Mas Rivadavia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2023] AATA 3668

Mas Rivadavia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 3668 (10 November 2023)

Division:GENERAL DIVISION

File Number(s):      2022/8725

Re:Ruben Mas Rivadavia

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:10 November 2023

Place:Sydney

The decision under review is set aside and remitted with a direction that the applicant is of good character, satisfying paragraph 21(2)(h) of the Act.

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

Senior Member A Poljak

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – whether the applicant is a person of good character under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – where the applicant conspired to import into Australia a commercial quantity of a prohibited import - where the applicant conspired to import into Australia a trafficable quantity of a prohibited import - where the applicant has driving offences – consideration of relevant material, law and policy – decision under review set aside and remitted

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Secondary Materials

Australian Citizenship [Policy Statement]

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

10 October 2023

1. Ruben Mas Rivadavia, the applicant, is a citizen of Uruguay. He first arrived in Australia on 21 October 1992, on a Preferential Family (subclass 104) visa. The applicant was granted a Resident Return (Subclass 155) visa on 31 January 2000.

2. On 11 February 2004, the applicant was convicted in the Sydney District Court of New South Wales of 2 counts of conspiracy to import into Australia a trafficable quantity of a prohibited import [heroin] and was sentenced to 6 years and 9 months imprisonment with a non-parole period of 4 years and 3 months. On 18 August 2004, the Crown appeal was allowed, and the original sentence was quashed. As a result, the applicant was sentenced to 8 years and 3 months imprisonment, with a non-parole period of 5 years and 3 months.

3. On 28 June 2004, the applicant was convicted in the Sydney District Court of New South Wales of conspiracy to import into Australia a commercial quantity of a prohibited import [3, 4 - Methylenedioxymethamphetamine - MDMA]. On 18 March 2005, the applicant was sentenced to 11 years of imprisonment with a non-parole period of 10 years. On 3 September 2008, the conviction was quashed by the High Court of Australia (with reasons delivered on 6 November 2008) and a new trial was ordered. The applicant ultimately pleaded guilty in the course of the new trial. On 7 August 2009, the Sydney District Court of New South Wales sentenced the applicant to eight years and six months imprisonment, with a non-parole period of seven years and nine months.

4. The applicant was released from prison in 2010.

5. On 17 July 2013, the applicant was convicted in the Bankstown Local Court of not give particulars to other driver and not reverse vehicle safely and was sentenced to a section 10 bond for 3 months for each offence; and on 13 July 2015, the applicant was convicted in the Fairfield Local Court of drive motor vehicle while licence suspended - 1st offence. The applicant was sentenced to a section 10 bond for a 12-month period.

6. On 20 April 2021, the applicant lodged an application for Australian citizenship by conferral. He was provided an opportunity to comment on adverse information, being the offences as detailed above.

7. On 18 October 2022, the applicant’s citizenship application was refused as the delegate was not satisfied that the applicant is of good character, and therefore found that the applicant did not meet the requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). This is the decision under review in these proceedings.

   Good character

8. The issue for the Tribunal's determination in this matter is whether the Tribunal can be satisfied that the applicant is of good character, pursuant to paragraph 21(2)(h) of the Act.

9. The term “good character” is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement] (the Policy).

10. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

11. As to the definition of good character, Justice Davies of the Full Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [424-425], [427-428]:

    The question whether a person is or is not of “good character” is primarily an issue of fact. …

    It should also be observed that 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 …

    Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention needs 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. …

    …

    The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can readily be recognised, in a particular case view may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.

12. Justice Lee observed 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 while the latter is a review of subjective public opinion…

13. The CPI 15 states the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated over a long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society and overseas. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

14. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community. (Emphasis added)

15. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include several factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    Offending Conduct

16. The applicant's criminal history spans 11 years and is viewed extremely seriously, particularly given that his offending involved drug related offences including conspiracy to import into Australia a trafficable quantity of a prohibited import, being heroin and 3, 4 - Methylenedioxymethamphetamine (MDMA). These types of offences are considered extremely seriously by the Tribunal, for the purposes of paragraph 21(2)(h) of the Act, as they pose a significant risk to the Australian community.

17. The seriousness of the applicant’s offending is also reinforced by the criminal offending involving conspiracy to import a commercial quantity of prohibited drugs into Australia and the sentences received by the applicant.

18. In an email dated 28 September 2022, the applicant describes the circumstances of his drug offending as follows:

    ‘As I explained in my original application for my citizenship I committed a crime back in 2002. Around that time I stating hanging with the wrong friends and was ask to assist in 2 packages containing drugs into Australia as a watch dog because at the time I was working for an import and export company. At the time and only been 22 years old I was blinded by some financial gain from this and didn't [quite] understand how serious my involvement in this conspiracy was. I really felt I was not getting [too] involved by just been a lookout but wasn't I wrong'

19. At hearing, the applicant reiterated that the drug offending occurred over 20 years ago when he was very young. He explained that despite having received two separate convictions for heroin and MDMA in 2004, the offending conduct all occurred around the same time in 2002.

