Dabbousi and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 812

Dabbousi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 812 (17 October 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0098
Re	Mouhamed Dabbousi
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President Bernard J McCabe
Date	17 October 2016
Place	Sydney

The decision under review is set aside. The Tribunal decides in substitution that the applicant is of good character for the purposes of s 21(2) of the Australian Citizenship Act 2007 and that, subject to the applicant satisfying other relevant requirements, the applicant shall be granted Australian citizenship.  

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

Deputy President Bernard J McCabe

CATCHWORDS

CITIZENSHIP – good character requirement – where applicant has lengthy history of traffic offences – where applicant gave incorrect information in application – where positive character references – decision under review set aside and substituted.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

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

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016.

REASONS FOR DECISION

Deputy President Bernard J McCabe

17 October 2016

1. Mr Mouhamed Dabbousi wants to become an Australian citizen. To that end, he submitted a citizenship application online in July 2015. He failed to accurately disclose his criminal record in the form: specifically, he failed to disclose three convictions in relation to traffic offences that were dealt with by an Australian court in 2007 and 2009. It turns out Mr Dabbousi has a reasonably extensive history of (mostly) minor traffic infringements since coming to this country. His record is otherwise clean, and he has character references from prominent citizens attesting to his qualities.

2. The Minister’s delegate rejected the application for citizenship because the delegate was not satisfied Mr Dabbousi was of good character. I have formed a different view. I have set aside the decision under review and I decide in substitution that I am satisfied Mr Dabbousi is of good character. I explain my reasons below.

   The rules I have to apply

3. A person who applies for Australian citizenship must meet the requirements laid out in the Australian Citizenship Act 2007. Section 21(2) of the Act sets out the general eligibility criteria. These include a requirement in s 21(2)(h) that the Minister be satisfied the applicant “is of good character at the time of the Minister’s decision”.[1]

   [1] I note the Department of Immigration and Border Protection issued a new policy document on 1 June 2016, namely, the Australian Citizenship Policy.

4. Three things should be said about the requirement in that sub-section. Firstly, the Minister (or the Tribunal, standing in the shoes of the Minister on review) must be positively satisfied the applicant is of good character. Secondly, the decision-maker must reach that state of satisfaction as at the date of the application. What happens after the application date is irrelevant to the decision. Thirdly, the reference to ‘good character’ refers to a person’s ‘enduring moral qualities’[2] rather than their reputation. On this point, the Australian Citizenship Instructions (reproduced in exhibit one at p 77) suggest the decision-maker have regard to:

   ·characteristics which have been demonstrated over a long period of time;

   ·the ability to distinguish right from wrong; and

   ·a capacity for acting in an ethical manner an conforming to the rules and values of Australian society.

   I accept that is a proper approach, and I propose adopting it in this case.

   [2] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 (per Lee J).

   Mr Dabbousi has a history of traffic offences

5. Mr Dabbousi came to this country from Lebanon. He arrived here when he was 22 years of age. He explained in his oral evidence that he previously held an unrestricted drivers’ licence in Lebanon and he was used to driving there – but he added the traffic laws were not rigorously enforced. When he came to this country, he was required to qualify for a drivers’ licence as if he were an inexperienced driver. Service NSW records show the applicant was issued with a learners’ permit in November 2006. The permit was issued subject to a condition that the learner be accompanied by a licensed driver. That condition makes sense for inexperienced permit holders, but it might be frustrating for someone like the applicant with more experience. In any event, the applicant ran into trouble when he was pulled over while driving unaccompanied in breach of the conditions of the licence. He was issued with an infringement notice in respect of that infraction on 24 May 2007. I was told he entered into an arrangement with the State Debt Recovery Office to pay the fine.

6. Mr Dabbousi defaulted on his arrangement and his licence was cancelled – but he continued driving. It is unclear whether he knew his licence had been cancelled; presumably he was informed of the fact by letter. In any event, on 17 October 2007 Mr Dabbousi attended Bankstown Court where a charge of ‘driving whilst suspended’ on 26 September was proved although the Court directed that the charge be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The licence suspension was lifted and the applicant was able to resume driving on his provisional licence. But he ran into further trouble on 30 December 2007 when he was issued with a speeding ticket. He was found to be driving more than 15 km/h (but less than 30 km/h) over the limit. He was issued with another speeding ticket on 4 January 2008 after he was found to be exceeding the speed limit by less than 15 km/h.

7. Unfortunately for Mr Dabbousi, the infringement in December 2007 occurred during a holiday period in New South Wales in which infringements attracted double the usual number of demerit points. The two speeding offences in short succession meant Mr Dabbousi exceeded the maximum number of demerit points for someone on a provisional licence. His licence was suspended for three months on 18 March 2008.

