Mohammed Shahqadam Nejat and Minister for Immigration and Border Protection
[2014] AATA 453
[2014] AATA 453
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0666
Re
Mohammed Shahqadam Nejat
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 7 July 2014 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
CITIZENSHIP — Application for Australian citizenship — Whether the Applicant is of “good character” — Applicant’s criminal history — Lack of evidence of good conduct — weight to be given to character references — Decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(2)(h)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 9
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions – 1 July 2013
REASONS FOR DECISION
Senior Member A K Britton
7 July 2014
Shahqadam Nejat is 24 years of age and was born in Afghanistan. He migrated to Australia in 2004 and holds a permanent resident visa. A delegate of the Minister for Immigration and Border Protection decided not to grant Mr Nejat’s application for Australian citizenship on the grounds that he was not was of “good character” — one of the statutory criteria for Australian citizenship — because of his history of driving offences. Mr Nejat has asked the Tribunal to reconsider the matter. For reasons I will explain, I have decided the decision should be affirmed.
STATUTORY FRAMEWORK
A person is eligible to become an Australian citizen if, among other things the Minister, or the Tribunal acting as substitute decision-maker, “is satisfied that the [citizenship applicant] is of good character at the time of the Minister’s decision on the application” (s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act)).
The term “good character” is not defined in the Act. The Tribunal must therefore be guided by the ordinary meaning of the words as interpreted by the courts.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving) the Full Federal Court considered the meaning of the expression “good character” for the purposes of the migration legislation. Davies J (with whose reasons R D Nicholson J agreed) said (at p 425):
... 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.
In the same decision, Lee J said (at pp 431-432):
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion ... 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 [citations omitted].
Australian Citizenship Instructions
The Australian Citizenship Instructions (the Instructions) were issued by the Minister to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. In exercising its review function the Tribunal must take the Instructions into account unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).
The Instructions (at 10.5.2) list a number of factors to be taken into account in assessing whether a citizenship applicant is of good character. These include:
Whether the citizenship applicant has committed any offences and if so, whether they disclosed that in their citizenship application
The number and frequency of offences
Whether the offence is “serious” or “minor”
Whether there were any victims of the offence
Whether the offence was pre-meditated
The length of any sentenceimposed
Any ongoing obligations in relation to the sentence received, such as a good behaviour bond
The Instructions go on to list “mitigating factors” that must also be taken into account. These include:
Mitigating factors-could the applicant be of good character anyway
…
·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? …
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond? …
·Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws? ...
·What was the applicant’s age at the time the offence was committed? If the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character.
·Were there any extenuating circumstances relating to the offence? …
·Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character. Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship. …
CRIMINAL HISTORY
On 22 August 2007 Mr Nejat was charged with the offence of “drive while licence suspended”. Three weeks earlier his licence had been suspended because of loss of demerit points. That charge was subsequently dismissed by the Local Court of NSW.
A month later Mr Nejat was again charged with the offence of “drive while licence suspended”. He was convicted and disqualified from driving for 12 months. In addition the court made orders under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that Mr Nejat enter into a good behaviour bond for a period of 12 months.
On 27 June 2009 Mr Nejat was charged with the offence of “drive with middle range prescribed concentration of alcohol” and his licence was suspended. An entry in the Computerised Operational Policing System (COPS) — a database used by NSW police to record information relevant to incidents that require police action — records that the police observed the car driven by Mr Nejat stopping 50 metres before a random breath testing unit (RTB unit) and Mr Nejat and the passenger getting out of, and walking to its rear. In these proceedings Mr Nejat claimed he could not see the RBT unit when he stopped the car and denied doing so to evade arrest. He claimed the reason he drove on this occasion was because his friend, the passenger, was reluctant to drive because he had not driven in city conditions.
Three weeks later Mr Nejat was again charged with the offence of “driving while licence suspended”.
In October 2009 Mr Nejat was convicted of the offences of “drive with middle range prescribed concentration of alcohol” and “drive while licence suspended”. The sentencing court ordered that Mr Nejat enter into a good behaviour bond for a period of 18 months and suspended his licence for two years.
Disclosure of offences
In an application for Australian citizenship signed by Mr Nejat and dated 16 August 2013, Mr Nejat answered “no” to Question 29: “Have you been convicted of, or found guilty of, ANY offences … (include all traffic offences which went to court…)?”. At the end of that question, under the instruction “If you answered “yes” to any of the questions at Question 29 you must give ALL relevant details…”, was written in hand:
Drink driving suspension for two years for drink driving
When asked in these proceedings to explain this apparent discrepancy, Mr Nejat testified that his younger brother, who is more proficient in written English than he, completed the application form on his behalf. He claims that the reason he answered “no” to question 29 was because he was embarrassed to reveal his drink driving conviction to his brother.
Initially Mr Nejat testified that the hand written entry at the end of Question 29, was written by a friend whom he consulted after his brother completed the application form but before it was submitted to the Department. He said he sought the friend’s advice because he was aware that the answer given to Question 29 was untrue.
In closing submissions, Mr Nejat stated that he was mistaken and now recalled that the entry was made by an immigration officer after he volunteered that information at a meeting held after he submitted his application to the Department.
In reasons givenfor deciding to refuse Mr Nejat’s application for citizenship, the Minister’s delegate noted that Mr Nejat had written “no” to Question 29 and wrote:
On the day of your test appointment you verbally advised the Department about offence of “Driving suspension for two years drink driving”.
Mr Nejat’s claim that he volunteered that information at the test appointment, while uncontradicted, is unsupported. The records of that appointment were not produced in these proceedings. While difficult to be certain given the limited and conflicting evidence, I think that the second of the two explanations proffered by Mr Nejat is probably correct. While not expressly stated the comments made by the delegate suggest that it was not until the “test appointment” that Mr Nejat revealed the drink driving condition.
Conduct since the most recent offences
Mr Nejat claims that he did not drive during the second period his licence was suspended (8 October 2009 to 7 October 2011). He admitted to having driven on a few occasions during the first suspension. He also claims that the incident in July 2009 was the only time he had driven while under the influence of alcohol.
Mr Nejat testified that after his drink driving conviction he participated in a two-month traffic offenders program. He claims that he is remorseful and ashamed of his offending conduct.
According to Mr Nejat, he has been working at his father’s smash repair business throughout the three months prior to the hearing. He also claimed that he worked in a transport business on a casual basis but was laid off when business slowed. He claims the only work he has undertaken in the period after being laid off and commencing work with his father, was in a scrap metal yard, which as he recalled, lasted for about a month. He could not remember when he commenced, or ceased work, or the period he worked at the transport business. He thought he might have been working before his licence was suspended in July 2009. Initially he testified that that he was not working for the transport business throughout the period his licence was suspended but later stated that he did work during that period but did not perform any driving duties.
Reputation in the community
In support of his application for citizenship Mr Nejat relies on six character references.
Four were in identical terms and state that the referee has known Mr Nejat for “a few years”; was aware of his “licence suspension”; that Mr Nejat’s behaviour has changed from past mistakes; and he has matured. Mr Nejat admitted that he had not told any of the four referees about his drink driving conviction.
Mr Mohammed Lashkari, the only referee to give oral evidence in these proceedings, initially testified that he typed the reference he provided for Mr Nejat. He later stated that the reference had been prepared by one of the other referees, and he signed the reference after reading its contents. He said the other two referees were also given and asked to sign a prepared statement.
The president of the Hazara Women of Australia (the president), provided a letter in support of Mr Nejat’s application dated 12 November 2013. Unlike those discussed above, that letter was detailed and acknowledged Mr Nejat’s drink driving conviction. The president stated that Mr Nejat:
had successfully settled in Australia and is making a valuable contribution as a new resident
is working full-time
had worked as volunteer with the Hazara Women of Australia and assisted with educating men in the community about family relationships and domestic violence
was dependable honest and courteous
had acted as a positive role model and mentor for many new refugees
had received the Association’s “best volunteer award” in early 2012.
When questioned about his involvement with the Association, Mr Nejat stated that his only involvement was when he twice assisted setting up venues for Association events. When questioned about the president’s comments about “educating men in the community” he stated that he had introduced a number of women to the Association and later said that he has also introduced families to the Association. He said he had no knowledge of the 2012 volunteer award. He admitted that he was not working full-time when the reference was prepared by the president.
In the course of the hearing a number of unsuccessful attempts were made to contact the president by phone to seek clarification about the apparent discrepancy between her claims and those made by Mr Nejat. Mr Nejat failed to notify the president that the Minister’s lawyers had requested that she be available for questioning at the hearing.
