Ahmed and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 4458
•30 November 2018
Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458 (30 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0656
Re:Sogir AHMED
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:30 November 2018
Place:Sydney
The decision under review is affirmed.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP - application for conferral of Australian citizenship – refusal of citizenship application on grounds applicant does not satisfy the good character requirement - whether applicant of good character – criminal record – multiple traffic offences – sufficient time had not elapsed – applicant found not to be of good character for the purposes of citizenship legislation – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Bushell v Repatriation Commission [1992] HCA 47
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307
Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409
Erica Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hneidi v Minister for Immigration and Citizenship [2010] 182 FCR 115
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326
Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033
Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 567
Mliner and Minister for Immigration and Multicultural Affairs [1997] 48 ALD 771
Nguyen and Minister for Immigration and Border Protection (Migration) [2017] AATA 1157
NSWQ and Minister for Immigration and Border Protection (Migration) [2016] AATA 373.
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634
Safar and Minister for Immigration and Border Protection [2015] AATA 503
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
Shi v Migration Agents Registration Authority [2008] HCA
Sui and Minister for Immigration and Citizenship [2008] AATA 1062
Wang v Minister for Immigration and Border Protection [2014] AATA 89
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Budget Direct ‘Car Accident Statistics 2018’ (March 2018)
Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition), 2015
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Department of Infrastructure, Regional Development and Cities (Cth), Road Deaths in Australia – Monthly Bulletin, October 2018
QBE Insurance (Australia) Ltd ‘The most common causes of car accidents in Australia’ (March 2017)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
30 November 2018
This is an appeal by Mr Sogir Ahmed against a decision of the Minister’s Delegate to refuse his application for a grant of citizenship by conferral.
THE APPLICANT
Mr Ahmed (the Applicant) is a citizen of Bangladesh. He is 34 years of age and first arrived in Australia in October 2005 holding a student visa. He was granted a Subclass 186 (Permanent) visa in December 2015. The Applicant is engaged to be married and since his arrival in Australia, appears to have been consistently a member of the productive workforce.
MR AHMED’S APPLICATION DETAILS
Mr Ahmed applied for citizenship by conferral on 13 March 2017. In his application he was entirely open about the fact that he had numerous traffic offences recorded against him and he attached a copy of his National Police Certificate with this application.[1]
[1] Section 37 – T Documents at [18]-[43].
On 4 July 2017, in the process of considering his application, the Department invited the Applicant to comment on the potentially adverse consequences of his driving record for his application. On 2 August 2017 Mr Ahmed replied to that invitation enclosing two statutory declarations in which he admitted his offences but claimed that they had occurred at a time when he was young and immature. He went on to outline that although from time to time his driver’s licence had been cancelled in Australia, he nevertheless was entitled to continue to drive because he held an International Drivers Licence from Bangladesh.[2] He also attached a number of character references.
[2] Ibid at [54]-[68].
After considering these representations, the Delegate decided that his application would not be granted because, as a consequence of his driving offences, he could not be found to be a person of “good character” as required by the Australian Citizenship Act 2007 (the Act).
It is not necessary, nor indeed appropriate, for the Tribunal to analyse the reasons for the Delegate reaching their decision. This is, as explained below, and as outlined by the Respondent[3], a de novo review and a decision will be made on the facts before the Tribunal.[4]
[3] Respondent’s Statement of Facts, Issues and Contentions at [12].
[4] Hneidi v Minister for Immigration and Citizenship [2010] 182 FCR 115 at [59].
This decision was made on 23 January 2018 and notified to Mr Ahmed (received on 29 January 2018) who, on 7 February 2018 lodged this appeal with the Tribunal. The Tribunal heard the matter on 19 November 2018.
PROVISIONS OF THE AUSTRALIAN CITIZENSHIP ACT
These can be stated very simply.
Under the Act (section 21) a person is eligible to seek citizenship by conferral provided that they meet certain requirements which are specified in that section. These are enumerated in section 21(2) from (a) to (h) and all of the requirements must be satisfied. In the event that they are, then the applicant can be considered for citizenship. The Minister is obliged to make a decision to grant or to refuse a citizenship application (section 24(1)) but has discretion in reaching that decision. Finally, citizenship only becomes enlivened once the approved individual has taken the mandated pledge of commitment (section 26).
