances associated with his commission of the abovementioned offences. On the contrary, having regard to the applicant’s own version of events, he had the opportunity not to commit the offences in the first place as well as the opportunity to withdraw from the criminal enterprise during the long drive after leaving Port Hedland. Instead, the applicant voluntarily chose to embark on the commission of the offences because of the involvement of a particular friend, thereby wrongly placing loyalty to that friend above obedience to the law, and later, when his vehicle was involved in an accident and he was presented with the opportunity to discontinue his participation in the offences when questioned by the police, he chose falsely to deny his guilt to the police.

38.     The Tribunal notes, furthermore, that, although in his oral evidence the applicant acknowledged that he had “done something wrong”, he did not express remorse or contrition for his wrongdoing but instead appeared to downplay the seriousness of his wrongdoing and to suggest that it might be acceptable to, at least, some members of the Australian community (see paragraph 23 above). Similarly, para 23 of the applicant’s written submission states as follows:

“Although the prison sentences imposed for the Offences totalled more than 12 months, the Offences are not ordinary crimes but are rather Commonwealth offences committed in a remote part of Australia in relation to an extremely emotive and politically charged issue, namely detention of refugees, which has divided community opinion and sentiment.”

Accordingly, although there is no established “pattern of unlawful behaviour” in the applicant’s case, and the abovementioned offences might be described as “a one-off occurrence” (Instructions, para 5.4.11), it is of concern to the Tribunal that the applicant, in his oral evidence, did not appear fully to understand and acknowledge the seriousness of his wrongdoing and to express appropriate remorse therefor.

39.     On the other hand, 3 professionally-qualified witnesses and fellow members of the Muslim community in Perth, who were fully aware of the applicant’s criminal convictions and incarceration, spoke well of him as regards his personal and social qualities and his religious practices. Likewise, his (Islamic law) wife spoke very highly of him as a loving and caring husband to her and father to her 2 young children (from a former marriage). The Tribunal notes, however, that no character evidence or references from any of the applicant’s employers were presented to it, and that the applicant has had various casual employment positions, and has not been engaged in stable employment, since his arrival in Australia.

Conclusion

40. Having regard to the whole of the material before it, the Tribunal, chiefly by reason of the applicant’s simultaneous commission in January 2001 of 3 offences of aiding a person to escape from immigration detention, and his apparently continuing failure appropriately to acknowledge the seriousness of those offences, is not presently satisfied that the applicant is a person “of good character” within the meaning, and for the purposes, of s 13(1)(f) of the Act. The Tribunal, on the other hand, is satisfied that the applicant has many good personal qualities and appears to enjoy a good reputation in the local Muslim community, such that he has the capacity clearly to demonstrate in the future that he is a person of good character. But, as para 5.4.14 of the Instructions states, a “reasonable amount of time” will need to pass to allow a pattern of good behaviour to be established such as would justify the conclusion that the applicant is a person of good character.

41. Accordingly, it is incumbent on the applicant to demonstrate, by his ongoing good conduct over a reasonable period of time, that he satisfies the “good character” requirement specified in s 13(1)(f) of the Act and is also otherwise worthy of a grant of Australian citizenship. What will constitute a reasonable period of time for this purpose cannot, of course, be quantified with precision in advance but the Tribunal would venture to suggest that, provided that the applicant continues to be of good behaviour and to enjoy a good reputation and does not engage in any unlawful or otherwise opprobrious behaviour, a fresh application by him for a grant of Australian citizenship would probably be appropriate after the expiration of a period of 12 months from the date of this decision.

Decision

42.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President

Signed:         .............(sgd V Wong)....................................
  Associate

Date of Hearing  19 June 2003
Date of Final Submission         8 August 2003
Date of Decision  4 December 2003
Counsel for the Applicant         In person
Counsel for the Respondent     Ms T Davies
Solicitor for the Respondent     Blake Dawson Waldron