Re Al Hashimi and Minister for Immigration and Citizenship
[2012] AATA 534
•19 July 2012
[2012] AATA 534
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0495
Re
SABAH AL HASHIMI
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Ms K Hogan, MemberDate 19 July 2012 Date of written reasons
15 August 2012 Place Perth The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that the applicant is a person "of good character" within the meaning, and for the purposes, of section 21(4)(f) of the Australian Citizenship Act 2007.
...............[sgd].................................
S D Hotop, Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – applicant’s application for Australian citizenship refused on character ground – applicant has criminal record – applicant committed offence in November 2000 and sentenced in 2003 to 30 months' imprisonment – applicant convicted of common assault in June 2005 and placed on conditional release order for six months with $500 bond and spent conviction ordered – applicant free of obligation to court in September 2005 – applicant has had no further convictions – applicant has had stable employment and family life – applicant has extensive supportive social network comprising reputable Australians – applicant regarded as of good standing and repute in local community – Tribunal satisfied that applicant has re-established good character – Tribunal satisfied that applicant now a person of good character – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth), s 21(4)(f)
CASES
Al-Hashimi v The Queen [2004] WASCA 61
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
SECONDARY MATERIALS
Australian Citizenship Instructions, Ch 10
REASONS FOR DECISION
Deputy President S D Hotop
Ms K Hogan, Member15 August 2012
Introduction
On 9 February 2102 Sabah Al Hashimi (“the applicant”) applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 10 January 2012, refusing to approve his application to become an Australian citizen by conferral on the ground that the delegate was not satisfied that he was, at that time, a person “of good character” as required by s 21(4)(f) of the Australian Citizenship Act 2007 (Cth).
On 19 July 2012 the Tribunal made a decision under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) in the following terms:
“ The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that the applicant is a person “of good character" within the meaning, and for the purposes, of section 21(4)(f) of the Australian Citizenship Act 2007.”
On that occasion the Tribunal, in accordance with s 43(2) of the AAT Act, gave reasons orally for that decision.
On 24 July 2012 the Tribunal received a written request from the respondent’s representative for a written statement of the Tribunal’s reasons for its abovementioned decision of 19 July 2012. A statement of the Tribunal’s reasons for that decision follows.
The Factual Background
The following background facts are found by the Tribunal on the basis of the documentary material before it.
The applicant was born in October 1949 in Baghdad, Iraq to ethnically Iranian parents of the Shi’ite religion.
After completing his school education the applicant undertook tertiary studies in archaeology at the University of Baghdad from 1968 to 1972. He completed one year of compulsory military service in 1973 and was then employed in the Iraqi Government’s Archaeology Department in Baghdad and subsequently in Mosul. He was conscripted into the army in 1974 and, after serving for one year, he resumed his employment in the Archaeology Department. He left that employment in 1978 as a result of pressure to join the Baath Party.
In 1980 the applicant and his family members were deported to Iran under the then policy of the Iraqi Government to deport ethnic Iranians. He remained in Iran and married there and he and his wife had three children, born in 1990, 1991 and 1992.
In 2000, following the Iran-Iraq war, the applicant left Iran in order to escape the persecution which people who were perceived to be ethnic Iraqis were then suffering, and he went to Malaysia where he was subsequently joined by his wife and children.
On 25 March 2001 the applicant, his wife and children arrived in Australia as “unauthorised boat arrivals” and were detained in the Port Hedland Immigration Reception and Processing Centre.
On 26 February 2002 the applicant’s wife and children were granted temporary protection visas and were released from immigration detention but the applicant remained in immigration detention.
On 26 March 2003 the applicant, after a trial by jury, was convicted in the Perth District Court of one count of the offence of taking part in the coming to Australia of a non-citizen, contrary to s 233(1)(a) of the Migration Act 1958 (Cth) (“Migration Act”).
On 1 April 2003 the applicant was sentenced, in respect of the abovementioned conviction, to 30 months’ imprisonment, and it was ordered that he be released after serving 15 months of that sentence upon entering into a recognisance in the sum of $5,000 for a period of 15 months.
The applicant appealed to the Court of Criminal Appeal against the abovementioned conviction but, on 2 April 2004, that appeal was dismissed: see Al-Hashimi v The Queen [2004] WASCA 61.
The applicant was released from prison on 15 June 2004 and he was subsequently returned to immigration detention.
On 16 June 2005 the applicant was convicted in the Perth Magistrates Court of common assault (committed in late 2004 while he was in immigration detention) and he was placed on a conditional release order for six months with a bond of $500, and a spent conviction order was made in respect of that conviction.
On 4 November 2005 the applicant was granted a temporary protection visa and he was subsequently granted a permanent resolution of status visa on 25 June 2009.
On 3 June 2010 the applicant applied to become an Australian citizen but that application was refused on character grounds on 14 December 2010.
On 16 August 2011 the applicant made another application to become an Australian citizen but that application was also refused on character grounds on 10 January 2012.
On 9 February 2012 the applicant applied to the Tribunal for review of the abovementioned decision of 10 January 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T21, pp 1–174) lodged by the respondent in accordance with s 37 of the AAT Act;
·the oral evidence of the applicant;
·the oral evidence of the following witnesses called by the applicant:
- the Hon Frederick Michael Chaney AO;
- Angela Margaret Chaney;
- Dr Danny Hans Thies;
- Gwenyth Alison Graham AM;
- Dr Peter John Graham AM;
- David John Lochore;
·a statutory declaration of each of the abovementioned witnesses called by the applicant (Exhibits A1–A5);
·a statutory declaration of Jean Marion Hiller OAM, dated 27 April 2012 (Exhibit A6);
·a statutory declaration of John Robert Dall, dated 20 April 2012 (Exhibit A7); and
·a statutory declaration of Robyn Mae Lochore, dated 4 July 2012 (Exhibit A8).
The Sentencing Remarks of Jenkins DCJ on 1 April 2003
In sentencing the applicant in the District Court of Western Australia on 1 April 2003 in respect of his conviction of the offence referred to in paragraph 11 above, Jenkins DCJ said:
“ …
Sabah Mohammed Hashem Al-Hashimy … You come before me today to be sentenced for one count of taking part in the coming to Australia of a non-citizen in contravention of the Migration Act. That offence is in fact the offence of taking part in the coming or bringing to Australia of a non-citizen in contravention of the Migration Act pursuant to section 233 subsection (1)(a) of the Migration Act 1958. The maximum penalty for the offence is 10 years’ imprisonment and/or a fine of $110,000.
