TADROS and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2012] AATA 693

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)No: 2012/0852

General Administrative Division           )

Re: MINA TADROS

Applicant

And: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

TRIBUNAL:             Deputy President J W Constance

DATE:                      14 September 2012

PLACE:                   Melbourne

DECISION:For the reasons given orally at the hearing of this matter on     14 September 2012, the Tribunal affirms the decision under review.

...............................[sgd]............................

Deputy President

[2012] AATA  693

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0852
Re	Mina Tadros
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

REASONS FOR DECISION

(EDITED TRANSCRIPT OF REASONS GIVEN ORALLY)

Deputy President J W Constance

INTRODUCTION

1. On 20 April 2011, Mr Tadros lodged an application for citizenship by conferral.  On 20 February 2012, the delegate of the Minister for Immigration and Citizenship, refused the application.  Mr Tadros then applied to this Tribunal for a review of that decision.

2. For the reasons which follow, the decision of the Minister will be affirmed; that means that Mr Tadros’ application for citizenship by conferral is refused.

   THE ACT AND INSTRUCTIONS

3. The Australian Citizenship Act 2007 (Cth) provides in subsection 21(1) that a person may make an application to the Minister to become an Australian Citizen.  Subsection 21(2), provides a list of criteria which an applicant is required to meet.  The only criterion which is in issue in this matter is that set out in subparagraph (h) which provides:

   A person is eligible to become an Australian citizen if the Minister is satisfied that the person:  ...  (h) is of good character at the time of the Minister's decision on the application.

4. As the Tribunal stands in the shoes of the initial decision maker, the time at which character must be considered is the time of the decision. 

5. There are also in existence the Australian Citizenship Instructions which have been issued by the Minister.  As a general rule the Tribunal, as the decision maker, should act in accordance with these instructions “unless there are cogent reasons to the contrary”.  Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2)[1].  One the evidence before me, there is no basis not to follow these instructions.

   [1] [1979] 2 ALD 634

6. Included in the Instructions are instructions in relation to the requirement that a person be of good character:

   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.  It is the responsibility of the applicant to show that they are of good character.

7. And, further, in those instructions it is said:

   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.

   FACTS

8. The following findings of fact are based on the evidence of Mr Tadros unless otherwise stated. 

9. Mr Tadros was born in 1989 in Egypt.  He arrived in Australia with his family in 2001 when he was aged 12 years.  He attended year 8 to year 12 of his schooling in Australia. 

10. Since having left school, Mr Tadros has undertaken a number of courses and has thereby furthered his education.  In 2012 he commenced a full-time course which leads to the Bachelor of Business (Economics and Marketing).  He plans to follow this with a degree in Economics.  He has also completed a number of courses previously, including diplomas in music, drama and management.  In August 2012, he commenced a part time diploma in theology.

11. Mr Tadros works in his father’s restaurant in the field of marketing.  In the long-term, Mr Tadros wishes to study further and to continue to work with his father.  He wants to specialise in marketing. 

12. Mr Tadros presently lives with his parents and has done so since his arrival in Australia.  He does martial arts training at a club.

13. In 2008, when Mr Tadros was 19 years of age, he was stopped in the street by Victorian Police and searched.  On that occasion the police located on his person 54 pills.  The police then searched his car and found the following:  $55 in cash, four mobile phones, one green pill, two small deal bags containing a white crystal substance, four white tabs in a glad wrap bag, one small deal bag containing remnants of a white pill and an imitation semi-automatic hand gun; [2]

    [2] Exhibit R1

14. Mr Tadros was arrested and a drug warrant was obtained to search his home.  The police located in a safe in Mr Tadros’ room the following:  $4850 in cash, several ziplock bags containing white powder and seven pills of various colours;[3]

    [3] Exhibit R1

15. Following this event, Mr Tadros was charged with trafficking ecstasy, possessing amphetamine and possessing an unregistered general category handgun. 

16. In relation to the trafficking charge, Mr Tadros was fined $1500 but he was not convicted.  In relation to the other two charges, the Court directed an order that Mr Tadros undergo treatment and counselling as directed by a drug and alcohol counsellor.  Mr Tadros undertook to do this and the undertaking commenced on 5 November 2009 and ended on 4 November 2010.  As Mr Tadros complied with this undertaking and did, in fact, attend counselling, on 4 November 2010 the Court dismissed the two charges;[4] The Magistrates’ Court records show that Mr Tadros was legally represented and pleaded guilty to all charges.[5]

    [4] Exhibit R1

    [5] Exhibit R2

17. Mr Tadros gave evidence before me that the drugs in respect of which he was charged were for his own use.  He also told me that he last took non-prescription drugs before he commenced counselling.  In relation to the gun, he said that it was not a real gun and that it was something that he played with, with his nieces and nephews.  When specifically asked why he had the gun in his car and apparently hidden under a floor mat, he replied:

    I do not know why it was in the car; I did not intend to use it.

18. I do not accept Mr Tadros’s evidence in this regard.  I have taken into account that he pleaded guilty to trafficking in drugs and the nature of the items found on the search of his person, and at his home, caused me to reach the conclusion that, in fact, he was trafficking in drugs as he was charged, and to which he pleaded guilty.  I also take into account the report of Ms Woods, the drug and alcohol counsellor:[6]  Ms Woods reported during the course:

    He was disclosing that he had significantly reduced his drug use.

    [6] Exhibit T2, p1

19. I do not accept, as Mr Tadros now tells me, that he had ceased using drugs before the counselling Ms Woods reported, after many sessions with Mr Tadros, that he had significantly reduced his drug use.  In relation to the gun, it was clearly of a nature sufficient for the police to lay charges and for the court to accept a plea of guilty.  I do not accept that this gun, even if a replica, as it no doubt was, was in fact just a toy with which Mr Tadros played, with his nieces and nephews.  I am satisfied that Mr Tadros attempted to play down the seriousness of his offences, both in relation to the drugs and the gun.  

20. Further, on the evidence before me from the police records[7] I am satisfied that in 2009 Mr Tadros was involved in an incident in which he and two others approached a person in the Melbourne CBD and one of the three, whether it be Mr Tadros or the two persons accompanying him, attempted to snatch another persons phone from his hand and that when that person kept hold of the phone, the three persons, including Mr Tadros, followed that person in the street and that, at some stage, one of the three persons then struck the person who had hold of the mobile phone in the back of the head.  Mr Tadros and the others were arrested, but no charges were laid as the victim requested that no further action be taken.

    [7] Exhibit R1

21. Mr Tadros denied on oath that this incident occurred or that he was in any way involved in it.  I do not accept his denial. I am satisfied on the basis of the police record that he was involved.  However, this evidence is not such that cause me to reach any different conclusion to that which I have otherwise reached. 

    Mr Tadros’ argument

22. Mr Tadros has argued that he is of good character now, and that the problems in the past arose from drug abuse following the death of a former girlfriend.  He told me that he has learned from the experiences and has benefited from counselling. 

23. In his statement[8] Mr Tadros said:

    Let me start with sharing a little regarding what has occurred with me.  In 2008, I’ve gone out of a relationship and shortly after my partner has committed suicide.  I haven’t taken situation in an appropriate manner, nor that I have seek professional help.  Later that year I was involved with a consumption of drugs, I went out to dance events and clubs four out of the seven days per week and was heavily involved with my consumption.  I was arrested outside of a club one night with drugs and a toy gun within my position, then had to wait one year to go to my final court hearing, during which I attended counselling which helped me to a great extent.  That was four years ago now, have not touched any drugs since then, I avoid any contact with any past friends that I was involved with in consumption of drugs and I have turned around completely.

    [8] Exhibit A1

24. Mr Tadros is entitled to the consideration and the benefit of his attempts to rehabilitate himself.  I have also taken into account the statement of Ms Wood:[9]  As I have previously mentioned, Ms Wood was a drug and alcohol counsellor who worked with Mr Tadros after his initial appearance in court.  In part, Ms Wood reported:

    In my opinion, I believe that Mina was using the substance to help with his grieving.  Mina had been bottling up all his feeling about his past girlfriend and was avoiding dealing with anything that reminded him of her and never spoke about her.  Mina continued to engage in counselling after his court and showed myself that he was determined to make positive changes in his life. 

    [9] Exhibit T2 p1

    Consideration

25. The issue before me is whether I am satisfied that Mr Tadros is of good character now, being the date of my decision.  Having considered all of the evidence, I am not so satisfied.  My reasons for reaching this conclusion are as follows.

26. First, the commission by Mr Tadros of the offences to which I referred in 2009.  These are clearly serious offences when measured against the standards of the Australian community, as they involve trafficking in drugs (which is ongoing behaviour) and the possession of a general category gun.  I am satisfied that having committed these offences, Mr Tadros ceased to be a person of good character, and therefore lost his entitlement to a presumption of good character for the purpose of this application.

27. I turn to consider the evidence as to any change which Mr Tadros may have undertaken.  I have already referred to the report of Ms Woods and I note that Mr Tadros did complete the counselling which was required by the Court.  I have also taken into account that Mr Tadros has furthered his education and has continued to do so, and plans to continue to do so.  Mr Tadros also relied upon and, I have taken into account, three referee reports:[10]  The first is at page 44, being a letter from Mr Souliman Abdo, a principal solicitor of Sabdo and Associates.  It is dated 26 May 2011 and reads:

    To Whom It May Concern,

    This letter is to certify that I’ve personally known Mina Tadros for the past six years.  During that time I have had many business dealings with him.  Throughout the time I’ve known him, I can personally vouch for Mina Tadros’ trustworthy reputation and character.  I’ve no hesitation in vouching for his high level integrity.  If you have any queries, please do not hesitate to contact me ….

    [10] Exhibit T1

28. The second reference upon which Mr Tadros relies appears at page 45 of Exhibit T1.  It is by Dr Raouf Maccar, of the Epping Plaza Medical Centre.  That reference is dated 31 May 2011 and reads:

    This is to certify that Mr Mina Tadros has been a patient of mine for the past few years.  He has always portrayed a very respectable and polite character.  He went through a tough time to assimilate, initially, which led him to marijuana usage which has been well habilitated and he has been off for a couple of years.  He is a patient of good character.

29. The third reference is at page 46 of Exhibit T1 and is by Father Samuel Elias, parish priest and reads:

    I, Father Samuel Elias, parish priest at St. Mark's Coptic Orthodox Church … do hereby confirm that I have known Mina Tadros for a period extending two years.  I hereby attest to Mina’s development during this period of increasing immaturity and his sense of responsibility.  He’s a responsible young man who is focused on his goals in life and makes appropriate life decisions.  Mina is generally a friendly person with good character.  I have not seen or felt that Mina has shown any type of misconduct in the past.

30. Whilst I have taken these references into account, they are of limited value.  Mr Abdo makes no reference to the offences committed by Mr Tadros and I can only assume from that that he was not informed of them.  I make a similar comment in relation to the report of Dr Maccar.  In relation to the reference by Father Elias, I have particular concern that Father Elias states:

    I have not seen or felt that Mina has shown any type of misconduct in the past.

31. This clearly indicates that Mr Tadros did not inform Father Elias of his previous offences when seeking that reference.  I further note in relation to the report of Dr Maccar that it refers to marijuana usage and does not refer to amphetamine usage, and, again, I take from that that Dr Maccar was not fully informed of the circumstances.

32. Finally, I note that is just less than two years since Mr Tadros completed the counselling which he undertook as a result of the court proceedings.  This is a relatively short period.  I refer to what the Tribunal said in a decision of Darwich, v Minister for Immigration and Citizenship:[11]

    A sustained period of good conduct together with uninformed confidence of its likely future continuation provides a good platform from which to opine that a person is, indeed of “good character.”

    [11] (2007) AATA 2106

33. In this matter, I am not satisfied that Mr Tadros is of good character within the meaning of the Act and on the material before me he has not shown to me that he has engaged in a sustained period of good conduct nor has he not shown that there can be confidence in his likely future continuation of good conduct.  Of course, that may well change in the future, and Mr Tadros is free at any time to make a further application for citizenship.

34. For the reasons that I have outlined, the decision of this Tribunal is that the decision of the Minister for Immigration and Citizenship made 20 February 2012 is affirmed. 

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

.........................[sgd]...............................................

Associate

Dated   9 October 2012

Dates of hearing	7 and 14 September 2012
For the Applicant	Self represented
Advocate for the Respondent	Mr S Kikkert