Mohammed v Minister for Immigration and Border Protection

[2018] AATA 687

Mohamad and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 687 (29 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4881

Re:Ayman Mohamad

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:29 March 2018

Place:Melbourne

The reviewable decision that the Applicant does not satisfy section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is affirmed.

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

Senior Member D. J. Morris

CITIZENSHIP – application for citizenship by conferral – good character requirement – driving offences disclosed – other driving offences not disclosed – false declaration – factors to take into account – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth), ss 21, 50

Cases

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 643

Secondary Materials

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

REASONS FOR DECISION

Senior Member D. J. Morris

29 March 2018

1. Mr Ayman Mohamad, the Applicant in this matter, was born in Lebanon in 1986.  He is a citizen of that country.  He first arrived in Australia on 23 February 2007 on a temporary Spouse visa (subclass 309) and was subsequently granted a permanent Spouse visa (subclass 100).  On 13 October 2015 he was granted a Resident Return visa (subclass 155), which he currently holds.

2. On 5 April 2017, Mr Mohamad applied for Australian Citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (‘the Act’).  On 27 July 2017, a delegate of the Minister for Immigration and Border Protection refused Mr Mohamad’s application because the delegate was not satisfied that the Applicant was of ‘good character’ as required by section 21(2)(h) of the Act.

3. On 11 August 2017, the Applicant applied for a review of the delegate’s decision by this Tribunal. The Tribunal had before it documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-documents), relating to the Respondent’s consideration of Mr Mohamad’s application for Australian Citizenship by conferral.

4. The legislative framework for acquisition and conferral of Australian Citizenship is within the Act and regulations made under the Act.  Specifically, subdivision B of the Act deals with Australian Citizenship by conferral.  It was accepted by the Respondent that Mr Mohamad satisfied sections 21(2)(a), (b), (c) and (2A) of the Act in relation to his application; he was aged 18 or over at the time of his application and a permanent resident, he satisfied the general residence requirement; and he had successfully completed a citizenship test approved by the Minister.

5. The delegate found that Mr Mohamad did not satisfy section 21(2)(h) of the Act which requires the Minister to be satisfied that the person is of good character at the time of the Minister’s decision on the application.  As a consequence, the delegate did not assess whether the Applicant satisfied section 21(2)(g), relating to whether a person is likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if his or her application is approved. 

6. The Tribunal also noted the document titled Citizenship Policy, extracts of which were included in the T-documents, which provides guidance to Departmental officers making decisions as delegates of the Minister.  Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 643 concluded that decision-makers undertaking merits review should generally apply ministerial policy unless the policy was unlawful or there were cogent reasons to the contrary. The Tribunal therefore takes account of this document in this consideration.

7. Chapter 11 of Citizenship Policy (T16, p 146) provides particular guidance to decision-makers on factors that may be taken into consideration when assessing whether a person is of good character.  Officers are directed to a decision of the Full Court of the Federal Court Australia, Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 where, the Court held, at [431]:

   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. (See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-1129, Lord Denning at 1138.) 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, (see: In Re Davis [1947] HCA 53; (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

8. The Tribunal had before it a Statement of Facts, Issues and Contentions of the Respondent dated 12 December 2017 which contended that the issue before the Tribunal is whether the Applicant is of good character for the purpose of becoming an Australian Citizen.

9. Noting the material from the Respondent before me that would, on the face of it, show that Mr Mohamad did satisfy the other requirements of citizenship for which he was assessed at the time he made his citizenship application, the Tribunal accepts this contention of the Respondent and considered this matter on the basis of whether Mr Mohamad is of good character.  In making this assessment, the Tribunal notes that the assessment is a contemporary exercise.  A person may not have been of good character at the time a delegate makes a decision in relation to the person but that assessment may change in the light of additional or new information.  If the Tribunal is satisfied that the Applicant is of good character, the matter would be remitted to the Minister with a decision that the provisions of section 21(2)(h) are satisfied, for consideration of section 21(2)(g) of the Act and any other legislative requirements.

10. The hearing was held on 19 January 2018.  The Applicant was self-represented, gave evidence and was cross-examined.  The Respondent was represented by Ms Ashleigh Allan, of Sparke Helmore Lawyers.  The Tribunal was assisted by an interpreter in the Arabic language.  The Tribunal also received into evidence a volume of summonsed material (Exhibit R1), produced under summons from Victoria Police and VicRoads Licence and Registration Service. The Applicant tendered a written character reference dated 20 October 2017 signed by Carla Primiano, a Victorian Department of Justice Order Completion Report dated 18 October 2017, a personal reference from Mr Mustafa El-Darwich dated 16 January 2018, and one other undated personal reference from someone only known to the Tribunal as ‘Kristy’.  This material was also taken into account.

