LTDS and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 1758
•21 June 2023
LTDS and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1758 (21 June 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4112
Re:LTDS
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms A E Burke, AO Member
Date:21 June 2023
Place:Melbourne
The Tribunal sets aside the decision of the delegate, dated 2 May 2022, refusing LTDS’s application for Australian citizenship by conferral, and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, that pursuant to
section 43(1)(c)(ii) of the AAT Act, the Applicant is a person of good character for the purposes of the Act......................[SGD]................................
Ms A E Burke, AO Member
CatchwordsCITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether the applicant is not of good character – serious offending – whether sufficient time has elapsed since last offending – whether applicant has demonstrated remorse and understanding of offending – whether applicant has demonstrated enduring moral qualities – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)Sentencing Act 1991 (Vic)
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Dargahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4561
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Sui and Minister for Immigration and Citizenship [2008] AATA 1062
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
Nafady v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1434Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (2019)Department of Immigration and Border Protection, Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (2021)
REASONS FOR DECISION
Ms A E Burke, AO Member
21 June 2023
1. LTDS is a Lebanese national who arrived in Australia on 14 September 2006 on a temporary Vocational Student (subclass 572) Visa. On 5 January 2016 LTDS was granted a permanent Protection (subclass 866) Visa. LTDS is a small business owner married with 5 children. LTDS applied for Australian citizenship by conferral on 17 November 2019.
2. On 12 April 2021 a delegate of the Minister advised LTDS his application for citizenship was being assessed but his application may be refused because he may not meet the legal requirements of the Australian Citizenship Act 2007 (the Act) to be of ‘good character’, due to his criminal record. LTDS was provided with an opportunity to comment.
3. On 11 August 2021, LTDS’s migration agent provided a response to the department, including a statutory declaration and several character references.
4. On 2 May 2022, under section 24 of the Act, a delegate of the Minister refused LTDS’s application for citizenship on the basis that he was not of good character. The decision of the delegate states:
Under the Citizenship Procedural Instructions, I must consider the significance of your offences. For example, very significant offences could include but are not limited to crimes of violence, crimes against children and other vulnerable people, war crimes, crimes against humanity, genocide and terrorism. In addition, the Citizenship Act specifies that a serious prison sentence is one of 12 months or more.
I am satisfied that you have been convicted of Affray and Stalk another Person (Crimes Act) and these offences are considered to be significant.
The Citizenship Procedural Instructions states that a decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case.
Information held by the department regarding your criminal record in Australia indicates that you were first found guilty of an offence on 15 March 2011 and that you have been found guilty of a number of other offences during the period 15 March 2011 – 13 February 2019. I am satisfied that these offences are part of an ongoing pattern of behaviour which would suggest that you are not of good character. I give this factor considerable weight in my assessment of whether you are of good character.
In your statutory declaration provided to the Department, you explained at the time of your offences you were adjusting to a new place, Australian culture and learning a new language which was a difficult transition that had an impact on you emotionally and physically. I acknowledge that it can be difficult to adjust to living in a new country however, you first arrived in Australia in 2006 and your first offence was not until 2011. Therefore, I have taken your mitigating factors into some consideration in making my assessment as to whether you are of good character.
After considering your conduct, one of the factors I have considered is whether you have rehabilitated and made a conscious effort to obey and uphold Australian laws. You have not provided any evidence of rehabilitation and therefore I cannot be satisfied that you have made a conscious effort to reform. I give this factor considerable weight in my assessment of whether you are of good character.
Under the Citizenship Procedural Instructions, the applicant’s present reputation in the community can also be considered with the provision of referee reports. References from reputable Australians, particularly employers (but not family members), attesting to the applicant’s good character and whether they support the application for citizenship, can shed light upon the applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers are entitled to give substantially more weight to statutory declarations than to other statements.
You have provided two character references from people including your General Practitioner (GP) and your hairdresser. The references state that you are a very kind and pleasant person. Only one of your referees acknowledge your criminal background, attest to a change in your character since and indicates that they support your application for Australian citizenship. This weighs in favour of you being of good character. As only one of your referees acknowledges your criminal background, I give this factor some weight in my assessment of whether you are of good character.
I have considered whether a reasonable amount of time has passed since you were free of an obligation to the court, in order to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character. Your obligation to the court, in the form of a good behaviour bond, ended on 13 August 2020. I am not satisfied that a reasonable amount of time has passed to establish a pattern of good behaviour and to conclude that you are now of good character. This weighs against you being of good character. I give this factor considerable weight in my assessment of whether you are of good character.
You have been convicted of a number of serious offences including Affray and Stalking Another Person (Crimes Act). Your first offence was in 2011 and the most recent offence was in 2019. I am satisfied that these offences show a repeat pattern of behaviour.
Your last obligation to court ceased on 13 August 2020 and given the seriousness of your offences, I am not satisfied that this is enough time to establish a pattern of lawful behaviour to now conclude you are of good character.
Therefore, paragraph 21(2)(h) has not been satisfied
5. On 16 May 2022 LTDS applied to the Tribunal for review of the delegate’s decision as he disagreed with the department’s decision.
ISSUE FOR THE TRIBUNAL
6. The issue for the Tribunal is whether the Applicant is of good character.
LEGISLATIVE AND POLICY BACKGROUND
7. Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
8. Section 24 of the Act provides, in part:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
9. Section 25 of the Act provides, in part:
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
10. The term ‘good character’ is not defined by the Act. However, guidance is provided by the Department of Immigration and Border Protection’s Citizenship Policy, updated by the Minister in 2019 (the Policy). The stated role of the Policy is to provide guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations (2007). Chapter 11 of the Policy provides guidance on the character requirement. Additionally, the Department’s Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15), most recently updated in 2021, sets out the policy for assessing good character under the Act.
11. The Policy notes the Act does not define the term ‘good character’ and makes reference to the definition found by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432:
…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 to 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 whilst 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.
12. The Policy states that ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
13. The Policy also refers to Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], where Deputy President Breen discussed the role of the character requirement in a citizenship application:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
14. The Policy also references Deputy President Forgie’s decision in Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
15. To assist decision-makers, the Policy states that a person of good character would generally be expected to exhibit certain characteristics, observing these characteristics should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The Policy notes that as a general proposition, a person of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
oinvolvement in bogus marriages
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
oinvolvement in Centrelink or Australian Tax Office fraud
ogiving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behavior, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.
·not be the subject of any extradition order or other international arrest warrant
·not to be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without license)
·not associate with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCG’s or youth gangs
·not have committed, or been involved in or associated with war crimes, crimes against humanity or genocide
·not to be involved in, terrorist organisations or acts of terrorism overseas or in Australia
16. The CPI 15 at 3.3 states:
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to the consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a Visa, and during the time the citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
17. The CPI 15 at 14 states that an officer assessing whether an applicant is of good character should as a general proposition:
·Characterise the nature of any offence or behaviour
·Is the offence serious or minor?
·Did the offence harm other people?
·Who were victims?
·Is there a pattern of behaviour?
·Was it a one off incident?
·Were there extenuating circumstances?
18. The CPI 15 at 14 also articulates mitigating circumstances:
·Length of time since the offence was committed
·age at time of offence
·behaviour since completing prior sentence or obligation to court
·remorse regarding their offending behaviour
·community support (referee reports etc)
·changes in the life of the applicant. For example relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
19. In weighing the above considerations, the CPI 15 at 14.1 provides further guidance to the decision maker in assessing an applicant’s good character:
What is the length of time since the offence and conviction?
There can be a long delay between the offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.
Has the applicant accepted responsibility and shown remorse for their conduct?
How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.
…
Is there any other evidence that the person is of good character?
Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.
Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.
It is open to decision-makers to contact individuals who have provided a referee report for the applicant.
Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose.
20. The CPI 15 makes clear at 12.1 that decision-makers can only act on the basis that verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. The necessity to act on the basis that the conviction is correct will apply regardless of whether the Applicant maintains his or her innocence.
21. The CPI 15 at 12.1 also outlines what is considered a serious offence which includes crimes of violence such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, or negligent or reckless driving occasioning injury or death.
EVIDENCE
22. The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the ‘T documents’, an additional bundle of police evidence and various character references supplied by the Applicant.
23. The following table has been derived from LTDS’s records from a National Criminal Check Result of 9 April 2021:
Court | Date | Nature of Offence | Sentence |
Magistrates Court | March 2011 | Stalk another person Contra final stalking intervention order | Aggregated 6 months imprisonment. Concurrent To be served by way of an Intensive Corrections Order |
| Magistrates Court | Oct 2011 | Failure to comply with ICO Contra final stalking intervention order | Proven Aggregated 4 months imprisonment. Concurrent |
Magistrates Court | March 2017 | Affray (Common Law) | With conviction, fined $2,800 |
| Magistrates Court | Feb 2019 | Drive whilst authorisation suspended Used hand held mobile phone while veh moving | Without conviction To donate $300 to charity |
24. The following table has been derived from a LEAP report of 15 November 2022:
| Magistrates Court | August 2021 | Contravene release on adjournment order re 13/02/19 | Proven Convicted and discharged |
25. The Respondent submitted a bundle of evidence comprising documents returned under summons by Victoria Police comprising LEAP reports and witness statements.
26. In respect of the stalking conviction the Respondent summarises the material as follows:
The applicant was first reported for stalking the victim between August 2009 to February 2010. This included following her in his vehicle, going to her home, work and school, and constantly driving up and down the streets of her home and work.
An intervention order was granted in February 2010 as a result of this behaviour, which was served on the applicant on 2 February 2010.
On 10 September 2010, the victim reported that the applicant had breached the intervention order on a number of occasions between February 2010 and September 2010. This included driving past her home address multiple times and calling her phone 30-50 times per day. On one occasion the applicant followed the victim in his vehicle to a shop, waited outside for her, and then followed her home. On two occasions, the applicant waited for the victim outside of her workplace and followed her home. On a third occasion, the applicant waited outside the victim’s workplace but left when he saw she was not alone. On 10 August 2010, the applicant threatened the victim with an object resembling a gun to get her to get into his car and threatened to kidnap her daughter if she did not do so. On 13 August 2010, the applicant followed the victim to her children’s school and then followed her home. On 8 September 2010, the applicant approached the victim and threatened to kill her husband, and then followed the applicant to her children’s school, and spoke to the applicant’s daughter.
27. LTDS provided the following evidence at the hearing about the stalking offences:
Responded to Cross examination in respect of stalking offences:
Your girlfriend had a husband and daughter at the time is that correct – yes, true
So at the time you were in a relationship with her, she was married is that right – yes
Did your girlfriend at the time ever talk to you about how your relationship was going to progress if she was married – in the beginning I didn’t know she was married, in the beginning of the relationship and after that I just continued and she didn’t talk to me about it, it was great we didn’t have any issues or face any problems
So your girlfriend didn’t talk about her leaving her husband for you or anything like that – yeah she told me if we go ahead with this relationship she will leave her husband and marry me; but myself I did not meet the guy
THE RESPONDENT MET THE AFM THROUGH DEALINGS WITH THE AFM'S WORK. THE AFM HAS BEEN STALKED BY THE RESPONDENT FOR THE PAST SIX MONTHS . THE RESPONDENT HAS BEEN FOLLOWING THE AFM IN HIS VEHICLE, FOLLOWING THE AFM TO HER HOME AND SCHOOL ADDRESSES. THE RESPONDEDNT CONSTANTLY DRIVES UP AND DOWN THE STREETS OF THE AFM' S HOME AND WORK ADDRESSE[S] … Does that sound like a fair description of your behaviour at the time -Yes
……
Incidents which occurred after IVO in place, will refer to police records in bundle of evidence, IN HIS CAR UP LOUD ENOUGH TO BRING ATTENTION TO HIMSELF FROM AND DROVE PAST 4-5 TIMES BEFORE DRIVING AWAY, do you recall this incident – yes
You accept that version of events is correct – yes
WHEN ■■■■■■■HAS OBSERVED ■■■■■■■DRIVING BEHIND HER. HE HAS FOLLOWED TO KMART IN ■■■■■■■ AND WAITED FOR HER OUTSIDE THE STORE UNTIL SHE LOADED HER PURCHASES INTO THE CAR AND DROVE OFF. ASSAD HAS THEN FOLLOWED ■■■I HOME, CONDUCTED A U-TURN OUTSIDE HER HOUSE AND THEN SPED OFF., do you accept that version of events is correct – yes
HAS ATTENDED AT WORK ADDRESS AND ASKED A COLLEAGUE IF HE COULD SEE LEAVE. HE WAS SUBSEQUENTLY ASKED TO STATES THAT BY MID MARCH – correct
You accept that police record is correct – yes
MOBILE NUMBER FROM MULTIPLE NUMBERS AROUND 30-50 TIMES PER DAY, do you accept that version of events – yes
WAITED FOR TO LEAVE HER WORK ADDRESS AND FOLLOWED HER FROM ■■■ TO HER HOME ADDRESS IN BEFORE DRIVING OFF – yes
You accept that is true version of what happened on those dates – yes
Police records also state SENT A TEXT MESSAGE TO MOBILE PHONE TELLING ■■■I THAT HE LOVES HER AND NOTHING WOULD KEEP HIM FROM HER. .. WAS AGAIN WAITING FOR, do you accept the police record is an accurate description of that date – yes
WAS AGAIN WAITING FOR AS SHE LEFT WORK AND AGAIN FOLLOWED HER HOME. is that correct – yes
AGAIN SENT A TEXT MESSAGE TO PHONE TELLING •••• THAT SHE CANNOT GET AWAY FROM HIM AND NOTHING WOULD KEEP THEM APART, do you accept records accurate in relation to that incident – yes
WALKED TOWARDS HER CAR AND BEEN APPROACHED BY DRIVING A WHITE MERCEDES 4WD . THOUGHT SHE SAW SOMETHING RESEMBLING A SMALL HANDGUN IN HIS HAND AND THEN HE ASKED TO GET INTO THE CAR WITH HIM. ■■■ has THEN THREATENED THAT IF SHE DOESN ' T GET IN THE CAR, HE WOULD KIDNAP DAUGHTER ……I went past did not have a weapon in hand and did not threaten her daughter; I was talking to her nicely, politely then she left….
….
REVERSED OUT OF HER DRIVEWAY AND … was waiting outside her home IN HIS WHITE MERCEDES 4WD~ DROVE TO HER WORK PLACE AND FOLLOWED. SOON AFTER - GOT TO WORK, SHE RECEIVED A TEXT MESSAGE FROM ASSAD ASKING HER WHERE HER – of course it is not correct, if it was she would have called the police
So you deny ever attending your girlfriend’s daughter’s school is that correct – I don’t deny that I went to school, I deny I sent message saying where’s your daughter
WALKED TO HER CAR PARKED OUTSIDE HER HOUSE, AND SHE TOOK A PHOTOGRAPH OF THE WHITE MERCEDES 4WD PARKED OPPOSITE HER HOUSE, STATES WAS INSIDE THE VEHICLE SITTING IN THE DRIVERS SEAT SMOKING A CIGARETTE do you accept those versions of events in those records – yes
…APPROACHED IN A DARK COLOURED MERCEDES CONVERTIBLE AS SHE WAS WALKING TO HER CAR FROM WORK IN ..TOLD THAT HE LOVED HER AND THREATENED HE WOULD KILL HER HUSBAND SO THEY COULD BE TOGETHER. ..THEN FOLLOWED TO HER CHILDREN’S SCHOOL IN ---- AND STOPPED NEAR THE CHILDREN'S CROSSING ON - DAUGHTER WAS CROSSING THE PEDESTRIAN CROSSING, WAVED AT HER AND TOLD HER TO TELL ■■■I THAT "■■■■■■■ SAYS HI", do you recall this incident at all – I remember such incident but I believe it’s all a misunderstanding, the words and details are not true
So you remember that day – yes I remember that day
Do you accept you told her you would kill her husband so they could be together – no it is not correct Do you accept you then followed girlfriend to her children’s school? – as I said earlier, I can’t remember the dates so I can’t really respond to incidents what happened, as I said earlier, I am trying to focus on work, family, kids, they are most important, try forget what happened, I don’t want to remember, I just want to mention just because in report doesn’t mean its correct, it’s just one side of the story, doesn’t mean everything in the report is correct and true.
But ■■■■■■■you were served with IVO on 2 Feb 2010 and you provided evidence that you were aware of conditions of that order, one being not to approach the victim and not contact her by phone so given that how could you possibly still think that you weren’t committing a crime – at that time I never thought it was a crime but yes I agree I thought it was wrong but I didn’t think really serious to the point of crime, I admit thinking it was wrong, I didn’t know it was a crime, all my interest was to fix our relationship between us
If you knew what you were doing was wrong why did you continue doing it – I am sorry for that, all I can say is at that time I was in love, I was blind, completely blind, I didn’t know what I was doing, all my main interest and concern was to fix the relationship between us
28. In respect of the affray conviction the Respondent summarised the material as follows:
On 6 July 2016 there was an incident motivated by political differences in Lebanon where 7 male offenders went to a house with several weapons, assaulted a number of victims and damaged property, and then drove off.
Police Statement of alleged facts 30 August 2016
The accused's [accused] have exited the vehicle carrying various items including sticks, poles and bits of bricks.
Witness statement 6 July 2016
We were playing cards at my cousins house.. in the back garage. There was 9 people sitting around. Then all of a sudden, we hear people yelling outside…I see about 20-25 males, young males all of them. Had guns on them they pointed the guns at us and threatened us with guns… They had bricks, shovels, sticks and were threatening us with them, throwing them at us.
29. Witness statement of 11 July 2016
Very quickly they came at me. From each car came about four people, running towards us.
The incident was over in one minute and twenty nine seconds. I know this because there was CCTV at my cousin's house.
30. Witness statement of 6 July 2016
I come from a family back Lebanon … It’s a large which is a head of a village. Recently, the last few weeks, there has been an election in Lebanon
The family has been having issues with another group from the village. Its very political.
Around seven of us were out the back talking. We were discussing that one of us got phone calls with threats about problems starting with the family in Lebanon.
All of a sudden, 2 of our friends who just left before came running back in to where we were sitting. They looked scared. We all got up straight away.
A group of guys coming towards us. There were around 8 to 10 of them. They were really aggressive yelling at us. I saw them carrying bottles, glass, rocks and I think 2 were holding guns. I saw glass everywhere.
A massive fight began, all I could see was weapons everywhere. None of us inside the house had anything on us. The men attacking had the weapons
31. LTDS provided the following evidence at the hearing about the affray offences:
R: statement of 6 July 2016, doesn’t really seem like the people in that house were expecting your cousins to attend, is it fair to say there really was no conversation between your cousins and these people before you arrived
A: well I have to say a couple of things, I’m not trying to be smart here but I just want to say this statement was written by a person who put his own version of this story and he throw all the rubbish and dirt on us and tell it his way, I believe this investigation by police, he was saying 25 people coming from cars all this is not true, it’s not really true, it’s his story he is trying to tell his version the way it suits him
A: Member, again I am not trying to be smart here in front of the court just I want to tell you… highlight that this incident was already before the judge there was an order made in relation to this incident in this matter, I did respect the judge’s order and respect everyone here and the all law in the court but just from my point of view in relation to these reports, they are all fabricated and written from the other parties side. Just I want to explain to you why I have said this. He was a priest, it’s not correct because people sit down and play cards that is unusual for our tradition and culture for priest to play cards. We are from different village from the other party, and he said if something happened in village, I don’t want to be involved so he knew we were coming. I believe they knew were coming, they were prepared and that is what I’m saying, they knew we were coming on that day. Again, I repeat my point here Member I am not trying to be smart or fool the court or the law, this statement or accusation is written by different party not police, all I am trying to explain my view and highlight some points in this matter.
R: why did you agree to go with your cousins that night?
A: as I said, my car was parked the last car in the driveway, I came with them just to help, assist in solving these existing problems between the families, we are just going to talk, we were formally dressed, not going for a fight, just going as a matter to talk
R: Did you cousins take weapons with them in the car?
A: of course, not
R: it states seven male offenders have exited the vehicle carrying various weapons, bats wood, rocks…. so fair to say they did take weapons to the house is that correct?
A: this is not correct another story written by them, there was a video presented in the court, my cousin had no weapons at all, the other parties they had rods and bats when attacked my cousin, he was strong enough to take the bats from them and hit them back, there was a video before the court which shows a different story
R: So did your cousins use any weapons at any time during this confrontation?
A: no weapons no
32. In respect of the traffic offences the Respondent summarised the material as follows:
On 13 February 2019, the applicant appeared before the Broadmeadows Magistrates’ Court in relation to driving related charges, and was released without conviction upon entering an undertaking as part of an adjournment order. The condition of the undertaking was to donate $300 to the Salvation Army and provide a receipt to the Court. The matter was adjourned until 13 August 2020.
The applicant did not comply with this condition of his undertaking. On 17 September 2020, a reminder letter was sent to the applicant, but he failed to comply or make contact with the Court.
On 29 April 2021 the applicant was charged with breaching the condition of his undertaking and a summons was served.
33. LTDS provided the following evidence at the hearing about the traffic offences:
R: Since that time also had charge of drive while suspended and use mobile while driving
A: yes only time they stopped me for driving with a phone, only traffic matter since 2006, only thing was when they stopped me with phone in hand, I [had] never used the phone while I am driving. That day my daughter was really sick and my wife, she was calling me, and my wife doesn’t know English much and I was telling her what to say to and what number to call to get ambulance and stuff and they stopped me straight away and they said I didn’t have licence and I didn’t know I didn’t have licence and I wasn’t aware my license was suspended and I was really shocked, I did go to court for licence suspended and in that time, I had a car, I sold it to someone and he’s got a Driver’s License from another state and legally, you cannot sell a car and leave plates on it in Victoria, if you sell it interstate. I didn’t know [this], I had lots of fines from him, I used to nominate them to him, he used to refuse them, I did face in court, and I won but they gave me a fine of $300 to pay to Salvation Army
R: Did you pay that fine
A: I did tell my wife to do it because she handles all my payments and stuff, obviously she forgot but all been fixed now
R: Was it ultimately your responsibility to pay that fine –
A: yes
R: In your statement, you didn’t refer to failure to pay the fine, was that an oversight or attempt by you to hide that fact from the Tribunal?
A:it was just an oversight; I didn’t realise it sorry
R: In your statement dated 3 March 2023 you make no conviction of 30 Aug 2021 or failure to comply is that correct –
A:it was meant to be but I forgot it
R: This was a relatively recent conviction about 2 years ago right
A: as I said I wasn’t aware of it, in that time we were in covid, I wasn’t thinking straight, if I knew I would have paid it definitely
34. LTDS submitted numerous character refences from his wife, friends and community leaders describing him as a decent, hardworking and trustworthy person. They all spoke of LTDS’s remorse for his past behaviour, that he has reformed and was of good moral character. They all spoke of his family orientation describing him as a very caring husband and dedicated father.
35. A family friend and local trader both gave evidence at the Tribunal attesting to LTDS good character, both advised they were aware of his criminal convictions and that LTDS was very remorseful for his past conduct. The witnesses described LTDS as having matured greatly in the last ten years, learning from his past mistakes and developing immensely as someone now considered a leader in their community. The witnesses described how LTDS; based on his own experience; is now advising new arrivals of their responsibilities to abide and respect Australian laws and values.
CONTENTIONS
LTDS
36. LTDS’s Counsel emphasised that the Tribunal should find LTDS was of good character. Counsel emphasised that first and foremost LTDS was a loving husband, dedicated father of 5 children, sole trader employing 4 staff and active community member. Counsel submitted LTDS was a valuable member of the Australian community, making a significant contribution and should not be denied the ability to become an Australian citizen.
37. Counsel submitted stalking is clearly a very serious crime and is frowned upon by the Australian community. Counsel acknowledged LTDS’s conviction of stalking went directly to his character and emphasised that none of the material led in relation to LTDS’s stalking conviction was intended to minimise the seriousness of his conduct. However, Counsel submitted these actions of LTDS have been honestly explained to the Tribunal, the context in which they occurred and were an aberration.
38. Counsel submitted there had been no similar breaches of any Intervention Order (IVO) or Family Violence order since LTDS’s conviction in 2011. In fact, Counsel submitted that LTDS has only been placed on an IVO once and since then, he has never been involved in any other family violence matters.
39. Counsel submitted LTDS had clearly served his sentence, moved on from his past relationship and has made a meaningful lasting relationship with his wife for over a decade producing a happily growing family of 5 children.
40. Counsel contended that LTDS did not seek to minimise his actions, but he had explained two facts which had led to his inappropriate behaviour. Counsel submitted the Tribunal should accept these factors as credible mitigation for many young men in LTDS’s situation. First there is a period of time after arrival in a new country where individuals are trying to assimilate to a new culture, a new language, it is a time of discombobulation and often, as in the case of LTDS, individual lack of support in their adopted country.
41. Secondly, Counsel submitted it was important for the Tribunal to understand that had LTDS’s misunderstanding about his former girlfriend’s rejection of him arisen in Lebanon, his reaction would still have clearly been inappropriate and frowned upon, however it would not have escalated to a matter where the police or the judiciary would be involved. Counsel submitted that in Australia LTDS’s lack of support from family and community left him feeling isolated in an unfamiliar context.
42. Counsel submitted LTDS had not thought stalking his former girlfriend was something he could get away with or be allowed to do in Lebanon, but he would normally expect that disputes between two partners would have been resolved by patriarch, and in Australia he did not have that support. Counsel submitted LTDS was left to resolve the issue of a broken heart in the context of also being forced into an arranged marriage, this task fell to him alone and he was ill equipped to deal with the situation.
43. Counsel submitted LTDS started to feel he was losing control of the situation, that his behaviour was clearly spiralling out of control. This resulted in LTDS breaching his IVO, continuing to stalk his former girlfriend and engaging in unacceptable behaviour. However, Counsel contended the Tribunal should recognise this behaviour has never happened again.
44. Counsel submitted even with serious conduct, that the passage of time can demonstrate someone is of good character. That it was a decade since this conduct, LTDS complied with his ICO, though he had breached earlier, as he travelled out of Australia during the period of the order. Counsel submitted the Tribunal should note that ICO’s have since been abolished because most were breached because they were so onerous. Counsel contended it should be to LTDS’s credit that he had completed the requirements of the ICO.
45. Counsel submitted that LTDS was in no way seeking to minimise his offending. Counsel contended the Tribunal has heard LTDS’s testimony in which he has fully acknowledged the wrongfulness of conduct, that in his statutory declaration and in his evidence, he was seeking instead to explain his mindset at the time, and it is very clear in hindsight he fully appreciates the harm he had caused his former girlfriend.
46. Counsel contended LTDS’s offending arose in the context of social vulnerability. Including: his arriving in Australia with no supports at just 20 years of age, in the context of losing his first serious relationship, frustration at the arranged marriage to his cousin all occurring in a strange and different country. Counsel contended these were significant factors which explain LTDS’s behaviour, but he was not seeking to diminish the seriousness of his offending.
47. Counsel submitted it was also relevant this behaviour had not occurred again.
48. Counsel submitted that LTDS had not been charged with use of firearms, or threats to kill, or kidnapping and it was not open to the Respondent to go behind the criminal charges or for the Tribunal to conclude that all matters recorded in witness statements had in fact occurred. Counsel submitted these are very serious allegations but did not form part of the charges, so could not be relied upon by the Tribunal to determine LTDS was not of good character.
49. Counsel contended in the Respondent’s bundle of evidence there was one stalking and breaches charges which were withdrawn. Counsel submitted that the police material also indicated that when interviewed LTDS made full admissions which accords with how frank LTDS had been under cross examination.
50. Counsel submitted LTDS had frankly agreed to many of the issues the Respondent put to him from the police material, but he had also denied certain allegations, notably those for which he had not been charged. Counsel submitted that whilst LTDS had denied the allegation of threaten to kill and kidnap he had acknowledged the stalking allegation and openly acknowledged that he had been causing harm and fear in his former girlfriend. Counsel submitted the Tribunal should find LTDS a credible witness who had been open and direct about his offending.
51. Counsel submitted that the material the Respondent had put before the Tribunal in respect of the stalking allegations were not findings of fact but untested allegations of the “Affected Family Member” and noted that the Magistrates court is not a court of record so there was no way of knowing all the facts relevant to the matter.
52. Counsel submitted in relation to the affray conviction, the Tribunal should appreciate the charge was unusual, that it related to a person’s conduct or threatened conduct that puts a member of the public in fear or gives alarm. Counsel submitted the charge was designed to prevent people from causing a scene in public which puts others in fear. Counsel submitted the charge was often utilised by the police and courts in circumstances as described by LTDS where a large altercation takes place, and it is hard to determine who is doing what. Counsel submitted it was relevant that LTDS did not plead guilty to any more than that, he pled guilty to being present at an altercation. Counsel contended there were twelve other charges of alleged conduct in the police statements which LTDS did not plead guilty to, nor was found guilty of and so it was significantly less involvement than he was initially charged.
53. Counsel contended the Respondent in both their written material and questioning at the hearing had sought to go behind the conviction because it had raised issues for which LTDS had not been convicted. Counsel contended the Respondent’s reliance on a witness statement from the affray incident where the witness alleged LTDS was said to be carrying a weapon should be disregarded by the Tribunal. Counsel submitted the Respondent in their written material had conceded that this had not formed part of LTDS’s conviction, so Counsel was unclear why it was again being raised in the hearing. Counsel submitted the Tribunal should find this witness statement was no more than unsubstantiated allegations given by someone who was not necessarily a witness of truth and should place no reliance on the statement.
54. Counsel submitted, the Respondent’s contention that there had been significant injuries suffered by victims at the affray incident was unsubstantiated and should be rejected by the Tribunal as again no charges had been filed against LTDS to this effect.
55. Counsel submitted the Respondent was relying on evidence which was inconsistent and unreliable. Counsel submitted one witness who had identified LTDS as having no involvement other than being present, while another referred to LTDS as having a stick and hitting someone in the ribs. Counsel submitted that witness also claimed 20-25 people had attacked the gathering, which was clearly a fabrication, given the LEAP report indicates 7 male offenders and numerous other statements from witnesses’ reference 7-8 people present and two cars with 4 people in each. Counsel submitted the Respondent’s reliance on what one person had ascribed as LTDS’s conduct at the affray was nothing more than nit-picking as the statement was made by a witness not of truth because we know resolution of court proceedings was less than any conduct alleged by this witness.
56. Counsel submitted there are always two sides to every story. Counsel contented LTDS had frankly given his account of the incident and that a phone call had been made prior to them attending the premises. The phone call had been to advise the other family that they were coming over to discuss their concerns. Counsel contended LTDS had conceded their arrival then erupted into a fracas which involved violence on behalf of both parties.
57. Counsel submitted that LTDS’s presence wasn’t inconsistent with his guilty plea, LTDS had admitted he was there and conceded he should have handled the situation better. Counsel submitted LTDS’s evidence was he should not have agreed to go when asked by his cousin and should have called the police. Counsel submitted the images available to the Tribunal from the CCTV footage show a number of people from both groups carrying and swinging objects.
58. Counsel contended LTDS has expressed his remorse at his involvement in the affray and demonstrated his concern that people could have been injured. Counsel submitted that the Tribunal could not infer anything greater than LTDS had been present at the incident, arguing his involvement and guilty plea did not go any higher; contending it was also relevant that LTDS had received a fine.
59. Counsel referred the Tribunal to the case of Nafady where Justice Logan commented on the reliance on police reports for determining the nature or seriousness of particular offending.
60. Counsel submitted the Tribunal did not have the benefit of a County Court record where the matter commences with a clear prepared opening on the plea being entered which is an undisputed account of what a person is pleading to. In the Magistrates’ Court there is no record of the proceedings and there can be significantly different perceptions of events. Counsel submitted this was also the case in respect of LTDS’s conviction for stalking. Counsel contended the summary in police material was hearsay being statements from the FMA themselves not tested allegations. Counsel submitted the Tribunal should place little weight on the material relied upon by the Respondent, and both the stalking and affray allegations from the victims. Counsel submitted many of the allegations did not form part of the final representation of what police resolved to charge LTDS with and we know he was convicted on lesser charges. Counsel submitted the Respondent had attempted to go behind the crime by utilisation of the witness statements which were untested hearsay.
61. Counsel submitted LTDS’s traffic matter whilst serious, driving whilst holding a telephone, was not as the Respondent has contended an attempt by LTDS to minimise his conduct by omission. Counsel contended LTDS’s failure to disclose his conviction of 2021 was an oversight not a deliberate attempt to mislead. Counsel submitted LTDS’s statement was prepared without legal advice but support from his migration agent. Counsel urged the Tribunal not to conclude there was any dishonesty.
62. Counsel submitted it was easy to understand that during Covid, a man who was running his own small business, caring for 4 children of school aged simply lost sight of these things, that he had genuinely thought his wife had taken care of the fine. Counsel submitted that coming to the Tribunal he was completely unaware of the non-payment and non-compliance and that this was understandable, and his explanation carries a ring of truth.
