Mahmood and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 2033

Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033 (2 November 2017)

Division:GENERAL DIVISION

File Number:           2015/5804

Re:Seerwan Tawfeeq Mahmood

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:2 November 2017

Place:Sydney

The decision of the delegate, dated 7 October 2015 made under section 24(1) of the Australian Citizenship Act 2007 (Cth) to refuse the applicant’s application for Australian Citizenship, is affirmed.

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

Senior Member M J McGrowdie

CATCHWORDS

CITIZENSHIP – citizenship by conferral – refusal of citizenship application – good character requirement - whether applicant of good character – traffic offences – whether applicant’s behaviour is consistent with Australian community values - decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

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

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

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member M J McGrowdie

2 November 2017

INTRODUCTION

1. The applicant has applied for Australian Citizenship.  He is currently 35 years of age and came to Australia from Iraq in 2010.  Mr Mahmood is married and has children.  His wife and children are Australian citizens.  Mr Mahmood has worked as a plasterer in Australia but it appears he had not, at the time of the hearing, been in employment for some time.  He lodged his application for citizenship on 13 April 2015 and, on 7 October 2015, a delegate of the Minister for Immigration and Border Protection refused the application under section 24(1) of the Australian Citizenship Act 2007 (the Act) on the basis that the delegate was not satisfied that the applicant met the good character requirement pursuant to section 21(2)(h) of the Act.  Mr Mahmood applied to the Tribunal to review the delegate’s decision.

   LEGISLATION

2. One of the requirements for citizenship informed by section 21(2)(h) of the Act, is that the person be of good character.  Evidence is provided in the guidelines contained in the Citizenship Policy (the Policy) which came into effect in June 2016.  Before that the Australian Citizenship Instructions applied in a similar way. The purpose of chapter 11 of the Policy, entitled ‘Character’ is to “provide guidance on the administration of the ‘good character’ provisions under the [Citizenship] Act and to define, for administrative purposes, the meaning of ‘good character’”. Chapter 11 of the Policy goes on to provide, in part:

   ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for ctizienship… 

3. As stated by Deputy President Forgie at [120] in Zheng v Minister for Immigration and Citizenship (2011) AATA 304:

   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. Keeping out of trouble is one way in which a person may show that he or she is of good character.

4. Included in the Policy, under the heading ‘Characteristics of good character’, amongst other characteristics, is a reference to an example of a person of good character, being a person who would not cause harm to others by negligent and drink driving, excessive speeding or driving without license or insurance.

5. As set out in the Policy under the heading ‘Weighing up the character decision’, “a decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time”.

6. Additionally, the Policy states that, in weighing up the various factors, decision makers should ask themselves:

   ·would a person of good character have behaved the way the applicant did;

   ·what is there to demonstrate the applicant has upheld and obeyed the law;

   ·has the applicant behaved in accordance with Australia’s community standards;

   ·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.

   FACTS

7. In the current matter it was shown at the hearing that the applicant had a string of traffic offences.  These are set out in the applicant’s NSW Driving Record found at T14 of the T documents filed in this matter.  They include, among other offences, seven speeding offences, using a mobile phone, not obey a stop sign, turning improperly, not wearing a seat belt and disobey traffic lights.  The applicant’s license was suspended from 8 September 2015 to 7 January 2016 but was not implemented and, instead, the Applicant was placed on a good behaviour bond from 9 September 2015 to 7 September 2016.

8. Twelve traffic offences were recorded from 14 November 2011 to 27 July 2015.  The applicant has only been on a full license in Australia since October 2011.  During the period from 14 April 2012 to 14 May 2014, the applicant was sent three demerit point courtesy letters and three demerit warning letters.

9. While each individual matter might be excused, the repeated nature and the cumulative effect is such as to indicate a disrespect and/or disregard to that aspect of the law which all have to do with the public users of the road.

10. Further, on 31 January 2014, the applicant was found guilty of being in control of a motor vehicle whilst being over the prescribed alcohol limit (mid-range).  The applicant did not have a conviction recorded against him.  The offence was committed on 3 October 2013 in unusual circumstances.  The applicant parked his car illegally before attending a dinner at a restaurant.  After getting out of the car he went to lock it and the key broke in the lock.  After the dinner, the applicant, who had been drinking, returned to the car.  Unable to start the car he pushed it to get it away from where it was illegally parked.  He was partly in and partly out of the vehicle.  The steering wheel was locked. In any event the car, which was on a slope, came into contact with another parked vehicle.  This was observed and Police called.  In respect of that incident the applicant was suspended from driving from 3 October 2013 to 31 January 2014.

    CONSIDERATION

11. Since October 2010, leaving aside the periods of suspension, there have been many driving offences. These offences occurred before and after the applicant was dealt with by the Court on 31 January 2014. As said by the Tribunal in Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7], laws to protect users of the road go to the essential safety of the community and that behaviour of this kind is not consistent with Australian community values. Whilst the community may be tolerant to some level, it is a matter of weighing up such tolerance against an expectation that the laws of Australia are to be obeyed. The applicant could not be said to have behaved in a way that is in accordance with Australia’s community standards, given his repeated offending. Such offending is inconsistent with a person who would be regarded as a person of ‘good character’ in terms of the Policy.

12. It has only been since 7 September 2016 that the applicant would not have been on a good behaviour bond as earlier referred to. Given the relatively lengthy period of the applicant’s offending, a greater appearance of observance would have to be demonstrated by the applicant to assure the Tribunal that he is upholding and obeying the law. Observance of the rules of the road can be seen as an ordinary everyday testing of a person’s observance of the law. It would be open to the applicant to apply in the future for citizenship by lodging a fresh application.

13. A further matter that arose during the hearing was that the applicant did not disclose being found guilty at Liverpool Local Court on 31 January 2014 in his application for citizenship.  He explained this failure on the basis that the matter did not proceed to a conviction so that it in his understanding that there was no offence.  The applicant’s English language skills are not particularly great.  I can accept that he did not fully understand the question but it is another matter, while although not decisive, that does not assist the applicant.

14. Apart from the matters referred to earlier there does not appear to be any other good character concerns relating to the applicant.  I have had regard to the various character references supplied and whilst generally accepting them, I do not think that they overcome the effect of the applicant’s recent record.

15. I have also taken into consideration that the applicant has completed a Traffic Offenders Rehabilitation Programme. This was completed on 19 March 2016.  Whilst this is commendable I believe that more time is required to see if this has been of lasting benefit.

    CONCLUSION

16. In conclusion the decision of the delegate, dated 7 October 2015 made under section 24(1) of the Australian Citizenship Act 2007 (Cth) to refuse the applicant’s application for Australian Citizenship, is affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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

Associate

Dated: 2 November 2017

Date of hearing:	22 November 2016
Date final submissions received:	30 November 2016
Solicitors for the Applicant:	Mr J Fasha, Lex Fori Lawyers
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore