Moustafa Rashed Abouabd-Allah (John Kennedy) and Minister for Immigration and Border Protection
[2014] AATA 459
•8 July 2014
[2014] AATA 459
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5982
Re
Moustafa Rashed Abouabd-Allah (John Kennedy)
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 8 July 2014 Place Sydney The Tribunal affirms the decision under review.
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Ms G Ettinger, Senior Member
CATCHWORDS
CITIZENSHIP – Applicant denied citizenship – he has a criminal conviction – did not disclose it on two occasions when applying for citizenship – states he did not know about the conviction as the interpreter at the Court hearing did not inform him correctly – the Tribunal notes he was legally represented at Court and assisted by an interpreter in the Arabic language – citizenship application denied – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss, 21(2), 21(2)(h)
CASES
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Austin v Minister for Immigration and Citizenship [2007] AATA 1762
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Shi v Migration Agents Registration Authority (2008) 235 CLR 286Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Ms G Ettinger, Senior Member
8 July 2014
SUMMARY
Mr Moustafa Rashed Abuabd-Allah, also written as Abu Abdullah, Abou Abdalla, and Abu Abdalla, (Mr Abu Abdalla) aged 55, changed his name by deed poll to John Kennedy. However at the hearing before me, he asked for his Egyptian family name to be used. He appeared unrepresented, and was appealing the decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse him citizenship. I noted that the refusal was made because the delegate of the Minister held that Mr Abu Abdalla did not meet the test for good character pursuant to section 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
The Applicant arrived in Australia in March 2009, and has been the holder of a subclass 201 (permanent) visa granted him in January 2009. His wife and children are Australian citizens.
Mr Abu Abdalla was convicted in March 2010 of an assault with act of indecency said to have taken place on 22 July 2009. Mr Abu Abdalla was convicted in the Local Court at Fairfield and given an 18 month good behaviour bond. He was legally represented at the Court, and assisted by an interpreter in the Arabic language.
Mr Abu Abdalla failed to disclose his conviction on two separate occasions when applying for citizenship. He said that his reasons were that he did not understand he had been convicted as the interpreter told him the Judge had reserved the matter, which he took to mean that was the end of it. He did not at the time, and continues not to acknowledge any wrongdoing, stating that the woman complainant was an Iraqi Muslim who was offended by his Christian writings, and set him up. He told me that he first found out about the conviction when his citizenship application was refused.
I did not accept Mr Abu Abdalla’s evidence that he did not understand the Court’s findings as he had a solicitor representing him, and an Arabic speaking interpreter to assist. He was also able, as seen on the transcript of the hearing, to answer some questions in English.
On the basis of the evidence, the Australian Citizenship Instructions, (ACI), the legislation and the case law, I refuse the application because I find that Mr Abu Abdalla does not meet the character tests pursuant to section 21(2)(h) of the Act. I have accordingly affirmed the decision of the Minister. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
The issue in this matter is whether Australian citizenship can be conferred as applied for by Mr Abu Abdalla. That will include a consideration of whether the Applicant is of good character pursuant to section 21(2)(h) of the Act.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Australian Citizenship Act 2007, in particular section 21, which concerns application and eligibility for citizenship. It provides relevantly in section 21(2)(h) that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application. That means accordingly at the time of the Tribunal’s decision, because the Tribunal stands in the shoes of the Minister (Shi v Migration Agents Registration Authority (2008) 235 CLR 286).
Section 21(2)(h) follows as relevant:
(2) 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.
The Australian Citizenship Instructions (ACI) are also relevant, and must be taken into account (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
Chapter 10 of the ACI provides guidance to decision makers administering the good character requirements under the Act. The ACI provide, relevantly that an applicant who is of good character will respect and abide by the law in Australia, and will be truthful and not practise deception in his or her dealings with the Australian Government. An example relied upon is that a person of good character will not provide false personal information during citizenship applications, and will not conceal convictions that could lead to the refusal of citizenship.
Factors to be taken into account in an assessment of character (ACI paragraph 10.5.2) include amongst others, consideration of whether the applicant has committed any offences and, if so, whether the applicant has admitted this in his or her citizenship application. There is a note as follows in regard to convictions:
Note: Decision makers are to accept a Court's findings concerning an offence to be correct and to put weight on it. It is not the role of the decision maker to "retry" the offence, even if the applicant claims that they were wrongly convicted. If the conviction or sentence has been appealed and the appeal decided, the decision maker should take the outcome of the appeal into account.
Decision makers, and the Tribunal standing in the shoes of the decision maker, must consider whether any offence committed was serious or minor. Serious offences are stated to include, but are not limited to, crimes of violence, including sexual assault. There must also be a consideration of whether there were victims to the offence, such as vulnerable people like children, the elderly or the disabled. The length of the sentence imposed by a Court is also relevant to the consideration of good character.
Mitigating factors such as the length of time between the date of the offence and/or conviction, and the applicant’s application for citizenship, are relevant.
The ACI provide:
Each case is to be assessed on its own merits and issues such as the seriousness of the offence, the nature of the offence, whether another person was harmed and the rehabilitation process needs [sic, need] to be assessed. 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.
Other considerations are whether the applicant has accepted responsibility and shown remorse for the conduct, whether they have attempted to rehabilitate themselves, and whether a reasonable amount of time has passed in order for the applicant to have established a pattern of good behaviour justifying the conclusion that the person is at the time of the reconsideration, of good character.
Evidence regarding the length of employment, family life and/or community involvement are relevant. It is noteworthy that the ACI consider an applicant’s travel plans as not generally relevant to a decision maker. Extenuating circumstances may also be considered.
The ACI also make comment with regard to referees’ reports, stating that
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 the applicant at work or in other contexts, and who are willing to provide contact details. Referees 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. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct.
THE APPLICANT’S EVIDENCE AND SUBMISSIONS
Mr Abu Abdalla tendered two documents. The ‘Memorandum of Defense’ dated 21 February 2014 became Exhibit A1 before the Tribunal. In it he disclosed he had been a professor of Islamic canonical law at the University of Al-Azhar, and that he was the author of 21 books. He stated that his study and research led him to abandon the faith of Islam which he had inherited at birth, and that he was accordingly treated badly in Egypt. He stated that he applied for refugee status in Australia, which was granted.
In Exhibit A2, dated 17 March 2014, Mr Abu Abdalla made submissions about good character, and cited case law in that regard.
Mr Abu Abdalla’s oral evidence was centred around his belief that:
·he is innocent and was wrongly convicted in the Fairfield Local Court in March 2010;
·the Complainant was an Iraqi Muslim woman who sought him out, and set him up;
·he speaks little English, and did not understand at the conclusion of the Court proceedings that he had been convicted; the interpreter told him that the Judge had reserved his decision, and he understood that to have meant he had not been convicted;
·he is still trying to clear his name, (having approached the Local Court and been rejected as his application was out of time), and by writing to the NSW Attorney General and Minister for Justice;
In his closing submissions, Mr Abu Abdalla made the following points:
·He has never committed a crime, either in Australia or in Egypt, and certainly none in the past five years.
·He has approximately up to 300 persons who could testify to his good character. They could not all be wrong. Many of these have provided written references.
·He has read cases where people who have been convicted of more serious crimes were awarded citizenship (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 and Austin v Minister for Immigration and Citizenship [2007] AATA 1762).
·He has been in touch with the NSW Attorney General and Minister for Justice seeking to reopen his case.
·His wife and children are Australian citizens, and he cannot travel with his present status, and fears separation from them.
·He feels Australian, has sold up in Egypt, bought a house in Tasmania, and wants to stay here.
THE RESPONDENT’S SUBMISSIONS
Ms Hooper who represented the Minister, made submissions, referring to the Minister’s Statement of Facts and Contentions in which she had stated the Respondent’s case for rejecting Mr Abu Abdalla’s application for citizenship. She also made reference to the ACI and to relevant case law.
Ms Hooper commenced her submissions by referring to those of Mr Abu Abdalla, submitting that his assertion that he had committed no crime in the last five years was factually wrong given his conviction in 2010. She submitted further, that his reference to having 300 referees was an exaggeration. She submitted that little weight be given to most of the references, because the persons writing the references may well hold a genuine respect for Mr Abu Abdalla, but for the most part, they did not refer to Mr Abu Abdalla’s criminal conviction, and may not have known about it. She submitted that in addition, Mr Abu Abdulla had admitted that he wrote several of the references which appeared to be in template form, and admitted he had written the reference on behalf of Mr Kim Eun Ho the cake shop owner, who was Mr Abu Abdalla’s short term employer.
Ms Hooper also commented on Mr Abu Abdalla’s reliance on case law in which persons with criminal convictions had been granted citizenship, submitting that each case turned on its own facts. She submitted that the fact other family members had citizenship, and his stated inability to travel with his present documentation were not relevant in considering his citizenship application.
Ms Hooper submitted that the Tribunal should not go behind the conviction, and referred to cases cited in the Minister’s Statement of Facts and Contentions in that regard. Amongst those were Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, and Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358.
Ms Hooper also submitted that the offence of which Mr Abu Abdulla was convicted was a crime of indecency and assault, and was classified as serious pursuant to the ACI. The victim she submitted, was 20 years old, while Mr Abu Abdulla was approximately 50 years old at the time. She submitted further that Mr Abu Abdulla continued to fail to acknowledge his guilt, and exhibited no remorse nor rehabilitative activities or attitude.
Ms Hooper submitted on behalf of the Respondent, that Mr Abu Abdulla had failed to disclose his conviction on two occasions when applying for citizenship, and continued to maintain he did not know he had been convicted until the time when his citizenship application was refused. She indicated that from the transcript of the Court proceedings, it was clear he had replied to some questions in English, further that he was assisted by an interpreter throughout the criminal trial, and that he was legally represented throughout.
Ms Hooper submitted that Mr Abu Abdulla’s bond ceased on 24 September 2011, but that given his lack of acceptance of wrong doing, insufficient time had passed in order to consider him of good character.
THE TRIBUNAL’S CONCLUSIONS
In order to come to a conclusion about whether the Applicant satisfies the requirements in section 21(2)(h) of the Act, I have taken the evidence, legislative requirements and the relevant Australian Citizenship Instructions (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634), into account. There is no disagreement that the Applicant meets the requirements of sections 21(2)(a), to (f).
I have already noted above that Mr Abu Abdalla has been in Australia since March 2009, and has been the holder of an Australian visa since January 2009. He and his wife and young son attended at the Tribunal. Mr Abu Abdalla was the only family member who gave oral evidence and made submissions. The Minister was represented by Ms K Hooper, solicitor of DLA Piper Australia.
I note for the sake of completeness that Mr Abu Abdalla had the assistance of a very competent interpreter, Ms Nadine Hallak, arranged, as usual, by the Tribunal. I was informed that during an adjournment he questioned her as to religion, and accused her of not being a Christian, and not interpreting well.
When I resumed the hearing, I queried the parties as to any problems either was experiencing. Mr Abu Abdulla indicated he was not happy with the level of interpreting provided by Ms Hallak. I informed the Applicant that it was not the place of anyone in this Tribunal to query a person’s religion, and that I would not require Ms Hallak, who by this time was quite upset, to continue interpreting for him. I suggested she may want to make a complaint about what she had experienced. I adjourned the hearing, and organised for a replacement interpreter to attend later in the day.
I make the point that although neither Ms Hooper nor I speak Arabic, when I asked her about the interpreting, Ms Hooper told me she was satisfied with Ms Hallak’s interpreting. Both Ms Hooper and I were satisfied that Ms Hallak was interpreting everything that was said quite fluently. I note that Mr Abu Abdalla did not raise any problems with the interpreter during the giving of his evidence and cross-examination, which were completed by the time of the adjournment.
When the hearing resumed with the replacement interpreter, Mr Ahmad Al Romi, I asked Mr Abu Abdalla if he was satisfied he had told me everything which he wanted to, and asked if he wanted to repeat any of his evidence, assisted by the interpreter. He indicated he was happy to proceed to submissions, after which the hearing concluded, and the decision was reserved.
I now consider the decision I have to make, and the application of section 21(2)(h) of the Act. That section provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application. Because the Tribunal stands in the shoes of the Minister, the Tribunal must be satisfied that the person is of good character at the time of the Tribunal’s decision, (Shi v Migration Agents Registration Authority (2008) 235 CLR 286).
The seminal point in consideration of whether Mr Abu Abdalla is of good character, is his conviction in March 2010 for assault with an act of indecency on a 20 year old woman. I accepted Ms Hooper’s submission that the Tribunal should not go behind the conviction, and refer to authorities cited in the Minister’s Statement of Facts and Contentions in that regard. Amongst those were Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, and Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358.
I also accepted Ms Hooper’s submission that the offence of which Mr Abu Abdulla was convicted was classified as serious pursuant to the ACI. It was a conviction for indecency and assault, which resulted in a good behaviour bond of 18 months. I note further that the victim was 20 years old, while Mr Abu Abdulla was approximately 50 years old at the time in 2009. I note also that Mr Abu Abdalla denies having signed or seen the document recording the bond imposed.
In order to make a decision, I have taken into account the guidance of the ACI, and must look holistically at the Applicant’s behaviour over a lasting or enduring period of time. The time is not specified in the ACI. However, I have noted that the amount of time considered to be lasting or enduring depends on the merits of each case, and will in most cases will go back prior to any visa application. Mitigating factors such as the length of time between the date of the conviction, and the Applicant’s application for citizenship, are relevant. In that regard, I am mindful that the 18 month good behaviour bond ceased on 24 September 2011.
The ACI provide, relevantly that an applicant who is of good character will respect and abide by the law in Australia, and will be truthful and not practise deception in his or her dealings with the Australian Government. An example relied upon is that a person of good character will not provide false personal information during citizenship applications, and will not conceal convictions that could lead to the refusal of citizenship. The facts in this case are that Mr Abu Abdalla did not disclose his criminal conviction in two citizenship applications. His reasons, which I do not accept, are that he spoke little English at the time of the Court hearing, and did not understand at the conclusion of the proceedings that he had been convicted. He said that the interpreter told him that the Judge had reserved his decision, and he understood that to have meant he had not been convicted. I have already noted above that Mr Abu Abdalla was represented by a lawyer at the Local Court, that the transcript reveals he spoke some English, and that he was assisted for the duration of the proceedings by an interpreter in the Arabic language.
In order to gain a better knowledge of Mr Abu Abdalla’s circumstances, I asked him about any employment he has undertaken in Australia since his arrival in 2009. He told me that he has tried to find work in Germany and the USA, but that he cannot travel abroad with the travel document with which he has been issued. It is noteworthy that the ACI consider an applicant’s travel plans as not generally relevant to a decision maker.
Mr Abu Abdalla told me that he has written five books since he arrived, that he has done some handyman work, and that most recently, he worked in a cake shop. He said that he also made an application to the Defence Forces, and is awaiting an interview.
Other considerations pursuant to the ACI, are whether the Applicant has accepted responsibility and shown remorse for the conduct, whether he has attempted to rehabilitate himself, and whether a reasonable amount of time has passed in order for the Applicant to have established a pattern of good behaviour justifying the conclusion that he is, presently of good character. I have taken into account the fact that Mr Abu Abdalla continues to deny any wrong doing, and that accordingly, rehabilitation cannot have taken place. He argued that he is embarrassed because the rest of his family are citizens. That is not a relevant consideration pursuant to the ACI.
Mr Abu Abdalla provided a number of referees reports. The ACI also make comment with regard to referees’ reports, stating that:
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 the applicant at work or in other contexts, and who are willing to provide contact details. Referees 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. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct.
Ms Hooper indicated at Exhibit R1/202, and 2004 – 206 that the references appeared to be a template. The Applicant agreed he had assisted with writing the references, but that the people had signed them willingly. Mr Abu Abdalla also agreed that his handwriting appeared on references on pages 204 and 205 indicating that he was: a decent man – good morals – He is an educated man calling for peace and a great morality. Mr Abu Abdalla acknowledged that what appeared at Exhibit R1/215, was a reference he had written on behalf of his wife. The Applicant also acknowledged that he had written the reference dated 23 January 2014 on behalf of the cake shop owner, his part-time employer.
Ms Hooper submitted that little or no weight be given to the references provided, notwithstanding Mr Abu Abdalla’s evidence that the referees had willingly signed the references he had prepared.
I noted there was a number of references given, and gave more weight to those which were sworn statements. Many appeared not to know of the Applicant’s conviction. Those references were given little weight, as also the reference from his wife.
Ultimately, I was satisfied from the evidence that Mr Abu Abdalla failed to acknowledge his guilt or accept responsibility in regard to the crime for which he had been convicted in March 2010. There was an absence of remorse and no evidence of rehabilitation. Accordingly I am satisfied that insufficient time has passed since the conviction in order to consider the Applicant of good character. His citizenship application cannot be granted.
For the sake of completeness I note that approximately a week after the conclusion of the hearing, and after the decision had been reserved, Mr Abu Abdalla wrote to the Tribunal seeking what he termed a rehearing of the matter. The Tribunal is not able to take into account further correspondence once a hearing is concluded. Mr Abu Abdalla’s appeal rights are attached to the covering letter accompanying these Reasons for Decision.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member .............[Sgd]...........................................................
Associate
Dated 8 July 2014
Date of hearing 20 June 2014 Applicant In person Solicitors for the Respondent Ms K Hooper, DLA Piper
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