Suzan Mahmoud and and Minister for Immigration and Border Protection
[2014] AATA 824
•4 November 2014
[2014] AATA 824
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2876
Re
Suzan Mahmoud
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
File Number(s)
2014/3487
Re
Child A
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor Ron McCallum AO, Member
Date 4 November 2014 Place Sydney The Tribunal is satisfied the Applicant is a person of good character pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
The decisions under review are set aside and remitted to the Minister for Immigration and Border Protection for reconsideration with a direction that Ms Mahmoud satisfies the requirement for good character under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) .
.......................[SGD].................................................
Professor Ron McCallum AO, Member
CATCHWORDS
CITIZENSHIP — Application for Australian citizenship — Whether the Applicant is of “good character” — Applicant’s criminal history — Nature of offences — Extenuating circumstances — Citizenship application of child directly linked to citizenship application of parent — Decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35(1); 35(2); 35(3)
Australian Citizenship Act 2007 (Cth) – ss 21(2)(h); 21(5); 24(6)(g);
CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
SECONDARY MATERIALS
Australian Citizenship Instructions July 2014
REASONS FOR DECISION
Professor R McCallum, Member
4 November 2014
BACKGROUND
The Applicant, Mrs Suzan Mahmoud, was born in Iraq in 1984. In 2007, the Applicant married Mr Rebwar Mahmoud in Iraq. They fled Iraq and made their way to Turkey. In 2008 in Turkey, their first child was born, whom I shall call Child A. The family arrived in Australia as refugees on 18 August 2009 and the Applicant currently holds a permanent Subclass 200 visa. Two further children of the marriage were born in Australia.
On 27 May 2013, the Applicant pleaded guilty in the Campbelltown Local Court to two charges of shoplifting (under the value of $2000) and one charge of goods in personal custody suspected of being stolen. All three offences were committed on 5 April 2013. No convictions were recorded, however, the Applicant was placed on a 12 month good behaviour bond which commenced on 27 May 2013.
The applicant applied for citizenship by conferral for herself and Child A on 18 December 2013. A delegate of the Minister refused to grant the Applicant and Child A citizenship on 21 May 2014. As the application for Child A is interlinked with the Applicant's application for citizenship by conferral, I shall make a decision on Child A’s application after I have made a decision on the Applicant's application.
On 21 May 2014, a few days before the expiration of the good behaviour bond, a delegate of the Respondent decided not to grant the applicant citizenship by virtue of s 24(6)(g) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). Put simply, s 24(6)(g) provides that the Respondent must not grant citizenship to a person while that person is under a good behaviour bond, even where no conviction has been recorded. In other words, the Applicant could not be granted citizenship until 27 May 2014, after the expiration of the good behaviour bond.
However, the Respondent asserts that the Administrative Appeals Tribunal (AAT) should affirm the decision under review on a different ground, namely, that the Applicant is not of good character under s 21(2)(h) of the Citizenship Act. Section 21(2)(h) requires the Respondent to be "...satisfied that the person...(h) is of good character at the time of the Minister’s decision on the application."
THE MEANING OF GOOD CHARACTER
The Citizenship Act does not define “good character”. Guidance is found in Chapter 10 of the Australian Citizenship Instructions July 2014 (the ACIs) which offer guidance on policy in relation to the interpretation of, and exercise of powers under, the Citizenship Act and Regulations. They are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The ACIs state that “'Good character' is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship" (cl 10.1.2).
As to the meaning of “good character”, the ACIs cite Lee J in the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, where his honour 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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… 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.
The ACIs state that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, including: distinguishing right from wrong; behaving in an ethical manner; conforming to the rules and values of Australian society. This broad definition means that:
a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes (cl 10.3.1).
The ACIs set out at length relevant factors when considering the implications of a person’s criminal record for their character. They include the nature and seriousness of the offence: crimes of violence, including domestic violence, are regarded as serious offences, whereas shoplifting without more is regarded as a minor offence. Whether the offence was pre-meditated, whether it was a “one-off offence” or whether there was a pattern of criminal behaviour, and the length of sentence, are factors which should be taken into account. In this regard, sentencing remarks may prove useful (cl 10.5.2).
Mitigating factors may mean that, despite serious offending, a person may be found to be of good character. Factors to be taken into account include: the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences. Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful (cl 10.5.2).
