Mussa and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 713
•5 June 2025
Mussa and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 713 (5 June 2025)
Applicant:Mohamed Gulled Mussa
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/7323
Tribunal:General Member Gallagher
Place:Perth
Date:5 June 2025
Decision:The decision of a delegate of the Respondent dated 23 August 2024, to refuse to grant the Applicant’s application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth), is affirmed.
Statement made on 05 June 2025 at 3:05pm
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –Australian Citizenship Act 2007 s 24(2)(h) – whether Tribunal satisfied Applicant was of good character – citizen of New Zealand – Applicant criminal record – failure to provide criminal history – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 21(1), 21(2)(h), 21(3), 21(3)(f), 24, 52(1)(b)
CASES
Minister for Home Affairs v G and Another [2019] FCAFC 79
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431-2
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Katambwe and Minister for Immigration & Border Protection [2016] AATA 989
Terzis and Minister for Immigration and Multicultural Affairs (Citizenship), Re [2025] ARTA 230
SECONDARY MATERIALS
Australian Citizenship Policy (1 June 2016)
Revised Citizenship Procedural Instructions (1 January 2019)
Statement of Reasons
APPLICATION FOR REVIEW
The Applicant seeks review of a decision of a delegate of the Respondent dated 23 August 2024, to refuse an application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).[1]
[1] R2, T2.
The basis for the refusal was that the delegate was not satisfied that at the time of the Reviewable Decision the Applicant was of good character for the purposes of s 21(3)(f) of the Act.
The application for review of the Reviewable Decision is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal)[2] for review of a decision under s 24 of the Act.
[2] As it was then known. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
ISSUE
The issue is whether the Tribunal is satisfied that the Applicant meets the requirements for Australian citizenship set out in s 21(3)(f) of the Act, being whether it can be affirmatively satisfied that the Applicant is of good character.
BACKGROUND
The Applicant was born in Somalia in 1966[3] and is a citizen of New Zealand.
[3] R2, T2, p 10.
The Applicant first arrived in Australia on 12 September 2005 and is currently a holder of Special Category (Temporary) (subclass 444) visa, which was granted on 1 July 2023.[4]
Applicant’s claim history[5]
[4] R2, T2, p 10.
[5] Factual matters largely extracted from R1 [4] to [12] and R2 (and referenced accordingly).
On 14 July 2023, the Applicant lodged an application for Australian citizenship by conferral under s 21(3) of the Act.[6]
[6] R2, T1, p 20.
On 24 October 2023, the Department of Home Affairs (Department) requested a penal certificate for any country in which the Applicant had spent 90 days or more since his 18th birthday.[7]
[7] R2, T5, pp 77-8.
On 25 October 2023, the Applicant provided the Department with a statutory declaration stating that he went to a refugee camp in Kenya in 1991, where he resided until 1998. Notably, the Applicant stated:[8]
Inability to obtain a Kenyan police clearance
9It is not possible for me to obtain a Kenyan police clearance certificate as I resided there as a refugee with my family. We were registered as refugees with the UNHCR and were resettled in New Zealand.
10I do not have any local contacts in Kenya who can assist me with obtaining a Kenyan police clearance.
11I never required a Kenyan police clearance to acquire New Zealand citizenship.
[8] R2, T6, p 82.
On 22 April 2024 the Department requested police check certificates from Kenya. Alternatively, as the Applicant resided in Kenya as a refugee, the Department requested, ‘all evidence that you have tried and failed to obtain a police clearance certificate for Kenya’ and ‘a completed Character Statutory Declaration’ so that the Department could apply for a penal waiver on behalf of the Applicant.[9]
[9] R2, T14, p 126.
On 1 May 2024 the Applicant provided two statutory declarations. In one of the statutory declarations, the Applicant stated:[10]
I cannot provide a police clearance from Kenya because the Kenyan embassy told that in order to get a police clearance from Kenya I must have lived in Kenya for a period of atleast (sic) months. since I was in Kenya 2010 for 2 weeks and 2011 for only 3 weeks I cannot get a police clearance.
When I was in the refugee camp in Kenya (1991-1998) I had no ducuments (sic) and they said they cannot give a police clearance.
[10] R2, T15, p 130.
