Bowdler and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 347
•2 March 2018
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347 (2 March 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2624
Re:Adam Bowdler
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:2 March 2018
Place:Sydney
The Tribunal affirms the decision under review.
........................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – whether applicant of good character – attempt to conceal relevant and material facts – lengthy traffic record – criminal record – road safety as a community concern – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21(2)(h)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10(1) and 43
Road Transport Act 2013 (NSW) s 208
CASES
Da Wei Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Safar and Minister for Immigration and Border Protection [2015] AATA 503
Sharma and Minister for Immigration and Border Protection [2015] AATA 608Wang and Minister for Immigration and Border Protection [2014] AATA 89
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Chris Puplick AM, Senior Member
2 March 2018
1. BACKGROUND
Mr Adam James Bowdler is a United Kingdom citizen who arrived in Australia on 24 January 2010. He is a permanent resident, he is fully employed and represented himself in these proceedings. At the time of his arrival he apparently held some form of overseas driver’s licence recognised as valid in NSW.
On 9 August 2016 Mr Bowdler submitted an application for grant of Australian citizenship by conferral. On 4 May 2017 the Minister’s delegate refused Mr Bowdler’s application on the grounds that he was not of good character, one of the requirements which must be met as outlined in the relevant section of the Australian Citizenship Act 2007 (Cth). On the same day Mr Bowdler submitted his application to the Tribunal for a review of that decision.
The matter was heard before the Tribunal on 19 February 2018.
2. THE FUNDAMENTAL ISSUES
As will be evident from the discussion which follows, this application boils down to two central and salient issues:
(a)did Mr Bowdler deliberately mislead the Department by concealing relevant and material facts from his citizenship application, and
(b)is Mr Bowdler’s driving record of such a nature that, taken together with the above, it leads this Tribunal to the conclusion that he is not a person of “good character” for the purposes of the Australian Citizenship Act?
3. REFUSAL OF THE APPLICATION: CITIZENSHIP CRITERIA
Section 21(2) of the Australian Citizenship Act establishes criteria for the eligibility of citizenship. It enumerates from (a) to (h) a series of qualifications, each of which must be met to the satisfaction of the Minister.
It is conceded in this matter that Mr Bowdler meets the criteria which are set out in sections 21(2) (a) to (g) and as result it is not necessary to enumerate them or to comment further upon them.[1]
[1] Decision Record dated 4 May 2017 at page 11 [T document at p. 16]. This statement was confirmed by the Respondent’s representative in evidence on 19 February 2018
The Minister however contends that the Applicant does not meet the qualification set out in section 21 (2) (h) which requires that he be:
“of good character at the time of the Minister’s decision on the application”.
The whole of Mr Bowdler’s application turns on this qualification and failure to meet it must necessarily be fatal to his application.
4. EVIDENCE BEFORE THE TRIBUNAL
The material produced in evidence to the Tribunal consists of two sets of documents, the “T-Documents” and a “Supplementary” collection of documents. The former relates to Mr Bowdler’s formal application for citizenship and the latter to matters related to his driving record.
4A. The Citizenship Application
On 9 August 2016 Mr Bowdler lodged an application for citizenship by conferral. He did so online using the Application for Australian Citizenship by Conferral – General Eligibility 1300t (Electronic lodgement) form. In that he was required to give details in response to the question (29(a)):
“Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?”
Mr Bowdler answered in print “Yes: 2011- Low Range PCA 0.052 section 10 dismissal”.
In the document before the Tribunal, which is a copy of the application lodgement form, there is an annotation which Mr Bowdler agreed was in his own handwriting adding the following words to that section of the form: “2016 – Low Range Pca 0.051 5/10 3 month disqual” (sic). [T-29].
The exact provenance of this addition is unclear, but the evidence before the Tribunal shows, and Mr Bowdler admitted in cross-examination, that when he lodged his original application for citizenship he failed to include this material fact, namely a second conviction for a low range PCA offence. Thus his statement was not one attesting to “all traffic offences which went to court” which was what was required to complete the application honestly.
Mr Bowdler was questioned at length about this omission which he claimed initially was a result of the offence occurring after he had lodged the original application. He stated in evidence that:
“It was not like I tried to dodge the bullet – you can’t dodge the bullet.”
However under cross-examination it became clear that the offence had occurred prior to the application being lodged, and Mr Bowdler conceded that it should have been included.
There is also the matter of a further offence – discussed below at [22] – in which Mr Bowdler gave false information to the Police when being questioned about a traffic offence in May 2016 and was convicted of doing so. This is clearly another material fact which should have been presented to the Department as part of the answer to the question which was on the application form. I note that the Respondent, while submitting evidence about Mr Bowdler’s driving record in some detail,[2] only cross-examined him in relation to a limited number of these incidents, namely the PCA charges and this matter. I will address these other issues below (see at [58]).
[2] Respondent’s Statement of Facts, Issues and Contentions at pages 9-11
This clearly raises the question of whether or not Mr Bowdler was attempting to conceal material facts from the Department, or whether there was some other explanation for their omission. The Tribunal cannot determine this but the fact remains that the citizenship application, as submitted, was not entirely accurate in the way in which it should have been and Mr Bowdler did not discharge his responsibility to give full and frank answers in the way which he should. This does not reflect to his credit.
In submissions to the Tribunal at hearing, the Respondent placed considerable weight on this and reasserted that Mr Bowdler had deliberately sought to mislead the Department about his criminal record; that he had been untruthful in relation to several of the offences which he had committed both in his submissions to the Department and during the hearing and that there was insufficient evidence that he had “reformed” his behaviour in such a way as to be able to claim that he was of “good character”.
Furthermore the Respondent sought to portray this as part of a pattern of behaviour on the part of Mr Bowdler who, the Respondent asserted, made something of a habit of denying the existence of inconvenient facts and providing false or misleading information to the authorities.
4B. The driving record
There was considerable evidence elicited in cross-examination related to Mr Bowdler’s driving offences during the course of which he made several important concessions which I need to consider.
He agreed that he had committed two low range PCA offences, although noted that the first of these was a proven offence but with no conviction recorded as a result of the application of section 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Mr Bowdler had previously sought to discount the impact or relevance of this offence on the basis that a “first” offence should not be taken into account when considering matters such as those before the Tribunal.
Secondly there was an incident on 17 May 2016 in which Mr Bowdler’s vehicle was stopped by the Police after a check of its registration status.[3] When asked to establish his identity, Mr Bowdler initially asserted that he did not have his driver’s licence with him and gave the Police a name which turned out to be false and an address which was a previous, but not current address. A search of the vehicle (which did not belong to Mr Bowdler but to the person whose name he gave) revealed a wallet in which Mr Bowdler’s driver’s license was found. Mr Bowdler claimed that he gave a false name because “I just didn’t want the fine.” He persisted with this in evidence before the Tribunal. On the other hand the Respondent contended that the reason that he gave a false name was that he was, at that time, driving while disqualified.
[3] Police Record tendered as evidence in Supplementary - documents at page 4
The question of whether or not Mr Bowdler was actually disqualified at the time is difficult to establish definitively from the material before me and so his eventual concession, under cross-examination that he was driving while disqualified is significant.
Mr Bowdler claims that he has made nine appearances before the Burwood Local Court and four before the Downing Centre Local Court in relation to traffic offences.
Not all of that material is before the Tribunal and Mr Bowdler asserts that this prevents the Tribunal from having a “complete picture” of all the relevant facts. Under cross-examination Mr Bowdler conceded that he did have time to assemble all the material which he needed to present to the Tribunal but he had failed to do so. The Respondent contended that this was because no such material existed.
The Tribunal is in no position to determine this matter one way or another.
There is however evidence that on one occasion Mr Bowdler was summonsed to appear in both Courts on the same date and that his failure to appear at one of them resulted in a summons for his arrest.
There is also evidence that on 18 March 2016 a sentence consequent upon Mr Bowdler’s guilty plea to a second PCA offence resulted in the imposition of a fine, a three month disqualification from driving and the making of a Mandatory Interlock Order. [Supplementary-38].