20. In addition to the criminal offences already detailed in these reasons, I note that the applicant’s most recent driving offences include the following:

    (a) on 27 September 2019, the applicant exceeded the speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected) for which he received a fine of $121; and

    (b) on 21 October 2019, the applicant was recorded as a driver of a vehicle other than a bus drive in bus lane (camera detected) for which he received a fine of $344.

21. I do accept that the applicant’s offending between 2001-2019, represents a pattern of behaviour that demonstrates the applicant's ongoing disregard for the law.

22. I also note that the applicant’s driving offences were not initially disclosed in his application for Australian Citizenship. The applicant later referred to his driving offences in emails dated 26 and 28 October 2022. He concedes that he has a poor driving record and explained at hearing that the non-disclosure of his record was an oversight and not intentional. The applicant did disclose his drug offending and period of imprisonment at first instance.

    Mitigating Factors

23. The applicant has resided in Australia for approximately 30 years and committed his drug offending in his youth. He was married in April 2021 and is the father of a baby boy born in December 2022.

24. It is accepted that the applicant has expressed remorse for his offending. In his statutory declaration dated 19 April 2021, the applicant explained, 'I have huge regrets over my actions and paid a big price by spending close to eight years of my life behind bars...Every time I tell my story, not a time goes by that I wish I had made a better decision. My involvement was a major error in judgment.’

25. Since his release from prison in 2010, the applicant explained openly at hearing that it was difficult to reintegrate into society. He explained how he was released straight from maximum security prison into the community and suffered from anxiety. The applicant said he made many mistakes. One of which was turning to substance abuse. He explained that he underwent treatment, including seeing a psychiatrist, taking medication, and undergoing rehabilitation. The applicant said that his issues resolved 7 or 8 years ago, and he now uses the experience to help others.

26. There is some very early evidence about the applicant’s psychiatric conditions and issues having arisen or diagnosed while incarcerated. In a report dated 24 September 2002, Dr Andrew White, Psychiatric Registrar at Long Bay Hospital, wrote that the applicant was found, shortly after being incarcerated, with self-inflicted cuts to his neck and forearm. After treatment and having returned to the main prison, he spent time in the acute psychiatric ward. He was diagnosed with major depression with psychotic features and was treated with medication. It was noted that the applicant had no history prior to imprisonment of mental illness and had no history of drug or alcohol abuse. Dr White concluded in summary that the applicant had good insight into his illness and was aware of the need to continue psychiatric care.

27. A further psychiatrist report dated 27 November 2003, was prepared by Dr Olav Nielssen who undertook a mental health examination of the applicant. He diagnosed the applicant with major depression with psychotic features, in remission. In summary, Dr Nielssen opined:

    [The applicant] has good potential for rehabilitation to a productive and law abiding way of life. He has good family and community support, a history of stable relationships, good education, and occupational attainment and also adaptive recreational pursuits…No other risk factors for further offending were elicited…

    [The applicant] does carry a risk of further episodes of depression and required long term psychiatric care. Although his treatment in custody has been adequate, he would be more likely to make a full recovery and receive the appropriate level of psychiatric care after his release to the community.

28. A further report was prepared by Dr Nielssen dated 7 December 2004. Dr Nielssen opined:

    [The applicant] has a relapsing mental illness with features of schizophrenia-like psychosis and depression. In the period after his reception to gaol [the applicant] made a serious suicide attempt and spent several months in the prison hospital receiving treatment for an episode of severe depression with psychotic features. He experienced a recurrence of symptoms during a period of stress arising from his continued legal proceedings, that have responded to further treatment with large doses of anti-psychotic and anti-depressant medication...

    I have no reason to alter the opinion expressed in the earlier report regarding [the applicant’s] potential for rehabilitation. He continues to enjoy family and community support, has a history of stable relationships, good educational and occupational attainment and also adaptive recreational pursuits…

    The recent relapse confirms the risk of further episodes of mental illness and also that [the applicant] requires long term psychiatric care. Review of the medical records supports [the applicant’s] assertion that his level of care during his recent episode was sub-optimal. He would be more likely to make a full recovery and receive the appropriate level of psychiatric care after his release to the community.

29. Carlos Camacho, the applicant’s psychologist, has provided a reference letter for the applicant dated 3 November 2022. He states:

    … I have been a psychologist for the past 26 years

    I specialise in depression, anxiety, and mood disorders.

    [The applicant’s] family reached out to me when [the applicant] was released from jail back in 2011 to help him re integrate into society and I have working and seeing [the applicant] ever since.

    [The applicant] has had many up and downs during the years however he has always reach out to the right people for help. The main reason I have been successful in helping [the applicant] I believe has to be because his honesty and the way he responded to my advice.

    I am very proud to see the man he is today with a great career in sales, married and with a baby on the way. In my experience the more responsibilities an individual has the less likely they are to step into the wrong direction.

