Rahman and Minister for Immigration and Border Protection (Migration)

[2015] AATA 481

Rahman and Minister for Immigration and Border Protection (Migration) [2016] AATA 1034 (16 December 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3807
Re	Wali Rahman
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor R Deutsch, Deputy President
Date	16 December 2016
Place	Sydney

The decision under review is affirmed.

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

Professor R Deutsch, Deputy President

CATCHWORDS

MIGRATION – application for citizenship – good character – driving offences – debts owing to Commonwealth and New South Wales governments – mitigating factors – Applicant claimed to suffer mental health condition – insufficient evidence of mental health condition – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24(1)

CASES

Apire and Minister for Immigration and Border Protection (2014) AATA 193

Daood and Minister for Immigration and Border Protection [2015] AATA 481

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

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

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Professor R Deutsch, Deputy President

16 December 2016

1. The Applicant made an application dated 28 July 2015 to this Tribunal seeking a review of the Respondent’s decision refusing his application for Australian citizenship. That decision was dated 10 July 2015 and was made under s 24(1) of the Australian Citizenship Act 2007 (the Act).

2. Most relevantly for these purposes s 21(2)(h) of the Act provides that the Minister must be satisfied that the Applicant was a person of good character at the time the Minister’s decision on the application was made.

3. Thus, fundamentally the question comes down to this: was the Applicant a person of good character as at 10 July 2015.

4. The Respondent takes the view that he was not of such a character at the relevant time. The Applicant contests that view. 

5. In reviewing this matter this Tribunal must assess whether the Applicant was a person of good character as at 10 July 2015 and up to the time of the hearing: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68.

   THE GOOD CHARACTER REQUIREMENT

6. The term “good character” as used in the Act is undefined.

7. The Australian Citizenship Instructions (the Instructions) do however give some guidance as to how the term is to be understood for the purposes of the Act.

8. The Instructions are designed to provide policy guidance to decision makers in undertaking decision-making functions under the Act and the Tribunal will generally apply the policy unless there are cogent reasons to do otherwise: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640.

9. There are a number of matters raised in the Instructions which are of possible relevance to the circumstances presented by this case:

   ·the Instructions list a number of characteristics that a person of good character would have and relevantly this would include that an applicant “respect and abide by the law in Australia and other countries” and “be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)”: paragraph 10.3.4;

   ·the Instructions specify offences, even those of a minor nature such as traffic offences, should be taken into account in considering whether an applicant is of good character: paragraph 10.5.2;

   ·in determining whether the good character test is achieved, regard is to be had to the number of offences that have been committed and in particular whether these offences were one-off offences or whether they evidence a pattern of ongoing criminal behaviour. If there is a pattern of criminal behaviour, even of repeated minor offences, this demonstrates a disregard for the law and indicates that the applicant may not uphold and obey the law if citizenship is conferred upon him or her: paragraph 10.5.2;

   ·the decision-maker must consider all the matters which arise in mitigation of the finding that an applicant may not be of good character and in particular, in the context of the present case, the following factors would be relevant:

   a)whether the applicant has accepted responsibility and shown remorse for his conduct;

   b)the age of the applicant at the time of the offences;

   c)whether there are any extenuating circumstances relating to the conduct that may explain the conduct;

   d)whether there is evidence of the applicant’s length of employment, a stable family life and/or any community involvement that the applicant may have had: paragraph 10.5.2;

   ·the decision-maker must weigh up the applicant’s explanation for behaviour which suggests that he or she is not of good character together with any other mitigating factors against the behaviour of the applicant which suggests that he is not of good character. In other words, the decision-maker should look holistically at the applicant’s behaviour over a lasting or enduring period of time when forming his or her assessment.

   ·However, despite the good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness: paragraph 10.5.4.

10. When considered in the light of the Instructions it is apparent that I need to pay regard to a number of key matters. I will now deal with these matters sequentially under a series of question headings.

