Ghulam Hussain Hussaini and Minister for Immigration and Border Protection
[2014] AATA 715
•30 September 2014
[2014] AATA 715
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2197
Re
Ghulam Hussain Hussaini
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 30 September 2014 Place Perth The Tribunal sets aside the decision under review and substitutes it with the decision that the Applicant be granted Australian citizenship.
…(Sgd) CR Walsh..............................
Senior Member CR Walsh
CATCHWORDS
Citizenship by conferral – eligibility – general residence requirement – Applicant convicted of two offences less than one month before applying for Australian citizenship – Weapons Act offence – Road Traffic Act offence – “good character” requirement for Australian citizenship considered – offences “minor” under Australian Citizenship Instructions – Applicant of “good character” – decision under review set aside and substituted with decision that Applicant be granted Australian citizenship
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(2) – s 21(2)(c) - s 21(2)(h) – s 22(1) – s 22(1A) – s 22(1B)
Weapons Act 1999 (WA) – s 8(1)(b)
Road Traffic Act 1974 (WA) – s 64(1) – s 64(2)
CASES
Irving v Minister for Immigration, Local Government And Ethnic Affairs (1996) 68 FCR 422
SECONDARY MATERIALS
Australian Citizenship Instructions as issued on 23 November 2013 – Chapter 5
REASONS FOR DECISION
Senior Member CR Walsh
30 September 2014
INTRODUCTION
Mr Ghulam seeks a review of the decision of a delegate of the Minister for Immigration and Border Protection (Minister), dated 11 April 2014, refusing Mr Ghulam’s application for Australian citizenship, by conferral, dated 15 January 2014, because he did not meet the “good character” requirement for citizenship in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) as a result of being convicted of two offences less than one month before his application for Australian citizenship.
BACKGROUND
Mr Ghulam is a 22 year old citizen of Afghanistan.
Mr Ghulam first arrived in Australia as an orphan on 15 September 2009 (aged 18 years old) on a Sub-class AH-117 (Orphan Relative) permanent visa, which was granted on 28 July 2009.
On 18 December 2013, Mr Ghulam was convicted in the Perth Magistrates Court of the offence of “carried (possessed) an article with intent to cause fear”, being an offence under s 8(1)(b) of the Weapons Act 1999 (WA) (Weapons Offence). This offence arose as a consequence of Mr Ghulam taking his baseball bat out of his car and swinging it around in the air, “practising his swing”, after he had been nightclubbing with friends in Northbridge. Mr Ghulam pleaded guilty to the Weapons Offence and the Magistrates Court fined Mr Ghulam $400 and gave him a Spent Conviction Order for the Weapons Offence.
On 20 December 2013, Mr Ghulam was convicted in the Perth Magistrates Court of driving with a blood alcohol content in excess of 0.08g/100ml, being an offence under s 64(1) of the Road Traffic Act 1974 (WA) (RTA) (Road Traffic Offence). Mr Ghulam pleaded guilty to the Road Traffic Offence and the Magistrates Court fined Mr Ghulam $550 and disqualified him from holding a driver’s licence for seven months, in accordance with the Table in s 64(2) of the RTA, for the Road Traffic Offence.
On 15 January 2014, Mr Ghulam applied for Australian citizenship using a standard Form 1300t (Citizenship Application). Mr Ghulam noted the Weapons Offence and the Road Traffic Offence on the Citizenship Application, under the heading “Part F – Good character and criminal offences” and attached copies of his Notices of Conviction to the Citizenship Application.
On 11 April 2014, a delegate of the Minister refused the Citizenship Application on the ground that Mr Ghulam did not meet the “good character” requirement for citizenship in s 21(2)(h) of the Citizenship Act (Citizenship Decision) because of the Weapons Offence and the Road Traffic Offence.
On 28 April 2014, Mr Ghulam applied to the Tribunal for a review of the Citizenship Decision.
ANALYSIS
Section 24(1A) of the Citizenship Act states that the Minister (or a delegate of the minister) must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 21(2) to (8) of the Citizenship Act.
Significantly, s 21(2)(h) of the Citizenship Act states:
21 Application and eligibility for citizenship
…
General eligibility
(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. [Emphasis added]
The phrase “good character” is not defined in the Citizenship Act for the purposes of s 21(2)(h) and ,therefore, takes its ordinary meaning.