    The Respondent’s opening submission

11. Ms Allan referred the Tribunal to the Respondent’s written submissions and noted that in Mr Mohamad’s application form in answering the following Question 39(a):

    Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?

    the Applicant ticked the box marked “Yes”.  He then wrote:

    This matter is not related to a criminal conviction, but it was a twenty four months of community correction order without conviction and for the same period I was suspended from driving in the State of Victoria.  However, Broadmeadows Magistrate Court confirmed that my Order dated 30^th August 2015, has been officially discharged and satisfactorily completed.

12. On 15 June 2017, the Respondent wrote to Mr Mohamad (T6) informing him that the Respondent had become aware of adverse information that may lead to a decision to refuse his application to become an Australian Citizen and inviting him to comment on the information.  The letter listed three disclosable court outcomes relating to the Applicant: 

Court and date	Offence	Court Result
Broadmeadows Magistrates Courts – 24 Feb 2015	Contravene Community Correction Order	Proven
Broadmeadows Magistrates Court – 24 Feb 2015	Breach Re 30/08/2013 Careless Driving of a Motor Vehicle Fail to Give Name and Address to Injured Failed to Render Assistance after Accident Fail to Stop Vehicle after an Accident	Original order has been varied: Without conviction Community Correction Order for 24 Months. Unpaid Community Work Perform 450 hours of community work.  This condition start on 30/08/2013 and goes for 24 months.
Broadmeadows Magistrates Court – 30 Aug 2013	Careless Driving of a Motor Vehicle Fail to Give Name and Address to Injured Failed to Render Assistance after Accident Fail to Stop Vehicle after an Accident	ON EACH CHARGE: Without Conviction a Community Corrections Order for 18 MONTHS UNPAID COMMUNITY WORK PERFORM 450 hours of community work. This condition starts on 30/08/2013 and goes for 18 months. Licence cancelled and disqualified for 2 years.

1. On 6 July 2017 Mr Mohamad responded by providing a statutory declaration dated 23 June 2017 which declared:

   February 2012, I was driving my motorbike at the intersection of Dallas Dr and Barry Rd COOLAROO, as I turned left onto Barry Rd, there were pedestrians crossing the Road I tried to avoid them all and all I remember that I hit a pushbike and I broke my toe, then left the place of the incident to seek help from my brother in law who lives nearby, afterward I realised it was wrong to leave the place without notifying the police, so I called my brother [named] to do so.  I was confused, horrified and not sure what to do due to my severe pain and my father was in hospital in a critical condition. The police attended the Northern hospital where I was treated for my injury and reported the incident, currently I understand my responsibilities towards the Australian community and I will behave in accordance with Australian community standards and that I uphold and obey the law.  Now Australia is my home country and I will continue to spend the rest of my life with my wife and five children here in Australia, so I kindly ask you to consider my application for citizenship.

2. The delegate found that Mr Mohamad had been found guilty of a significant offence and noted that he had returned to court because he breached the original court order.  However the delegate found that the offences were at the lower to middle range of significance and a ‘one off occurrence’, and gave this some weight in assessing whether the Applicant was of good character.

3. As well as the offences listed above, the Respondent submitted that the summonsed documents now disclose three additional offences relating to the Applicant:

Court and date	Offence	Court Result
Broadmeadows Magistrates Courts – 2 April 2009	Unlicensed driving. State false name. Date of offence: 25/08/2008.	Aggregate fine $450.
Broadmeadows Magistrates Court – 27 January 2015	Driving whilst disqualified. Date of offence: 28/08/2014	Fined $600. Licence suspended for 3 months from 21/01/2015
Broadmeadows Magistrates Court – 30 September 2015	Driving whilst disqualified Date of offence: 15/06/2015	Fined $1,000. Licence cancelled and disqualified for 6 months from 30/09/2015

1. The Respondent submitted that Mr Mohamad had failed to mention these offences in his citizenship application.  The Respondent further submitted that, on the basis of these additional offences set out in the summonsed documents, the delegate’s conclusion that Mr Mohamad’s careless driving offence was a ‘one off occurrence’ cannot be sustained and that the Applicant had shown a persistent pattern of disregard for Australia’s driving laws.

2. The Respondent said that the fact that the Applicant did not disclose his further offences in the application process was inconsistent with what the Respondent called the requirement in the Citizenship Policy that an applicant of good character would be truthful and not practise deception or fraud in his or her dealings with the Australian Government.  The Respondent submitted that Mr Mohamad’s statutory declaration in relation to the careless driving offence seeks to explain the offending rather than take responsibility for it.

   The Applicant’s submissions

3. Mr Mohamad told the Tribunal he had been in Australia since 2007.  He said, in relation to the 2012 accident, that it was wrong not to stop at the time.  He said he did not mean to cause the accident and it has affected him deeply.  He said that he does respect the laws in Australia.  He acknowledged that what he did was wrong, and that it was a ‘big mistake’.  He said he had several children born in Australia and he asked for another chance. Mr Mohamad provided to the Respondent a reference from his general practitioner, Dr Atheer Hmood dated 29 June 2017 (T4).  Dr Hmood said he had known the Applicant for more than three years and:

   Ayman is a family oriented person; he fulfils his role as a parent and a husband as he looks after his five children and his wife who has a medical history of epilepsy.  Ayman attends and takes full charge and responsibility of his children’s health, education and his is also involved in their physical activities and sports….I perceive Ayman as a very well mannered, respectful and peaceful person who displays acts of kindness, respect, open-mindedness, and encouragement.  Ayman has mentioned the offence that has occurred in 2012, as he demonstrated that this is the first time he encounters and experiences this as he exhibited remorse and sorrow act towards this incident.

   The Applicant’s evidence

4. Mr Mohamad told the Tribunal that in 2012 he had been returning home on his motorbike from visiting his critically ill father in hospital.  He said he turned left at an intersection and did not see pedestrians crossing at the lights because the sun was in his eyes.  He said he braked, but part of his foot hit a pram being pushed across the road by a mother with two children.  He said he stopped, felt dizzy because the impact had broken his toe, and rode off from the scene of the collision.  Mr Mohamad said he was not thinking properly at the time and did not speak to anyone at the scene.  He said, fifteen minutes later, he rang his brother and he then rang the police.  He said his brother took him to the hospital. At the hospital he said the police interviewed him.

5. Later, in answer to the question about what he did immediately after leaving the scene of the accident, Mr Mohamad told the Tribunal he “roamed around.  Went to my brother’s. Rang my brother and told him to contact the police and tell them what happened.  I asked him to take me to the hospital.  I didn’t call them.”

6. The Tribunal had before it a sworn statement from a Senior Constable of Victoria Police, dated 24 July 2013.  It relevantly states:

   On Tuesday the 3^rd of April 2012 at approximately 5.44 pm I attended a collision scene at the intersection of Barry road and Kyabram street Coolaroo.  Upon arrival I observed an ambulance parked on the south side of Barry road at the pedestrian crossing and numerous people standing around. There was a pram beside the ambulance and a skid mark approximately 10 feet long from a solo on the west side of the crossing.

   I spoke with a female by the name of [named] who identified herself as the mother of a 3 year old boy who was in the ambulance.  [She] advised me that she was on the western end of the intersection with 4 children, 2 were on bikes and one was strapped in the pram being her 3 year old son [named] and her daughter [named] was seated on top of her pram. 

   [She] explained that she was standing at the pedestrian crossing waiting to cross from the southern side to the northern side of Barry road.  The traffic lights changed to red and the green man was displayed for approximately 5 seconds before she stepped onto the road.  She stated that she made the two older girls cross on their bicycles in front of her and she then followed pushing the pram.  As she stepped onto the road pushing her pram a black motorcycle came from nowhere and collided with the front of her pram ripping the pram from her hands.  Her daughter was thrown from the pram and landed on the road and the pram was flung approximately 10 feet from her with her son still strapped inside.  The impact was that great it ripped off her sons right shoe.  She said that the motorcycle skidded and the driver looked over his shoulder and yelled “Fuck off” and sped off.