You were convicted after trial by jury of this offence. You were acquitted of three other charges and I have not had regard to the facts of those charges or the similar fact evidence which the crown presented at trial for the purposes of sentencing you, except to the extent that some of the facts of those matters are common background facts to the facts of this offence. The material facts of this offence are that in mid-2000 you flew from Iran to Kuala Lumpur on a false passport, intending eventually to make your way to Australia. You decided to stay for some time in Kuala Lumpur. Your family joined you there a couple of months later.
You are known as Abu Haidar because you have a son called Haidar and you were known as Abu Haidar in Kuala Lumpur. Mr S…, the person named in the charge, is an Iraqian Kurd. He also wanted to leave, in his case Iraq, and for that purpose went first to Iran. There he dealt with two people smugglers, S… M… and A… I… After speaking to these people, he decided to go to Australia. He paid money to obtain a false passport to enable him to leave Iran. It was arranged that he would fly from Iran to Kuala Lumpur.
He was told that when he got to Malaysia, someone called Abu Haidar would pick him up from the airport and would organise everything for him. Mr S… arrived at Kuala Lumpur airport on 21 November 2000 and you were there. I am satisfied, as I am satisfied beyond reasonable doubt of all the facts which I will outline in relation to this matter, that you said to him at that time, ‘Are you the person come from S… M…?’ It appears to me to be only consistent with a view of the facts that you were aware that Mr S… or someone like him would be arriving at Kuala Lumpur airport and you had gone there to meet him.
You told Mr S… to go with you. You then took Mr S… to some villas at Seri Alam. There were others also staying there. The next day you told Mr S… that he would be going to Indonesia and that the way would be safe. You told him that he would have to pay you $US1000 and he did that. You told him that the trip would take 3 to 4 hours.
You told him that there was no way to go but by boat and you told him that no passport was required. You also told him that once he got to Indonesia a person called H… A… would meet him and send him to Australia. In assisting Mr S… to travel to Indonesia you were clearly aware that Australia was the final destination for Mr S… and the plan was for Mr S… to travel there without a visa to enter Indonesia or Australia. You also sold (sic) Mr S… that Australia was a very good place for refugees.
You arranged for a taxi to take Mr S… to an island where he got on a boat and sailed to Indonesia. Rather than 3 to 4 hours, he said in his evidence that the trip took approximately 12 hours and Mr S… said it was awful. When he arrived in Indonesia H... A… did meet him and organised to send him to Australia without a visa. He arrived by boat on 6 January 2001. These facts lead me to the conclusion that the assistance you gave to Mr S… was prearranged in the sense that you went to the airport apparently knowing that he was to arrive and the speed at which you then spoke to him about organising his travel to Indonesia leads me, as I have said, to the only conclusion that your assistance to him was prearranged.
You assisted him to travel from Kuala Lumpur to Indonesia by organising his travel and accommodation in circumstances where you must have been aware that he was a non-citizen intending to enter Australia illegally. You took money for doing so. After doing your part to assist him to do that, you then passed him on to another smuggler in Indonesia who then organised the rest of his travel. My assessment of this evidence is that your role in his travel between Kuala Lumpur and Indonesia was one of principal.
Your organised his trip for personal gain. There is no evidence that you were reporting to anyone else in Malaysia in respect to this offence. As I’ve said, I also have come to the view that it was prearranged or premeditated in the sense that you were at the airport to pick up Mr S… and take part then in bringing him to Australia. Those are the facts upon which I sentence you.
In terms of your personal circumstances, you are now 53 years of age, you are married and you have three children born in 1990, 1991 and 1992 respectively. You have siblings who live at various places across the globe. I have read all the reports and references that have been provided to me by Mr Moen and I have also read the document that you prepared in support of your protection visa which gives me and has provided me with valuable information about your background. In essence, up until approximately 20 years ago, and I say approximately, you lived in Iraq and at that time you were deported to Iran, apparently because the Iraqi government didn’t recognise you as an Iraqi citizen.
That was because of your supposed Iranian heritage and also because of your apparent support for an opposition political party. The circumstances of your deportation and indeed that of your now wife was horrific in the sense that you were taken to the border and told to walk across the border and if you looked back you would be shot. In Iran you did not receive the benefits and privileges of citizenship because Iran never accepted you as such, and of course neither were you wanted in your own country of Iraq.
After living in Iran and marrying and having your family, you decided, as I have said, to try and find a better life for you and your family by leaving Iran and travelling to Australia. I accept also that your living conditions in Iran, as you were not recognised there as a lawful inhabitant of that country, must also have been very difficult for you and your family. As I have said, you decided to leave Iran and when you left Iran you travelled to Malaysia and spent approximately 6 months in Malaysia. As I have said, your wife and three children joined you after a couple of months. The family then travelled to Indonesia and then you travelled by boat to Australia, arriving in Australia in March of 2001.
Since that time you have been detained at an immigration detention centre until I remanded you in custody last Friday. These personal circumstances caused the court to have a considerable sympathy for you and it would also seem to me that those personal circumstances warrant mitigating the penalty that you would otherwise receive for this offence. The fact is that Australia is now at war with Iraq and it is currently not a safe place for you to be, I suspect, in any event; but Australia is currently at war in order to enable people like yourself and your family to be able to return to that country and to live there peacefully in your country of birth and I hope that one day you will be able to do that.
As I have said, that consideration means that you should receive credit for your unfortunate history of being expelled from your country of birth. There are other matters in your credit; that is, because of your age and circumstances I believe that it is unlikely that you will reoffend, meaning that personal deterrence is not a matter of great moment in your sentencing. I also take into account that a sentence of imprisonment will no doubt have a deleterious effect on your family. They will continue to be without your care and protection for a further period of time.
The common law general principle is that a court should not have regard to impact on family, except in extreme cases. I have read the reports and references provided to me this morning and whilst, as I have said, there is no doubt that your continued absence from the family will have a harmful effect on them, I cannot classify your family situation in that regard as extreme. Nonetheless, section 16A of the Crimes Act requires me to have regard to the impact of a sentence on the offender’s family and I have had regard to it in this case as a factor mitigating sentence. I have also taken into account the time that you have spent in detention since your arrival in Australia.
In relation to this, I was told that you have spent 10 days actually in custody in relation to this offence prior to me remanding you in custody last Friday and I will backdate the sentence I intend to impose upon you to take into account those periods of time. Your counsel further suggested that I should backdate your sentence to take into account time spent in detention since you arrived in Australia. I do not believe that the law enables me to do that. You have not spent time in custody for this offence and for no other reason, which is what the law requires before I can backdate a sentence. It cannot even be said that you have spent time in custody in relation to the offences with which you were charged.
