KJZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 2621

KJZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2621 (30 July 2021)

Division:General and Other Division

File Number(s):      2020/0579

Re:KJZM  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson

Date:30 July 2021

Place:Brisbane

The decision under review is remitted to the Respondent for reconsideration.

.............................[SGD]. .............................

Senior Member P J Clauson

CATCHWORDS

CITIZENSHIP – Australian Citizenship by Conferral – rejection of Citizenship – criteria – good character – charged with criminal conduct – convicted after application – protection visa resident - of good character – remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth)
Heavy Vehicle National Law (South Australia) Act 2013

CASES

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

Irving and The Minister for Immigration, Local Government and Ethnic Affairs (1966) 68 FCR 422

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Citizenship Procedural Instructions – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member P J Clauson

30 July 2021

INTRODUCTION

1.   KJZM (“the Applicant”) submitted an Application for Australian Citizenship by Conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”)

2.   The Applicant was born in Iraq in 1984 and was 37 years of age at the date of hearing. Upon arrival in Australia in January 2011 as an unauthorised arrival, he sought and was granted a Protection (Class XA) Permanent (Sub-Class 866) Visa on May 2011 and is a permanent resident of Australia.

3.   The Applicant lodged an application for Australian Citizenship by Conferral on either the 29 May 2015 or the 17 June 2015. The date is inconsistently noted in the hearing material before the Tribunal. The Applicant’s Statement of Facts, Issues and Contentions dated 30 November 2020 adopts the filing date of the 29 May 2015 and mistakenly describes the document as T4, at pages 150 – 167 in the T documents. The Respondent’s Statement of Facts, Issues and Contentions dated 22 December 2020 adopts the filing date of 17 June 2015 and mistakenly describes the document as T2 of the T Documents  which, in the Tribunal’s bundle, is in fact, the Applicant’s Application for Review. However, in the T documents available to the Tribunal at the hearing the Application for Citizenship appears as T3 at page 10 and thence after as PT3 from pages 11 to 47. The parties’ did not raise any objection as to the document at the hearing and so for the purpose of this review the Tribunal has resolved to accept the document appearing at T3 at page 10 and as PT3 from pages 11 to 47 as the relevant copy of the Applicant’s Application for Citizenship.

4.   An Australian Criminal Intelligence Commission Check Results Report[1]  was carried out as part of the due diligence process for Citizenship conferral and noted that the Applicant had been convicted in the Mount Gambier Magistrates Court, of committing Critical risk breach-solo driver exceed maximum work time[2] offence and had been fined the sum of $2000.00.

[1] Exhibit 1, T Documents, PT11, pages 123 – 124.

[2] Heavy Vehicle National Law (South Australia) Act 2013, section 250.

5.   The Applicant was invited to comment on the adverse information outlined in the preceding paragraph and did so in writing on 16 December 2019.  

6.   On 15 January 2020, a Delegate of the Minister (“the Delegate”) refused the Applicant’s Application for Australian Citizenship on the basis that the Delegate could not be satisfied pursuant to sub-section 21(2)(h) of the Act of the Applicant’s good character. The relevant sub-section provides (inter alia):[3]

“(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.”  

ISSUES FOR THE TRIBUNAL

[3] Ibid T2, pages 28 – 40.

1. The Tribunal has to determine whether it can be satisfied of the Applicant’s good character for the purposes of subsection 21(2)(h) of the Act.

   LEGISLATIVE FRAMEWORK

2. The Tribunal in addition to the requirement to be satisfied as to an Applicant’s good character pursuant to subsection 21(2)(h) has need to consider the guidance provided in the Citizenship Procedural Instructions and in particular CPI 15 – Assessing Good Character under the Citizenship Act (“CPI 15”).[4]

   [4] Ibid PT15, pages 162 – 183.