7. The Senior Constable’s sworn statement went on to refer to another motorist who came forward and said he witnessed the collision.  The Senior Constable stated that this witness said “the rider looked behind and yelled something then sped off”.  The witness had taken down the motorbike’s registration number, which he passed on to the Senior Constable.  The Senior Constable then attended the residence of the registered owner and was told he was at the Northern Hospital.  The Senior Constable then went to the Northern Hospital and spoke to the Applicant, asking him if he was the registered owner of a motorbike with a particular registration number.  Mr Mohamad admitted he had been involved in the collision but, when he was asked if he realised he injured a child in a pram, the statement said he refused to speak any further.

8. In terms of the other offences not disclosed in his citizenship application, Mr Mohamad said he obtained a National Police Check and submitted it to the Department of Immigration and Border Protection on connexion with his citizenship application, but he did not read it and, as a consequence, did not notice that the document was incomplete.  Mr Mohamad said that, in terms of his application form he was assisted in completing it by a woman who works at a voluntary office in Campbellfield that helps people who don’t speak or write English proficiently to fill out forms.  He said he told her about ‘all the offences’ but she did not fill them in.  Mr Mohamad said he had no intention of hiding anything, and that the person assisting him must have misunderstood.

9. In terms of the 2008 offence of driving whilst disqualified, Mr Mohamad said that he had just arrived in the country and rode a motorbike from his brother’s house a very short distance to a shop to have a tyre repaired.  He said he was stopped by the police but did not speak English and received an infringement notice.  As he did not go to court and paid the fine imposed, he thought it was not an offence.  When questioned directly by the Tribunal about the offence of supplying a false name, Mr Mohamad said he had not been in Australia for very long at that time and did not understand what the police officer was asking him; he said he thought he was being asked to supply the name of the owner of the motorbike, which was the name he gave.

   Consideration

10. The Tribunal accepts that the Applicant intended to disclose the full details of his careless driving conviction in 2012 in his citizenship application.  The Tribunal notes that certain evidence given at the hearing by the Applicant is inconsistent with the Senior Constable’s sworn statement.  Mr Mohamad explicitly denied saying anything to the pedestrians, and yet the mother pushing the pram he hit and the other motorist who witnessed the accident said differently.  Mr Mohamad said that he asked his brother to contact the police, but there is no evidence that that occurred, and in fact the police had to locate him at the hospital in the aftermath of the accident, through his motorbike registration details.

1. The delegate wrote, in relation to the Applicant breaching a community service order (T2, p 16):

   …as a consequence of breaching your obligation to the court, the original condition was varied.  This weighs against of (sic) you being of good character.  I give this factor considerable weight in my assessment of whether you are of good character.

2. Mr Mohamad gave an explanation that he was given 18 months to complete 450 hours of community work.  He said that his wife had continuing medical problems and they have five children and sometimes he could not fulfil his community service, but each time took a letter.  He said that at the end of the period he went before a magistrate who extended the period to comply by six months, and he finished it on time.  The Tribunal finds that this evidence is corroborated by the Order Completion Report (T12) which records that the order was in place for two years, and accepts the Applicant’s explanation in this regard.  The Tribunal finds that this does not weigh against him in terms of an assessment of good character.

3. When asked about his two convictions for driving while disqualified, Mr Mohamad told the Tribunal that he “had to go and buy stuff because my brother took me shopping three or four times; I felt I couldn’t keep bothering him so I went to buy the stuff.  I knew I was wrong, but my circumstances were very different.”

4. The Tribunal accepts that the Applicant’s wife has a difficult medical condition which perhaps places greater parental obligations upon him because of her inability to drive, and notes the explanation as to why he drove whilst disqualified, to buy provisions for his household.  However, he knew at the time that he should not be driving and these actions do show a disregard for the law, which weighs against Mr Mohamad in this assessment.

5. As mentioned above, question 39 (a) of the application form asks for an applicant to disclose all traffic offences that went to court.  At the foot of that question the form states:

   If you answered ‘Yes’ to any of the questions at Question 39, you must give ALL relevant details… 

6. Mr Mohamad omitted details of offences in 2008, 2014 and 2015.  He told the Tribunal, in relation to the 2008 offence, “I forgot about that one”. 

7. At the end of the form, the Applicant signed the Declarations section of the citizenship application form.  At the head of that part of the form is written:

   Part M - Declaration

   WARNING: it is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.

   And, further down in the same section the applicant declared that:

   ...the information I have supplied in this form is complete, truthful and correct in every detail.

8. At the hearing, Mr Mohamad said that the woman assisting him to fill in the form had told him that she had filled everything in, and to sign it.  The Tribunal queried with him if he had thought to ask her to read it back to ensure it was complete in every respect, given that it omits several offences, and he said that he did not think of it at the time.