One of the section 21(2) requirements which must be met is that the person:
(h) is of good character at the time of the Minister’s decision on the application.
This requires the Minister to be satisfied that the applicant is of good character at a specific time, namely when the decision on the application is made. The Minister’s authorised Delegate made that decision on 23 January 2018, believing that, at that date Mr Ahmed was not a person of good character.
The Tribunal must now make that decision as of 19 November 2018 and do so on the basis of the material which it has before it. The decision is de novo and the facts are those most contemporary. The judicial authority for this proposition is as stated below.
THE TRIBUNAL IN THE SHOES OF THE DECISION-MAKER
The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[5]
[5] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307.
It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:
“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[6]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[7]
“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[8]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[9]
“…. the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[10]
[6] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at [640].
[7] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [page 11].
[8] Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs [1981] 4 ALD 198; Commonwealth v Twyman [1985] 8 ALD 554 and Re KLGL and Australian Prudential Regulation Authority [2008] AATA 542.
[9] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
[10] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.
It is thus clear that although the original decision-maker has found Mr Ahmed not to be a person of good character, it is now up to the Tribunal to make its own determination on that question.
In this respect the Tribunal must have regard to both the Policy which complements the Act and any judicial guidance on its interpretation.
The Policy in question is the Citizenship Policy (the Policy) which came into effect on 1 June 2016.
CONSIDERATIONS
There are a series of questions which the Tribunal has to answer:
·What is the meaning of being of “good character”?
·What parts, if any, of the Citizenship Policy are relevant in this decision?
·Does Mr Ahmed, at this point in time, meet that “good character” definition?
Good Character
The Act contains no definition of what constitutes “good character” but in making its determination the Tribunal is guided by judicial interpretation and by the Citizenship Policy.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
“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.”[11]
[11] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.
It is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[12]
[12] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
Citizenship Policy
The Citizenship Policy (at p. 145) elaborates this by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
·“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.”
Policy however is not the same as law. As this Tribunal said in Aston:
“Policy is not law. A statement of policy is not a prescription of binding criteria.”[13]
[13] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [376].
Nevertheless the Tribunal must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions of good character.[14]
[14] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, Hneidi v Minister for Immigration and Citizenship [2010) 182 FCR 115.
It is relevant that at page 147 of the Policy where the question of what constitutes being of good character is elaborated, the Policy gives the following example:
“… an applicant of good character would …
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 with licence or insurance)…..”
Relevantly, in Mr Ahmed’s case the court has also made clear that:
“When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”[15]
[15] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
MR AHMED’S CRIMINAL OFFENCES
Mr Ahmed has been convicted of eight separate driving offences between 19 January 2009 and 28 October 2015.
In January 2009 he was convicted of two offences relating to his failure to display “L” (“learner”) plates and driving without being accompanied by qualified driver.
In July 2011, February 2013, July 2013 and July 2015 Mr Ahmed was found to have been driving with an expired driver’s licence. An offence in July 2015 was exceeding the speed limit imposed and his most recent conviction (October 2015) was for driving a vehicle with an illicit substance (marijuana) present in his blood.
In respect to each of the offences a fine was imposed together with periods of licence disqualification: two periods of three months, one period of six months and one period of three years).[16] At no stage was any custodial penalty imposed.
[16] Section 37 – T Documents at [42].
However, apart from these matters coming before the courts, Mr Ahmed’s driving record, starting with offences in 2007, also includes:
·one count of driving while disqualified;
·one count of driving while using a mobile phone;
·two counts of failing to observe traffic lights/directions;
·one count of failing to give particulars after a crash; and
·something in the order of 25 speeding offences.[17]
[17] Ibid at [72]-[77].
Mrt Ahmed also had his “visiting driver privileges” (international licence) withdrawn for a period of one year on the grounds that he was “not a fit and proper person in view of recorded offences”. [18]
[18] Ibid at [73].
When these various matters were put to him by the Respondent at the Tribunal hearing Mr Ahmed admitted to all of the court convictions but sought to explain that they were matters which were the result of him being young and immature.
He further said that although he knew that on several occasions his NSW licence had been suspended, he had been advised by the Road and Traffic Authority that he was still able to drive on his international (Bangladesh) licence, at least during those periods where he did not hold a valid NSW licence.
The Tribunal has some difficulty in accepting this assertion. It asked Mr Ahmed whether he had been legally represented in all his court appearances and he confirmed that he had. The Tribunal would have expected that his legal representatives would have put to the court the question of whether or not Mr Ahmed was entitled to drive relying upon his international licence, which would, presumably, if that were the case, have prevented him from being convicted (several times) of driving with an expired licence.
Mr Ahmed told the Tribunal that he needed access to a motor vehicle in order to get to and from work and that once he was prohibited from driving, he had in fact lost his job. He now relies upon his fiancée to drive him and it is fortunate that they both now work in the same place (a café) and so this poses no significant difficulties for either of them.
However what has proved to weigh seriously against Mr Ahmed was the answers he gave to questions put to him by Respondent’s questions in relation to his convictions. He described them, several times, using the word “unfortunate”. At no stage, until pressed specifically on the issue, did Mr Ahmed evidence any concern about the safety of other road users or members of the community. His attitude was that his loss of licence was primarily a matter which impacted upon him and that affected his ability to work. He did not evidence any understanding of the right of the community to be safe from dangerous drivers, and this despite the fact that he has been enrolled and completed driver awareness programmes all of which emphasise the importance of road safety to the whole community.
The Tribunal itself pressed Mr Ahmed on the question of his speeding record and fines.
The following exchange took place:
Tribunal: How many speeding fines do you have?
Ahmed:Probably something like a few. Too much speeding, though I have speeding.
Tribunal: More than 20?
Ahmed: Nah.
Tribunal: No?
Ahmed: Should not be. I didn’t do much speeding.
Tribunal: Didn’t do much speeding?
Ahmed: I did a few times. It should not be 20 times. Maybe 4, 5 times.
Tribunal: Four, five times, ok.
At this point the Tribunal took Mr Ahmed to the print-out of his driving offences and read each of the 25 occasions where details of a speeding offence occurred on that record.
Ahmed: Oh, that’s a lot.
Tribunal: It’s more than 5 isn’t it?
Ahmed:I can see a lot. Most of them are like camera detected I guess. Just one more thing, my friend used to drive my car a lot.
When then pressed by the Tribunal as to whether Mr Ahmed was claiming that other people were in control of his car when these offences were detected –
Ahmed: Most of them I did, that’s ok.
Mr Ahmed simply cannot have been unaware of his record as far as speeding was concerned. In his original citizenship application he wrote:
Traffic offences only as per attached Australian police check. All fines paid.[19]
[19] Section 37 – T documents at [33].
In all, Mr Ahmed’s speeding fines (alone) amounted to $5,490.00. This is not a sum likely forgotten, if indeed they were all paid.
Speeding is the biggest killer of Australians in terms of road deaths. Mr Ahmed’s denial of his record in relation to this matter counts seriously against him in the view of the Tribunal.
As already noted, Mr Ahmed supplied a number of references to the Tribunal in support of his application. They were from his fiancée, Ms Indre Valaityte; his friend Mr Talat Mahmud and from the President of the Bangladesh Australia United Society, Dr Abdul Wahab. All of them attest to Mr Ahmed’s personal qualities of being “kind, helpful, selfless and ethical”. They express surprise as the extent of his poor driving record and all state that Mr Ahmed is a decent man attempting to (re-) build his career and that he is remorseful for his offending behaviour.
The Tribunal has no reason to doubt the material put before it in these references and understands that from their perspective Mr Ahmed is a good person who wants or needs to get his driving licence back in order to be able to work. That however is not the matter before the Tribunal. Mr Ahmed’s licence suspension expires on 10 January 2019. The Tribunal is not making a decision about that matter, its only concern is the citizenship application.
THE QUALITIES OF CITIZENSHIP
In Fenn, the Tribunal set out a clear statement to the effect that:
“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.”[20]
[20] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
In Mlinar the Tribunal suggested that the test of good character, which is also found as an important element in aspects of the Migration Act 1958, especially section 501, should actually be set at a higher level.