    Does the Applicant’s conduct suggest that he respects and abides by the law in Australia and other countries and that he is honest and financially responsible as suggested in paragraph 10.3.4 of the Instructions?

11. There are two main aspects of the Applicant’s background which cause serious concern in this case.

12. The first is his less than satisfactory driving record which reveals offences spanning a 10 year period up to late 2015. The second is his chequered record of financial engagements.

    Driving record 

13. Certain documents which were produced under summons from the New South Wales Roads and Maritime Services disclose an extensive history of driving offences recorded against the name of the Applicant. These are as follows:

    (a)1 October 2005 – “Not comply with conditions of learner’s licence (unaccompanied by licensed driver)” and “Not comply with conditions of learner licence (not display L sign(s))”. These offences were proved, but dismissed pursuant to s 10 of the Crimes (Sentencing Procedures) Act 1999 (NSW), apparently without a conviction being recorded.

    (b)18 August 2007 – “Not comply with conditions of provisional licence (not display P signs) as required.”

    (c)1 June 2008 – “Not comply with conditions of provisional licence (not display P signs) as required.”

    (d)9 August 2008 – the applicant’s license was suspended for demerit points incurred for the offences mentioned in (b) and (c) above. The suspension was in effect from 13 September 2008 to 12 December 2008.

    (e)28 September 2008 – “Not comply with conditions of provisional licence (not display P signs) as required.” The applicant was also warned by the police not to drive, as at the time of this offence his licence was suspended.

    (f)2 January 2009 – “Exceed speed limit by not more than 15km/h whilst driving a motor vehicle. Double demerit points provisions.”

    (g)10 February 2009 – the applicant’s license was suspended for demerit points incurred for the offences mentioned in (e) and (f) above. The suspension was in effect from 17 March 2009 to 16 June 2009.

    (h)22 October 2009 – “Exceed speed limit by more than 10km/h but not more than 20km/h whilst driving a motor vehicle.”

    (i)24 December 2009 – the applicant’s license was suspended for demerit points incurred for the offence mentioned in (h). The suspension was in effect from 28 January 2010 to 27 April 2010.

    (j)19 December 2010 – “Disobey traffic lights – camera detected.”

    (k)24 May 2011 – The applicant’s licence was suspended for default on a fine.

    (l)26 October 2012 – “Exceed speed limit by more than 20km/h but not more than 30km/h whilst driving a motor vehicle.”

    (m)15 January 2014 – “Disobey traffic lights – camera detected.”

    (n)27 September 2014 – “Disobey traffic lights – camera detected.”

    (o)19 February 2015 – The applicant’s licence was again suspended for default on a fine.

    (p)27 September 2015 – “Exceed speed limit by more than 10km/h but not more than 20km/h whilst driving a motor vehicle.”

    (q)27 October 2015 – the applicant’s license was suspended for demerit points incurred for the offences mentioned in (l), (m), (n) and (p) above. The suspension took effect from 1 December 2015 and will remain in effect until 29 February 2016.

14. In surveying this litany of offences, it is true that individually each offence standing on its own may be viewed as being relatively minor.

15. The offences involve speeding, disobeying traffic lights and failing to comply with the conditions of his licence and this has led to some six occasions on which his licence has been suspended for varying periods of time. None of this can be described as an accidental error, omission or oversight but are quite deliberate and flagrant violations of traffic laws on an ongoing repeated basis.

16. The applicant also failed to comply with the conditions of licences which he held including driving unaccompanied while on his learner’s licence and repeatedly failing to display L-plate and P-plate signs while on the learner’s or provisional licence.

17. The speeding offences in most instances involved speeding in excess of the speed limit by more than 10km/h of the declared speed limit. He was also found to be driving whilst his licence was suspended in September 2008.

18. His behaviour has the potential to cause serious harm to others and displays a significant degree of recklessness in that regard. As noted previously, the Instructions explicitly state that a person of good character should not cause harm to others (paragraph 10.3.4).