I acknowledge that your family were granted a protection visa in January of 2002. However, it does not seem to me that I can draw from that fact alone the inference that if you were not charged with these offences you also would have been granted one. However, the fact that you have been in custody for 2 years, in detention for 2 years, is a matter that I take into account generally in mitigation of sentence. Taking all these matters into account, they are clearly in your favour, that is, your personal circumstances, in relation to sentence. However, my view is that these matters in your favour are outweighed by the seriousness of the offence and the need therefore to impose a generally deterrent penalty on you.
The simple fact is that rather than just being the part of the tide of human misery that has made its way to Australia over the last few years, the fact is that you crossed the line and have traded in that human misery in relation to this offence and that is a matter which requires me, as I have said, to impose a generally deterrent sentence in relation to the offence. Also in your favour I should say, it’s a matter that I haven’t mentioned so far, is your previous good character. You do not have any prior convictions and therefore you also receive credit for being of prior good character.
In relation to the issue of general deterrence and the seriousness of the offence, general deterrence has been said by the appellate courts to be of primary importance in cases of this type. This is because of a number of factors which have been identified by the appeal courts in Australia when dealing with offences under section 233 of the Migration Act and also 232 of the Migration Act, which is a similar offence.
The appellate courts have referred to the prevalence of the offence and as I have said also to the offence under section 232 of the Migration Act. The comments and material presented to sentencing courts and appellate courts in matters of this nature indicate the offence has been prevalent and also the evidence that I have heard in this case indicates that there are many people waiting in places such as Kuala Lumpur for people smugglers to arrange their illegal entry into Australia.
Whilst you have only been convicted of one such offence and I am only sentencing you for one offence, it is clear that the offence is prevalent and needs to be deterred. The message will hopefully get back to other people who are tempted to earn money in this way, that it is not worth the risk of getting caught.
In this respect I acknowledge that since some of those comments were made by the appellate courts, the numbers of illegal immigrants to this country has decreased. However, the inference I draw from this is that the deterrent penalties imposed by the courts together with the government steps to prevent illegal immigration to this country have in fact acted together as a deterrent. Consequently, it is necessary for the courts to continue to impose deterrent penalties for offences of this type.
Other factors which appellate courts have referred to is the fact that the offences of this type violate Australia’s sovereignty – the difficulty in and cost of detecting these types of offences, the adverse impact the arrival of illegal immigrants has on the chances of immigration of those who apply legally and wait patiently to be granted the right to enter Australia, the risk of disease entering Australia and the risk that the assistance that you provided to Mr S… – that is, the risk that that trip posed to the welfare and safety of Mr S… This last aspect is one that seems to me to be important.
The fact is that the life of Mr S… as put at risk by you being willing to arrange transport for him on what was essentially a secret trip so that emergency authorities would be unaware if the boat got into difficulties. That is the boat upon which he travelled from Kuala Lumpur to Indonesia. It’s also true that the welfare of Mr S… is something that was jeopardised upon his arrival in Australia as upon his arrival he too was detained and suffered from the same isolation, uncertainty and alienation that you are experiencing. It is incumbent upon the courts to impose penalties that seek to deter other like-minded people from taking part in the coming of illegal immigrants to Australia. I also accept that I must have regard to the seriousness of the offence as indicated by the maximum penalty that parliament has laid down.
I also take into account that you were prepared to organise this travel apparently because of the financial benefit that it was going to accrue to you. I am satisfied that you were not participating in the offence because of any altruistic or humanitarian motive. It is also relevant for me to note that you do not receive any credit for showing remorse or contrition as you continued, up until your evidence on oath, to deny the offence. I do give you some credit for your willingness to make admissions at the commencement of the trial to facilitate the efficient conduct of the trial and I also give you some credit for cooperating in the conducting of the record of interview with the investigating authorities.
Of course, this has to be balanced against the fact that, by the jury’s verdict, it is not accepted that you told the truth in that record of interview. …
…
Mr Moen has urged upon me to impose a sentence that would not require you to serve further time in custody. I have given careful consideration to such a sentence, however in my view it could not be said that such a sentence would be a generally deterrent sentence in all the circumstances, taking into account the seriousness of the offence. I have, however, taken into account all the matters that I have referred to in mitigation of the sentence and that has meant that the sentence that I will impose is significantly less than what it would have been for someone without those matters going to mitigation. Please stand, Mr Al-Hashimy.
Sabah Mohammed Hashem Al-Hashimy, in relation to count 2 on the indictment I sentence you to 2 and a half years’ imprisonment. I order that you be released after serving 15 months of that sentence upon entering into a recognisance in the sum of $5000 for a period of 15 months. I backdate the sentence to commence on 16 March 2003. …
…” (T15, pp 116–124)
The Applicant’s Evidence
The applicant confirmed that he had made a statutory declaration on 27 July 2011 in support of his application to become an Australian citizen, and that he adhered to the contents of that statutory declaration.
That statutory declaration states as follows:
“ …
1.I submit this statement in support of my application for Australian citizenship.
2.I understand that applicants for Australian citizenship must demonstrate that they are of good character. I provide this statement specifically as evidence of my good character.
My background
3.I was born in Baghdad, Iraq, on … October 1949. I grew up in Baghdad where I completed my school education, and then tertiary studies in archaeology at the Baghdad University (from 1968-1972). After completing one year of compulsory national service in 1973, I started to work at the Archaeology Department in Baghdad and then Mosul. I was forced to leave this employment in 1974, when I was conscripted into the army to serve as a guard for military bases in Northern Iraq during the Kurdish revolution. After serving in the army for a year, I again returned to my employment in the Archaeology Department, where I worked until 1978. In 1978, I was again forced to leave my employment because I would not give in to pressure to join the Bath (sic) party. After this, I worked in my father’s bakery.
4.My parents, Mohammed Al Hashimi and Makia Ali, were ethnically Iranian. As a result of our ethnicity, my family suffered severe discrimination in Iraq. We were not regarded as Iraqi citizens by other people living in Iraq, and I never felt like an Iraqi citizen. Our situation became worse when Saddam Hussein came to power, as he encouraged even more aggressive discrimination against people who were not Arab.
5.In 1980, my family was expelled from Iraq by the army and ‘special forces’. We were first imprisoned and then taken to the Iraq – Iran border, where we told (sic) to walk across the border into Iran and not look back. I considered at this time that I had lost my Iraqi citizenship.
6.At first my family and I managed to live reasonably well in Iran. I met my wife Jinan in Iran, and we had our three children there. Our first son Haidir was born in 1990. Our daughter Alyaa was born in 1991 and our youngest son Hassan was born in 1992.
Leaving Iran
7.Our situation became worse after the Iraq – Iran war. After the war, many Iranians started to support the idea of transporting Iraqis back to Iraq. Many Iraqis were in fact taken to the southern border of Iraq by Iranian forces, where they were shot by Iraqi forces.
