Muhammad and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 795

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

1. 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

2. 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.

3. 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).

4. 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.

5. 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. 

6. 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 him the brake problem with the car was an intermittent one.  He also said the first he knew of the defect was when he had tried to stop the car at the red light and the car had pulled up part-way into the intersection.

7. The information provided by RMS also disclosed a number of traffic infringements during the period December 2002 to August 2014, namely:

   ·8 December 2002 – exceed speed limit by not more than 15 km/h (camera detected);

   ·25 October 2006 – exceed speed limit by more than 15 km/h but not more than 30 km/h;

   ·15 November 2006 – exceed speed limit by not more than 15 km/h (camera detected);

   ·3 October 2009 – drive in T-way lane (camera detected);

   ·24 November 2009 – disobey traffic lights;

   ·27 September 2010 – disobey traffic lights;

   ·30 August 2013 – exceed speed limit by more than 10 km/h but not more than 20 km/h (camera detected);

   ·7 November 2013 – drive across dividing lines to perform a U-turn;

   ·27 August 2014 – exceed speed limit by more than 10 km/h but not more than 20 km/h (camera detected) (school zone).

8. Included in the RMS report were a number of instances where Mr Muhammad had had his driver’s licence suspended for failing to pay fines to the State Debt Recovery Office (SDRO).  The delegate took those instances to signify that Mr Muhammad had committed ‘22 offences listed from 11/11/2000 to 27/08/2014’ but Mr Muhammad explained to my satisfaction that this was not the case. 

9. He said that during the period August 2002 to September 2012, because he was restricted by his visa conditions from working more than 20 hours per week, his main source of income was driving taxis, not as an owner-driver but as a contracted driver.  That activity was not particularly lucrative.  If he incurred a fine he would sometimes find it difficult to make the payment on time, and so he had entered into a payment plan with the SDRO.  Even then, he would sometimes miss the due date for payment and his licence would be suspended automatically. 

10. He also explained that, even though the taxi owner was required to supply a toll tag for use during a driver’s shift, this often did not happen.  If Mr Muhammad then drove on a toll road without paying the toll, the road operator would send a notice to the taxi owner to recover the unpaid toll.  In these instances the taxi owner would send the notice to the particular driver, but the notice would often not arrive at Mr Muhammad’s home until after the due date for payment.  In this way, a charge of perhaps $14 would escalate to a $250 fine.  With few financial resources at his disposal it was not uncommon for Mr Muhammad, even with the best will in the world, to fail to pay on time – and suspension of his driver’s licence, and also his taxi driver authority, was the result.

    LEGISLATION

11. The relevant legislation is the Australian Citizenship Act 2007 (the Act).

12. The Minister has the power under s 24 of the Act to approve or refuse a person’s application for Australian citizenship.  However, the Minister must not approve a person’s application unless the person is eligible to become an Australian citizen under s 21.

13. 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

14. 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.

15. 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)

16. 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.

17. 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.

18. I disagree. 

19. While it was conceded on Mr Muhammad’s behalf that his driving record is ‘by no means exemplary’, the question is not about his driving ability but whether he is of good character.  Decision-makers should be careful not to conflate the two concepts, for the enquiry about a person’s character goes far beyond his or her driving record.

20. In any event, in Mr Muhammad’s case, it is less instructive to focus on his driving record as such, than it is to focus on what he has done to improve it.  First, he recognised that he needed to change his driving behaviour.  He had the option of undergoing a traffic offenders’ program, he was told that most repeat offender courses would not be suitable for him.  He decided he could benefit more from a tailored self-improvement approach.  His motor vehicle insurer, AAMI, has a safe driver app, which he downloaded.  The app constantly monitors and ‘scores’ his driving and compares his driving with other drivers who use the app.  Mr Muhammad said, and I accept, that there are about 100,000 drivers who use this app.  He said, and I accept, that he is currently rating 95 on the ‘speed’ measure and 96 on the ‘excessive speed’ measure.  (‘Excessive speed’ is more than 5 km/h over the speed limit.)  Mr Muhammad also said, and I accept, that the app indicates that he is in the top 15% of AAMI drivers using the app.  These results, while not perfect, are very impressive.  That is particularly so since it may be assumed that the app, which is not mandatory for AAMI drivers, is likely to be used only by that segment of the driver population who are keen to monitor their safe driving practices and perform well against others doing the same.

21. A close analysis of Mr Muhammad’s driving record shows that he has committed three offences in the last six years (two of them for low-range speeding) and none in the last two years.  Not perfect, but in my view not indicative of a person who could reasonably be described, based on his driving record, as not of good character.

22. Mr Muhammad’s wife gave evidence before the Tribunal.  She does not have a driver’s licence herself so she relies on her husband to drive her around.  She said, and I accept, that her husband is very careful with his driving.  She has taken some long interstate drives with her husband and she feels very comfortable in the car with him. 

23. Mr Muhammad provided some character references in support of his citizenship application and I give them some weight.  Those from Nabeel Shah and Upasana Rai acknowledge Mr Muhammad’s PCA conviction, yet they speak of him as an honest, reliable and trustworthy person with a charitable spirit.  He has been involved in charitable fund-raising events for at least the last three years.  It is evident that Mr Muhammad is keen to contribute to Australian society in any way he can. 

24. He has now set up a small share-trading firm and he operates what he describes as a substantial portfolio as a sole trader. 

25. Mr Muhammad has been completely open and honest about his past failures and that is a very strong indicator of good character.  His background is not perfect but we do not require perfection of our citizens.  Having observed Mr Muhammad in the witness box, and carefully assessed the manner and content of his responses to questions, and having regard to the entirety of the material before me, I am comfortably satisfied that he is a person of good character.

    DECISION

26. I will set aside the decision under review and remit the matter for reconsideration in accordance with the direction that Mr Muhammad is ‘of good character’ within the meaning of s 21(2)(h) of the  Act.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost.

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

Associate

Dated 11 October 2016

Date of hearing	29 August 2016
Date final submissions received	29 August 2016
Solicitors for the Applicant	Mr M Jones; Parish Patience Immigration Lawyers
Solicitors for the Respondent	Mr A Keevers; Sparke Helmore