Beryar and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 482

DECISION AND REASONS FOR DECISION [2002] AATA 482

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2002/8

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Jatinder Singh Beryar
  Applicant
           And    Minister for Immigration and Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr G A Mowbray

Date5 June 2002
PlaceCanberra

Decision      For reasons given orally the Tribunal sets aside the decision under review, being a decision made by a delegate of the Minister on 21 December 2001, and remits the matter to the Minister for reconsideration with a direction that Jatinder Singh Beryar be granted a certificate of Australian citizenship.
  ..............................................
  Member
CATCHWORDS
CITIZENSHIP - whether applicant is of good character
Australian Citizenship Act 1948, s 13(1)(f)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84; 68 FCR 422
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; 25 AAR 231
Re Moefaauo and Minister for Immigration and Multicultural Affairs [2001] AATA 289

REASONS FOR DECISION

20 June 2002 Mr G A Mowbray

History of the Application

On 14 November 2001 Jatinder Singh Beryar made an application for grant of Australian citizenship. In that application he indicated that he had been convicted of drink driving in August 2001. His licence was disqualified until October 2002. He was fined $500 and placed on a two year good behaviour bond.
On 21 December 2001 an officer from the Department of Immigration and Multicultural and Indigenous Affairs wrote to Mr Beryar advising him that his application had not been approved. The reason given was his failure to meet the requirement in section 13(1)(f) of the Australian Citizenship Act 1948 that he satisfy the Minister of his good character. Specifically his criminal history was cited. Mr Beryar made an application to the Tribunal for review of this decision on 7 January 2002.
The hearing for this matter was held on 5 June 2002. Mr Beryar represented himself and the Minister was represented by Mr Neely of the Australian Government Solicitor. Oral reasons for decision were given on the day of the hearing, setting aside the decision under review and remitting the matter to the Minister for reconsideration with a direction. On 12 June 2002 the Tribunal received a request for written reasons from Mr Neely on behalf of his client pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.
Background
Mr Beryar was born on 28 February 1966 and he is a citizen of India. He married Balwinder Kaur in India in November 1993. They have a son, Taranvir Singh, born in India on 5 September 1996. Mr Beryar first arrived in Australia from Singapore on 16 August 1996 on a Subclass 686 (Visitor) visa in the name of Narinder Singh using an Indian passport. Mr Beryar applied in Australia for a Subclass 866 (Protection) visa on 14 November 1996. He was granted a permanent visa of that Subclass on 2 July 1999. He has made several trips overseas since the grant of that visa travelling on an Australian travel document.
Following an incident on 25 April 2001 at Kingswood in New South Wales, Mr Beryar was charged with an offence of "drive with high range prescribed concentration of alcohol". He was convicted at Penrith Local Court on 17 August 2001. The court fined Mr Beryar $2500, imposed a two year good behaviour bond and disqualified him from driving for two years commencing on 17 August 2001.
On 11 October 2001 the Parramatta District Court decided Mr Beryar's appeal against the severity of the sentence. Judge Tupman confirmed the conviction, varied the penalty by fining Mr Beryar $500, confirmed the two year good behaviour bond and disqualified him from driving for twelve months commencing on 11 October 2001.
Mr Beryar's spouse arrived in Australia on 27 September 2001 and his son arrived in Australia on 27 March 2002. Both travelled to Australia on Subclass 309 (Spouse (Provisional)) visas.
Legislation and Guidelines
The relevant section of the Australian Citizenship Act 1948 is section 13(1). Section 13(11) was also referred to in argument, particularly paragraph (b)
"13 Grant of Australian Citizenship
(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a) the person is a permanent resident;
(b) the person has attained the age of 18 years;
(c) the person understands the nature of the application;
(d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f) the person is of good character;
(g) the person possesses a basic knowledge of the English language;
(h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j) if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
…
(11) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) or (9) or include the name of a person in a certificate of Australian citizenship under subsection (10):
…
(b) during any period during which the person is confined to a prison in Australia;
…
…"
I also refer to the Australian Citizenship Instructions. Their purpose is explained in the introductory chapter as follows
"1.1.3The Australian Citizenship Instructions (ACI) contain approved policy guidance in relation to the powers of the [Australian Citizenship] Act. The ACI has been prepared for the guidance of all officers who carry out citizenship functions in Australia or overseas."
Chapter 5 of the Instructions deals with character requirements
"5.1 FRAMEWORK AND PROCEDURES
…
5.1.3If there is credible and relevant information that suggests that the applicant might not meet the character requirements, the following procedures apply:

