Amin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 2143

Amin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2143 (5 July 2022)

Division:GENERAL DIVISION

File Number(s):      2021/1470

Re:Brijesh Amin

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:5 July 2022  

Place:Sydney

The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 19 February 2021 is affirmed.

..................................[SGD]......................................

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – application refused since delegate not satisfied that applicant is of good character pursuant to paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – issue: whether the applicant is of good character – where applicant has multiple driving offences over a short period of time – where applicant has shown some reform – on balance applicant not of good character at this time – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Apire and Minister for Immigration and Border Protection [2014] AATA 193
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

CPI 15 – Assessing Good Character Under the Citizenship Act

REASONS FOR DECISION

Mr S Evans, Member 

5 July 2022

1. Brijesh Amin (the Applicant) is a citizen of India who applied for Australian citizenship by conferral. On 19 February 2021 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) refused his application having found that he was not of ‘good character’, which is one of the requirements for Australian citizenship. The Applicant contends he meets the character requirements for conferral of Australian citizenship and seeks review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal). 

2. For the reasons which follow, the decision under review will be affirmed.

   BACKGROUND

3. The Applicant has resided in Australia since 12 March 2007 and is currently 36 years of age. On 9 November 2017 he was granted a permanent Employer Nomination Scheme (Subclass 186) visa. On 22 August 2019 he lodged an application for citizenship.[1] 

   [1] T2/16 – 55.

   LEGISLATIVE AND POLICY FRAMEWORK 

4. Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (the Act) provides that a person may make an application to the Minister to become an Australian citizen. 

5. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

6. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen. 

   Determining questions of character

7. The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

   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.[2]

   [2] (1996) 68 FCR 422, 431 – 432.

8. The Department’s official guides to decision makers, include both the Australian Citizenship Policy Statement (the Policy Statement), which details the overarching legislative requirements for becoming an Australian citizen, and the Revised Citizenship Procedural Instructions. The Policy Statement provides context to the Instructions.

9. The Instruction relevant in this matter is CPI 15 - Assessing Good Character under the Citizenship Act (the Instructions). The Instructions provide guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.

10. Informed by the discussion in Irving, subsection 3.3 of the Instructions states that:

    A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

11. The Instructions specifically call for the decision maker to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[3] A person’s enduring moral qualities encompass:

    (a)characteristics which have endured over a long period of time;

    (b)distinguishing right from wrong; and

    (c)behaving in an ethical manner, conforming to the rules and values of Australian society.

    [3] CPI 15, section 14.

12. It is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so. The Tribunal is guided by the considerations outlined above when determining whether the Applicant meets the good character requirement for Australian citizenship.

    ISSUE

13. The issue to be determined by the Tribunal is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Act.

    EVIDENCE

14. After arriving in Australia to study, the Applicant began working in hospitality, after which he transitioned to banking before beginning work with the NSW government. The Applicant and his wife have a daughter together.

15. In 2011 he was the victim in a serious violent crime in which he was stabbed and required surgery. In a statutory declaration dated 12 February 2021 the Applicant writes in part: 

    From last 3 years, I am employed at [redacted] bank and I have always been recognised for my integrity and accountability towards my work. My co-workers appreciates my behaviour towards them. They always find me helpful and some of my collogues who are my good friends now always says that you always go out of your way to help out everyone in need. Also I have a small beautiful family. I have a daughter who is 5 years old who has helped me change my views that needed to be changed towards life now. I am more matured and responsible now and understand the laws of the country better. Moreover I have learnt from my mistakes and I have promised myself and my family that this mistakes wont to be repeated ever again. I think learning from my mistakes, understanding my responsibility towards the society and myself has made me a better person now.

    [Errors in original]

16. The Applicant has provided a statutory declaration from Smriti Gourisaria who writes she has known the Applicant since March 2018. Ms Gourisaria, who was a former colleague of the Applicant, believes the Applicant to be of ‘very good moral character’ and responsible, dependable, honest and courteous.

    The Applicant’s driving record

17. In his application for citizenship, the Applicant volunteered that he had been convicted of two traffic offences, which he described as ‘drink and drive 2009’ and ‘fail for breath test 2018’.[4]

    [4] T2/31.

18. The Applicant was asked by the Respondent to provide his Roads and Maritime Services (RMS) driving record, which he did on 7 December 2020.[5] The Applicant’s RMS Traffic Record Report details traffic offences between 27 November 2008 and 23 January 2019.[6] On 9 February 2021 the Applicant was asked to comment on adverse information relating to his character, to which he responded providing the 12 February 2021 statutory declaration.

    [5] T11/88 – 93.

    [6] T11/91 – 93.

19. The offences and fines listed on his driving record include that on 27 November 2008 the Applicant was fined for exceed speed limit by more than 15 km/h but not more than 30 km/h whilst driving a motor vehicle.

20. On 14 June 2009 he was found to be driving with a high range concentration of alcohol. On 25 September 2009 the Applicant appeared in Newtown Court and was fined $1,500 for driving with high range PCA and disqualified from driving for three years.

