Aljobori and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 4070
•1 December 2022
Aljobori and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4070 (1 December 2022)
Division:GENERAL DIVISION
File Number: 2021/5366
Re:Mohamed Aljobori
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Dr Stewart Fenwick, Senior Member
Date:1 December 2022
Place:Melbourne
The decision under review dated 12 July 2021 is affirmed.
...................[sgd].....................................................
Dr Stewart Fenwick, Senior Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – national of Iraq – humanitarian visa holder – whether applicant is of good character – prior incident involving disruption of aircraft flight – whether information withheld in the immigration process and in declarations made – no negative security assessment – no other conduct or offending history – substantial physical disabilities – 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
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
1 December 2022
background
Mr Aljobori applied on 6 August 2021 for review of the decision of a delegate of the Respondent Minister on 12 July 2021 to refuse his application for conferral of Australian citizenship lodged on 14 December 2015.
Mr Aljobori is a man of nearly 60 years who arrived in Australia from Indonesia in October 2011 having been granted a Refugee and Humanitarian (subclass 200) visa. He and his family had earlier left Iraq in mid-2007, and were recognised as refugees by the United Nations High Commissioner for Refugees (UNHCR) in Jakarta.
The issues arising in this matter all stem from Mr Aljobori’s actions on a Royal Jordanian Airlines flight in September 2000. There is no dispute that the Applicant was indeed involved in an incident on a flight, and it was this fact, and certain omissions about his travel record said to be made by Mr Aljobori in his visa and citizenship applications, that underlie the refusal decision. The delegate determined that the Applicant was not of good character under s 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
The Applicant is a veteran of the Iran-Iraq war and at the time of the incident on the flight was an amputee, having lost his left foot as a result of the conflict. Mr Aljobori is now a double amputee, having lost his right arm below the elbow in an accident in 2016, in which he sustained several other injuries.
The Applicant was previously known by another name and legally changed his name to his current name in 2013.
Mr Aljobori was represented at the hearing, and lodged written submissions and a number of statements, including character references. At the hearing, proof of Australian citizenship for his wife and three of his children were accepted into evidence (Exhibit A1). The Respondent lodged a Statement of Facts, Issues and Contentions (SFIC), documents under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents) and Supplementary T documents (ST). A Hearing Book (HB) incorporating the Applicant’s material was also lodged.
I note that the Respondent lodged both redacted and unredacted versions of the T documents. The Tribunal, differently constituted, prohibited disclosure of certain material contained in the T documents by way of an order pursuant to s 35 of the AAT Act. The primary reason for this was due to the presence of internal legal advice concerning the manner of use of a security assessment. Certain unrelated information concerning departmental processes appears also to have been redacted. I have not relied on any redacted material in the course of this matter, except to note that it appears the obtaining of legal advice may have caused a delay in the finalisation of the application for citizenship.
Evidence was given at the hearing by Mr Aljobori, assisted by an interpreter in the Arabic language. Three of the Applicant’s referees also gave evidence.
legislation
Section 21 of the Act provides that a person may apply to become an Australian citizen, with its subsection (2) setting out grounds of eligibility. There are eight grounds of eligibility and all are cumulative, that is they must all be satisfied. Thus, 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…’.
The provision and its application in Tribunal proceedings was the subject of detailed consideration in the decision of O’Bryan J in BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (BOY19). His Honour considered that the phrase ‘good character’ has no fixed or precise meaning but refers to a person’s enduring moral qualities, and its assessment requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the grant of citizenship ([51]).
As to the manner in which such a judgment is arrived at, O’Bryan J found that the provision requires a decision-maker to reach an affirmative belief that an applicant for citizenship is a person of good character (BOY19, [55]). This finding is neither the mere chance that they are of good character, nor is it one of a high degree of satisfaction.