19. The Applicant persisted with his offending despite incurring numerous demerit points, fines and suspensions as well is having received demerit points courtesy letters and warning letters.

20. There are a number of cases which have indicated that behaviour of this kind, especially where it is so persistent and continuous, is not consistent with Australian community standards: Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7]; Apire and Minister for Immigration and Border Protection (2014) AATA 193 at [15] and [16]; Daood and Minister for Immigration and Border Protection [2015] AATA 481.

    Financial Engagements

21. The Respondent has identified two different matters regarding the Applicant’s financial engagements, namely:

    ·the Applicant’s default on two occasions in respect of a debt owing to the Commonwealth; and

    ·the Applicant’s default in paying fines to the New South Wales Government arising from a number of his traffic offences.          

22. In relation to the Commonwealth debt, the Applicant indicated that the first default occurred as a result of him losing his job. The Applicant had entered into a payment plan with the Commonwealth to pay off $500 per month but according to the Applicant he became unemployed and was unable to secure further employment and as a result ceased to make the payments as required.

23. The evidence presented in this regard is very limited, the Applicant merely asserting that the contract termination took place and that it was unexpected but no evidence was tendered in support of these contentions.

24. What is clear is that the Applicant at no time took any steps to contact the Commonwealth Department to which the money was owed to advise them of his inability to continue servicing the debt until the time at which he received a default notice.

25. In relation to the second default in respect of this Commonwealth debt, the Applicant contended that he defaulted on the debts due as a result of a serious motor vehicle accident. He only sought to correct the position once a second default notice was issued.

26. In relation to the NSW Government debt, the Applicant’s New South Wales driver’s licence was twice suspended due to the Applicant’s default on payment of fines for his traffic offences.

27. The Respondent concludes that the Applicant has demonstrated a pattern of behaviour over a period of four years which indicates a lack of financial responsibility in managing his debts to both the Commonwealth and the State of New South Wales.

28. The Applicant has tried to explain his defaults to the Commonwealth by reference to the loss of his job and the serious motor vehicle accident in which he was involved. Scant evidence was provided at the Tribunal in relation to either of these matters but the Tribunal does accept that, in spite of the limited evidence provided, there were some extenuating circumstances including the Applicant’s job loss and motor vehicle accident that are of relevance in this case.

    Conclusion

29. Having regard to the totality of the evidence in this regard, the Tribunal concludes that viewed holistically, this question must be answered in the negative based solely upon the Applicant’s driving record. Of particular relevance here is the complete recklessness with which the Applicant has approached his responsibilities as a driver, his total disregard for the safety of others and the absolute failure to seek any form of rehabilitation whatsoever.

30. Accordingly, the Tribunal’s conclusions in regard to this question weigh heavily against the Applicant being of good character.

    What are the offences that need to be taken into account?

31. It is clear from the Instructions that all of the documented offences by the Applicant, even the offences considered to be of a minor nature such as traffic offences should be taken into account in considering whether the Applicant is of good character: paragraph 10.5.2.

32. Within this context, the Applicant has over 10 different offences recorded against his name over a 10 year period. None of these offences could be described as trivial – they might be construed as being of a minor nature if they occurred in isolation. However, where they occur repeatedly within a designated time period and result in numerous suspensions, as is the case here, it is impossible to view them as a group as being of a minor nature only.

33. In determining whether the good character test is satisfied, it is relevant to have regard to how many offences have been committed and, in particular, whether it was a one-off offence or a pattern of ongoing criminal behaviour.

34. Here, there is clearly a pattern of behaviour of repeated, relatively minor to more serious offences which demonstrates a disregard for the law and indicates that the Applicant may not uphold and obey the law if citizenship is conferred upon him: paragraph 10.5.2.

    Conclusion

35. Accordingly, the Tribunal concludes that the number and extent of the offences in question here weigh heavily against a finding of good character.

