Yas and Minister for Home Affairs (Citizenship)

Yas and Minister for Home Affairs (Citizenship) [2019] AATA 629 (3 April 2019)
Division:GENERAL DIVISION
File Number: 2018/4622
Re:Ali Yas
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:3 April 2019
Place:Perth

The decision under review is affirmed.
.....[Sgd]...............................................................
Member C Edwardes
CATCHWORDS
CITIZENSHIP – whether Applicant of good character – meaning of good character – conviction for operating business illegally – enduring moral qualities – Australian values –
Applicant found not to be of good character at time that the Minister made decision – decision under review is affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) - ss 21(1) – 21(2) – 21(2)(h) – 24(1) – 24(1A) – 52(1)(b)
CASES
Assafiri v Minister for Immigration and Border Protection (2014) AATA 35
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy, at 1 June 2016 – Chapter 11
Australian Citizenship Instructions – 2014
REASONS FOR DECISION
Member C Edwardes
3 April 2019
INTRODUCTION

This is an application for the review of a decision of a delegate of the Respondent (the Minister). This decision, made on 30 July 2018 (T1, 5-6) refused the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused on the basis that the Applicant did not satisfy the character requirements under s 21(2)(h) of the Citizenship Act at the time of the Minister’s decision.
Citizenship by conferral (that is, where citizenship is granted to a person who does not have an automatic or statutory entitlement to citizenship) may be granted where an applicant satisfies certain requirements of the Citizenship Act.
BACKGROUND
The Applicant is a 35 year old citizen of Iraq who arrived in Australia on 1 May 2013 as the holder of an XB 200 Refugee and Humanitarian visa (T1, 8).
He applied for conferral of Australian citizenship on 28 May 2017 (T7, 97-126). This application was refused on 30 July 2018 as Applicant failed the character test as required by s 21(2)(h) of the Citizenship Act.
The Minister’s delegate stated (T1, 11):
Your Australian Police Check Results Report indicates that you have been convicted of the following offence:
25/05/2018
Perth Magistrates Court Carried On Business Without Being Holder Of Valid Dealers License Result: (Counts 1) Fine $12500.
Crimes of this nature are considered serious in the context of Citizenship Policy. I give your criminal conviction, and the nature of your recent offence, considerable weight.
On 2 July 2018 the Department wrote to you and provided you with the opportunity to comment on this adverse information held by the Department and to provide any further information you wished to have considered in relation to your application. ……
As you have not provided a personal statement addressing your criminal offence I am unable to give weight to any possible mitigating or exceptional circumstances that may exist.
I do not believe sufficient time has elapsed for you to demonstrate that you are of reformed character.
While it is possible for a person who was not of good character to be considered to have become a person of good character I have not come to this conclusion in your case.
The Tribunal notes that the Applicant has provided various character references (T11, 152-155). While the Tribunal ascribes some weight to these character references as the referees did indicate awareness of the Applicant’s previous offence, the Tribunal is mindful that two of the references are from family members. The Tribunal notes the delegate’s findings (T2, 22):
In response, on 22 July 2018 your migration agent Rebus Legal provided three character statements by email; which were from two family members and one friend. These character referee's vouch for your good character and indicate an awareness of your previous conviction, and as such I give these statements some weight.
The Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 16 August 2018 for a review of the delegate’s decision (T1, 1-4).
JURISDICTION
This application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Administrative Appeals Tribunal for review of a decision made under s 24 of the Citizenship Act.
RELEVANT LEGISLATION AND POLICY
Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Citizenship Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Citizenship Act provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under ss 21(2), 21(3), 21(4), 21(5), 21(6), 21(7) or 21(8).
Section 21(2) of the Citizenship Act sets out the general eligibility criteria for a person to become an Australian citizen. Relevantly, s 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
The term “good character” is not defined in the Citizenship Act. There is, however, guidance on the application of the “good character” requirement in the Australian Citizenship Policy (the Policy)[1]. The Tribunal will apply Departmental policy unless there are cogent reasons in a particular case to not do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
[1] The Tribunal notes that the Policy came into force as of 1 June 2016. Further guidance is provided by the Australian Citizenship Instructions (ACIs), dated 1 July 2014, which detail operational instructions and supplement the guidance provided in the Policy.
In that case Brennan J stated (at [642]):
In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
At [645] he further explained how the Tribunal might apply government policy when reviewing decisions:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
The meaning of good character
Chapter 11 of the Policy provides guidance for assessing an Applicant for the purposes of the “good character” test prescribed by s 21(2)(h) of the Citizenship Act. Chapter 11 of the Policy cites the case of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, in which Lee J noted:
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.
(Emphasis added.)
Chapter 11 of the Policy further states that “enduring moral qualities” encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of the Australian society (T6, 85).
Chapter 11 of the Policy further states that the broad definition of “good character” means that (T6, 86):
… 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.
Chapter 11 of the Policy further provides that an Applicant of good character would, among other things:
·respect and abide by the law in Australia and other countries
…
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example,
o… concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship application;
·… not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance) (T6, 87).
The Policy also provides that in weighing up whether an Applicant is of good character, decision makers are required to apply community standards, not their own personal standards. Decision makers must also question whether any mitigating circumstances and/or explanations provided by the Applicant outweigh the Applicant’s behaviour in question. Decision makers are to consider factors including:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties (T6, 89-90).
The Policy states that “[a] decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application” (T6, 90).
The Tribunal is guided by the Policy in how it should assess and assign weighting to referee reports. The Tribunal notes the following (T6, 95):
[Referee reports] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
When considering whether an Applicant who has had previous criminal convictions is a person of good character, Deputy President Wright in Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14] stated:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
ISSUE
The issue for determination by this Tribunal is whether the Applicant was, as at 30 July 2018, a person of good character for the purpose of satisfying s 21(2)(h) of the Citizenship Act.
EVIDENCE
The application for review was initially heard in Perth on 26 February 2019. The Applicant appeared in person and was assisted by Mr Alherz as the interpreter. The Respondent was represented by Ms Ladhams of the Australian Government Solicitor. The matter was adjourned to a later date as the Tribunal was not satisfied that the Applicant had been served with requisite documentation and had time to understand the content.
The application was resumed on 27 March 2019. The Applicant appeared in person and was assisted by Ms Tawbi as interpreter, while the Respondent was again represented by Ms Ladhams of the Australian Government Solicitor.
The Tribunal received the following evidence:
·Exhibit A1 – Statement by Ali Mohammed Yas dated 29 October 2018.
·Exhibit A2 – Statement by Dr Al Salihee dated 25 October 2018.
·Exhibit A3 – Statement by Adnan Aljibari dated 14 October 2018.
·Exhibit A4 – Statement by Sam Alla (undated).
·Exhibit A5 – Statement by Menshad Alsudani (undated).
·Exhibit A6 – Petition in support of Applicant.
·Exhibit R1 – T documents (T1-11 pp1-159).
·Exhibit R2 – Statement of facts, Issues and Contentions (SOFIC) dated 25 January 2019.
·Exhibit R3 – Applicant’s Prosecution Notice.
·Exhibit R4 – Sentencing Transcript dated 25 May 2018.
·Exhibit R5 – Hearing Certificate.
·Exhibit R6 – Media Statement dated 28 May 2018.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Respondent’s contentions concerning the character of the Applicant were presented in its SOFIC (R2):
Whether the applicant meets the good character requirement in s 21(2)(h)
20.In assessing whether the applicant meets the good character requirement in s 21(2)(h), it will be appropriate for the Tribunal to take into account, amongst other things, the applicant’s criminal convictions, and character references provided on his behalf. As Davies J said in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425:
… 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.
21.These considerations are addressed in turn below.
Applicant’s offending
22.As the Tribunal (Deputy President Wright) said in Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weight in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
23.In the present case, the applicant has a conviction for a single offence. The conviction was recorded in May 2018 and appears to relate to conduct engaged in over a period of approximately 19 months.
24.In sentencing the applicant, the Magistrate said to him:
…we have a system of laws here to protect consumers and the relevant legislation is the Motor Vehicle Dealer’s Act. Those dealers pay a fee to be registered motor vehicle dealers. They have overheads. They can be – consumers can go to the courts and get a result if there’s a bad motor vehicle dealer. You operated completely outside all of that. You took part in 83 separate transactions.
That is a cost to the motor vehicle industry, because they are buying and selling those cars; you are. Being motor vehicle dealers, they’re entitled to the protection of the law from people, with respect, like yourself that just go and do it in your backyard.