8.I was now in a situation where I could not go back to Iraq because I suffered persecution there as I was regarded as Iranian, but I could not go on living in Iran because I was regarded there as Iraqi. To escape this situation, my family and I decided that we would try to migrate to a Western country. We decided that I would go first and then my family would follow.
9.I paid a smuggler to help me to leave Iran for a Western country. I did not specifically intend to go to Australia – I just had to leave Iran for a safe country. I was given a false passport and, in June 2000, I was flown to Malaysia, along with many other people. I stayed in Malaysia from June 2000 until December 2000, and my wife and children eventually joined me there. While we were living in Malaysia, I helped some of the other refugees with things like medical visits, because I could speak some English while most of the other refugees could not.
10.The original smuggler let us down by not organising our travel onwards, so another smuggler arranged for us to go by boat to Indonesia. I was no longer able to help other refugees when we got to Indonesia, because I did not speak the local language, and the local people could not communicate in English.
11.On first arriving in Indonesia, we stayed for several days in Jakarta, and were then taken to Java, where we stayed for a few days. We were then put on a ferry and taken to Sumatra. In Sumatra we were put on a boat and sent to Christmas Island. The boat was very small, only about fifteen metres long, and there were about two hundred people aboard. It was very unsafe but we were desperate at this stage so took the trip. We did not really have any alternative but to take the trip.
Arriving in Australia
12.I arrived at Christmas Island on 23 May 2001. I was processed by the Australian authorities on Christmas Island and made an application for a protection visa. I was then taken to the Port Hedland Immigration Detention Centre. My temporary protection visa application was not granted until several years after I applied. My wife and children’s applications were granted about eleven months after they applied, and they were released from detention at that time.
My conviction
13.While at the Port Hedland Immigration Detention Centre, I was interviewed by Australian Federal Police and then charged with five counts of ‘taking part in the coming to Australia of a non-citizen under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of the Migration Act 1958’.
14.I never made any admissions to these offences and I pleaded not guilty. After a trial, I was acquitted of four (sic) counts and convicted of one count.
15.I was convicted on the basis of evidence given by another refugee, S… Q… S…. He claimed that a man identified as ‘Abu Haidir’ had met him on arrival at Kuala Lumpur airport, and accepted $1000.00 as payment for arranging further travel to Indonesia, on the way to Australia. He claimed that I was that man.
16.In Malaysia, it was common for persons to be known by the name of their oldest son. As my oldest son is Haidir, I was referred to (sic) Abu Haidir, meaning “parent of Haidir”. Because Haidir is quite a common name in Iraq and also in Iran, there were many men among the refugees who were known as Abu Haidir.
17.I was not the person who met Mr S…, and I did not ever arrange travel or accept any money for assistance of any kind, to him or any of the other refugees.
18.The identification of me as the person who had met Mr S… at the airport was made by Mr S… in court as I stood in the dock. It was a wrong identification. My lawyer questioned the validity of the identification at trial and again on appeal, but I was convicted nonetheless. I did not recognise Mr S… when I saw him in court, although among many refugees it is possible that we may have seen each other at some stage during the journey to Australia.
19.None of the other refugees who travelled with me or who were with me in Malaysia or Indonesia said that I had done anything wrong.
20.After my conviction and unsuccessful appeal, I was sentenced to a term of thirty months imprisonment. I was given this sentence having regard to my character and the circumstances of the offending. I annex and mark with the letter ‘A’ a copy of the court transcript of my sentencing.
21.I was imprisoned in Acacia Prison and released on parole after fifteen months in prison. I remained on parole for some time after my release. I never had any problems with my parole.
22.After I was released from Acacia Prison, I was held in immigration detention at Perth Domestic Airport for some time. This was because I was still waiting for my visa application to be decided. One day, I was walking in the detention centre between two guards. One guard touched me on the shoulder. The guard was trying to move me along. I said to the guard something like, ‘Don’t touch me like that’ and made a shrugging motion with my shoulder to get him to move his hand. As a result of that incident I was charged with common assault. I pleaded guilty and was given a conditional release order of six months and a spent conviction. I had no difficulty complying with the conditional release order.
23.I have not had any further offences.
My current life in Australia
24.After my release from immigration detention at Perth Domestic Airport, I joined my family who were by then living in Perth. I started to work full-time, first as a courier driver and then as a taxi driver. I still work as a taxi driver. I work twelve hour shifts five days each week. My wife also works, as a lab technician at King Edward Hospital.
25.My wife and I worked hard to raise our children. We bought a house in Perth for them to live in and we paid for their education until they were ready to start working. They are all working now. My oldest son works as a taxi driver, my daughter works as a carpet salesperson and my youngest son works at the post office. My sons are not married yet but my daughter is already married.
26.I am regarded as a person of good character in my community. I annex and mark with the letter ‘B’ copies of references about my character.
27.My family and I regard Australia as our permanent home. My children love Australia and are very happy with our situation here. This country has become our home and for this reason we wish to become citizens here. My wife and my children have already become citizens, and I would like to become a citizen as well.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.” (T14, pp 109–111)
The applicant confirmed that he had never been convicted of any offence prior to his abovementioned conviction on 26 March 2003 of the “people smuggling” offence under s 233(1)(a) of the Migration Act. He maintained that he was a person of good character at the time of the circumstances (November 2000) which resulted in that conviction and that his character had not changed since that time. He added that he has always been a person of good character.
The Evidence of the Witnesses Called by the Applicant
The Hon Frederick Michael Chaney AO
Mr Chaney confirmed that he and his wife, Angela Margaret Chaney, had made a statutory declaration on 30 May 2012 stating that the contents of a reference which they had written regarding the applicant are true and correct to their knowledge and truly represent their opinion of the applicant. That reference, dated 30 May 2012, states as follows:
“ …
We have known Sabah since 2002 when we met him and his family through Angela’s work with CARAD assisting refugees after detention. We saw his family frequently after their release from detention and visited Sabah when it was was (sic) possible during the much longer period of Sabah’s detention so we are well aware of the struggles and difficulties he and his family have endured in their quest for asylum in this country. We have remained in contact during the happier and easier years since he was released from detention and obtained permanent residency.
Sabah is a serious person who has gone through many traumas and immense difficulties with courage and fortitude culminating in his achieving permanent residency and engaging as part of the Australian community as a worker, husband and father, with a wide group of friends among the immigrant and non-immigrant community. He has settled admirably into this country and is a hard working and productive member of society.
We believe it is important to take into account that he has been accepted as a genuine refugee and that the troubles that he has experienced are directly related to his flight from persecution and his desire to bring his family to a place of safety and peace.