    Was the Applicant honest in his dealings and has he committed, in particular, identity fraud even if there has been no criminal conviction?

36. The Respondent raised the question of the Applicant’s honesty in the context of this case having regard to his financial default in respect of debts due to the Commonwealth and the New South Wales Government.

37. In this regard, the Applicant has sought to explain the circumstances at least of the default in respect of the money due to the Commonwealth Government and while the explanation provided lacked serious evidentiary backing, the Tribunal concludes that there were some extenuating circumstances which contributed to the defaults. In the circumstances the Tribunal concludes that the particular matter is neither favourable nor unfavourable to the assessment of good character.

    Are there matters which arise in mitigation of the finding that the Applicant may not be of good character? In particular,

    ·     Has the applicant accepted responsibility and shown remorse for his conduct?

    ·     What is the age of the Applicant at the time the conduct occurred?

    ·     Are there any extenuating circumstances relating to the conduct that may explain the conduct?

    ·     Is there any evidence of the Applicant’s length of employment, stable family life and any community involvement?

38. The Applicant has not indicated in any appropriate and credible way that he accepts responsibility for his conduct or that he is in any way remorseful for such conduct. His persistent offences would suggest quite the opposite.

39. The Applicant is now 48 years of age and the offences in question took place when he was well into his 30s. Accordingly, a young age is not a mitigating factor in this case.

40. At the hearing, the Applicant claimed that he suffered from mental health issues dating back to 2003. In particular, he asserts that he suffered from serious bouts of depression.

41. Further, the Applicant claimed that these mental health difficulties coupled to some extent the with medications prescribed for treatment resulted in him having an unspecified level of mental impairment which resulted in an adverse impact on his ability to concentrate. This, he asserted, was the reason for the numerous driving offences that were committed between 2005 and 2015.

42. The Applicant provided mental health medical records from December 2010 relating to his admission to Canberra Hospital for depression and suicidal ideation. From that report, it appears that there was an earlier admission to hospital in Wagga Wagga in September 2009 although the exact details of that admission are not entirely clear.

43. I gave the Applicant a further opportunity to adduce evidence to support his assertion that he was suffering from mental health difficulties and the Applicant was given until 26 February 2016 to file further evidence to that effect.

44. Somewhat belatedly, in March 2016, the Applicant filed a number of documents being:

    (a)a mental health assessment statement dated 17 February 2016;

    (b)a statement regarding medications prescribed by the Astley Medical Centre dated 17 February 2016;

    (c)a statement by Dr Ishrat Ali, a psychologist in which there is some assertion acknowledging the applicants depression dated 29 February 2016;

    (d)three letters from Dr Fahima Bahram dated 1 February 2016.         

45. The statement regarding the mental health assessment was a copy of a single page test which records the Applicant’s name and a score of 44/50. The document is not accompanied by any form of explanation or interpretation from any health professional and, in the circumstances; it is difficult to see what one can make from this assessment.

46. The letter from Dr Ali indicates that the Applicant has undergone a single consultation with Dr Ali and has presented with “depressed mood, sleep difficulties and agitation”. The letter itself does not provide any indication as to the Applicant’s past mental health difficulties beyond those reported by the applicant.

47. The three letters from Dr Bahram are all in identical terms and appear to be no more than referral letters for the management of “chronic depression and PTSD type symptoms”. The letters also make reference to the Applicant having been “admitted to hospital for management in the past.”                  

48. It would appear from the letterhead that Dr Bahram is a general practitioner who provides treatment to the Applicant.

49. The only plausible conclusion that can be drawn from these letters is that they support the assertion that the Applicant has been admitted to hospital and has been on various medications from time to time. It is not possible to draw any further inference as the letters do not provide any detail as to the true extent of the Applicant’s mental health difficulties.

1. The totality of the evidence that was provided both prior to and subsequent to the hearing by the Applicant could be described as scant at best and hopelessly inadequate at worst. It is true that it supports a conclusion that the Applicant does indeed suffer from depression, has been admitted to hospital on a number of occasions and is prescribed medications to manage his symptoms, predominantly Zoloft, a well-known antidepressant.