On 26 July 2024, the Applicant provided a blank copy of a Kenyan application form for a Certificate of Good Conduct.[11]
[11] R2, T16, pp 131-4.
On 23 August 2024, a delegate of the Respondent made the Reviewable Decision.
On 29 August 2024, the Applicant provided the Department with:
(a)A form 956 (appointment of a registered migration agent, legal practitioner or exempt person);[12]
(b)A Kenyan single journey visa, with stamps dated December 2010 to January 2011;[13] and
(c)An email chain from the Kenya High Commission dated 23 April 2024,[14] which reads:
Please find attached the requirements needed to obtain a police clearance certificate (PCC). Please remember that proof of a 6-month continuous stay is paramount to obtain a PCC.’
[12] R2, T18, pp 143-6.
[13] R2, T18, p 148.
[14] R2, T18, pp 149-55.
On 20 September 2024, the Applicant applied to the General Division of the Tribunal for review of the Reviewable Decision.[15]
[15] R2, T1.
In his application, the Applicant stated he was seeking review of the Reviewable Decision for the following reasons: [16]
THE DECISION IS WRONG BECAUSE THE CASE OFFICER CLAIM [sic] I SHOULD BE ABLE TO OBTAIN A POLICE CHECK CERTIFICATE FROM KENYA HOWEVER WE DID CONTACT THE KENYA [sic] COMMISSION IN CANBERRA AND THEY INFORMED I AM NOT ELIGIBLE FOR IT. THE LADY WE SPROKE [sic] TO IS CALL [sic] LENITY. WE WILL OBTAIN CORRESPONDENCE FROM HER AND ATTACH IT TO THE APPEAL APPLICATION.
[16] R2, T1, p 6.
On 20 February 2025, the Department, through its legal representative, sent a letter to the Applicant’s representative, requesting the Applicant provide a copy of a police clearance certificate from Kenya, or evidence of his attempts to obtain a penal clearance of certificate of good conduct from the Kenyan High Commission, to the Tribunal and the Respondent as soon as possible.[17]
[17] The Respondent maintains the Applicant did not respond to this letter: R1 [12].
LEGISLATIVE FRAMEWORK
The Preamble to the Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian Citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship.
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 21(3) of the Act prescribes the criteria for an applicant who claims to have ap permanent or enduring physical or mental incapacity at the time the person make the application.
Section 21(3)(f) of the Act provides that that the applicant must satisfy the Minister that he or she is of good character at the time of the decision on the application.[18]
[18] This is the same ‘good character’ test as that set out in s 21(2)(h) of the Act, under the general eligibility stream.
Further, s 24 of the Act provides:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
The meaning of good character
The term ‘good character’ is not defined in the Act. The Tribunal is however assisted by the Australian Citizenship Policy (1 June 2016) (the Policy) and the Revised Citizenship Procedural Instructions (1 January 2019) (the CPIs).[19]
[19]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of
the Act.
As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[20]
[20]G at [57]-[62].
As summarised by the Respondent:[21]
[21] R1 [20] and [22] to [24].
(a)While the phrase 'good character' is not defined in the Act, consideration of whether a person is of good character will require an assessment of the person's 'enduring moral qualities.'[22] The phrase requires a 'discretionary value judgment' to be made by reference to undefined factual matters as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny them citizenship.[23]
(b)Chapter 15 of the Citizenship Procedural Instructions (CPI15) requires conferral applicant to provide an overseas penal clearance where the applicant has:
(i)Held a permanent visa and lived or travelled outside Australia since turning 18; and
(ii)The total time spent outside Australia added up to 12 months or more; and
(iii)The time spent in any one country was an accumulated period of 90 days or more; or
(iv)If requested to do so by the Department.[24]
(c)CPI15 provides that, if the decision-maker considers it relevant to the character assessment, the decision-maker can request an overseas penal clearance certificate irrespective of the amount of time a person has spent overseas, or the period of time spent within a country.[25]
(d)CPI15 also notes that New Zealand citizen applicants who do not hold a permanent visa (that is, relevantly, those who hold a Special Category (subclass 444) visa) are required to obtain overseas penal clearance certificates from New Zealand and any other country they have stayed in for a period totalling 90 days or more. This applies to New Zealand citizen applicants aged 18 regardless of how long the person has resided in Australia.[26]
[22] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431-2 (Lee J).
