Alothman and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 644
•28 August 2015
Alothman and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 644 (28 August 2015)
Division
GENERAL DIVISION
File Number(s)
2014/5719
Re
Zeyad Alothman
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 28 August 2015 Place Sydney The Tribunal affirms the decision under review.
..........................................................
Senior Member J F Toohey
CATCHWORDS – CITIZENSHIP – whether applicant of good character – assault on wife – assault charge dismissed – breach of apprehended domestic violence order – good behaviour bond – decision under review affirmed
Legislation
Australian Citizenship Act 2007 s 21
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Secondary Materials
Australian Citizenship Instructions
REASONS FOR DECISION
Senior Member J F Toohey
28 August 2015
Background
Zeyad Alothman is a 38 year old citizen of Iraq. He arrived in Australia in July 2009 with his wife and two children on permanent visas after being granted refugee status in Jordan on the ground of religion.
On 9 February 2011, Mr Alothman was charged with assault occasioning actual bodily harm, common assault, and “stalk/intimidate intend fear physical etc harm (domestic)” after an argument at home with his wife. On the same day, the police applied for and were granted a provisional Apprehended Domestic Violence Order (ADVO). On 15 February 2011, an interim order was made prohibiting Mr Alothman from approaching, contacting or telephoning his wife or children “by any means whatsoever” except through his legal representative or as permitted by an order or directions under the Family Law Act 1975.
On 20 and 21 February 2011, Mr Alothman sent text messages to his wife in breach of the ADVO. He was charged with contravening the ADVO.
On 10 May 2011, Mr Alothman appeared in the Local Court Liverpool. He pleaded not guilty to the assault and stalking charges. The charges were dismissed but a final ADVO was issued making standard orders that Mr Alothman not assault, molest, harass, threaten or otherwise interfere with, or stalk or intimidate his wife or children.
On 13 July 2011, Mr Alothman was convicted of contravening the interim ADVO. He was placed on a good behaviour bond for 12 months and ordered to pay costs. He appealed the sentence on the ground it was too severe. On 17 August 2011, the District Court at Parramatta dismissed his appeal and confirmed the orders of the magistrate “in all respects”.
Mr Alothman’s application for citizenship
On 21 July 2014, Mr Alothman applied for Australian citizenship. A person is eligible to become an Australian citizen if the Minister for Immigration and Border Protection (the Minister) is satisfied that he or she meets the requirements in s 21(2) of the Australian Citizenship Act 2007 (the Citizenship Act). One of those requirements is that a person be of good character at the time of the Minister's decision on the application: s 21(2)(h).
By a decision dated 7 October 2014, a delegate of the Minister refused Mr Alothman’s application on the ground that he was not satisfied he was of good character. Mr Alothman seeks review of that decision.
The meaning of good character
The Citizenship Act does not define “good character”. Guidance about its meaning is found in the Australian Citizenship Instructions (ACIs) the current version of which came into effect on 1 July 2014. The ACIs are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
“Good character” refers to the enduring moral qualities of the person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge, should they be approved for citizenship: cl 10.1.2.
The statement of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 has been adopted by the Court and this tribunal as describing the meaning of “good character”:
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
“Moral” does not have any religious connotation; rather, “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, distinguishing right from wrong, and behaving in an ethical manner, conforming to the rules and values of Australian society: cl 10.3.1.
Clause 10.3.4 sets out a non-exhaustive list of characteristics expected of a person of good character. They include respecting and abiding by the law in Australia and other countries, and not being violent or causing harm to others through their conduct.
Factors to be taken into account when considering whether an applicant is of good character include the seriousness of any offences. Serious offences for the purposes of the ACIs include crimes of violence such as domestic violence, crimes against children, and harassment and stalking. It is relevant to consider whether any victims were vulnerable people such as children or others who trusted the applicant: cl 10.5.2.
It is relevant also to consider the length of any sentence imposed, and whether the offences demonstrate a pattern of behaviour, even of minor offences, which shows “a disregard for the law and indicates that the applicant may not ”uphold and obey” the law if citizenship is conferred on them”: cl 10.5.2.
Any mitigating factors should be taken into account. These may include the length of time between the date of the offence and the application for citizenship and whether the applicant has accepted responsibility and shown remorse for his or her conduct. Other mitigating factors may be an applicant’s attempts at rehabilitation, his or her age at the time of the offence, any extenuating circumstances relating to any offence, and any evidence about length of employment, stable family life and community involvement: cl.10.5.2.
Police records
Police records show that Mr Alothman’s wife told police that “due to issues” between Mr Alothman and her sister, they had had a number of verbal arguments which escalated some two months after they arrived in Australia and he “would slap her in the face and strike her with sandles (sic) following arguments”. She did not report these incidents until 9 February 2011 when, she told police, Mr Alothman woke about 1.00am to go to work and she got up to prepare him a meal.