“The standard of good character should be even higher for citizenship than s 501 cases because of the importance of citizenship and the responsibilities and privileges attached to it.”[21]
[21] Mliner and Minister for Immigration and Multicultural Affairs [1997] 48 ALD 771 at 776.
A citizenship decision needs to take into account a multiplicity of issues.
“A decision about whether a person is of good character requires consideration of an aggregate of qualities. It is true to say, however, that despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient seriousness.”[22]
[22] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
An important element of the citizenship application is highlighted in the Tribunal’s decision in Chen as follows:
“[18] The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character.
……..
[20] The wording of the character test in s 501 of the Migration Act 1958 is subtly different to the wording of the character test in ….. the Australian Citizenship Act 1948. The former requires a positive finding that the visa holder is not a person of good character. The latter requires a positive finding that the applicant is a person of good character.” emphasis in original
[21] Where evidence raises a question in the mind of the decision-maker over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Minister (of the Tribunal upon review) to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly – for example, by comprehensively disproving the allegations – but the decision-maker must be provided with a level of comfort about his or her decision.”[23]
[23] Erica Chen and Minister for Immigration and Citizenship [2007] AATA 1815.
The issue before the Tribunal thus boils down to a simple question: does Mr Ahmed’s driving record and his presentation before the Tribunal, convince the Tribunal, in a positive sense, that he is a person of “good character”.
Since so much of this turns on that issue of Mr Ahmed’s driving record, the Tribunal considers that it might be useful were it to set out in some detail the approach which it takes to dealing with cases where the central issue relates to an individual’s driving record.
It may be thought, in the wider scheme of things, that driving offences, especially where no-one (fortuitously, to date) has suffered any physical injury, are relatively minor matters and should be given little weight in the process of assessing what constitutes “good character”.
That is emphatically not the view of the Tribunal.
ROAD FATALITIES
·In October 2018, 74 Australian lost their lives on the nation’s roads and in twelve months to October 2018 there were 1193 fatalities.[24]
·Road crashes cost Australia some $27-30 billion per year – or $ 70 million per day roughly equivalent to our national defence budget.[25]
·The top four causes of fatal car accidents in Australia in 2016 were speeding (31%), alcohol consumption (19%), driver fatigue (10%) and inattention/distraction while driving (5%). Inattention has become more of a risk since the invention of the smartphone. Studies have shown that using a mobile phone while driving increases the risk of crashing by 4 times. [26]
[24] Department of Infrastructure, Regional Development and Cities (Cth), Road Deaths in Australia – Monthly Bulletin, October 2018.
[25] QBE Insurance (Australia) Ltd ‘The most common causes of car accidents in Australia’ (March 2017).
[26] Budget Direct ‘Car Accident Statistics 2018’ (March 2018).
THE TRIBUNAL’S DECISIONS ON DRIVING OFFENCES
In Bowdler,[27] I set out this Tribunal’s approach in citizenship applications where driving records were an important element in consideration of “good character” questions.
[27] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347 [49] – [55].
“6. THE RESPONSIBILITIES OF CITIZENSHIP
Just as citizenship is a privilege granted or not, on the basis of meeting certain prescribed tests, for those not automatically qualified for it, so equally the holding of a driver’s licence is a privilege granted by meeting certain prescribed tests. No one has an automatic right to hold a driver’s licence. It may be granted with conditions and, like citizenship granted by conferral, it may be revoked or cancelled if the subsequent behaviour or activity of the individual warrants it.
Both the acquisition of citizenship and the acquisition of a driver’s licence involve the concomitant acquisition of responsibilities.
In both cases these involve matters of respect for other people; respect for the laws and lawful authorities; responsibility to act in a way which does not endanger others and a general requirement to act as a trusted holder of a privilege.
While not seeking to equate the privileges of citizenship with those of holding a driver’s licence, it is not unreasonable to believe that a person who demonstrates a callous and repeated disregard and a failure to accept the responsibilities of one may well manifest the same attitude towards the other.
This Tribunal has, in recent decisions, demonstrated an increasing awareness of the disastrous impact on the Australian community of a rising road toll. Road safety is a matter of legitimate concern to all responsible citizens and to this Tribunal.