Consider the information against the guidelines in 5.2, 5.3 and 5.4.
If the case may be one for refusal, the information must be put to the applicant at interview or by letter before any finding of fact is made…
If the case is one for approval, the information need not be put to the applicant.
If there is adverse personal information that the decision-maker finds is not relevant to the decision or is not credible, that information does not have to be put to the applicant. The decision-maker, however, should note in the decision record that he or she did not take the information into account."
"5.4 GOOD CHARACTER REQUIREMENT s 13(1)(f)
…
5.4.2The term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.
5.4.3If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character. An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.
5.4.4Assessment of good character involves:
establishing whether or not an applicant has a criminal record or whether there is other information which suggests they may not be of good character;
according procedural fairness to the applicant where there is credible, relevant, adverse information on their character (see 5.1); and
considering the full circumstances relating to the relevant matters and evidence of the applicant's behaviour since then. Factors to be considered include, but are not limited to, those in the following paragraphs.
…
5.4.6Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.
…
5.4.8Consider whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond. The existence of a bond may indicate that insufficient time has elapsed since the commission of the crime to establish the applicant's good character. However, there may be circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond…
…
5.4.10Consider whether a crime was a one-off occurrence that can now be considered "out of character", or whether the person's criminal record shows repeated offences for which a conviction has been record and a pattern of unlawful behaviour which would suggest that the applicant is not of good character…
5.4.11Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.
…
5.4.13A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
5.4.14The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.
5.4.15The applicant's present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the commuinity by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight."

Evidence

The documentary evidence which was received consisted of the T-documents provided under section 37 of the Administrative Appeals Act 1975 (T1 to T12), the Applicant's documents A1 and A2 and the Respondent's documents R1 to R3. Oral testimony was received from Mr Beryar and Mr Geoff Smith, a former employer of Mr Beryar.
Issues
The Minister concedes that Mr Beryar meets all the requirements of section 13(1) for the grant of a certificate of Australian citizenship apart from the character requirement in section 13(1)(f). Therefore the only issue before me is whether Mr Beryar has satisfied me that he is of good character.
Consideration of Issues
Section 13(1) relevantly provides:
"…the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(f) the person is of good character;"
The underlying principles in this matter are fairly well accepted. The onus is on the Applicant to satisfy the Tribunal that he is of good character. Guidance as to the interpretation of the phrase "good character" can be found in what the courts have said of a similar requirement in section 501 of the Migration Act 1958. The accepted test for good character is that it concerns the "enduring moral qualities of the person", as expressed by Justice Lee in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94; 68 FCR 422 at 431-2
"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 while 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)
The Tribunal should follow publicly declared Ministerial policy or departmental guidelines unless there is some good reason not to. In Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; 25 AAR 231 Deputy President Chappell said (at 777; 237-8)
"It is also true that the policy set out in the ACI does not have the force of delegated legislation and is not strictly binding on the Tribunal. Nevertheless, the Tribunal has consistently stated that it will follow publicly declared ministerial policy or departmental guidelines unless there is some good reason not to: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; 33 ALD 13; 19 AAR 266. The Tribunal will generally not follow policy if it is inconsistent with the provisions of an Act or regulation or causes injustice in a particular case."
It also appears to be accepted that the standard of good character should be even higher for citizenship cases than for matters under section 501 of the Migration Act, because of the importance of citizenship and the greater responsibilities and privileges attached to it (Re Mlinar at 776; 236).
The role of the Tribunal is to examine all the relevant evidence going to the Applicant's enduring moral qualities, both that evidence in favour of the Applicant and that against, and then to make a finding whether the Applicant is of good character. No one matter is conclusive, rather the Tribunal is to make an objective assessment having regard to all the evidence.
Only one matter is pressed against Mr Beryar. It is a serious matter and not to be outweighed lightly. Mr Beryar has a serious criminal conviction for driving with a high range of prescribed concentration of alcohol. I have already referred to the fact that he was convicted in the Penrith Local Court on 17 August 2001 and that the penalty was reduced on appeal by Judge Tupman on 11 October 2001. However, the two year good behaviour bond was confirmed.
In her judgment (Exhibit R2) Judge Tupman had this to say
"There is certainly no doubt that the grounds are made out for a substantial reduction in the fine, notwithstanding the serious nature of the offence. It seems to me that effectively fourteen months off the road in the circumstances is sufficient at first blush. This is a very serious offence because of the extremely high reading and it is very fortunate indeed that he did not injure himself, or for that matter anyone else on the road between Penrith and the time he got to his home, but fortunately he did not. The surrounding circumstances are such, it seems to me, that he can call for a degree of leniency. It is refreshing that he is not asking for the ultimate leniency where refusal would have to be the case given the very high reading, but in the circumstances, given his financial circumstances and his otherwise good driving record for a person who is driving as a taxi driver, I am prepared to reduce it to the minimum period of disqualification and to reduce the fine to $500."
Mr Neely on behalf of the Minister submitted this is a serious offence reflected by the nature of the charge, that is "drive with a high range prescribed concentration of alcohol". He also submitted that as the good behaviour bond does not expire for some time, that is until the second half of next year, the Tribunal could not be satisfied that Mr Beryar is of good character. Mr Beryar is still on trial and any decision on his character should await the result of that trial, that is to see whether there is any breach of the good behaviour bond. It was in the context of this submission that Mr Neely referred to section 13(11) of the Australian Citizenship Act. He conceded the subsection did not apply to Mr Beryar at present, but referred to the possibility of Mr Beryar being imprisoned should he breach his bond.
I might say that to some extent this submission is beside the point. I do not have the luxury of waiting to see whether or not a hypothetical situation arises. I must make a decision on character today.
Judge Tupman referred to the surrounding circumstances of the offence without giving details. The uncontested evidence of Mr Beryar is that on the day in question he had received bad news about his attempt to obtain a passport for his son.
His son had been born since Mr Beryar left India. Mr Beryar had never seen him. He had been attempting to obtain a passport for his son so that he could come to Australia. On the day in question, Mr Beryar received a phone call from his agent in India saying that there was no chance of obtaining a passport for Mr Beryar's son. Mr Beryar said in evidence this was due to his own political activities.
That same day Mr Beryar went drinking with some friends and had an accident near his home. He testified that apart from this one occasion he did not and does not drink alcohol. This incident was out of character. It was a one-off. This version of events was supported by Mr Geoff Smith in his evidence.
I turn now to considerations in favour of Mr Beryar. Mr Beryar gave evidence that he had never committed any other offences in Australia or overseas, that no complaint had ever been made against him as a taxi driver, and that he respects the law and tries to follow it. He has strictly complied with the conditions of his bond. Mr Beryar says he is a religious person and attends the temple. Indeed, he helped construct a temple as a volunteer when he was living in Sydney.