25.Although the applicant’s offence is not at the more serious end of the range of offences, it raises significant concerns about his character for the purposes of a citizenship application because:
25.1.it suggests that the applicant does not respect and abide by the laws of Australia;
25.2.as the comments of the sentencing Magistrate suggest, conduct such as the applicant’s can operate to disadvantage business operators in a regulated industry, who comply with the regulations and incur cost in doing so; and
25.3.conduct such as the applicant’s can also deny consumers their rights. This can be demonstrated by the following comments in a press release issued by the Department of Mines, Industry Regulation and Safety following the conviction of the applicant and his brothers:
Commissioner for Consumer Protection David Hillyard said this case is the biggest unlicensed dealing matter the Department has investigated and prosecuted.
“With a total of 284 vehicles being traded by the three brothers over 20 months, it is by far the most extensive illegal motor vehicle dealing investigation in the history of Consumer Protection,” Mr Hillyard said.
"The three Yas brothers flouted the licensing laws to make a profit that robbed legitimate licensed dealers of valuable business and buyers of the vehicles were denied their consumer rights.
“Our investigation into the operation continues and further action may be pending.
“Closing down this major unlicensed dealing operation means that the integrity of the motor vehicle industry is upheld and the warranty rights of consumers are protected.
26.The nature of the applicant’s offending also raises further questions which may be relevant to the assessment of his character, but which are not yet addressed in the evidence. These include:
26.1.Did the applicant comply with his taxation obligations in the running of his business?
26.2.Has the applicant demonstrated a disregard for public safety by failing to comply with relevant legislation regarding buying and selling used cars, including rules relating to road worthiness of vehicles, vehicle repairs and disclosure of known issues?
27.The applicant provided a statement by his lawyer to the Department regarding his offending. The same lawyer appeared for the applicant before the Magistrates Court in relation to his offence. The paragraphs in the statement explaining the offending read (T11, p144-145):
10.The Applicant and his brother began buying and selling cars as a business. However, they did not at the time understand that we needed a specific licence in order to do so.
11.Indeed, when the Applicant went to the licensing centre in order to transfer ownership, the licensing centre did not provide information regarding a valid dealer’s licence.
12.The Applicant has only completed a Certificate II in English language studies. Unfortunately, due to his imperfect grasp of English, he did not realise the sophisticated rules meant to protect Australian consumers and the community associated with buying and selling used vehicles.
13.Soon after the Applicant received the infringement notice informing us of the offence. The Applicant immediately stopped all activities related to the business.
14.On 25 May 2018, the Applicant pleaded guilty at the first instance to the charges and was fined $12,500. The Applicant trusts the Australian justice systems and was prepared to plead guilty to the crime, as he is fully aware that he was in the wrong.
28.The Minister submits that the statement by the applicant’s lawyer should be given little weight, because it is not direct evidence from the applicant, and does not contain any expressions of remorse or explanation of the offending in the applicant’s own words.
29.In his statement provided to the Tribunal dated 29 October 2018, the applicant has said nothing about his offence or any remorse that he now feels. It is concerning that the applicant has not, either personally or via his lawyer, disclosed the extent of the offending, including the number of vehicles involved and the duration of the offending. This suggests that the applicant may not be fully facing up to his past conduct.
30.The Minister also notes that it is less than 1 year since the applicant’s conviction. In the circumstances of the present case, the Minister submits that the applicant’s offending raises significant concerns about his character, and insufficient time has passed since the offending for the Tribunal to now be satisfied that the applicant is of good character.
Evidence provided by applicant to demonstrate good character
31.The applicant has provided information about his good character in order to try and satisfy the good character requirement.
32.As noted above, in his statement to the Tribunal dated 29 October 2018, the applicant does not acknowledge his offending at all, nor does he express any remorse for his offending. Rather, the applicant states that he has ‘always obeyed the Australian law’ which, in the light of his conviction, is clearly not true. The applicant also says in his letter that:
32.1.he has been helpful in the community
32.2.he is a very calm and kind person who has never had a problem with anyone and is willing to help people
32.3.he is a carer for his father and is willing to volunteer in this field to help the community
32.4.he has a good relationship with his neighbours and all people around him
32.5.he promises to be a good Australian citizen and will do his best to support Australia and its people.
33.The applicant has also provided character statements from family, friends and community members. These include:
33.1.A letter from Yashar Khaleel Sameen dated 20 July 2018 (T11, p152) – This letter states that the author is the applicant’s cousin. He acknowledges the offence and says that it was out of character. He says that the applicant informed him that he did not know the law regarding buying and selling cars, and once he was notified that what he had done was illegal, he immediately stopped buying and selling cars and pleaded guilty to the charge at the first instance. Mr Sameen further says that the applicant has always been a good friend, husband and father and has always acted with honesty and integrity to everyone in the community and is of good repute.