By letter dated 29 April 2016, the Manager, Sanctions Unit, Roads and Maritime Service wrote to the Local Court Registrar drawing attention to the fact that the imposition of the interlock penalty was incorrect as the PCA offence in question was a “first” offence for the purposes of s 208 of the Road Transport Act 2013 (NSW) whereas the Local Court had taken it as a repeat offence.[Supplementary-37]. As a result the matter was relisted to have the sentence corrected under s 43 of the Crimes (Sentencing Procedure) Act. A relisting date was set for 14 July 2016 with the requirement for the applicant to be present [Supplementary-43]. The applicant was unable to be present on that date and the matter was relisted for an earlier date of 11 July 2016 [Supplementary-48].
On that date Mr Bowdler failed to appear in Burwood Court and was convicted of the offence of driving while disqualified and an arrest warrant was issued for him to appear to be “dealt with according to law.” This warrant was executed.
In any event, although this again is unclear from the material before me, at least the Mandatory Interlock Order was quashed although whether other penalties were quashed remains an open question.
Nevertheless, given that the original disqualification was recorded on 18 March 2016, and the matter was not back before the Court for redetermination until July 2016, it is clear that at the time of the incident which resulted in Mr Bowdler being stopped by the Police on 17 May 2016, Mr Bowdler was driving while disqualified.
Although Mr Bowdler originally asserted that he had somehow been advised in the Burwood Court that as he was intending to appeal the decision it was permissible for him to regard it as not having come into effect and so continue driving, this is a claim which is unsupported and which I cannot accept.
It is also the fact that Mr Bowdler’s claim that he lodged an appeal against the sentence by “filling in a form on the fourth floor of the Downing Centre” is again unsupported by any evidence whereas it is clear that the initiative for the revision of the sentence of a Mandatory Interlock Order was generated by the Roads and Maritime Service itself.
I note that under further cross-examination Mr Bowdler conceded that he in fact had been driving while disqualified which brings into question his credibility in allegedly informing the detaining Police officers on 17 May that “[I] wasn’t aware my driver’s licence was disqualified.” [Supplementary-57]. It also lends credence to the Respondent’s submission that Mr Bowdler’s attempts to give the Police a false identity on 17 May were motivated by his desire to conceal the fact that he was knowingly driving while disqualified.
Unfortunately for Mr Bowdler this was actually not the first occasion upon which he had had his driving permission suspended. A copy of his Traffic Record Report dated 28 June 2016, which was supplied to Mr Bowdler and to which he made no objection or correction, records that from 25 June 2013 to 24 November 2013 Mr Bowdler’s NSW visiting driver’s privileges were withdrawn “on the grounds that he was not a fit and proper person”. [Supplementary-86].There is no evidence or suggestion that he drove during this period without a valid licence, rather it shows that the 2016 licence suspension was not his first.
A further matter which was canvassed in evidence and to which I have had particular regard relates to material supplied to the Department directly by Mr Bowdler in response to their original notification of the refusal to grant citizenship. This appears at page 64 of the T-Documents although it is undated. In it Mr Bowdler states that the offence of 17 May (resulting in a conviction on 28 June 2016) was for:
“Driver state previous address. MINOR OFFENCE $500 FINE.”
Under cross-examination Mr Bowdler conceded that in fact this offence was not supply of a previous address, but rather the provision of a false name and address, which the Respondent, rightly in my view, characterised as a significant attempt to minimise its gravity or mislead the Department in making their assessment of his application.
At the commencement of cross-examination, the Respondent drew my attention to an incident which took place on 23 December 2016 resulting in Mr Bowdler being issued with a Criminal Infringement Notice for offensive conduct arising from an altercation at a pub on George Street, Sydney.[Supplementay-3]. Mr Bowdler gave an explanation of this incident and I am inclined to accept his version of events, and draw no adverse conclusions in relation to his character from this matter.
5. MATTERS OF GOOD CHARACTER
The Australian Citizenship Act at section 21 sets out the grounds upon which a person’s eligibility for citizenship is to be assessed. As noted in [6] above, the Respondent concedes that Mr Bowdler’s application has been rejected because he allegedly fails one of the eight criteria, although meeting the other seven. [T-16].