THE THREE OFFENSES
As I have recounted above, on 27 May 2013, the Applicant pleaded guilty in the Campbelltown Local Court to two charges of shoplifting (under the value of $2000) and one charge of goods in personal custody suspected of being stolen. As recounted in the court documents, the afternoon of 4 April 2013, the Applicant entered the Target Department store in Westfield shopping centre, Liverpool. She was wheeling a baby stroller with a baby inside. In the children's clothing section, the Applicant was observed removing:
·one basic fleece track pants valued at $15,
·one embellished neck shell top valued at $35,
·one ruched SVL and side top valued at $39,
·one boy low cut black cobalt shirt valued at $10,
·one 3D hooded towel and mitt hippo valued at $20, and
·one boys flannelette check shirt valued at $12.
In the nursery section she was observed removing:
·one curash soap-free baby wipes valued at $5, and
·one curash soap-free bath 200 millilitre valued at $2.89.
The Applicant was arrested outside the Target store with the unpaid-for items in the baby stroller. When the stroller was searched, it was also found to contain one new Heritage Quilt sealed in plastic which did not belong to the Target department store. The Applicant was unable to produce a receipt for the quilt. At a subsequent police interview, the Applicant admitted stealing the clothing and nursery items from the Target store and the quilt from the Myer store.
The total value of the clothing and baby toiletries stolen from the Target store was $138.89, and the value of the quilt stolen from the Myer store was $40. Thus the total value of these stolen items was $178.89. At the date of the commission of these offenses, the applicant was aged 28 years.
It is appropriate to note that on 5 April 2013 the Applicant was separated from her husband and was more than eight months pregnant, subsequently giving birth on 29 April 2013.
An application for confidentiality
Some time before the hearing, the Applicant requested that the hearing be held in private. At the commencement of the hearing, I asked the Applicant why she wished for the hearing to be held in private. The applicant said that she was embarrassed about giving evidence of the three offenses to which she had pleaded guilty. Section 35(1) of the Administrative Appeals Tribunal Act 1975 (Cth), provides:
Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.
Section 35(2) relevantly provides:
Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)direct that a hearing or part of a hearing shall take place in private...
Section 35(3) relevantly provides:
In considering:
(a)whether the hearing of a proceeding should be held in private; ...
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 Brennan J, sitting as president of the Administrative Appeals Tribunal, made the following remarks about s 35 and requests for hearings to be held in private. His Honour said at 53-54 (citations omitted):
To exclude the public from a hearing is a serious step, for the Tribunal is required by statute (s 35(3)) to 'take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be in public'. This is a principle which is binding upon courts of justice and which is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process and its exposure to public scrutiny is calculated to enhance greater public confidence in it.
I ruled that the embarrassment of the Applicant was clearly an insufficient reason for this tribunal to depart from its usual and appropriate practice to hold its hearings open to the public.
Section 35(2)(b) of the Administrative Appeals Tribunal Act 1975 confers power upon the Tribunal to make directions to restrict the publication of the names of the parties to the proceedings and to allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149. Because of his age I have decided it would be inappropriate in these reasons to disclose the identity of Child A.
The evidence of the Applicant
The Applicant gave sworn evidence before me at the hearing. She was the only person to give oral evidence and I found her to be a truthful witness.
The Applicant described the situation in Iraq in 2007. A close member of the Applicant’s family undertook some translating for Coalition personnel, and the Applicant was aware of friends being killed. These circumstances impelled the Applicant and her husband to flee Iraq and to go to a refugee camp in Turkey. The Applicant, her husband and Child A came to Australia in 2009 as refugees under Australia's humanitarian refugee program.
The Applicant recounted that she and her husband had marital difficulties after arriving in Australia. Her husband's father had died in Iraq and it appears he may have become depressed. The Applicant said he was yelling a lot. Subsequently, he saw a psychologist. When the Applicant was about five months pregnant with her third child, in January 2013, she separated from her husband. Thus, on 5 April 2012, the day on which the three shoplifting offenses were committed, the Applicant was close to term and separated from her husband. The couple reconciled on the birth of the third child at the close of April 2013. It appears after this reconciliation they still had “ups and downs” but have remained together with their three children.
The Applicant recounted that, as at 5 April 2013, she had money worries, bills to pay and she was concerned about providing food for the children. The Applicant stated she was not thinking straight when she took the items. She said that she had never shoplifted, either before or after the 5 April 2010 offenses, and that she was truly ashamed.