The relevant policy guidance applicable to this matter is Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15). CPI 15 notes ([3.3]) that ‘good character’ is not defined in the Act but observes that ‘most cases’ adopt the definition of the phrase in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving). In short, it cites a passage from Irving ([431]-[432]) stating that the words should be understood in their ordinary sense, and that means the ‘enduring moral qualities of a person’.
CPI 15 goes on to state that ‘enduring moral qualities’ encompasses the following concepts: characteristics which have endured over a long period of time; distinguishing right from wrong; and, behaving in an ethical manner, conforming to the rules and values of Australian society ([3.3]). It adds that good character should be ‘viewed in a holistic way’ taking into account all aspects of a person’s life that may be relevant.
Certain characteristics of a person of good character are also identified in CPI 15 ([4]), including: respect of the law in Australia and other countries; not practicing deception in dealings with the Australian Government, such as by intentionally providing false information; and, not having been involved in acts of terrorism. These characteristics are said to require consideration in the light of individual cases, and not be applied inflexibly. It is said also to be necessary to take into account other relevant information including remorse or information about their lifestyle generally.
CPI 15 also explains ([8]) that overseas penal clearances are used to ensure that applicants are of good character for the time spent offshore.
Specific factors are also identified in CPI 15 as ones that a decision-maker may consider, with the list provided only as a matter of assistance. It includes ([11.1]):
(a)whether an applicant is a risk to national security;
(b)how they have behaved in interactions with Australian government officials;
(c)whether they maintain associations of concern; and
(d)whether they have ever committed an offence.
Finally, CPI 15 identifies potentially mitigating factors ([14.1]), including: the length of time since any offending; whether they have accepted responsibility and expressed remorse following any offending; and, any other evidence they are of good character.
issues
The single issue arising in this matter is whether Mr Aljobori is of good character.
evidence
Event outline
I consider it appropriate to provide the following outline of key events:
Date Event Reference 28/09/2000 Incident on flight from Yemen to Jordan. Jun 2007 Applicant and family arrive in Indonesia. T31, 225 Oct 2008 Applicant and family recognised as refugees. T29, 219 Feb 2010 Application for Offshore Humanitarian visa. Applicant declares two brothers and two sisters, and employment as a jeweller between 1986-2002. T31 Apr 2010 Interview for humanitarian entry. Applicant states military service record in detail. T34 Personal particulars provided includes: short stays overseas in the last ten years in Doha and Tehran in 2007; and, ‘all visits in the last ten years’ including tourism in Damascus in 2005, and transit in Qatar and Singapore. T35, 289 Statutory declaration of Applicant declares never convicted, no outstanding criminal charges. T36 May 2010 Applicant referred to the Australian Security Intelligence Organisation (ASIO) for a visa security assessment. T9, 90 Feb 2011 Applicant flagged as potentially on Movement Alert List (MAL)[1] and further information was sought including travel history from 1990 to 2000, other countries of residence, and detention and arrest history. T39, T40 Mar 2011 Further interview with responses: previous passport lost in transit; no travel outside Iraq between 1990 and 2000; and, never detained or arrested. T42 Apr 2011 Further request for information and Applicant recorded as responding ‘never’ lived or worked in Jordan. T43 Jun 2011 ASIO provides ‘non-prejudicial’ security assessment. T9, 90 Dec 2013 Applicant interviewed by ASIO. T9, 91; T22, 184 Aug 2015 ASIO provide a ‘Statement of Grounds’ report to the Department of Immigration and Border Protection. T5, 63 Sep 2015 Applicant provided with ASIO Statement of Grounds. T9, 87 Applicant referred for visa cancellation consideration with focus on integrity issues arising from claims made. T22, 184, 189 Dec 2015 In Citizenship application form, Applicant confirms previously known as Mohamed Yasin Humeidi. T3, 