Mohammad Hasib and Minister for Immigration and Border Protection
[2015] AATA 82
•13 February 2015
[2015] AATA 82
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4048
Re
Mohammad Hasib
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 13 February 2015 Place Perth The Tribunal sets aside the decision under review and substitutes that decision with the decision that the Applicant be granted Australian citizenship pursuant to s 24(1) of the Australian Citizenship Act 2007.
..(Sgd) CR Walsh.................
Senior Member CR Walsh
CATCHWORDS
CITIZENSHIP – eligibility for citizenship by conferral – “good character” requirement – applicant convicted in 2007 of 10 offences relating to credit card fraud, being “serious” offences under the Australian Citizenship Instructions – applicant remained in Australia as an unlawful non-citizen for over a year following cancellation of his student visa – mitigating factors outweigh applicant’s behaviour - decision under review set aside and substituted
LEGISLATION
Australian Citizenship Act 2007 - s 21(2)(h) – s 24(1)
Migration Act 1958 – s 189
CASES
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
13 February 2015
INTRODUCTION
Mr Hasib seeks a review of a decision of a delegate of the Minister for Immigration and Border Protection (Minister), dated 7 July 2014, refusing his application for conferral of Australian citizenship for the reason that Mr Hasib 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 23 August 2007, of 10 offences involving using a false instrument and obtaining money by deception (i.e. credit card fraud).
FACTUAL & PROCEDURAL BACKGROUND
Mr Hasib is a 31 year old citizen of Bangladesh who first arrived in Australia as the holder of a student visa on 4 December 2003.
Mr Hasib’s student visa was cancelled on 10 March 2006 for non-compliance grounds, which decision was subsequently upheld by the Migration Review Tribunal (MRT) on 27 July 2006.
On 23 August 2007, Mr Hasib was convicted in the Burwood Local Court, New South Wales, of the following 10 offences:
· Use false instrument w/i < = $2,000;
· Obtain money etc by deception < = $2,000;
· Obtain money etc by deception < = $2,000;
· Obtain money etc by deception < $2,000 & < = $5,000;
· Use false instrument w/i < = $2,000;
· Use false instrument w/i > $2,000 & < + $5,000;
· Obtain money etc by deception < + $2,000;
· Obtain money etc by deception < + $2,000;
· Use false instrument w/i < = $2,000; and
· Obtain money etc by deception < + $2,000.
Mr Hasib pleaded guilty to all 10 credit card fraud offences and was sentenced to 9 months suspended imprisonment and was granted a 9 month good behaviour bond.
Following being convicted, Mr Hasib was detained at the Villawood Detention Centre under s 189 of the Migration Act 1958 for about 3 months.
On 30 August 2007, Mr Hasib applied to the Minister for a protection visa. This application was originally refused by the Minister but Mr Hasib was ultimately successful following an application for review to the Refugee Review Tribunal. Mr Hasib was granted a permanent protection visa on 14 December 2007.
On 29 April 2014, Mr Hasib applied for Australian citizenship. Mr Hasib declared his criminal convictions in his citizenship application.
On 30 May 2014, the Department wrote to Mr Hasib inviting him to comment on his convictions and provide character references. Mr Hasib provided three brief character references, in the form of Statutory Declarations, and the following personal statement, dated 18 June 2014 (18 June 2014 Statement):
I met some people in 2007 who were involved with credit card fraud. They offered me good money for shopping few electronics for them with their given credit cards. At that time I was unemployed and struggling. I found no option opened to survive except doing that. But after few days I realized, whatever I am doing is a crime and I can’t continue doing this in any circumstance. So, I told them that it’s not possible for me to continue doing this.
They became so angry, tried to convince me. But I didn’t listen to them. They did not give me any money because I stopped doing their job. In few days, police arrested me from my home. I pleaded guilty on the court straight away and was sentenced by 9 months good behaviour bond.
Having that criminal conviction, I am still unable to work in any Government occupations or security services. I did not do or have any engagements with any kind of criminal after that. I never had any kind of criminal records anywhere; this was my first and only criminal record in my life, happened about 6 years ago. I moved to Perth from Sydney in March 2012. Now I am working in a restaurant here.
