Mohammad Baqir Neama and Minister for Immigration and Border Protection
[2015] AATA 305
•7 May 2015
[2015] AATA 305
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5239
Re
Mohammad Baqir Neama
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 7 May 2015 Place Perth The Tribunal affirms the decision under review.
…(Sgd) CR Walsh……..................
Senior Member CR Walsh
CATCHWORDS
CITIZENSHIP – eligibility for citizenship by conferral – “good character” requirement – applicant convicted in December 2010 of 51 counts of “Gaining Benefit by Fraud” and 18 counts of “forgery”, being “serious” offences under the Australian Citizenship Instructions – offences committed over a 12 month period - insufficient period has passed since applicant free of his obligation to court - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 - s 21(2)(h) – s 24(1)
Migration Act 1958 – s 189
CASES
Assifiri v Minister for Immigration and Border Protection [2014] AATA 35
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions – Chapter 10 – 10.1.1 – 10.1.2 – 10.3 - 10.3.1 - 10.3.4 - 10.5.2 – 10.5.4 – 10.6.5
REASONS FOR DECISION
Senior Member CR Walsh
7 May 2015
INTRODUCTION
Mr Neama seeks a review of a decision of the Minister for Immigration and Border Protection (Minister), dated 9 September 2014, refusing his application for conferral of Australian citizenship because he did not meet the “good character” requirement in s 21(2)(h) of the Australian Citizenship Act 2007 (Citizenship Act) as a result of being convicted, on 6 December 2010, of 51 counts of “Gaining Benefit by Fraud” and 18 counts of “Forgery”.
FACTUAL & PROCEDURAL BACKGROUND
Mr Neama is a 33 year old citizen of Iraq who first arrived in Australia as the holder of a spouse visa on 7 April 2007.
Mr Neama first applied for Australian citizenship on 14 July 2009, and was refused on 21 September 2009, as he did not meet the “general residence requirement” in s 22 of the Citizenship Act.
In the 12 month period from 2 March 2009 to 2 March 2010, Mr Neama committed 69 fraud and forgery related offences involving the sale of mobile phones obtained from Telstra and Optus.
Mr Neama was arrested on 2 March 2010 and remanded in custody from 2 March 2010 to 26 July 2010 (i.e. a total of 117 days). On 26 July 2010, Mr Neama was granted bail in the Perth Magistrates Court.
On 6 December 2010, Mr Neama was convicted in the Perth Magistrates Court of 51 counts of “Gaining Benefit by Fraud” and of 18 counts of “Forgery” for his offences.
Mr Neama lodged his second application for Australian Citizenship on 9 January 2013, which was refused on 28 February 2014 on the basis that he did not satisfy the “good character” requirement in s 21(2)(h) of the Citizenship Act as a result of his convictions.
Mr Neama lodged his third application for Australian Citizenship on 16 July 2014 (Citizenship Application) which was refused on 9 September 2014, again on the basis that he did not satisfy the “good character” requirement in s 21(2)(h) of the Citizenship Act (Citizenship Decision).
In support of the Citizenship Application, Mr Neama provided, among other things, a “Personal Statement”, dated 8 July 2014 (First Personal Statement), a “Personal Statement No.2”, dated 8 September 2014 (Second Personal Statement), 11 character references in the form of “Statutory Declarations” from members of his community (i.e. the Iraqi/Islamic community), a letter from his current employer “Creative Kids Family Daycare”, dated 12 June 2014, and an undated Certified Working With Children Check card.
On 2 October 2014, Mr Neama applied to the Tribunal for a review of the Citizenship Decision. Mr Neama’s stated “Reasons for Application” are as follows:
DIBP erred in refusing the Applicant’s citizenship application.
DIBP failed to consider all documents submitted with the citizenship application. Particularly DIBP failed to consider statutory declarations of good character, police clearance to work with children and the personal statement dated 9 July 2014 submitted.
