Bhatia and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 192

Bhatia and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 192 (31 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2572
Re	Rahul Bhatia
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President S E Frost
Date	31 March 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 Mr Bhatia 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 – whether applicant of good character – traffic offence – seriousness of offence – weight given to character references – applicant's acknowledgement of seriousness of offence – tribunal satisfied of good character – decision set aside and remitted 

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 21(2)(h)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Deputy President S E Frost

31 March 2016

INTRODUCTION

1. Rahul Bhatia’s application for Australian citizenship was refused on 24 April 2015 because the Minister’s delegate was not satisfied that Mr Bhatia was ‘of good character’.  Mr Bhatia has applied to the Tribunal for review of that decision.

2. At issue is whether, in accordance with s 21(2)(h) of the Australian Citizenship Act 2007, the Tribunal is satisfied that Mr Bhatia is of good character.

   FACTUAL BACKGROUND

3. Mr Bhatia is a 35-year-old citizen of India.  He first arrived in Australia in September 2008 and was granted a permanent visa in March 2013.

4. He applied for Australian citizenship in January 2015.  A delegate of the Minister, upon becoming aware of adverse information in relation to Mr Bhatia, wrote to Mr Bhatia inviting him to provide a statement of claims as to why he should be considered to be of good character.

5. The adverse information was contained in a criminal record report which showed that in August 2014 Mr Bhatia had been convicted of the offence of ‘negligent driving occasioning grievous bodily harm’.

6. In his response to the delegate Mr Bhatia explained the circumstances of the accident that led to the negligent driving conviction.  The accident occurred at 7:10 in the morning, on 5 September 2013, as Mr Bhatia was driving along Beecroft Road, just after finishing his night shift at work.  He wrote:

   Just after passing the M2 underpass and was continuing on Beecroft Road, I was suddenly blinded by the sharp rays from the sun.  It was so spontaneous that I failed to navigate a gradual right bend on the road.  I crossed over the double white lane (sic) and crashed with the car coming from the opposite lane.

7. Mr Bhatia noted that after the accident a blood sample was taken from him, which was later tested for alcohol and gave a negative result.  There is no suggestion that excessive speed was a factor in the accident.

8. Both Mr Bhatia and the driver of the other car were badly injured and were taken to hospital.  They both required surgery.  The other driver had a number of supportive screws surgically inserted in his leg and he also sustained a number of broken ribs.  Mr Bhatia himself underwent emergency surgery and had to stay in hospital for three weeks.

9. Mr Bhatia was charged and convicted under s 117 of the Road Transport Act 2013 (NSW). The maximum penalty for negligent driving, if the driving occasions grievous bodily harm, is 20 penalty units or imprisonment for 9 months or both (in the case of a first offence, which this was). Mr Bhatia was convicted and fined $1,000, and disqualified from driving for 12 months.

   THE MINISTER’S CONTENTIONS

10. The Minister contends that Mr Bhatia’s traffic offence and the way he has dealt with it render the Tribunal unable to be satisfied that Mr Bhatia is a person of good character.  There are seven factors identified in the Minister’s statement of facts, issues and contentions that support that view:

    ·first, Mr Bhatia has been found guilty of an offence against Australian law, which weighs against his being of good character;

    ·second, the offence of negligent driving occasioning grievous bodily harm is a serious offence;

    ·third, there is no evidence of any extenuating circumstances relating to the offence (Mr Bhatia’s claim that he was suddenly blinded by the sun did not persuade the court not to record a conviction);

    ·fourth, the fact that Mr Bhatia pleaded not guilty to the offence aggravates the situation as it indicates that he did not accept responsibility for his conduct;

    ·fifth, at 33 years of age, Mr Bhatia cannot use his age as an excuse;

    ·sixth, not enough time has passed since the 12-month driving disqualification ended in August 2015, for Mr Bhatia to demonstrate a pattern of good driving behaviour;

    ·seventh, there is no evidence of Mr Bhatia’s rehabilitation or a change in his character since the offence.  Moreover, since he continues to blame the offence on his being blinded by the sun, his claim that he accepts responsibility for the offence should not be accepted.

11. In addition, Mr Eskerie, who appeared for the Minister, emphasised that the references submitted in support of Mr Bhatia’s application generally do not acknowledge the seriousness of the traffic accident or the fact of his conviction and sentence.