63. Counsel submitted it was not plausible to accept the Respondent’s characterisation of LTDS’s failure to pay the $300 fine and then failing to disclose the offence was an attempt to mislead the Tribunal or minimise his offending. Counsel submitted that this was not a pattern of offending but a simple oversight. Counsel submitted LTDS had now been discharged from this conviction and had during the course of the proceedings sent $300 to the Salvation Army.
64. Counsel submitted the Tribunal had heard from several witnesses of LTDS’s involvement in his community and his family. All his referees were aware of his offending and described his stalking behaviour as serious, however they stated LTDS had matured, learnt his actions were not acceptable and had rehabilitated. LTDS told the Tribunal he had refocused his attention from himself and his problems to focusing on his family being the breadwinner and a caring and loving partner and father.
65. Counsel submitted it had been 17 years since LTDS’s criminal offending and 14 years since he had committed a serious offence.
66. Counsel submitted the Respondent’s conclusion that LTDS’s criminal history indicated he had been found guilty of a number of offences between 2011 and 2013 to indicate ongoing pattern of behaviour, was just not accurate. Counsel submitted the LEAP history, was dealing with the one matter of stalking which included breaches of the IVO, and a breach of the intensive corrections order. LTDS does not dispute he breached the order and was charged. The criminal history indicates the allegation was proven meaning he did breach but no further sentence was imposed other than a further four month ICO.
67. Counsel submitted this did not indicate a pattern of criminal conduct by LTDS over many years. Counsel submitted following his sentence there was no pattern of conduct other than a man engaging in an onerous order whilst working, being a parent and looking after his elderly parents back in Lebanon. Counsel concede LTDS had breached the ICO but that he did then successfully complete the order.
68. Counsel contended the Respondent had taken issue with LTDS’s claim he was experiencing difficulty in assimilating to his new country and culture. The Respondent’s explanation was LTDS’s offending commenced a length of time after his arrival but submitted this was based on a faulty assumption that LTDS arrived in 2006 and his first offence was 2011. Counsel submitted this was missing the fact the offending started in 2009. Counsel submitted the Tribunal had heard evidence that it takes time to acclimatize to a new country and culture especially without close supports. Additionally, it should be noted that LTDS was also having to deal with stress of an arranged marriage
69. Counsel submitted the Respondent’s reliance on LTDS’s traffic offence to say he was not of good character because insufficient time had passed since LTDS was free of an obligation to the courts, was erroneous. Counsel contended the Respondent had in fact conceded that the traffic matters weren’t particularly relevant, viewing them as very minor.
70. Counsel submitted it has been 12 years since LTDS completed his ICO, 6 years since he plead guilty to being involved in an affray, 4 years since his traffic offending and 2 years since he had failed to pay his fine. Counsel submitted LTDS had demonstrated his remorse, that he had recognised he had placed his former girlfriend in fear. Counsel submitted LTDS had come to understand at the time it was all about him and his need to make contact with someone he was in love with, but that is how things can be when you are 20 years old, you lack insight into how your behaviour affects others. However, Counsel contended the important aspect was that LTDS was now demonstrating he understands the gravity of his conduct and recognises that his behaviour was wrong.
71. Counsel submitted LTDS had disclosed his offended to other members of the community which demonstrated he did not try to hide his offending which goes to his credit. That LTDS is also engaging as a mentor to recently arrive migrants to explain the importance of not breaching Australian law. LTDS has a successful business, pays taxes, employs people, supports his family and contributes to his community.
72. Counsel contended, whilst in no way seeking to diminish LTDS’s actions, that the Tribunal should appreciate that when LTDS arrived in Australia he was isolated, young, in love and under stress of an arranged marriage. Counsel contended there was no evidence of a pattern of conduct nor evidence of escalating conduct, but rather evidence of a de-escalation, with the Applicant actively reforming before our very eyes, as the seriousness of his offending reduces to traffic offences.
73. Counsel contended the Tribunal should find LTDS is of good character and worthy of Australian citizenship. Counsel contented LTDS did not demonstrate a pattern of criminal behaviour, nor continued attempts to minimise the seriousness of his actions. Rather LTDS had clearly demonstrated realistic rehabilitation, reform, remorse and growth. LTDS was a productive tax paying active member of the community, loving husband and father. Counsel submitted that far from the pattern of behaviour painted by the Respondent, there had been no breaches of IVO since 2011, no violence since the affray in 2017 and failure to pay the fine was an oversight not an attempt to hide his offending.
74. Counsel submitted LTDS’s wife and children were Australian citizens, LTDS has demonstrated commitment to Australian values, through his hard work, commitment to his community and family. Counsel contended the right to give a person a second chance was a core Australian value. Counsel submitted the Tribunal should be assured by the numerous uncontested witness statements and testimony to the Tribunal which all attested to LTDS’s good character, growth, maturity, devotion to his family, successful business and desire to assist new arrivals to learn from his mistakes. Counsel contended all of this affirmed LTDS to be of good character.
Respondent
75. The Respondent contended that the Tribunal could not be satisfied that the Applicant is of good character due to his criminal history, the nature of his offending, the relatively short period of time which has elapsed since the offending, the short period of time since his obligation to the Court expired, his repeated attempts to minimise his behaviour, and his failure to disclose to the Tribunal his most recent conviction.
76. The Respondent contended the material before the Tribunal establishes that the convictions on 15 March 2011 and 18 October 2011 relate to a series of incidents between August 2009 and September 2010. The Applicant repeatedly stalked and threatened his victim over the course of a year, including in breach of an intervention order. The Tribunal should find that the Applicant’s offending was serious, displayed a pattern of behaviour, and that the repeated breach of the intervention order shows a disregard for Australia’s laws. The Respondent submitted even though this offending took place some time ago, this passage of time should be weighed up against its seriousness and the Applicant’s ongoing failure to take responsibility for his actions.
77. The Respondent submitted the Applicant’s statement of 3 March 2023 claimed that he was trying to reconcile a relationship with his girlfriend, and that he did not know that his behaviour would constitute a criminal offence. The Respondent submits that this clearly seeks to minimise the seriousness of the Applicant’s behaviour, which involved following his victim over the course of a year, including to her children’s school, and threatening to harm her daughter and husband. Even if the Applicant did not appreciate that ‘stalking’ was a criminal offence, he ought to have appreciated that his behaviour was not acceptable and was harmful to his victim and her family. His failure to do so, even now, reflects poorly on his character.
78. Additionally, the Respondent submitted the Applicant was served with an intervention order on 2 February 2010, at which point he ought to have appreciated that the police were involved and that his behaviour was unacceptable. The Applicant’s explanation for continuing to stalk and threaten the victim in breach of the intervention order lacks credibility and should be rejected. His continued attempts to minimise the seriousness of his behaviour reflect poorly on his character and show that the Applicant is not genuinely remorseful for his actions.
79. The Respondent submitted the material before the Tribunal establishes that the conviction on 23 March 2017 for Affray relates to an incident that occurred on the night of 6 July 2016. A group of men went to a house where another group of men were located and attacked them with a number of weapons. The material before the Tribunal discloses that the incident was very violent and resulted in serious injuries to the victims of the offence. The Respondent submitted LTDS claimed in his statement of 3 March 2023 that he was not personally involved in any altercation or physical fight. The respondent noted that this was rebutted by a witness statement, who claimed to have seen the Applicant hit one of the victims in the ribs with a wooden stick.
80. However, the Respondent accepts that the Applicant was not convicted of assault, and was convicted only of Affray, and that the Tribunal should proceed on the basis that the Applicant was present at the incident but did not physically assault anyone. The Respondent contends that this involvement is still significant to the assessment of the Applicant’s character.
81. The Respondent submitted the Applicant’s statement of 3 March 2023 claimed that on the date of the incident he was at a party with his cousins, and that his cousins wanted to “visit” some people who had been political opponents of their family in Lebanon, that the Applicant drove them there, and that someone from inside the house brought out a knife which caused his cousins to use weapons to defend themselves.
82. The Respondent submitted the Applicant’s account that the group he was with were just acting in self-defence finds no support in the documents produced by Victoria Police. It also lacks credibility. The Applicant does not offer any explanation as to why he and his cousins went to the house of their family’s political opponents if not to carry out violence.
83. The Respondent contended the Tribunal should find that the Applicant and his cousins went to the house for the purpose of carrying out violence, and that the Applicant is seeking to minimise the seriousness of his behaviour. Moreover, it is noted that the Applicant initially denied any involvement in the incident to the police.
84. The Respondent submitted the Applicant was convicted on 13 February 2019 of “Drive whilst authorisation suspended and use handheld mobile phone – vehicle moving”. In his statement dated 3 March 2023, the Applicant claims that his licence was suspended without his knowledge, due to fines incurred by another person who bought his car. This is not rebutted by any of the material before the Tribunal, and it is open to the Tribunal to accept the Applicant’s version of events.
85. The Respondent submitted the Applicant accepts that he was driving while holding his mobile phone. The Respondent accepts that this offence is not itself particularly serious or reflective of a person’s character. However, the Tribunal should take this behaviour into account as part of a broader pattern of behaviour in which the Applicant has shown a repeated disregard for Australia’s laws.
86. Moreover, the Respondent submitted the Applicant was required to pay $300 to charity in relation to this offence and failed to do so. On 30 August 2021, he was convicted of contravene release on adjournment order with respect to the convictions of 13 February 2019. The Applicant’s claim in his statement of 3 March 2023 that he “was fined $300 on this occasion, and I have complied with the Order” should be rejected. The Tribunal should find that this claim is misleading, as is the Applicant’s failure to mention at all his conviction on 30 August 2021. It is noted that the Applicant made these misleading comments after the Respondent’s bundle of evidence, which contains evidence of the failure to pay the $300 to charity and the conviction on 30 August 2021, was lodged and served.
87. The Respondent contended the Applicant’s failure to comply with the Court’s orders occurred relatively recently, and while his citizenship application was on foot. It shows a continuing disregard for Australia’s laws. The Respondent submitted the attempt to mislead the Tribunal about these matters, even if by omission, should be given significant weight in an assessment of his character.
88. The Respondent accepts that the Applicant’s family life, employment and involvement in his community should be given some positive weight in an assessment of his character. However, the Respondent contends that the Tribunal cannot be satisfied that the Applicant is of good character given his pattern of criminal behaviour, continued attempts to minimise the seriousness of his actions, and failure to disclose his most recent conviction. It remains open to the Applicant to apply again for Australian citizenship after a sufficient period of time has passed.
CONSIDERATION
89. The Tribunal found LTDS’s offence of stalking was undoubtedly serious, his relentless attempts to contact his former girlfriend showed a complete disregard for her wellbeing and safety. The Tribunal found during the period 2009 to 2010 LTDS was completely obsessed with his own needs and had no insight or understanding of the impact of his actions on his former girlfriend, her family, his pregnant wife, or the Australian public.
90. The Tribunal found LTDS had undoubtedly caused distress to his former girlfriend and the offending was serious, however the Tribunal did not consider his actions displayed a pattern of behaviour or showed an ongoing disregard for Australia’s laws. The Tribunal considered LTDS was an immature young man trying to find his way in a foreign country where he was adjusting to an alien culture, a foreign language, a legal system he did not comprehend without his usually controlling and structured support network. At the same time as LTDS was adjusting to a newfound freedom his family advised he was to return to Lebanon to marry his cousin.
91. The Tribunal found LTDS had not sought to minimise his actions towards his former girlfriend, finding he had frankly acknowledged, during cross examination, the extent of his actions, attesting to the multiple phone calls and following her continuously, even to her daughter’s school. The Tribunal noted LTDS had also not denied his actions to the police:
Leap record of 20 September 2010
FOR AN INTERVIEW BY APPOINTMENT. THE ACCUSED HAS BEEN INTERVIEWED FOR BREACH OF STALKING INTERVENTION ORDER AND STALKING AND MADE FULL ADMISSION
92. The Tribunal did not conclude that LTDS’s actions had resulted in threats to kill or kidnap. The Tribunal did not find on the evidence that these allegations in the witness statements referred to by the Respondent had been proven. The Tribunal found as in the matter of Nafady the Respondent had not explained why or how these reports were relevant or reliable. The statements were taken from LTDS’s former girlfriend and not from any summary of fact presented or accepted by a court. Whilst the Tribunal does not seek to infer anything about their veracity, there was no corroborated evidence to support these assertions nor was LTDS convicted of knapping, threats to kill or being in possession of a dangerous weapon.
93. The Tribunal found LTDS had shown remorse for his actions, acknowledge he had caused great harm to his victim and expressed insight into his past behaviour. LTDS’s testimony and actions spoke of a man striving to be a better husband, dedicated father, and community member.
94. The Tribunal did not consider that LTDS had been attempting to minimise his actions when he claimed he was unaware they were a criminal offence. The Tribunal considered that LTDS was aware that his actions were always inappropriate, but he has come to fully appreciate the magnitude of the harm he was causing as he has matured and become a father. The Tribunal considered LTDS’s statement about criminality exposed the divide between what he perceived would have happened in Lebanon, where the patriarch of the family would have dealt with any disputes or concern of inappropriate behaviour, and how the stalking is viewed by the Australian community and criminal justice system.
95. The Tribunal placed weight on the testimony of LTDS’s referees at hearing who both spoke of seeing him mature, having learnt from his mistakes, describing him as a dedicated husband, father, community member and small business operator. The Tribunal noted that both witnesses spoke of the cultural divide that would have impacted on LTDS’s understanding of the consequences of his actions. The Tribunal relied on the following testimony:
R: Are you aware of why these incidents happened?
W:I think back then LTDS was new to country, I think he had lack of family support, and I guess maybe this person was his only connection to family and he sort of maybe tried to hold onto her or was afraid to be alone and unfortunately maybe committed these breaches but I don’t think he actually quite understood what he was doing was maybe like not right at the time, the cultural differences between his homeland and Australia, I think with the laws, he wasn’t knowledgeable of laws of Australia and consequences it could lead him to
R: Expand on what you mean?
W: Back in Lebanon if someone was to do that it’s not illegal in a sense, even arguments with partners it’s not really addressed to government bodies, the police won’t be called out if you have an argument with somebody, its usually resolved within members of the community whereas here action is taken against those committed offences… it’s considered an offence
96. The Tribunal found LTDS’s offence of affray was serious and did cause considerable fright to the residents of the house he attended. The Tribunal did not find on the evidence that LTDS “carried out violence”. As conceded by the Respondent, LTDS was not convicted of assault, but of Affray. The Respondent in its written submission advised the Tribunal that it should proceed on the basis that LTDS was present at the incident but did not physically assault anyone.
97. The Tribunal noted the conflicting information from the numerous witness statements from the affray incident. The CCTV images do paint a picture of confusion and people with weapons but there was no evidence for the Tribunal to go behind the finding of the court. The Tribunal when evaluating the material before it was mindful of the reasoning of Justice Logan in Nafady:
The point really is that, faced with competing accounts as to whether alleged criminal conduct occurred, one an emphatic denial and the other a hearsay statement in a police report, it was incumbent on the Minister, if he were to use such past conduct as a stepping stone to why it was that there was a risk that Mr Nafady would engage in criminal conduct in Australia in the future, to expose his reasoning by reference to material reasonably admitting of that conclusion, that, nonetheless, such conduct had, to his reasonable satisfaction, occurred.
Perhaps all that can be said, given that the decision-making is administrative, not judicial, is that, where a grave finding touching on personal liberty must be made, the evaluation as called for in Plaintiff M1/2021 must be exposed, logical, rational and reasonably open on the material to which reference is made in the evaluation. To insist on more is inconsistent with the observations, quoted above, in Plaintiff M1/2021 and, for that matter, with the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35 – 37; to tolerate less is conducive to arbitrariness in dealings by the executive with citizens and non-citizens. A recollection of history and attention to current affairs offers warning enough about why there should be no such toleration.
As to other conduct in police reports, Mr Nafady submitted that the Minister “appears to have uncritically accepted untested and uncorroborated accounts, some of which were not even drawn to the applicant’s attention by [the police].” The Minister’s reasons reveal he did so. Once again, the Minister was not bound by formal rules of evidence. But he was obliged to explain why he chose to act on such reports
98. The Tribunal found that LTDS was not simply at the wrong place at the wrong time but had attended with his cousins in part of the ongoing political tension between the two families. However, the Tribunal did not find on the evidence that LTDS had taken a weapon or inflicted harm on anyone present. LTDS did express to the Tribunal his remorse for his actions, and his concern that women and children could have been hurt. The Tribunal considered LTDS had demonstrated that he understood his actions were inappropriate and he appreciated there are better ways to deal with such disputes, such as calling the police. The Tribunal notes LTDS has not been charged or convicted of like offences since.
99. The Tribunal considers that driving whilst on a phone is a serious breach of the road rules which can result in devastating outcomes. The Tribunal could understand LTDS’s expressed concern was to assist his wife, who has limited English, deal with their sick child but this could have easily been done via a hands-free call or by pulling over to speak on the phone. The Tribunal did not consider this was a significant enough infraction however to deny LTDS the right to Australian citizenship.
100. The Tribunal did not find LTDS had deliberately misled the Tribunal or the Respondent about his 2021 conviction, the failure to demonstrate to the court he had paid his $300 donation to the Salvation Army. The Tribunal accepted that this was an oversight and not an indication of some greater character flaw or demonstration of a pattern of behaviour. The Tribunal noted LTDS donated $300 during the hearing process, although he no longer had an obligation as his conviction had been discharged
101. The Tribunal finds LTDS’s stalking was undoubtably serious but found a significant passage of time has passed since he had been convicted of such an offence, and there had been no repeat of the offending or any convictions of any form of family violence since. The Tribunal found LTDS had matured, accepted that his actions had caused great harm and now devotes himself to his wife, family, community, and business.
102. The Tribunal did not find LTDS had demonstrated a pattern of criminal behaviour nor that he continued to minimise the seriousness of has actions. The Tribunal found LTDS had been invited by the Respondent to explain his offending and he had. The Tribunal place little significance on LTDS’s conviction in 2021 finding his failure to declare this conviction to the Respondent was an oversight. The Tribunal noted LTDS had disclosed all his other offending to the Respondent. The Tribunal found LTDS has accepted and taken responsibility for his actions, demonstrated remorse and taken action to ensure he and others in his community abide by Australian laws and values.
103. The Tribunal noted that LTDS had during this time not only accepted he was required to marry the person chosen by his family but developed a strong bond with his wife and children which has made him a better person.
104. The Tribunal’s role is to weigh all the factors to arrive at a conclusion of whether LTDS could now be considered of good character. On the one hand, there is no doubt LTDS’s offending was serious. On the other hand, it is 12 years since LTDS’s most significant offending and in that time as conceded by the Respondent LTDS’s family life, employment and involvement in his community should be given some positive weight in an assessment of his character. The Tribunal finds there is sufficient time since LTDS’s serious offending to now consider him of good character. The Tribunal found LTDS had not attempted to mislead the Tribunal about his 2021 conviction but understood it to be an oversight.
105. The Tribunal, weighing up all the factors in this matter, considers LTDS is of good character, has shown enduring moral qualities, and concludes that he should not be denied the ability to apply for Australian citizenship.
DECISION
106. The Tribunal sets aside the decision of the delegate, dated 2 May 2022, refusing LTDS’s application for Australian citizenship by conferral, and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to section 43(1)(c)(ii) of the AAT Act, that the Applicant is a person of good character for the purposes of the Act.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.
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AssociateDated: 21 June 2023
Date of hearing: 3 May 2023 Applicant’s Counsel: Mr John Riordan
Respondent representative: Ms Kate Gawidziel Respondent solicitors: Australian Government Solicitors
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