Safar and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 503
•13 July 2015
Safar and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 503 (13 July 2015)
Division GENERAL DIVISION File Number(s)
2015/0520
Re
Odesho Bithyo Safar
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr S Webb, Member Date 13 July 2015 Place Sydney The decision under review is affirmed.
...............[sgd]......................................................
Mr S Webb, Member
CATCHWORDS
CITIZENSHIP – eligibility – permanent resident – application for citizenship by conferral – character test – multiple driving offences – pattern of offending behaviour – disregard for the law – proceedings for offence pending – bar on citizenship approval – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Re Wang and Minister for Immigration and Border Protection [2014] AATA 89
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Mr S Webb, Member
13 July 2015
Odesho Safar is an Iraqi citizen. He applied for conferral of Australian citizenship, but this was refused on character grounds. He applied to this Tribunal for review of this decision.
ISSUES
The issue for determination is whether Mr Safar meets the eligibility requirements for conferral of Australian citizenship under s 21(2) of the Australian Citizenship Act 2007 (the Act):
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
The Minister’s reviewable decision turns on the character test in s 21(2)(h), and it is to this test that attention was directed in the hearing.
There is one further matter that requires consideration. This concerns the legislative bar on conferring citizenship on a person at a time “when proceedings for an offence against an Australian law (including proceedings by way of review or appeal) are pending in relation to the person” – s 24(6)(a) of the Act.
FACTS
Mr Safar holds a subclass 202 (permanent) visa, granted on 7 September 2008. He first arrived in Australia on 20 January 2009. He speaks very little English.
Mr Safar was born in October 1977. Documents confirming his identity are before the Tribunal. He provided a statutory declaration[1] and a brief statement[2], and he gave oral evidence with the assistance of an interpreter.
[1] T1 folio 4.
[2] T1 folio 3.
It appears that Mr Safar lives with his wife and two children. He told me that his wife has very poor health and he cares for her – she is in receipt of a Disability Support Pension and he is paid a Carer Payment. This places him under great stress.
Mr Safar told me that he is not in employment and is a “normal person” who attends church on Sundays.
Mr Safar was issued a provisional P1 driver’s licence on 13 April 2010. He has the following traffic offences and criminal record[3]:
[3] T6 folios 59-60, ST1, ST2, ST3, ST4 and ST5.
Offence time & date Offence Conviction date Penalty 3.55 pm
12 June 2010
Exceed speed limit over 45 kilometres per hour – P1 provisional licence holder driving at 112 km/h in a 60 km/h zone Traffic Infringement Notice – Fine: $1400
Interlocutory roadside suspension of licence to 11 December 2010
4.25 pm
12 June 2010
Drive on road while licence suspended 6 August 2010 Good Behaviour Bond S10: 6 months 4.25pm
12 June 2010
Not reverse vehicle safely 6 August 2010 Fine: $100
12 June 2010 Demerit Points Suspension of P1 provisional licence from 17 January 2011 to 16 April 2011 11.10 pm
21 December 2011
Special category driver drive with special range PCA – Breath test reading 0.047 grams of alcohol – provisional licence 16 January 2012 Good Behaviour Bond S10 : 2 years 15 December 2013 Not comply with conditions of provisional licence – not display P signs as required; use unregistered motor vehicle on road Traffic Infringement Notice – Fine: $236 19 March 2014 Disobey no right turn sign at intersection Traffic Infringement Notice – Fine: $236 19 March 2014 Exceed speed limit by more than 30 km/h but not more than 40 km/h Traffic Infringement Notice – Fine: $815 15 December 2013
19 March 2014
Demerit Points Suspension of P2 provisional licence from 25 July 2014 to 24 October 2014 2.00 am
7 May 2015
Drive with middle range PCA – 1ST OFF[4] – Breath test reading 0.093 grams of alcohol –Probationary Licence[5] Interlocutory roadside suspension of licence [4] ST2 folio 8.
[5] ST1 folio 2.