33.2.A letter from Kamalaldeen Yashar Khaleel dated 18 July 2018 (T11, p153) – The applicant is said to be the uncle of the author of this letter. The letter states that the applicant has always been helpful over the years, acknowledges the offence and says it is out of character and that the applicant did not intend to break any laws.
33.3.A letter from Jabbar Alhussainy dated 18 July 2018 (T11, p154-155) – The author is a friend of the applicant. The author acknowledges the offence and states that it is not in keeping with the applicant’s general good character. The author indicates that the applicant has always acted with respect towards everyone he meets, and is deeply committed to his family and life in Australia, and has always worked hard to be a good role model to his son. The author was surprised at the offence, given the ethics the applicant showed at work, and the offence weighs greatly on the applicant and he is remorseful.
33.4.A letter from Adnan Aljibari of the Fadeck Cultural Centre Inc dated 14 October 2018 – The author states that the applicant has been known to the association since 2013 as a person of good character and has regularly volunteered to conduct humanitarian and charity works. The author says that, to the best of his knowledge, the applicant is a well-behaved, trustworthy man who would appreciate moral values. The offence is not acknowledged in the letter.
33.5.A letter from Dr Nisreen Al Salihee dated 25 October 2018. Dr Al Salihee states that the applicant has been his patient for 4 years and has ‘good personality, friendly and character’. The offence is not acknowledged in the letter.
33.6.A letter from Sam Alla (undated) – The author has known the applicant for 6 years. The applicant has been an active member in the community and has offered endless services to the needy. The applicant is a peaceful man with high regard to all individuals.
33.7.A letter from Menshad Alsudani (undated) – The author states that he has known the applicant since 2014 and describes the applicant as a reverential man with an outgoing and optimistic attitude towards everyone. The applicant is said to have a strong relationship with most of the Middle Eastern communities, is benevolent and trustworthy, and used to attend religious events and offer support. The author also said that the applicant is continuously helping and supporting all multicultural communities to settle and adjust themselves to Australian society. The applicant was said to have a helpful, kind and friendly nature and a positive attitude toward everyone.
33.8.A document signed by 6 people which says:
I the undersigned below do hereby acknowledge that Mr Ali Mohammed Yas is a very kind, hardworking man and of good character, he is a very cooperative member of the community. He is very keen to help others and looking to produce his best to everyone
34.The Citizenship Policy provides the following guidance for considering character references:
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship…
It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct.
35.Each of the character references clearly speaks to good moral qualities of the applicant. However, taking into account the character references and the policy considerations, the Minister submits that the character references provided by the applicant, and the applicant’s personal letter, do not outweigh the concerns that arise as a result of the applicant’s offending. In relation to the character references, the Minister notes that:
35.1.None of the character references are in the form of a statutory declaration.
35.2.Those that acknowledge the applicant’s offending are from family members or friends. While it may, in many circumstances, be appropriate to give character references greater weight where the applicant’s offending is acknowledged, care should be taken when assessing character references from family members.
35.3.Most of the character statements contain general statements of good character and moral qualities, without providing specific examples of when and how the applicant has demonstrated those qualities, or what the qualities referred to mean to each author.

The Applicant’s contentions were provided in a submission by his solicitor (at T11, 143-150) responding to the adverse finding by the Minister’s delegate:
We write to you in relation to your request that made in the letter dated 02 July 2018 by the Department of Home Affairs ("the Department"). Our client Ali Mohammed Yas ("the Applicant") was convicted on 25 May 2018 in the Perth Magistrate's Court of the offence of "Carrying On a Business Without Being Holder of a Valid Dealer's License" ("the Offence"), which he plead guilty at the first instance to the charges and was fined $12 500. In accordance with the Department's regulations regarding citizenship applicants be of "good character" under the Australian Citizenship Act, we make this submission in support of Mr Yas' application for citizenship.
l.This statement in support of Mr Yas' application for Australian Citizenship, to demonstrate that he meets the good character requirements, and to answer the invitation to comment put out by the Department regarding his application for citizenship.
Immigration Law
2.Section 21(2)(h) of the Australian Citizenship Act 2007 specifies that an applicant for Australian citizen must be "of good character" at the time of the decision.
