Ismail and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 165

Ismail and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 165 (9 February 2018)

Division:GENERAL DIVISION

File Number(s):      2017/0837

Re:Mounib Ismail

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:9 February 2018

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – whether applicant of good character – criminal record – traffic offences – mitigating factors – 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 v Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

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

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Senior Member A Poljak

9 February 2018

1. Mr Ismail, the applicant, is a 28-year old national of Lebanon, who first arrived in Australia on 3 May 2010, and is currently the holder of a Partner (subclass 801) visa which was granted on 17 August 2015.

2. On 18 August 2016, the applicant lodged an application for Australian Citizenship (“Citizenship application”) under section 21 of the Australian Citizenship Act (2007) (Cth) (“the Act”).

3. On 23 January 2017, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 21(2)(h) of the Act (“the decision”). This is the decision under review in these proceedings.

4. The issue before the Tribunal therefore is whether it is satisfied that the applicant is of good character in accordance with s 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

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

6. Subsection 24(1) of that 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 the decision under section 24 to refuse to approve the person becoming an Australian citizen.

7. The Act relevantly provides, at subsection 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, which came into force as of 1 June 2016 (“the Policy”). Further guidance is provided by the Australian Citizenship Instructions (“the ACIs”), dated 1 July 2014, which detail operational instructions and supplements the policy guidance provided in the Policy.

9. The role of the Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

10. As to the definition of good character, the 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 whilst the latter is a review of subjective public opinion…

11. The Policy states that the phrase “enduring moral qualities” encompasses 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 as being a manifestation of their essential characteristics.

12. The 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.

13. In Fenn v 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)

14. That then leaves the question of mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Policy, the Tribunal is to weigh up certain factors, applying community standards.

15. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant has; the amount of time that has lapsed since offending; whether the applicant 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.

    CRIMINAL AND TRAFFIC OFFENCES

16. Since his arrival in Australia, the applicant has been charged with 17 criminal offences, ranging from multiple offences of driving while his license was suspended, using a Class A motor vehicle with illegal number plates, and exceeding the speed limit by more than 20 km/hr. On 11 April 2012, the applicant was also found guilty of obstructing/injuring/intimidating/resisting a Commonwealth public official.

17. The majority of the applicant’s offences occurred very recently, with 14 of the 17 offences having occurred in 2016. At the time of lodging his application for Australian citizenship, the applicant had only recently been convicted of two counts of driving while license suspended, and two counts of driving during a disqualification period, for which he received multiple fines, a community service order of 150 hours, disqualification from driving for six years, and a suspended prison sentence of eight months. Three months after lodging his application for citizenship, the applicant unsuccessfully appealed his sentences in all four convictions to the Parramatta District Court. The applicant was disqualified from driving until 2034, and he was declared a habitual offender.

18. The New South Wales Police Report, returnable by summons and created on 11 April 2017, details all of the NSW Police records that relate to the applicant. Some of these highlight the applicant’s attitude towards his offending and are summarised below.

19. On 24 May 2016, incident details are recorded for “Actual Traffic” event. It was noted that the applicant was pulled over in his vehicle for disobeying a “no right turn” sign. Initially when the police approached the applicant, he advised that he had left his wallet at home and provided an incorrect name and birthdate. Police quickly established that the details were false and identified the driver as the applicant. When the applicant was questioned about why he was giving false and misleading information, he stated words to the effect of, “I am disqualified and didn’t want to get caught”.

20. On 26 February 2016, there is again an entry of an “Actual Traffic” event. The applicant was pulled over for a random breath test. When the police approached his vehicle and advised the applicant that he was required to undergo a random breath test and requested him to produce his driver’s license, the record notes: “The accused said he is a suspended driver and he is driving home after attending Parramatta Court. The accused stated that on 2 October 2015 he lost his license due to a speed offence and he is suspended till 2 April 2016. The accused further stated that he attended Parramatta Local Court earlier in the day and the magistrate strictly informed him not to drive up until his suspension period is over”.

21. On 20 November 2015, the New South Wales Police Report includes incident details for another “Actual Traffic” event. On that date, the police observed that the applicant’s vehicle’s numberplates did not match its registration. The applicant was cautioned in relation to the vehicle and questioned to which the applicant said, “my plates from the other car”. Police said “did you drive here?”, to which the applicant said “yes”. The police questioned the applicant about whether he understood he was suspended driving to which the applicant said “I had no choice”.

22. The New South Wales Police Report details two incidents of actual or indecent assault (sexual); one in 2010 and one in 2011. There are also domestic violence related events recorded in 2010 and 2014. No convictions resulted from these offences. In 2010 and 2011, the applicant has also been the subject of a number of apprehended violence orders.

23. In addition to his criminal record, the applicant has an extensive traffic record of matters which did not proceed to court, which further demonstrates a pattern of reckless behaviour and disregard for the safety of others. While traffic offences are, under the Policy, not ordinarily considered serious when taken individually, the number of the applicant’s traffic offences is significant. I agree with what the Tribunal said in Zhengqin Wang v 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”. The applicant’s pattern of offending and recklessness demonstrates a disregard for Australian law and community safety and indicates a pattern of offending.

24. In view of the applicant’s criminal and traffic record, it is quite clear that he has a pattern of disobeying Australian laws over an extended period of time. This weighs heavily against a finding that he is of good character. In addition, the eight month suspended prison sentence the applicant received on 9 August 2016 for his conviction for driving while disqualified concluded on 8 April 2017, almost 2 months after the applicant filed an application for review to this Tribunal. I am not satisfied that a sufficient amount of time has passed in which to establish that the applicant is of good character, particularly since the applicant was convicted of four offences in the week prior to lodging his application for citizenship, and was subject to a suspended prison sentence after lodging the application and after filing his application for review.

    MITIGATING FACTORS

25. In a statutory declaration of the applicant dated 16 January 2017, he identifies a number of circumstances surrounding his actions including divorce from marriage, depression and anxiety, extreme financial hardship, family sickness overseas, inability to obtain employment, living alone with no family, no legitimate friends, lack of support and that his ex-wife vacated his house suddenly and took all of the applicant’s furniture/belongings without his consent including withdrawing money from their joint bank account.

26. The applicant has provided to the Tribunal an unsigned and undated statement in which he says that following his experience performing community service duties, he has reflected back on his time and proudly says that these experiences have changed his life. He says that giving back has helped him to form a close connection to his local community and he now has a new perspective on life.

27. I acknowledge that the applicant completed a Traffic Offenders Intervention Program on 24 October 2016. In his undated and unsigned statement, the applicant says that his “attitude towards driving has significantly changed over the past times”. He expresses remorse for his actions and advised that his involvement in the Traffic Offenders Intervention Program shed more clarity for him on the seriousness of his conduct and that he now understands the obligations that come with sharing the road with others.

28. A report by consultant forensic psychologist Tim Watson-Munro dated 10 October 2016 shows that the applicant is suffering from major depressive disorder in addition to an anxiety disorder. Although the report stated treatment such as cognitive behavioural therapy would benefit the applicant’s conditions, there is no evidence to suggest that the applicant has engaged in such treatment to date.

29. The applicant also produced a number of character references in support of his application, all of which I have read and considered. Specifically:

    (a)The statutory declaration of Maysa Chakik dated 17 January 2017, states that she has known the applicant for three years and that she is happy and confident to tell the Tribunal that he is a very genuine character who she strongly believes is “an honest man of kind-hearted nature who always carries himself with good intention and is always willing to help”;

    (b)The statutory declaration of Badia Oueik dated 17 January 2017. Ms Oueik states that she has been a friend and work colleague of the applicant for the past three years and says “I believe that I can effectively vouch for his dedication, hard work, integrity and good morals”. She states that “he has never done drugs, or committed any major crime except for his driving offences which occurred predominantly due to his hardship and difficulties in life…”. There is no mention in the statutory declaration of the extent of the applicant’s driving offences nor his offences which are not traffic related;

    (c)The statutory declaration of Blax Zraika dated 17 January 2017, in which he states that he has had a long-term business relationship and friendship with the applicant for the period of three years to date. He describes the applicant as a person who is of very good character and has many fine qualities and is “very genuine and hard-working”;

    (d)The letter of Marwah Bou Kanj dated 13 May 2017, in which it is stated that the writer has known the applicant for approximately seven years and is a close friend. The letter contains praise for the applicant’s dedication to his family, his friends, his work and his local community. It is noted that the applicant “has a few driving offences to his name” and that this is the “first time [the applicant] finds himself in some sort of trouble with the law”. The letter does not indicate that the writer fully understood the extent of the applicant’s criminal offences and traffic history; and

    (e)The letter of Halima Chakik dated 14 May 2017, in which it is stated, “I have had the honour to get to know [the applicant] on a very personal level late since 2009 and can confirm that you are dealing with a person of prodigious inherent qualities of both mind and character. [The applicant] operates with integrity and has never deviated from upholding such solid morals in all that he does. He prides himself on being such a hard-working and dedicated young man who aspires to further invest himself and venture out into the competitive Australian business market upon being granted his citizenship”. It is noted in the letter that the applicant has driving offences to his record; but does not identify that the writer understood the extent of the applicant’s criminal history including offences other than traffic offences.

30. 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 the applicant’s criminal and traffic record. None of the documents provided acknowledge the frequency of offences or the seriousness of the applicant’s traffic record, nor do they make reference to his extensive criminal record. The Policy states that “referee 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.” Accordingly, the weight I give to the references provided is minimal.

31. I am not satisfied that the extenuating circumstances provided by the applicant as reasons for his offending excuse his conduct, nor do they outweigh the seriousness of his offences. There is no evidence before me to show that the applicant was suffering from mental illness at the time the offences were committed, nor that he was engaged in treatment or therapy to address his mental health issues in the past or present.

    DECISION

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

33. The decision under review is affirmed.

34. The applicant may apply for Australian citizenship again at any time.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 9 February 2018

Date(s) of hearing:	18 September 2017
Applicant:	In person
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor