Muhammad and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 795 (11 October 2016)
Division
GENERAL DIVISION
File Number
2015/6573
Re
Amer Muhammad
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 11 October 2016 Place Sydney The Tribunal sets aside the decision under review, and remits the matter to the Minister for reconsideration in accordance with the direction that the Applicant is ‘of good character’ within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007.
................[sgd]........................................................
Deputy President S E Frost
CATCHWORDS
CITIZENSHIP – good character – whether Tribunal satisfied the Applicant is of good character – previous convictions – traffic offences – whether Applicant reformed – Applicant found to be of good character – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2), 24
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; [1996] FCA 663
REASONS FOR DECISION
Deputy President S E Frost
11 October 2016
INTRODUCTION
Amer Muhammad has applied to the Tribunal for the review of a decision to refuse his application for Australian citizenship. His application was refused on 23 November 2015 because a delegate of the Minister was not satisfied that Mr Muhammad was of good character.
BACKGROUND
Mr Muhammad is a 40-year-old national of Pakistan who first arrived in Australia in December 1997 on a student visa. He became a permanent resident in January 2014 and applied for Australian citizenship by conferral in September 2015.
The delegate’s assessment of Mr Muhammad’s character was based principally on the following information:
·information held by the Department of Immigration and Border Protection regarding Mr Muhammad’s criminal record in Australia; and
·Mr Muhammad’s driving history record as provided to the Department by NSW Roads & Maritime Services (RMS).
That information disclosed Mr Muhammad’s conviction in September 2004 of the offence of ‘drive with middle range PCA’ (prescribed concentration of alcohol), for which he was fined $1,000 in the Local Court and disqualified from driving for six months. He initially appealed that sentence to the District Court but withdrew the appeal within a short period.
The circumstances of the offence are recorded in the Police Facts Sheet and the Police Incident Record. Mr Muhammad was stopped by police on the morning of 14 July 2004 at approximately 3:05am, after he was observed by police driving through a red light. Mr Muhammad tested positive in a roadside breath test, and having been conveyed to the local police station, was subjected to a breath analysis which registered a blood alcohol concentration of 0.10%, twice the legal limit.
In addition, the car Mr Muhammad was driving at the time of the offence was found by police to be defective, the brakes having completely failed. The Facts Sheet at ST2-29 indicates that when the police moved the car they had to apply the handbrake to stop it. Mr Muhammad told the Tribunal that the police had later told…
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- AGLC
- Muhammad and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 795
- Case
- [2016] AATA 795
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether Mr Muhammad was of good character at the time of the Tribunal's decision. This required an assessment of his past conduct, specifically a mid-range drink-driving conviction from 2004 and a series of traffic infringements occurring between 2002 and 2014. The Tribunal was required to determine if these matters demonstrated an enduring moral failing or if Mr Muhammad had reformed and exhibited good character.
The Tribunal applied the ordinary meaning of "good character" as interpreted in *Irving v Minister for Immigration, Local Government and Ethnic Affairs*, which refers to a person's enduring moral qualities rather than their public reputation. While acknowledging the seriousness of the drink-driving offence and the pattern of traffic infringements, the Tribunal found that the drink-driving offence occurred 12 years prior with no repetition, and Mr Muhammad had provided credible evidence of his reformed behaviour, including abstaining from driving after drinking and acting as a designated driver. The Tribunal also noted Mr Muhammad's complete honesty about his past.
The Tribunal was satisfied that Mr Muhammad was of good character. Consequently, the decision under review was set aside and remitted for reconsideration with a direction that Mr Muhammad meets the good character requirement under section 21(2)(h) of the Act.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In this case the relevant part of s 21 is subsection (2), which sets out in paragraphs (a) to (h) the various matters of which the Minister must be satisfied for a person to be eligible to become an Australian citizen. In relation to Mr Muhammad, the Minister is satisfied that he meets all of the requirements except the one in paragraph (h). That paragraph requires the Minister to be satisfied that the person who is applying for Australian citizenship ‘is of good character at the time of the Minister’s decision on the application’. As the Tribunal is undertaking merits review of the Minister’s decision, the central question is whether I am satisfied that Mr Muhammad is of good character at the time that I make my decision.CONSIDERATION The term ‘good character’ is not defined in the Act. The Tribunal must therefore be guided by the ordinary meaning of the expression, as interpreted by the courts. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; [1996] FCA 663 Lee J said at 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. (References to authorities omitted) Mr Muhammad’s PCA conviction is a very serious matter, but it occurred 12 years ago, and there has been no repetition of that type of offending. Mr Muhammad told the Tribunal, and I accept, that he never gets behind the wheel now if he has been drinking. I also accept his evidence that he often takes on the role of designated driver if he is out with friends. If the offence had been more recent, or if he had been a repeat offender, then that would have weighed heavily against Mr Muhammad, to such an extent that I would have found it difficult to be satisfied that he is of good character. Of more immediate relevance in Mr Muhammad’s case is his broader record of traffic offences. Repeated traffic infringements can be an indicator of a lax attitude to compliance with the law, and an indicator that the person might not be of good character. In Mr Muhammad’s case, the Minister’s representative urges upon me that the history of infringements, nine over a period of 12 years with the most recent occurring only two years ago, indicates a pattern of offending that should prevent the Tribunal from reaching the requisite level of satisfaction as to Mr Muhammad’s good character.