Ms Alothman told police that, on finishing his meal, Mr Alothman stood at the table and threw his plate one or two metres to the kitchen sink where she was standing. She cleaned up the broken pieces in order to take them outside at which point he followed her and accused her of not respecting him. He then grasped her by the back of her shirt and, when she asked what he wanted, he “moved his hand and took grip of [her] hair with his left hand and slapped her in the face twice with an open right hand”. He then pulled on her hair causing her to lose balance, she tried to crawl way towards the bathroom but he went to the kitchen and returned with a metal shish kebab stick and began striking her on both arms and legs. He turned up the volume on the television as she ran behind the couch and began crying. He then left the home and returned later in the morning.
Mr Alothman returned around the time his wife was getting ready to take her son to school. When she returned, he asked her to make him another meal after which they had a further verbal altercation lasting approximately one hour. The record shows this argument escalated and Mr Alothman “placed his hand over [her] mouth to silence her and began hitting her on the head with an open hand causing [her] immediate pain but not obstructing her breathing”.
The police record shows that police attended a short time later where they observed “a number of bruises on the thighs of the Victim and noted she appeared distressed”. They found Mr Alothman sleeping. He was taken to the police station where he denied the allegations of assault. When he was shown photographs of bruising on his wife’s upper and lower body consistent with her allegations, he suggested she “may have inflicted the injuries upon herself with the assistance of her sister”. Mr Alothman was charged as set out above.
The police records further show that on 20 February 2011, shortly after the interim ADVO was made, Mr Alothman sent his wife a long text message which, translated from Arabic, included the following:
I know that what happened on that morning was something out of your control because I know that you are a weak person and that the devil used you that morning, the devil is living with us but it seems that he was asleep and now he’s awake and used your weakness …. as for me … I managed to drive him out of my mind and I want you to do the same and I’m sorry …
…
My father and mother are not offended by what you have done and mum says there is a problem in every household … I will pray for God to take the devil out of you and I will stay with my family and whenever you want me back just tell me …
On 21 February 2011, Mr Alothman sent a further text message which, translated from Arabic, showed:
Congratulations my sweetheart for the pregnancy I will be with you take care of yourself and I gave up driving because driving has become so dangerous for me, last night I tried to commit suicide on the highway and I was speeding 150 km/h because I am fed up with everything without you by my side.
The police record, created on 2 March 2011, shows “the victim and defendant have not had any of the contact since this time”.
Mr Alothman’s evidence
Giving evidence before the Tribunal, Mr Alothman maintained that his wife’s allegations of assault were fabricated. He said they had had “constant arguments” over her sister who lived next door. He said his wife was always at her sister’s house, leaving things undone or unfinished around the house and, because he complained and they argued, she retaliated by claiming he had hit her. He said he had no idea, when the police came to the house, why they were there. He claimed he was at work at the time of the alleged assault.
Before the Tribunal, Mr Alothman denied every allegation made by his wife and maintained that she must have inflicted the bruising shown in the police photographs on herself. He claimed that, having only been in Australia for two years, he did not understand what an ADVO is. Asked by the Tribunal whether the ADVO was interpreted for him, he said he was sure the interpreter did explain it to him but he was “in shock”, especially when the police said he could not stay at his home and escorted him to the house to get his keys. He lived apart from his wife and children for approximately seven months following this incident.
In relation to the text messages he sent his wife, Mr Alothman said that, two or three weeks after this incident, one of the leaders of his Sabian Mandaean religious community tried to effect a reconciliation between him and his wife, and suggested he write to her in an effort to solve their problem. Giving evidence before the Tribunal, Mr Alothman acknowledged that the police told him he could not go to his home or call his wife, but he claimed he did not understand how an ADVO works and he thought he could send her a text message without contravening the order because it was not “contacting” her.
On 10 May 2011, Mr Alothman appeared in court on the assault-related charges. Giving evidence before the Tribunal, Mr Alothman claimed he was “found innocent” of the charges. Other than the police records detailing his wife’s allegations, the only information before the Tribunal about those proceedings are the NSW police records showing the charges were dismissed.
When asked by the Tribunal whether his wife gave evidence at the trial, Mr Alothman said the magistrate asked her how he had hit her but “she could not answer properly” and did not give an answer. In any case, he said, there was nothing for her to say because her story was fabricated. When pressed about this later, he claimed she had given evidence.
The Tribunal put to Mr Alothman that it seemed improbable, if there was no truth to her story, that his wife would make up a story of assault in the details she gave to the police, that she would inflict the bruising seen in the photographs on herself, that she would maintain her fabrication for three months until the hearing in May 2011, that she appeared in court on that occasion, even if she would not or could not give evidence, and that she remained separated from him for another four or five months. Mr Alothman continued to maintain that her story was entirely fabricated.