    My professional opinion is that [the applicant] is a very low risk if any to re-offend or commit any other serious driving offences. In fact, with his life experiences and now TAFE qualifications I believe that given the chance he could in fact help a lot people. [Emphasis added]

30. The applicant stated that he was fortunate to have the support and help from family and friends. He said he still regularly sees a psychologist, Carlos Camacho, and attends his psychiatrist every 6 months. He said he continues to take medication for the mental health conditions diagnosed while incarcerated.

31. Most recently, the applicant described how he attended on Carlos Camacho with his wife to help them when they had their son and experienced relationship difficulties. It is encouraging to see that the applicant identified that he needed additional help and support from mental health professionals and actively sought treatment.

32. Since his release from prison, the applicant has made efforts to contribute to the Australian community by being continuously employed, most recently as the National Sales Manager for Dalcon Hygiene since March 2020. The applicant has also significantly contributed to the Australian community through his work with the homeless at STREETHEART and through his own organisation, Get Help Australia. 

33. In a letter dated 23 August 2023, Rick Johnson OAM, director of STREETHEART, explained that STREETHEART is a charity that assists ‘Homeless, Victims of Natural Disaster, Remote Indigenous Communities and Victims of Domestic Violence. We do this at front line level with the assistance and support of local communities’. He further stated that the applicant had been involved with STREETHEART since its starting days of 2018 and ‘has been assisting with donations, volunteering with us while we distribute food, drinks and clothes to the Homeless around Sydney and bringing new volunteers on board to lighten the load’.

34. The applicant has completed, CHC43215 Certificate IV in Alcohol and Other Drugs (recorded on his TAFE NSW academic transcript) as part of the CHC Community Services Training Package, which includes, among other things, units such as assess needs of clients with alcohol and other drug issues, provide interventions for people with alcohol and other drug issues and develop and review individual alcohol and other drugs treatment plans. In December 2018, the applicant received a Statement of Excellence for Outstanding Commitment to the Course. This work and study indicate that the applicant has developed an insight into issues related to drugs and alcohol and is actively seeking to help others in the community with similar issues.

35. At hearing, the applicant stated that he has worked, pro bono, with Get Help Australia for 6 years, 4 of which as a certified drug and alcohol counsellor/case worker. He explained that his work involved one on one sessions in which he listens to people’s stories, identifies issues and comes up with treatment plans including ongoing sessions. Over the years he estimates that he has helped between 50-60 people. The applicant further stated that he has started working with correctional services and parole officers to help people reintegrate into society. Instead of payment for his services and support, the applicant said that they repay him with their time by working with the homeless at STREETHEART.

1. A testimonial from Get Help Australia dated 17 August 2023, written by Hung, who was incarcerated for 6.5 years, describes how working with the applicant had been ‘life-transforming’. He said the applicant’s ‘empathetic guidance and powerful techniques led him ‘from the grips of anxiety and from the struggles of reintegration to a place of serenity...’ he states that the applicant’s ‘unwavering support has led me to volunteer to feed people experiencing homelessness for the first time’.

2. The applicant has extensive ties to the community, with friends and colleagues providing character references. I place limited weight on the character references as they do not acknowledge the applicant’s criminal offending.  In summary, they are relevantly as follows:

3. Mario Bernatovic, director of Sharp IT, provides in an undated letter that the applicant was employed by the company as a telemarketer/sales representative for a period of 24 months. Mr Barnatovic speaks highly of the applicant’s work ethic and highly recommends him as an employee.  

4. Babac Ahmadi, Director of Dalcon Hygiene, has provided a reference letter for the applicant dated 1 March 2021, confirming that the applicant has worked with the company since March 2020. He speaks very highly of the applicant, stating that he has exhibited fantastic leadership skills, nurtures younger members of the team, is constantly impressed with his work ethic and described the applicant to be an integral part of the business.

5. Overall, I am convinced that the applicant has taken significant steps to rehabilitate himself since his release from prison in 2010. While the applicant has suffered some setbacks and has struggled to initially reintegrate into society, the applicant has persisted. Not only has he addressed a substance abuse issue and made a life for himself through stable employment and starting a family, but he has also given back to people in need. He has volunteered to help the homeless and has worked in his own charity. He has undertaken, successfully, tertiary study at TAFE in drug and alcohol counselling, with the applicant’s goal being to work as a full-time counsellor in drug and alcohol and help people, using his own experiences and an example.

6. As I have already stated in these reasons, the applicant criminal offending is incredibly serious. He also has some fairly recent driving offences from 2019. However, the circumstances of this case are such that the mitigating factors outweigh his past offending. I am convinced that enough time has passed since his drug offending and the most recent driving offences to be positively satisfied that the applicant is of good character.  

   Decision

7. The decision under review is set aside and remitted with a direction that the applicant is of good character, satisfying paragraph 21(2)(h) of the Act.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 10 November 2023

Date(s) of hearing:	24 October 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Ms E Letcher-Boldt, Clayton Utz