Ghamraoui and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 254
•21 April 2016
Ghamraoui and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 254 (21 April 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2526
Re
Mohamad Ghamraoui
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 21 April 2016 Place Sydney The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Professor R McCallum AO, Member
CATCHWORDS
CITIZENSHIP - eligibility - whether applicant of good character - possession of tainted property offence - traffic offences - applicant currently subject to voluntary good behaviour bond - applicant found not to have satisfied good character requirements - decision affirmed
LEGISLATION
Australian Citizenship Act 2007 s 21(2)(h)
Criminal Proceeds Confiscation Act 2002 (Qld)
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Professor R McCallum AO, Member
21 April 2016
INTRODUCTION
The Applicant, Mr Mohamad Ali Ghamraoui is in his mid-thirties. Mr Ghamraoui was born in Lebanon, but he immigrated to Australia. In 2006, Mr Ghamraoui married and he has two children.
On 1 November 2007, Mr Ghamraoui obtained permanent residence when he was granted a subclass BC100 visa.
He earns his livelihood by operating a steel fixing business, and in November 2014 he commenced operating a car wash business.
On 4 March 2015, Mr Ghamraoui applied for Australian citizenship. However, on 8 May 2015, a delegate of the Minister for Immigration and Border Protection refused Mr Ghamraoui's application on the ground the delegate was not satisfied that Mr Ghamraoui was a person of good character.
The legislation
The relevant legislation is the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”). The provision on which the Minister's delegate relied to refuse the application for citizenship of Mr Ghamraoui is section 21(2)(h). It provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(h) is of good character at the time of the Minister's decision on the application.
The meaning of "good character"
The Citizenship Act does not define "good character". Guidance is found in Chapter 10 of the Australian Citizenship Instructions (“the ACIs”) which offer guidance on policy in relation to the interpretation of, and exercise of, powers under the Citizenship Act and the Australian Citizenship Regulations 2007 (Cth). They are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The ACIs state that "'Good character' ... is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship" (section 10.1.2).
As to the meaning of "good character", the ACIs cite Lee J in the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, where his Honour said at 431-432:
Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The ACIs state that the phrase "enduring moral qualities" encompasses characteristics which have been demonstrated over a very long period of time, including: distinguishing right from wrong; behaving in an ethical manner; and conforming to the rules and values of Australian society. This broad definition means 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 (section 10.3.1).
The ACIs provide a non-exhaustive list of the qualities expected of persons of good character: they will respect and abide by the law in Australia and other countries; be honest and financially responsible; be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations (for example, they will not engage in material deception during visa and citizenship applications) (section 10.3.4).
The ACIs set out at length relevant factors when considering the implications of a person's criminal record for their character. They include the following matters.
If the Applicant has committed an offence, whether it is considered a serious or minor offence. Serious offences include, but are not limited to: crimes of violence, including domestic violence; reckless driving occasioning injury or death; and other offences incurring prison sentences of 12 months or more.
Minor offences include: traffic offences which have been included in a criminal record; and offences which do not lead to a conviction or sentence (10.5.2.).
Whether the applicant has disclosed in their citizenship application that they had committed any offence; whether the offence was pre-meditated, whether it was a "one-off" offence or whether there was a "pattern of criminal behaviour", and the length of sentence. It is noted that decisions of courts, particularly sentencing remarks, may provide insight into the character of the applicant (section 10.5.2).
Mitigating factors may mean that, despite serious offending, a person may be found to be of good character. Factors to be taken into account include: the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences. Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful (section 10.5.2).
THE ISSUE BEFORE THIS TRIBUNAL
The sole issue which I am required to decide, is whether Mr Ghamraoui is of good character. As I stand in the shoes of the Minister, pursuant to section 21(2)(h) of the Citizenship Act. I am required to decide whether Mr Ghamraoui is of good character at the time when this decision is made.