We have no doubt that Sabah will continue to be a good contributor to Australia and that he would be a good and conscientious citizen. His wife and children are all now Australian citizens and it would be entirely appropriate for him to join them in that status. Indeed it is an anomaly that he, as head of the family unit, is excluded from the citizenship the rest of the family enjoys and values.” (Exhibit A1)
Mr Chaney acknowledged that, when he wrote the abovementioned reference, he was not aware that it had been found that the applicant’s role in the commission of the relevant “people-smuggling” offence was that of a principal, that it was pre-arranged or premeditated, that he had acted for financial gain, and that, by so acting, he had contributed to putting another person’s life at risk.
Mr Chaney was referred to the sentencing remarks of Jenkins DCJ on 1 April 2003 (set out in paragraph 21 above). He said, having read those remarks, that his opinion of the applicant’s character had not changed and that he still stands by the abovementioned reference. He added that the fact that the applicant continues to deny that he committed the relevant offence likewise does not change his view as to the applicant’s character. He added that he “could not vouch more highly” for the applicant’s character.
Angela Margaret Chaney
Mrs Chaney confirmed that she and her husband, Frederick Michael Chaney, had made the statutory declaration and written the reference referred to in paragraph 25 above.
Mrs Chaney said that, although she is aware that the applicant was convicted of a people-smuggling offence, she is “not clear” on the circumstances of that offence. She said that the applicant has never talked to her about it and that she has never asked him about it – in short, they have never discussed it. When it was put to Mrs Chaney that it had been found that the applicant had acted as a principal in the commission of that offence, that it was prearranged or premeditated, and that he had acted for financial gain and not because of any “altruistic or humanitarian motive”, she responded that those considerations did not affect her view of the applicant’s character. She described the applicant as a very calm and gentle man who is devoted to his wife and family and she added that she is “proud to know him as a friend”.
Dr Danny Hans Thies
Dr Thies, Veterinary Surgeon, confirmed that he had made a statutory declaration on 13 April 2012 regarding the applicant’s character. He said that he had known the applicant for almost eight years.
Dr Thies’ statutory declaration states:
“ …
2.I have every admiration for Sabah who has against difficult odds built a new life in Australia for his family and himself. During this time, Sabah has proved to be a hard working and considerate community member. Sabah is polite, kind, generous and always helpful.
3.Sabah together with his wife Jinan has supported their three children through secondary education and beyond and all five family members have found employment in Perth. Sabah has actively improved his English language skills and now has an effective command of English to communicate and participate broadly in the community. Sabah is a quiet but energetic and enthusiastic person and I believe him to be an excellent role model for others.
4.It has been an honour to have Sabah become a friend of our family.
5.I have not the slightest hesitation in supporting Sabah’s application for Australian Citizenship.” (Exhibit A2)
Dr Thies said that he is aware that the applicant has a criminal conviction but he has never discussed it with him and is not aware of the details. He described the applicant as a very stable, friendly, genuine, hard-working person and “very much a family man”. He added that he had always found the applicant to be a “very gentle, caring type of person”, and that he is “bright, intelligent” and “appears to have a high set of morals”. He said that, notwithstanding that the applicant had been convicted of an offence which he now understands to concern people smuggling, he is “quite convinced about his character”.
Gwenyth Alison Graham AM
Mrs Graham confirmed that she had made a statutory declaration on 19 April 2012 regarding the applicant, the contents of which are as follows:
“ …
I first knew of Sabah Al Hashimi when his wife Jinan Shakarchi with her children Haidar, Alia’a and Hassan came from the Port Hedland Detention Centre and stayed in the flat attached to our house in February 2002. Some months later Sabah was shifted to the Perth Detention Centre and I visited him there from time to time. I attended his trial and visited him in Hakea and Acacia prisons. Regarding his trial, I was disturbed that the prosecution and Judge at some stage referred to him as an illegal immigrant rather than as an asylum seeker. Whatever his fault, it was in the context of helping his asylum seeker family in great distress.
He remarked to me that while the detention centre experience was very destructive, in the prison they helped to improve him. He learnt number (sic) of new skills there, progressed in his English, and began a distance education course in Archaeology with an eastern states university (archaeology having been his profession in Iraq), and had a number of Australian visitors sharing with him their way of life and values.
His return to the Perth Detention Centre was so destructive that he became suicidal, and he was transferred to the Bentley Hospital Psychiatric Unit, where my husband and I visited him. On January 25th 2005 he was released into home detention in our flat where his family had already been living for three years. (We had to buy a caravan to house the boys).
Peter my husband and I were his major designated guards from January 25th 2005 until October 2005. He had about eight other designated guards registered with Canberra, and this gave him the opportunity to mix with more Australians and learn the Australian ways, from gardening to auctions, bike riding to University Archaeology lectures, to church celebrations and fellowship groups (while keeping his Moslem beliefs), ESL classes, and many BBQs.
Once he was free to move, he and his family first rented a home in Subiaco and he soon became a courier, while his wife, who through these tough years had learnt English at TAFE and also trained as a Lab Technician, now found a permanent job in the KEMH Laboratory.
The family then bought a home in Alexander Heights, and Sabah became a taxi driver, owning his own taxi. It has been an extremely difficult road for all of them, but Sabah is now a settled, hardworking, law-abiding Australian. In 2009 when he celebrated his 60th birthday with about 60 guests, the majority were Australians who would call him friend. I have no hesitation in recommending that he be accepted for Australian citizenship.
…” (Exhibit A3)
Mrs Graham said that she is aware that the applicant has been convicted of an offence involving helping a non-citizen to enter Australia illegally, but that she has never discussed that matter with him. She indicated, however, that she had attended the applicant’s trial and said that she had found certain aspects of the trial “confusing”.
Mrs Graham described the applicant as intelligent, educated, quiet with a gracious manner, appreciative of help given to him and very willing to help others, honest, hard-working, clean-living, and wanting the best for his family. She added that he “would make a good citizen”.
Dr Peter John Graham AM
Dr Graham, Retired Ophthalmologist, confirmed that he had made a statutory declaration on 19 April 2012 regarding the applicant, the contents of which are as follows:
“ …
I first knew of Sabah Al Hashimi when his wife and children came from Port Hedland Detention Centre in February 2002 and stayed in a flat attached to our home, and became part of the family.
My wife visited him when he was transferred to Perth Detention Centre, and also in Acacia Jail, and reported that while the experience in the Detention Centre was destructive, he found that that (sic) at the jail they improved him and he was grateful to them.