Mr Safar accepts that, on 8 February 2012, he was sent a Habitual Offender Warning letter (which is not in evidence). He recounted the contents of the letter, and the warning it conveyed, in summary, during the hearing.
In respect of the offence on 7 May 2015, I have seen no evidence of sentence passed by the Fairfield Local Court on 1 June 2015. Mr Safar told me that the Judge “forgave” the offence and did not place him on a good behavior bond, but ordered him to attend a Police Citizens Youth Club (PCYC) course, which he has not yet completed. Whether this is correct and the matter has been finally dealt with by the Court, I cannot determine on the present evidence.
The documents in Exhibits 1 and 2, albeit difficult to read, establish that Mr Safar was charged with further traffic offences on 18 June 2015 – including “Drive motor vehicle while licence suspended”. It appears that Mr Safar may dispute the charges on grounds that he was riding a scooter with pedals and no motor. The matter is set down for mention in the Fairfield Local Court on 13 July 2015.[6]
[6] Exhibit 1.
GOOD CHARACTER
When determining whether a person is of good character for the purposes of the Act, Chapter 10 of the Australian Citizenship Instructions (the Instructions) provides guidance that should be followed unless there is a good reason to do otherwise. In this case, there is no reason to adopt a different course.
The term “good character” is not defined in the legislation and it is to be given its ordinary meaning. The term refers to “the enduring moral qualities of a person, and is an indication of whether [the person] is likely to uphold and obey the laws of Australia”.[7]
[7] Australian Citizenship Instructions at 10.1.2.
I note the Instructions provide that:
10.3.4 An applicant who is of good character
…
An applicant of good character would:
…
· … not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
…
In the Minister’s submission, Mr Safar falls short of these indicia of good character.
I agree.
It is quite clear that Mr Safar has a history of disobeying traffic laws over an extended period. He has repeatedly failed to comply with licence conditions and the road rules; he has committed excessive speeding offences; he has twice driven a motor vehicle while under the influence of alcohol; he has driven a motor vehicle without current registration; he has driven a motor vehicle while his driver’s licence was suspended; and he has failed to comply with the conditions of his provisional driver’s licence and with the road rules while under a good behaviour bond.
There are a number of things to say about this for present purposes. Firstly, behaving in this manner, he has placed his passengers and other road users at risk of harm.
Secondly, some of his offending behaviour is reckless – driving at 112 km per hour in a 60 km per hour zone, and driving while under the influence of alcohol in the mid-range, for example.
Thirdly, the pattern of Mr Safar’s offending behaviour since June 2010 indicates a rather startling disregard for the law, despite being warned about his obligation to obey the law. In a Fact Sheet addressing the circumstances of Mr Safar’s offences on 12 June 2010, Police report that:
The driver [Mr Safar] was advised not to drive during the period of suspension and that he was not to drive from the location and had to arrange for a licensed person to attend the location to pick him and the vehicle up. The accused advised police that he would get his brother to come and collect him and his vehicle.
… Police observed [Mr Safar’s vehicle], sitting at the intersection waiting to turn left onto The Horsley drive from Mala Street. Police observed this vehicle to quickly reverse backwards down Mala street however [it] has collided with [a] motor vehicle … which was stationary also waiting to turn onto The Horsley Drive.
Police observed the driver to be the accused Odesho SAFAR…”[8]
[8] ST3 folios 20-21.
When questioned about this, Mr Safar gave a number of confused explanations, including that he was “driving”, that he had not understood because of language difficulties, and that the police officers were wrong.
Fourthly, some aspects of the sworn evidence Mr Safar gave at the hearing do not sit comfortably or at all with the explanations he gave Police. For example, he gave sworn evidence before me that his excessive speeding on 12 June 2010 was due to the speedometer not working properly in his car, whereas the contemporaneous police notes show that he “stated that his wife called him and needs to go to Fairfield Hospital”.[9]
[9] ST1 folio 4.
Fifthly, the explanations and excuses Mr Safar proffered in evidence suggest to me that he does not take responsibility for his offending behaviour, preferring to blame others including his wife and the Police, or simply pleading ignorance.
Sixthly, consistent with Mr Safar’s failure to accept responsibility for his offending behaviour, he shows no remorse, arguing that he is innocent, he did not intend to offend, nobody was harmed, the police were wrong, and his life is very difficult.
This suggests to me that Mr Safar does not have insight into his offending behaviour. Without insight, remorse and acceptance of responsibility, the likelihood is that he will continue to offend, as he has done repeatedly over the past few years.
These factors weigh heavily against Mr Safar’s “good character” for the purposes of s 21(2)(h) of the Act.
Even though each of Mr Safar’s offences may not be within the meaning of “serious offence” under 10.5.2 of the Instructions, the pattern of behaviour and the number and kinds of his offences raise serious concerns. To my mind driving a motor vehicle while under the influence of alcohol is a serious matter. I would say the same about driving a motor vehicle at high speed while holding a provisional licence, driving at 112 km per hour in a 60 km per hour zone for example. One only has to consider the heavy road toll as reported in the media to understand the significant risk such behaviour poses to members of the Australian community. In this regard, I respectfully agree with what the Tribunal said in Re Wang and Minister for Immigration and Border Protection[10] at [7] – laws to protect users of the road “go to the essential safety of the community”.
[10] [2014] AATA 89.
Furthermore, Mr Safar’s offending behaviour has continued contrary to a good behaviour bond and, more recently, in the course of these proceedings. This, too, weighs against an assessment of “good character” for present purposes.
While Mr Safar’s domestic circumstances may be difficult, and his wife’s ill-health no doubt weighs heavily upon him, this does not mitigate his flagrant disregard for the law. It does not outweigh the factors that bear against an assessment of “good character”.
Mr Safar relies on a character witness, Mr Saadi Askharia, a Justice of the Peace. Mr Askharia’s statement is at T1 folio 5. He was not called to give oral evidence. His brief statement adds little to support Mr Safar’s case and it carries little weight.
On balance, I am satisfied that Mr Safar does not meet the test of “good character” under s 21(2)(h) of the Act. For this reason, he does not meet the eligibility requirements for conferral of citizenship at this time and the Minister’s decision must be affirmed.
That said, as will appear, the “good character” issue is not the only reason citizenship cannot be conferred on Mr Safar at this time.
BAR ON CONFERRAL WHILE PROCEEDINGS ARE ON FOOT
The proceedings arising from the 18 June 2015 charge against Mr Safar of driving a motor vehicle while his licence was suspended are on foot. As I have said, the matter is set down for mention in the Fairfield Local Court on 13 July 2015.
That being so, the bar in s 24(6)(a) presents an insurmountable obstacle for Mr Safar – the Minister, and in those shoes this Tribunal, “must not approve” conferral of Australian citizenship on a person at a time when proceedings for an offence against an Australian law are pending in relation to the person.
In the circumstances, it may be possible to defer the Tribunal proceedings to allow completion of proceedings against Mr Safar. But to my mind, in this case, it is not the preferred course. Mr Safar’s record of offending behaviour is sufficient to render any such deferral futile.
His application fails on character grounds under s 21(2)(h).
CONCLUSION
This case does not simply turn on Mr Safar’s traffic offences, although those are concerning in themselves. The important point is that his flagrant disregard for law and for community safety, and his lack of insight, point to aspects of his character that are not consistent with a person who is of “good character” for the purposes of s 21(2)(h) of the Act.
Furthermore, Mr Safar has charges against him in proceedings before the Fairfield Local Court that are on foot. For this reason, presently, citizenship cannot be conferred upon him under s 24(6)(a) of the Act.
It follows that no positive decision can be made under s 24(1) of the Act and the decision under review must be affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member ..................[sgd]..................................................
Associate
Dated 13 July 2015
Date of hearing 23 June 2015 Applicant In person Solicitors for the Respondent Mr K Eskerie, Sparke Helmore
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