   THE RESPONDENT’S CONTENTIONS  

3. The Respondent’s contentions, in summary, are that the Tribunal cannot be satisfied of the Applicant’s good character for the purposes of paragraph 21(2)(h) of the Act because of the two circumstances relating to the offence. Firstly, the  serious nature of the offence and secondly, the fact that the offence was committed relatively recently and that sufficient time had not elapsed between its commission and the date of the Applicant’s application for citizenship.

4. The Respondent contended that the inherent seriousness of the offence was emphasised by the relevant section of the legislation governing it nationally namely, section 250(1)(a) of the Heavy Vehicle National Law (South Australia) Act 2013 (“HVNLA”) which states:

   (1) The solo driver of a fatigue-regulated heavy vehicle commits an offence if, in any  period stated in the standard hours for the driver, the driver—

   (a)  works for more than the maximum work time stated in the standard hours for the period; or

   (b)  rests for less than the minimum rest time stated in the standard hours for the period.

   Maximum penalty:

   (a)      for a minor risk breach—$4 000; or

   (b)     for a substantial risk breach—$6 000; or

   (c)     for a severe risk breach—$10 000; or

   (d)     for a critical risk breach—$15 000.

5. The Respondent contended that because the Applicant worked for more than 12 hours in a 24-hour period, namely 14.5 hours, this action on his part was a contravention of the Heavy Vehicle (Fatigue Management) Regulation which sets a scale of risk based upon the hours a driver has been driving and that a contravention such as the Applicant committed was categorized under that regulation as a critical risk breach. The HVNLA at section 222(4) states that contravention of a maximum work requirement is a critical risk breach if it is declared to be so under the Regulations. Thus, the Respondent contended that the critical risk breach committed by the Applicant was of the most serious category.

12.  It was also the Respondent’s contention that driving offences were viewed as fundamental threats to the safety of the community and, in particular, driving offences involving the use of heavy vehicles which were regulated by national legislation, even more so. The legislation was formulated with the intention to  manage driver fatigue and protect the public. Furthermore, in the case of the Applicant his actions were the actions of a driver who belonged to that cohort for whom the legislation was formulated in order to minimise danger to the public and to promote safe driving practice within the Australian heavy transport industry. The Respondent referred the Tribunal to the ‘Heavy Vehicle National Law (South Australia) Act 2013, Schedule – Heavy Vehicle national Law, Chapter 1, Part 1, cl 3’[5] in this regard. The Respondent reinforced the view that driving a heavy vehicle whilst fatigued can have serious consequences leading to death. 

[5] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 5, footnote 2.

13.  The Respondent also contended that the Applicant’s contention that his offence was the result of an honest mistake could not be given credence as it was difficult to see how the Applicant could honestly miscalculate or misunderstand the uncomplicated legal requirement to not drive in excess of 12 hours in any 24-hour period. The Applicant’s offence did not consist of a few minutes over the 12-hour maximum but was a significant 2.5 hours past the allowable time.

14.  The Respondent also contended that the offence had taken place relatively recently in June 2018 and thus, an insufficient effluxion of time since the offence had occurred so as to satisfy the highly relevant factor that the Applicant’s enduring qualities indicating good character could not have had sufficient time to reveal themselves for a decision maker to adequately judge them. The Respondent also drew the attention of the Tribunal to the decision of Deputy President Breen in the matter of Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], wherein he made the observation that “the grant of Australian citizenship is a privilege not bestowed lightly” and thus contended on that basis that given the significance of a grant of citizenship, the Applicant has not had sufficient time to demonstrate that he is possessed of the enduring moral qualities reflective of a person of good character.

THE APPLICANT’S CONTENTIONS

15.  The Applicant’s Statement of Facts, Issue and Contentions (Exhibit 2) indicates that the Applicant was born in Iraq in 1984 and is a Shia Muslim. He had driven supplies for the American troops during the turmoils in Iraq and as such was a target for the extremist militia group Jaish Almahdi.[6]

[6] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions dated 22 November 2020, page 1.

16.  The Applicant came to Australia by boat and was granted a Protection (subclass 866) Visa in  May 2011.[7]

[7] Ibid 2; Exhibit 1, T Documents, PT13, page 143.

17.  The Applicant is a married man having married his wife in Iraq in 2002[8] and after the Applicant left Iraq in 2011 his wife and children remained in Iraq until he was able to sponsor them and they were then reunited in Australia in 2014.[9]

[8] Exhibit 1, T Documents, PT6, page 73.

[9] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions, page 2.

18.  The Applicant and his wife now have five children two of whom were born in Australia following the family’s reuniting in 2014.

19.  The Applicant whilst in Iran worked as a truck driver from 2006 until 2010 and since coming to Australia has worked primarily as a truck driver since about 2014 until the present. He has owned and driven his own truck as a contractor to logistics companies since about 2017 and continues to do so. His work requires him to travel widely and includes interstate trips as part of his calling.[10]

[10] Ibid.

20.  The Applicant has and continues to support his family on a financial and general basis through his work.[11]

[11] Ibid.

21.  The Applicant has been an active member of his Shia community and has assisted members of the community generally and financially when he has been able to do so. He attends prayers on Friday but is sometimes unable so to do because of work commitments.[12]

[12] Ibid.

22.  Members of his community support his application for citizenship and a number of them are aware of his single conviction for driving for more hours than the regulations allow.[13]

[13] Ibid.

23.  The Applicant contends that he has no criminal record from either Iraq or in Australia and only has the conviction for driving for more than 12 hours in a 24-hour period having lived in Australia since 2011 and driven trucks in Australia since 2014 until now.[14]

[14] Ibid 3.

24.  It is the Applicant’s contention is that he takes his role as a heavy vehicle driver seriously and that the error that he made was an honest error insofar as he miscalculated the hours he had driven over 24 hours because the hours straddled two days and one night form the 5 June 2018 to 6 June 2018 and as disclosed in the copies of the relevant pages of the log book and the summons material before the Tribunal[15]  and further, that he is sorry for this error and on the 6 March 2019, pleaded guilty to the summons charge and received a lesser fine of $2000.00 for pleading guilty to the offence.

[15] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 22 December 2020, annexed summons material from Adelaide Magistrates Court.

25.  The Applicant contends that he is respectful of the laws of Australia and appreciates the safety afforded to Australian citizens by the operation of law, having had to leave his country of birth in order to escape the threats from violent militias.[16]

[16] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions dated 30 November 2020, page 1.

26.  The Applicant in his Application for Citizenship has correctly stated at that time, that he had no criminal charges or convictions.[17]

[17] Exhibit 1, T Documents, T3; PT3, page 18.

27.  The Applicant also contended that he has dealt honestly with the Australian Government and the community and has lodged tax returns and paid taxes as his obligations require him to.[18]

[18] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions dated 30 November 2020, page 2.

28.  The Applicant also contends that he has lived in the Australian community for almost ten years and has been responsible and has worked diligently and honestly for himself and for his employers and has dealt honestly with colleagues and the general community.[19]

[19] Ibid 2.

29.   The Applicant intends to continue to live and behave as a responsible community member should he be permitted to become an Australian Citizen, and that apart from the charge the subject of his conviction being discussed, he has not been charged with any other offence.[20]

[20] Ibid 3.

30.  The Applicant contends that he is of good character because of his unblemished record of living responsibly in Australia for ten years, notwithstanding his one conviction as discussed in the foregoing paragraphs, and that his demonstrated enduring moral  qualities are such that he meets those criteria demonstrating “good character” such that he meets the requirements of section 21(2)(h) of the Act.   

THE HEARING AND EVIDENCE

31.  The Tribunal Hearing was convened in Brisbane on 25 February 2021 and utilised MS Teams.

32.  The Applicant gave evidence on his own behalf with the assistance of an interpreter and was represented by Mr Anthony Krohn of counsel instructed by Mr Bayliss of Vrachnas Lawyers. The Respondent was represented by Mr Jake Kyranis of Sparke Helmore Lawyers.

33.  The Applicant during examination in chief by Mr Krohn confirmed the circumstances as outlined in his Statement of Facts, Issues and Contentions as they related to his marriage,  family life and community life and to his history of employment. He told the Tribunal that he and his wife married in Iraq in 2002 in a traditional marriage insofar as it had been arranged by the parents of both the husband and wife. He told the Tribunal that he and his wife had three children while living in Iraq and that when he felt he had to leave as a result of the tumultuous circumstances prevailing in the country, he and his wife agreed that he would have to go and that she and the children would stay until he was safe and they could reunite.

34.  He said that the parting was very difficult for them and particularly for him having to leave his family behind. He stated that when his family were reunited, he and his wife had two more children in Australia. His evidence in relation to his now family life was that the children were all at school other than for the youngest child and that the children who were at school were doing well and were settled. He told the Tribunal that they as a family enjoyed going to the park, visiting relatives and friends and the children enjoyed playing with their cousins and friends. He said that he liked spending time with his children and tried to be sure he was at home on weekends to do so. He confirmed that he had supported his wife and family while they were in Iraq during their separation and since.

35.  The Applicant also confirmed that when he could he attended prayers on Fridays as often as his transport work would allow and assisted his Shia community and would help people pay their rent if they required assistance and help people to the shops and obtain groceries and other supplies if they were in need. He told the Tribunal that he got on well with the general community especially through his business and had a good relationship with the wider community in general.

36.  The Applicant confirmed that he had bought his own family home about four years ago.  

37.  He told the Tribunal in addition to the employment information in the documentation before the Tribunal that he had worked as a butcher when he first came to Australia and as a form worker in the construction industry before he suffered a hand injury and then again took up truck driving which had been his former employment in Iraq. He told the Tribunal that he has now employed three other drivers in addition to himself.

38.  The Applicant also confirmed to the Tribunal that he had officially changed his surname appearing on his Application for Review from that of the surname appearing on his Application for Citizenship in 2019. The Tribunal has sighted the official Certificate from the Queensland Registrar-General and is satisfied of the veracity of this assertion. The specific date of the Certificate has been purposely not cited in this decision so as to maintain and keep secure so far as is possible, the Applicant’s identity. This document was produced after the hearing, on 1 March 2021 and the Tribunal notes the document as Exhibit 10.

39.  The Applicant was questioned by Mr Krohn about several references that he had provided to the Tribunal from third parties which attested to the deponents’ knowledge of the Applicant and his general nature and character.

40.  The statutory declarations all referred to the deponent’s knowledge of the Applicant’s traffic offence and that each of them considered the offence to be out of character for the Applicant and a one-off event.

41.  The declarants referred to below have been de-identified to protect the privacy of the Applicant. The declarants to the Sworn Declarations and the dates of their declarations are:

a.Mr AK – Declaration sworn 6 May 2020[21]

b.Mr MS – Declaration sworn 6 May 2020[22]

c.Ms LAT – 6 May 2020[23]

d.Mr JAT – 6 May 2020[24]

[21] Exhibit 6, Statement of AK.

[22] Exhibit 7, Statement of MS.

[23] Exhibit 8, Statement of LAT.

[24] Exhibit 9, Statement of JAT.

42.  The Applicant’s counsel asked the Applicant how he knew each of the deponents of the declarations referred to above. He stated that he had known Mr AK in Iraq, that he had met Mr MS in Iraq and in the community. He knew Ms LAT and that he had met both her and Mr JAT in Australia and not Iraq.

43.  The Applicant when asked by his counsel about the offence admitted committing the offence to the Tribunal and agreed that he had pleaded guilty and paid the fine of $2000.00.

44.  The Applicant also confirmed to the Tribunal that as regards his compliance with the driving requirements he has become very aware since the incident in question about the importance of ensuring that he keeps a very careful watch on his driving hours and rest periods to stay within the regulations. The Applicant stated to the Tribunal that the event in contention was a mistake that he had made. He has also discussed and spoken with other drivers about his experience.    

45.  The Applicant’s evidence was that he respected the laws of Australia as they protected all and that it was very different from the situation in Iraq. He stated that his main hope was that he could become an Australian citizen and so his family could continue to live in Australia also as Australian citizens.

46.  The Applicant was cross-examined under affirmation by Mr Kyranis for the Respondent. He told the Tribunal that he had been issued with a heavy vehicle licence in about 2014 by the Queensland Department of Transport and does hold Heavy Rigid and Multi Combination heavy Vehicle licences.

47.  The Applicant confirmed to the Tribunal that in order to gain his licences he had to pass a practical test and a theoretical test. He confirmed also that in relation to driving hours there is instruction in the material provided to licence application students about not driving past 12 hours in the 24-hour period and that you have to keep a log book to record the hours driven and the rest periods taken.

48.  The Applicant confirmed that the timing for the log-book is run in fifteen-minute intervals and that the trip, the subject of the charge was from Melbourne to Mt Gambier. He confirmed that the calculation he had made was made as a result of a mistake on his part and freely admitted that he had been careless in failing to follow the Regulations as they applied to his recorded hours at that time.

49.  Mr Kyranis asked the Applicant whether he agreed that there was no place in the Australian community for people driving trucks over the number of hours allowed, to which the Applicant responded ‘Yes, in the books it should be 12 hours.’[25]

[25] Transcript of Proceedings, RE KJZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Senior Member P J Clauson AM, 25 February 2021), page 41, line 29.

50.  The Applicant was re-examined by his counsel on this point and told the tribunal that he ‘can create it quite properly, and I consult with others if I’m confused with any of the figures.’[26] The Applicant confirmed that the others with whom he conferred for guidance were his friend and his brother both of whom were truck drivers themselves. 

CONSIDERATION

[26] Ibid 42, lines 26 – 27.

Good Character and Assessing it

51.  The Act is silent on what constitutes ‘Good Character’ and thus it is necessary to look to the common meaning of the term and the way in which in matters such as this that it is defined by courts, tribunals and stipulated policy.

52.  Guidance as to what constitutes ‘good character’ may be found in the matter of Irving and The Minister for Immigration, Local Government and Ethnic Affairs (1966) 68 FCR 422 at 431 – 432) Where, in that matter the term ‘Good Character’ was described as meaning:

“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 whist the latter is a review of 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.”

53.  Following the repeal on the 27 November 2020 of the Citizenship Policy, CPI15[27] now provides the necessary guidance framework as to how character is to be assessed for the purposes of the Act.

[27] Exhibit 1, T Documents, T15, pages 162 – 183.

54.  The Framework states that the ‘good character’ of a person relates to their ‘enduring moral qualities’, and that a person possessing that quality would be likely to uphold the laws of Australia and the other commitments they may make when pledging their allegiance to Australia should they become a citizen.

55.  Further, the framework for assessing ‘good character’ of an Applicant for Australian Citizenship states that:

Decision Makers must:

a.    consider any character issues that arise on the facts of the case;

b.    consider all relevant information;

c.     guard against bias;

d.    be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

e.    be mindful that a person who may not have been of good character can become a person of good character;

f.   continue to assess the issues until satisfied, on a reasonable basis, having regard to the available evidence that an applicant is, or is not, of good character.

56.  The Instruction also states that in most cases:

“it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.”

57. The CPI 15 further stipulates that the instruction should not be applied rigidly or inflexibly and that where a decision maker has a discretionary power conferred in the Act, it is to be exercised taking into account the facts of the case and although the instruction provides guidance to a decision maker, it cannot fetter their legislated statutory discretion.

58.  The Tribunal in considering whether the Applicant is of good character, has viewed the evidence provided both in document and oral form by the Applicant in support of his contention that he is indeed of good character, through the lens of the foregoing guidelines.

59.  The Tribunal in the matter here before it has had to consider what may be called the Applicant’s ‘climate of existence’ since before he came to Australia and whilst he has been enjoying the benefits of his Australian protection visa, to come to an understanding of his ‘enduring moral qualities.’ When he was living in Iraq, he assisted the American forces with logistical support driving supplies for them as required. This would have been no doubt a dangerous and hazardous undertaking at the time. It proved to be so with him later becoming a target for the radical militias mentioned earlier, causing him to flee his homeland for safety.

60.  It was agreed between himself and his wife that the logical approach would be for him to depart from Iraq and seek shelter in a safe haven country and support his wife and family remotely until he was in a situation whereby, he could bring them out of Iraq and reunite the family. He came to Australia and it is accepted that the family made the journey to here where they have made a life for themselves.

61.  The Applicant has worked hard since he arrived in this country including as a butcher, a labourer, and employed truck driver, later being self-employed in that latter occupation. He has purchased a house for his wife and five children and so far as his evidence to the Tribunal indicates they are happy, well settled, and enjoying the safety offered by the constitutional structure and laws of this country.

62.  The Applicant maintained the moral strength to continue to maintain his family whilst they were in different countries and he deposed to the great strain that had imposed upon him. However, it is clear to the Tribunal that he was resolute in his obligation to his wife and children to keep them sustained to the best of his ability whilst that situation prevailed.

63.  The Applicant has lived in Australia now for approximately ten years during which he has taken advantage of the democratic freedoms and economic opportunities afforded him and has prospered. He has obeyed the laws of the land, lived within the law, paid his taxes as required and generally behaved as the community within Australia would expect their fellow citizens so to do.

64.  He has indicated in his evidence to the Tribunal that should he be granted the privilege of becoming an Australian citizen, he would continue to live a law abiding, respectful existence in Australian society and would pledge to continue to meet those values expected of Australian citizens. These values are set out in schedule 1 of the Act as referred to by his counsel in submissions, namely, loyalty to Australia and its Peoples, sharing the democratic beliefs of Australia, respecting the rights and liberties existing here in Australia and upholding and obeying the law.

65.  The application and granting of Australian citizenship is a matter not lightly undertaken by either the Applicant for citizenship nor by the government which bestows it on behalf of the collective citizenry of the nation. Hence, the consideration and assessment of an Applicant’s character is of major significance in the process of deciding who is a suitable person to be inducted into that status.

66.  The importance of the consideration of a person’s character who is an applicant for Australian citizenship has been enunciated by Deputy President Breen in the matter of Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 where the Deputy President stated:

“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.”

67.  Further reinforcement for the concept of how consideration of character is intrinsically bound into the process of evaluating the suitability of an Applicant for a grant of citizenship is demonstrated by the observation of Deputy President Forgie in the matter of Zheng and Minister for Immigration and Citizenship [2011] AATA 304 where, after considering the wording of the Preamble to the Act the Deputy President made the observation that:

“In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.”

68.  The expectations of the Australian community are reinforced yet further in the Australian values statement[28] which requires that applicants to conform that they will respect the values of Australian society and obey the laws of Australia, and the Values statement requires applicants for provisional or permanent visas when they sign to acknowledge that they enjoy reciprocal rights and responsibilities and that these responsibilities include obeying Australian laws. The values statement is a clear enunciation of community expectations.

[28] Department of Home Affairs, Australian Values, (30 October 2020) <

69. The Applicant in this matter has, since his arrival in Australia, exhibited all of the desirable qualities and behaviours outlined in, and expected of him in the CPI 15 at clause 4.4.[29] In particular but not limited to, being respectful of the laws of Australia, being honest and financially responsible by paying his tax as he is required so to do, has not practised fraud against the Commonwealth or been involved in criminal activities of any sort, except a seemingly isolated heavy vehicle conviction. He has not been violent to others, involved in the illegal drug trade or unlawful sexual activities, nor has he been involved in reckless behaviour such as drink driving, excessive speeding or unlicensed driving of motor vehicles. He has however, relevantly, been convicted on one occasion of an offence associated with the conduct of his employment, namely, driving his heavy vehicle for more than 12 hours in a 24-hour period under the HVLNA.

[29] Exhibit 1, T Documents, T15, pages 162 – 183.

70.  The Tribunal agrees with the Respondent’s contention that this is an offence of a very serious nature as it is contrary to the HVLNA legislation which was specifically developed and adopted uniformly by the Commonwealth and the States to combat the dangerous operations of heavy vehicles on Australian roads. The fact that such legislation has been universally agreed upon and passed by each Australian jurisdiction is a clear indicator of the gravity with which heavy vehicle road safety is viewed by the nation’s democratically elected representative bodies. It is the Applicant’s conviction for an offence against this legislation that has caused the Delegate to refuse his application for citizenship on character grounds.

71.  It is to be noted that the Applicant filled out his Application for Citizenship answering truthfully that he had no convictions standing against his record at that time. However, unfortunately for the Applicant in 2018, he had underestimated the hours he had been driving in the relevant 24-hour period and was apprehended for doing so. He subsequently pleaded guilty and fined the sum of $2000.00 in the Mt Gambier Magistrates Court.

72. The evidence to the Tribunal was that he had made a mistake in doing this and it is noted that he had filled out his log book (as of course he was required by law to do) but it is clear that on his version of the facts he had not noticed that he had driven beyond the allowed hours by a margin of two and a half (2.5) hours. When cross examined by the Respondent’s representative, he was forthright in his response that he agreed that compliance with the HVNLA was a necessary part of the job. Although the question he was asked was couched in terms such that his answer in the affirmative would actually have him agree that there was no place in the Australian community for people who drove trucks over the number of allowed hours. The Tribunal does not accept that such a proposition is entirely valid on its face given the necessity for the application of the policy set forth in the CPI 15 not to be applied rigidly or inflexibly but considered fairly and without bias.

73.  The offence to which he pleaded guilty was of the highest designated category under the legislation for offences of that nature namely, a ‘critical risk breach’ the maximum penalty for which was a fine of $15,000.00.[30] The Applicant did not deny his guilt. He instructed lawyers to appear on his behalf and enter a plea of ‘guilty’. Since that time there is no evidence before this Tribunal that the Applicant has committed any other like offence or in fact any offence of any other nature against the laws of Australia. He has told this Tribunal that following this incident he has now heightened his vigilance in relation to the hours that he drives and if he has any uncertainties regarding how to record hours, he calls upon friends for advice. The Tribunal acknowledges that there would be little more that a person in his calling could do to improve the recording of the hours that they drive. It is evident that he has taken a very serious approach to the predicament that his actions caused and is remorseful and regretful of them.

[30]Heavy Vehicle National Law (South Australia) Act 2013, section222(4), 250.

74.  The Tribunal considers that the Magistrate took a view of the Applicant at the court proceeding that he was not a repeat offender and had incurred only this one blemish against him and had pleaded guilty to indicate his acceptance of his wrongdoing, such that the fine of $2000.00 was imposed, being at the lower end of the scale for such an offence. However, the Magistrate felt that a conviction had to be recorded as the offence was a serious, regulatory offence against the national legislation.

75.  The Applicant’s counsel drew the Tribunal’s attention to the four character references provided in the material before the Tribunal from persons acquainted with the Applicant, referenced at paragraph 41(a)-(d) above.

76.  All four of the deponents the Statutory Declarations stated that they had known the Applicant personally for periods ranging from 5 to 8 years and had attested variously to the facts that the Applicant was a hardworking person who had assisted the Iraqi Shia community in various voluntary and charitable ways, had been an essential worker during the COVID-19 Crisis delivering essential goods throughout the broader community and had been honest and trustworthy and law abiding throughout the time they had known him. Each attested to their knowledge of his traffic offence, the cause of the rejection by the delegate of his application for citizenship, and believed it to be a complete “one off” incident and effectively an action out of character for the Applicant.