3.However, the section does not specify the meaning of good character, leaving the courts to rely on case law to provide a generally accepted definition of the term.
4.Further, the instructions issued by the Department itself as related in the letter dated 02 July 2018, also provide a guide as to what is expected.
Background
5.The Applicant is originally from Iraq, and came to Australia in May of 2013, resettling due to the ongoing instability in Iraq and the subsequent threat to his life and liberty. He first began to learn English in a formal setting six months after arrival.
6.The Applicant has been taking care of his elderly father before and subsequent to his arrival onshore in Australia, who has many health issues.
7.The Applicant got married in 2015, and has one child for [sic] whom he is also responsible for.
8.Having grown up in the economic uncertainty of Iraq, he was amazed at the variety of types and colours of cars available in Australia, and the frequency which people in the Australian community would switch their vehicle.
9.The Applicant found the idea of being able to change cars aspirational, especially coming from an impoverished background.
The Offence
10.The Applicant and his brother began buying and selling cars as a business. However, they did not at the time understand that we [sic] needed a specific licence in order to do so.
11.Indeed, when the Applicant went to the licensing centre in order to transfer ownership, the licensing centre did not provide information regarding a valid dealer's licence.
12.The Applicant has only completed a Certificate II in English language studies. Unfortunately, due to his imperfect grasp of English, he did not realise the sophisticated rules meant to protect Australian consumers and the community associated with buying and selling used vehicles.
13.Soon after the Applicant received the infringement notice informing us of the offence.
14.On 25 May 2018, the Applicant pleaded guilty at the first instance to the charges and was fined $12,500. The Applicant trusts the Australian justice system and was prepared to plead guilty to the crime, as he is fully aware that he was in the wrong.
15.We would respectfully submit to the Department that in accordance with the principle in Irving vs Minister for Immigration, Local Government and Ethnic Affair/ the enduring moral qualities of the Applicant are not in question.
16.In Irving, a prominent anti-Semitic historian and holocaust revisionist, appealed a denial of his Business Visitor (Short Stay) Visa (class 627) on public interest grounds, that he was not of good character, citing Irving's deportation from other countries as well as his history of inciting hatred.
17.As part of the unanimous judgement dismissing the appeal, Justice Lee defined "good character" to mean "the enduring moral qualities of a person".
18.Aside from the offence in question the Applicant has been an upstanding member of the Australian community. Further, the Applicant's response to the offence demonstrates his enduring moral qualities, that they extend to owning up to my [sic] mistakes and did not waste the court time and complying with Australian law.
Disclosure
19.Since being charged with the offence, the Applicant regretfully has not informed the Department.
20.Although the Applicant plead guilty to the charges, he has been working on an appeal· of his sentence to be reduced given his dire financial circumstances. The fine amount is great financial pressure on the applicant and his family, do to their total reliance on Centrelink allowance.
21.Further to this financial pressure, the applicant wife came on a partner visa and until this point of time she is not getting any financial assistance from Centrelink or any other organization. The applicant alone is carrying the financial pressure which is causing him a big amount of stress on daily basis.
22.The Applicant understands that he has an obligation to Australia, to not only abide by their rules but to report such things to the Department should the need arise.
23.As the Applicant was planning on appealing he was unclear as to whether the offence was considered finished in the eyes of the Department, and what his reporting obligations were.
24.The Applicant deeply regrets the error, and respectfully request [sic] that the Department understand that at no point during the relevant time period did he act in a malevolent manner, or attempt to hide offences from them.
25.For your consideration we have enclosed a proof of His Centrelink Card, see Annexure A.
The Applicant's Character and Good Behaviour
26.We would respectfully submit to the Department that the Applicant has nothing but respect for the laws of Australia, its community and its’ Government.
27.The applicant is very appreciative of the opportunity that was given to him by the Australian community and government and will never forget how Australia saved his family and his life from a war toned Iraq.
28.In a very real sense Australia saved the Applicant's life; that of his family, and he in no way wishes to harm Australians or subvert Australian laws.
29.We would respectfully submit to the Department that in accordance with the test of good character including complying with Australian law in an ongoing capacity as per Singh and Minister for Immigration and Border Protection (Citizenship/, the Applicant has proved his enduring moral qualities as an essential aspect of the "good character'' test.