21. In October 2012 he was issued a learner’s licence which was suspended in April 2013. On 8 July 2013 he was fined for driving whist unaccompanied by a licensed driver, not display L sign(s) as required and using a mobile phone.

22. In August 2013 he was issued his provisional drivers licence and his unrestricted licence was issued the following month.

23. In October 2014 he was fined for make unlawful u-turn and his licence was suspended briefly for defaulting on payment of the fine. He received a further fine for disobeying a turn sign at an intersection in October 2015 and in May 2017 he was fined for disobeying traffic lights. 

24. On 22 December 2018 the Applicant was charged with refuse or fail to submit to breath analysis test for which he was disqualified from driving and issued a 12-month Community Corrections Order on 14 January 2019. The Applicant was also subject to a Mandatory Interlock Order for 24 months.

25. On 26 December 2018 the Applicant was driving whilst suspended and disqualified for three months and fined. 

    The Applicant’s evidence   

26. The Applicant gave oral evidence at the hearing during which he was taken through his driving history and the documentary evidence relating to it. 

27. He explained that in relation to the 2009 drink driving offence he had not long been in Australia having arrived in January 2007. In his statutory declaration he writes in part: 

    I arrived in Australia on January 2007. Being from a strict Indian family, I never tried alcohol back home. In 2009, after settling a bit in the country, I was invited to a party which was arranged by my work colleagues. I used to work for [supermarket] at that time. I had co-workers who were from different parts of the country and were enjoying drinks and food. So I tried drinks for the first time in the party. Not aware about the feelings and harm it can cause while driving. I was very young, not  responsible and matured enough, new to the country and all by my self at that time. This offence taught me the strictness of road rules and seriousness it can lead to.

    [Errors in original]

28. At the hearing he explained that he had driven his vehicle into the curb on the way home from the party. He was sat around the corner from where his vehicle was stopped and was calling a friend to help him. Police arrived at the scene and asked if the vehicle was his, which he confirmed. He was breath tested and recorded a positive alcohol reading which exceeded the allowable limit.

29. The details of the December 2018 offending are set out in a NSW Police facts sheet.[7] The Applicant was taken through the details contained in the police account of his offending during the hearing.

    [7] T16/109 – 113.

30. The Applicant and his brother-in-law, who was visiting Australia, had been out together to celebrate the Applicant’s birthday the night before. At 7.05 am on 22 December 2018 the Applicant’s brother-in-law was driving the Applicant’s vehicle home with the Applicant asleep in the passenger seat. 

31. The vehicle was directed into a stationary random breath testing site and the driver received a positive reading. He was arrested and in the process of being taken back to the police station when the Applicant ‘alighted from the vehicle and suggested to other Police that he could drive’. What happened next is recorded in the police facts sheet.

    Police immediately assessed that [the Applicant] was moderately to well affected by alcohol, however, as he had not drank for more than 2 hours he claimed that he would be under 0.050. Despite [his] level of intoxication, Police decided to provide a breath test to show exactly how impaired he was as he was convinced he could drive. The accused was given clear instructions and he voluntarily supplied a sample of his breath which returned a roadside reading of 0.137 at 7.11am on the first attempt. He was shown the device and it was reinforced to him that he was well over the limit and he could not drive.

    [Errors in original]

32. The officers asked the Applicant to accompany them to the station with his brother-in-law but he refused. He was advised by police to take a taxi or Uber to the station, and ‘continually told not to drive as he was well over the legal limit’. The Applicant told police that he would call someone to pick him up. Shortly after, police observed the Applicant returning to his vehicle which he began to drive. It is recorded in the police facts sheet that the Applicant: 

    …hung around the vehicle a short time, before he entered the drivers [sic] seat and was seen to drive off in an easterly direction upon Mortley Avenue.

    Police gave chase and saw him tum right onto Boomerang Street. As Police turned right onto Boomerang Street, he had parked the vehicle across a driveway of a house a short distance from Mortley Ave. He remained in the drivers [sic] seat as Police had driven past him and made a u-tum to stop behind his vehicle.

33. When police approached the Applicant he told them he was moving the car so someone could pick him up. He pleaded with police to give him a chance as it was his birthday. He was told by police that ‘he was wasting his time’ and directed to produce his licence and undergo a breath test. On nine occasions the Applicant failed to provide a sufficient sample of his breath to obtain a reading, despite being able to provide a voluntary test a short time earlier. The Applicant was placed under arrest and taken to the police station.

34. At the station police attempted to obtain a sample of the Applicant’s breath for analysis. According to the police facts sheet, the Applicant delayed giving a sample by requesting to go to the bathroom multiple times and on four occasions failing to submit to a breath sample.

35. On 14 January 2019 he was convicted of Refuse or fail to submit to breath analysis-1^st off and sentenced to a Community Corrections Order for 12 months, disqualification from driving for the minimum qualification period and subject to a requirement to participate in the Alcohol Interlock Program for the minimum period of 24 months.