Later he was suicidal in the Detention Centre and was sent to the Psychiatric Unit in the Bentley Hospital where I visited him. On the 25th January 2005 he was placed in home detention in our flat and my wife Gwenyth and I were nominated as chief ‘designated guards’ for nearly a year. This gave us the opportunity to know him well, and for him and his family to become our friends.
I have had frequent contact with him since the family set up their own home in 2006 in Subiaco, later buying a house in Alexander Heights. He is working as a taxi-driver. He has shown dignity, initiative, dedication to his family, is cultured, speaks good English and has a good work ethic. I have no hesitation in recommending him for Australian Citizenship.
…” (Exhibit A4)
Dr Graham said that he is aware that the applicant has been convicted of “being a people smuggler” but that he has not discussed that matter with him. He indicated, however, that he had attended the applicant’s trial and that he had difficulty understanding the jury’s verdict. He said that the applicant’s conviction does not affect his view that the applicant’s character is good.
David John Lochore
Mr Lochore, Retired Chemical Engineer, confirmed that he had made a statutory declaration on 26 April 2012 regarding the applicant. That statutory declaration states:
“ …
1.I have known Sabah Al-Hashimi … since 2003, when I used to drive his family to visit him in Acacia Prison.
2.Subsequently my wife and I visited him fortnightly in Perth Immigration Detention Centre at Perth Airport.
3.I am aware that Sabah was convicted of an offence of assisting an asylum-seeker to travel to Australia. Sabah maintains he is innocent of this offence, there having been a mistake in identification. I believe Sabah in this matter.
4.My wife and I have shared many friendly occasions with Sabah and his wife Jinan, including a stay on Rottnest Island, a New Year stay at Peppermint Grove Beach (near Capel), and numerous picnics and meals in each others homes, several times each year. We attended the civil ceremony of their marriages (their previous marriage being an Islamic ceremony in Iran that was not legally recognised in Australia).
5.Sabah came to Australia with only basic English, and he studied hard to achieve the level needed to earn a living. Even now he continues with efforts to improve his command of colloquial English.
6.Sabah’s wife and children are Australian citizens, and are all either in employment or studying.
7.Sabah originally studied archaeology in Iraq, and prior to the Iraq-Iran war he worked for the Baghdad Museum. He accompanied several international teams in explorations at various ancient sites in Iraq.
8.Sabah was deported to Iran by the Saddam regime on racist grounds, because one of his ancestors came from Iran. In Iran he was ostracised for being ‘Iraqi’, and was eventually threatened with deportation back to Iraq.
9.Sabah used the opportunities provided in Acacia Prison to teach himself the craft of sculpture, and his interest in history was demonstrated in his sculptures – two examples I have seen and admired were ‘The Gate of Nineveh’ and ‘The Laws of Hammurabi’.
10.Last year Sabah and his family travelled back to Iran, and they toured several historical sites in Iran. He gave me a gift of a book on the ruins of the ancient Persian city of Persepolis.
11.Several years ago I and some others loaned Sabah money to buy a van to commence work as a courier driver. Sabah repaid all such loans in full, as and when requested.
12.Sabah is now a self-employed taxi-driver in Perth.
13.I used to assist Sabah in some financial matters, such as GST returns, and keeping records of financial transactions. He has now become independent of me in such matters, employing an accountant as and when required.
14.I have found Sabah to be fully trustworthy in money matters.
15.Sabah and his wife are paying off a mortgage on their home in Alexander Heights.
16.In the years I have known him I have found Sabah to be of consistently good character. He is honest and always polite. He is typically kind and willing to help others. He is a devoted husband and father. He does not smoke or drink alcohol or take drugs.
...” (Exhibit A5)
Mr Lochore said that he is aware of the applicant’s conviction of a “people-smuggling” offence and that he had read a transcript of the trial judge’s “summing up” which the applicant had provided to him. He referred, in particular, to the finding that the applicant had been paid $US1,000 for his participation in the offence. He said that he had asked the applicant and his wife whether this was true and that they had denied it. He said that he believed the applicant’s denial and that he regarded the applicant’s conviction as a case of “mistaken identity”. He added that, from his first-hand experience in assisting the applicant in financial matters, the applicant has always been very attentive to complying with the law in relation to taxation and business matters, and that the taking of money in the kinds of circumstances referred to in the offence “is not something that is in [the applicant’s] character in the time [he has]known him”.
Additional Material Regarding the Applicant’s Character
The following statutory declarations regarding the applicant’s character were also tendered in evidence by the applicant:
·statutory declaration of Jean Marion Hiller OAM, dated 27 April 2012 (Exhibit A6);
·statutory declaration of John Robert Dall, Retired Medical Scientist and ESL Teacher, dated 20 April 2102 (Exhibit A7); and
·statutory declaration of Robyn Mae Lochore, Retired Social Worker, dated 4 July 2012 (Exhibit A8).
The respondent did not require either Mr Dall or Mrs Lochore for cross-examination, and they did not give oral evidence. The respondent did, however, require Mrs Hiller for cross-examination, but she was not available. The respondent, nevertheless, did not object to her statutory declaration being tendered in evidence.
A character reference regarding the applicant from each of the following additional persons is included in the T Documents:
·Josephine Heymans (23 October 2010) (T16, p 126);
·Paul Allison (26 October 2010) (T16, p 131);
·Kaye Thies (27 October 2010) (T16, pp 132, 133);
·Dene Anderson (29 October 2010) (T16, p 144);
·David Colvin (31 October, 1 November 2010) (T16, pp 145, 146);
·Ilene Aveling (3 November, 2010, unsigned) (T16, p 147); and
·Dave Browne-Cooper (undated) (T16, p 148).
Relevant Legislation
Australian Citizenship Act 2007 (Cth)
The Australian Citizenship Act 2007 (Cth) (“the Act”) relevantly provides:
“21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
…
Person aged 60 or over or has hearing, speech or sight impairment
(4)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is:
(i)aged 60 or over at the time the person made the application; or
(ii)aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; and
(b) is a permanent resident:
(i)at the time the person made the application; and
(ii)at the time of the Minister's decision on the application; and
(c) understands the nature of the application at the time the person made the application; and
(d) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f) is of good character at the time of the Minister's decision on the application.
…
24Minister's decision
(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.
Note: The Minister may cancel an approval: see section 25.
(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).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
…
Offences
(6)The Minister must not approve the person becoming an Australian citizen at a time:
(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
(b) when the person is confined to a prison in Australia; or
(c) during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or
(d) if the person is a serious repeat offender in relation to a serious prison sentence — during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or
(e) if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence — during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or
(f) if the person:
(i)has been released by a court from serving the whole or a part of a sentence of imprisonment; and
(ii)has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or
(g) if, in respect of proceedings for an offence against an Australian law in relation to the person:
(i)a court does not impose a sentence of imprisonment on the person; and
(ii)the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or
…”
Relevant Policy
Australian Citizenship Instructions
The Australian Citizenship Instructions, published by the Department of Immigration and Citizenship, relevantly state (in Chapter 10):
“ The term ‘good character’ is not defined in the Act. Decision makers must therefore be guided by the ordinary use of the words in making assessments.
…
An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. However, general conduct and associations may also be relevant. If there is evidence to suggest that an applicant may not be of good character, the applicant should be given the opportunity to respond to this evidence. An applicant's behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.
…
Assessing good character involves:
• establishing whether or not an applicant has a criminal record, and the nature of that record, if any
• establishing whether or not an applicant may have been involved in crimes against humanity, without having criminal convictions, through having undertaken military or similar service or having held a position of authority in a country that has experienced conflict and serious human rights abuses
• establishing whether or not there is other information relevant to the issue of character
• according procedural fairness to the applicant where there is credible, relevant, and adverse information which the decision maker intends to take into account and
• considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicant's behaviour.
A list of factors to which consideration should be given is at Attachment A – Character summary. They include:
• the seriousness of any offences against ordinary community standards:
• crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment
• alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge. Decision makers may wish to obtain the comments made by the Judge in sentencing the applicant
• association with persons or organisations alleged to have committed crimes against humanity
• offences committed prior to the grant of a permanent visa that were concealed from the visa decision maker should not normally be given less weight. The fact of deliberate concealment may be an indicator of a continuing lack of good character.
• whether or not an offence(s) committed overseas would be regarded as an offence in Australia. For example, a person charged with political offences in one country may not be considered guilty of a crime in Australia.
• whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond. Section 24(6) provides that an application for citizenship by conferral must not be approved during such periods.
• whether an offence was a one-off occurrence that can now be considered ‘out of character’, or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see below).
• whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.
• the applicants age at the time the offence(s) were committed. If the applicant committed the offence(s) at a young age, they may be given less weight depending on the nature of the crime and the applicant's subsequent record. It may be possible that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.
A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person's behaviour immediately prior to the making of a decision.
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.
The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, their status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights.
The onus is on the applicant to demonstrate that there has been a change in their character since last offending.
The applicant's present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship.
Decision makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight.” (T3, pp 24 – 26)
Consideration
The meaning of “good character”
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Full Court of the Federal Court of Australia considered the meaning of the phrase “good character” in the Migration Act 1958 and the Migration Regulations 1994. Davies J (with whose reasons R D Nicholson J agreed) said (at 425):
“ … the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary, meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal 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 upon 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.”
Lee J said (at 431–432):
“ Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion … 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. … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.” (citations of authorities omitted).
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said (at 197):
“ The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.”
Is the applicant presently a person “of good character”?
The applicant submits, and the respondent does not dispute, that the applicant was a person of good character up until the time of the events in late November 2000 which resulted in his being convicted of the relevant offence under s 233(1)(a) of the Migration Act on 26 March 2003. There is no evidence before the Tribunal that the applicant had been convicted of, or charged with, any offence before that time, and, in the absence of any evidence indicating that the applicant was not a person of good character up until that time, the Tribunal accepts that he was a person of good character up until that time.
The respondent submits that, by reason of his participation in the commission of the abovementioned offence in late November 2000, the applicant then ceased to be a person of good character and that he has not subsequently reformed and again become a person of good character and is presently not a person of good character, as evidenced by:
·his continued denial of guilt in respect of the relevant offence, notwithstanding that he was found guilty by a jury, convicted, and sentenced; and
·his continued failure to express contrition and remorse, and to accept any responsibility, for the relevant offence, thereby indicating that he has not since been rehabilitated and has not since reformed.
The respondent also submits that the applicant has continued to lie about his involvement in the relevant offence – including intentionally making a false declaration that he was not involved (see paras 17–18 of his statutory declaration of 27 July 2011 set out in paragraph 23 above) and adhering to the contents of that statutory declaration in his sworn evidence before the Tribunal – and that this is indicative of his continued lack of “enduring moral qualities” and absence of good character.
The applicant was found guilty, beyond reasonable doubt, by a jury of an offence under s 233(1)(a) of the Migration Act and was convicted of that offence on 26 March 2003 and was sentenced, on 1 April 2003, to 30 months’ imprisonment, with an order that he be released after serving 15 months of that sentence upon entering into a recognisance in the sum of $5,000 for a period of 15 months. In the course of her sentencing remarks, Jenkins DCJ expressed her own satisfaction, beyond reasonable doubt, of all the facts upon which the applicant’s conviction was based. An appeal by the applicant to the Court of Criminal Appeal against that conviction was dismissed.
The Tribunal, of course, does not question the correctness of the abovementioned conviction, and it accepts the sentencing judge’s remarks (set out in paragraph 21 above), and the sentence which she imposed upon the applicant, as indicative of the seriousness with which she regarded the offence, the subject of that conviction.
As to the impact of the commission of that serious offence on the applicant’s pre-existing good character, the Tribunal accepts the respondent’s submission that, by reason of his participation in the commission of that offence in late November 2000, the applicant then ceased to be a person of good character.
The question which, however, arises for present purposes is whether the applicant has since – specifically, since September 2005, being the time when (it is common ground) he became “free of obligation to the court” – reformed such that the Tribunal may be satisfied that he has regained his good character and is now a person “of good character” within the meaning, and for the purposes, of s 21(4)(f) of the Act.
It is common ground that the only offence of which the applicant has been convicted since his conviction of the abovementioned offence under s 233(1)(a) of the Migration Act is the offence of common assault committed by him in late 2004 when he was in immigration detention (having been returned there after his release from prison in June 2004). As previously noted (see paragraph 15 above), that conviction occurred on 16 June 2005 and a spent conviction order was then made. The Tribunal accepts the applicant’s evidence regarding the circumstances of that offence, as stated in para 22 of his statutory declaration of 27 July 2011 (set out in paragraph 23 above), and it accepts his submission that that offence, committed in the circumstances as described by him, was not a serious offence and should not be regarded as reflecting on his character. The Tribunal understands that the respondent does not contend to the contrary. In any event, the Tribunal notes that that offence and conviction occurred prior to September 2005 – that is, prior to the commencement of the period that the Tribunal is required to consider for the purpose of determining whether it is satisfied that the applicant has regained his good character and is now a person of good character (see paragraph 50 above).
It is common ground that, in the period from September 2005 to date, the applicant has not been charged with, or convicted of, any offence, and the Tribunal is satisfied, on the basis of the applicant’s evidence, that he has not committed any offence in that period. The Tribunal, furthermore, accepts that the applicant has not, in that period, engaged in any conduct which could reasonably be regarded as reflecting adversely on his character.