In Wang and Minister for Immigration and Border Protection the Tribunal remarked that the Applicant had:
“...continued to disregard the laws whose purpose it is to protect users of the road. Those laws go to the essential safety of the community.”
In Safar and Minister for Immigration and Border Protection, the Tribunal (quoting with approval, the above passage from Wang) stated:
[28] Even though each of Mr Safar’s offences may not be within the meaning of “serious offence“ under 10.5.2 of the Instructions[28]the pattern of behaviour and the number and kinds of his offences raise serious concerns. To my mind driving a motor vehicle while under the influence of alcohol is a serious matter. I would say the same about driving a motor vehicle at high speed while holding a provisional licence, driving at 112 km per hour in a 60 km per hour zone for example. One only has to consider the heavy road toll as reported in the media to understand the significant risk such behaviour poses to members of the Australian community.
[28] Since replaced by the Citizenship Policy document.
Further, in Safar it was stated:
This case does not simply turn on Mr Safar’s traffic offences, although those are concerning in themselves. The important point is that his flagrant disregard for law and for community safety, and his lack of insight, point to aspects of his character that are not consistent with a person who is of “good character“ for the purposes of s 21(2)(h) of the Act.[29]
In assessing claims for citizenship it is not improper, in my view, for the Tribunal to take into account whether or not an applicant for citizenship has, by his past behaviour, demonstrated that he has and may very well continue to act in a fashion which puts at risk the lives and wellbeing of other Australians.
In Da Wei Zheng and Minister for Immigration and Citizenship, Deputy President Forgie reflected on aspects of the character test when she said that one aspect of the test was a requirement to uphold and obey the laws of Australia which might be:
“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. Keeping out of trouble is one way in which a person may show that he or she is of good character.”[30]
[29] Safar and Minister for Immigration and Border Protection [2015] AATA 503 at [38].
[30] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347 [56]- [57].
In Apire and Minister for Immigration and Border Protection[31] the Tribunal considered an applicant with a significant record of driving offences as follows:
[15] In view of his criminal history, it is quite clear that Mr Apire has a pattern of disobeying traffic laws over an extended period. He has repeatedly driven a motor vehicle without a current driver’s license; he has driven a motor vehicle while under the influence of alcohol; and he has driven a motor vehicle without current registration. He has been charged and convicted of multiple offences as a result. Behaving in this manner, he has placed his passengers (including children) and other road users at risk of harm.
[16] Even though each offence is not properly classed as a “serious offence“ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection — laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values. Mr Apire has two such offences.
[17] I do not accept his assertion that he drove only because it was necessary for him to do so in order to keep his job, or because there was no other alternative. By his own account, he owned a number of motor vehicles which he drove “knowing that I was breaking the law“ and in flagrant disregard to court orders disqualifying him from doing so.
[25] This case does not simply turn on Mr Apire’s traffic offences, although those are concerning in themselves. The important point is that his flagrant disregard for law and for community safety, and his lack of insight, point to aspects of his character that are not consistent with a person who is of ‘good character’ for the purposes of the Act.
[31] Apire and Minister for Immigration and Border Protection [2014] AATA 193.
The Tribunal recognises that Mr Ahmed has never been convicted of drink driving offences, although he was found driving while having an illicit drug (marijuana) in his blood. Nevertheless the Tribunal’s comments about driving offences encompass more than just those related to drink-driving.[32]
[32] NSWQ and Minister for Immigration and Border Protection (Migration) [2016] AATA 373.
In Kholi,[33] the Tribunal examined an applicant’s driving record as a whole and commented:
“[20] When viewed as a whole, the applicant’s history of driving offences evidences a serious pattern of ongoing disregard for the laws of Australia and accepted community values.”
[33] Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326.
In Nguyen [34]the same point was made:
[32] …… . Although these offences neither singly nor cumulatively have the same mark of dishonour as the criminal offences, nonetheless, the pattern of behaviour demonstrated by the series of driving offences during his time in Australia demonstrates that he has a singular disregard for the safety of himself and others on the road. It demonstrates also a disregard, more generally, for laws which are in operation to protect other citizens and a continuing willingness to place himself outside the rules which govern the behaviour of citizens in Australia.
[34] Nguyen and Minister for Immigration and Border Protection (Migration) [2017] AATA 1157.