Most cases have adopted the following definition of “good character” from the Full Federal Court’s decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 per Lee J[1]:
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 while the latter is a review of subjective public opinion: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR 455 per Miles CJ at FLR 459-60; Plato Films Ltd v Speidal [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. [Emphasis added]
[1] This statement was made in the context of s 180A(2) of the Migration Act 1958 and associated regulations.
The Australian Citizenship Instructions, as issued on 23 November 2013 (ACIs) provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Citizenship Act and associated regulations. Of particular relevance to this application, is Chapter 10 of the ACIs which discusses the meaning of “good character” for the purposes of the Citizenship Act and associated regulations.[2]
[2] It is well-established that in the exercise of its review function, the Tribunal must take into account any relevant statement of governmental policy which is consistent with the statute concerned, unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
Section 10.1.1 of the ACIs (titled “Background”) states:
… The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’.
This chapter also provides a framework for assessing an applicant under the “good character” provisions. It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not of good character.
Section 10.1.2 of the ACIs (titled “Summary”) provides:
‘Good character’ refers to the enduring moral qualities of a person, and 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 10.3 of the ACIs outlines what is “good character”. In particular, section 10.3.1 of the ACIs (titled “Definition”) states:
In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
· 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.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
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 evidence before their visa application and throughout their migration and citizenship processes.
Section 10.3.4 of the ACIs provides a non-exhaustive list, drawing from the definition discussed above, of characteristics demonstrating that an applicant is of “good character”, including:
· Respect and abide by the law in Australia and other countries
…
· 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 without licence or insurance)
…
· Not be the subject of any verifiable information causing character doubts
The list contained in section 10.3.4 of the ACIs is to be considered in conjunction with section 10.5 of the ACIs, titled “Framework for making ‘good character’ decisions”. Section 10.5.2 of the ACIs states that one issue for consideration is whether the applicant has committed an offence and, if so, whether it “serious” or “minor”. Examples of “serious” offences in the ACIs include crimes of violence (e.g. murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death), war crimes, crimes against humanity and/or genocide, crimes against children, drug trafficking, people smuggling, fraud, harassment or stalking, terrorist activity, extortion, illegal pornography, breaches of immigration law and other offences incurring prison sentences of 12 months or more. “Minor” offences include shoplifting, traffic offences resulting in a criminal record and offences which do not lead to a conviction or sentence.
Neither the Weapons Offence nor the Road Traffic offences is a “serious” offence under section 10.5.2 of the ACIs. Had the Road Traffic Offence resulted in the injury or death of Mr Ghulam or another person, it would be classified as “serious” under the ACIs. But, this did not happen. Both the Weapons Offence and the Road Traffic Offence represent “minor” offences under section 10.5.2 of the ACIs. This was acknowledged by the Minister in the Citizenship Decision (at 8), as follows:
I am satisfied that you have not been convicted of an offence that would ordinarily be considered to be serious. Having regard to the sentences imposed I am satisfied that your offences are at the low range of seriousness. [Emphasis added]
Section 10.5.2 of the ACIs states that another issue for consideration is how many offences have been committed by the applicant and whether an offence is one-off or there is a pattern of criminal behaviour. In this regard, section 10.5.2 of the ACIs provides:
A pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them.
In the Citizenship Decision, the Minister said (at 8):
… Information held by the Department regarding your criminal record in Australia indicates that you have been found guilty of two offences within the past four months. I am satisfied that these offences are part of an ongoing pattern of behaviour which would suggest that you are not of good character. This weighs against you being of good character. I give this factor some weight in my assessment of whether you are of good character.
As stated above, Mr Ghulam arrived in Australia on 15 September 2009. Since arriving in Australia, Mr Ghulam has committed, and been convicted of, two offences – namely, the Weapons Offence and the Road Traffic Offence. Both offences occurred on the same night (i.e. on 30 November 2013) several hours apart. Mr Ghulam has not committed, or been convicted of, any offence since this time. In such circumstances, it cannot be said that there exists an ongoing pattern of behaviour that suggests Mr Ghulam is not of good character and that Mr Ghulam will not uphold and obey Australian law if citizenship is conferred on him.