DIBP refused the application based on its previous decision and failed to consider the time that has passed since the offences were committed.
DIBP failed to consider the existence of mitigating factors which the court took into account and which led to a suspended sentence of two years instead of imprisonment of 15 months.
DIBP wrongly formed the view that the offence the Applicant had committed was against the Commonwealth government when in fact the offence was against Telstra and Optus.
DIBP simply repeated its earlier decisions to refuse the current application without giving due considering (sic.) to the factors stated in the letter dated 9 Jul (sic.) 2014.
ANALYSIS
Section 24(1) of the Citizenship Act provides that if a person applies to the Minister to become an Australian citizen (under s 21(1) of the Citizenship Act), the Minister must, in writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Citizenship Act states that the Minister must not approve a person becoming an Australian citizen (under s 24(1) of the Citizenship Act) unless the person is eligible to become an Australian citizen under s 21(2) to (8) of the Citizenship Act.
Section 21(2)(h) of the Citizenship Act states:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
….
(h) is of good character at the time of the Minister’s decision on the application.[Emphasis added]
Meaning of “good character”
The expression “good character” is not defined in the Citizenship Act and as such takes its ordinary meaning. In the Full Federal Court’s decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J noted (at 94):
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR per Miles CJ at FLR 459-60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. [Emphasis added]
The existence of criminal convictions is clearly relevant in determining “good character”. Davies J in Irving (supra) stated (at 87-88):
[C]riminal 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 on 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. [Emphasis added]
In Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 Deputy President Wright stated (at [14]):
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender. [Emphasis added]
In Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326, the Tribunal stated (at [7]):
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness. [Emphasis added]
Australian Citizenship Instructions – “good character”
Chapter 10 of the Australian Citizenship Instructions (ACIs) provide guidance on what constitutes “good character” for the purposes of the Citizenship Act.[1]
[1] The Tribunal must adopt lawful ministerial policy unless there are cogent reasons not to, for example its application tends to produce an unjust decision in the particular circumstances of the case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
Paragraph 10.1.1 of the ACIs, titled “Background”, states:
…The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character.’
This chapter also provides a framework for assessing an applicant under the “good character” provisions. It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not of good character. [Emphasis added]
Paragraph 10.1.2 of the ACIs, titled “Summary”, states:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship. [Emphasis added]
Paragraph 10.3 of the ACIs outlines what is “good character.” In particular, paragraph 10.3.1 of the ACIs, titled “Definition,” states:
In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
· characteristics which have been demonstrated over a very long period of time
· distinguishing right from wrong
· behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evidence before their visa application and throughout their migration and citizenship processes. [Emphasis added]
Characteristics demonstrating “good character”
Paragraph 10.3.4 of the ACIs provides a non-exhaustive list, drawing from the definition discussed above, of characteristics demonstrating that an applicant is of “good character,” including:
· respect and abide by the law in Australia and other countries
· be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
· be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example……
……..
· not be associated with others who are involved in antisocial or criminal behaviour, or others who do not obey the laws of Australia
In a document titled “Offender’s Submissions on Sentence”, which document was filed on behalf of Mr Neama with the Perth Magistrate’s Court on 3 December 2010 (Mr Neama’s Submissions on Sentence), Mr Neama’s offences are described as follows:
C. The Offences
3.The 52 counts of gained a benefit by fraud all relate to various occasions on which Mr Neama entered into contracts for the provision of mobile telephone services with the inclusion of a mobile telephone between the 2nd March 2009 and the 2nd March 2010.
He was introduced to a friend who allegedly made false identification cards. He commenced ordering mobile telephones from service providers over the telephone and via the internet using his false identification document. He would then receive the mobile telephones at the local post office and then re-sell them to a third party. He would then give the money to his friend and he was paid $200.00 to $250.00 for the mobile telephones as part of the arrangement. (See page 3 of the Offender’s Book, per Dr Blumberg).
4.When collecting the parcels containing mobile telephones at the Australian Post Office or the Australian Air Express depot, Mr Neama produced false identification documents for the purpose of establishing a false identity, giving rise to the 18 counts of forgery (preparation).
5.The total value of the mobile phones gained as a result of the commission of these offences is approximately $115,536.48.
In the Second Personal Statement, Mr Neama describes the circumstances of his convictions as follows:
Circumstances of convictions
All charges relate to mobile phones that I fraudulently obtained from Telstra and Optus. I committed the offences from December 2009 to March 2010. I pleaded guilty and was given a suspended sentence for 2 years from 5 December 2010. The suspended sentence ended on 5 December 2012. It has been 4 ½ years since I was foolish enough to commit these offences. I was trying to provide for my family at the time and was desperate; my wife was sick and I had 3 young children aged 2, 5 & 6 to look after. I couldn’t find a job. I was also involved in a road accident. The desperate situation my family and I encountered led me to these temporary lapses of judgement. I know that this is not an excuse, and I really regret my actions. There was also no benefit from my actions, as the money I earned by reselling the mobile phones, totalling $54,000, was returned to the police.
Clearly, in committing the offences (described above) Mr Neama has failed to demonstrate the characteristics of “good character” identified in paragraph 10.3.4 of the ACIs: refer to paragraph 22 above.
Serious and minor offences
The list contained in paragraph 10.3.4 of the ACIs (set out in paragraph 22 above) is to be considered in conjunction with paragraph 10.5 of the ACIs, titled “Framework for making ‘good character’ decisions”.
Paragraph 10.5.2 of the ACIs states that one issue for consideration in deciding whether an applicant is of “good character” is whether the applicant has committed an offence and, if so, whether the offence is “serious” or “minor.”
Paragraph 10.5.2 of the ACIs provides that “serious offences” include, but are not limited to:
· crimes of violence (e.g. murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
· war crimes, crimes against humanity and/or genocide
· crimes against children
· drug trafficking (including importation and supply)
· people smuggling
· fraud (including identity fraud)
· harassment or stalking
· terrorist activity
· extortion
· illegal pornography, including child pornography
· breaches of immigration law, including those that resulted in removal or deportation from Australia or another country
· other offences incurring prison sentences of 12 months or more. [Emphasis added]
Paragraph 10.5.2 of the ACIs also states that the decision-maker is required to:
· Consider the length of the sentence if one has been imposed. Any sentence is relevant to a consideration of good character but weight should be given to a serious prison sentence, which is defined in the Act as being a period of at least 12 months.
· [Consider] Are there any obligations in relation to the sentence received, such as a good behaviour bond following a conviction?.....
· Look at decisions made by courts about the applicant, particularly sentencing remarks, as they give an insight into the character of the applicant….. [Emphasis added]
Mr Neama’s offences, being 51 counts of “Gaining Benefit by Fraud” and 18 counts of “Forgery” (which attracted a sentence of 15 months’ imprisonment, with the sentence being suspended for two years) are clearly “serious offences” for the purposes of paragraph 10.5.2 of the ACIs: refer to paragraph 28 above.
One-off offence or pattern of (criminal) behaviour
The ACIs refer to a list of factors to which consideration should be given by decision-makers. Relevantly, paragraph 10.5.2 of the ACIs requires a decision-maker to consider the quantum of offences which have been committed by the applicant and whether an offence was “one-off”, or whether it forms part of a pattern of criminal behaviour, noting that:
A pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them.
Mr Neama’s Submissions on Sentence, the First Personal Statement and Mr Neama’s Statement of Facts, Issues and Contentions, received 5 February 2015 (Mr Neama’s SFIC), state that Mr Neama’s 69 fraud/forgery related offences were committed over a sustained 12 month period from 2 March 2009 to 2 March 2010.