9. It troubles me that Mr Mohamad’s evidence about what happened after the hit and run accident in 2012 shifted during the hearing.  He initially said he had rung the police.  When asked by counsel why the police would go to the trouble of tracing his motorbike registration, visiting his home and then locating him at the hospital, he said that perhaps someone at the police station did not pass the message on to the officer.  Later he changed his evidence and said that he asked his brother to ring the police, and that the Applicant himself had not.

10. The Tribunal also had before it a character reference dated 16 January 2018 (Exhibit A4) from Mr Mustafa El-Darwich who said that he has known the Applicant for 10 years and know him to be a caring, honest and loving person.  Relevantly, in terms of the 2012 accident, Mr El-Darwich wrote:

    I am aware of the accident which occurred in 2012 which resulted in Ayman leaving the scene of the accident. However, he did take responsibility 2 hours later by reporting the accident to police.

11. The Tribunal prefers the evidence disclosed in the sworn statement of the police officer to the shifting sands of the evidence of Mr Mohamad in this matter.  I find that Mr Mohamad did not himself report the collision to police, and nor apparently did his brother at his instruction.  On the contrary the police attended the scene after he had left it, and had to seek him out.  Because Mr El-Darwich has clearly been told by the Applicant that he reported his collision to the police, I give this reference little weight in this respect.  It is disturbing to me that Mr Mohamad was continuing, even during the hearing, to alter his evidence in regard to this matter. 

12. In relation to the Applicant’s explanation to me about the August 2008 offence of supplying a false name, I do not accept that this offence would have been pursued by the police based on what he claims was a simple misunderstanding.  At the time of the offence Mr Mohamad had been in Australia for some 19 months and I believe he would have understood that he was being asked for his own name.  Even if he was confused, the confusion could easily have been sorted out without the matter proceeding to a proven offence in court.

13. I acknowledge on the evidence that Mr Mohamad has many good qualities, and the consistent evidence from others that he is a good father and husband.  I also acknowledge his open admission that the collision and the careless driving conviction had a deep affect on him, especially as he is a father himself.  He has fulfilled the requirements of a court-imposed penalty for that offence and it is not the function of the Tribunal, in this review, to impose some other penalty for it.  In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon stated, at [35]:

    The observance of truth in dealing with officials in migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications... Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.

14. I believe that this principle also adheres when an eligible non-citizen is applying for Australian Citizenship.  There is a reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.  Relevantly, the Citizenship Policy states, at chapter 11, when discussing how decision-makers should assess ‘good character’:

    Among other things, an applicant of good character would:

    Respect and abide by the law in Australia; and

    be truthful and not practise deception or fraud in their dealings with the Australian Government, for example:

    concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.

15. I find that Mr Mohamad’s failure to disclose all of his past offences in his citizenship application, coupled with his selective evidence around the circumstances of the hit and run accident, together combine to bring the Tribunal to the conclusion that he does not satisfy the good character requirements of section 21(2)(h) of the Act.  He has been, at best, reckless, in failing to fully disclose the information the form clearly requires him to disclose, and at worst, deliberately evasive.  This is a lack of candour that is to be depreciated in a person applying for Australian Citizenship.  I find that a greater period of time needs to elapse before Mr Mohamad can be said to satisfy all the requirements of section 21(2)(h) of the Act.  The Tribunal cannot stipulate what that period should be; that will depend on the other conduct of the Applicant and whether, in any fresh application down the track, he ensures that he does not fail to disclose any information that he is required to disclose.

16. In relation to the holder of a permanent visa being refused citizenship, Deputy President Breen stated in Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, at [8]:

    …refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again…

    Mr Mohamad has not committed any offences for some years, and he has paid the penalties incurred in the past without apparent demur.  I have no reason to believe that, provided some more time has passed and provided there is no recurrence of unlawful conduct, a fresh application by the Applicant for Australian Citizenship, making complete disclosures, may not meet with success.

    DECISION

17. The reviewable decision that the Applicant does not satisfy section 21(2)(h) of the Australian Citizenship is affirmed.

43.     I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 29 March 2018

Date(s) of hearing:	19 January 2018
Applicant:	Self-represented
Advocate for the Respondent:	Ms Ashleigh Allan
Solicitors for the Respondent:	Sparke Helmore