8. Mr Dabbousi got his provisional licence back on 22 April 2009. In July 2009, he was convicted on a charge of negligent driving in connection with an accident that occurred on 16 September 2007. He was warned about his driving record in a formal letter dated 20 July 2009. He was subsequently issued with an infringement notice on 19 September 2009 after he was found – again – to have breached the conditions of his provisional licence.  On this occasion, Mr Dabbousi had failed to display his ‘P’ plates as required. The demerit points associated with that infringement together with the points attached to the negligent driving conviction resulted in a fresh suspension of the licence which commenced on 10 October 2009.

9. Before the licence suspension came into effect, Mr Dabbousi was fined on 10 September 2009 for exceeding the speed limit by more than 10 km/h but less than 20 km/h. That offence earned him an additional suspension that ran until 17 July 2010. Shortly after his provisional licence was restored, Mr Dabbousi was issued with an infringement notice on 17 August 2010 after he was found driving a high performance motor vehicle in contravention of the conditions of his provisional licence.

10. Mr Dabbousi finally qualified for his unrestricted licence on 3 September 2010. He was issued with a speeding ticket (he was driving in excess of 20 km/h over the speed limit but less than 30 km/h) on 23 September 2012. His licence was briefly suspended with effect from 20 November 2012 after he defaulted on his payment arrangement but that suspension was lifted after less than a week. He was sent a letter dated 11 December 2012 warning him about accruing more demerit points.

11. The applicant was ticketed for driving without a valid licence on 27 November 2013. Mr Dabbousi said under oath that his licence had expired a few days before he was pulled up but he had not noticed. I have no reason to doubt his explanation that it was an oversight.

12. There were further traffic offences to come:

    ·On 16 March 2014, the applicant was issued with an infringement notice after being clocked at a speed 10 km/h in excess of the speed limit, but less than 20 km/h;

    ·On 30 September 2014, the applicant was issued with an infringement notice when he was found not to be wearing a seatbelt; and

    ·On 24 March 2015, an infringement notice was issued against the applicant when his vehicle failed to stop at a red arrow. The infringement was detected by a camera. The applicant said his wife was actually driving the car at the time but he failed to make a declaration to that effect within the appropriate time frame.

13. The applicant had a number of court appearances resulting in convictions for traffic offences but some of these convictions were quashed on appeal. The respondent says there are three matters of particular note for present purposes:

    ·on 17 October 2007 the applicant was found guilty on a charge of driving whilst suspended on 26 September 2007;

    ·the conviction on 9 July 2009 for negligent driving on 16 September 2007;

    ·a further conviction on 9 July 2009 for driving on a suspended licence.

14. This last reference is puzzling. I cannot find it in the Service NSW records. It is possible the respondent has mistakenly referred to one of the convictions that was quashed. The applicant went along with the delegate’s contention that there were three court convictions, but he did not seem very sure about his own record.

15. In the circumstances, given the state of the records, I am not satisfied there was a third court matter the applicant should have disclosed – although, for reasons I will explain, it makes no difference whether there were two convictions or three.

16. The application for citizenship was filed in July 2015 and the reviewable decision was made by the delegate on 28 October 2015. Given s 21 of the Act requires that I make an assessment of the applicant’s character as at the date of the Minister’s decision, I do not propose having regard to events that occurred after that date.

    Other information about Mr Dabbousi’s character

17. Mr Dabbousi lives in Sydney with his wife and children. He was not working at the date of the application because he has been injured and he is currently seeking compensation. He told me at the hearing that he is involved in the community and does volunteer work. He provided me with four character references from community leaders attesting to his work and speaking about his character. The written references were from:

    ·An official with the Muslim Scouts Australia, a scout organisation, dated 5 September 2016. The referee noted the applicant’s involvement with the scout movement and acknowledged the applicant’s driving record without setting out the referee’s understanding of what that record was. The reference did not directly comment on the applicant’s character although it noted the applicant had ‘learnt from his mistake’ (a reference to the applicant’s driving history), and that he regretted what had happened and promised to do better.

    ·The Secretary of the SPEARS Sport Club, dated 9 September 2016. The referee recorded the applicant’s involvement as a coach and volunteer dealing with youth. The referee noted the applicant was honest but did not otherwise directly comment on his character. The referee added he was aware of the applicant’s driving record and noted Mr Dabbousi was remorseful and intended to do better.

    ·The applicant’s general practitioner, dated 13 April 2016. The referee commented favourably on the applicant’s stability, good character and upright behaviour. The referee was also aware the applicant had traffic offences including negligent driving offences. I note the referee is a prominent member of the community (he holds the Medal of the Order of Australia (OAM)).

    ·The Secretary of the Muslim Society of Liverpool, dated 31 March 2016. The referee said the applicant was of good character and made a regular contribution to the life of the community. The referee was aware the applicant had a traffic accident and was convicted of a driving offence; it is unclear whether the referee was aware of the full extent of the applicant’s traffic history. The referee said the applicant was a man of ‘great integrity’.

18. While it is unclear whether all of the referees were fully acquainted with the applicant’s traffic history, their evidence suggests the applicant is a committed family man who makes a positive contribution within his local community. Their evidence tends to confirm Mr Dabbousi is of good character.

    The application for citizenship

19. Mr Dabbousi completed his application for citizenship online. His responses are recorded in exhibit one at pp 20ff. In the course of the application process, he was asked:

    Has the applicant 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)?

20. The applicant answered ‘No’ to this question. He says he did not read the question closely and did not think to include information about the traffic offences that saw him in court on at least two occasions. When questioned at the hearing, he essentially shrugged his shoulders and admitted he did not read the questions closely. He pointed out it would be irrational for him to give an intentionally false response to the question since the answers would obviously be checked. After hearing his explanation, I accept he did not intentionally seek to mislead the respondent.

21. The respondent said the applicant’s failure to give correct answers was a serious problem, even if that failure was the product of inattention rather than a conscious desire to mislead. The respondent says I can draw larger inferences about a person’s casual attitude towards complying with legal obligations. If a person cannot be trusted to conform to the laws, that goes to his character.

22. The respondent also pointed out Mr Dabbousi was slow to respond to the delegate’s questions about his record after the error in the form was discovered. Mr Dabbousi said he was under the impression an email containing the information had been provided to the delegate but the person who sent it on his behalf had made an error. I do not think anything turns on the delayed response.

    The applicant’s character

23. I have already explained I must be positively satisfied the applicant was of good character when the Minister’s delegate made the decision under review. I have also explained ‘good character’ is a rich concept which embraces the applicant’s “enduring moral qualities”. 

24. The applicant has a string of minor traffic offences, although at least two (and possibly three) resulted in court convictions. Viewed in isolation, I am not satisfied any of these offences say anything of moment about his character. The fact there is a pattern of similar offences is more troubling: it might suggest the applicant has a careless attitude to the law - although it might just suggest he is a careless or over-confident driver. (I am not required to consider whether the applicant would pose an ongoing risk to society as a result of his driving history. The applicant is permitted to remain in Australia as a non-citizen – and drive on Australian roads, assuming he can keep his licence – even if he is unsuccessful in this application.)

25. I take into account the fact the applicant comes from a country where the road rules are not enforced with the same zeal as the road rules are enforced in New South Wales. It has clearly taken him some time to acclimatise to the much stricter Australian approach towards traffic laws. His failure to immediately conform to the rules – particularly the rules that obliged him to obtain a learners’ permit and a provisional licence with limited privileges – does not necessarily reflect on his character. That is not to say one is able to pick and choose which obligations one will obey, or that errant behaviour should be excused. However, in all the circumstances, I am not inclined to characterise the applicant’s traffic history as evidence of an unwillingness or inability to obey the law that suggests something about his character.

26. I have already said I am satisfied the applicant did not intentionally seek to mislead the Minister when he failed to disclose the convictions. But did his inattention to detail suggest a lack of concern for his legal obligations that reflected on his character? Or does the error merely suggest the applicant should have paid more attention on that occasion?

27. I accept that carelessness might reflect on the applicant’s character in some circumstances, but I am not persuaded this instance of inattention is strong evidence of an inability or unwillingness to obey the law or the norms of Australian conduct. The applicant candidly admits he should have paid closer attention. It may be that he has learned an important lesson, but in any event I am not satisfied his error on this occasion suggests he is unwilling or unable to follow the laws of Australia.

28. Even if I accepted the applicant’s traffic record and his failure to disclose the convictions reflected on his character, that evidence must be weighed against the other evidence available to me. That other evidence includes endorsements from community leaders (especially the applicant’s general practitioner, who is a prominent Australian citizen). That material strongly suggests the applicant is a man of honesty and integrity who is successfully contributing to Australian society. On balance, I am satisfied the applicant is a person of good character for the purposes of s 21 of the Act.

    Conclusion

29. The decision under review is set aside. I decide in substitution that the applicant was, at the date of the Minister’s decision, a person of good character within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007. Subject to him satisfying other requirements under the Act, he should be granted Australian citizenship. 

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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

Associate

Dated 17 October 2016

Date(s) of hearing	14 September 2016
Applicant	In person
Advocate for the Respondent	Kate Gawidziel
Solicitors for the Respondent	Australian Government Solicitor