Zeaiter and Minister for Immigration and Citizenship

[2011] AATA 581

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 581

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4663

GENERAL ADMINISTRATIVE DIVISION		)
Re		Buddy Zeaiter

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date23 August 2011

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member

CATCHWORDS

CITIZENSHIP – application refused on ground applicant not of good character – whether applicator satisfies good character provision – substantial criminal record – application of Australian Citizenship Instructions – decision under review affirmed

Australian Citizenship Act 2007, s 21

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

REASONS FOR DECISION

23 August 2011 Senior Member Jill Toohey           

Background

1.Buddy Zeaiter has lived in Australia since 1964 when he arrived from Lebanon with his family.  He is now aged 51.  All of his immediate family members are Australian citizens. 

2.In July 2010, Mr Zeaiter applied for Australian citizenship.  In October 2010, the Minister for Immigration and Citizenship (the Minister) refused his application because he was not satisfied that Mr Zeaiter was of good character.

3.The Minister’s decision to refuse Mr Zeaiter’s application was based primarily on his criminal record.  It is agreed that the record available to the Minister at the time he made his decision was not correct.  It is agreed that the version now available to the Tribunal accurately reflects Mr Zeaiter’s criminal record.     

The issue

4.I have to decide, on the evidence before me, whether I am satisfied that Mr Zeaiter is of good character.  If so, then subject to his meeting other requirements in the Australian Citizenship Act 2007 (the Act), he should be granted citizenship.

The legislation

5.Section 21 of the Act sets out the matters of which the Minister (and therefore the Tribunal) must be satisfied before granting an application for citizenship.  One of those requirements is that the person be of good character at the time of the Minister's decision on the application: s 21 (2)(h).

6.The Act provides no guidance as to the meaning of “good character” or the application of s 21 (2)(h).  Guidance in the form of published policy is found in the Australian Citizenship Instructions (the Instructions), the current version of which was published in September 2010.  Following Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Tribunal should apply the Instructions unless there are cogent reasons not to do so.

The Australian Citizenship Instructions

7.Chapter 10 of the Instructions sets out principles and considerations relevant to the character requirement.

8.According to the Instructions, an applicant may be presumed to be of good character unless there is evidence to the contrary.  It is for the applicant to show that he or she is of good character.  The full circumstances of the case must be considered including any information relevant to the character of the applicant such as comments by the applicant, character references, and other evidence of his or her behaviour.

9.Evidence of a serious criminal record may rebut the presumption in favour of the applicant.  When considering a criminal record, relevant considerations include the seriousness of any offences; the length of any prison; repeat convictions for the same offence; repeat criminal behaviour over time; any on-going obligations in relation to a sentence received; the length of time between last offence and the application for Australian citizenship; any extenuating circumstances in relation to the offences; and the age at which the crimes were committed.

10.The onus is on the applicant to demonstrate that there has been a change in their character since last offending.  A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

11.Other matters that may be indicators of character including evidence of length of employment, stable family life, community involvement and reputation in the community should also be considered.

Mr Zeaiter’s criminal record

12.Mr Zeaiter’s criminal record shows the following:

Date of charge	Date of sentence	Charge	Sentence
16 April 1974	12 June 1974	Steal in Dwelling (2 counts) Break enter and steal	On each charge: Probation 12 months good behaviour
22 August 1975	26 August 1975	Break and enter with intent to steal	Suspended committal enter recognizance self and surety in $100 to be good behaviour 12 months
19 March 1979	11 June 1979	Break enter and steal	Sentence deferred on enter recognizance self in $2000 to be good behaviour for 4 years
2 June 1983	19 August 1983	False pretence	Fine $1000, 40 days hard labour
20 April 1984	12 July 1984	Unlicenced pistol         Possess shortened firearm Possess Indian Hemp Possess shortened rifle	$500 fine or 20 days hard labour 6 months imprisonment $200 fine or 8 days hard labour Sentence deferred on entering recognizance to be of good behaviour for 2 years
29 July 1986	24 October 1986	Goods in custody	4 months periodic detention
11 July 1987	7 December 1987	Goods in custody Receiving Utter (2 counts)	6 months periodic detention On each charge: 12 months periodic detention
19 July 1991	21 August 1991	Found in gaming house Possess prohibited drug	Fined $150 Fined $500
13 July 1992	24 March 1993	Use false instrument (2 counts) Obtain benefit by making misleading statement	On each count 6 months imprisonment 6 months imprisonment
24 November 1992	5 January 1993	State false name and place of abode Unlicenced Unregistered Uninsured	Fined $200 Fined $200 On each charge fined $250
14 January 1993	11 October 1993	Knowingly take part in supply of prohibited drug (cannabis) (2 counts)	On each count 6 months imprisonment
29 October 1995	18 December 1995	Low PCA Drive whilst cancelled	Fined $300, licence disqualified 3 months Fined $400, licence disqualified 6 months
21 October 2001	28 November 2001	Use unregistered motor vehicle Unlicenced for class- 1st offence Use unregistered vehicle on road area Unlicenced for class- 1st offence	Fine $200 Fine $300 Fine $200 Fine $400
24 January 2002	14 May 2002	Licence expired less than 2 years before - 1st offence	Fine $500
31 January 2002	19 March 2002	Use unregistered vehicle on road area Use uninsured motor vehicle Negligent driving (not occasioning death/GBH) Drive on road etc while licence suspended	Fine $400 Fine $400 Fine $150 Fine $1000, Disqualification 2 years
18 May 2002	28 June 2002	Possess prohibited drug	Fine $200
21 June 2002	16 July 2002	Licence expired less than 2 years before - 1st offence Use unregistered vehicle on road area Use uninsured motor vehicle	Fine $1000, Disqualification 6 months Fine $400 Fine $400
1 May 2006	16 June 2006	Possess prohibited drug	Fine $400
7 September 2006	15 November 2006	Drive with middle range PCA	Fine $500, Disqualification 6 months
20 December 2008	6 February 2009	Drive with low range PCA	Fine $750, Disqualification 12 months

13.The record appears to show that Mr Zeaiter has served two periods of imprisonment, in March 1993 and October 1993.  He gave evidence, which I accept, that the outcome of an appeal in relation to one or more offences was that he served his sentences concurrently.

Evidence of Mr Zeaiter and witnesses

14.Mr Zeaiter gave evidence before the Tribunal.  He is one of twelve siblings.  He was married, but separated from his wife in 1986 and now lives with his mother.  His father died some years ago.  He has an adult son who works in information technology, and daughter who is a psychologist.  He cares for his mother and appears to be close to his large family.  He is a carpenter and roof tiler by trade, and has an interest in property development.  For the past two years, he has also worked three nights a week at a function centre.  By all accounts, he is a hard worker.  He regards Australia as his home and himself as Australian. 

15.Mr Zeaiter explains his offending during the period 1986 to 1993 as due to the ongoing breakdown of his marriage which did not finally come to an end until1993.  Since then, he no longer sees the friends he had when he went to prison in 1993, although he did not elaborate.  He explains his offending during the period 2001 to 2008 as “a bad mid-life crisis”.  He did not elaborate other than to say the offences were “just dumb things”. 

16.Mr Zeaiter maintains that he is now older and will not offend again.  He concedes that he occasionally smoked cannabis in the past but says the last time was two years ago.  He describes his drink-driving offences in 2006 and 2008 as “very stupid mistakes”.  He says his last drink-driving offence in 2009 happened at Christmas time; he had had a few drinks and should not have driven and he will never do it again.

17.Asked whether he had undergone any form of alcohol or drug rehabilitation, Mr Zeaiter said he does not feel he will drink and drive again.  He says his cannabis use was “something very minor”; a sniffer dog found a small quantity of cannabis on him; it was not something he would not normally do, and he has now stopped completely.

18.Mr Emade Semaan, who is Mr Zeaiter’s brother-in-law, has known him for approximately eight years and gave evidence in support of his application.  He sees Mr Zeatier at least several times a week, either at work or at family events.  He is a builder and Mr Zeaiter regularly helps him.

19.Mr Semaan agrees that Mr Zeaiter had “a fair few” convictions before 1993.  While he does not endorse his behaviour after 1993, he believes his offences since then are “nothing out of the ordinary for his generation”.  However, he believes Mr Zeaiter has turned his life around, although he could not elaborate other than to say that his criminal record before 1993 does not reflect the person he knows.  For as long as he has known him, Mr Zeaiter has been very hard-working and very involved in family activities.

20.Mr Sid Hawach is a solicitor who has acted for Mr Zeaiter although not in these, or any or the criminal, proceedings.  He has known Mr Zeaiter for more than ten years, and knows his son and daughter.  He regards him as hard-working and always honest with him.

21.In his professional life, Mr Hawach said he sees many persons convicted of drink-driving offences and does not believe they should necessarily reflect adversely on a person’s character.  Considering the many persons he has seen in court, he does not regard Mr Zeaiter’s record since 1993 as extensive and points out that most of his driving offences, and even the cannabis offences, were dealt with by way of a fine, indicating that the Court did not regard the offences as particularly serious.

22.For Mr Zeaiter it is submitted that, considered as a whole, any adverse reflection that his criminal record has on his character is outweighed by other matters that go to his good character.  They include that he has lived in Australia for 47 years and has a large family here to whom he is committed, including caring for his mother; he works six days a week and is making plans for the future; he has made substantial changes to his life since 1993 as demonstrated by the absence of serious criminal offences since then.

Consideration

23.In my view, the presumption in favour of good character is rebutted by the evidence of Mr Zeaiter’s offending.  It therefore falls to him to satisfy me that he is of good character.

24.I accept that Mr Zeaiter went through a difficult and protracted separation between 1986 and 1993.  However, that accounts for only part of his record of offending which extends over 34 years.  He has not explained what was the reason for what he calls the bad mid-life crisis that accounts for his convictions between 2001 and 2008. He was given the opportunity to explain the reason but, other than saying his offences were “just dumb things”, he did not do so.  That explanation does not assist his case.

25.I agree with the submission for the Minister that, in his evidence before the Tribunal, Mr Zeaiter tended to minimise the seriousness of his criminal record. 

26.When looked at as a whole, Mr Zeaiter’s record shows a pattern of offending that started when he was 14 and has continued in one form or another right up to the end of 2008.  He has convictions for possession of a prohibited drug in 1984, 1991, 2002, and two counts of knowingly taking part in the supply of a prohibited drug in 1993 for which he received a custodial sentence.  Although he puts much of his offending down to youth, he has been convicted on eight occasions of various offences since he turned 40, including possession of a prohibited drug at the age of 42 and again at 46. 

27.It is true that Mr Zeaiter’s record since 1993 comprises mostly driving-related matters, and the penalties imposed indicate his offences were not regarded as especially serious by the court. However, they include repeated offences of driving while his licence was cancelled or suspended; being unlicensed to drive the class of vehicle; using an unregistered or uninsured vehicle; two drink-driving offences and one of negligent driving.  Viewed in the context of his long record of offending, they indicate a continuing disregard for the law.

28.There have been several periods when Mr Zeaiter did not offend for some time.  In particular, he had no convictions between 1979 and 1983, 1984 and 1986, and 1993 and 1995.  For six years between 1995 and 2001, his record is clear.  Significantly, however, even after that lengthy period, he offended again and then continued to do so.

29.Given that history, I do not think that sufficient time has passed since Mr Zeaiter’s last offence for me to be satisfied that he is now of good character.  There is no real evidence that he has changed since his last offence.  Although Mr Semaan and Mr Hawach spoke positively about his character, I did not find their evidence particularly helpful to Mr Zeaiter.  If anything, they too tended to minimise his offending and neither pointed to any change in his character since his last offence.

30.Mr Zeaiter’s evidence about why he will not offend in future was quite vague and lacked substance. It really amounted to no more than saying he has learned his lesson and will not re-offend.

31.For the Minister it was submitted that it is relevant that Mr Zeaiter has not undertaken any rehabilitation course in relation to cannabis or alcohol.  However, to be fair, his record does not disclose a pattern of such serious or continuing alcohol of drug use that rehabilitation is warranted.  The fact that he has not undergone rehabilitation does not, in my view, weigh against him.

32.The language of the Act and the Instructions make clear that citizenship comes with responsibilities and privileges and is not conferred lightly.  I accept that Mr Zeaiter is hard-working and devoted to his family.  However, those matters do not outweigh his long record of offending.  Taking into account all of the evidence, I am not satisfied that Mr Zeaiter is of good character for the purposes of  21 (2)(h) of the Act.  That does not preclude him from making another application in future when, with greater passage of time, he may well be able to satisfy the requirement.  

33.I affirm the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey

Signed:         .............[sgd]...................................................................
           Diana Weston, Associate

Date of Hearing  16 August 2011
Date of Decision  23 August 2011
Solicitor for the Applicant          Mr C Jurd, Sid Hawach & Co.    
Solicitor for the Respondent     Ms M Stone, DLA Piper Australia