All those charges on the Police record check are about using fake credit cards and fake identity. I completely understood my mistakes and pleaded guilty, also promised not to involve with these kinds of activities in future. In last 6 years I never involved with any illegal or criminal act. [Emphasis added]
On 7 July 2014, the Minister decided to refuse Mr Hasib’s citizenship application for the reason that Mr Hasib did not meet the “good character” requirement for citizenship in s 21(2)(h) of the Citizenship Act (Citizenship Decision). In the Citizenship Decision, the Minister stated:
In reaching a decision on the applicant’s citizenship application considerable weight has been placed on the policy guidelines in Chapter 10 of the ACIs which state:
‘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’.
Considering the gravity of his previous offences; I do not consider sufficient time has elapsed for him to demonstrate that he is of reformed character. Consequently, at the time of the decision, I cannot be satisfied that the applicant meet the ‘good character’ requirements for Australian citizenship.
On 1 August 2014, Mr Hasib applied to the Tribunal for a review of the Citizenship Decision.
ANAYSIS
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
The Australian Citizenship Instructions (ACIs) provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Citizenship Act. Of particular relevance to this application, is Chapter 10 of the ACIs which considers the meaning of “good character” for the purposes of the Citizenship Act.[1]
[1] The Tribunal must adopt lawful ministerial policy unless there are cogent reasons to the contrary, 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]
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, …
……..
· not be associated with others who are involved in antisocial or criminal behaviour, or others who do not obey the laws of Australia
The Tribunal notes that Mr Hasib’s student visa was cancelled on 10 March 2006 on non-compliance grounds (i.e. because he failed to satisfy the attendance requirements of his particular course), which decision was affirmed by the MRT on 26 July 2006. Following the cancellation of his student visa, Mr Hasib remained in Australia as an unlawful non-citizen for over a year until he was granted a permanent protection visa on 14 December 2007 (although he did apply for a protection visa on 30 August 2007). In other words, during the period from 26 July 2006 to 30 August 2007 (when Mr Hasib applied for a protection visa), Mr Hasib was living in Australia as an unlawful non-citizen and he did nothing to alert the Department of this fact. Such conduct represents a breach of Australian immigration law.
This conduct, coupled with Mr Hasib’s convictions for credit card fraud, raises doubts about Mr Hasib’s character and his ability to respect and abide by Australian law, to be honest and financially responsible, be truthful and not practice deception or fraud with dealings with the Australian Government (or other governments and organisations) and to not be associated with others who are involved in criminal behaviour or who do not obey Australian law: paragraph 10.3.4 of the ACIs. However, all of Mr Hasib’s circumstances must be considered and weighed in deciding whether he is of “good character”: refer to paragraph 54 below and paragraph 10.5.4 of the ACIs.
Serious and minor offences
The list contained in paragraph 10.3.4 of the ACIs (discussed above in paragraph 23) 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]
On 23 August 2007, Mr Hasib was convicted of 10 credit card fraud related offences in the Burwood Local Court. He received a 9 month suspended prison sentence and a nine month good behaviour bond – he was also detained at the Villawood Detention Centre for approximately 3 months following being convicted. It is common ground that Mr Hasib’s credit card fraud offences are “serious offences” under paragraph 10.5.2 of the ACIs.
Mr Hasib’s breach of immigration law, by remaining in Australia as an unlawful non-citizen during the period from about 26 July 2006 to 30 August 2007 is also a “serious offence” under 10.5.2 of the ACIs.
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, and:
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.
As stated, on 23 August 2007, the Burwood Local Court gave Mr Hasib a suspended 9 month sentence and a 9 month good behaviour for his convictions, when it could have fined and/or imprisoned him. The sentence that the court gave Mr Hasib is not a “serious prison sentence” within the meaning of the Citizenship Act or for the purposes of paragraph 10.5.2 of the ACIs. This factor weighs in Mr Hasib’s favour.
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 Hasib’s told the Tribunal that he committed the 10 offences for which he was convicted over a period of 2 to 3 days. Mr Hasib said that in 2007 (when he was living in Sydney) he met and moved in with some people who were involved in credit card fraud and other activities. These people offered to pay him “good money” if he did some work for them. He was provided with 2 or 3 stolen credit cards and was asked to purchase various items of electrical equipment (such as televisions, computers, cameras, play stations and the like) using the stolen credit cards. Mr Hasib said that after a few days of working for these people he realised that they were not good people and moved out of the house which he shared with them. Mr Hasib said that he was never paid for what he did: refer also to the 18 June 2014 Statement in paragraph 9 above.
In a personal statement dated 7 November 2014 (7 November 2014 Statement), Mr Hasib states:
I met some people in 2007 in Sydney. In a few days I understood that they were not good people. They were involved with credit card fraud and so many illegal activities. They stole my passport from my room as they used to come at my home. After that they started giving me threat that if I do not work for them, they will inform immigration about my visa status. I got so scared and had no idea what should I do. I couldn’t even go to police to inform them about all these because I didn’t have visa.
I was feeling so helpless. They asked me to buy a few electronics for them with their given credit cards. I started working with them. But in a few days I realised, whatever I am doing is big crime. I am not that kind of person and can’t continue doing this in any circumstance. So, I told them that it’s not possible for me to continue doing this. They became angry, tried to convince me. But I didn’t listen to them. As I was living with them in the same place, I moved from there to one of my friend’s house in Belmore, NSW. They kept threatening me over the phone that they will call the police and give them information about me. I still ignored. In few days, police arrested me from my home. I told them everything whatever happened and pleaded guilty on the court straight away. I was sentenced by 9 months good behaviour bond.
All 10 credit card offences for which Mr Hasib was convicted, on 23 August 2007, were committed by him in 2007 over a short period of 2 to 3 days. Mr Hasib had never been convicted of any criminal offence in Australia or elsewhere before 23 August 2007 and he has not been convicted of any criminal offences since 23 August 2007. Mr Hasib’s 9 month good behaviour bond ceased in about May 2008, being about 6 years and 7 months ago.
Similarly, whilst Mr Hasib breached immigration law, by remaining in Australia as an unlawful non-citizen during the period from about 26 July 2006 to 30 August 2007, he has been living in Australia as a lawful non-citizen since 14 December 2007 (i.e. for just over 7 years).
In such circumstances, the Tribunal is not satisfied that Mr Hasib’s offences establish a “pattern of (criminal) behaviour”, which shows a disregard for Australian law and indicate that Mr Hasib may not “uphold and obey” the law if Australian citizenship is conferred on him: paragraph 10.5.2 of the ACIs.
Mitigating factors
Paragraph 10.5.2 of the ACIs lists a number of mitigating factors to be taken into account in deciding whether a person is of “good character” for Citizenship Act purposes, as follows:
·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 Hasib’s circumstances.
Length of time between the date of the offence and citizenship application or between the conviction and citizenship application
Mr Hasib did not apply for Australian citizenship until 29 April 2014, being more than 7 years after being convicted on 23 August 2007 for offences relating to credit card fraud and almost 6 years and 7 months after his 9 month good behaviour bond ceased. This is not an insignificant period of time. Further, Mr Hasib was granted a permanent protection visa on, and has been living in Australia as a lawful non-citizen, since 14 December 2007 (i.e. for more than 7 years). Similarly, this is not an insignificant period of time. However, the Tribunal notes that in the case of “serious offences”, like credit card fraud and a breach of immigration law, paragraph 10.5.2 of the ACIs states “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”, but each case is to be assessed “on its own merits.”
In Mr Hasib’s case, the Tribunal is satisfied that a sufficient period has passed in which to objectively determine that Mr Hasib’s 10 convictions (on 23 August 2007) for credit card offences committed over a 2 to 3 day period (and the year or so that Mr Hasib lived in Australia as an unlawful non-citizen and in breach of Australian immigration laws) represent aberrations rather than an on-going “pattern of (criminal) behaviour”.
Acceptance of responsibility and show of remorse for conduct
The Tribunal is satisfied that Mr Hasib has accepted responsibility for his 2007 credit card fraud offences and that he has expressed sufficient remorse in relation to his criminal conduct. Mr Hasib told the Tribunal that he knew what he did in 2007 was unlawful and a “very bad thing” and is why he moved out of the house he shared with the people who asked him to carry out credit card fraud shortly after he committed the relevant offences and is why he pleaded guilty to all 10 offences in the Burwood Local Court. Mr Hasib said that he regrets what he did and that it was “not who I am”. Mr Hasib also explained that his expressions of remorse may not be as good as he would like them to be as a consequence of his limited English skills: refer also the 18 June 2014 Statement in paragraph 9 above.
In the 7 November 2014 Statement, Mr Hasib states:
I have deep regret for whatever I did. I am living with good character for last 6 years. I did not do or have any engagements with any kind of illegal act during this time period
Rehabilitation
Mr Hasib has not undertaken any rehabilitation course or program which addresses risk factors relating to his offending.[2] However, Mr Hasib told the Tribunal that he disassociated himself from the people that influenced him to the commit credit card fraud offences in 2007 soon after the commission of his offences. He said that he did this by moving out of the house which he shared with those people: refer also to the 18 June 2014 Statement in paragraph 9 above. Mr Hasib also said that he has had nothing to do with those people since that time (i.e. since 2007, being over 7 years ago). Mr Hasib explained that he now has “many friends” who he described as being educated and settled (i.e. a positive influence on him). This weighs in Mr Hasib’s favour.
Age at the time offence committed
[2] The Tribunal notes that Mr Hasib was not required by the Burwood Local Court, as a condition of his suspended 9 month sentence or 9 month good behaviour bond, to attend a rehabilitation course or program of any kind.
Mr Hasib is currently 31 years of age and he was about 24 years old when he committed and was convicted of the relevant credit card fraud offences. Mr Hasib told the Tribunal he is much more mature now (in 2015) than he was in 2007 and that he now knows what to do with his life in order to “prosper”. Mr Hasib said that if he were presently faced with similar circumstances as those which he faced in 2007 (i.e. was impecunious and met and was influenced by people involved in criminal or other illegal activities) he would have the confidence to choose not to do what he did back then. He said that he would now make the “right choice” and that what happened in 2007 would “not happen again” in any circumstances. This weighs in Mr Hasib’s favour.
Extenuating circumstances – offence committed under duress
In the 7 November 2014 Statement, Mr Hasib states, in relation to the people he met in Sydney in 2007:
They stole my passport from my room as they used to come at my home. After they started giving me threat that if I do not work for them, they will inform immigration about my visa status. I got so scared and had no idea what I should do…..
I was feeling so helpless….I told them it was not possible for me to continue [working for them]. They became so angry, tried to convince me. But I didn’t listen to them. As I was living with them in [the] same place, I moved from there to one of my friend’s house in Belmore, NSW. They keep threatening me over the phone that they will call the police and give them information about me. I still ignored.[3] [Emphasis added]
[3] See also the 18 June 2014 Statement in paragraph 9 above.
Mr Hasib gave similar evidence before the Tribunal. Based on Mr Hasib’s evidence, it could be said that in 2007 Mr Hasib committed the relevant credit card offences under some degree of duress in which case that offences should be given less weight in deciding whether Mr Hasib is of “good character” and is a factor which weighs in Mr Hasib’s favour. Having said that, the Tribunal notes that there is no independent evidence of these allegations.
Employment, stable life and/or community involvement
Since being released from his 9 month good behaviour bond in about May 2008, Mr Hasib has not been involved in or convicted of any criminal or other illegal activity. He has instead sought and gained employment of various kinds and made “many friends” who he described as “educated” and “settled”. Most recently, Mr Hasib was employed as a Customer Services Operator at Coles. Mr Hasib said that he sees himself as having a “bright future” in retail and is feeling “back on track”.
In the 7 November 2014 Statement, Mr Hasib states:
….now I am working at Coles,…..as a Customer Service Operator and I am very much hopeful that I will continue as I can see my bright future in retail business.
I have struggled to live a normal life. Now I am feeling I am back [on] track.
Mr Hasib also told the Tribunal he “knows what he is right now” and that, since 2007, he has matured and is more confident and that he would never again do what he did in 2007 “in any circumstances”.
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.
In support of his application, Mr Hasib provided 2 character references, one from a friend who has known Mr Hasib since 2007 (i.e. for over 7 years) and another from a co-worker at Coles who has known Mr Hasib for over 2 years and who currently works with Mr Hasib at Coles. Neither reference was made in the form of a statutory declaration.
The first character reference is from Mr Al-Razi Khan, dated 8 November 2014. In his character reference, Mr Khan states:
I am Al-Razi Khan running a small business…...
I met Mohammad Jannatun Naim Hasib in 2007 through one of my housemate[s] when Hasib used to live in Mascot, NSW. We became very good friends since then. Later in 2010 he moved in Wiley Park, NSW with me. I was in that flat for couple of months. After that I moved to Perth but always had contact with Hasib over the phone.
I am well concerned about his past criminal conviction and feel so sorry for him. He always regrets that everything could be much easier if he wouldn’t have that record. I strongly believe that he is now a completely changed person since I met him from day one. So far I know him, he is a man of good character. Never saw anything which may confuse me about his character. I went to Bangladesh in 2011 and I met his family in Dhaka, Bangladesh in 2011. They are quite good people.
………….Then I asked him to move to Perth in my flat, he may find a good job here because Perth has so many opportunities than Sydney. He agreed and it was good for me that I have got my friend who is good and trustworthy. After he moved in Maylands, I saw him closely for 2 years and never found him doing any bad thing. Since he started living in Perth, he was trying hard to get a good job. I introduced him with one of my friend named Abir who gave him a dish washing job in Mount Hawthorn. Hasib is now living with Abir in Bentley. I am so happy that recently he got a job at Coles as a service operator.
He is ambitious and honest… [Emphasis added]
The second character reference is from Mr Md Shahinul Islam, dated 8 November 2014. In his character reference, Mr Islam states:
I, Md Shahinul Islam working as Customer Service Manager in Coles, Mosman Park, WA. Living in WA for last 2 years……
When I first came to WA I was looking for a place to live at least for a few weeks until I can rent a place to live. We stayed in the same unit for 2 months. From day one till now we are very good friends. In my eyes he is a very honest and friendly housemate. As we were living in the same unit we shared a lot about our life, our past and our future plan. He regretfully told me about his worst times in Sydney, and how he moved to Perth to start a new life.
He was regretting for his past and losing hope for the future. Then I offered him a job at Coles and I saw his happiness. I believe he’s getting back all his self-esteem. Day by day he is improving with his customer service skills and surprisingly doing great as a team and also in all individual tasks.
I believe he is very responsible human being and will be a great citizen and I think this citizenship will also help him to go further in his career.… [Emphasis added]
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 I 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]
Having objectively weighed the various relevant factors, the Tribunal is satisfied that in Mr Hasib’s particular case, the mitigating circumstances (as discussed in paragraphs 39 to 51 above) and the explanation provided by Mr Hasib (in the 18 June 2014 Statement, the 7 November 2014 Statement and in his verbal evidence before the Tribunal) outweigh the behaviour in question: paragraph 10.5.4 of the ACIs. That is, the Tribunal is satisfied that Mr Hasib is likely to “uphold and obey” the laws of Australia if Australian citizenship is conferred in him: paragraph 10.1.2 of the ACIs.
Notwithstanding the fact that Mr Hasib’s 2007 credit card fraud offences are “serious offences” for the purposes of the ACIs, the Tribunal is satisfied that Mr Hasib has demonstrated over the course of a number of years that he is reformed and of “good character”: Irving. In reaching this conclusion, the Tribunal notes that the credit card offences committed by Mr Hasib in 2007, which they are “serious offences” under paragraph 10.5.2 of the ACIs, are not “serious” to the same extent as the “serious offences” specified in paragraph 10.5.4 of the ACIs (refer to paragraph 56 above). That is, taking the life of another person, sexual assault, war crimes, crimes against humanity, genocide or crimes against children. Further, the Tribunal notes that the Burwood Local Court, having considered the circumstances of Mr Hasib’s case, saw fit to give Mr Hasib a 9 month suspended sentence and a 9 month good behaviour bond (without a fine or any period of imprisonment). This is telling of the court’s view of the “severity” of Mr Hasib’s 2007 offences.
As stated, about 6 years and 7 months have passed since Mr Hasib’s 9 month good behaviour bond ended. Looking holistically at Mr Hasib’s circumstances, the Tribunal is satisfied that a sufficient period has passed since Mr Hasib has been free of his obligation to the court to objectively demonstrate that Mr Hasib’s 2007 convictions have had a salutary effect on him and were aberrations (rather than representing an on-going pattern of criminal behaviour) that he is of “good character” for the purposes of s 21(2)(h) of the Citizenship Act.
DECISION
For the above reasons, the Tribunal sets aside the Citizenship Decision and substitutes that decision with the decision that Mr Hasib be granted Australian citizenship pursuant to section 24(1) of the Citizenship Act.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
.....(Sgd) T Freeman............
Associate
Dated 13 February 2015
Date(s) of hearing 11 February 2015 Applicant In person Representative for the Respondent Mr A Gerrard Solicitors for the Respondent Australian Government Solicitor
3
4
0