[34] QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820.
In QKJY the Tribunal repeated its concerns about applicant’s with multiple offences and what this says about their acceptance of a sense of personal responsibility for their behaviour:
“(41) … the cumulative effect of the Applicant’s drink driving offences plainly demonstrate his blatant disregard for the road rule and the general safety and welfare of members of the Australian community.”[35]
In Wang the Tribunal also turned its attention to the evidence of the applicant before it and commented in a way which is singularly apposite to the evidence which Mr Ahmed gave as noted above.
[8] In your evidence, you acknowledged the seriousness of that initial event in 2003, but you remained very focused on its effect on you and very focused on your employment and not as focused as I would have hoped on the effect of your conduct then and over the following six years on other people. Your focus was also on your need for citizenship to assist you in relation to your travel for work and that is a reasonable thing, but you seemed less focused on the effect of your behaviour on the Australian community and on other road users.
[9] You insist that you are a changed person, that you are more mature and better behaved and you point to 10 months driving in Australia with no incidents. It is possible that it is true that you have reformed in that way, but in less than one year of driving after some six years of repeated infringement following an infringement in 2003 that had catastrophic results, I cannot be satisfied that this aspect of your character has yet been reformed. I gain no comfort in this regard from your failure to characterise a speeding infringement and a failure to display P plates as important infringements and that you had forgotten entirely about another infringement.
[10] I do not think you were trying to cover anything up, but I do think that you have yet to appreciate the dangerous ramifications of your actions and their potentially deadly effect on the Australian community.[36]
[36] Wang v Minister for Immigration and Border Protection [2014] AATA 89.
Finally, in Zaya the Tribunal returned to assessing the overall nature of driving offences, their seriousness and their impact on other members of the community.
[54] The Tribunal agrees with this assessment. There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.[37]
[78] Mr Zaya is clearly committed to leading a good, ethical lifestyle and he has put effort into addressing his addiction and health issues. Unfortunately, as outlined above, the Tribunal is not convinced that enough time has passed for it to be satisfied that Mr Zaya has done enough to ensure success in this regard.
[79] To borrow from the words of Senior Member Toohey in Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, the “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case. The Tribunal accepts that absence of offending is itself an indicator of a person’s rehabilitation, and more so, as time passes. It counts in Mr Zaya’s favour that nearly nine years have passed without any further offences. However, there is not in the Tribunal’s view sufficient objective evidence yet of his good character and a commitment on his part to rectify those issues that raise concerns about his character generally.[38]
[37] Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366.
[38] Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
LENGTH OF TIME SINCE LAST OFFENCES
Mr Ahmed put to the Tribunal that as he had no driving, or any other, convictions since October 2015, the Tribunal should be satisfied that sufficient time had passed for him to be regarded as a “reformed” character.
The Tribunal has frequently examined the question of the length of time which should have elapsed between the last commission of an offence and the granting of an application for citizenship where issues of “good character” are central. This is a multi-factorial exercise.
“(14) When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime the length of time since its commission and the degree of rehabilitation of the offender.”[39]
[39] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132.
By way of example, Mr Assafiri had a long history of serious and repeated criminal offences and the Tribunal does not equate his record with that of Mr Ahmed, nevertheless the Tribunal made several points which are relevant in this application.
[67] It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the individual case.
[71] I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.[40]
[40] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35.
In Ahori the Tribunal, in relation to domestic violence offences (again, not to be equated with Mr Ahmed’s matters) noted it concern about issues of frequency and recency:
[83] There is nothing in this decision which would preclude the Applicant from lodging another application in due course. However, such an application would need to be made after the expiration of some time and only if the Applicant has no further domestic violence or other issues that would preclude the granting of citizenship. The record of transgressions by the Applicant is too frequent and too recent for the Tribunal to conclude that he was at the time he made the application, or now, a person of good character for the purposes of the Act.[41]
[41] Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601.
In Mahmood the Tribunal addressed similar matters where a relatively short period of time had elapsed since the applicant’s last offence:
[7] In the current matter it was shown at the hearing that the applicant had a string of traffic offences. These are set out in the applicant’s NSW Driving Record found at T14 of the T documents filed in this matter. They include, among other offences, seven speeding offences, using a mobile phone, not obey a stop sign, turning improperly, not wearing a seat belt and disobey traffic lights. The applicant’s license was suspended from 8 September 2015 to 7 January 2016 but was not implemented and, instead, the Applicant was placed on a good behaviour bond from 9 September 2015 to 7 September 2016.