30.In Singh, Mr Singh's ongoing attempts to hide his dismissal from legal practice in his home country were cause for his citizenship application to be denied. Mr Singh's contention that he had served his sentence for the initial offence in his home country, attempting to offer a witness money to change their evidence, was found to be untrue, and the ongoing nature of his hiding this from legal practice boards in Australia demonstrated his lack of enduring moral qualities.
31.The Applicant, Mr Yas, has accepted responsibility for the offence and plead guilty at the first instance as he believes strongly in doing the right thing. Further, as shown by the Applicant's, criminal history check, he has since immigrating never received so much as a speeding ticket outside of this offence.
32.Further, Mr Yas has always tried to set a good example for his child, an Australian citizen growing up in Australia who know [sic] nothing else than Australia's laws and values.
33.In fact, the applicant has informed us since he has pleaded guilty to the offense, he have [sic] been actively in involved in his community educating others of members of how buying and selling motor vehicle without license is an offense.
34.You wiII find attached to this letter three-character references declarations who are able to provide evidence as to my reputation and contribution to the community, please see Annexure B.
Assessment for Citizenship
35.We would respectfully submit to the Department that the offence was not a serious one, and the applicant was fined $12,500. The applicant was not given a prison sentence or otherwise given ongoing court obligations.
36.We would respectfully submit that the behaviour that lead to the offence is not a pattern of bad behaviour: it was a simple mistake, which the applicant regret [sic] immensely, both for himself, and his community and as he wants to set a good example for his child.
37.The applicant understands that ignorance of the law is no excuse, however he did not intend at any point to mislead anyone or break any laws regarding the buying and selling of vehicles. When he found out that he had committed an offence, he immediately stopped, and plead guilty at the first instance.
38.We respectfully submit that the offence was not a premeditated attempt to deceive or con the public, and was a genuine mistake that I [sic] have owned up to.
39.Further, Australian society is at no further risk of the applicant repeating the offence, as he is now fully aware of the consequences of his actions and shall not repeat anything similar or anything that will break the Australia laws.
Mitigating Circumstances
40.We respectfully submit to the Department that the applicant's English language ability has played a not insignificant role in his offence. We submit this not to excuse his actions but to explain it, and demonstrate that he has accepted responsibility for his actions.
41.We submit to the Department that at all other times he has acted as a respectful and law abiding member of Australian society. The character references from members of the community will also demonstrate this.
42.the applicant has been in Australia since 1 May 2015, he always respected the Australian laws and was dealing with motor vehicles without a license, once he was notified by the Department of Commence that his dealing was illegal as he did not have a license he stopped and pleaded guilty to the offense at first instance.
43.We would respectfully submit to the Department that his National Police History Check is indicative of his pristine record in obeying and upholding the rules of Australia society, as well as my [sic] commitment to the community.
44.Further, we would respectfully submit that his stable family life, raising a child to uphold those same Australian values and be a contributing part of their community.
The Behaviour in Question
45.We would respectfully submit to the Department that, whilst the application [sic] does not deny the wrongness of his actions, the evidence that has presented to the [sic] is proof of his general good character, and that a person of good character is capable of making a mistake.
46.Further, we would respectfully submit to the Department that taking full responsibility for making that mistake is further proof that he is of good character, as a person of good character takes responsibility for their actions when they do something wrong.
47.We would respectfully submit to the Department that on the weight of the applicant's National Police Certificate, his character witnesses, his long history of a stable family life in Australia that he always upheld and obeyed the law and behaved in accordance with Australia's community standards, even when having committed an offence.
48.Australia is a country of plenty and opportunity, and the applicant is proud to raise his family to share its democratic beliefs, rights and liberties that are so important to him.
49.The applicant believe [sic] Australia is a just and merciful country, and even having committed the offence he has been always been treated fairly under Australian law.”
HEARING
Under cross-examination the Applicant stated:
·He was convicted on 25 May 2018 for his involvement in an unlicensed motor vehicle dealing operation and was fined $12,500.
·He claimed his conduct in buying and selling cars was normal in Iraq.
·He started buying and selling cars in 2015/2016, and did not see it as a business but more as a hobby and addiction.
·In Iraq he sold three to four cars each week. Asked if he told his lawyer this during the case before the Magistrate he said he could not remember.
·The Applicant was referred to (R4, 3) and asked to explain the following statement:
…that as I explained the relationship to his brother, they came from low socioeconomic backgrounds. They didn’t own cars. It was their dreams to basically buy and change cars and they have basically – difficulties in their countries in doing so
He couldn’t remember if he told his lawyer this.
·He confirmed he bought 83 vehicles in his own name and 23 vehicles in his wife’s name.
·When asked why he purchased vehicles in his wife’s name he said because she liked cars. When asked whether his wife kept them he said he couldn’t remember.
·He said he had no idea he was doing anything wrong.
·When asked why he didn’t make inquiries before embarking on buying and selling cars, he said he had poor command of English, he was caring for his father and in his mind at least was not doing anything wrong.
·He kept no records of repairs to vehicles and suggested he would not, as maintenance consisted of changing a light bulb or matters dealing with a tyre. He could not remember paying anyone to maintain the cars.
·He claimed if he was making a profit it was very small, yet the respondent referred the Tribunal to the Sentencing Transcript (at R4, 2) in which the prosecution stated:
From 4 March 2016 to 2 October 2017, a period of approximately 19 months, the accused purchased 83 vehicles from Pickles Auction Manheim Proprietary Limited and Private sellers and sold 83 vehicles under his own name making an estimated on paper profit of $49,925.00
He purchased 23 vehicles and sold 23 vehicles under the name of his wife … making an estimated on paper profit of $11,700.00
The Applicant acceded that he pleaded guilty to these facts in the Magistrate’s Court.
·Asked why, if he disputed these facts he did not raise them with his lawyer, he said he had no satisfactory explanation.
·He has not worked in Australia since arriving and is on social security benefits.
·He wanted to be an Australian citizen because he was proud to be an Australian. His mother became an Australian citizen two or three years ago.
The Respondent submitted that the Applicant had failed the character test pursuant to s 21(2)(h) of the Citizenship Act for the following reasons:
·The Respondent accepts that the Applicant has only one criminal conviction.
·The offence and conviction in 2018 was very recent.
·It is accepted that the offence was not violent.
·There is a significant impact on consumer rights, in the context of the sale of cheap cars and particularly their safety. It is noted that few repairs were undertaken by the Applicant.
·Vehicles in need of repair were quickly sold on to innocent consumers.
·The Applicant is inconsistent about the level of profit he was making.
·No records were kept by the Applicant.
·The offence was serious and was the product of reckless and indifferent conduct.
CONSIDERATION
In determining whether the Applicant was of good character at the time that the Minister made his decision, the Tribunal must take into account a number of considerations. These are outlined below.
Was the Applicant of good character at the time of the Minister making the decision?
The Tribunal notes the Magistrate’s sentencing comments from 25 May 2018 (R4):
HIS HONOUR: Mr Yas, please stand up. I explained to your brother, we have a system of laws here to protect consumers and the relevant legislation is the Motor Vehicle Dealer’s Act. Those dealers pay a fee to be registered motor vehicle dealers. They have overheads. They can be – consumers can go to the courts and get a result if there’s a bad motor vehicle dealer. You operated completely outside all of that. You took part in 83 separate transactions.
That is a cost to the motor vehicle dealing industry, because they aren’t buying and selling those cars; you are. Being motor vehicle dealers, they’re entitled to the protection of the law from people, with respect, like yourself that just go and do it in your backyard. You will be fined the same amount as your brother, $12,500, and if there was going to be a spent conviction application, it’s refused for the same reasons.
…
HIS HONOUR: Mr Ali, I was busy talking to you about the seriousness of the offences …
The Tribunal finds the offence to be a serious offence reflective of the Magistrate’s comments. The Tribunal accepts that the Applicant pleaded guilty.
The Sentencing Transcript discloses that the Applicant did not hold a motor vehicle dealers licence and over a period of 19 months from 4 March 2016 to 2 October 2017 engaged in the illegal activity of buying and selling 106 vehicles; 83 in his own name and 23 in the name of his wife.
The Tribunal notes that the only written submission from the Applicant aside from his solicitor’s response to the Minister’s delegate state (A1):
My name is Ali Mohammed Vas, DOB [Date] 1983 of [Address] WA 6xxx. I have applied for Australian citizenship, application number as above. I have always been of a good character. I have always obeyed the Australian law and have been very helpful to my community. I am very [sic] calm and kind person that I have never had any problem with any one and willing to help others.
I am a carers [sic] for my father I am willing to volunteer in this field to help the Australian community.
I have very good relationship with my neighbours and all people around me.
I promise I will be of a good Australian citizen [sic] and will be doing the best to support Australia and its people. I will always be following the Australian's [sic] law I will teach my children to be a good member of the community.