[23] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, [51] (O'Bryan J).
[24] T21, p 194.
[25] T21, p 195.
[26] T21, pp 195-6.
Generally, In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (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.
As to the state of satisfaction required for “good character”:[27]
[54] Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite…Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion….
[55] The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character…
(Emphasis added.)
[27]BOY19 v Minister for Immigration and Border Protection [2019] FCA 574.
Therefore, if the Tribunal is not affirmatively persuaded that the Applicant is of good character, the Tribunal must affirm the decision under review on the basis that the Applicant is not eligible to become an Australian citizen.
HEARING AND EVIDENCE
The matter was heard in Perth on 7 May 2024. The Applicant was represented by Mr Nino Sekyere-Boakye of Allworld Migration Services. The Respondent was represented by Ms Madisen Scott of the Australian Government Solicitor. Both parties appeared in person.
The following materials were exhibited at the outset of the hearing:
(a)Applicant’s submissions with attachments dated 14 March 2025, filed 24 March 2025 (A1);
(b)Email from UNHCR Multi-Country Office dated 6 January 2025, filed 12 February 2025 (A2);
(c)Respondent’s Statement of Facts, Issues and Contentions dated and filed 7 March 2025 (R1);
(d)Section 23 T-Documents comprising 1-224 pages, filed 23 October 2024 (R2);
(e)Supplementary T-Documents, comprising 1-8 pages, filed 7 March 2025 (R3); and
(f)Email from the Respondent to the Applicant requesting evidence of the Applicant's attempt to obtain his UNCHR documentation, dated 30 April 2025 and filed 5 May 2025 (R4).
The Tribunal heard oral evidence from the Applicant. No other witnesses were called.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Applicant’s evidence
The Applicant accepted that in October 2023, following his citizenship application, the Department requested he provide further information including a police certificate for countries outside Australia,[28] namely Kenya.
[28] R2, T5, p 77.
The Applicant also accepted that the Department made a further request for police clearance documents relating to Kenya in April 2024.[29]
[29] R2, T14. [ 124.
The Applicant said that it was not possible for him to so because he resided in Kenya as a refugee and was then resettled in New Zealand and he has no local contacts in Kenya who could assist him.[30]
[30] R2, T6, p 82.
The Applicant said that he is unable to provide documentary evidence that he resided in Kenya for more than six months because he does not have a copy of his UNHRC card, nor any official documents to prove he lived in Kenya from 1991 to 1998.
The Applicant said that he has made several unsuccessful attempts to get records of his UNHCR card, including calling and emailing the Kenya High Commission in Canberra on several occasions.[31] The Applicant accepted that he never provided any of the information listed by UNHCR Multi-Country Office in Canberra in its correspondence to him in February 2024,[32] that his correspondence with Lenity from the Kenyan High commission in September 2024 and December 2024 consisted only of enquiries as to what information was required in order to obtain a police clearance certificate[33] and that he did not attempt to contact the Kenyan UNHCR after this time.
[31] A1, p 2.
[32] A2, p 29.
[33] A1, pp 18 and 19
The Applicant agrees that it is possible for foreign nationals to obtain a Certificate of Good Standing from the Directorate of Criminal Investigations in Kenya.
The Applicant said that however, to do so requires providing documentary evidence that they resided in Kenya for more than six months, which he is unable to do.
The Applicant states he posted an application for a Certificate of Good Standing to the Kenya High Commission in Canberra on 5 March 2025, however has not yet received a response.
Further, the Applicant states he has attempted to get his friends in Kenya to obtain a Certificate of Good Conduct from the Directorate of Criminal Investigations in Kenya for him, however has been unsuccessful.[34]
[34] A1, p 3.
The Applicant states he has been a taxi driver in Australia for over 10 years. He contends that the conviction of fail to stop at a stop sign or line occurred approximately 10 years ago and ‘for a taxi driver to have driven over this long period with only a single fine he must be a good and responsible person.’[35]
[35] A1, p 3.
The Applicant admits that he committed assault on a female in New Zealand in 2006. He says he is very remorseful of that action and has not been violent to anyone since the offence.[36]
[36] A1, p 3.
The Applicant said that he is currently undergoing treatment for complications with his kidney and is waiting for a kidney transplant.