2. Significantly there is very little in the way of clear medical evidence before the Tribunal regarding:

   ·the state of the Applicant’s mental health prior to December 2010;

   ·the reasons and circumstances leading to his apparent but as yet unconfirmed hospitalisation in Wagga Wagga in 2009; and

   ·virtually no evidence in regard to the period from December 2010 to February 2016.

3. In reality, the scant evidence that has been provided is just the beginning of the Applicant’s problems in relation to this application. There are a number of other matters that are relevant and have not been properly addressed by the Applicant.

4. First, even if this Tribunal were to accept that there were ongoing mental health difficulties between 2003 and 2016, the Applicant has not provided any medical evidence as to the effect that his mental health difficulties have had on his day to day life. In other words merely having mental health difficulties is not a sufficient explanation for his behaviour. The link between his mental health difficulties and his behaviour has not been made out.

5. In this context, what would be required to make the Applicant’s case is clear and cogent evidence which would explain how his mental health difficulties together with the medication he has been prescribed to treat those difficulties have impacted upon his concentration and ability to operate a motor vehicle.    

6. Secondly, even if this Tribunal were to accept that there were ongoing mental health difficulties in the relevant period and that these mental health difficulties had a direct link to his behaviour that does not conclude the matter.

7. It is the very fact that the Applicant persisted in driving in the face of all these difficulties and the infringements he had committed, while knowing that he was impaired in a material way that demonstrates the very thing that lies at the heart of this case – the Applicant has a complete lack of regard for the essential safety of other members of the community or is recklessly indifferent as to the essential safety of other members of the community.

8. Thus, the Tribunal concludes that the Applicant’s mental health difficulties have not been demonstrated but, even if they were, it would be difficult to accept that they in any way constitute an extenuating circumstance of the kind contemplated by the Instructions.

9. The Applicant sought to argue that there was a further extenuating circumstance in that he has relatives in Pakistan he would like to see on a regular basis and this fact is also noted as part of Dr Ali’s report.

10. The Applicant claimed at the hearing on 22 January 2016 that he held a real and genuine fear that he would suffer harm from the Pakistani Taliban if he were to return to Pakistan. He put forward the proposition that if he held an Australian passport this would negate this fear as the Pakistani authorities would pay greater attention to his safety if he were there under an Australian passport.

11. Without intending any disrespect, I find this contention hard to believe and there is certainly no evidence before the Tribunal to support the suggestion that his safety would be more closely guarded by Pakistani authorities if he were issued with an Australian passport and travelled under that passport following the grant of citizenship.

12. Further it is worth noting that the Australian Citizenship Instructions state at paragraph 10.5.3 travel plans are generally not a relevant factor in determining whether a grant of citizenship should be made but every matter must be determined on its merits.

13. In any event the Applicant presently holds valid Pakistani travel documents and is able to travel to Pakistan without conditions should he desire to do so.

14. In the circumstances, I find there are no extenuating circumstances arising from the fact that the Applicant does not hold an Australian passport and wishes to travel to Pakistan to visit relatives on a regular basis.

    In looking holistically at the Applicant’s behaviour over an enduring period of time what is the Tribunal’s assessment of the Applicant’s character?

15. Viewed holistically, the Applicant’s behaviour as judged essentially by reference to his appalling driving record and the lack of any acceptable extenuating circumstances, suggests that as at 10 July 2015 he was not of good character and no evidence has been adduced to suggest that this position has materially changed since then.

    DECISION

16. The decision under review is affirmed.          

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

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

Associate

Dated 16 December 2016

Date(s) of hearing	22 January 2016, 15 March 2016, 16 June 2016
Date final submissions received	29 August 2016
Advocate for the Applicant	Mohammad Sharif Amin
Solicitors for the Respondent	Sparke Helmore