Mostafa and Minister for Immigration and Citizenship [2011] AATA 49 (2 February 2011)

Last Updated: 2 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/5055

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JIMMY MARTIN MOSTAFA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Ms N Bell, Senior Member

Date 2 February 2011

Place Sydney

Decision

The decision under review is affirmed.

...................[sgd].......................
Ms N Bell, Senior Member

CATCHWORDS - Citizenship – Cancellation of visa – Not of good character - Substantial criminal record - Protection of the Australian community – Family ties and relationships – Hardship

Corporations Act 2007

Mental Health (Forensic Provisions) Act 1990 (NSW)

Migration Act 1951

Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

Ms N Bell, Senior Member

1. Jimmy Martin Mostafa has gone by many names. At the time he made his application to the Tribunal, he used the name Jimmy Martin Mostafa. He currently goes by the name Mose Yair Mordechai and was, most often, referred to by that name by his legal representative throughout the Tribunal hearing. For ease of reference and given that it is the name under which he applied to the Tribunal, I will refer to him as Mr Mostafa.
2. Mr Mostafa is a citizen of the United States, born in Egypt on 18 May 1956. He first arrived in Australia on 9 April 1981 on a visitor visa and stayed for just 19 days. He was 24 years old. Mr Mostafa did not return to Australia until
   2 January 1999 when he entered on an Electronic Travel Authority. He later applied for a family residence visa and then a spouse visa with reference to
   Padma Smith, an Australian citizen, whom he married in January 2001. In 2002, 2003, 2006, 2007 and 2008 Mr Mostafa was charged with and ultimately convicted of a range of offences that attracted sentences of up to 20 months imprisonment that were dealt with by way of a treatment plan under the Mental Health (Forensic Provisions) Act 1990 (NSW). On 10 September 2010, the Minister decided to refuse Mr Mostafa’s application for a spouse visa on the ground that he does not pass the character test in section 501(6)(a) of the Migration Act 1958.
3. Attempts have been made by the Compliance Division of the Department of Immigration and Citizenship to meet with Mr Mostafa, presumably for the purpose of taking him into detention. Mr Mostafa has refused such meetings. Compliance officers also visited his home and, according to his evidence, he hid at the house next door, also owned by him. Mr Mostafa also did not attend the hearing of his application because he had concerns for his liberty. Instead, he gave evidence by telephone.
4. Section 501(2) of the Act provides that the Minister may refuse a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that in 2008
   Mr Mostafa was sentenced for a term greater than 12 months. It therefore follows that he does not pass the character test.
5. The discretion of the Minister to refuse Mr Mostafa’s visa application is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501. This Direction superseded Direction 21 and came into effect on 15 June 2009. The Direction contains a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
6. The primary considerations in the Direction are:
   10. The primary considerations
       • (1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
         • (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
         • (b) whether the person was a minor when they began living in Australia;
         • (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
         • (d) relevant international obligations, including but not limited to:
           • (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
           • (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
             
7. These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.

PRIMARY CONSIDERATIONS

8. The primary consideration most relevant to Mr Mostafa’s circumstances, given his convictions, is the protection of the Australian community. The only one of Australia’s international obligations that arises is that under the International Convention on the Rights of the Child. Mr Mostafa is the father of an eight year old son.

PROTECTION OF THE AUSTRALIAN COMMUNITY

9. The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the seriousness and nature of the conduct and the risk that the conduct may be repeated.
10. Mr Mostafa has the following criminal convictions:
    

Date	Conviction	Sentence
14 June 2002	Make false statement to obtain money (>$15000); Make false statement to obtain money; use false instrument; use copy of false instrument	9 month suspended sentence on good behaviour bond – 9 months
	Use unregistered vehicle on road	Fine $200
	Use uninsured motor vehicle	Fine $200
	Use copy of false instrument (4 counts); make false statement to obtain money (3 counts); use false instrument (9 counts)	2 Year good behaviour bond
	Driver stating false name or address	Fine $500
4 August 2003	Negligent driving (not occasioning death or injury)	Fine $200 and court costs
	Use unregistered vehicle on road	Fine $400 and court costs
	Driving while licence suspended	Fine $600 and court costs; 12 month disqualification
4 September 2003	Not giving particulars to other driver (3 counts)	Fine $300 and court costs
	Negligent driving (not occasioning death of injury)	Fine $300 and court costs
	Furnish false information	Fine $500 and court costs
	Use unregistered vehicle on road	Fine $400 and court costs
	Driving while licence suspended	Fine $800 and court costs; 12 month disqualification
5 October 2007	Make false statement to obtain money (>$15000);	9 months imprisonment – sentence and conviction confirmed on appeal (22 November 2007)
	Assault occasioning actual bodily harm	12 months imprisonment – sentence and conviction confirmed on appeal (22 November 2007)
	Have false instrument with intent to use (26 counts); use false instrument (>$15000) (9 counts)	10 months imprisonment – sentence and conviction confirmed on appeal (22 November 2007)
	Obtain money by deception (>$15000) (9 counts)	20 months imprisonment – sentence and conviction confirmed on appeal (22 November 2007)
8 September 2008	Obtain money by deception (>$15000) (2 counts); obtain money by deception (>$5000 & <$15000)	18 months imprisonment

11. The report of Detective Senior Constable Daniel Hall of the NSW Police Fraud Squad details the circumstances of Mr Mostafa’s 2008 conviction. The report describes an elaborate scheme conducted over some years and involving multiple identities, properties and loans. Mr Mostafa pleaded guilty to the charges and so the facts surrounding the offences and his conviction for them were never examined by the court. However, Mr Mostafa’s plea of guilty and the conviction that followed it must be accepted by me and I cannot go behind it. According to the report of the Fraud Squad, an investigation that took some 20 months revealed a scheme that involved the manipulation of deposit bonds issued fraudulently by a bank employee and used in multiple purported purchases of real estate. A range of false identities were used by Mr Mostafa in these dealings. I note the comment of Magistrate Mottley that the medical reports about Mr Mostafa’s mental illness were in stark contrast to the “elaborate nature of the deception he perpetrated”. She also noted that it demonstrated a “sophisticated way of thinking” and was “an elaborate criminal enterprise”. The crime was serious, involving multiple fraudulent transactions concerning real estate and related estate agent commissions and deposit bonds.
12. Dr John Roberts, psychiatrist, who reported on Mr Mostafa’s mental health for his court hearing, found him to be in a psychotic state and diagnosed paranoid schizophrenic illness. Dr Roberts described behaviour of a bizarre nature, including arriving at his surgery barefoot after having walked kilometres, asserting that his wife and son own Aussie Home Loans, that he controls the events in the Middle East and that he is being watched and threatened by Americans flying in planes.
13. There is no dispute that Mr Mostafa suffered a mental illness at the time. This was accepted by the court and compulsory treatment was ordered.
14. It is noteworthy, however, that Judge Hosking, in his sentencing remarks, quoted Dr Roberts as follows:

In my view, it could be stated on reasonable medical grounds that the impaired cognition associated with the condition paranoid schizophrenia while not preventing the knowledge of right or wrong would on grounds of probability and gender [sic] in Mr Mordechai, a sense of indifference to the outcome of his actions and the consequences of his acts both in regard to himself and others. I would consider that it could be stated on reasonable medical grounds that Mr Mordechai’s illness is a substantial contributory factor to his behaviour, if not necessarily the sole contributory factor.

15. I also note Mr Mostafa’s evidence that the fraud for which he was convicted was the fault of others, including his wife and daughters. Mr Mostafa also said that by pleading guilty he was merely protecting those closest to him by taking responsibility for crimes for which he was not responsible.
16. Mr Mostafa appeared to have little insight into the behaviour for which he was convicted, except to blame his mental illness in tandem with blaming other individuals. He also gave evidence that over the period of the fraud his psychosis “came and went”. He said that now he sees a psychiatrist every 6 months and takes medication.
17. He regarded his psychiatric condition as treated and settled, managed by medication and no longer an influence on his behaviour. No recent expert opinion on Mr Mostafa’s psychiatric condition was available to me and I was unable to observe Mr Mostafa giving evidence. I note that he still made reference to various people and organisations being after him and his family and exhibited a considerable degree of fear of such things. His statements were often inconsistent and sometimes dramatic.
18. In the absence of expert opinion to the contrary, it appears that Mr Mostafa’s mental health may still be problematic. His manner, as far as it could be discerned over the telephone, was exciteable, emotional, and argumentative. I cannot be satisfied that his mental illness no longer affects his actions.
19. Mr Mostafa’s accountant, Mr Andrew Delahunt, gave evidence that
    Mr Mostafa is currently a director of 5 companies, some of which are actively trading. There were, however, inconsistencies between the evidence of Mr Mostafa and that of Mr Delahunt as to the profitability of these companies. Mr Mostafa tended to describe the companies as highly profitable. When the provisions of the Corporations Act 2001 that prohibit directorship by a person with a conviction for dishonesty (section 206B) were pointed out to Mr Delahunt, he professed no knowledge of those provisions.
20. When, on the next day, Mr Mustafa gave evidence to the Tribunal, these provisions had quite properly been pointed out to him by his legal representative.
    Mr Mostafa claimed no earlier knowledge of the provisions. He said he intended to address the problem.
21. Mr Mostafa may be receiving treatment for his mental illness now and some aspects of his behaviour may have changed, but there is no apparent change to his degree of insight into the frauds he perpetrated. He persists in denying responsibility for them. He exhibited no appreciation of the harm he caused or of the seriousness of his crimes. His failure to acquaint himself with the prohibition arising out of his conviction is disturbing. Through his legal representative, Mr Mostafa urged that a “line in the sand” should be drawn after he commenced to receive treatment for his mental illness. However, there is no expert evidence of current treatment or improvements it has given rise to. There is no expert evidence of current mental health. There is no evidence of rehabilitation or recovery apart from Mr Mostafa’s assertions and the fact of no further convictions after 2008.
22. The risk of recidivism is high. In his current capacity as the director of five actively trading companies, he is well positioned to repeat past behaviour. The risk is underlined by Mr Mostafa’s concentrated avoidance of immigration officials. He gave evidence to the Tribunal that he intends to actively avoid detention and refuses to submit to it. He described hiding in his house next door when officers of the department visited and observing their visit. This reflects poorly on Mr Mostafa’s respect for Australian statutory processes and for the rule of law.
23. I consider that the risk posed by Mr Mostafa to the Australian community is high. This primary consideration weighs heavily against grant of a visa.

WHETHER A MINOR WHEN BEGAN LIVING IN AUSTRALIA

24. Mr Mostafa was 42 years old when he commenced to live in Australia. This consideration does not weigh in favour of grant of a visa.

LENGTH OF TIME RESIDENT IN AUSTRALIA PRIOR TO CRIMINAL ACTIVITY

25. Mr Mostafa had only been residing in Australia for less than three years before he commenced criminal activity. This consideration does not weigh in favour of grant of a visa.

INTERNATIONAL OBLIGATIONS

26. Mr Mostafa gave evidence of a close relationship with his eight year old son, born to a woman with whom he had a relationship while he was married to Ms Smith. This gives rise to consideration of Australia’s obligations under the Convention on the Rights of the Child and, in particular, the best interests of the child.
27. Mr Mostafa, when pressed by the Tribunal to provide details of the extent of his contact with the child, said he saw him 15 times in December 2010. The child resides in Queensland with his mother. No statement from the child’s mother was in evidence. However, I note that, in this respect, Mr Mostafa fell foul of the “two day rule” in section 500(6H) of the Migration Act 1958. He said he is close to the child and attends his school and sporting events. He professed close attachment, but said he never enters the house where his son lives because it is against his religious beliefs to enter the house of a woman who is not his wife. Mr Mostafa said he pays $100 per month in child support for his son – not a large contribution to the costs of raising a child.
28. Mr Mostafa said that he travels a great deal for his business and said his wife goes everywhere with him (although earlier he had given evidence that he travels frequently “at the drop of a hat” and gave the impression that he and his wife spend little time together). However, Ms Smith’s evidence was that she only learned about the existence of the child years after his birth, does not want to know about him, and does not want to meet him. She said she wants nothing to do with the matter. This inconsistency, and the absence of any evidence in addition to
    Mr Mostafa’s about the nature of the relationship and plans for future parenting by
    Mr Mostafa, make me doubt the veracity of Mr Mostafa’s evidence about the extent of his involvement with his son.
29. It is clearly in the best interests of a child to have regular and stable contact with both parents. However, the inconsistencies in his evidence and between his evidence and that of his wife and the absence of any corroborating evidence make it difficult to assess the nature of Mr Mostafa’s current relationship with his son. In particular, it is difficult to assess whether he exercises parental rights or has regular meaningful contact with him.
30. I note that Mr Mostafa has two daughters; one in her thirties, married and living in the Unites States and another who has recently turned 18 and lives in Egypt. He has not been closely involved in the lives of his daughters and, according to his evidence, has only very recently commenced to communicate with his his younger daughter. His family is already a scattered one. His three children live in three different countries and he has relatives in the United States, as does his wife.
31. There is no evidence to suggest that Mr Mostafa could not maintain contact with his son if he returned to the United States. There is no evidence as to whether it would be possible for the child to visit his father there, although the attitude expressed by Ms Smith may make that unlikely, assuming she would accompany her husband on his return. There is no evidence to suggest that Mr Mostafa could not continue to contribute $100 per month to his son’s upkeep.
32. Even if I accepted Mr Mostafa’s evidence of his relationship with his son at its highest, I consider that the best interests of Mr Mostafa’s son weigh only moderately in favour of granting a visa.

OTHER CONSIDERATIONS

FAMILY TIES AND RELATIONSHIPS

33. Mr Mostafa gave evidence of a committed relationship with his wife. He gave no explanation for his previous assertions to his legal representative and others, that his wife was behind the fraud he was convicted of. It is possible that those allegations were a product of his mental state at the time. However, I note his evidence in these proceedings that in pleading guilty to the offences he was protecting his wife, among others.
34. Ms Smith gave evidence of assisting Mr Mostafa with his medication and treatment. She said she knows little about the son he had with another woman and that she did not learn of his existence until he was two or three years old. She thinks he is about six years old now and that her husband visits him approximately once a month. She said he calls it “family time” and he goes off on his own, usually overnight. She said she does not ask about the child and does not know the extent of her husband’s financial support of him. She said she has met Mr Mostafa’s older daughter once when she visited Australia in 2002 and has not met the younger daughter. She had no comment to make about Mr Mostafa’s allegations that she had been implicated in the frauds he was convicted of. Her credibility is damaged somewhat by what she told immigration officers when they visited her house. There was some dispute about exactly what she had told the officers who visited, but it was clear that she told them her husband was not there and that she did not know where he was.
35. Ms Smith told the Tribunal that, at the time of the compliance officers’ visit,
    Mr Mostafa was away in Queensland visiting his son. She said she telephoned him there to tell him of the visit. This is in stark opposition to the evidence of Mr Mostafa that he was present during the visit at the house adjacent, also owned by him, and that he observed everything.
36. The other family ties that Mr Mostafa has in Australia are his son in Queensland and a sister in Sydney. As discussed above, it is difficult to assess the nature of the relationship with his son and the frequency of contact. Mr Mostafa said he has close daily contact with his sister and that he set her up in business as a courier. I note that there is no statement in evidence from Mr Mostafa’s sister, that her existence received scant attention in his statement and no mention was made of her at all in Ms Smith’s statement.
37. I note that Mr Mostafa gave evidence that, now, his businesses are managed by his wife and his daughters. In so far as she is concerned, that evidence was not supported by his wife who said she suffers from lupus and that her condition is worsening. I note that Mr Mostafa’s younger daughter is just 18. It seems unlikely that his businesses are being managed in this way. I also note that the provisions of the Corporations Act 2001 may make it difficult for Mr Mostafa to continue his present level of involvement in his businesses.
38. This consideration weighs moderately in favour of grant of the visa.

AGE

39. Mr Mostafa is in his 50s. This consideration is neutral.

HEALTH

40. It is likely that the medication Mr Mostafa is taking is anti-psychotic medication. Mr Mostafa is a citizen of the United States, a highly developed western country. There is no reason that medication would not be available to him in the United States together with appropriate psychiatric care. Similarly, medical care for the heart condition mentioned by Mr Mostafa in his evidence would also be available to him in the United States. No medical evidence of this condition was presented to the Tribunal.
41. However, I accept that any psychiatric condition suffered by Mr Mostafa would make more difficult the process of uprooting and returning to his country of citizenship. It would be a challenging and unwanted event and Mr Mostafa’s mental illness may increase the challenge.
42. This consideration weighs minimally in favour of a grant of visa.

LINKS TO THE UNITED STATES

43. Mr Mostafa has a daughter and a sister in the United States. He asserted regular contact with his daughter and Ms Smith said the daughter had visited Australia to see her father in 2002. Ms Smith has a brother in the United States.
44. This consideration does not weigh in favour of a grant of visa.

HARDSHIP

45. There is no doubt that a return to the United States would impose hardship on Mr Mostafa. He has effectively lived in Australia for 12 years, has married here, fathered a child and established a range of businesses. It is possible, however, that he could be accompanied by his wife, maintain contact with his child and remain involved in his businesses if he was returned to the United States. He could continue to obtain the medical treatment he has here.
46. A return to the United States might also give rise to hardship for Ms Smith. I note Ms Smith’s evidence that she suffers from lupus and that her condition is deteriorating. I also note that no medical evidence of this condition was provided to the Tribunal. In any event, if Ms Smith were to accompany her husband to the United States she would have access in that country to any necessary medical treatment.
47. To the extent that Mr Mostafa has a relationship with his Australian child, the absence of his father would be a hardship for his son. However, I am mindful that father and son live in different states now and there appears to be no intention to reside together. The attitude of Ms Smith to the child would be likely to ensure this.
    Mr Mostafa, if returned to the United States could, as he has with his daughters, maintain contact with his son and his son could visit him. There would be no bar to Mr Mostafa’s continued financial contribution to his son’s upkeep.
48. This consideration, as far as it can be accurately assessed given the inconsistencies in the evidence and the lack of corroboration, weighs moderately in favour of grant of visa.

LEVEL OF EDUCATION

49. There is no evidence of any deficiency in Mr Mostafa’s education that would impact on the exercise of the discretion or the application of the Direction. This consideration is neutral.

FORMAL ADVICE

50. I note that in the Notice of Visa Refusal dated 11 November 2010 to
    Mr Mostafa there is mention of a Notice of Intention to Consider Refusal of
    9 August 2002. Mr Mostafa has been convicted for crimes committed after that date. It could be argued that the Notice of Intention amounted to formal advice about conduct that brings a person within the deportation or character provisions of the Act. This consideration does not assist Mr Mostafa.

THE BALANCE OF CONSIDERATIONS

51. Of the primary considerations, the protection of the Australian community weighs heavily against grant of a visa, while the best interests of Mr Mostafa’s child, weighs moderately in favour of a grant. The paucity of evidence of Mr Mostafa’s relationship with his son and the lack of corroboration of Mr Mostafa’s claims prevent me from giving more weight to this consideration. In the result the protection of the Australian community, which I consider would be at an unacceptably high risk were Mr Mostafa to remain here, tips the balance decidedly.
52. Of the other considerations, Mr Mostafa’s family ties in Australia, his health and the hardship that may be suffered by him, his wife and his son should he be returned to the United States each weighs moderately or minimally in favour of grant of visa. All of these considerations rest on evidence that was often inconsistent and generally not corroborated. Nevertheless, at their highest these other considerations do not outweigh the unacceptably high risk to the Australian community were the visa to be granted.
53. On balance, I consider that the weight of considerations, particularly the primary consideration of protection of the community, is against the grant of a visa.

DECISION

54. The decision under review is affirmed.
    

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: ....................[sgd]..........................................................

Associate

Dates of Hearing 27 & 28 January 2011

Date of Decision 2 February 2011

Solicitor for the Applicant Mr Christopher Levingston, solicitor

Solicitor for the Respondent Ms Alice Linacre, Clayton Utz