Character references
29.In support of his application, Mr Alothman submitted a handwritten document dated 27 April 2015 purporting to be from his wife. It states only that they are living at the same address, are in a good relationship, and are both happy and living with their children.
30.Asked whether his wife was aware of the Tribunal hearing, Mr Alothman said that she was and, had he known she was needed, she would have come to the hearing. He said he did not talk to her about the hearing because she has things to do around the house. He said he did think about asking her to come but he is not familiar with court procedures. When it was put to him that the letter was very brief and his wife did not suggest that she had fabricated her story, as might be expected if she had, Mr Alothman maintained that neither of them wish to relive the past.
31.Mr Alothman provided three other written references. The first is from the religious leader who he says suggested he write to his wife after the incident in February 2011. It states that the writer has seen and spoken to the family on numerous occasions; they are kind-hearted, trustworthy and dependable people who have always helped in the community. Asked by the Tribunal what the writer knew about the incident, Mr Alothman said he told him he had not done anything; he does not know what his wife told him.
32.The second reference is from Mr Alothman’s employer of three years. It describes him as a hard worker who loves and fully supports his family. Mr Alothman conceded he had not told his employer about the incidents in February 2011.
33.The third reference is from Mr Alothman’s family doctor who describes him as a man of good character who is living with his wife “in harmony and understanding”. Mr Alothman gave evidence that his wife told the doctor “everything” but he did not know how much the doctor really knew.
34.I have no way of knowing whether the document purporting to be from Mr Alothman’s wife was written by her or not. Even if it was, it is so brief and in such general terms that it does not assist. It does not refer to the incident in February 2011, to the charges or to Mr Alothman’s court appearances. It makes no reference to their separation. I give this document no weight.
35.The other documents do not assist me. None shed any real light on Mr Alothman’s character. If the religious leader or the family doctor knew anything of events in 2011, they did not mention them. It is not clear that either is aware of the charges against Mr Alothman or his claim that his wife fabricated them, or of his application for citizenship. By his own evidence, Mr Alothman’s employer knows nothing. I give these documents no weight.
Consideration
I did not find Mr Alothman to be a credible witness. I find it implausible that his wife would go to the lengths he claims, including reporting the breaches of the ADVO to the police, merely to cause him trouble over some arguments to do with her sister. The fact that the assault-related charges against him were dismissed says little, if anything, about his guilt or innocence. If his wife could not, or would not, give evidence, the court would have had little choice but to dismiss the charges. It was open to the Court not to confirm the interim ADVO; the fact that it did so, for a period of 12 months, indicates that the Court was satisfied there were grounds for doing so. At the very least, it shows that Mr Alothman’s wife did not wish to have contact with him at that time.
The more probable explanation for the assault-related charges is that Mr Alothman did in fact assault his wife as described in the police report prepared for the Court. I am satisfied that is what occurred. It was not the action of someone who momentarily lost control. The police report and photographs shows the assault was sustained over several hours and left Ms Alothman with bruising. By any measure, it was a serious assault.
I do not accept that Mr Alothman thought he would not be in breach of the ADVO if he communicated with his wife by text message. He gave evidence that the police explained it and this was interpreted to him. The fact that the police accompanied him to the house to get his keys would have emphasised the nature of the order. Even if he did misunderstand it, the contents of the text messages, which are replicated in full in the police report, show that Mr Alothman blamed his wife for what happened. Nothing in them gives any indication that he felt remorse and his claim that he had tried to commit suicide while driving can only be construed as an attempt to gain her sympathy.
Offences of violence, particularly against vulnerable persons, are regarded as serious for the purposes of the ACIs. For the reasons set out above, whether or not he was convicted of the charges, I am satisfied that Mr Alothman did assault his wife on 9 February 2011. In doing so, and in then breaching the ADVO, he showed a disregard for the law and the order of the Court. He had been in Australia for less than two years when this incident occurred.
The Minister submits, and I agree, that there is no evidence that Mr Alothman has shown any remorse for what occurred on 9 February 2011 or subsequently. He continues to assert that his wife fabricated the incident and he continues to blame her for what occurred. His actions are not consistent with those of a person of good character.
Conclusion
For these reasons, I am not satisfied, on the information before me, that Mr Alothman is of good character for the purposes of the Citizenship Act. I affirm the decision under review.
42. I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
....................................
Associate
Dated 28 August 2015
Date(s) of hearing
21 August 2015
Representatives for the Applicant
Self-represented
Representatives for the Respondent
Ms Freda Taah, Australian Government Solicitor
1
1
1