[9] While each individual matter might be excused, the repeated nature and the cumulative effect is such as to indicate a disrespect and/or disregard to that aspect of the law which all have to do with the public users of the road.
[15] I have also taken into consideration that the applicant has completed a Traffic Offenders Rehabilitation Programme. This was completed on 19 March 2016. Whilst this is commendable I believe that more time is required to see if this has been of lasting benefit.[42]
[42] Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033.
In Sharma the Tribunal was not convinced that a two year elapse since the most recent offence was sufficient for it to the confident that the applicant had reformed:
[48] There is no evidence that Mr Sharma has been charged with any offences since the expiry of the bonds in 2013 other than a traffic infringement. Nonetheless, the relatively short period between the expiry of the bonds and the date of this decision, being just over two years, means that I cannot be satisfied, without more, that Mr Sharma has reformed.[43]
[43] Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608.
In Fenn,[44] the Tribunal was concerned that five years might not have been enough for the applicant to demonstrate a restoration of character to the required level and in Sui [45] six years was thought insufficient. However in both these cases the offences were more rank than they are in relation to Mr Ahmed and here the Tribunal repeats the finding in Assafiri that in relation to the elapse of time “How long that will be will depend on all the circumstances of the individual case.”[46]
[44] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
[45] Sui and Minister for Immigration and Citizenship [2008] AATA 1062 at [72].
[46] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [67]
ASSESSING MR AHMED’S APPLICATION
Taking citizenship as a privilege which has to be earned, the Tribunal, in order to be persuaded that Mr Ahmed has indeed earned that right, needs to have gained that “level of comfort” identified in Chen.
In the opinion of the Tribunal, Mr Ahmed has not been able to provide that.
His driving record is appalling when one adds the totality of the record of offences to those for which he was convicted in the courts. Put bluntly, he was a menace on the roads and by his blatant, frequent and sustained disregard of Australia’s laws as they relate to driving and road safety, he fails to manifest the degree of respect for the law which this nation is entitled to expect from people seeking to join its ranks of citizenship.
Mr Ahmed displayed a lack of insight into the severity or the nature of his offending behaviour and his attitude was akin to that rebuked in Apire.
The “explanations” about how he understood his right to drive when disqualified via reliance upon an international licence and the claim that he was authorised to do so by relevant traffic authorities does not withstand the light of scrutiny. Similarly his attempts to downgrade his 25 speeding offences into 4 or 5 instances where “I didn’t do much speeding” are unacceptable.
There has been insufficient time elapsing since Mr Ahmed’s last offence and in that period he has been prohibited from driving. The Tribunal cannot tell if, had he been able to drive beyond October 2015, his driving behaviour would have improved materially. That will only be testable after his licence is restored in January next year. It would then, in the opinion of the Tribunal, require several years of a “clean” driving record for the Tribunal to be satisfied that Mr Ahmed had reformed himself as a responsible driver and road user. The High Court has held that past actions are legitimate predictors of future behaviour[47] and in Mr Ahmed’s case this presumption would need to be tested objectively. Certainly two years, during which time Mr Ahmed was under disqualification from driving similar fails to provide the Tribunal with the necessary “level of comfort” to make a decision in his favour.
[47] Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 567 at pages 578-579.
Mr Ahmed is not, of course, prohibited from making another citizenship application in due course nor does an adverse decision at this stage deprive him of any rights he currently holds.[48]
[48] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
What Mr Ahmed needs to do is get his driver’s licence, demonstrate that he is now a responsible driver and that he has genuine insight into his past failings and then seek to have a new application assessed. The Minister will then have before him/her better information and evidence upon which to make a new decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 79 (seventy-nine)paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd]..........................................
Associate
Dated: 30 November 2018
Date(s) of hearing: 19 November 2018 Solicitors for the Applicant: Ms L Ryan, LRG Lawyers Solicitors for the Respondent: Mr M Gao, Australian Government Solicitor
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