12. While that shortcoming had been raised with Mr Bhatia by the delegate, it was not referred to in the Minister’s statement of facts, issues and contentions lodged with the Tribunal for the purposes of the review application.  I thought the references would be important in a case like this and so I allowed Mr Bhatia some extra time after the hearing to seek additional references to support his application.  He provided those additional references on 19 February 2016.  On 4 March 2016 Mr Eskerie indicated to the Tribunal that the Minister wished to make no further submissions.

    MR BHATIA’S CONTENTIONS

13. Mr Bhatia accepts that the accident was his fault.  He does not seek to blame anybody else for it, but he does say that the reason why he strayed onto the wrong side of the road was that he was blinded by the sun’s rays.

14. He has reflected on the circumstances of the accident and now acknowledges that the simple precaution of wearing sunglasses or using the car’s sun visor could have prevented it.

15. He also contends that the accident in September 2013 was an isolated incident.  He has been driving for about 17 years, both in Australia and overseas, and this is the only driving offence he has ever committed. 

16. He has a number of character references from his employer, friends and associates.  They attest to his kindness, determination, professionalism, diligence and integrity.

17. Mr Bhatia notes that he complied in full with the 12-month driving disqualification imposed upon him, by not driving at all during that period.  That full compliance confirms the respect he has for the law.

18. Mr Bhatia appeared bemused by the Minister’s contention that he needs to rehabilitate himself before he can be accepted as a person of good character.  How, he asks rhetorically, does a person rehabilitate himself from a one-off traffic accident that occurred while he was blinded by the sun?

    CONSIDERATION

19. The approach taken by the delegate relied heavily on the Australian Citizenship Instructions (ACIs), a departmental document intended to guide delegates in their decision-making.  The Minister’s statement of facts, issues and contentions also draws on that document.

20. The ACIs note that the concept of character refers to a person’s ‘enduring moral qualities’, an expression used by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431. They also note, correctly, that it is for the applicant (here, Mr Bhatia) to satisfy the decision-maker (here, the Tribunal) that he is of good character. The Tribunal must be positively satisfied of that before it can overturn the delegate’s decision.

21. Although Mr Bhatia’s traffic offence is an isolated one, it is a very serious one.  Both Mr Bhatia and the other driver were very seriously injured and their recuperation took a long time.

22. The Local Court viewed the offence very seriously, as is evident by the fact that a conviction was recorded and a very heavy sentence was imposed.

23. But what does the offence say about Mr Bhatia’s character?  I think it says very little.  A single driving conviction of this nature, even one resulting in serious injury to the driver and another person, does not always amount to a blemish on a person’s character, or enduring moral qualities.  Particularly in Mr Bhatia’s case, when on the positive side of the ledger he has 17 years of offence-free driving, it does not have that effect.  And although the conviction appears to offend clause 10.3.4 of the ACIs, which suggests, quite properly, that people of good character would:

    ·respect and abide by the law in Australia and other countries

    ·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurers),

    decision-makers still need to consider an applicant’s circumstances in their entirety.  There is a big difference between a person who wilfully drives negligently and causes injury to an innocent third party, and a person who is involved in the kind of car accident that Mr Bhatia was involved in.

24. The revised references Mr Bhatia has provided are of more assistance to him than his earlier ones were.  Each of them identifies and acknowledges the offence of which Mr Bhatia was convicted.

25. Mr Bhatia’s ‘Head Boss’ at his place of employment, Vodafone, says that he “hold[s] Rahul’s character in the highest regard”.  He adds:

    I have seen him take his punishment on the chin & strive diligently to recover & get back to work. This demonstrates a character that can handle difficult times & continue to maintain himself & support those around him, which is something Rahul does every day at work.

26. The other referees speak highly of Mr Bhatia and confirm the view of him that I gained when I had the opportunity to observe him during the Tribunal hearing.  He is a man deeply and sincerely regretful of the driving offence and of the injury caused to the other driver.  He is clearly, in my view, a person of good character.

    DECISION

27. The decision under review is set aside.

28. I remit the matter to the Minister for reconsideration in accordance with the direction that Mr Bhatia is ‘of good character’ within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

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

Associate

Dated 31 March 2016

Date(s) of hearing	21 January, 4 February 2016
Date final submissions received	4 March 2016
Applicant	In person
Solicitors for the Respondent	Sparke Helmore Lawyers