I know all my privileges and responsibilities of being an Australian citizen. Please consider my application for citizenship and I promise I will be very good [sic] Australian citizen.
The Tribunal is mindful that to attain citizenship, one must satisfy the character test as a citizenship document is an important part of the process of being accepted into the Australian community. The Tribunal notes that Australian citizenship brings both tangible and intangible benefits.
The Tribunal found the Applicant to be a witness who, despite appearing remorseful for his conduct came across as being slightly evasive in answering questions put to him.
The Tribunal finds, having reviewed the evidence before it that the Applicant’s illegal activity was calculated and is not the behaviour of a person of good character. The Citizenship Policy (T6, 85) refers to good character in the following terms:
Good character refers to the enduring moral qualities of a person, and 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.
The Tribunal finds the Applicant has clearly failed this test, by operating a business illegally and whether intentional or not, acting against the laws of Australian society. The fact that the Applicant claims he was not aware of his legal obligations is not a submission this Tribunal finds persuasive.

The Tribunal views the illegal actions of the Applicant as a serious matter and notes he was sentenced on 25 May 2018, just ten months ago.
It is the Tribunal’s view that this is not sufficient time to ascertain whether the Applicant could be a valuable member of the Australian society in future. At this point in time, the Tribunal is not satisfied that the Applicant understands what is required to be a law-abiding citizen of Australia.
The Tribunal accepts that there are no rules or guidelines for assessing that sufficient time has passed for the Tribunal to determine that the Applicant is now a person of good character. The Australian Citizenship Instructions (ACIs) state:
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be “lasting” or “enduring” depends on the merits of each case, but in most cases will go back prior to any visa application (ACIs cl 10.5.4).
The Tribunal notes the case of Assafiri v Minister for Immigration and Border Protection (2014) AATA 35, in which Senior Member Toohey stated:
67.It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
...
71.I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so, as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.
That is not to say that if the Applicant acts lawfully from this time and becomes a productive member of Australian society that a similar application made some time in the future would not be successful.
For these reasons the Tribunal agrees with the views of the Minister, that the Applicant did not satisfy the character test pursuant to section 21(2)(h) of the Citizenship Act at the time of the Minister’s decision.
Was the Applicant of good character at the time of his application: character references
The Tribunal has considered the references provided on behalf of the Applicant.
The Tribunal accepts there are four references and a petition attesting to his character tendered as Exhibits A2 to A5. They fail to disclose knowledge of the Applicant’s offence and are therefore considered to be of little value, apart from describing the Applicant as being friendly, a good personality, a regular volunteer for humanitarian and charity work, trustworthy, respectful and helpful.
The Tribunal also notes the references (at T11, 152-155) which reflect knowledge of his conviction. They reflect a person who is remorseful; a family man who did not intend to break the law.
The Tribunal is mindful of the weight attached to these submissions and is mindful of the bias that might potentially be attached to character references. Having considered these character references the Tribunal is not persuaded that the description of his character outweighs the Applicant’s transgression of the Australian law.
Having carefully considered all the evidence before it, the Tribunal affirms the Minister’s decision that the Applicant did not satisfy section 21(2)(h) of the Citizenship Act at the time of the Minister’s decision on the application.
CONCLUSION
The Tribunal accepts the Applicant appreciates the seriousness of his offence.
It is the Tribunal’s view that while the Applicant may have a genuine desire for Australian citizenship, Australian citizenship is more than a mere piece of paper, it is about a person embodying and reflecting the values of Australian society in everyday life; a person abiding by and upholding Australia’s laws.
The Tribunal notes the comments of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]:
8.The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s time when he can demonstrate a longer period of positive contribution to the Australian community.
The Tribunal is of the view that more time needs to pass before a proper assessment can be made in determining whether the Applicant may be considered to have satisfied the character requirements of the Citizenship Act.
Having considered all the evidence before it, the Tribunal is not satisfied that at 30 June 2018 the Applicant was of good character for the purposes of section 21(2)(h) of the Citizenship Act.
DECISION
For the reasons stated above the Tribunal affirms the decision under review.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.......[Sgd]..............................................................
Associate
Dated: 3 April 2019

Date of hearing: 27 March 2019

Applicant: In person

Advocate for the Respondent: Ms A Ladhams

Solicitors for the Respondent: Australian Government Solicitor

[2019] AATA 629

3 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Date of hearing:	27 March 2019
Applicant:	In person
Advocate for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitor