Khanum and Minister for Home Affairs (Citizenship)

[2019] AATA 4389

Khanum and Minister for Home Affairs (Citizenship) [2019] AATA 4389 (30 October 2019)

Division:GENERAL DIVISION

File Number:           2018/3627

Re:Farhana Khanum

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:30 October 2019

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – eligibility – where application for Australian citizenship by conferral refused – driving offences – negligent driving occasioning grievous bodily harm – whether applicant is of good character – whether applicant has accepted full responsibility for conduct – applicant found not to be of good character at the time of the Minister’s decision on the application for citizenship – decision under review affirmed           

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10
Roads Transport Act 2013 (NSW) s 117

CASES

Irving v Minister for Immigration, Local Government & Ethic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 July 2014

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

REASONS FOR DECISION

Mr S Evans, Member

30 October 2019

1. Farhana Khanum (“the applicant”) is a citizen of Bangladesh who first arrived in Australia in May 2006.  She applied for Australian citizenship by conferral on 26 August 2015 and the application was refused by a delegate of the Minister for Home Affairs (“the respondent”) on 28 May 2018. 

2. The application was refused 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 (Cth) (“the Act”). 

3. The applicant now seeks a review of the delegate’s decision with the Administrative Appeals Tribunal (“the Tribunal”).  The matter was heard on 16 September 2019 and the applicant appeared at the hearing and provided oral evidence through an interpreter and was represented by legal counsel.

4. Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the applicant. 

5. For reasons I will explain, the decision under review is affirmed. 

   BACKGROUND

6. Ms Khanum lives with her Australian citizen husband and two children.  She is currently the holder of a Subclass BB 155 Resident Return visa. 

7. On 14 August 2015, ten days prior to her application for citizenship, Ms Khanum was involved in a car accident in which a pedestrian was injured. She was subsequently charged with negligent driving occasioning grievous bodily harm to which she pleaded guilty. 

   LEGISLATIVE AND POLICY FRAMEWORK 

8. Under section 21(2)(h) of the Act a person is eligible to become an Australian citizen if, among other things the Minister is satisfied that:

   “The applicant is of good character at the time of the Minister’s decision on the application”.

   Determining questions of character

9. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that if a person makes an application under s 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. 

10. The expression "good character" is not defined or qualified by the Act.  The expression was considered by the Full Court in Irving v Minister for Immigration, Local Government & Ethic Affairs[1] in the context of the power of the Minister to refuse to issue a visa. Justice Davies said:

    It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.[2]

    To a similar effect, Lee J said:

    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 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.

    [1] (1996) 68 FCR 422; [1996] FCA 663.

    [2] (1996) 68 FCR at [425].

11. The Department’s official guide to decision makers, the Australian Citizenship Instructions (“the Instructions”), provides guidance for decision makers including the Tribunal in determining whether Ms Khanum is of good character.

12. Informed by the discussion in Irving the Instructions suggest 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.[3]

    [3] Australian Citizenship Instructions, 1 July 2014, Chapter 10 - Character, p.172.

13. The Instructions specifically call for the decision maker to “look holistically at an applicant's behaviour over a lasting or enduring period of time”.[4] Relevantly, the Instructions call upon decision makers to consider if the applicant has committed an offence, and whether that offence was a serious or minor offence.[5]  For example, a serious offence would include “crimes of violence such as negligent or reckless driving occasioning injury or death”.[6] 

    [4] Ibid p. 150.

    [5] Ibid p. 176.

    [6] Ibid p. 176.  

14. The Instructions also note that minor offences may include offences that lead to a finding of guilt, but no conviction or sentence.  In each Australian jurisdiction there are sentencing arrangements for summary offences where there is discretion not to record conviction. 

15. The Tribunal was guided by these considerations in determining if Ms Khanum meets the good character requirement for Australian citizenship.

    ISSUES FOR THE TRIBUNAL

16. The sole issue for determination in this application is whether the Tribunal can be satisfied that the applicant is of good character under s 21(2)(h) of the Act.  

    EVIDENCE AND SUBMISSIONS

    Ms Khanum’s Driving Record

17. The Minister’s determination that Ms Khanum fails the character test rests solely on Ms Khanum’s driving record, which is relatively brief as she had obtained her learner’s permit in 2012.  Prior to that she had no record of driving and claims not to have driven. 

18. Ms Khanum was involved in a car accident in August 2015.  She was driving her vehicle during the day. She was turning right at a set of traffic lights when she hit a pedestrian who was crossing the road at the pedestrian crossing.  The NSW Police Facts Sheet  states in part:    

    At about 3.40pm Friday 14 August [Ms Khanum] was driving a Black Toyota Rav 4… The accused [Ms Khanum] stopped a red light at the intersection [road] and [intersecting road] in the right hand turn lane with the intention of turning right… The accused was the first vehicle at the traffic lights.

    The pedestrian … was standing at the traffic lights at the same intersection… the [pedestrian] pressed the button to cross …[the intersecting road]. 

    The traffic lights facing [Ms Khanum] turned green and a green man displayed towards [the pedestrian] to cross.  [the pedestrian] began to cross due to his being elderly he walks slowly. 

    There were three vehicles travelling east on … [road] that [Ms Khanum] gave away [sic] to.  [Ms Khanum] commenced making the right hand turn.  At this time [the pedestrian] had only taken approximately three steps onto the road.  [Ms Khanum] did not see [the pedestrian]. The front driver side of [Ms Khanum’s] vehicle collided with [the pedestrian]. The forced [sic] of the impact threw [the pedestrian] about 1 metre into the air. [The pedestrian] landed on the road in front of the vehicle.[7]

    [7] Respondent’s Bundle of Documents, BD2 p.15.

19. As a result of the accident the pedestrian who was hit (“the victim”) was hospitalised and suffered a T7 vertebral body fracture and whiplash injuries with musculoskeletal injuries to his cervical spine. Ms Khanum was charged with negligent driving occasioning grievous bodily harm. She appeared in court in June 2017 where she pleaded guilty to the charge and was ordered by the Local Court Magistrate to enter into a good behaviour bond for two years under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).[8]

    [8] Ibid BD2 p.12 and BD3 p.25.

20. In April 2016, after the accident and prior to her sentencing, Ms Khanum was stopped for a random breath test.  She was only displaying one of the two ‘P-plates’ in breach of her provisional licence, for which she received a fine. 

    The Minister’s Position

21. It is the Minister’s contention that the applicant is not of good character because negligent driving is a serious offence and the extent of the victim’s injuries amounted to grievous bodily harm.  The Minister also contends that whilst the applicant has expressed remorse, notably in a letter in November 2018, it should be given minimal weight as it appears to have been drafted purely for the purpose of improving her prospects of being granted citizenship. 

22. The Minister also notes that the applicant was subject to a good behaviour bond up until 30 June 2019 and that insufficient time has passed to allow the applicant to demonstrate she is ‘a reformed character’.  Subsequent to the accident, Ms Khanum was involved in a second driving offence, being the failure to comply with conditions of her provisional license, meaning the accident was not Ms Khanum’s only driving offence.  

    The Applicant’s Position

23. Ms Khanum’s position is that she was involved in an accident and it is not a reflection on her character or her ability to discern right from wrong.  There was, writes the applicant’s representative, no “conscious decision on the apart [sic] of the applicant to violate any law or traffic rules”.[9] The applicant contends that such an offence could have happened to anybody who makes an inadvertent mistake on the road and is not a reflection of character.

    [9] Applicant’s written submissions dated 13 September 2019 p. 2.

24. The applicant’s representative noted that the maximum penalty for negligent driving occasioning grievous bodily harm is ‘20 penalty units and a maximum penalty of 9 months imprisonment’ under s 117(1)(b) of the Roads Transport Act 2013 (NSW). Ms Khanum’s sentence was, according to her submission, “the second most lenient sentence the Local Court could have imposed”.[10] The applicant also emphasised that under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), Ms Khanum was “not convicted… she was discharged on a bond to be of good behaviour for a period of 2 years”.[11] 

    [10] Ibid p. 4.

    [11] Ibid p.1.

25. Furthermore, the applicant has expressed her remorse for the accident. This is demonstrated by her letter of 12 November 2018 addressed ‘to whom it may concern’ in which Ms Khanum offers her “sincerest apologies” for her conduct and writes that she is “extremely ashamed and remorseful about her actions”. 

    CONSIDERATION

26. I accept that the incident that the applicant was involved in was an accident.  The nature of the accident was such that Ms Khanum misjudged the situation and as a result the vehicle she was driving hit a pedestrian. There is no indication that she was being needlessly reckless and I accept the contention of the applicant’s counsel that:    

    The offence was not one of violence, intentional or reckless harm to others, selfishness, greed, perversion, fraudulence or dishonestly. It was not pre-meditated.  It was a one-off occurrence.[12]

    [12] Transcript, 16 September 2019, p. 58.

27. Given the circumstances of the offence I find that it is not possible to make a determination of the applicant’s character for the purposes of section 21(2)(h) on the basis of Ms Khanum’s accident alone. It did, however, initiate a series of events and developments which demonstrated the applicant was not a person of good character for the purposes of her application for Australian citizenship.

    Accepting Responsibility

28. As the driver of the vehicle Ms Khanum has said that she accepts responsibility for the accident and, as mentioned, she pleaded guilty to the offence of negligent driving occasioning grievous bodily harm. 