In the First Personal Statement and the Second Personal Statement, Mr Neama describes his offences as a “temporary lapse in judgement”. Mr Neama’s offences clearly represent more than a one-off offence (or a “temporary lapse in judgement”) but, instead demonstrate a “pattern of behaviour” for the purposes of paragraph 10.5.2 of the ACIs.
In his oral evidence at the hearing, Mr Neama conceded that his conduct was more than temporary and was more akin to a “pattern of behaviour”.
Mitigating factors
Paragraph 10.5.2 of the ACIs lists the following mitigating factors to be taken into account in deciding whether a person is of “good character” for the purposes of the Citizenship Act:
·The length of time between the date of the offence and application for Australian citizenship or between the conviction and the application for Australian citizenship;
·Whether the applicant has accepted responsibility and shown remorse for their conduct;
·Whether the applicant has rehabilitated themselves – whether the applicant has made a conscious effort to obey and uphold Australian laws. For example, by undertaking a program which addresses risk factors relating to their offending, by moving away from bad influences: by disassociating themselves from a peer group;
·The applicant’s age at the time the offence was committed – if the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character;
·Whether there any extenuating circumstances relating to the offences – for example, an offence committed under duress may be given less weight; and
·Whether there is evidence of length of employment, stable family life and/or community involvement, these may be indicators of good character – applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship.
Each of the above mitigating factors is considered in turn below in relation to Mr Neama.
Length of time between the date of the offence and citizenship application or between the conviction and citizenship application
As stated above (in paragraph 32), Mr Neama’s Submissions on Sentence, the First Personal Statement and Mr Neama’s SFIC state that the relevant offences were committed by Mr Neama in the 12 month period from 2 March 2009 to 2 March 2010.
Mr Neama’s oral evidence before the Tribunal initially was that he was not sure whether the relevant offences were committed by him over a 12 month period and he recalls them being committed over a shorter, 3 to 4 month, period. However, in re-examination Mr Neama agreed that the relevant offences were, in fact, committed by him during the 12 month period from 2 March 2009 to 2 March 2010.
Mr Neama was convicted of all of the relevant offences on 6 December 2010.
Mr Neama most recently applied for Australian citizenship on 16 July 2014.
As such, the length of time between Mr Neama’s commission of the offences and the Citizenship Application is approximately 4 years and 4 months and the length of time between Mr Neama’s conviction for the offences and the Citizenship Application is approximately 3 years and 7 months.
Mr Neama’s suspended 2 year sentence ended on 5 December 2012 and, consequently, he has now been free of his obligation to the court for approximately 2 years and 5 months.
Acceptance of responsibility and show of remorse for conduct
Mr Neama’s Submissions on Sentence state (at [8]):
Mr Neama demonstrates insight into his offending and genuine remorse. He is extremely remorseful for his inappropriate behaviour. He stated, “I was stupid and did not think things through” and he acknowledges he “did wrong” and plans to work hard, earn money and be able to pay back the money he was not entitled to. He was (sic.) feels a lot of shame and guilt as a result of his behaviour. He stated he had spent time in prison to reflect on what he had done. (see page 7 of the Offender’s Book, per Dr Blumberg).
In the First Personal Statement and the Second Personal Statement, and in his oral evidence before the Tribunal Mr Neama demonstrated limited expressions of remorse for his conduct.
In the First Personal Statement, Mr Neama states:
I am truly remorseful for what I have done, and it was unfortunate that the case officer implied that I was not, simply because I did not refer to the fraud aspect of the offence. Regardless of referring to my remorse in my application, the case officer also failed to note that my remorse was evident when I pleaded guilty during the sentencing, which prompted the Judge to use his discretion in imposing a suspended sentence instead of sending me to jail.
…………….
…..when I moved to Australia my degree was not recognised and I was unable to secure a job as a [computer] programmer. As time passed, I lowered my expectations and looked for jobs that I was overqualified for, such as assisting or being a technician, to no avail. My wife was then diagnosed with back problems and depression, which meant that she required a lot of my support and assistance. I was then in a motor vehicle accident, resulting in a ruptured disc and consequently, a lowered working ability. These circumstances, combined with being in unfamiliar surroundings, distressed me greatly, and the desperation I experienced drove me to commit the abovementioned offence. I now regret my temporary lapse in judgement.
In the Second Personal Statement, Mr Neama states:
…..I was trying to provide for my family at the time and I was desperate; my wife was sick and I had 3 young children aged 2, 5 & 6 to look after. I couldn’t find a job. I was also involved in a road accident. The desperate situations my family and I encountered let me to these temporary lapses in judgement. I know that this is not as excuse, and I really regret my actions…
……..
This was my first mistake – a mistake that I have never before done and will never repeat. I am extremely remorseful of my prior actions, but I believe that I have been rehabilitated since then…
One of Mr Neama’s witnesses at the hearing, Mr Talal Shigahi, said that he approached Mr Neama and asked him about his offences and that Mr Neama told him that he “regretted what he did”.
As submitted by the Minister, Mr Neama’s expressions of remorse largely seek to attribute his offending to the “desperate” situation he found himself in at the time of the offences which is at odds with the following remarks of the sentencing judge, Chief Magistrate Heath:
There was, as is clear, no lavish lifestyle as a result of these offences. However, the fact that there were over $50,000 to be seized by police would indicate that the matter had got past a situation where there was an immediate need for survival and perhaps it was an indication of Mr Neama seeking to be in a position to purchase a home, which was the ultimate ambition.
Rehabilitation
The evidence shows that Mr Neama has taken some steps to rehabilitate himself.
Mr Neama’s Submissions on Sentence state:
9.Mr Neama has actively pursued professional help to ensure that he does not re-offend in any respect. He stated that he acknowledges he “did wrong” and plans to work hard, earn money and be able to pay back the money he was not entitled to (see page 7 of the Offender’s Book, per Dr Blumberg).
The report of Dr Lawrence Blumberg sets out his progress and rehabilitation in more detail.
………….
16.Mr Neama was remanded in custody from the 2nd March 2010 to the 26th July 2010 [i.e. a total of 117 days] in relation to these charges.
17.Mr Neama is well into the rehabilitation process. He has done this with full commitment.
18.A sentence of Suspended Imprisonment coupled with an Intensive Supervision Order (ISO) will satisfy the need for personal deterrence. It is an extremely scary reality for a young man of 29 years to know that a suspended term of imprisonment will almost certainly be triggered if he was to break the law in any respect. The ISO will ensure that Mr Neama continues with his rehabilitation.
In the First Personal Statement, Mr Neama states:
……, since March 2014 I have been volunteering as an Education Assistant with Creative Kids Family Day Care and they have now offered me a full time job as an Educator and I am really excited about it. Finally, I can look after my family and thank god for the opportunity the company has given me. They are aware of the offences I have committed mentioned in this letter and I am truly grateful for the opportunity they have given me for everyone deserve (sic.) a second chance. A copy of the letter from Creative Kids Family Day Care dated 12 June 2014 is attached.
Rehabilitated
Not a day has gone by without me praying for a chance for my family and me to be a part of the community that we are so proud of. I have learnt my lesson and would like nothing better than to contribute to the society I live in, with their forgiveness. I understand that our community is an ageing one, with the nation needing more working people to help the nation helping their continuing assistance people in need. I want to be able to contribute to the nation by paying taxes, and allowing others in dire situations to be assisted by these taxes.
In the Second Personal Statement, Mr Neama states:
I sincerely request that my application be allowed. I have been rehabilitated and I have no previous conviction or any tainted record prior to these offences….
In his oral evidence at the hearing, Mr Neama said that he knew that his conduct was “wrong” and that he no longer associated with the person that was involved in the relevant conduct with him. Mr Neama said that he had not seen that person since his arrest in March 2010. Mr Neama also said that after being convicted, he attended 2 counselling sessions but that those counselling sessions focussed primarily on financial, rather than psychological, matters.
Age at the time offence committed
Mr Neama is presently 33 years old. As stated above, the offences concerned were committed by Mr Neama in the 12 month period from 2 March 2009 to 2 March 2010 when he was approximately 27 or 28 years old.
As such, Mr Neama was a relatively young man at the time he committed the offences concerned and he has not since reoffended, indicating that he has matured and now has greater respect for upholding the law. This weighs in Mr Neama’s favour.
Extenuating circumstances – offence committed under duress
There is no evidence that Mr Neama committed the relevant offences under any kind of duress. All of the evidence points to the fact that the offences were committed by Mr Neama out of “desperation” as a result of the difficult circumstances he found himself in at the relevant time.
In his sentencing remarks the sentencing judge, Chief Magistrate Heath, stated:
In relation to Mr Neama, his personal circumstances certainly carry some weight. He experienced a fairly traumatic life in his country of origin before coming to Australia, there noted in the pre-sentence report. He then faced what I can perhaps describe as cultural expectations that he imposed on himself in terms of support of his family. When he suffered an injury which restricted his earning capacity he demonstrated what the reports have referred to, his poor stress management and problem solving skills. He was then easily influenced by someone to engage in what was a long series of offences.
…………….
However, the fact that there were over $50,000 to be seized by police would indicate that the matter had got past a situation where there was an immediate need for survival and perhaps it was an indication of Mr Neama seeking to be in a position to purchase a home, which was his ultimate ambition.
Employment, stable life and/or community involvement
A letter from Faiza Guled, Director of Creative Kids Family Day Care (Creative Kids), dated 12 June 2014, states:
This is to certify that Mr Mohammad Baquir Geyser Neama is working in our organisation, as a Carer From 26/05/2014, he is a full time employee, and prior to that from 03/03/2014 he was working as a Volunteer educator assistant.
At the hearing, Mr Neama described his work for Creative Kids. He explained that he and his wife provide before and after school care for 6 children Monday to Friday. Mr Neama said that each morning he collected the children from their homes (at about 7am), then took the children back to his home where he and his wife cared for the children until they were ready to be taken to school (at about 9am). Mr Neama also said that each afternoon he collected the children from school (at about 3pm), then took the children back to his home where he and his wife cared for the children until they were ready to be returned to their homes, somewhere between 6 and 8pm (i.e. once the children’s parents had returned home from work).
Mr Neama explained that he has a “Working With Children Check” card (with an expiry dated of 26 May 2017) and is currently completing a “Certificate 3” in child care. Mr Neama explained that he had discussed his convictions with Creative Kids before commencing volunteer work with the company in March 2014 and before he was offered a full time position with them the company in May 2014. Mr Neama explained to the Tribunal that in the future he hoped to own his own child care centre and that he “liked working with children”.
Mr Neama also provided a number of character references in the form of Statutory Declarations, addressing his community involvement. These are considered in further detail below.
Character references
Paragraph 10.6.5 of the ACIs, titled “References”, states:
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed that applicant at work and in other contexts, and who are willing to provide contact details. References should also explain how long they have known the applicant for, and the context of their relationship….
It is preferable that references are not submitted from family members. [Emphasis added]
As stated above, Mr Neama provided 11 character references, in the form of Statutory Declarations, in support of the Citizenship Application. Mr Neama also provided a letter from Faiza Guled, Director of Creative Kids, dated 12 June 2014, in support of the Citizenship Application.
