Hamade and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 820

Hamade and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 820 (18 October 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5845
Re	Mohamad Hamade
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	18 October 2016
Place	Sydney

The decision under review is affirmed.

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Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – whether applicant of good character – traffic offences – question of disclosure of traffic offences in citizenship application – applicant found not to be of good character for the purposes of citizenship legislation – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21(2)(h)

CASES

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Zhengqin Wang and Minister for Immigration and Border Protection [2014] AATA 89

SECONDARY MATERIALS

Citizenship Policy

REASONS FOR DECISION

Senior Member A Poljak

18 October 2016

INTRODUCTION

1. Mr Hamade is a 31-year-old male born in Lebanon, who first arrived in Australia on 21 June 2006.

2. He lodged an application for Australian Citizenship on 14 May 2015 (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”).

3. On 14 October 2015, Mr Hamade’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that Mr Hamade was of good character for the purposes of section 24(1A) and section 21(2)(h) of the Act (“the decision”). Mr Hamade has applied to the Tribunal for review of that decision.

4. The issue before the Tribunal in these proceedings is whether Mr Hamade is of good character in accordance with section 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

5. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

6. Section 24(1) of the Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 52 permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve the person becoming an Australian citizen.

7. The Act relevantly provides, at section 21(2)(h), that a person is eligible to become an Australian citizen if the Minister “is satisfied that the person is of good character at the time of the Minister’s decision on the application.”

   DEFINITION OF ‘GOOD CHARACTER’

8. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy (“Citizenship Policy”).

9. As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 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 while the latter is a review of subjective public opinion…

10. The Citizenship Policy states the phrase “enduring moral qualities” which encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

11. The Citizenship Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevantly, a person of good character would, inter alia:  respect and abide by the law in Australia and not cause harm to others through their conduct.

12. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in citizenship applications:

    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…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community (emphasis added).

13. That then leaves the question of mitigating factors. As stated in the Citizenship Policy, the Tribunal is to weigh up certain factors, applying community standards.

14. The Australian Citizenship Instructions (“ACIs”) set out a number of mitigating factors that may be considered when assessing whether an applicant is of good character notwithstanding their offence or conduct. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way Mr Hamade did, the amount of time that has elapsed since offending, whether Mr Hamade has demonstrated that he can uphold and obey the law, whether he has accepted responsibility and shown remorse for his conduct and any extenuating circumstances relating to the offences.

    TRAFFIC OFFENCES AND BEHAVIOUR

15. Mr Hamade has committed a total of 18 driving offences, on 12 separate occasions, over a period of almost 9 years. In particular, the offences include (in summary and not limited to) speeding offences, driving furiously or recklessly or in a dangerous manner or at a dangerous speed, the use of an unregistered motor vehicle, the use of an uninsured motor vehicle, driving while using a mobile phone, driving a vehicle without a number plate and using an unregistered trailer. His most recent offence occurred on 2 March 2016, approximately six months ago, and was for driving while using a mobile phone.

16. While traffic offences are not ordinarily considered serious when taken individually, the number of Mr Hamade’s traffic offences is significant. It indicates a pattern of offending.

17. I agree with what the Tribunal said in Zhengqin Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7] – the purpose of traffic laws is to protect users of the road. “Those laws go to the essential safety of the community”. Mr Hamade’s pattern of offending and recklessness demonstrates a disregard for Australian law and community safety.

18. In addition to Mr Hamade’s record of traffic offences, I note that on 4 January 2015, he was apprehended by the Water Police when he was observed operating a vessel erratically near swimmers. He was issued with a formal warning for towing persons while not maintaining a safe distance from swimmers. This incident further demonstrates Mr Hamade’s pattern of reckless behaviour and disregard of the safety of others.

19. In view of Mr Hamade’s Driving Record and the evidence given orally during the hearing, it is quite clear that he has a pattern of disobeying Australian laws over an extended period of time. This factor weighs heavily against a finding that Mr Hamade is of good character.

    FAILURE TO DISCLOSE OFFENCES

20. In his application for citizenship made on 14 May 2015, Mr Hamade answered “no” in response to question 31(a) which asked: “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences declared in your permanent residence application, and any ‘spent’ convictions)?”

21. On 30 April 2007, Mr Hamade was convicted of, or found guilty of, “driving recklessly/furiously or speed/manner dangerous” in the Parramatta Local Court. He was disqualified from driving for 12 months and fined $600. Accordingly, Mr Hamade provided a false answer to question 31(a) in the citizenship application form and failed to declare a conviction when he applied for citizenship.

22. Mr Hamade claims that he forgot about the “traffic problem” because it occurred many years ago in 2007. He later said that his wife filled in the application form for him and that she should have answered “yes” to question 31(a). Mr Hamade said a number of times at hearing that his nondisclosure was not intentional.

23. At hearing, his wife, Mrs Hamade confirmed that she completed the application form and although they were sitting together at the time, she did not ask him any questions nor did she seek clarification on any issues. She said she thought that after five years the records of Mr Hamade’s driving offence in 2007 would have been removed. In any event, Mr Hamade signed the declaration page included in his citizenship application and confirmed at hearing that he understood the purpose of the declaration was to indicate that the information he provided was true and correct and that it was an offence to give false information.

24. On 5 June 2015, Mr Hamade had an interview with the Department of Immigration and Border Protection. He was asked again during that interview the question contained in 31(a) of his citizenship application form. The department records from 5 June 2015, confirm that Mr Hamade verbally confirmed his answer “no” to question 31(a). When questioned about this at hearing, Mr Hamade said that he had forgotten to mention his driving offence from 2007 because it happened many years ago.

25. The Secretary contends that I should draw an inference from this evidence that Mr Hamade’s dishonesty was intended to increase his chances of obtaining citizenship. While it is true that answering “no” to question 31(a) may very well have increased Mr Hamade’s chances of obtaining Australian citizenship, based on the evidence before me, I am unable to make a determination about his intention for failing to disclose.

26. It is plain that Mr Hamade failed to disclose his prior conviction to the Department on two separate occasions. I do not accept that he simply forgot about the conviction nor do I accept that it was an unintentional mistake not to disclose the conviction in his application for citizenship. Accordingly, I am satisfied that Mr Hamade failed to disclose that he had been convicted of, or found guilty of, an offence on 30 April 2007. This weighs against a finding that Mr Hamade is of good character.

    MITIGATING FACTORS

27. There are a number of potential mitigating factors which may weigh in favour of a finding that Mr Hamade is of good character. The question however is whether these factors are outweighed by the history of Mr Hamade’s offending and his failure to disclose offences.

28. Mr Hamade is a family man. He and his wife have three children aged between six years and 11 months old. Mrs Hamade gave evidence that he was a “good father and a good husband”.

29. At hearing, Mr Hamade advised that he ran and operated his own tree lopping business and had done so for the past seven or eight years. He said that he had two employees. In addition he was in the process of applying to have a car yard with the intention of running it as an additional business.

30. Mr Hamade was very remorseful at hearing and apologised profusely. He said “this [traffic offences] would never happen again because people learn from their mistakes”. He said that his main focus was his family and his business and he said he felt sad for what he had done. In regards to the traffic offence in 2007, Mr Hamade said that at the time he was young and not very wise. I accept that Mr Hamade feels remorse for his behaviour however this is not the only factor that I am required to take into account.

31. Mr Hamade has not provided any evidence of rehabilitation or evidence that he has taken steps to change his behaviour, such as undertaking traffic offenders’ courses.

32. The length of time that has passed since Mr Hamade’s last offence is a relevant mitigating factor to be considered when assessing whether he is of good character. His most recent offence occurred on 2 March 2016, approximately six months ago, and was for driving while using a mobile phone. When considering his most recent offence in light of his lengthy driving record over the last nine years, I am of the view that insufficient time has passed since Mr Hamade’s last offence. I am not satisfied that he will obey the law in the future and is now of good character.

33. Mr Hamade relied on the following character references in support of his application before the Tribunal:

    (a)Said Alameddine, former boss of Mr Hamade (undated); and

    (b)Hani Almeddine, President of the Al Minia Charitable Association (undated).

34. The characteristics described in the references demonstrate qualities of someone with ‘good character’ but I am not satisfied that they outweigh the evidence of behaviour demonstrated by his pattern of offending. None of the documents provided acknowledge the frequency of offences or the seriousness of Mr Hamade’s traffic record. Accordingly, the weight I give to the references provided is minimal.

35. The Citizenship Policy states that “[r]eferee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character.”

    DECISION

36. In considering all of the relevant circumstances and weighing the available evidence I am unable to make a positive finding of good character for Mr Hamade. For this reason, he does not satisfy section 21(2)(h) of the Act. 

37. The decision under review is affirmed.

38. Mr Hamade may make an application for citizenship in the future after a reasonable period of time has passed without offending.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated 18 October 2016

Date(s) of hearing	16 September 2016
Applicant	In person
Solicitors for the Respondent	M de Jongh, Clayton Utz