20 Answers ‘No’ to question whether ever deported. T3, 28 Feb 2016 Approval of non-cancellation decision for Applicant’s visa. T27 Draft cancellation assessment notes Jordan post confirm no information regarding criminal history in Jordan or Iraq, but incorrect information provided in visa application. T28, 217 May 2016 Response to ‘character’ questions in personal particulars form: ‘No’ to questions about military service and training and if ever deported. T4.a, 52 Jun 2016 Prior delegate determines that Applicant is of good character. T19, 173, 177 Aug 2016 Person of Interest assessment conducted for Applicant with recommendation that a penal certificate from Jordan be requested as Applicant ‘has stated that he resided in Jordan for a period during 2000’. T5, 65 Assessment notes include observation that a ‘refreshed’ alert in 2013 meant that more information had come to light that required resolution. T5, 66 Nov 2016 Departmental system notes of natural justice letter sent to Applicant seeking police certificate from Jordan, stating ‘information available to the Department indicates that you had previously worked in Jordan prior to the incident on 28 September 2000’. T6, 71 Aug 2017 Statutory Declaration of the Applicant’s solicitor regarding efforts to obtain a Jordanian police clearance certificate. T15.a Oct 2017 Departmental system notes record information from Jordanian authorities that Applicant was arrested following incident on plane and, after investigation, deported. Applicant not allowed to enter Jordan again but is not wanted by Jordanian authorities. T16, 160 July 2021 Delegate determines Applicant is not of good character. T21 [1] A database administered by the Department of Home Affairs that stores identities of persons who may be of concern to Australia ( type="1">
The earliest, and most comprehensive account of the incident in 2000 is that contained in the ASIO Statement of Grounds (T9.b). The summary provided ([2]):
In 2000, whilst en route from Yemen to Jordan, Mr Humeidi passed a note to the pilot of Jordanian Airlines flight 709 which said he had been instructed to hijack the aircraft but had no intention of doing so and that he wished to surrender to Jordanian authorities. At ASIO interview in 2013, Mr Humeidi said his brother… instructed him to hijack a passenger plane and said he would kill him if he did not comply. Mr Humeidi said he disrupted flight 709 out of fear for his life, but he never intended to actually hijack the plane. On the basis of available information ASIO assess Mr Humeidi:
a. disrupted Royal Jordanian Airlines flight 709 in 2000, likely as part of a pretext to seek asylum in Jordan by fabricating a story of being coerced to undertake a hijacking;
b. does not maintain an ideology supportive of politically motivated violence or associations of security interest; and
c. is unlikely to engage in activities which would be prejudicial to security in Australia or overseas if he were to continue to hold an Australian visa.
The document goes on to provide further details of the plan including that Mr Aljobori stated that his brother asked him to hijack a plane in return for a large cash sum and a Swiss visa ([14]). It notes that Mr Aljobori did not provide a plausible explanation for this plan but noted that he said he believed his actions would create the impression he had attempted to carry out the request and reduce the likelihood of harm to himself. I note that ASIO state that they have been unable to corroborate Mr Aljobori’s account ([15]), and that he said he continued to receive threatening calls from his brother at the time of interview ([16]).
ASIO also observes that it is possible that Mr Aljobori’s ‘mental health contributed to an inconsistent account of events and may have contributed to his fabrication of a story of coercion …’ ([17]) (referring to indications in the Applicant’s immigration file of a number of mental health conditions). It goes on to propose that Mr Aljobori’s inconsistent explanations and ‘unsubstantiated claims … that he was praised as a hero for his role in averting the hijacking’ leads to an assessment that he ‘intentionally provided inaccurate responses to obscure or frame positively his role in the incident’ ([19]). Moreover, the report goes on to assess that Mr Aljobori was concerned that a ‘truthful account would significantly prejudice’ the security assessment or give cause to reconsider his visa application.
The ST documents comprise media reports about the incident:
(a)the Kuwait News Agency (T48) reported that the Applicant was asked by unidentified parties to hijack the plane but was not willing to hurt Jordan, nor his reputation, nor to carry out the hijacking, and refers to a hand grenade and a fictitious bomb;
(b)another report (T49) indicates that The Associated Press was informed that Mr Aljobori may have made up the story to seek asylum in Jordan and that he ‘constantly changed his confession’. The report also states that the Applicant had been resident in Jordan for several months and had overstayed his residency permit; and
(c)ABC news (an American service) (T50) carried a report titled ‘Reluctant Iraqi Hijacker in Custody’ stating that an Iraqi national handed himself in to flight crew during the last stage of the flight.
Hearing
Mr Aljobori stated in evidence that he was involved in an incident in the year 2000. He also stated that at this time he was not permanently residing anywhere, and was travelling as a tourist. Mr Aljobori stated he had travelled to Iran and Syria, but no other countries before the incident.
When asked about the circumstances of the flight, Mr Aljobori stated that he had spent about one month in Yemen with his sister. He then described a flight path originating in Syria, passing by Jordan and ending in Yemen. Mr Aljobori explained that he intended to collect a Swiss visa from the embassy in Jordan. He then stated that the flight in question was on the return journey from Yemen.
Mr Aljobori initially described the incident in his evidence in this way:
(a)shortly after take-off he pressed the button calling for the flight attendant, stating he had a message to give to the Captain;
(b)he stated that he was scared something might happen to him and wanted some protection, then clarifying that his message was written on a small piece of paper;
(c)he described the message as ‘please be aware I have some security information I need to present to the Captain, I am requested to hijack the plane’;
(d)after giving the message, security staff sat to his front and rear, which he described as being for his protection, and asked him some questions;
(e)upon landing, some officers welcomed him and thanked him for his report and escorted him to a nice room, stating that they need to ask some questions before he could decide where he wanted to go;
(f)he was interviewed by three different departments, including intelligence agencies, which were grateful to him and kept him in a comfortable place;
(g)when asked where he wanted to go, he nominated Iraq and was taken to the border, received a stamp and crossed over; and
(h)on return he was called by Iraqi security who interrogated him, thanked him and presented him with a financial reward, which he then described as coming from the Governor on account of the Applicant not being employed.
Mr Aljobori denied having had any contact with a criminal or terrorist group, but stated he did have contact with his brother prior to the flight who asked the Applicant to visit him in Switzerland. He denied any knowledge of his brother being involved in criminal activity, but stated that it was his brother who had asked him to hijack the plane. Mr Aljobori then stated that the plan was for his brother to supply the Applicant with a visa to Switzerland.
When asked specifically why he had not reported the request made by his brother to the authorities prior to departure, Mr Aljobori stated that he was concerned his brother may have ‘back up’ (interpreted also as ‘some people for support’) on the ground. Asked again about whether his brother was involved in criminal activity, the Applicant stated ‘it is a possibility I am afraid’.
Mr Aljobori stated clearly that he would associate hijacking with bad character and that he was against this, and would ‘rather be with those who report’. I asked Mr Aljobori what he had said to his brother in response to the request, and the Applicant stated he would do what he was asked. This was because his brother was monitoring his movements, then describing his brother as a refugee from Saddam Hussein’s regime.
The Applicant stated further that when he had discussed the details of the plan with his brother, he then advised his brother that he refused to carry it out, and then his brother cancelled the Swiss visa.
In cross examination, Mr Aljobori stated that he ‘swore’ he did not know or understand his brother’s motivation for the hijack request, and he had not spoken to him since this time. He also stated that despite the difficulties the incident has caused, he would report as he had done if put in the same position again.
Mr Aljobori acknowledged the ASIO interview and accepted and agreed with the contents of the Statement of Grounds report, including the description of the incident he had provided. He was unable to recall the observations about receiving calls from his brother. The Applicant disagreed that the account contained in the Statement of Grounds report was inconsistent and implausible.
It emerged from cross examination and questions from myself to the Applicant, that he passed 30 days in Jordan after the incident on the plane. When asked to state what information he had provided during his questioning, Mr Aljobori replied the ‘same provided to this organisation’ (which I take to mean the Tribunal). When presented with information from departmental records indicating he had been arrested and then deported (T16, 160), Mr Aljobori replied: ‘I reported things, they were not chasing me or arresting me, I reported … I don’t know, this is their affair’. He acknowledged informing the authorities that the reason for his conduct was for the good of the relationship between Jordan and Iraq.
Mr Aljobori was asked whether it was correct that he had been deported from Jordan. The form of the question led to some discussion about language with the interpreter, however the question was framed in more than one way in order to convey its meaning. The Applicant’s response was that he was given a choice of where to go, and that he was unaware that he was not entitled to return to Jordan.
When details of media reports were put to Mr Aljobori he denied any threats of violence or the carrying of any weapon or devices. He stated that when asked if he had anything to report, he informed security staff on the plane that he had batteries for a radio, and described himself in this passage of evidence as ‘an informant’. He denied working in, or overstaying a visit to, Jordan.
When taken to the Applicant’s Statutory Declaration prepared with the assistance of his former representative (T11.d), Mr Aljobori accepted that he adopted there the account provided of his ASIO interview. However, he denied stating that he had been in fear of the Saddam Hussein regime.
When taken to his May 2022 Statutory Declaration (HB 3), made at a time when assisted by his current representative, Mr Aljobori reiterated that he handed a note to the flight attendant and that the statement to the contrary (HB 3, [48f]) was incorrect. Mr Aljobori was asked to reconcile the statement that he received a ‘bounty’ from the Iraqi government (HB 3, [48e]) with his evidence about receiving a gift on account of being unemployed. He replied that his ‘wording’ in evidence had been incorrect, and stated that he did not need the money provided. Mr Aljobori stated that he was told ‘good on you, you are in Iraqi champion’.
Mr Aljobori stated that he understood the need to be truthful when submitting immigration forms. It was put to him that the Australian Government might have concerns arising from the incident, and the Applicant replied they should not.
When questioned about details provided in his humanitarian visa application, Mr Aljobori stated that he understood the form to be seeking information regarding places of residence, but was unable to recall if he lived in Syria for a period of time. The Applicant accepted that he had been asked to declare where he had spent time in the year 2000.
Mr Aljobori did not remember having been specifically asked about his travel history between 1990 and 2000, and could not remember whether he had declared no travel outside Iraq in those years. When asked whether he was hiding the incident, Mr Aljobori again stated it was ‘no big deal that requires me to hide it’, stating that he had reported the incident to ‘both countries, including my home country’.
When asked why he had left travel to Syria, Yemen and Jordan out of his travel history in his visa application, Mr Aljobori replied that he ‘was not asked’, and added ‘it is not significant to me’. When asked why he had failed to declare military service in the course of his visa application Mr Aljobori stated that this was ‘incorrect’.
Three witnesses nominated by Mr Aljobori were successfully contacted during the course of the hearing. All formally adopted their written statements, but acknowledged that they were not certain of the purpose of the hearing and none were aware of the incident in 2000.
Other material
In his recent Statutory Declaration dated May 2022 (HB 3), Mr Aljobori states that he was asked to hijack the plane but would never do that ([8]). He also denies there was any disruption to the flight ([9]). Mr Aljobori states further that he is not a religious person ([16]), is disabled ([17]), and suffers poor mental and physical health ([18]), and that any inconsistencies arising from information provided is a result of difficulties with his memory ([19]).
In this statement, Mr Aljobori also states that ‘I am not remorseful for anything because I have not done anything wrong’ ([20]). He goes on to state ‘[t]o the contrary, I am very proud of the 2000 incident as I did report the matter to the authorities & never breached any law or never committed any crime’ ([21]).
With respect to previous declarations made, Mr Aljobori also states that he never concealed any relevant matter from the department ([41]), and that as he did not commit a crime or any wrongdoing, ‘this information was not important/relevant to the process of my visa/citizenship application (at least in my eyes) …’ ([42]). The declaration and attachments also attest to measures taken to obtain clearance from Jordanian authorities.
Mr Aljobori made another Statutory Declaration dated August 2022 (HB 4). In this document, he states that he considers his conduct in Australia has been good, that he has acted in accordance with Australian values, and is well known to be a person of good standing ([19]). He also states that he never said he was proud of his actions in 2000, but he is proud that he did not commit any offence at that time ([30]).
The three witness statements provided by the Applicant (HB 5, 6 and 7) all attest to Mr Aljobori’s positive personal characteristics and his general good character and good standing.
There are further character references found in the T documents, some in the form of Statutory Declarations (T11.b, c, e-h). These statements are consistently of a similar quality and attest to Mr Aljobori’s honesty and good standing in the community.
With respect to medical evidence, I note in particular the report of a psychologist Dr Juliette Hooper, dated in April 2017 (T11.p) in which the writer diagnoses the Applicant with chronic depression (with psychotic symptoms) and anxiety on a background of severe trauma. The writer describes the impact as affecting cognitive function including memory. It is notable that the opinion is written in respect of Mr Aljobori’s presentation prior to his motor vehicle accident in 2016, and the writer expects that the Applicant’s symptoms would have deteriorated as a result.
The report of a Dr Ameer Abud (T10.a) records past medical history including paranoid schizophrenia diagnosed by a psychiatrist, depression, chronic headaches, and post-traumatic stress disorder.
consideration
Submissions
It was submitted for the Applicant that the real question that required attention was what the Applicant had done to justify the decision under review. It was contended that Mr Aljobori did not hijack the plane, and was not equipped to do so. It was also contended he had provided a reasonable explanation for his actions, being his fear for his safety in Yemen. Ultimately, the only person harmed by his actions is the Applicant himself, and it was submitted that ‘sometimes individuals do dumb things’. It was submitted that little weight should be given to the contemporary media reports.
It was further submitted that a level of concern alone was not sufficient to satisfy the legislative test. Mr Aljobori would have been ‘dealt with’ by the local authorities if his credibility was in doubt. Further, the report prepared by ASIO was not prejudicial, and the Applicant’s general conduct in Australia has been positive. Indeed, the Applicant should be seen as vulnerable and fragile.
The Applicant’s representative noted that there was some inconsistency in information provided by Mr Aljobori, and this should be attributed to the elapse of time, and memory failings. It was contended that the Applicant should be believed when stating he was unable to recall certain matters. Mr Aljobori should therefore be given the benefit of the doubt, and may also not have properly understood the forms being submitted.
At the commencement of the hearing Mr Aljobori’s representative also noted that an outstanding request of the Jordanian authorities for a police check had lapsed and was unable to be resubmitted. The Respondent’s representative acknowledged that a certificate was unlikely to demonstrate a record of offending in any event.
The Applicant’s written submission address a number of additional mitigating factors including the length of time since the incident, Mr Aljobori’s age at the time, the fact the flight was not disrupted, his medical and psychological issues, his stable family life, and the support of referees. Accordingly, taking a holistic approach and considering community standards, it was submitted that the Applicant should be considered of good character.
For the Respondent, it was submitted that the assessment of good character is an evaluative task and can be understood by reference to a person’s enduring moral qualities (citing Irving). Appropriate regard should also be had to CPI 15. It was also submitted that the Applicant would retain his permanent visa in the event the decision was affirmed.
It was contended that the evidence demonstrated the Applicant was unable to provide a credible account of the incident on the plane, and Mr Aljobori’s oral evidence at the hearing was implausible. Some weight should be placed on the ASIO Statement of Grounds which was prepared closer in time to the incident (albeit some years later), and prior to the Applicant’s motor vehicle accident. It was contended the evidence indicated that the Applicant was detained for some time before being deported.
It was also contended some regard might be had to the press material lodged (T48, 49 and 50) to the extent it was consistent with the Statement of Grounds. Specifically, direct quotes from officials provide contemporaneous insight into the incident including a threat to kill and the involvement of a fake weapon.
It was submitted some doubt should be cast on the Applicant’s attempt to distance himself in evidence from written submissions by his former representative. It was further submitted that real concern arises from Mr Aljobori’s failure to reveal travel details in his visa application. The Applicant has had more than one opportunity to provide relevant information about his circumstances in different forms, and in interview. Specifically, he had failed to reveal his full travel history when interviewed in March 2011, and his evidence that there was nothing to reveal should not be accepted, since the incident was in fact found in press reports.
With respect to the issue of the impact of Mr Aljobori’s medical conditions, it was contended that the Applicant gave evidence with confidence and volunteered his evidence freely. Further, the passage of time since the incident is not alone sufficient to justify a finding of good character in the absence of genuine remorse or insight, given his evidence he would behave the same way again.
Further, the RSFIC contends that lack of satisfaction of good character may arise from a single incident of sufficient weight and seriousness (citing Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7]). It was submitted that even on its face, the Applicant’s account reflects poorly on him as had he not wanted to conduct a hijacking he might have informed authorities prior to departure. It is contended Mr Aljobori was afforded repeated opportunities to disclose travel to Jordan in 2000, therefore it is reasonable to infer he deliberately withheld it in order not to harm his chances of obtaining a visa. It is also not plausible that the information is not important, as the Applicant has asserted.
It is further contended that honesty in dealing with migration processes is of fundamental importance and any dishonesty must be dealt with firmly. It is submitted that similar conduct has been found to weigh heavily against a finding of good character (citing Jill Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27). Accordingly, considered together with the conduct itself, the inaccurate declarations should be given significant weight.
In respect of any mitigating circumstances, the Respondent contended that the Applicant was an adult at the time of the incident, and has expressed no remorse. Any supporting references should be afforded little weight as they demonstrate no awareness of the incident itself.
Findings
There is no dispute in this matter that Mr Aljobori was involved in an incident in a plane bound for Jordan on 28 September 2000. The material overall demonstrates however that there is no single verifiable account of what took place.
Regardless of some variation in detail, the Applicant appears to have consistently interpreted his actions in a relatively positive light. That is, Mr Aljobori had no intention of causing actual harm and, on the account given at the hearing, saw himself as having averted a security risk. The problem with this interpretation of the incident is of course that it was the Applicant himself who posed the risk through speaking up on board the plane.
Elements of his evidence at hearing mesh with the account given to ASIO some time ago. On these accounts, Mr Aljobori felt some form of threat or pressure from his brother which somehow compelled him to convey a message, albeit reluctantly, about a hijack plan. This rationale was, however, rejected by ASIO.
There are indications on the material that Mr Aljobori may not be reasonably considered to be entirely culpable for his actions. One such indication is the role of the Applicant’s brother, although I consider it appropriate to give some weight to the ASIO assessment that the story lacks credibility. Another is the contemporary press report stating that Mr Aljobori had given conflicting accounts of his intentions at the time of the incident. Another element is the possibility that Mr Aljobori has been burdened by mental health issues for some period of time. ASIO noted, for example, that the Applicant appeared to have one or more mental health conditions. Certainly, ASIO was satisfied that Mr Aljobori did not present a security risk, which I consider also speaks to his culpability in 2000.
However, in the absence of more detailed evidence of the Applicant’s mental health situation that is rather more contemporaneous to the incident itself, I cannot reasonably understand Mr Aljobori as lacking an element of moral culpability. While the true nature and circumstances of the incident remain obscure, the act of raising a significant security risk is not unpardonable simply due to an asserted absence of malice on the Applicant’s part, and the apparent absence of penal consequences on the part of local authorities.
Moreover, Mr Aljobori presents as entirely ignorant of the seriousness of his actions. He does not appear to understand that his personal narrative of the event strains credibility, and compounds this by maintaining the view that he would conduct himself in the same way again. Given the medical evidence that I do have, I consider that there is a real chance that Mr Aljobori’s statements in writing and at the hearing could be influenced in some way by his mental health situation. It would be appropriate, therefore, to take this into account by way of mitigation.
I understand the Respondent’s submissions to promote a view that the Applicant repeatedly failed to disclose his historical travel record. I consider the evidence to demonstrate that Mr Aljobori was afforded at least two clear opportunities to do so, being the responses given in personal particulars provided in April 2010, and during the follow-up interview in March 2011. The material before me and his own evidence at the hearing indicates that the Applicant did not disclose his travel accurately.
In the absence, for example, of clear medical evidence contemporary with or pertaining to the time at which Mr Aljobori was applying for his visa, I can only conclude that his failure to disclose his travel history was deliberate. This is the finding made by ASIO, which I accept. I do not have before me the further medical material that organisation appears to refer to (T9.b, 91). I consider the Respondent’s contention that this was in order that this application was not compromised to be a reasonable and logical interpretation of events. This interpretation is strengthened by the Applicant’s own evidence to the effect that he did not consider he had anything that he needed to conceal. If that were in fact the case, then it is reasonable to conclude that he would, at the opportunities afforded to him, have in fact accurately disclosed his travel.
I cannot speculate as to the likely course of events should Mr Aljobori have accurately disclosed his travel history. I infer from the material before me that there may have been alerts or notifications regarding the incident, since a particular effort appears to have been made to conduct the further interview during the visa process. More importantly, it is almost impossible to determine what the response of the relevant decision makers might have been.
This, however, is not the basis on which the Respondent has put its case. The contention is that it was not appropriate for Mr Aljobori to withhold the information. I note, here, the reflection of O’Bryan J in BOY19, that honesty and dishonesty are not moral absolutes, and that the circumstances have a bearing upon any perceived moral deficiency ([72]). Fundamentally, I am left with Mr Aljobori’s evidence that he did not consider the incident something requiring disclosure because it inherently lacked significance.
While I have some evidence that Mr Aljobori may have, and may still be experiencing mental health problems, I have no compelling explanation about why the Applicant may have chosen to conceal, when given the opportunity, his actual travel history. Thus, the illogicality of the rationale for the incident itself, merges with the irrational explanation by Mr Aljobori as to why he did not earlier disclose his travel history.
I accept that Mr Aljobori has produced, over time, a wide range of supporting references. These all, however, appear to have been made in ignorance of the incident in question, apart from a statement provided by a daughter. This therefore reduces their relevance and accordingly, weight.
Nonetheless, it is appropriate to observe that Mr Aljobori’s personal history is marked by a single incident of wrongdoing. He has otherwise apparently conducted himself well and, given his evident disabilities, some dignity, and he is a wounded war veteran. It is important to stress that he has been found not to be a security threat to Australia, nor has he been subject to penal sanction.
That said, I set out above the interpretation given in BOY19 of the critical test in matters of this kind. I must reach a positive state of satisfaction that Mr Aljobori is of good character. I am unable to do so. I consider that in undertaking a holistic assessment of the Applicant in pursuit of the evaluative judgment I am required to make, that he is not of good character. Following the language of BOY19, I add that this is a failure of character ‘in the statutory sense’.
Accordingly I find that, in spite of there being only a single incident of concern two decades ago, in failing to treat the Australian government through its representatives openly and honestly about his conduct in September 2000, primarily by failing to accurately disclose his travel history, the Applicant has not displayed the moral qualities seen as concomitant to the grant of Australian citizenship (BOY19 at [53]).
conclusion
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the written reasons for the decision herein of Senior Member Fenwick
..................[sgd]......................................................
Associate
Dated: 1 December 2022
Date of hearing: 17 October 2022 Advocate for the Applicant: Mohammad Al-Shadidi Solicitors for the Applicant:
Advocate for the Respondent:
Asad Lawyers
Shauna Roeger
Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Statutory Construction
0
2
0