Mr Neama filed a Statutory Declaration, dated 17 February 2015, in support of this application (Mr Neama’s Statutory Declaration). Mr Neama’s Statutory Declaration details, among other things:
· His voluntary work at the Jafary Islamic School where he taught groups of children to read and write in Arabic and Persian every Sunday for 3 hours in the 6 month period from January 2011 to June 2011;
· His free computing classes for children in his community on Saturdays and Sundays in the 6 month period from January 2014 to June 2014;
· The assistance he has provided to around 10 to 15 migrant families to settle in to life in Perth, Western Australia and his community; and
· His voluntary work for the Ishtar United Soccer club.
Mr Neama also filed 6 additional character references, in the form of Statutory Declarations, primarily from members of the community in which he is involved (i.e. the Iraqi/Islamic community) in support of this application.
At the hearing, the Tribunal heard evidence from Mr Neama and the following 6 character witnesses:
(i)Mr Riyadi Alhakimi – Mr Alhakimi (Co-Founder of the Islamic Council of WA, with a PhD in human rights) stated that he has known Mr Neama for more than 5 years through the volunteer work that Mr Neama does in the Iraqi/Islamic community, including assisting to organise and run religious and other community events (such as soccer team events) and fundraising. Mr Alhakimi said that he trusts Mr Neama with his own family and children and explained that Mr Neama cared for many of the children in the Iraqi/Islamic community in providing before and after school care as an employee of Creative Kids. Mr Alhakimi stated that he was aware that Mr Neama had committed “a lot” of offences involving fraud and forgery but that he was unaware of the exact number of offences committed (i.e. 69) and the fact that Mr Neama had committed them over a 12 month period. Mr Alhakimi said that he had seen a change in Mr Neama’s behaviour, namely that during the time the offences were committed Mr Neama was not available to help in the community but is now always available and willing to help;
(ii)Mr Ahmad Alzayadi – Mr Alzayadi (a pharmacist) stated that he has known Mr Neama for more than 7 years through family and through the Iraqi/Islamic community. Mr Alzayadi described Mr Neama as being an active, hard-working and respected member of the community and that it was rewarding seeing the work that Mr Neama does with the children in the community. Mr Alzayadi stated that he was aware that Mr Neama had committed offences involving fraud and forgery but that he was unaware of the exact number of offences committed (i.e. 69) and the fact that Mr Neama had committed them over a 12 month period. Mr Alzayadi said that he had seen a change in Mr Neama’s behaviour, namely that at the time of the offences he seemed to be going through a “dark” period but that Mr Neama now seems more appreciative of his family and community;
(iii)Mr Hussain Al Majedy – Mr Al Majedy (a self-employed painter) stated that he has known Mr Neama since he arrived in Australia in 2007 and that Mr Neama regularly attends the same mosque as him in Mirrabooka. Mr Al Majedy also stated that he admired Mr Neama for the way he has assisted the children in the community to learn to use computers (many of them previously being computer illiterate) and that he has witnessed his improvement. Mr Al Majedy said that he was aware that Mr Neama had committed about 50 - 60 fraud related offences over about 3 – 8 months but that, in his opinion, Mr Neama regretted what he had done and that he did it to support his family’s needs at that time;
(iv)Mr Talal Shigahi – Mr Shigahi stated that he arrived in Australia as an asylum seeker in 2009 and his family arrived in Australia in 2011. Mr Shigahi stated that he knew Mr Neama through the Iraqi/Islamic community (including the mosque in Mirrabooka) and that Mr Neama had helped him and his family to settle in to life in Perth, Western Australia. Mr Shigahi said that his English was not good when he first arrived in Australia and Mr Neama helped him by taking him to many different places (like Centrelink, Medicare, the bank, schools, hospitals and so on) and translated for him. Mr Shigahi stated that he was aware of Mr Neama’s offences through other members of the community and that when he confronted Mr Neama about the offences Mr Neama had expressed regret for what he had done;
(v)Ms Narjes – (a representative of Mr Neama’s employer, Creative Kids) gave evidence concerning Mr Neama’s role with the company which corroborated Mr Neama’s evidence on this issue. Ms Narjes said that she is happy with Mr Neama’s work in the company, educating and minding children, and that he was very helpful in the community. Ms Narjes stated that she was aware of Mr Neama’s convictions but that Mr Neama had been employed by another person in the company before she, herself, had joined the company; and
(vi)Mr Hussain Hussaini – Mr Hussaini (a marriage celebrant) stated that he knows Mr Neama through his voluntary work at the Jafary Islamic College and community events and that there is no doubt in his mind that Mr Neama is remorseful for his fraudulent conduct, that he’s a good, law abiding and generous person, a loving father and husband and is “readily available to help others in need”.
