Al Ayoubi and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)
[2024] AATA 2667
•30 July 2024
Al Ayoubi and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 2667 (30 July 2024)
Division:GENERAL DIVISION
File Number: 2023/9429
Re:Imad Taha Al Ayoubi
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Member
Date:30 July 2024
Place:Melbourne
The Tribunal affirms the decision under review.
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Dr Stewart Fenwick, Member
Catchwords
CITIZENSHIP – application for citizenship by conferral – national of Lebanon – whether applicant is of good character – convictions for family violence and other acts of violence – multiple traffic offences – consideration of time passed since most recent offending – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
David John Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660
Lesi v Administrative Appeals Tribunal [2015] AATA 1186
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Dr Stewart Fenwick, Member
30 July 2024
BACKGROUND
Mr Al Ayoubi applied on 7 December 2023 for review of the decision of a delegate of the Respondent Minister, dated 30 November 2023, refusing to approve the Applicant’s application for Australian citizenship. This decision was made on the basis that Mr Al Ayoubi was considered by that decision-maker not to be of ‘good character’, under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Applicant is a national of Lebanon who has lived in Australia since mid-2008. He first arrived on a prospective partner visa, and was later granted permanent residency. Relevantly for the purposes of this application, Mr Al Ayoubi has a criminal record comprising nine appearances before local courts in two Australian states between October 2009 and January 2023. The majority of offending arising on these occasions has been driving related, and there are also convictions for domestic violence and other violent offending.
Mr Al Ayoubi was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (SFIC), dated 19 April 2024 (ASFIC), a bundle of Statutory Declarations (Exhibit A1), a chronology (Exhibit A2), and a bundle of evidence (Exhibit A3). Mr Al Ayoubi and his wife gave evidence at the hearing.
The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T), a SFIC dated 24 May 2024 (RSFIC), and a bundle of material obtained under Summons (Exhibit R1).
The Applicant’s representative raised on objection in respect of two paragraphs of the RSFIC ([20]-[21]) because they adopt quotations located in summons material. It was contended that the material is prejudicial and second-hand hearsay. The Respondent submitted that the material would be put to witnesses, and that there is no obligation to call makers of statements for cross examination (relying on Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106, [69]). I determined that material lodged would be considered and weight afforded in the light of evidence given at the hearing.
LEGISLATION
The provision regarding good character is one of a number of stipulations provided for in the general eligibility requirements of the Act (s 21(2)). Good character is not defined but the phrase has been interpreted in court decisions and I summarise some of the pertinent observations made:
(a)it should be used in its ordinary sense, but can be understood as referring to enduring moral qualities rather than just a person’s standing in the community (David John Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660 (Irving));
(b)despite conviction for a serious crime, a person may show that they have reformed and are of good character (Irving);
(c)it is a matter of judgment as to whether any proved deficiencies in their moral qualities are sufficient to deny citizenship (BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (BOY19)); and
(d)a decision-maker must therefore reach an affirmative state of belief that an applicant is of good character, but this does not need to be attained with a high degree of confidence (BOY19).
Consideration may be given to Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) which is designed to assist decision-makers in exercising discretion as to determining a person’s good character. In addressing moral qualities, CPI 15 refers to concepts including: characteristics demonstrated over a long period of time; distinguishing right from wrong; and, behaving ethically and conforming to the rules and values of Australian society [3.3].
CPI 15 states that as a general proposition, a person of good character would abide by the law, and not be violent or cause harm to others (such as through repeated examples of recklessness exhibited by negligent or drink driving) [4]. It goes on to state that factors including expressions of remorse or the time that has passed since wrongdoing may be relevant to an assessment of character.
With respect to taking criminal offending into account, CPI 15 sets out considerations relating to criminal conduct. It identifies offences that may be considered serious, such as crimes of violence and domestic violence, and crimes that might be considered minor such as certain traffic offences (such as those attracting on-the-spot fines) [12.1]. CPI 15 also identifies relevant factors such as the sentences received, who the victims of offending were, and whether there is a pattern of offending [12.2].
ISSUES
The single issue before me is whether I consider the Applicant to be of good character at the time of my decision.
EVIDENCE
The national criminal history check lodged in this matter (T16) indicates as follows:
(a)Common assault (DV)-T2: two convictions, one in April 2012 for which a community service order was imposed, and a second in June 2014 leading to a two year bond;
(b)Affray-T1 and Assault occasioning actual bodily harm in company of other(s)-T2: convictions on both charges in May 2010, with a bond of twelve months upon each charge;
(c)Resist or hinder police officer in the execution of duty and Police pursuit – not stop – drive dangerously – 1st off-T2: convictions on both charges in November 2010, with each attracting an 18 month disqualification and an 18 month supervision order;
(d)Various driving offences:
(i)on the same occasion in November 2010, conviction on five separate charges relating to driving conduct with outcomes including fines, disqualification for three months, and one ‘conviction with no other penalty’;
(ii)convictions in December 2014 on three charges including drive while licence cancelled and with an expired licence (prior offence) resulting in fines;
(iii)convictions on two charges in December 2016 including drive motor vehicle during disqualification period (second+ offence) leading to larger fines than on prior appearances ($500 and $1000); and
(iv)convictions for drive motor vehicle during disqualification period (second+ offence) in February 2019, and for unlicensed driving and speeding in January 2023, with the matter adjourned.
