Rajbieh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 84

Rajbieh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 84 (3 February 2021)

Division:GENERAL DIVISION

File Number(s):      2019/8655

Re:Bilal Rajbieh

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:3 February 2021

Place:Sydney

The decision of under review is affirmed. 

......................................[sgd]..................................

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant is of good character – domestic violence – good behaviour bond – Australian Citizenship [Policy Statement] – Australian Citizenship Procedural Instructions – decision under review affirmed 

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

CASES

Irving v Minister for Immigration, Local Government & Ethic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] (27 November 2020)

Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act (revised 17 April 2019)

REASONS FOR DECISION

Mr S Evans, Member

3 February 2021

1. The applicant, Bilal Rajbieh, applied for Australian citizenship by conferral on 6 May 2018.  His application was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs  (“the Minister”) on 28 November 2019.  The delegate determined that Mr Rajbieh was not of “good character” – one of the statutory criteria for Australian citizenship – owing to his criminal history.  Mr Rajbieh seeks review of the decision by the Tribunal.

   BACKGROUND

2. Mr Rajbieh is a 33 year old citizen of Lebanon.  He first arrived in Australia on 24 August 2010 as the holder of a Temporary Prospective Spouse (Subclass 300) visa.  On 15 November 2010 Mr Rajbieh married his wife (“MK”), who is an Australian citizen. 

3. Mr Rajbieh and MK have three children together, the youngest of whom is less than two years old.   

   Hearing

4. The matter was heard on 17 November 2020.  Mr Rajbieh represented himself.  Both he and MK provided evidence under affirmation. 

   LEGISLATIVE AND POLICY FRAMEWORK 

5. Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (“the Act”) provides that a person may make an application to the Minister to become an Australian citizen.  Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

   Determining questions of character

6. Under paragraph 21(2)(h) of the Act, a person is eligible to become an Australian citizen if, among other things, the Minister is satisfied that the applicant:

   is of good character at the time of the Minister’s decision on the application.

7. The term “good character” is not defined or qualified by the Act.  Its meaning was considered by the Full Court in Irving v Minister for Immigration, Local Government & Ethic Affairs[1] (“Irving”) in the context of the power of the Minister to refuse to issue a visa.  Lee J said:

   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 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.[2]

   [1] (1996) 68 FCR 422.

   [2] (1996) 68 FCR 422, 431-432.

8. The Department’s official guides to decision makers, includes both the Australian Citizenship [Policy Statement] and the Australian Citizenship Procedural Instructions - CPI 15 - Assessing Good Character under the Citizenship Act (“CPI 15”). CPI 15 supplements the Policy Statement and provides guidance for decision makers, including the Tribunal, in determining whether Mr Rajbieh is of good character.

9. Informed by the discussion in Irving, section 4.3 of CPI 15 states that:

   … 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 their migration and citizenship processes.

10. CPI 15 specifically calls for the decision maker to “look holistically at an applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities”.[3]

    [3] CPI 15, section 4.11.

11. The Tribunal is guided by these considerations in determining whether Mr Rajbieh meets the good character requirement for Australian citizenship.          

    FACTS

    2011 Offence

12. On 6 January 2011 Mr Rajbieh was charged with the offence of common assault (DV) against MK (“the 2011 offence”). He pleaded guilty to the offence at the Burwood Local Court which dismissed the charge pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).  A NSW Police Facts Sheet before the Tribunal records the details of the incident.  It states that MK reported the incident, which occurred on the evening of 31 December 2010, and on 5 January 2011 she provided a signed statement to police. 

    2017 Incident

13. On 27 September 2017 an Apprehended Violence Order (“AVO”) was issued to Mr Rajbieh with MK recorded as the person in need of protection (“the 2017 incident”).  The 2017 incident involved a heated argument between Mr Rajbieh and MK which took place in the presence of their children.  During the argument Mr Rajbieh threatened to kill MK.

    2018 Offence

14. On 13 July 2018 Mr Rajbieh was convicted of contravene prohibition/restriction in AVO (Domestic) due to his conduct on 12 July 2018 towards MK (“the 2018 offence”).  He was sentenced to a nine-month good behaviour bond, which ceased on 13 April 2019.  The 2018 offence concerned an argument where both Mr Rajbieh and MK were shouting at each other, resulting in MK calling the police.  The NSW Police report states that Mr Rajbieh became “highly aggressive” towards MK and she told police that she felt intimidated and feared for her safety.         

    EVIDENCE AND CONTENTIONS 

15. Mr Rajbieh expressed his remorse for what took place between he and his wife in the past and said that he regretted what had happened.  He said that he does not have an anger problem and is in fact “well known” to be a calm person. 

16. Mr Rajbieh has had a troubled relationship with MK’s family and speculated that MK’s family probably placed pressure on her to report the incidents to the police.  He told the Tribunal that his father and his wife’s mother are siblings that have long-standing family issues existing between them.  He believes that these issues have influenced the relationship between he and MK. Further, Mr Rajbieh believes that his wife’s family’s mistaken belief that he was marrying MK in order to obtain an Australian visa exacerbated the situation.    

17. Mr Rajbieh initially found it difficult to adjust to life in Australia.  He gave evidence that Lebanon is chaotic and by contrast Australia is a country of law and order and he was not familiar with the laws of the country. 

18. He told the Tribunal that he used to talk to his wife about the challenges of adjusting to life in Australia but he found that it often led to more problems between them because MK would take it personally or perceive him to be in a low mood or acting aggressively.  He said that when he and his brother-in-law had problems between them, MK would side with her brother. 

19. Mr Rajbieh lodged his application for Australian citizenship electronically.  He answered “No” to the question “Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia?”  Mr Rajbieh conceded to the Tribunal that he answered this question incorrectly but explained that he did so because he did not consider that the AVO was a major offence.

20. When the police check identified that Mr Rajbieh­ had a criminal record, he was afforded an opportunity to comment on the offences.  Mr Rajbieh’s legal representative at the time submitted on his behalf that the 2011 common assault charge was “a relatively minor offence concerning family disagreement on a major family decision”.  Specifically, Mr Rajbieh wanted his family to move out of from his wife’s family home and into their own home.  Further, it was stated “this [the assault] was not a classic violent act but rather what may be described as an unwelcomed undesirable contact”, in that Mr Rajbieh “held [MK’s] upper arm very tightly”.  The NSW Police Facts Sheet relating to the incident confirm that Mr Rajbieh took hold of MK’s right arm and “kept a tight hold on it” during an argument with her.  At the hearing Mr Rajbieh conceded that he held MK strongly, but maintains he did not “assault, slap or beat her”. 

21. In evidence Mr Rajbieh noted that he and MK had not been married for very long at the time of the 2011 incident.  He claims that he pleaded guilty after the prosecutor discussed the matter with him and told him that it would be dismissed should he do so.  He said that he did not assault MK, but wanted her to leave with him. 

22. The NSW Police Facts Sheet in relation to the 2018 offence state that MK and Mr Rajbieh became “involved in a heated argument where both started to shout at each other”.  MK feared that she was going to be assaulted by Mr Rajbieh and called the police, after which he “became very apologetic of his behaviour”. 

23. Mr Rajbieh told the Tribunal that he did not intimidate his wife and claimed that that he could have legitimately reported her to the police as MK was threatening him during the argument.  He said that he pleaded guilty to the offence in order to settle things down between him and his wife and to stop them from escalating further.  He claims that in fact he did not breach the AVO.

    MK’s evidence

24. MK gave evidence under affirmation at the Hearing, and also provided an unsigned and undated statement to the Tribunal on 17 July 2020.  She would prefer that Mr Rajbieh become an Australian citizen and had the same status as her and their children. 

25. Asked about the 2011 offence her evidence was that she does not remember most of the details.  She confirmed that she is easily bruised and that she “must have” reported it to the police because she was scared.  She recalled that she wanted to report Mr Rajbieh to the police as a precaution and that she knew that his threats to her were “only words”. 

26. She conceded that during events which led to the 2018 offence she was fearful and insecure but in hindsight she believes that Mr Rajbieh’s protection came across as anger.  She insists that she was angry when she spoke to the police and was not thinking straight.  In evidence she said that at the time she was pregnant and became abusive and emotional.  In reference to the argument, she claims that she started the argument by levelling accusations at Mr Rajbieh following an earlier incident where he did not take her phone call.  She added, however, that at the time she was fearful because of his screaming.  She explained that Mr Rajbieh would not stop arguing and added that he is diabetic and can become aggressive when he has not eaten.  

27. Reflecting on what had occurred between them, MK observed that at the time of the 2011 offence she and Mr Rajbieh were young and had differing aspirations.  In hindsight MK believes she should not have proceeded with the AVO.  She said that the main focus is now their children and their care.  Whilst she has been fearful of Mr Rajbieh in the past, she feels very safe now.  She explained that on the three occasions that she called the police she had felt scared, but that deep-down she had a strong feeling he would not do anything to hurt her. 

