Khan and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 480
•7 July 2016
Khan and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 480 (7 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5883
Re
Clayton Saif Ali Khan
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms A F Cunningham, Senior Member
Date 7 July 2016 Place Sydney The Tribunal affirms the decision under review.
....................[sgd]....................................................
Ms A Cunningham, Senior Member
CATCHWORDS
CITIZENSHIP – whether applicant of good character – series of driving offences over many years - number of offences suggests disregard for Australian laws - insufficient time passed since last offence - lack of evidence to establish rehabilitation - lack of acknowledgement of risk posed to other road users - applicant failed to establish his good character - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 s 21(2)(h)
CASES
Chen and Minister for Immigration and Citizenship (2007) AATA 1815
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Hasib and Minister for Immigration and Border Protection [2015] AATA 82
Irving and the Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Milnar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 77Safar and Minister for Immigration and Border Protection [2015] AATA 503.
SECONDARY MATERIALS
Australian Citizenship Instructions
OR Citizenship Policy
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
7 July 2016
The applicant is a 40-year-old male born in Fiji who first arrived in Australia on 3 December 1990. He is currently the holder of a subclass 856 (permanent) Visa which was granted on 14 April 2011.
On 1 July 2015 the applicant lodged an application for Australian citizenship. The application was refused on 7 October 2015 on the basis that the delegate was not satisfied that the applicant was of good character under s 21(2)(h) of the Australian Citizenship Act 2007 (“the Act”).
The applicant now seeks a review of the delegate’s decision by the Administrative Appeals Tribunal (“the Tribunal”). The applicant appeared on his own behalf at the hearing and gave oral evidence. The respondent was represented by Ms Taah who tendered the T documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
BACKGROUND
In the applicant’s application for Australian citizenship by conferral, in answer to the question “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)?”, the applicant responded that he had been convicted or found guilty of offences in Australia; namely that during January 2000 he was summonsed to Parramatta Court “on a low reading DIY charge” and that his licence had been suspended for three months.
The applicant’s Crimtrac report recorded that he appeared at Parramatta Local Court on 4 May 2000 to offences: a “Drive with low range PCA” charge for which he was fined $500 with a three month licence suspension (the PCA offence), and a “permit never licensed driver/rider to drive/ride-first offence” charge for which he was fined $250.
The applicant’s Online Driving Record issued by the New South Wales Department of Transport Roads and Maritime Services disclose the following 12 driving offences:
Date Offence Penalty
01.05.2015 Disobey traffic lights - camera detected $415
12.10.2014 Not stop at red arrow - camera detected $415
05.04.2011 Exceed speed limit by not more than 10 KM/H
whilst driving a motor vehicle $90
18.03.2011 Disobey left turn/right turn/ no turns sign at
intersection $201
21.09.2008 Exceed speed limit by not more than 15 KM/H
whilst driving a motor vehicle (camera detected) $81
19.10.2008 Exceed speed limit by not more than 15 KM/H
whilst driving a motor vehicle (camera detected) $81
22.12.2007 Exceed speed limit by not more than 15 KM/H
whilst driving a motor vehicle $79
14.11.2007 Exceed speed limit by not more than 15 KM/H
whilst driving a motor vehicle (camera detected) $79
23.10.2005 Exceed speed limit by not more than 15 KM/H
whilst driving a motor vehicle (camera detected) $75
10.09.2004 Unlicensed driver/rider - Previous licence expired
less than 2 years $370
19.09.2001 Exceed speed limit by not more than 15 KM/H
whilst driving a motor vehicle (camera detected) $118
15.06.1999 Not make turn with safety $201The applicant was invited by the Department to provide a statement as to why he should be considered to be of good character in light of the offences outlined in the additional information. The applicant responded to the Department’s request on 4 September 2015 by lodging a letter and attaching four character references. In the letter he stated the following:
… the driving offence that I committed back on 04/05/2000. By all means at the age of 23 years old I was immature and it was a poor decision and judgement from my part. Now at the age of 40 years old, I must and unequivocally say that I have learned from that experience.
15 years have passed and I have not had an occurrence of that offence hence, was a one-off occurrence, out of character offence. Australian has been my home since 1996 and I am immensely proud and privileged to live and be part of the system, whether it is by contributing to the economy or playing for a sporting team or servicing the community.
Since the driving offence that I have committed on 04/05/2000 I believe I was given a second chance in life and as I have mentioned above, I have learnt my lesson. I have attached a statutory declaration and several references on my behalf that attest to my good character. Please refer to them for reference.
The application for citizenship was refused because the delegate was not satisfied that the applicant was of good character as required by s 21(2)(h) of the Act. The delegate considered that the applicant’s offences were at the middle range of seriousness which weighed against him being of good character. The delegate considered that the applicant had provided a misleading statement in only declaring the offence “drive with low range PCA” in his application for citizenship; that his driving offence and traffic infringements were part of an ongoing pattern of behaviour; that he had not provided any information of extenuating circumstances relating to the offences; that the offences were committed at the age of 25 when the applicant was an adult; that there was no evidence of rehabilitation. The delegate took account of the fact that the applicant had committed 11 further traffic offences after appearing in court in 2000 which suggested that he had not learnt from his past mistakes. Further, that a reasonable amount of time had not passed to establish a pattern of good behaviour.
ISSUE
The sole issue for determination in this application for review of the delegates decision is whether the Tribunal can be satisfied that the applicant is of good character under s 21(2) (h) of the act which relevantly 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.
SUBMISSIONS
In considering the character test under s 21(2)(h) the respondent referred the Tribunal to the decision in Chen and Minister for Immigration and Citizenship (2007) AATA 1815 where Senior Member McCabe (as he then was) said in paragraph 18:
The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character…
The Tribunal went on to consider the wording of the character test in the Migration Act1958 and the wording in the Australian Citizenship Act 1948 noting that the former Act requires a positive finding that the Visa holder is not a person of good character whereas the Citizenship Act requires a positive finding that the applicant is a person of good character. At paragraph 21 the Tribunal stated the following:
Where evidence raises a question in the mind of the decision-maker over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Minister (or the Tribunal upon review) to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly - for example, by comprehensively disproving the allegations-but the decision-maker must be provided with a level of comfort about his or her decision.
In Re Milnar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 77 DP Chappell stated (at 776):
… The standard of good character should be even higher for citizenship cases than s501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it…
As Lee J pointed out in Irving and the 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 the 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 the good standing, fame or reputed that person in the community. The former is an objective assessment at the 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 of 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 Tribunal was referred to the Australian Citizenship Instructions (“the Instructions”) which are Departmental policy and issued pursuant to the act to provide policy guidance in relation to the interpretation of the exercise of powers under the act and the regulations. Decision makers and thus the Tribunal in this case will ordinarily apply policies such as the Instructions unless the application produces an unjust decision in the circumstances of the particular case (re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). However, the overarching principle is that the Tribunal must make an independent assessment on the material before it (Hneidi v Minister for immigration and citizenship (2010) 182 FCR 115 at [59]). The Instructions were replaced on 1 June 2016 with the Citizenship Policy however the guiding principles in Chapter 11 in relation to the assessment of good character essentially remain unchanged.
APPLICANT’S EVIDENCE TO THE TRIBUNAL
The applicant gave oral evidence and submitted a statement in support of his application for review. It was his evidence that it was never his intention to speed or disobey the traffic regulations. He said that he was probably distracted and trying to avoid being stopped by a red light by driving through an amber light.
In response to his failure to admit the second offence committed on 4 May 2000 of permitting an unlicensed driver to drive, the applicant stated that he thought that this and the charge of “driving with a low range PCA” were part of the one offence. The applicant agreed that these offences constituted serious offences but contended that the 11 traffic infringements committed during 16 years of driving were mainly low range speeding offences and of “middle range seriousness.”
The applicant offered no real explanation for his numerous traffic infringements which he agreed were not committed during the course of his employment or on the way to or from work. He explained that he works nightshift between Sunday and Thursday of each week commencing work generally between 10 and 11 pm and finishing between 5 and 6 am. He said that perhaps he had been sleep deprived when the offences were committed during daylight hours.
When asked why he did not admit to the traffic infringements in his application for citizenship the applicant said that he understood that the question referred to offences for which convictions had been recorded by a court whereas his infringements were fines and not imposed by a court.
In a statutory declaration sworn by the applicant on 2 April 2016 he declared that on 1 May 2015 he received a traffic infringement fine because he
…went through a red light camera whilst turning left on the intersection of Elizabeth Street and Park Street Sydney. This incident was unavoidable because there was a traffic jam on Park Street which in turn made my car get caught on the intersection and hence I could not move my car forward therefore the red light camera went off.
In a further a statutory declaration sworn on 5 April 2016 the applicant maintains his understanding that he was convicted of the one offence for which he received a suspended licence and a fine. He states that he had no intention of withholding such information from the Department and points out that he has never repeated these offences since committing them on 4 May 2000, 15 years two months prior to lodging in his application for Australian citizenship.
The applicant agreed that he had not provided his referees with the details of his traffic offences. One of the referees is the applicant’s current employer with Endeavour Energy who does not refer to the applicant’s offences in his character reference dated 27 April 2015.
Stephen Brady, who swore a statutory declaration on 2 April 2015 states that the applicant had “told me of the incident in question when it occurred. He was deeply troubled and regretful and there has been no further occurrence of any sort.” The applicant said that “the incident” referred to his drink-driving offence and that he had not informed Stephen Brady of his other traffic infringements.
The applicant submitted a statutory declaration sworn by Josaia Waqaivolavola, former resident magistrate of Fiji who states that he has known the applicant since attending school with him in 1990. He states “I am also aware of some of his traffic infringements and the one drink and driving conviction in the year 2000, to which I state that this is out of character for Clayton Saif Ali Khan and I personally vouch that if given an opportunity he would make a very valuable citizen of this great country, Australia.”
The applicant also submitted a statutory declaration from Koksal Bozdag, the applicant’s tax practitioner. Mr Bozdag states that he has known the applicant since 1998 as a client and attests to him being “an honest, reliable, hard-working and has a very good character” he states that the applicant had informed him of a drink and driving issue in 2000 which resulted in the applicant losing his driver’s licence and being fined. Mr Bozdag then states “This incident has not occurred ever again which leads me to attest again that he is and also a person of integrity and disciple (sic).”
The applicant informed the Tribunal that he had enrolled in a defensive driving course scheduled for Friday, 15 April 2016 which he claims is evidence of his acknowledgement that he needs to improve his driving.
The applicant maintains that the two offences committed in 2000 were not subject to terms of imprisonment and in his view “are at the very bottom of the spectrum of this type of offending.” He says that he has not committed offences of this nature since 2000. The applicant admitted to police that he had committed the offence of permitting an unlicensed driver to drive his vehicle for which he received a $250 fine which in his view, should be regarded as a “minor offence”. The applicant stated that the drink-driving offence was for “having a lower range of prescribed alcohol content in his breath/blood” being above 0.05 but less than 0.08 and is defined as a low range drink driving offence under the RoadTransport Act 2013 (NSW). The applicant points out that neither of these offences is defined as a “serious offence” under the Australian Citizenship Instructions.
The applicant submits that the 11 traffic infringements were spread out across a period of 16 years, that is from 1999 until 2015.
CONSIDERATION AND FINDINGS
It is the respondent’s contention that the pattern of the applicants driving offences shows a clear disregard for Australian driving laws and there is no evidence suggesting that the applicant has rehabilitated himself. The respondent maintains that the evidence supports a finding that the applicant was not of “good character” at the time of submitting his application for citizenship and that the decision under review should be affirmed.
The applicant referred the Tribunal to two previous decisions of the Tribunal namely Hasib and Minister for Immigration and Border Protection [2015] AATA 82 and Safar and Minister for Immigration and Border Protection [2015] AATA 503.
The applicant submitted that the 10 offences committed by Mr Hasib were more serious than those committed by himself, being subject to terms of imprisonment, and yet the Tribunal in that case, set aside the delegate’s decision which refused the application of the citizenship.
The applicant contended that the delegate in his case had relied on the findings of the Tribunal in Safar in determining the seriousness of the offences committed by the applicant. The Tribunal in that case affirmed the decision under review not to grant the application for citizenship. The applicant maintains that his offences can be easily distinguished for those committed by Safar which were indeed serious. The applicant claims that the two offences committed by him constituted minor offences and the 11 traffic infringements consisted mainly of lower range speeding and were spread over a period of 16 years.
The Policy lists a number of criteria to be considered in the assessment of good character which include: to 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.
The Tribunal accepts the applicant’s explanation as to why he did not list his numerous traffic offences in his Application for Citizenship under the heading “Character Declarations” on the basis that he understood that this question only related to offences which were determined in a court of law. Nevertheless the Tribunal considers that the applicant’s pattern of traffic violations when considered cumulatively, are indicative of the applicant’s disregard of Australia’s driving laws. The purpose and objective of such laws is to protect users of the road and the safety of the community.
There is no evidence that the applicant acknowledges the risk that his actions posed to other road users. Instead of accepting the seriousness of his pattern of offending, the applicant endeavoured to provide excuses for his behaviour. For instance the applicant said that he was trying to avoid being detained at a red light and pointed out that there are numerous red light cameras located in and around Sydney.
The fact that the applicant continued to offend is indicative of his disregard of the traffic laws. The Tribunal places little weight on the applicant having enrolled in a defensive driving course which was arranged following the delivery of the delegate’s decision refusing his application for citizenship and scheduled for a date after the hearing of his application for review by the AAT. The Tribunal is not satisfied that the applicant has accepted responsibility or shown any particular remorse for his offences.
The last recorded offence committed by the applicant was on 1 May 2015 which was only two months prior to the lodgement of his application for citizenship. The Crim Trac report lists 12 driving offences committed between June 1999 and May 2015. 11 of the offences had been committed after the applicant’s court appearance and conviction for the PCA offence when he was 25 years of age.
It is incumbent on the applicant to produce evidence to positively satisfy the Tribunal that he is of good character notwithstanding the issues raised in the delegate’s reasons for refusal of his citizenship application. The Tribunal does not consider that any of the character references submitted by the applicant are persuasive of his good character. Whilst the referees attest to the applicants good standing and repute in the community, his honesty, reliability and work ethics, they do not address or comment on the applicant’s pattern of traffic offences.
There is no evidence that the applicant has rehabilitated himself, having consistently committed driving offences since his unrestricted licence was issued on 30 October 1998. The Tribunal considers that insufficient time has elapsed since the last traffic infringement was committed on 1 May 2015 to establish a pattern of good behaviour.
In summary the Tribunal considers that the number of traffic infringements committed by the applicant is significant and whilst each is not ordinarily considered serious under the Instructions, when considered cumulatively they do not attest to the applicant being a law abiding citizen.
Insufficient time had lapsed between the commission of the last offence and the applicant’s application for citizenship such as to demonstrate rehabilitation and to establish good character at the time of his application for citizenship. The applicant has failed to adduce evidence upon which the Tribunal could be satisfied that he is a person of good character within the meaning of the Act.
For these reasons the Tribunal decides to affirm the decision under review.
I certify that the preceding 41 (forty one) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member
..........................[sgd]..............................................
Associate
Dated: 7 July 2016
Date(s) of hearing 6 April 2016 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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