Hoaylah and Minister for Immigration and Multicultural Affairs

[2006] AATA 260

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 260

ADMINISTRATIVE APPEALS TRIBUNAL          Nº V2003/529

GENERAL ADMINISTRATIVE  DIVISION

Re:           MOHAMED HOAYLAH

Applicant

And:           MINISTER FOR IMMIGRATION
  AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:17 March 2006

Place:Melbourne

Decision:The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the applicant satisfies section 13(1)(f) of the Migration Act 1958.

(sgd) Regina Perton
  Member

CITIZENSHIP ‑ application for Australian citizenship ‑ conviction in Lebanon for serious offence in absence of applicant – whether appropriate to go behind conviction – whether of good character – exercise of discretion ‑ decision set aside

Australian Citizenship Act 1948 s 13(1)(f)

Migration Act 1958 s 501

Goldie v Minster for Immigration and Multicultural Affairs (1999) 56 ALD 321

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Medenica v Switzerland (2001) European Court of Human Rights

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re King and Minister for Immigration and Multicultural Affairs [2001] AATA 103

Re Koon and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 296

Re Madafferi and Minister for Immigration and Multicultural Affairs [2000] AATA 450

Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771

Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997)

REASONS FOR DECISION

17 March 2006  Regina Perton, Member

1.      Mohamed Hoaylah arrived in Australia on a visitor’s visa in August 1993.  Within two months of arrival, he sought refugee status.  He was granted a permanent protection visa in June 1994.  Mr Hoaylah first applied for Australian citizenship in 1996 but his application was refused on character grounds.  The refusal was based on a 1995 conviction (in his absence) by a court in Lebanon for involvement as an accessory in the murder of his sister and her partner.  He was sentenced to three years’ imprisonment.  Mr Hoaylah’s protection visa was cancelled on character grounds in March 2001 but the cancellation decision was set aside by consent in the Federal Court in July 2001.

2.      Mr Hoaylah applied for Australian citizenship again on 24 December 2001.  That application is the subject of this review.  A delegate of the Minister for Immigration and Multicultural Affairs (the Minister) refused the application on 28 April 2003 on character grounds and for the same reason.  Mr Hoaylah lodged an application for review with the Tribunal on 22 May 2003.  Mr Hoaylah claims that he had no involvement in the crime and was not in Lebanon when the crime took place.  He submitted that he should be granted citizenship because he is of good character.  The Minister’s delegate disagreed.

3.      The issue before the Tribunal is whether Mr Hoaylah is of good character.

LEGISLATIVE FRAMEWORK

4.      The relevant legislation is the Australian Citizenship Act 1948. Section 13(1) of the Act provides:

13(1)Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

…

(f)the person is of good character;

...

5.      Chapter 5 of the Australian Citizenship Instructions (the Instructions), sets out the policy guidelines which are to be applied by delegates of the Minister in assessing applications for the grant of a Certificate of Australian Citizenship under the provisions of s 13 of the Act. The relevant paragraphs of the Instructions are 5.4.2 to 5.4.17.

EVIDENCE

6.      Translations of a judgement of a Lebanese Criminal Court dated 26 July 1995 (T10, T11) indicate that Mr Hoaylah was convicted in absentia of complicity in the murder of his sister, Hiam.  Hiam had left her husband, Hani Nayleh, and their six children for a new partner about a year before she was killed.  In June 1992, Mr Nayleh shot Hiam and her partner while they were sitting in a car near their home.  Their three month old baby was injured.  Mr Hoaylah and his brothers were found guilty of conspiracy.  The Court found that they accompanied Mr Nayleh to the scene of the shooting.  Mr Hoaylah’s brothers gave evidence that they had intended to bring Hiam home and had not expected that she would be killed; but the Court did not accept their evidence.  Mr Nayleh’s eventual sentence for the killings and other offences was five years imprisonment from the date of his arrest.  Mr Hoaylah and his brothers were sentenced to three years imprisonment.  His brothers were released at the time of the judgment due to time already spent in detention since their arrest.

7.      In his written and oral evidence, Mr Hoaylah stated that he was born in 1956 to Palestinian refugee parents living in Lebanon.  He described himself as a stateless person.  He lived in Lebanon until 1982.  From 1982 to 1993, he lived in Syria with his wife who was a Syrian Palestinian.  He arrived in Australia in August 1993 to visit one of his sisters, Miriam.  He had eleven siblings, four of whom died in tragic circumstances. 

8.      In relation to the conviction, Mr Hoaylah stated in his written evidence that in 1994 he was told that his brothers had been imprisoned for their involvement in the killing, but was not made aware of the circumstances of his sister’s death until December 1996 when his mother visited him in Australia.  He stated that on the day of the murder, he was receiving medical treatment in Syria and provided a document showing the outcome of blood tests done that day (Exhibit A2).  He said that the trial in Lebanon was conducted in his absence and without his knowledge.

9.      Mr Hoaylah was extensively questioned about any travel to Lebanon after 1982; whether there were unpatrolled border crossings between Syria and Lebanon; the circumstances of his injuries; where Mr Hoaylah was on the day Hiam was killed; the documentation he provided concerning medical treatment on the day of Hiam’s death; how and when he became aware of her death; how and when he became aware of his brothers’ arrests; when and how he became aware of his conviction; why he did not appeal against his conviction and other matters concerning Hiam’s death and his awareness of the circumstances of his conviction.  Mr Hoaylah was adamant that he did not know of the trial until after his conviction and that he had not committed a crime.    

10.     Mr Hoaylah was questioned about his travel prior to arrival in Australia; the documentation and passport he possessed allowing that travel and his residence in Syria; his claim for a protection visa and the information provided in support of that claim; the circumstances of his divorce from his wife, Zahra Sabbah, in 1993; her subsequent marriage to Mohammad Soubra who had been his sister Mariam’s husband; the circumstances of his reconciliation with his wife in Australia; and other related matters. 

11.     Mr Hoaylah said that he has not done anything contrary to the law in more than twelve years in Australia.  He told the Tribunal that he has a wife and six children, all of whom are Australian citizens and who rely on his assistance and support.  He described his elder sons’ studies, his community activities and the care he provides for his children.  Mr Hoaylah produced statements attesting to his good character and involvement in community activities from a range of prominent identities in his local area.  These include a Victorian Member of Parliament who is now a Government Minister; a former Victorian Member of Parliament who was then Shadow Minister for Multicultural Affairs; and a former Mayor of his municipality.  

12.     Dr Peter Forrest, the paediatrician who has cared for Mr Hoaylah’s daughter, Australia, gave evidence about her ongoing medical condition and her father’s role in taking care of her.   Dr Sayed Khatab, a researcher at Monash University, gave evidence about Mr Hoaylah’s involvement in a research project he has undertaken on the influence of migration on the concept of masculinity.  He related what he knew of Mr Hoaylah through interviews with him and described Mr Hoaylah’s involvement in community affairs.

13.     Mariam Soubra, a younger sister of Mr Hoaylah, provided written (Exhibit A6) and oral evidence.  She works as a nurse in a Melbourne public hospital.  She stated that she sees Mr Hoaylah often and described the assistance he gives to her and her stepson.  She described her involvement in Mr Hoaylah’s application for a protection visa.  Ms Soubra described her studies in Germany, her marriage and her subsequent migration to Australia and what she knew of the circumstances of the deaths of Hiam and their other siblings who had been killed. 

14.     Ms Soubra was cross-examined for several hours on a range of matters.  She was questioned about her assistance to Mr Hoaylah in lodging his protection visa application; when she and Mr Hoaylah found out about Hiam’s death and his conviction; her reaction to and the circumstances in which her husband divorced her; what happened when Mr Hoaylah’s ex-wife arrived in Australia as Mr Soubra’s wife; where Mr Hoaylah lived at the time; when Ms Sabbah reconciled with Mr Hoaylah; and other related topics. 

15.     Mohammed Soubra, Mr Hoaylah’s brother-in-law, provided a written statement (Exhibit A7) and gave oral evidence.  He is a travel agent with his own business who regularly travels to Lebanon and other countries.  He said that he married his wife, Mariam, in 1986 in Lebanon but that Mr Hoaylah was not at the wedding.  He said that he first met Mr Hoaylah in Egypt in 1989.  Mr Hoaylah was undergoing medical treatment in Egypt and Libya around that time.  Mr Soubra stated that when Mr Hoaylah arrived in Australia in 1993, Mr Hoaylah was divorced.   Mr Soubra said that he divorced Mariam in Lebanon and then married Zahra Sabbah, sponsoring her to Australia on a spouse visa.  He said that Mr Hoaylah had not known of his marriage to Zahra or of her arrival in Australia until he saw one of his children in the street some time after his arrival.  Mr Soubra said that after that, he and Mr Hoaylah did not speak to each other for around five years.   He said that Zahra had subsequently left him and some time later, reconciled with Mr Hoaylah because of the children.  Mr Soubra was questioned about where and when he became aware of Hiam’s death and the arrest of Mr Hoaylah’s brothers and other related topics.

16.     Under cross-examination Mr Soubra was asked in detail about the circumstances of his marriages and divorces and about his children.  He was questioned about his relationship with the Hoaylah family; where, when and how often he had met with Mr Hoaylah overseas; how and when he was informed of Hiam’s death; his attempts to get information to Mr Hoaylah in Syria; travel between Lebanon and Syria; and other related topics. 

17.     Zahra Sabbah provided a written statement (Exhibit A8) in which she described her husband as a good man who cares for her and the children very well.  He is helpful around the house, has never been violent, does not drink or smoke and assists others in the community.  In oral evidence, she described her meeting with and marriage to Mr Hoaylah; the circumstances that led to their moving to her birthplace, Syria; Mr Hoaylah’s difficulties as a Palestinian in Lebanon and Syria; her divorce from Mr Hoaylah; her subsequent marriage to Mr Soubra; what happened when she arrived in Australia; Mr Hoaylah’s initial rejection of her attempt at reconciliation; where she lived between leaving Mr Soubra and reuniting with Mr Hoaylah; Mr Hoaylah’s health problems; her remarriage to Mr Hoaylah and their subsequent life together; and other related matters.  Under cross-examination, she expanded on the above topics.

18.     Saleh Admad El Saadi, Mr Hoaylah’s cousin, gave evidence from Egypt.  Mr El Saadi described visits he made to Mr Hoaylah from Lebanon including visits around the date of Hiam’s death.  He said that he had accompanied Mr Hoaylah to a clinic in Damascus where Mr Hoaylah fell ill and was subsequently hospitalised.  Under cross-examination, he provided further information about his memories of that day and about his relationship with Mr Hoaylah.

19.     Dr Said Yacoub, a neurologist, gave evidence from Syria.  He confirmed that he had treated Mr Hoaylah in 1992.  His records from that time have been destroyed; but he corroborated some aspects of Mr Hoaylah’s and Mr El Saadi’s evidence concerning Mr Hoaylah’s health and medical tests on the day of Hiam’s death. 

20.     At the Tribunal’s request, the respondent’s solicitor, in a letter dated 7 November 2005, indicated that a possible jurisdictional error was the reason for the Minister entering into a consent order in the Federal Court, setting aside the decision to cancel Mr Hoaylah’s protection visa. No details were given. The Minister did not reconsider the cancellation decision. 

CONSIDERATION OF THE ISSUES

21.     In reaching its decision the Tribunal takes into account the relevant documents, oral evidence and written and oral submissions.

22.     In Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997), the Tribunal stated that character is to be judged objectively against ordinary community standards of moral behaviour.  The Tribunal also stated (at paragraph 22) that:

…In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Davies J (with whose reasons R D Nicholson J agreed) said (at p.425):

“…the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute... But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant…"

23.     In Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 the Tribunal said (at paragraph 17):

"Good character" in s 13 [of the Act] should be given the same meaning as it is in s 501 of the Migration Act 1958 (Cth) … The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it...

24.     In Re Koon and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 296 the Tribunal stated (at paragraph 78), in relation to applications for citizenship and for permanent residence under s 501, that:

…their applications, and so their characters, must be considered against the backdrop of the level of harm to the public good that would be engendered if they were permitted to do so.

25.     In Goldie v Minster for Immigration and Multicultural Affairs (1999) 56 ALD 321 the Full Federal Court stated at page 324:

... The concept of "good character" in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

26.     In respect of convictions made in the absence of a party, in Re Madafferi and  Minister for Immigration and Multicultural Affairs [2000] AATA 450 the Tribunal stated at paragraph 10:

I am most reluctant to attach any weight to findings made by criminal courts in absentia. Conducting criminal trials in absentia is repugnant to Australia’s system of justice, except in very rare cases (e.g. when a prisoner absconds during his trial and the trial is continued in his absence).

27.     In respect of the conviction in Lebanon, in Re Mlinar the Tribunal held that it could not go behind a decision of a court.  In Re King and Minister for Immigration and Multicultural Affairs [2001] AATA 103, the Tribunal found similarly. The European Court of Human Rights, in Medenica v Switzerland in 2001, determined that in certain circumstances, a conviction in absentia is justifiable. 

28.     The Tribunal does not believe that it is appropriate for it to go behind the Lebanese conviction.  The Tribunal accepts that Mr Hoaylah was in Syria in the late afternoon on the day that Hiam died, notwithstanding its scepticism about the circumstances in which the blood test document was prepared.  The Tribunal notes that there was no evidence obtained from Mr Hoaylah’s brothers, who were accused co-conspirators, as to whether Mr Hoaylah was present when Hiam was killed.  However, given the Tribunal’s determination that it cannot go behind the conviction, such evidence would have been of little assistance in determining whether Mr Hoaylah is of good character in relation to his citizenship application.

29.     The Tribunal accepts the respondent’s submission that there are some inconsistencies in the evidence as to how and when Mr Hoaylah became aware of Hiam’s death and the circumstances in which it occurred.  In relation to the circumstances of Zahra Sabbah’s arrival in Australia, the Tribunal concurs with the comment by counsel for the respondent, Mr Hughan, that Mr Hoaylah, as the holder of a permanent protection visa, would have been entitled to sponsor Ms Sabbah as his spouse.  Hence there was no need for Mr Hoaylah to attempt to circumvent migration law for her and the children to enable her to enter Australia.  The Tribunal is not convinced that when Mr Soubra married Ms Sabbah and sponsored her migration to Australia, he was doing so for Mr Hoaylah’s benefit.  

30.     The Lebanese conviction was recorded more than ten years ago.  There is no evidence that Mr Hoaylah has any other convictions in Australia, Lebanon, Syria or elsewhere.  The Tribunal accepts Mr Hoaylah’s evidence that he has a stable home environment and carries out his family responsibilities.  The Tribunal is satisfied that Mr Hoaylah and his family have a strong commitment to Australia.  Persons of high standing in the community, who had knowledge of the conviction, have attested to the significant contribution Mr Hoaylah has made to the community.  The Tribunal notes that the Minister did not make a fresh decision to cancel Mr Hoaylah’s protection visa after the consent order in the Federal Court in July 2001 which set aside the cancellation on the basis of jurisdictional error.  

31.     Taking into account the policy guidelines, the Tribunal concludes that the factors in favour of Mr Hoaylah obtaining citizenship outweigh those against such an outcome.  For these reasons the Tribunal finds, on balance, that Mr Hoaylah now meets the requirement for citizenship that he is of good character.  Consequently, he satisfies s 13(1)(f) of the Act.

DECISION

32. The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the applicant satisfies s 13 (1)(f) of the Migration Act 1958.

I certify that the preceding thirty-two [32] paragraphs are a true copy of the reasons for the decision of Regina Perton:

Regina Perton, Member:

(sgd)         Olympia Sarrinikolaou

Clerk

Dates of hearing:  7 February 2005, 28 April 2005, 28 June 2005, 7 September 2005, 8 September 2005 and 12 October 2005

Date of decision:  17 March 2006

Counsel for applicant:   Mr G. Hughan

Advocates for respondent:                 Ms R. Hearn-McKinnon (Solicitor) ‑ 7 February 2005

Mr I. Muthalib (Solicitor) ‑ all other days

Solicitor for the respondent:                Blake Dawson Waldron