Mohammad Albu-Riyashi and Minister for Immigration and Border Protection
[2014] AATA 797
•28 October 2014
[2014] AATA 797
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0412
Re
Mohammad Albu-Riyashi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 28 October 2014 Place Sydney The decision under review, being the decision of the delegate of the Minister for Immigration and Border Protection made 6 January 2014 to refuse Mr Albu-Riyashi's application for Australian citizenship, is affirmed
............................[sgd]............................................
Deputy President J W Constance
Catchwords
CITIZENSHIP – whether the applicant is of good character – previous convictions – domestic violence – failure to disclose convictions and good behaviour bond on the application for citizenship - decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21(4), 24
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634Secondary Materials
Australian Citizenship Instructions (Cth) issued 1 July 2014.
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Mr Albu-Riyashi applied for Australian citizenship by conferral on 11 July 2013.
On 6 January 2014, a delegate of the Minister refused the application on the basis that Mr Albu-Riyashi had not established that he was of good character at the time the decision was made.
Mr Albu-Riyashi has applied to the Tribunal for a review of the delegate’s decision.
For the reasons which follow, the decision under review will be affirmed.
BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of Mr Albu-Riyashi. I am satisfied of the facts found on the balance of probabilities.
Mr Albu-Riyashi is a citizen of Iraq. He is 63 years old.
In March 2009, Mr Albu-Riyashi migrated to Australia with his wife and daughter. He is the holder of a subclass 202 (permanent) visa granted on 19 November 2008.
The family has lived in Australia since arriving in 2009. In March 2011, Mr Albu-Riyashi separated from his wife, who continued to live in their former home with their daughter.
Mr Albu-Riyashi was charged with two offences following an incident on 15 January 2012. The facts which gave rise to these charges, of which he was subsequently convicted, are set out in the Facts Sheet provided to the Court.[1]
[1] Exhibit R1, Supplementary ‘T’ Documents pp.9-11.
On 15 January 2012, Mr Albu-Riyashi attended the house in which his wife and daughter were living in order to spend time with his daughter. During this visit, Mr Albu-Riyashi asked his wife if he could return to live in their former home as he had no other place in which to live. Mrs Albu-Riyashi refused this request and Mr Albu-Riyashi stated that he would return to the premises against her wishes. She packed some of her belongings and left the premises. Mr Albu-Riyashi followed Mrs Albu-Riyashi.
The Facts Sheet includes the following description of the incident which occurred after Mrs Albu-Riyashi left the home.
The Accused has then had a conversation with the Victim. In Arabic, the Accused has said to the Victim “I’ll show you, I will cut your throat.”
The Accused has then exited his vehicle and walked up to the Victim. The Accused has then slapped the Victim in the face with his right hand. The Victim has fallen to the ground. The Victim has stood up and began running home. The Accused has then began punching the Victim back, neck and shoulders.
……
The Witness [the 16 year old daughter of Mr and Mrs Albu-Riyashi has ran [sic] to the victim to provide assistance. The Witness has stepedp in between them. As a result of this the Accused has stopped assaulting the Victim. The Accused has returned to his vehicle and driven from the scene.
The Victim and witness have returned home and contacted Police.
……
On Tuesday 17th of January 2012 at 9:00am the Accused attended Fairfield Police Station. The Accused was cautioned and placed under arrest ……
The Accused was offered the opportunity to participate in an Electronically Recorded Interview which he accepted.
During the interview the Accused denies making any threats towards the Victim. The accused stated that the Victim was hitting herself in the head and to prevent her from injuring herself has grabbed the wrists of the victims [sic]. Once she calmed down he released her. The Accused denies slapping or punching the Victim.
Following the interview, an Apprehended Violence Order was issued against Mr Albu-Riyashi.
On 21 June 2012 in the Local Court of New South Wales, Mr Albu-Riyashi was convicted of common assault and stalk or intimidate with intent to cause fear of physical or mental harm. At the direction of the Court he entered a good behaviour bond for 18 months.[2] The term of the bond expired on 21 December 2013.
[2] Exhibit R1, Supplementary ‘T’ Documents p.6.
THE ISSUE
The only issue for determination is whether, at the time of the Tribunal’s decision, Mr Albu-Riyashi is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).
LEGISLATION
Section 21(4) of the Act provides:
(4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is:
(i) aged 60 or over at the time the person made the application; or
(ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; 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) understands the nature of the application at the time the person made the application; and
(d) 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
(e) 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
(f) is of good character at the time of the Minister's decision on the application.
Section 24 of the Act provides, in part:
(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).
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.
The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are ‘cogent reasons to the contrary”.[3]
[3] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.
Paragraph 10.1.2 of the Instructions provides, in part:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:
Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not 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. (citations of authorities omitted).
After referring to the judgement of the Court in the Irving, Paragraph 10.3.1 provides, in part:
In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
§ characteristics which have been demonstrated over a very long period of time
§ distinguishing right from wrong
§ behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
CONSIDERATION
Characteristics of a person of good character
In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include:
·respect and abide by the law in Australia and other countries;
…
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
…
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;
…
·not be violent … and not cause harm to others through their conduct.
…
Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. The relevant factors to be taken into account in considering why an applicant might not be of good character (as set out in paragraph 10.5.2) include the following:
·Has the applicant committed any offences and if so, did they admit that in their citizenship application?
·If the applicant has committed an offence, was it serious or minor?
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or disabled, or others who trusted the applicant?
The offences committed by Mr Albu-Riyashi
Since he arrived in Australia in 2009, Mr Albu-Riyashi has committed two offences, both of which are to be regarded as serious in accordance with paragraph 10.5.2. This paragraph defines serious offences to include:
·crimes of violence, which include domestic violence;
·harassment or stalking.
Both offences arise out of a single incident. There is no pattern of criminal behaviour.
Mrs Albu-Riyashi was the victim of these offences. On the basis of Mr Albu-Riyashi's evidence I am satisfied that she was in poor health at the time the offences were committed and was vulnerable. I am unable to determine whether she trusted Mr Albu-Riyashi at the time, but she was a person who was entitled to expect that she could trust him.
Failure to disclose convictions and good behaviour bond
Mr Albu-Riyashi did not disclose his convictions or the fact that he was subject to a good behaviour bond when he completed his application for citizenship on 19 June 2013.[5] He answered “no” to each of the following questions:
(a)Have you been convicted of, or found guilty of, ANY offences overseas or in Australia? (Include all traffic offences which went to court including offences declared in your permanent residence application and any ‘spent’ convictions?[6] [Original emphasis].
…
(d)Are you presently under a probation order, good behaviour bond, on parole, released on licence or subject to periodic detention overseas or in Australia?
[5] Exhibit R1 p.131.
[6] Exhibit R1p.84.
Mr Albu-Riyashi said at the hearing that he cannot read or write English and that a friend completed the application on his behalf. He said that he told this person that an Apprehended Violence Order had been made against him. Mr Albu-Riyashi said that he did not understand that he had been convicted of any offences.
When I asked him as to the circumstances of his court appearance, Mr Albu-Riyashi said that he was represented by a solicitor and had the services of an interpreter. Taking into account this evidence and his demeanour when giving evidence, I do not accept Mr Albu-Riyashi’s explanation for his failure to properly answer the questions in the application. I am satisfied that he was not truthful in his dealing with the Australian Government in this regard.
Mr Albu-Riyashi’s attitude to the law in Australia
Mr Albu-Riyashi declared on his application that “the information I have supplied in this form is complete, truthful and correct in every detail.”[7] I am satisfied that he knew this was incorrect.
[7] Exhibit R1 p.139
Mr Albu-Riyashi does not understand the seriousness of the offences of which he has been convicted under Australian law. Although he has been convicted he continues to deny that he threatened Mrs Albu-Riyashi and claimed that “maybe she was upset”.[8] He denies that she fell to the ground when he punched her. He also denies that he followed his wife when she left her home after he told her that he intended to return to live there.
[8] Transcript 5 September 2014.
Further, Mr Albu-Riyashi sought to explain his actions in part by reason of Mrs Albu-Riyashi's ill-health and to minimize the seriousness of his conduct towards her.
In a Statutory Declaration made 24 March 2014 and filed in these proceedings,[9] Mr Albu-Riyashi set out in detail the nature of his wife’s illnesses and stated, in part:
Her illness is a difficult one and very taxing emotionally…….
On that day [the day the assault occurred] I was under extreme pressure and because of her insistence on divorce, and I felt I am just about to lose my family.
Under this extreme anxiety and stress I could not control my frustration and a minor altercation took place. [Emphasis added].
The claim that the incident was “minor” was emphasised in written submissions made on Mr Albu-Riyashi's behalf on 2 April 2014.
[9] Exhibit A2.
Considering the matters to which I have referred, I am not satisfied that Mr Albu-Riyashi is a person who respects and abides by the law in Australia.
It was argued that Mr Albu-Riyashi breached the terms of the bond on 10 December 2012. On the evidence before me I am not satisfied that Mr Albu-Riyashi did breach the bond and I have not taken this into account.
Consideration of Mitigating Factors
Paragraph 10.5.2 provides, in part:
Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.
oWhat is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ...
oHas the applicant accepted responsibility and shown remorse for their conduct?
oHow has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…
oHas the applicant rehabilitated themselves?…
oWhat was the applicant’s age at the time the offence was committed?…
oWere there any extenuating circumstances relating to the offence?
…
Time from offence to application
Approximately 18 months elapsed from the commission of the offences by Mr Albu-Riyashi until he applied for citizenship. His application was made five months before he ceased to be subject to the conditions of the bond.
Even taking into account that the decision as to Mr Albu-Riyashi's character is to be made at the time of the determination of this application, the time that has elapsed since his convictions is too short to be a factor in his favour.
Remorse and acceptance of responsibility
Mr Albu-Riyashi has expressed regret for his criminal conduct, but I am not satisfied that he has genuinely accepted responsibility for it. He continues to endeavour to shift some responsibility to Mrs Albu-Riyashi, particularly in respect of the alleged stress placed on him by her ill-health. Despite his conviction he continues to deny the more serious aspects of the assault and stalking/intimidation. By reason of his denial I am not satisfied that he has shown genuine remorse.
Behaviour since the completion of obligations under the good behaviour bond
The short time which has elapsed is insufficient to assess how Mr Albu-Riyashi will act when not subject to the obligations imposed by the court. In addition, for the entirety of the period since the bond expired, Mr Albu-Riyashi has been prosecuting this matter before the Tribunal.
These factors do not mitigate the effects of the convictions.
Treatment being received by Mr Albu-Riyashi
In April 2014, Mr Albu-Riyashi was referred by his General Practitioner to Dr Abu-Arab, Clinical Psychologist. The referral was on a Mental Health Care Plan for treatment of trauma and depression and for anger management. Dr Abu-Arab provided a report dated 28 April 2014.[10]
[10] Exhibit A11.
Mr Albu-Riyashi was diagnosed as suffering Chronic Post Traumatic Stress Disorder with Major Depressive Disorder as a second diagnosis He attended four appointments with Dr Abu-Arab in April 2014, during which he participated in a cognitive behaviour program to help him better manage his anger.
Dr Abu-Arab reported, in part:
I am impressed that Mr Albu-Riyashi is genuine, and that he would like to live in Australia permanently. He is aware of his mistake, and that he would do everything possible to rectify that. He believes that women should be treated equally, and that violence is not the way to solve conflict between individuals. He knows that in the future he would not take the law into his own hands, and instead he would consult and seek help from resources available in the community.[11]
[11] Report of Dr Abu-Arab dated 28 April 2014.
Whilst I take into account that Mr Albu-Riyashi has sought professional help to manage his anger problem,[12] I take into account also that he did not seek this help until more than two years after the offences which he admits were, at least in part, a result of his anger towards his former wife. The treatment was sought after the application before the Tribunal was lodged. Insufficient time has elapsed to enable me to be satisfied that this treatment has assisted Mr Albu-Riyashi to manage his anger.
[12] See Paragraph 10.5.4 of the Australian Citizenship Instructions.
Age
Mr Albu-Riyashi was 60 years old at the time of the offences. Considerations of immaturity are not relevant.
Any extenuating circumstances relating to the offences?
I am not aware of any such circumstances. In fact, by following Mrs Albu-Riyashi after she left the house to escape him, and later continuing to assault her after she turned to run away, Mr Albu-Riyashi's conduct should be considered more serious.
References as to character
Mrs Al Shabeeb
Mrs Al Shabeeb is the former wife of Mr Albu-Riyashi.
In a Statutory Declaration made 17 February 2014 Mrs Al Shabeeb stated that since the incident in which she was assaulted, Mr Albu-Riyashi has become “a different person with placid and peaceful personality.” [13]
[13] Exhibit A5.
Ms Albu-Riyashi
Ms Albu-Riyashi is the daughter of Mr Albu-Riyashi and Mrs Al Shabeeb.
Ms Albu-Riyashi also stated that her father had changed and now has a “placid and peaceful personality.”[14] She is “sure that what he did on that day was the exception and not the rule.”[15]
[14] Exhibit A6.
[15] Exhibit A6.
Ms Hashem
Ms Hashem provided a statutory declaration dated 27 February 2014[16] and gave evidence. She is the cousin of Mr Albu-Riyashi and has known him for about four years.
[16] Exhibit A3.
In the opinion of Ms Hashem, Mr Albu-Riyashi is honest, helpful and trustworthy. She is aware of the assault by Mr Albu-Riyashi on his wife, but was uncertain as to whether Mr Albu-Riyashi had been convicted of any offences. She regards it as a “passing incident”.
Mr Daoud, Spokesperson, Social Justice Network
Mr Daoud knows Mr Albu-Riyashi as a person who is helpful in the community and as a peaceful man. He is believed to be a person of good character. Mr Daoud is aware that Mr Albu-Riyashi was involved in a “domestic misunderstanding.” [17]
[17] Exhibit A7.
Mr Ali Aloubaidi
Mr Ali Aloubaidi is a cousin of Mr Albu-Riyashi. He knows him as a mature and helpful person and has not seen him angry or aggressive.[18]
[18] Exhibit A8.
Mr Ali Habarneh
Mr Ali Habarneh has known Mr Albu-Riyashi for more than two years and is aware of his criminal record. He knows Mr Albu-Riyashi as a polite, helpful and respected person.[19]
[19] Exhibit A9.
Mr Al Hamza
Mr Al Hamza has known Mr Albu-Riyashi for more than five years, including when they resided in Iraq. He is aware of Mr Albu-Riyashi’s criminal record. He knows Mr Albu-Riyashi as a helpful person and has never seen him angry or aggressive. He believes Mr Albu-Riyashi has changed and will not repeat the conduct which led to his convictions.[20]
[20] Exhibit A10.
Consideration of the character evidence
Both the former wife of Mr Albu-Riyashi and his daughter state that he is a different person now and both specifically refer to his “placid and peaceful personality.” This causes me some concern as to the independence of the opinions they have expressed.
The remaining references are unclear as to the extent of the knowledge of the authors concerning the offences committed by Mr Albu-Riyashi. Mr Daoud refers to a “domestic misunderstanding”; Mr Aloubaidi describes it as “a one-off incident never happened before”.
These statements indicate that Mr Albu-Riyashi is a helpful person who is well-regarded by his friends and acquaintances – matters going to his standing in the community – however they provide limited assistance in assessing his enduring moral qualities.
In assessing the references I have considered the provisions of Paragraph 10.6.5.
Conclusion
In reaching a conclusion I must decide whether I am satisfied that Mr Albu-Riyashi is of good character at the time of this decision. In doing this, I must be informed by the policy set out in the Instructions. I do not have to make a finding that Mr Albu-Riyashi is a person of bad character.
I have considered the arguments put on behalf of Mr Albu-Riyashi that he cared for his wife for many years and has been a good father to his daughter. I accept the proposition put that character “is not a constant quantity; it varies and changes”.[21] I do not accept the argument that Mr Albu-Riyashi's record “shows a single insignificant incident.”[22] The offences of which Mr Albu-Riyashi has been convicted are regarded as serious by the policy set out in the Instructions and by the community in general. His actions were a serious breach of Australian law.
[21] Applicant’s Written Submissions 23/5/14 p.4.
[22] Applicant’s Written Submissions 23/5/14 p.5.
The decision whether Mr Albu-Riyashi is of good character is not made by applying the various factors to which I have referred as a checklist. The evidence has to be looked at as a whole.[23] Paragraph 10.5.4 of the Instructions provides, in part:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.… A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.
[23] See paragraph 10.1.1 of the Australian Citizenship Instructions.
Mr Albu-Riyashi committed serious offences within three years of his arrival in Australia. The bond under which he agreed to be of good behaviour expired in December 2013. Mr Albu-Riyashi has only been free of the supervision imposed by that bond for less than ten months. Taking into account that one of the offences involved physical violence, in part caused by his anger, there has been insufficient time since the bond expired to assess whether Mr Albu-Riyashi has in fact changed. This is particularly so given that the treatment to assist him in anger management only occurred in April 2014, less than six months ago.
Taking into account all of the matters discussed I am not satisfied that, at the date of this decision, mitigating factors outweigh the seriousness of Mr Albu-Riyashi's convictions and his providing untruthful information on his application for citizenship. I cannot be satisfied that he is presently of good character.
DECISION
The decision under review, being the decision of the delegate of the Minister for Immigration and Border Protection made 6 January 2014 refusing Mr Albu-Riyashi's application for Australian citizenship, will be affirmed.
I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of ............................[sgd]............................................
Associate
Dated 28 October 2014
Date(s) of hearing 5 September 2014 Date final submissions received 5 September 2014 Advocate for the Applicant Dr Talat Abouzaid Solicitors for the Respondent C Hillary; DLA Piper Australia
[4] (1996) 68 FCR 422 at 431-432.
0
1
0