Section 10.5.2 of the ACIs lists a number of mitigating factors to be taken into account, including:
·The length of time between the date of the offence and application for Australian citizenship – in the case of a “serious” offence, a “significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character;
·Whether the applicant has accepted responsibility and shown remorse for their conduct;
·Whether the applicant has rehabilitated themselves;
·The applicant’s age at the time the offence was committed – if the applicant committed the offence at a young age, the commission of the offence may be given less weight depending upon the nature of the crime and any subsequent offences;
·Whether there any extenuating circumstances relating to the offence; and
·Whether there is evidence of length of employment, stable family life and/or community involvement.
The Minister made the following comments in the Citizenship Decision in relation to the existence of extenuating circumstances, whether Mr Ghulam has accepted responsibility and shown remorse for his conduct and whether Mr Ghulam has rehabilitated himself:
You have not provided any information that indicates that there were any extenuating circumstances relating to your offences. This weighs against you being of good character. I give this factor some weight in my assessment of whether you are of good character.
…
In a personal statement submitted to the Department on 10 April 2014, in regards to your drink driving conviction you stated, “The day that I lost my licence I made my life very hard for myself for which I regret.” You go on to states that, “I am very sorry to myself for making my life very miserable. I gave up drinking, I don’t drink anymore. I bought shame on my family because of my stupid decisions in the past. I am very sorry and regretful for being so stupid. I have learnt my lesson.”
I have determined that you have not taken responsibility for your actions or shown remorse for your offences as your expression of remorse is directed at the consequences of your actions. Your statement indicates that you are remorseful that your actions led to you being disqualified from driving which has made your life difficult. Your statement also indicated that you are remorseful about the shame that the conviction has bought upon you within your family. You have not demonstrated that you understand the potential consequences of driving under the influence of alcohol. Accidents related to operating a motor vehicle under the influence of alcohol often occur, results of this type of offence include damage to property, injury or death of the driver and/or injury or death to members of the public. This weighs against you being of good character. I give this factor some weight in my assessment of whether you are of good character.
…one of the factors to be considered is whether the applicant has rehabilitated themselves and made a conscious effort to obey and uphold Australian laws. In the personal statement submitted to the Department you indicated that you have given up drinking. You may be on a path to reform from your previous bad conduct. If you have indeed given up drinking, and you do not resume your previous pattern of poor behaviour for an extended period, it may weigh in your favour. The longer the period without an offence, the firmer the platform on which a finding of good character may be made. I give this factor some weight in my assessment of whether you are of good character.
The Tribunal respectfully disagrees with the above comments of the Minister. Mr Ghulam provided information indicating that there were extenuating circumstances relating to both the Weapons Offence and the Road Traffic Offence. In his personal “Statement”, dated 8 April 2014 (which was received by the Department on 10 April 2014) (Personal Statement), Mr Ghulam mentioned extenuating circumstances relating to both offences. In particular, Mr Ghulam noted that he:
·he originally intended to go fishing on the evening he committed the offences but that he changed his mind and headed with friends to Northbridge to go nightclubbing;
·he had a really bad night;
·he drank too much alcohol and went outside the nightclub after which he had no idea what he was doing;
·he took his baseball bat out of his car (which was parked right in front of the nightclub) and started swinging it around - but did not aim or hit anyone;
·he plays baseball on the weekend with friends and had forgot to take it out of his car and leave it at home, where he normally keeps it; and
·after being arrested and charged for the Weapons Offence, he drank lots of water and waited several hours before he felt well enough to drive home from Northbridge.
Further, in his Personal Statement Mr Ghulam said that he did take responsibility for his actions and expressed remorse in relation to both offences, including stating that “I am very remorseful for my stupid action…I am very sorry and regretful for being stupid. I have learnt my lesson”.
Mr Ghulam’s gave similar oral evidence at the hearing. Mr Ghulam said that he didn’t normally drink alcohol, particularly since as a Muslim he is forbidden from drinking alcohol. Consequently, he was not used to the effects of alcohol. Mr Ghulam also said that on the day that the two offences were committed (i.e. 30 November 2013) he had a hard day at work and was very tired from work.