36. In relation to his moving the car, the Applicant writes in his statutory declaration that the ‘car was stopped a bit awkwardly so I thought I would move the car to be better spot [sic]’. He did not think at the time that this would get him ‘into trouble’. He confirmed this account during the hearing and noted that at the time he was arrested he was sat in the vehicle which was not moving.

37. When asked about his failure to provide a sample of breath the Applicant told the Tribunal that he did not have sufficient energy to keep blowing for twenty or thirty seconds. When it was put to him that he was able to successfully use the Interlock device for 24 months, he said he was only required to blow into that for five seconds at a time.

38. Police write that after the Applicant was escorted to the toilet for a third time ‘in a short period’, the Applicant made reference to ‘the 2 hour limit in conducting a breath analysis’. Police concluded it ‘was clear to Police that [the Applicant] was attempting to delay the breath analysis’. 

39. The Applicant denied refusing or attempting to delay giving a breath sample by requesting to use the bathroom and submitted that he has difficulty urinating due to a kidney issue which emerged following the 2011 assault. 

40. Regarding the conviction for the offence of Drive whilst suspended which occurred in December 2018, the Applicant claims that after the December 2018 drink drive incident, he was told by police that he would need to appear in court regarding the offending. He writes in part: 

    My car and car keys were held at the police station and I was told that I can not drive back and some one else will need to pick the car. I thought because I was drunk I can not drive and I will have to go to the court for what happened on the 22/12/2019. I was taking my daughter and brother in law to Hungry jacks … where I was pulled over. That is when I knew that my license was suspended.

    [Errors in original]

41. The police facts record that when he was pulled over on 26 December 2018 he told the officer that he did not have his drivers licence with him. When police questioned him as to why he was driving whilst his licence was suspended he told the officer ‘I didn’t know. I thought it was only for one day’.

    CONSIDERATION

42. With reference to his driving record, the Applicant concedes that he has made mistakes in the past but submits he has learnt from them and understands his responsibility towards the community. He has ongoing employment with the NSW government and donates and volunteers at temple. The birth of his daughter has given him a sense of responsibility and he has started to build a home for his family. He has invited his mother to visit from India so she can see his success firsthand. This is important to him, particularly as his mother wished for him to return to India permanently after he was assaulted in 2011. 

43. The Applicant submits that the first drink driving offence occurred when he was 24 years of age and that he now knows better. He no longer consumes alcohol and is focused on building a future for he and his family. He notes also that he was open about his driving record when he made his application for citizenship.

44. I accept that the Applicant is making a contribution to the community and is working to support his family.

45. The Respondent contends that the Applicant’s offending should not be dismissed lightly. It is argued that in refusing to provide a breath sample, the 2018 offence demonstrates a wilful disregard for authority and the law.

46. In relation to this offence, I have some difficulty accepting the Applicant’s evidence that he was unable to submit a sample of breath as he was able to do so shortly after he and his brother-in-law were initially pulled over by the police. I acknowledge his evidence relating to the injuries he sustained in the assault leading to an increased need to urinate, but the totality of the circumstances indicate that he was attempting to delay providing a sample or avoid doing so altogether.

47. The Applicant maintains that he was unaware he was unlicensed when he chose to drive on 26 December 2018. However, this explanation is undermined by the earlier police facts sheet which states that his drivers licence was ‘seized and [the Applicant] refused to sign the Notice of Suspension and demand for the surrender of [the drivers licence]’.[8] I note this explanation also appears to be inconsistent with his statement to the police officer that he was of the understanding he had been suspended from driving for ‘only one day’.[9]

    [8] T16/112.

    [9] T16/121.

48. The Tribunal has consistently regraded driving offences, particularly those involving alcohol, as serious. In Apire and Minister for Immigration and Border Protection[10] the Tribunal observed at [16]:

    … to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection^[8] at [7] – laws to protect users of the road go to the essential safety of the community.

    [10] [2014] AATA 193.

1. The Instructions provide that I am to consider the Applicant’s behaviour over time and the period of time which has passed since the offending. The Applicant’s most recent driving offence occurred in December 2018 and the Community Corrections Order was in place until January 2020. The Applicant was subject to the Alcohol Interlock Program until July 2021. In these circumstances, I accept the Respondent’s contention that an insufficient period of time has passed for the Tribunal to be satisfied that the Applicant has reformed.

2. The Instructions state that a pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that an

3. applicant is not of good character. In considering the Applicant’s driving record, on balance I am of the view that the mitigating factors which may indicate he is of good character are insufficient to outweigh his poor driving record at this time.

4. The Applicant clearly has many good qualities inherent in his character and is making a positive contribution to the community and in many aspects of his life in Australia. However, on the basis of his driving record, the limited period of time that has passed since his most recent offending and the inconsistency in his explanation for some aspects of the offending, I am unable to make a positive finding of good character at this time. As he does not satisfy paragraph 21(2)(h) of the Act, the decision under review will be affirmed.

5. I note that it is open to the Applicant to make another application for Australian citizenship should he wish to do so.

   DECISION

6. The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 19 February 2021 is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

................................[SGD]........................................

Associate

Dated: 5 July 2022

Date(s) of hearing:	15 March 2022
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms K Gawidziel, AGS