THE OFFENCES OF MR GHAMRAOUI
On 13 May 2005 in the Beenleigh Magistrates Court in Queensland, Mr Ghamraoui pleaded guilty to two counts of possessing tainted property contrary to section 252(1) of the Criminal Proceeds Confiscation Act 2002 (Qld). The maximum penalty for this offence is 100 penalty units or two years imprisonment. The Magistrate did not record convictions, but ordered Mr Ghamraoui to pay a $400 fine. Other than driving offences, Mr Ghamraoui has not committed any other criminal offenses.
According to the records which are before this Tribunal, Mr Ghamraoui has committed eight driving offences between 2 May 2009 and 12 April 2015:
·On 2 May 2009, Mr Ghamraoui failed to comply with the conditions of his provisional licence, by not displaying P signs, penalty 2 demerit points and $189 fine;
·On 2 February 2010, Mr Ghamraoui exceeded the speed limit by more than 20km per hour, but not more than 30km per hour, penalty 4 demerit points and $338 fine;
·On 7 September 2010, Mr Ghamraoui disobeyed traffic lights, penalty 3 demerit points and $344 fine;
·On 15 October 2013, Mr Ghamraoui disobeyed a no-stopping sign in a school zone, penalty 2 demerit points and $304 fine;
·On 23 September 2014, Mr Ghamraoui exceeded the speed limit by more than 10km per hour, but not more than 20km per hour, penalty 3 demerit points and $254 fine;
·On 24 December 2014, Mr Ghamraoui exceeded the speed limit by not more than 10km per hour, penalty 2 demerit points and $109 fine;
·On 21 February 2015, Mr Ghamraoui disobeyed a left turn/right turn/no turns sign at an intersection, penalty 2 demerit points and $242 fine; and
·On 12 April 2015, Mr Ghamraoui disobeyed a traffic lane arrows/marked lane road markings, penalty 2 demerit points and $242 fine.
Mr Ghamraoui's Driving Record also shows the following:
·Mr Ghamraoui's licence was suspended from 11 January 2011 until 10 April 2011, as a result of the demerit points he had accrued;
·Mr Ghamraoui was sent a Demerit Points Courtesy letter on 3 February 2015;
·Mr Ghamraoui was sent a Demerit Points Warning letter on 26 March 2015;
·Mr Ghamraoui was sent a further Demerit Points Warning letter on 16 May 2016.
THE GOOD BEHAVIOUR ELECTION FORM
At the commencement of the hearing on 8 April 2016, counsel for Mr Ghamraoui handed to the Tribunal and to the Respondent a good behaviour bond election form. I admitted this document as Exhibit A1.
Mr Ghamraoui signed the form and ticked the box on this form, acknowledging that he elects to enter into a good behaviour bond in return for not having his driving licence suspended. The form is dated 10 December 2015. Mr Ghamraoui's good behaviour bond commenced on 10 December 2015, and will conclude at midnight on 9 December 2016.
THE HEARING
Mr Ghamraoui attended the hearing with his wife and their two small children. Mr Ghamraoui was represented by counsel.
The Evidence of Mr Ghamraoui
Mr Ghamraoui gave sworn evidence.
Mr Ghamraoui was taken to his first statutory declaration dated 11 August 2015. In paragraph 9, Mr Ghamraoui set out his offences, commencing with the dealing in tainted property offence, and then setting out his driving offences, concluding with the 24 December 2014 offence. Mr Ghamraoui did not list the driving offences of 21 February 2015 and 12 April 2015.
Paragraph 10 of this first statutory declaration dated 11 August 2015 is as follows.
Other than the above listed, I do not have any other criminal or Traffic records.
Mr Ghamraoui was asked why he did not list the 2015 driving offences. Mr Ghamraoui answered that he had forgotten about them.
Mr Ghamraoui was asked about the good behaviour election form which he signed on 10 December 2015. Mr Ghamraoui said that he had received another fine for a speeding offence committed around November 2015. He said he was speeding about 15km over the speeding limit of 70km per hour.
Mr Ghamraoui was taken to his second statutory declaration dated 14 October 2015. In paragraph 5, Mr Ghamraoui stated that he had completed a PCYC driving course. Mr Ghamraoui said that he had completed all of the modules of the course. He said that it has really assisted his driving.
Mr Ghamraoui described the steel fixing business which he owns. It employs two permanent employees, and Mr Ghamraoui said he also uses contractors.
The Evidence of Ms Ghamraoui
Ms Ghamraoui, who is the wife of Mr Ghamraoui gave sworn evidence. Ms Ghamraoui said that Mr Ghamraoui is a caring and giving father and husband. He is the sole financial provider for the family.
CONSIDERATION
The sole issue which I am required to decide, is whether Mr Ghamraoui is of good character.
Factors in favour of good character
The factors in favour of Mr Ghamraoui being of good character are as follows.
First, I accept that Mr Ghamraoui is a loving husband and father, and I give this some weight.
Second, I accept that in running his own business, Mr Ghamraoui is a good provider and has engaged in stable employment on his own account and I give this some weight.
Third, I have read the written references from Mr Ahmed Ibrahim dated 25 March 2015, and from Ms Rosemary Salamon dated 10 April 2015. I do not give much weight to these references because the referees do not mention or comment upon Mr Ghamraoui's driving offences.
Fourth, I have read the written reference from Shockair Accounting & Taxation dated 8 April 2015. I do not give this reference much weight as it does not discuss Mr Ghamraoui's driving offences.
Factors against good character
The factors against Mr Ghamraoui being of good character are as follows.
First, Mr Ghamraoui did plead guilty to two counts of dealing in tainted goods. Given the maximum penalty for this offence, I regard it as a relatively serious crime. However, I note that the Magistrate did not regard Mr Ghamraoui's participation in this crime as serious as the Magistrate did not record a conviction and only fined Mr Ghamraoui $400. I further note that Mr Ghamraoui has not committed any other subsequent criminal offences, other than the driving offences. I find that in all of the circumstances, Mr Ghamraoui's subsequent conduct after the commission of the offence weighs in favour of him being of good character and I give this a small amount of weight.
Second, in the first statutory declaration dated 11 August 2015, Mr Ghamraoui did not list his driving offences dated 21 February 2015 and 12 April 2015. Mr Ghamraoui said he had forgotten about these offences. I find it implausible that Mr Ghamraoui would have forgotten that he paid fines totaling $484 as a result of these offences. I find that Mr Hgamraoui did not truthfully set out all of his driving offences in the first statutory declaration. I give this great weight.
Third, Mr Ghamraoui admitted to the commission of a further driving offence of speeding around November 2015. It was this offence which led Mr Ghamraoui to elect to sign a good behaviour bond election form. I give great weight to the commission of this recent driving offence.
Fourth, I note Mr Ghamraoui's voluntary election to enter into a good behaviour bond, rather than to have his licence suspended. This good behaviour bond will subsist until midnight on 9 December 2016, that is for eight months after the date of the hearing.
Conclusion as to character
In weighing up all of the factors in favour and against Mr Ghamraoui being of good character, I find that the factors against clearly outweigh those in favour.
I give great weight to Mr Ghamraoui's failure to truthfully disclose all of his driving offences in the first statutory declaration dated 11 August 2015. I give great weight to Mr Ghamraoui's most recent driving offence around November 2015 which led to Mr Ghamraoui voluntarily entering into a 12 month good behaviour bond. Finally, in my view insufficient time has elapsed to show that Mr Ghamraoui has learned to obey our driving laws which are designed to safeguard the public. He is currently under a good behaviour bondd until midnight on 9 December 2016. If Mr Ghamraoui breaches this bond his licence will be suspended. In my view, the passage of further time subsequent to the twelve months of the good behaviour bond without the commission of a driving offence would have to elapse to show that Mr Ghamraoui has learned to obey Australia's road traffic laws.
DECISION
The decision of the Minister's delegate dated 8 May 2015 that the delegate was not satisfied that Mr Ghamraoui is of good character is affirmed.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Professor R McCalllum AO, Member ...........................[sgd].............................................
Associate
Dated 21 April 2016
Date(s) of hearing 8 April 2016 Counsel for the Applicant O Jones Solicitors for the Applicant Firmstone & Associates Solicitors for the Respondent Sparke Helmore
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