77.  The Tribunal approaches the provision of such character references with caution as it is a well-known tendency for referees to be loath to write a bad reference for the person who seeks it. However, notwithstanding the Tribunal’s tempered view of the references, in the Applicant’s case here in this matter the references do tend to confirm in general terms that the Applicant is well regarded in the community and that he has obeyed the law but for the one-off incident for which he was charged and pleaded guilty to. They do tend to corroborate the Applicant’s generally flawless life up to the commission of the driving offence and in the period since. The Tribunal did note the discrepancies between the Applicant’s evidence as to the length of time he had known both Mr KS and Mr MS. The Applicant when under examination in chief had stated that he had known both of these parties from Iraq however, their statutory declarations indicate that they had known the Applicant for 7 years and 5 years respectively. The Tribunal has concluded that in relation to these anomalies they do not represent any sinister aspect relating to credibility because the Applicant told the Tribunal that he had not met Mr JAT in Iraq but in Australia and that Ms LAT was married to a relative, and therefore, it is most likely that either the Applicant’s memory or the other parties’ memories may have been somewhat faded in the recall of their association. Needless to say, for the purpose of the Tribunal’s consideration, the deponents have known the Applicant for a not insignificant period including in part, a period of time prior to the Applicant’s committing the driving offence.

78.  The Tribunal has considered in addition to those relevant matters above discussed, the question of effluxion of time since the commission of the Applicant’s driving offence. It was agitated by the Respondent that, because the offence had occurred in June 2018 sufficient time had not elapsed for the Applicant to have exhibited suitable progress towards rehabilitation and expressions of remorse following his guilty plea in 2019. It must be noted that as at the date of hearing nearly 3 years had elapsed since the offence and that the Applicant had resumed and maintained his good record and had not committed any offences of any other nature. In cases such as the Applicant’s it is appropriate to consider all of his conduct since he arrived in this country up to the time of the commission of the offence and his conduct post the offence and any subsequent acceptance and responsibility for his actions. The Tribunal should in this context ask itself whether, in all the circumstances, if the Applicant has diverged in a marked manner from his course of general good behaviour to such extent that it serves to render him to be not of good character. The Tribunal in considering this question finds that it is unable to so conclude. The Applicant acknowledged his wrongdoing, he pleaded guilty as he knew he should and has been regretful and cautious since his conviction. The Tribunal considers that the Applicant has continued the lawful and respectful behaviour such as he had adopted for many years before the commission of the offence. There has been no repetitive offending of any nature whatsoever on the part of the Applicant.

79. The Tribunal is reminded in the CPI 15 framework for assessing ‘good character’, decision makers must ‘be mindful that the requirement to be of ‘good character’ does not mean that a person must be ‘of perfect character’.[31] It therefore stands to reason that this exhortation further reinforces and reflects the extended view that a person who commits an offence should not be automatically assumed to be of bad character and allows the consideration that a person who may have been of bad character can become a person of good character. The Tribunal in looking at the Applicant’s ‘Climate of Existence’ since he came to Australia can conclude after considering all of the foregoing evidence and applying the considerations provided in the CPI 15 that the Applicant has in fact, been a person of good character and continued to be so notwithstanding the offence to which he pleaded guilty.

[31] Exhibit 1, T Documents, PT15, page 165.

DECISION

80.  The correct and preferable decision in this matter is therefore that the Applicant is a person of good character and the matter is remitted to the Minister for reconsideration for the above reasons.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

..................................[SGD]......................................

Associate

Dated: 30 July 2021

Date(s) of hearing and further submissions:	25 February 2021 1 March 2021
Counsel for the Applicant:	Mr A Krohn
Solicitor for the Applicant:	Mr J Bayliss
Solicitors for the Respondent:	Mr J Kyranis