In a statutory declaration dated 15 December 2013, Mr Abdul Alizada stated that he had known Mr Nejat for seven years and he was active in the community. He wrote that Mr Nejat was an “honest, hardworking and lawful person”. Mr Alizada made no reference to Mr Nejat’s convictions.
CONCLUSION
The Minister contends that Mr Nejat has failed to provide any persuasive evidence that since the suspension of his licence was lifted in October 2011, he has rehabilitated, reformed or re-established his good character. Mr Nejat contends that over five years have now passed since his most recent offence, he has demonstrated remorse, and consistent with the opinion of his six character referees, he should now be regarded as a person of good character.
Mr Nejat’s convictions give rise to the presumption that he is not of good character. Whether that presumption has been rebutted requires consideration of all the available evidence including the nature and frequency of the offences, the penalty or sentence imposed, the passage of time since the offences were committed, evidence of remorse and rehabilitation undertaken, Mr Nejat’s conduct since the offences were committed and the opinions of persons of good character who are able to comment on his reputation.
On three separate occasions Mr Nejat was charged with “drive while licence suspended”. Two of these charges led to convictions. In addition he has been convicted with “drive with middle range prescribed concentration of alcohol”. As reflected in the penalties imposed, none of the offences for which Mr Nejat has been convicted fall at the high end of the scale in terms of seriousness. Of those offences, the drink driving offence is objectively the most serious. While no victims were involved, self-evidently conduct of this type places the community at real risk.
There is no evidence to suggest that Mr Nejat has reoffended since committing his most recent offence (20 July 2009), or, breached the conditions of his bond to the court to be of good behaviour. While troubling that on three separate occasions, Mr Nejat has been found by a court to have contravened the law, I do not agree with the contention put for the Minister that his conduct is suggestive of a propensity to engage in criminal conduct, or a propensity to commit driving-related offences. In reaching that conclusion I note that over five years have elapsed since Mr Nejat’s most recent offence and his relative youth at the time of the offending.
The following reveals that Mr Nejat has failed to provide reliable evidence that he has re-established his good character.
First, there is the troubling evidence about the false information contained in the application form for citizenship submitted to the Department. Even if as claimed, at the interview with the immigration officer Mr Nejat volunteered information about his drink driving convictions, the evidence indicates that he was prepared to sign, and submit to the Department, an official declaration containing information he knew to be false. That conduct reflects poorly on his character.
Second, there is little reliable evidence to support Mr Nejat’s claim that he is a person of good character. It is difficult, if not impossible, to discern from the limited information provided by Mr Nejat, what he has been doing in the five years since he committed his most recent offence. The evidence he gave about his employment history lacked particulars and apart from his claim of currently undertaking work with his father, is entirely unsupported. Similarly he gave scant information about any community, family or other activities in which he has been involved.
Third, the character references Mr Nejat can be given little weight. I could not be satisfied that any of the four referees who provided character references in duplicate form, made a considered and independent evaluation of Mr Nejat’s character. None provided any information to explain the basis for their opinion that Mr Nejat is of good character and had matured. Nor is it possible to say whether they would they continue to hold this opinion had they been aware of Mr Nejat’s drink driving conviction, which he admitted he had failed to disclose to these referees.
Nor, given the conflicts between the president’s apparent understanding of Mr Nejat’s history and the history he gave in these proceedings, am I able to give weight to the reference she provided.
The reference provided by Mr Alizada suffers from many of the same shortcomings and notably makes no reference to Mr Nejat’s criminal history.
I have considerable sympathy for Mr Nejat. His first language is not English. It was apparent from the manner he presented his case that he found the task of presenting and gathering evidence difficult. Nonetheless an assessment of good character must be made on the available evidence.
While a blemish on Mr Nejat’s reputation, his convictions in my opinion are not symptomatic of a general and ineradicable defect of character, especially given his relative youth at the time they were committed and the passage of time since the last offence. However, where as in this case a person with a criminal history asserts they have reformed, positive evidence to support that claim is generally required. The absence of evidence of further offending while relevant, of itself does not establish good character. Absent reliable evidence to support Mr Nejat’s claim of having reformed, together with the evidence that he provided the Department with false information, I am unable to be satisfied that Mr Nejat is now of good character. The decision under review must therefore be affirmed.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ...................[SGD].....................................................
Associate
Dated 7 July 2014
Date(s) of hearing 27 June 2014 Applicant In person Solicitors for the Joined Party Clayton Utz
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