29. The pedestrian who Ms Khanum injured states that he stopped and waited for the “green man” to appear prior to crossing the road.  Subsequent analysis of the traffic light phasing concluded that the pedestrian crossing and lights were operating normally. The Police Report states: 

    Police attended the location and assessed the phasing of the traffic lights.  Police video recorded the phasing of the lights for 5 minutes with one officer pressing the pedestrian cross button in the same location the PED would of.  There is no turning arrow at the location.  When the light turns green vehicles can only make the right hand turn when it is safe to do so.  If the PED pressed the button, as he clearly stated he did the man turns green and then flash’s [sic] red the whole time the light is green. When the light changes to orange the man stops flashing.  Police have made the assessment that with the light phasing it is not possible that the veh has made the right turn safely. The veh is in the wrong and is deemed at fault for the collision.[13] (emphasis added)

    [13] Respondent’s Bundle of Documents, BD4 p.34.

30. Initially Ms Khanum did not plead guilty to the offence for which she was charged.  She told the Tribunal that she did so only after consulting her lawyer who she said advised her that an accident cannot “just happen… if I was looking where I was going”, and it was “best for me to plead guilty”.[14]

    [14] Transcript, 16 September 2019, p. 26.

31. In a police interview three days after the accident Ms Khanum told police that the pedestrian light was red when she made the turn, a point she repeated a number of times during the interview.[15] 

    [15] Respondent’s Bundle of Documents, BD5 p. 79.

32. In her letter of 11 November 2018 Ms Khanum indicates that whilst she was ‘partially wrong’; she made the turn to avoid a collision.  She writes: 

    I admit that I was partially wrong to [sic] the reason that the frail [man] was walking at red light and if I didn’t collide with him I would have had a fatal collision with another oncoming vehicle.  I could admit it was my fault also. 

33. This indicates that Ms Khanum does not accept full responsibility for the accident even after having pleaded guilty to negligent driving occasioning grievous bodily harm. 

34. Shortly after the accident occurred Ms Khanum called her husband who attended the scene of the accident.  This is understandable given Ms Khanum’s limited English and the pressing need to communicate with the victim, police and witnesses in what was doubtless a distressing situation. One witness told police “the lady [Ms Khanum] was saying it was not her fault”.  Another witness stated: 

    It was a lady driver in the 4WD.  Her husband and some friends of her’s [sic] came down.  They were arguing that it was not her fault and he [the victim] should not of [sic] crossed.[16]

    [16] Ibid BD5 p. 57.

35. Given this evidence I can only conclude that Ms Khanum’s initial instinct was to deny responsibility for the accident by placing blame on the victim. She later made an expedient decision to plead guilty on the understanding it was her best option in terms of mitigating the legal consequences of the police charges.  Her subsequent comments indicate that she still does not accept full responsibility for the accident. 

    Gravity of the Accident

36. At the hearing the applicant testified that “my car hit him [the victim] mildly, it was a mild hit”.[17]  Ms Khanum told the Tribunal that after she collided with the pedestrian he “…just fell, he just fell and sat [on the road]”.[18] The NSW Police Report and witnesses, however, describe it differently. The NSW Police Facts Sheet states that “the forced [sic] of the impact threw [the victim] about 1 metre into the air”.[19]  This is supported by a witness to the accident  whose statement reads in part:

    The car then hit the old man. The man went into the air about the height of the car. He then landed in front of the car.  He was lying on the ground.[20]

    [17] Transcript, 16 September 2019, p. 18.

    [18] Ibid p.19.

    [19] T-documents, T9 p. 69.

    [20] Respondent’s Bundle of Documents, BD5 p. 57.

37. Another witness told police: 

    I heard a bang.  I see something fly into the air.  At that time I did not notice what it was that went flying through the air... She [Ms Khanum] stopped the car.  I see her get out.  She was walking towards the old man who was lying on the road.  I got out of the car and went to help the man. The other lady driver went and call someone.[21]

    [21] Ibid BD5 p. 59.

38. The most compelling indicator of the accident’s seriousness was the victim’s injuries.  A letter from a doctor at Liverpool Hospital where the victim was admitted after the accident states:

    As a result of the motor vehicle accident, [the victim] sustained a T7 vertebral body fracture and whiplash injuries with musculoskeletal injuries to his cervical spine.  His injuries were caused by, and are consistent with, a motor vehicle accident.  His injuries have not stabilized yet. His injuries will be stable at 10 months after the accident, when the vertebral body fractures are completely healed.[22]

    [22] Ibid BD5 p. 61.

39. It is also reported that as a result of the accident, the victim does not walk as he previously did because he tends to guard his shoulder when walking and that he can no longer perform some tasks that he was able to prior to the accident. 

40. On the basis of this evidence, I find that the accident was indeed of a serious nature.  By stating “that my car touched him [the victim] mildly”,[23] Ms Khanum is seeking to minimise the gravity of the accident.  In doing so she has failed to accept full responsibility for her actions and this is inconsistent with her expression of remorse.

    [23] Transcript, 16 September 2019, p. 18.

    Character Statements

41. The applicant has provided the Tribunal with character references from her doctor and from two individuals – Mr Rahaman, a friend she attended university with and Ms Akther.  The statements both appear similar and follow the same structure noting the accident and the applicant’s lack of a criminal record. 

42. Notably, Mr Rahaman writes: 

    In 14 of August 2015, Farhana had a minute collision with a pedestrian at Greenacre.  And 30 June 2017, she had a judgement at Bankstown District Court.  During this time Farhana suffered very bad predicament [sic]. For the same reason her citizenship has been declined and young family is still suffering bad timing. Farhana’s mother is very ill and for immigration purposes she could not travel overseas to visit her. (emphasis added)

1. At the hearing Ms Khanum was asked about the statement from Mr Rahaman and she told the Tribunal that Mr Rahaman is a close friend “so he knows my situation that I was unable to go back home and all that”.[24] During subsequent questioning the applicant conceded that she could in fact travel to Bangladesh on her current passport, and she had in actual fact done so after the accident. She attempted to explain Mr Rahaman’s comments by stating it’s “not as easy as travelling with a passport of [sic] Australia”.[25] 

   [24] Ibid p. 32.

   [25] Ibid p. 33.

2. It would appear that the references were written with the cooperation of the applicant.  Given that Mr Rahaman’s statement downplays the seriousness of the accident and exaggerates the impact it has had on the applicant to the point of being misleading, it was unwise to present it to the Tribunal. 

3. In light of the misleading evidence contained in one of the references and the sparsity of information contained within all of them, I place minimal weight on these character references. 

   Mitigating Factors

4. I accept that Ms Khanum was concerned about the victim and that she was genuine when she told the tribunal that it was her wish to visit him whilst he was in hospital.  She told the tribunal: 

   I even discussed with my husband that I felt so bad that man was similar age as my father, I felt like going to the hospital and visit him but my husband advised that I … shouldn’t do that because it’s a police case now, there might be other issues, so I did not do it but I felt bad.[26]

   [26] Ibid p. 36.

5. She also told the Tribunal that after the accident she took the victim’s head and placed it on her lap because she was feeling sorry and he was in so much pain.[27]  I accept this demonstrates a genuine concern and empathy on the part of Ms Khanum towards the elderly victim. 

   [27] Ibid p. 37.

6. I also note that Ms Khanum is the mother of Australian citizen children and is married to an Australian citizen.   

   CONCLUSION

7. At times during the hearing Ms Khanum became genuinely upset, which is understandable. Causing an accident where someone is injured is undoubtedly traumatic and I have sympathy for Ms Khanum in this regard.  The consequences of accidents can continue to influence the lives of participants for many years, often in unexpected ways. 

8. The applicant’s counsel argued at the hearing that her consistent view that she thought that her light was green and the pedestrian light was red was “her act of negligence”.[28] Ms Khanum’s counsel placed much emphasis on the sentence imposed by the court.  There was a finding of guilt, but no conviction was recorded, which is permissible in such matters. The sentence was at the lower end of the scale. The victim’s injuries, it was argued, were also at the lower end of what constitutes grievous bodily harm.  Evidence was presented to the Tribunal that indicated Ms Khanum was in a minority of people who went before the court on similar charges and did not have a conviction recorded.  I was not persuaded by these considerations that Ms Khanum was a person of good character. 

   [28] Ibid p. 41.

9. I find that Ms Khanum fails the character test in part because of the accident and her role in it, but substantially as a consequence of her actions from the moment her vehicle collided with the victim.  She has not accepted responsibility for her mistake that caused the collision. She has sought to blame the victim from the time the accident occurred and has resiled from that contention only when it has been in her interests to do so. She has consistently downplayed the severity of the accident and by implication the impact on the victim. Finally, she has allowed the impact of the accident on her to be manifestly misrepresented to the Tribunal by putting forward a reference which claimed she was unable to travel overseas to see her mother who is “very ill”, when she had actually visited her mother subsequent to the accident.[29] 

   [29] Ibid p. 33.

10. In light of these findings I conclude that Ms Khanum is not of good character for the purposes of s 24(2)(h) of the Act and for the purposes of this application Ms Khanum has excluded herself from the special privilege of Australian citizenship. 

    DECISION

11. For the reasons stated above, the decision to refuse the applicant’s application for Australian citizenship by conferral is affirmed.  

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 30 October 2019

Date(s) of hearing:	16 September 2019
Counsel for the Applicant:	Mr A Moutasallem
Solicitors for the Applicant:	Mr S Abbas, Allied Lawyers
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore Lawyers