28. MK insisted that whilst Rajbieh and her parents had had some difficulties in the past but that they now get along.  Whilst the couple live next to her parents’ house, she did not call them when she felt threatened by Mr Rajbieh because she thought it would mean the end of their relationship.    

29. Asked if it concerned her that she had called police on three occasions to intervene in disputes between her and her husband, MK stated that it was a reflection of her poor judgement and that she should have let the incidents pass. 

30. She observed that in the intervening period Mr Rajbieh has matured, improved his English, learnt to drive and learnt to take care of her and the children.  

    CONSIDERATION

31. When determining if a person is of good character for the purposes of the Act, the Australian citizenship policy statement provides guidance for decision makers.  The term good character is not defined in the legislation and is to be given its ordinary meaning.  In addition, the CPI indicates that domestic violence in any form is not acceptable to the Australian community.    

32. Mr Rajbieh relies in part on evidence from MK to demonstrate that he is of good character.  Both he and MK expressed a view that MK, who was the victim of his offending, over-reacted on the three separate occasions in which she called on the police to intervene in their domestic disputes. 

33. It is submitted by Mr Rajbieh that he did not assault MK who wrote in her statement that the two offences were “concerned with family misunderstandings that escalated to regrettable consequences”.  She stated that the couple love each other and that their relationship has improved over time and the difficulties that they have faced have strengthened their relationship. 

34. It is submitted by the Minister that Mr Rajbieh falls short of this definition of good character owing to his convictions for offences related to domestic violence.  Further, it is argued that Mr Rajbieh’s subsequent recent accounts of the offending, specifically reference to a “domestic misunderstanding” and a “heated argument”, is inconsistent with the evidence which demonstrates actual use of force and threats of violence which instilled significant fear in MK and on one occasion the couple’s children. 

35. The 2018 offence was committed 67 days after lodging his application for citizenship and Mr Rajbieh’s good behaviour bond only ceased in April 2019.  The Minister argues insufficient time has elapsed for the Tribunal to be satisfied he has demonstrated he is reformed. 

36. Mr Rajbieh also failed to declare the first offence on his citizenship application as well as his application for his partner visa. He testified that he did not consider it was serious enough to warrant mentioning but it was a conscious decision not to include it. CPI 15 states that as a general proposition, an applicant who is of good character would not practice deception in dealing with the Australian government.

37. Whilst the lapse of time between application and Mr Rajbieh’s criminal conduct is relevant, it is not necessarily decisive when considering if he is of good character.  Nonetheless I accept that limited time has passed since Mr Rajbieh’s obligation to the court ceased and it is of concern that the second offence occurred relatively recently in 2018. 

38. I do not accept entirely MK’s assessment that Mr Rajbieh has changed his behaviour given the actions which resulted in the first offence, which she attributed to their youth and new status as a couple, is not entirely dissimilar to that which occurred in 2018.  Despite her assurance that she overreacted, I am not satisfied that this is supported by the facts or her subsequent explanation of what occurred.  Whilst the 2011 and 2018 offences were presented as heated moments that got out of hand, in both instances the police were called.  

39. I also have concerns about Mr Rajbieh’s apparent lack of insight into his offending.  Whilst he expressed remorse to the Tribunal, he was intent on downplaying the seriousness of the offending and characterised his guilty pleas as a mechanism to prevent tensions from escalating or the path of least resistance as opposed to acts of contrition.  It is troubling that Mr Rajbieh placed MK in a situation on three occasions where she felt the best or most appropriate option available to her was to call the police.  Whilst she now claims to have overreacted, I do not accept this as she was rational enough to call the police rather than seek assistance from her family who live nearby.

    CONCLUSION

40. In sum, considering all the circumstances and weighing the present evidence, the Tribunal unable to make a positive finding of good character for Mr Rajbieh at this time.  For this reason he does not presently satisfy section 21(2)(h) of the Act and therefore his application for citizenship cannot be approved under section 24(1). 

41. Mr Rajbieh will no doubt be disappointed by this decision but I note it is open for him to reapply for Australian citizenship at some time in the future should he choose to do so. 

    DECISION

    The decision under review is affirmed. 

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 3 February 2021

Date(s) of hearing:	17 November 2020
Date final submissions received:	21 December 2020
Applicant:	In person
Solicitors for the Respondent:	Mr C Burke, Sparke Helmore Lawyers