Based on the evidence of Mr Neama’s character witnesses (as summarised above), it would appear that Mr Neama presently has a far more extensive community based support network than he had at the time he committed the relevant offences, indicating that if he were presently faced with “desperate” circumstances (similar to those which he faced at the time he committed the relevant offences) he would not necessarily reoffend or resort to criminal behaviour but, rather, would seek support and assistance from members of his community.
Weighing up the decision
Paragraph 10.5.4 of the ACIs, titled “Weighing up the decision,” states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment of whether an applicant is of “good character” requires the consideration of an aggregate of qualities.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
· would a person of good character have behaved the way the applicant did
· what is there to demonstrate that the applicant has upheld and obeyed the law
· has the applicant behaved in accordance with Australia’s community standards
· does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
………..
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time to be considered ‘lasting’ or ‘enduring’ will depend on the merits of each case, but in most cases will go back prior to any visa application.
If a person has committed a serious offence (such as taking the life of another person, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the lasting/enduring period would be much longer, potentially over a period of many years. It may be extremely difficult for a decision make be satisfied that a person is of good character, even after the passage of many years. [Emphasis added]
As SM Toohey said in Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [64]:
There is no formula for determining how much is sufficient time in order to be satisfied that a person is of good character. The ACIs refer to the phrase “enduring moral qualities” as encompassing the concept of “characteristics which have been demonstrated over a long period of time”: 10.3.1. At 10.5.2 they state that, in the case of a serious offence, “a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character”. A decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case…
Mr Neama has been free of his obligation to the Court for approximately two years and five months. Given the “serious” nature of Mr Neama’s offences (fraud/forgery), the number of offences (i.e. 69), the fact that they occurred over a sustained (12 month) period and involved a significant amount of money, the Tribunal considers that an insufficient amount of time has passed since Mr Neama has been free of his obligation to the Court for it to be satisfied that Mr Neama is now of “good character” for the purposes of s 21(2)(h) of the Citizenship Act.
That is, in Mr Neama’s particular circumstances, the Tribunal is of the view that an insufficient amount of time has passed since Mr Neama has been free of his obligation to the Court for Mr Neama to objectively demonstrate that his convictions have had a salutary effect on him and were aberrations (rather than representing an on-going pattern of criminal behaviour) and to objectively demonstrate “enduring moral qualities” representative of “good character” over a sufficient period: Irving, Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [64], [67] and [71] and Chapter 10 of the ACIs.
In reaching this conclusion, the Tribunal acknowledges with approval the following comments of the Tribunal in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]:
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]
That is, the refusal to grant Mr Neama citizenship at this time does not preclude Mr Neama from applying for and being granted citizenship in the future, once a more satisfactory period has passed since he has been free of his obligation to the Court: Irving, Fenn and Chapter 10 of the ACIs.
DECISION
For the above reasons, the Tribunal affirms the Citizenship Decision.
I certify that the preceding 74 (seventy four) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
...(Sgd) A Tran .............................
Associate
Dated 7 May 2015
Date of hearing 24 April 2015 Counsel for the Applicant
Solicitor for the Applicant
Mr D Blades
Mr G Arujunan, AUM Legal
Representative for the Respondent Mr A Gerrard Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Citizenship
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Good Character
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Legitimate Expectation
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Constitutional Validity
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