Leaving aside the one incident which led to his conviction, he said he does not drink. He is ashamed of this incident and it has brought shame on him. Mr Beryar says he is a refugee and wants to become an Australian. Australia is his country now. He wants to contribute to its development and not be a burden on it. Mr Beryar also spoke of some of his plans for the development of business activities.
Mr Geoff Smith, for whom Mr Beryar had driven a taxi for some years and who is a friend, gave oral evidence by phone and spoke very highly of him. In general, he supported Mr Beryar's evidence. He said that Mr Beryar was very reliable and that all his colleagues and friends respected him. Mr Beryar had provided no trouble when he was driving and had no other convictions that Mr Smith was aware of. Mr Smith had no complaints about Mr Beryar. He took good care of his taxi, he was very sincere and respected by people in Penrith. Mr Smith regarded him as one of the best taxi drivers he had employed. He has never seen him drink and he would employ him again if the opportunity arose.
Statements were also provided to the Tribunal from two other friends or colleagues of Mr Beryar. The first is from Dr Gurmeet Singh Brar (Exhibit A1)
"Dear Sir,
With reference to the above-mentioned's application for citizenship, I as a close family friend, would like to mention that Mr Jatinder Beryar is of decent character with good maral (sic) values. I know him for the past six years and have no doubt about his integrity as a good person. Although he has a current charge for drink-driving, in fact it was a rarity and a total disbelief for many of his friends and family to have heard about his offence. It was a turbulent time for him at that point in time as he was experiencing some personal family problems which have since been rectified."
Secondly, from Mr Baldev Singh (Exhibit A2)
"This is to certify that I have known Jatinder Singh Breyer (sic), of (address) for approximately ten years.
During this time I have found Jatinder to be very honest and sincere. He is reliable, and well respected by his colleagues and fellow community members. He comes forward in times of need and is very approachable. He is known to be a strict Sikh, and very dedicated to his religious practices. He has a decent background and has a high standard of moral values for himself. Although he has an offence of driving at this time, it is not a reflection of his regular conduct.
It was quite a surprise to learn about his drink driving charge. I am aware of some problems regarding bringing his family to Australia, and this could have partly contributed to these charges. He has had a safe driving record for many years and I hope this one-off careless mistake does not impair his application for citizenship. It would be greatly appreciated if his application for citizenship is looked into seriously."

Conclusions

I am conscious of the very serious nature of the offence that Mr Beryar has committed. But weighing up all the relevant evidence before me I am confidently satisfied that Mr Beryar is a person of good character. That is, his enduring moral qualities are such as to allow me to make this finding. He did commit a serious crime, but the evidence strongly supports this as out of character and a one-off event.
Paragraph 5.4.8 of the Australian Citizenship Instructions states
"Consider whether there are any on-going obligations in relation to the sentence received, such as the existence of a good behaviour bond. The existence of a bond may indicate that insufficient time has elapsed since the commission of the crime to establish the applicant's good character. However, there may be circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond."

I believe that this is a case where there are "circumstances in which a person is considered to be of good character despite the existence of a good behaviour bond". The following passage from the decision of Deputy President Escort in Re Moefaauo and Minister for Immigration and Multicultural Affairs [2001] AATA 289 at paragraph 13 is apposite

"In the circumstances, I am not satisfied that as a result of this one unfortunate incident it could be said that Mr Moefaauo's enduring moral qualities are so deficient as to show that it is for the public good to refuse citizenship. I am satisfied that, notwithstanding this incident, the applicant can be said to be of good character."

I consider Mr Beryar's case to be similar. All the evidence apart from the conviction, including the fact that Mr Beryar was completely transparent about his conviction when he applied for citizenship, and indeed Mr Beryar's demeanour before this Tribunal, supports the conclusion I have reached that Mr Beryar is a person of good character. I so find.
It is a pity that this case ever came to the Tribunal for hearing. I appreciate the Tribunal's role is to hear the matter again, but the delegate's decision is seriously flawed. If the delegate had followed the extracts from the Australian Citizenship Instructions which were provided to me, she would have had available to her the evidence that I have had before me today. The reasons she provides for refusing the application are, in my view, totally inadequate. I am surprised that the Department did not rectify this matter before it came to a hearing before the Tribunal.
Decision
The decision of the Tribunal is to set aside the decision of the delegate of the Minister dated 21 December 2001 and remit the matter to the respondent with the direction that the applicant be granted a certificate of Australian citizenship.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:         .....................................................................................
  Associate
Date of Hearing  5 June 2002
Date of Decision  5 June 2002
Date of Written Reasons         20 June 2002
Counsel for the Applicant        Self-represented
Counsel for the Respondent    Mr Jim Neely
Solicitor for the Respondent    Australian Government Solicitor