Mr Ghulam also provided three character references from friends (Character References). In the Character References, Mr Ghulam’s friends state that they support Mr Ghulam’s application for Australian citizenship, acknowledge that Mr Ghulam committed the Weapons Offence and the Road Traffic Offence and attest to a change in Mr Ghulam’s behaviour since the offences occurred.
In a Witness Statement, dated 16 July 2014 (Witness Statement), Mr Ghulam said:
18.On 30 November 2013 I had been out with a friend and we had been drinking at a nightclub in Northbridge. I do not normally drink as my family do not drink, however I decided to have a drink that night. After having a few drinks I went to my car to have a rest. When I was there I grabbed my baseball bat from my car. I usually keep my baseball bat at home but had accidentally left it in my car when I last played baseball. I decided to swing the bat around like I do when I am practising for baseball. I wasn’t aiming it at anyone. I was just swinging it in the air practising my baseball swing.
19.I was too drunk and did not know what I was doing. I have no excuse. It is the first time I have ever done anything like this before in my whole life.
20.I was arrested by police and taken to the Northbridge Police Station, where I was charged with possessing a weapon with intent to cause fear. I now understand that I was behaving in a manner that was a danger to the public.
21.Several hours later, at around 6am in 1 December 2013, I left Northbridge Police Station and walked to my car. I thought I was ok to drive home as many hours had passed since I had been drinking alcohol. I had also been drinking lots of water at the police station. On my drive home I was stopped by a police officer who breathalysed me. I blew over the limit. I was charged with driving with a blood alcohol content of excess 0.08g. I honestly did not think that after going out the night before I would still have alcohol in my system. If I knew that I still had alcohol in my system I would have driven home because it would have been dangerous for myself and the public.
…
23.The offences that occurred were out of character for me. I do not normally act like this. Going to court made me feel like I had disgraced my family. I understand that my actions were dangerous to the community.
24.Since both incidents occurred I had not had any alcohol or gone to any nightclub or venue that sells alcohol. I try to stay away from those sorts of places. I have learnt my lesson.
25.The convictions have had a great impact on my life I have brought shame on myself and my family. I have been unable to drive since the second offence occurred because I lost my license, and it has caused me great grief. I have had to take time off from work as I have not been able to commute on some days.
26.I am really sorry for what I have done. I did not wish to do anything which may cause harm or endanger anyone.
27.It has been nearly eight months since I committed the offences and I have stayed away from places that might influence me to make bad choices. I no longer expose myself to those risky situations. [Emphasis added]
Based on an objective assessment of the evidence (including the Personal Statement, the Witness Statement, Mr Ghulam’s oral evidence at the hearing and, to a lesser extent, the Character References), the Tribunal is satisfied that Mr Ghulam has demonstrated that he has accepted responsibility and shown remorse for his conduct in committing the Weapons Offence and the Road Traffic Offence, that he is in the process of rehabilitating himself, that there were extenuating circumstances relating to the Weapons Offence and the Road Traffic Offence and he understands that the offences were wrong.
The Tribunal makes the following additional observations concerning Mr Ghulam’s character. Although Mr Ghulam received the two convictions for the Weapons Offence and the Road Traffic Offence less than one month before the Citizenship Application, the offences are both “minor” offences (as opposed to “serious” offences) under the ACIs. This was, as stated, acknowledged by the Minister. Mr Ghulam was young at the time he committed the two offences, being 22 years old. Mr Ghulam did not commit any offence from the time he arrived in Australia in September 2009 until the night of 30 November 2013, when he committed the Weapons Offence and the Road Traffic Offence (some four years). He has not committed any offence subsequently. The Personal Statement, the Witness Statement, Mr Ghulam’s oral evidence at the hearing (and to a much lesser degree, the Character References) show that since arriving in Australia Mr Ghulam has always studied or worked, has had a stable family life and has been actively involved in the Australian community. In particular, the Witness Statement provides:
3. I have three siblings:…
4. On 15 September 2009 I arrived in Australia. I came here from Pakistan, where I was living as a refugee. I came to Australia for a better life. My older brother….was already living in Australia sponsored me, on a sub-class AH-117 (permanent) Visa.
5.Since arriving in Australia I have lived with all my siblings…….in Western Australia.
6.Both of my brothers are employed. My older brother,…, works as a taxi driver and my younger brother,…, is currently employed and completing an electrical apprenticeship. My sister,…, is currently enrolled at high school and is wanting to go to university next year.
7.The people who are my biggest support are my family, particularly my older brother,…, He has a steady job and I look up to him for support and advice.
8.One month after I arrived in Australia I started attending Tuart College so that I could complete a course in English. I then studied at Tuart College for approximately two years and completed my Year 11 Certificate.
9. In 2010, whilst studying for my Year 11 Certificate, I also worked part-time for about eight months to one year with a company making commercially produced wire basket products.
10.When I completed my studies in 2011 I went into a full-time position in a manufacturing company making moulds, and this lasted for six months. The pay and conditions were not the best so I looked for alternative work.
11.In 2011 I took up full-time work with Hoffmann Engineering for about two years. Shortly after starting with Hoffmann Engineering I started studying for my Year 12 Certificate. I studied during the day and worked during the evenings.
12.In 2012 I decided to leave Hoffmann Engineering to focus on my studies. I was planning on studying medicine at university. However after some time passed I began to struggle to financially support myself and decided to return to full-time work.
13.In 2013 I applied for an apprenticeship with…Automotive Services. I successfully obtained the job and have also been able to complete the three months’ probation period. I am currently in my second year of an apprenticeship as an Automotive Mechanic. I am on track to finish my apprenticeship in 2016.
14.I am really focused on finishing this apprenticeship so that I can gain a trade and will have respect among my peers.
15.On the weekends I like to play sports with my family including baseball, football and cricket.
Section 10.5.4 of the ACIs (titled “Weighing up the decision”) states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the Applicant outweigh the behaviour in question. The assessment of whether an applicant is of “good character” requires the consideration of an aggregate of qualities.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
· Would a person of good character have behaved the way the applicant did
· What is there to demonstrate that the applicant has upheld and obeyed the law
· Has the applicant behaved in accordance with Australia’s community standards
· Does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
…
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application. [Emphasis added]
The Minister’s representative placed considerable emphasis in submission on the fact that only about nine months has passed since Mr Ghulam was convicted of the Weapons Offence and the Road Traffic Offence (being 18 December 2013 and 20 December 2013 respectively). It was strongly contended by the Minister’s representative that this is an insufficient amount of time to determine whether Mr Ghulam’s behaviour on the night he committed the Weapons Offence and the Road Traffic Offence (on 31 November 2013) was merely an aberration, his convictions for those offences have had a salutary effect on him and that he is reformed. The Minister’s representative also emphasized the fact that Mr Ghulam’s seven month driver’s licence suspension has only recently expired (in June/July this year) and that he has only been driving again for about three months. According to the Minister’s representative, this is an insufficient amount of time in which to ascertain whether Mr Ghulam has demonstrated responsible behaviour in relation to driving. The Tribunal acknowledges that this is a relevant factor for consideration in deciding whether Mr Ghulam is, on balance, of “good character” within the meaning of s 21(2)(h) of the Citizenship Act.
However, looking holistically at Mr Ghulam’s behaviour from the time he arrived in Australia (on 15 September 2009) until now, Mr Ghulam has objectively demonstrated that he is of “good character” – the two offences committed by Mr Ghulam on 30 November 2013 being an exception to his otherwise good character and behaviour over the five years that he has lived in Australia: Irving and sections 10.1.1 and 10.1.2 of the ACIs.
The Minister acknowledged this in the Citizenship Decision (at 9):
It could be considered that for the majority of time that you have lived in Australia you have demonstrated behaviour which could be considered of good character.
DECISION
For the above reasons, the Tribunal finds that Mr Ghulam did meet the “good character” requirement for Australian citizenship in s 21(2)(h) of the Citizenship Act.
Consequently, the Tribunal sets aside the Citizenship Decision and substitutes it with the decision that Mr Ghulam be granted Australian citizenship by conferral.
I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh …(Sgd) T Freeman................
Associate
Dated 30 September 2014
Date of hearing 26 September 2014 Representative for the Applicant
Solicitors for the Applicant
Mr M Cuomo
Legal Aid WA
Representative for the Respondent Mr A Gerrard Solicitors for the Respondent Australian Government Solicitor
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