I summarise from Mr Al Ayoubi’s declaration (Exhibit A1):
(a)he arrived in Australia with limited English, was introduced to the wrong people and had no idea of the law ‘making multiple mistakes over and over’;
(b)he changed states to start a new life with his family;
(c)he experienced difficulty booking a driving test due to the form of identity required; and
(d)‘I’m trying to do my best to do the right things and I’m not given that chance please tell me what I need to do. How I can support my family how I can work or take my wife or daughter to hospital …’.
Evidence was given at the hearing concerning Mr Al Ayoubi’s family background, including the difficulty he experienced travelling to visit his family in Lebanon. Mr Al Ayoubi also gave evidence that he adapted relatively quickly to the English language on arrival and also about his unhappy first marriage, which was an arranged marriage.
The Applicant initially had difficulty recalling the circumstances of his violent offending in 2010, but thought that it involved a dispute with his current wife. He described the circumstances of his 2012 domestic violence offending as involving his first wife, in an incident in which he stated that she had ‘thrown’ their child leading to him losing his temper. Mr Al Ayoubi also stated that his current wife was the victim of his 2014 domestic violence offending, which took place after the consumption of a large amount of alcohol at a function.
The Applicant was asked if he accepted that partners should not be assaulted and responded that he ‘admits that’. He agreed that he plead guilty to these domestic violence charges, but also appeared to quibble with a charge of assault and that he ‘just said ‘guilty’’.
Mr Al Ayoubi stated in evidence that his life changed when his daughter was born in early 2016. He stated that he no longer drinks alcohol and that he feels disgusted about his prior alcohol use. The Applicant stated that at the moment he is the ‘ideal father’, sending money for his first child interstate, and has a very strong bond with his daughter. His wife also changed him ‘for the good’, they support each other, and he is committed to his family.
The Applicant moved interstate in mid-2023 (Exhibit A3) and he described this as a ‘big step’ that changed his life, as he had ‘very bad friends’ and there was a ‘toxic atmosphere’ in his prior location. His wife had however travelled back for family reasons but at these times he is responsible for the care of his daughter.
I asked Mr Al Ayoubi to elaborate on the reference to his circle of friends and how this related to his offending. He replied that his record only extends to traffic offences and he has no violent offences, stating ‘I haven’t hurt anyone’, but noting that he ‘had a crazy side’.
Mr Al Ayoubi gave evidence about attempting to regain his driver licence after his move interstate. This had been complicated due to his passport expiring, but he had now obtained a learner permit and was seeking at the time of the hearing to undertake an online safe driver course.
Mr Al Ayoubi stated further that he intends to make sure he keeps his new licence and obey the rules from now on. He wishes to continue to operate his own business and to be a good citizen. The Applicant stated he fell in love with the country on arrival, understands its values, and wishes to have voting rights.
In cross-examination, Mr Al Ayoubi was asked about his first recorded conviction for driving while never having held a licence, which occurred approximately a year after his arrival in Australia. He explained that he had experienced difficulty obtaining a licence, was driving on an international licence, and was not aware of the rules.
The Applicant was then asked about a conviction involving a police pursuit, which he explained by reference to a fear of police violence in Lebanon. Mr Al Ayoubi also acknowledged being subject to capsicum spray and the associated conviction for resist or hinder police. This, he stated, was because he did not understand the police direction to lie down.
Mr Al Ayoubi also relied upon his prior life in Lebanon to explain driving while using a mobile phone, for which he was convicted in late 2010. The Applicant stated that he understood why this conduct was not safe and also expressed regret for repeat instances of unlicensed driving.
Reference was made to summons material in cross-examination concerning the 2012 domestic violence offending. Mr Al Ayoubi stated that he swore he could not remember, but denied using offensive language with his ex-wife and challenged the description of events in the materials. He stated further that he pleaded guilty on this occasion without understanding the situation.
Similarly, summons material was referred to in support of cross-examination about the 2014 domestic violence offending. The Applicant stated he was ‘very drunk’ and it ‘could be right, or it could be wrong’ that he used abusive language toward his current wife in that incident. He denied throwing her to the ground, and explained that she threw herself out of their car, while he was driving, and that upon arriving home he returned to the scene to pick her up. The Applicant stated that there was a crowd of people and an ambulance in attendance, she was unconscious, and that he rode with her to the hospital.
When asked about a conviction for speeding and unlicensed driving in early 2023, Mr Al Ayoubi acknowledged this was wrong, explained that he was returning from work and the car had been on cruise control at the time.
Mr Al Ayoubi further stated he was seeking to undertake a safe driver course, and that a long time ago he had participated in a course related to domestic violence offending. He also recalled a course addressing the consequences of accidents. It was put to the Applicant that he had many opportunities to reform, and he stated that he received little help upon arrival in Australia. He then confirmed that his sister and brother were living here when he first came, who had been very supportive.
In her declaration (Exhibit A1), Mrs Ayoubi states:
(a)the Applicant demonstrates loyalty and kindness to everyone, including helping elderly people with their shopping trolleys and when crossing the street;
(b)he was guided in the past by his former friends and is surprisingly gullible; and
(c)she has taught him Australian rules and he is now a responsible and respectable man and father.
In her evidence, Mrs Ayoubi stated that one domestic violence incident arose from her throwing a cigar and a drink at the Applicant, hitting him in the eye, and another when she threw herself from a car. She was very drunk at the time and the incident started when she started a fight from childish behaviour.
Mrs Ayoubi described her husband as now being ‘a little angel’ noting there had been no further incidents, and he had taken over ‘one hundred percent’ when she experienced health problems in her eye, reducing her sight. She stated that she also had other health issues from late 2020. Mrs Ayoubi stated that some driving offences had arisen from the Applicant driving her to appointments when unwell.
Mrs Ayoubi stated that the Applicant is ‘beautiful’ as a husband and father. While she acknowledged that she is still living interstate, Mrs Ayoubi noted that she is progressively moving back, and would be home with the Applicant in six weeks. She explained that she had been on a carer payment while caring for her parents interstate, and that the Applicant received a single parent pension due to her being interstate.
In cross-examination, Mrs Ayoubi was also taken to alleged facts relating to the 2014 domestic violence incident. She challenged details arising from statements given by eye-witnesses, countering that she had heard they were across the road at a pub. When it was put to the witness that she had possibly been unconscious, Mrs Ayoubi responded that her account of the circumstances was consistent with what she had been told by others after waking.
Other evidence
I note other supporting declarations (Exhibit A1), and other references (Exhibit A3):
(a)a recent employer of the Applicant describes Mr Al Ayoubi as ‘extremely respectful’ and that not being able to get about independently to provide for his family takes a toll on him;
(b)a work colleague states the Applicant is well-mannered and also known as a ‘giant baby’ who has recently shown ‘big changes’ in his behaviour and is deserving of a chance to prove himself;
(c)a current employer who also knew Mr Al Ayoubi interstate, states that he is remorseful for his past actions and has ‘improved his character dramatically’; and
(d)the leader of a Muslim community group describes the Applicant as very active as a volunteer who has worked hard on himself over the past three years, and is committed to his family and community.
Material lodged by the Applicant (Exhibit A3) includes medical reports confirming that Mrs Ayoubi experienced a number of medical issues in the past including having an eye injury and surgery for this between 2015-2017.
In addition to the brief references to summons material above in respect of the two domestic violence convictions, I note as follows:
(a)2012 incident: some three weeks after separating, the Applicant was found by the victim standing outside her apartment when leaving to go out, this led to both verbal abuse and physical contact which was witnessed by a further person who refused to provide a statement (Exhibit R1, 9);
(b)2014 incident: after many hours of drinking together the Applicant and the victim drove home together when he pulled over and abused the victim telling her to get out of his car, then throwing her to the ground with her purse and driving off; this was witnessed by a number of passers-by (described as driving slowly past, and in the park nearby) who called police who found the victim unconscious; and, the Applicant was identified upon his return to the scene, arrested and taken into custody.
CONSIDERATION
At the hearing it was submitted for Mr Al Ayoubi (in summary):
(a)the Applicant is a man of humble origins who experienced a difficult first marriage but is now a committed family man;
(b)he has reformed, and has not offended against another person since 2014;
(c)convictions on two occasions since having a second child and once since moving interstate (a turning point in his life) is not inconsistent with good character, and he completed a safe driver course;
(d)the Applicant’s evidence about the circumstances of his domestic violence offending should be preferred to the accounts in summonsed material;
(e)Mr Al Ayoubi plead guilty to this offending, therefore accepting responsibility and the sentencing outcomes are a guide to their relative severity; and
(f)there is no ‘pattern’ of offending behaviour and the Applicant has significantly reformed.
It was submitted for the Respondent at the hearing that contemporaneous records of the domestic violence offending were relevant, and should be given due weight against the grant of citizenship. Further, the Applicant’s evidence about the reason for his guilty plea to the 2012 incident shows a lack of insight, and the written record of the 2014 incident was more reliable than that provided in evidence. This, and the other violent offending are matters of concern, and there is limited tangible evidence of any steps to rehabilitate.
It was contended that there is a pattern of repeat offending following the Applicant’s first conviction approximately a year after arriving in Australia. He has also continued to offend after his attempt at a fresh start by moving interstate. Overall, it was submitted that Mr Al Ayoubi has failed to take advantage of opportunities for reform, and the latest attempt through a safe driving course occurred only following the rejection of his citizenship application.
The Respondent’s representative acknowledged the positive references provided in favour of the Applicant, however it was contended that his past conduct should be considered a more objective guide to his character.
I have read the parties’ written submissions and consider that the summary of oral submissions reflects the substance of this material, with the following further references:
(a)the ASFIC cites a definition of a ‘serious offence’ from a different Division of the Act to that applicable in this matter (based in s 34(5)) and said to require a sentence of at least 12 months; and
(b)it is formally contended in the RSFIC that insufficient time has passed since Mr Al Ayoubi’s most recent offending to demonstrate that he has reformed, particularly with regard to his longer history of driving offences [33]-[34].
I note also, briefly, that the Applicant’s representative contended that Mr Al Ayoubi’s application for citizenship could be deferred (Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132), however I consider that the Respondent’s representative correctly observed that the legislation does not permit such a course (Lesi v Administrative Appeals Tribunal [2015] AATA 1186).
The starting point for an assessment of Mr Al Ayoubi’s character must be his criminal record. I consider his record of convictions objectively to be extensive, albeit there are more years since the Applicant has lived in Australia in which he has not received a conviction than those in which he has. There are unarguably three instances of violent offending, but the majority of his offending clearly falls into conduct of much lesser seriousness.
I have been urged to focus on the fact that Mr Al Ayoubi received sentences of community service and a bond for his domestic violence offending. The Applicant also received a bond for his conviction for assault. However, I consider that CPI 15 appropriately categorises such matters as examples of serious offending. While I accept that this policy guide also holds that the length of sentences should be considered, conviction for these kinds of offences alone is itself a marker of their seriousness.
Equally, driving offences might be objectively categorised as relatively lesser in kind than more serious forms of criminal activity. However, I consider that CPI 15 appropriately observes that repeated examples of such recklessness places others at risk of harm, and may therefore be contrary to good character.
Accordingly, I find that Mr Al Ayoubi’s criminal record weighs substantially against him in terms of his good character. I turn back to the 2014 incident of domestic violence below.
Against this, I must give due consideration to any relevant mitigating factors. Mr Al Ayoubi has undoubtedly presented a very positive set of personal references. Moreover, the direct evidence of Mrs Ayoubi and of the Applicant himself speak of a person starkly different to the person who is responsible for this history of wrongdoing. I accept this evidence and I must give it appropriate weight.
Unfortunately, I must moderate the overall impact of the evidence that is favourable to Mr Al Ayoubi. I consider that the Respondent is correct in arguing that the Applicant sought in evidence to downplay the seriousness of his domestic violence offences, and that this is an important indicator of a lack of insight. Likewise, he continually provided explanations for his repeated issues with managing to maintain a driver licence. This alone is a critical factor in my overall consideration, more so than the apparent lack of objective evidence about rehabilitation through formal mechanisms (of which there is little to none).
Critically, I found the evidence given about the 2014 incident of domestic violence wholly unsatisfactory. I broadly accept the contention put for the Applicant that a degree of caution ought to be exercised when taking uncorroborated written reports of historical incidents into account. However, there is such a significant divergence between the account given at the hearing and that which emerges from the material that I find that more caution should be exercised in accepting the oral evidence. Specifically, the witnesses accepted that they were affected by alcohol, and this appears to be substantiated in Mr Al Ayoubi’s case by his belief he accompanied his wife to hospital when the record indicates he was taken into custody.
Notwithstanding the time that has passed since Mr Al Ayoubi’s few instances of serious offending, I consider that the 2014 incident alone qualifies as a matter of real and substantial concern. Does this single instance outweigh the good qualities of Mr Al Ayoubi attested to in other evidence (see Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326)? In short, given the evident weakness of memory affected by alcohol, and indeed Mr Al Ayoubi’s poor recall of his more serious offending in general, the answer is ‘no’.
However, that said, I consider that the Applicant’s lengthy record of offending, his serious offending, and repeat instances of driving offences – including quite recently – together with his efforts to minimise the nature and seriousness of his conduct, must weigh conclusively against a finding that he is of good character.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Member
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Associate
Dated: 30 July 2024
Date(s) of hearing:
3 and 6 June 2024
Counsel for the Applicant
Ms Nilanka Goonetillake
Representatives for the Applicant
JDE Migration Solutions
Solicitor for the Respondent:
Ms Mary Baras-Miller
Solicitors for the Respondent:
Australian Government Solicitor
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