The Applicant stated that the Tribunal review is ‘putting a lot of stress on his health. He knows he does not have any criminal record in Kenya and wish there was an easier way to prove that’.[37]
CONSIDERATION
[37] A1, p 3.
Parties’ submissions
The Applicant essentially contended that it was beyond his control to obtain the necessary police clearance certificate and in any event, the Tribunal should still be satisfied that he is of good character.
The Respondent contended that there are options available to the Applicant such that efforts could still be made to attempt to obtain the certificate, the Applicant has not taken these steps and the certificate is necessary in order for the Tribunal to make the assessment of whether the Applicant is of good character.
The Respondent submitted that therefore, the Tribunal cannot be affirmatively satisfied that the Applicant does not have any criminal history in Kenya, or that he is of good character, in circumstances where the Applicant has not provided any evidence of his attempts to obtain a penal clearance or good conduct certificate, despite having been requested to do so.[38]
[38] R1 [47].
The Respondent also emphasised that by contrast, the Applicant had no issue providing evidence of his attempts to obtain a Sweden or New Zealand police certificate.[39]
[39] T7, pp 94 to 098.
Whether the Tribunal can be affirmatively satisfied that the Applicant is of good character.
The Applicant lived in Kenya from 1991 to 1998 and the total time spent in Kenya was therefore more than 90 days.
The Department requested that the Applicant provide overseas police certificates, including from Kenya, on 24 October 2023, 22 April 2024, and on 20 February 2025.[40]
[40] R3, pp 7-8.
The Applicant has not provided any Kenyan penal clearance or good conduct certificate, or any evidence of his attempts to obtain them.
The Applicant’s explanation for being unable to obtain a police clearance (that as he was in the refugee camp in Kenya, and had no documents, he was told that he could not get a police clearance),[41] is not supported by any evidence.
[41] R2, T6, pp 82 to 83; T15, p 130.
This explanation is inconsistent with:
(a)The Department’s explanation of its understanding that the Kenyan High Commission is able to issue a certificate of good conduct, and that those applicants who have resided in Kenya lawfully have been able to obtain a police clearance from the Kenyan Embassy in Australia.[42]
(b)The application form for a Kenyan certificate of good conduct, which indicated that those who lived in Kenya as refugees were able to apply for a certificate of good conduct (but need to provide the UNHCR mandate letter. The Applicant gave evidence at the hearing that he has UNHCR status[43]
[42] T2, p 15.
[43] See also T12, 116.
The Tribunal is therefore of the view that it was (and still is) within the Applicant’s ability to make an application for a Kenyan police certificate and he has chosen not to do so, his explanation for not having done so being unsatisfactory in the circumstances of the case.
Further, the Tribunal considers that the Applicant’s convictions for traffic offending and violent offending and his failure to answer bail[44] demonstrate that the Applicant has not shown a willingness to uphold the laws of Australia and a disregard for road safety laws. Further, there is no evidence that the Applicant has addressed the underlying issues relating to what the Tribunal regarding as very serious offending in the case of his assault against a female.
[44] See R2, T3, p 53 and R3, p 3.
CONCLUSION
Based on the above, the Tribunal cannot be affirmatively satisfied that the Applicant does not have any criminal history in Kenya, or that he is of good character, in circumstances where he has not provided:
(a)The relevant penal clearance or good conduct certificate;
(b)Any evidence of his attempts to do so;
(c)Any evidence that nothing further could be done to obtain it; and
(d)Any evidence that Kenyan authorities have advised that he is unable to obtain it,
despite this request having been made on several occasions and options remaining available to him to do so.
The Tribunal is not in a position to assess the Applicant’s character absent the existence of this clearance.[45]
[45] See Katambwe and Minister for Immigration & Border Protection [2016] AATA 989, cited in Terzis and Minister for Immigration and Multicultural Affairs (Citizenship), Re [2025] ARTA 230.
DECISION
The decision of a delegate of the Respondent dated 23 August 2024, to refuse to grant the Applicant’s application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth), is affirmed.
............[SGD].....................
Associate
Dated: 5 June 2025
Date of hearing: 7 May 2025 Applicant: Nino Sekyere-Boakye of Allworld Migration Services Respondent:
Ms Madisen Scott of the Australian Government Solicitor
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