On the other hand, there is substantial evidence before the Tribunal – which the respondent does not dispute and which the Tribunal accepts – relating to circumstances in the period from September 2005 to date which reflect favourably on the applicant’s character, namely:
·he has been in stable, gainful employment throughout that period, first as a courier driver, and subsequently (from February 2007) as a self-employed taxi driver on the Swan Taxis network (see T16, p 131);
·he has had a stable family life throughout that period, he and his wife having raised their three children (now aged 22, 21 and 20 years) and having purchased a family home in suburban Perth;
·he has developed an extensive and very supportive social network in the local community comprising reputable Australians and including several distinguished recipients of Australian honours awards (as evidenced by the numerous character references which are in evidence).
In short, the Tribunal accepts the applicant’s submission that “since his release into the Australian community, he has been a peaceful, productive and law-abiding member of that community, who has a consistent history of gainful employment and who has maintained good family and community relationships”.
That the applicant has a good reputation in the local community is clearly evidenced by the abovementioned numerous character references which are in evidence, the authors of some of which attended the hearing and gave oral evidence in support of the applicant in the knowledge that they would be cross-examined on that evidence. There is no evidence before the Tribunal which indicates that the applicant has other than a good reputation in the community.
Although, as the respondent submitted, certain of the abovementioned character witnesses took issue with the applicant’s conviction of the “people-smuggling” offence and appeared not to accept that he was guilty of that offence, the Tribunal regards their evidence as conscientious, sincere and given in good faith and based on their first-hand experience of the applicant in the substantial period of time in which they have come to know him. It might also be said (although the respondent did not expressly submit as much) that those witnesses appeared to be giving their evidence as advocates for the applicant rather than objectively. That they should do so is, however, hardly surprising given that they had previously provided character references in support of the applicant’s application for Australian citizenship. The Tribunal, nevertheless, has regard to these considerations in assessing the appropriate weight to be given to the evidence of those witnesses.
Although there is substantial evidence before the Tribunal regarding the applicant’s good standing and reputation in the local community, the critical question for the Tribunal’s consideration is whether the applicant is a person with “enduring moral qualities” which indicate that he is truly a person of good character.
Having regard to the applicant’s undisputed good character up until the circumstances of the relevant offence in late November 2000 and to his unblemished record of good conduct (apart from the minor common assault committed by him in late 2004) since then, and having regard to the circumstances in which the first-mentioned offence was committed, namely, circumstances in which the applicant, having fled Iran, was in Malaysia with his family trying to arrange passage to Indonesia and then to Australia with a view to seeking asylum in Australia, the Tribunal regards that offence as (in the words of the Australian Citizenship Instructions) “a one-off occurrence that can now be considered ‘out of character’.”
The Tribunal notes the respondent’s submission that the applicant, having ceased to be a person of good character by reason of his commission of the relevant offence, has, notwithstanding his conviction of that offence, continued to deny guilt and to fail to accept any responsibility, or to express contrition and remorse, for that offence and has thereby demonstrated that he has not reformed and been rehabilitated and regained his good character. The Tribunal, however, does not regard the applicant’s continued denial of guilt and lack of acceptance of responsibility and expression of contrition and remorse as necessarily incompatible with his having reformed and been rehabilitated and his having regained or re-established his good character. In the Tribunal’s opinion, the applicant’s evidence regarding his trial and conviction, as set out in paras 13–19 of his statutory declaration of 27 July 2011 (see paragraph 23 above), was given by him sincerely and in good faith, although, in the light of his conviction, sentencing and unsuccessful appeal, the Tribunal is unable to accept that he was wrongly convicted. Likewise, the Tribunal regards the applicant’s continued denial of guilt, notwithstanding his conviction and unsuccessful appeal, as genuine. Furthermore, the applicant’s genuine denial of guilt and his sincere belief that he was wrongly convicted of the relevant offence, in the Tribunal’s opinion, satisfactorily explain his failure to accept any responsibility, or to express contrition or remorse, for that offence. In these circumstances, the Tribunal does not regard the applicant’s failure to accept such responsibility, or to express such contrition or remorse, as incompatible with his having reformed and been rehabilitated and his having regained or re-established his good character.
The Tribunal is satisfied that, for the whole of the period of almost seven years since the applicant has been “free of obligation to the court”, he has, as previously mentioned (see paragraph 53 above), been:
·consistently law-abiding;
·in stable, gainful employment;
·in a stable family situation, with an extensive and very supportive social network;
·regarded as of good standing and repute in the community.
The applicant is, furthermore, unequivocally held in high regard by those reputable and distinguished Australians who gave character evidence on his behalf in this proceeding (see paragraphs 25–39 above).
Having regard to the whole of the evidence before it, the Tribunal is satisfied that, in the period since the applicant became “free of obligation to the court” in September 2005, he has firmly established a consistent pattern of good behaviour such as to warrant the conclusion that his fundamental moral qualities have been revived and his good character re-established. The Tribunal is, accordingly, satisfied that the applicant is presently a person “of good character”, within the meaning, and for the purposes, of s 21(4)(f) of the Act.
Conclusion
The Tribunal understands, having regard to the record of the decision under review (see T21, pp 174–182), that the decision maker was satisfied that the applicant met all of the requirements set out in s 21(4) of the Act other than the “good character” requirement in para (f). The Tribunal has now determined that it is satisfied that the applicant meets the “good character” requirement in para (f) of s 21(4). Although it seems appropriate, in those circumstances, for the Tribunal now to decide that the applicant is eligible to become an Australian citizen pursuant to s 21(4) of the Act, the respondent’s representative informed the Tribunal that he did not have instructions to accede to that course. That being the case, it seems to the Tribunal that the appropriate disposition of this proceeding is that the Tribunal, having set aside the decision under review, should remit the matter to the respondent for reconsideration in accordance with the direction that the applicant is a person “of good character” within the meaning, and for the purposes, of s 21(4)(f) of the Act.
Decision
For the above reasons the decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that the applicant is a person "of good character" within the meaning, and for the purposes, of section 21(4)(f) of the Act.
I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Ms K Hogan, Member .................[sgd D Brodie]..............................
Administrative Assistant
Dated 15 August 2012
Dates of Hearing
Date of Decision
18, 19 July 2012
19 July 2012
Date of Receipt of Request
for Written Reasons24 July 2012 Representative of the Applicant Ms A van Gent
CASE for RefugeesRepresentative of the Respondent Mr S Kikkert
Senior Legal Officer
Department of Immigration and Citizenship
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