The Applicant was visibly upset when giving her evidence. She said that she was very sorry for what she had done and she showed remorse. Her general medical practitioner referred her to a registered psychologist, Lubica Vracar. In a letter dated 13 August 2014, Ms Vracar wrote the following about the Applicant's contrition upon the commission of the offenses:
Ms Mahmoud feels confused, sad and angry about her behavior [sic] and has been remorseful about it. Currently Ms Mahmoud has better relationship [sic] with her husband and they both share care of their children. She reported that she was not thinking clearly at the time of her offence and that now she feels ashamed and guilty of her behavior [sic].
The Applicant wishes to study, to gain employment and to become a full member of the Australian community by obtaining Australian citizenship.
When questioning the Applicant, the Respondent drew to the attention of the Applicant a police incident report dated 28 May 2013 (Documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 at S13 p22). The police incident report states the police were called to the home of the Applicant, her husband and children on 27 May 2013, but does not note the time of the visit. However, the Applicant attended Campbelltown local court on 27 May 2013 where she was given a good behaviour bond. Without more, it appears to me from the detail in the police incident report that it is unlikely this incident occurred on the same day as the court hearing. Be that as it may, the police incident report notes that, having regard to all of the surrounding circumstances, the Applicant was warned if she made allegations against her husband which were later shown to be false, she would have committed an offense.
I have given careful consideration to this police incident report, and to the questions which were put by the Respondent to the Applicant, and the Applicant's answers. It is clear that after their reconciliation at the close of April 2013, the Applicant and her husband were still having marital difficulties. I do not draw from this material any inferences of dishonesty on the part of the Applicant.
Consideration
I am required to determine whether I am satisfied that the Applicant is of good character. The question which I am required to answer is whether the commission of the three shoplifting offenses and the subsequent behaviour of the Applicant warrant a finding that she is not of good character. The ACIs state that shoplifting offenses are minor offenses, and in this instance the magistrate declined to record convictions, and instead put the Applicant on a twelve month good behaviour bond. The Applicant has stated in her evidence that this incident of shoplifting was a one-off event and this was the only occasion on which she engaged in shoplifting. I also take into account that on 5 April 2013, the applicant was in the later stages of pregnancy, that she was then separated from her husband, and that she had financial worries. In her evidence before me, the applicant showed remorse for her wrong-doing, and I find that her remorse was genuine.
The date of the hearing in this application was almost seventeen months after the proceedings before the Campbelltown Local Court, and almost five months since the expiration of the good behaviour bond. I must determine whether this is sufficient time to be satisfied the Applicant is truly sorry, will not offend again, will behave in an ethical manner, and will conform to the rules and values of Australian society. After giving this matter careful consideration, it is my view that the Applicant has satisfied me that she is of good character.
I am satisfied, in all the circumstances, that the Applicant is of good character. I set aside the decision under review and remit it for reconsideration with a direction to that effect.
THE APPLICATION ON BEHALF OF CHILD A
Child A was born in Turkey in 2008, and came to Australia with his parents as a refugee in 2009. Through his mother, Child A applied for Australian citizenship by conferral on 18 December 2013. On 22 May 2014, a delegate of the Respondent refused this application. Through the Applicant, Child A seeks a review of this decision.
Section 21(5) of the Citizenship Act provides that a child who is under 18 years of age and who is a permanent resident may apply for citizenship. Child A satisfies these criteria. However, under section 24(2) of the Citizenship Act, the Minister and the Minister's delegates may exercise a discretion not to grant citizenship, even where in this case, the child is under 18 and is a permanent resident. Child A's application was refused because the delegate exercised this discretionary power in reliance upon clause 5.12.5 of the ACIs. In brief, this clause provides that where the child is living with a parent who is not a citizen, the child should not be granted Australian citizenship, unless the child would otherwise suffer significant hardship or disadvantage flowing from the lack of Australian citizenship.
Paragraph 10 of the Respondent's statement of facts and contentions provides as follows:
However, the respondent contends that the outcome of this matter is directly correlated with the outcome of the applicant's mother[’s] application for citizenship currently before the AAT. Such that, if the AAT were to set aside the decision of the delegate in the proceedings of the applicant's mother, AAT 2014/2876, and the applicant in this matter would otherwise meet the policy requirements, then the respondent contends that the AAT should also set aside the decision of the delegate in this matter.
I agree with the Respondent. Accordingly, I set aside the decision under review and remit it for reconsideration with a direction to that effect.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Professor Ron McCallum AO, Member ...............[SGD].........................................................
Associate
Dated 4 November 2014
Date(s) of hearing 20 October 2014 Applicant In person Solicitors for the Respondent DLA Piper Australia
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