The criteria “failed” is that of being “of good character at the time of the Minister’s decision on the application.” (section 21(2)(h)).
The Act contains no definition of what constitutes “good character” but in making its determination the Tribunal is guided by judicial interpretation and by the Citizenship Policy published by the Department dated 1 June 2016.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
“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.”[4]
[4] (1996) 68 FCR 422 at 431-432
The Citizenship Policy (at p. 145) elaborates this by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
· “characteristics which have been demonstrated over a very long period of time
· distinguishing right from wrong
· behaving in an ethical manner, conforming to the rules and values of Australian society.”
Policy however is not the same as law. As this Tribunal said in Aston:
“Policy is not law. A statement of policy is not a prescription of binding criteria.”[5]
[5] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21]
Nevertheless I must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions of good character.[6]
[6] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Page 147 of the Citizenship Policy lists 10 “characteristics of good character” which are to be expected in an applicant for citizenship. Critically in this case, one of those is:
“be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information ….. during visa and citizenship applications
……..
·concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
…………..
·giving false names and/or addresses to police.”
Prima facie Mr Bowdler has failed to meet these criteria and this must count against his application, although on their own, I would not necessarily have found them fatal to his citizenship application.
6. THE RESPONSIBILITIES OF CITIZENSHIP
Just as citizenship is a privilege granted or not, on the basis of meeting certain prescribed tests, for those not automatically qualified for it, so equally the holding of a driver’s licence is a privilege granted by meeting certain prescribed tests. No one has an automatic right to hold a driver’s licence. It may be granted with conditions and, like citizenship granted by conferral, it may be revoked or cancelled if the subsequent behaviour or activity of the individual warrants it.
Both the acquisition of citizenship and the acquisition of a driver’s licence involve the concomitant acquisition of responsibilities.
In both cases these involve matters of respect for other people; respect for the laws and lawful authorities; responsibility to act in a way which does not endanger others and a general requirement to act as a trusted holder of a privilege.
While not seeking to equate the privileges of citizenship with those of holding a driver’s licence, it is not unreasonable to believe that a person who demonstrates a callous and repeated disregard and a failure to accept the responsibilities of one may well manifest the same attitude towards the other.
7. ROAD SAFETY – A COMMUNITY AND TRIBUNAL CONCERN
(a) Tribunal guidance
This Tribunal has, in recent decisions, demonstrated an increasing awareness of the disastrous impact on the Australian community of a rising road toll. Road safety is a matter of legitimate concern to all responsible citizens and to this Tribunal.
In Wang and Minister for Immigration and Border Protection the Tribunal remarked that the Applicant had:
“…continued to disregard the laws whose purpose it is to protect users of the road. Those laws go to the essential safety of the community.”[7]
[7] [2014] AATA 89 (28 January 2014) at [7]
In Safar and Minister for Immigration and Border Protection, the Tribunal (quoting with approval, the above passage from Wang) stated:
[28] Even though each of Mr Safar’s offences may not be within the meaning of “serious offence“ under 10.5.2 of the Instructions[8], 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.”[9]
[8] Since replaced by the Citizenship Policy document
[9] [2015] AATA 503
In assessing claims for citizenship it is not improper, in my view, for the Tribunal to take into account whether or not an applicant for citizenship has, by his past behaviour, demonstrated that he has and may very well continue to act in a fashion which puts at risk the lives and wellbeing of other Australians.
In Da Wei Zheng and Minister for Immigration and Citizenship, Deputy President Forgie reflected on aspects of the character test when she said that one aspect of the test was a requirement to uphold and obey the laws of Australia which might be:
“measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character.”[10]
[10] [2011] AATA 304 at [120]
(b) Mr Bowdler’s driving record and responses
Mr Bowdler’s driving record, only part of which was examined in evidence (see at [16] above) may be summarised thus:
·2 offences of drink driving
·1 offence of driving while disqualified
·1 offence of driving while his passengers were not wearing seat belts
·2 offences of driving while using a hand-held mobile phone
·9 (possibly ten – with one subsequent to the lodging of T documents) offences for speeding
·3 offences for driving an unregistered vehicle
·2 offences for driving an uninsured vehicle
·1 offence of failing to produce a driver’s licence to a police officer
·1 offence of providing a false name or address to a police officer.[11]
[11] Consolidated from the list provided in the Respondent’s Statement of Facts, Issues and Contentions (doc ref) at pages 10 and 11, supported by record of offences provided by NSW Police Force [Supplementary-2] dated 17.10.17 pages 2-10
In addition Mr Bowdler has twice been apprehended for the offence of travelling on public transport without a ticket and twice been given criminal infringement notices for offensive behaviour. Finally there was one infringement notice issued for “putting feet on seat in or on public passenger vehicle/train or public area”.
I do not regard the matters of fare evasion, putting his feet on seats or the two matters of offensive behaviour, although they are indicative of a degree of anti-social conduct, as being of such significance as to mitigate against Mr Bowdler’s citizenship application.
His driving record is however, another matter.
Leaving aside the matters of failure to produce his licence (a not uncommon offence, although not to be condoned) and the provision of false information to a police officer, to which I shall return; all of the other driving offences are ones with the potential to do harm to other road users.
Drink driving is a serious matter and the issue here is not that, as Mr Bowdler claims, the offence was of low range (which it was), but rather that it was repeated. Although Mr Bowdler contends that his first appearance before the Courts on this charge (on 14 December 2011) resulted in him being placed on a good behaviour bond and no conviction being recorded[12] and that as a result his subsequent conviction should be regarded as a “first offence” [T-49], it is nevertheless true that on that date it was found that the charge for that offence in question was proven. The provision of the “section 10” penalty means that no conviction was recorded, it does not mean that the offence did not take place. It did.
[12] Section 10(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW)
Mr Bowdler’s assertion, via hand-written annotation of the Penalty Notice, in a document supplied by him to the Department and issued by the NSW Local Courts (dated 18 March 2016) reads:
“My previous drink driving charge in 2011 was given a section 10 dismissal, therefore this charge in 2016 is my first offence.” [T-53]
It is not actually a first offence, but a first conviction and the Tribunal notes that this experience of a second chance did not prevent Mr Bowdler from committing the same offence a number of years later, at which time the first conviction for the offence was recorded. During the course of these proceedings, this matter was eventually conceded by Mr Bowdler.
I turn to consider some of the other driving and traffic offences.
Failure to ensure that passengers are wearing seat belts; the repeated use of a hand-held mobile phone and numerous speeding offences all have the potential to cause harm to others.
Driving a vehicle which is unregistered or uninsured is subversive of our schemes of road safety which require both registration (often after inspection) and insurance.
Driving while disqualified shows a contempt and disregard for the law which is incompatible with the requirement of obedience to the law which is a mark of good citizenship.
Providing a false name and address to a police officer in order to avoid the consequences of breaking the law is equally a serious matter which I have no doubt may be taken to reflect a lack of those “enduring moral qualities”[13] of honesty and acceptance of personal responsibility which have been identified as a major component of the test of being of “good character”.
[13] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-2 per Lee J
Mr Bowdler’s offences on Australian roads commenced in April 2010, only a few months after his arrival in this country in January 2010, presumably holding some form of recognised overseas driving permit or licence. The Police record shows that they continued until May 2016, indeed speeding offences were recorded in December 2015, January 2016, February 2016 and March 2016.
In response to a question by the Tribunal Mr Bowdler conceded that there has indeed been at least one further speeding offence, for which a fine was issued, either in August or September 2016 or 2017. He was unsure of this detail. It is however to his credit that he made no attempt to conceal details of this latest infringement.
Whatever the nature and relative “seriousness” of the offences, the problem for Mr Bowdler is not their level, but the fact that they are so repeated.
Even giving Mr Bowdler the benefit of the doubt as to the date of his last traffic offence, I note, however, that the NSW driver demerits points system is based on demerit points accumulating over a period which is not extinguished until there has been a blemish-free driving record for a period of three years and four months.[14]
[14] Details may be found at the Service NSW website: >
Whether this is a long enough “probationary” period, (although no such concept is recognised or required under the Act) free of further offences, must be a matter of judgement, in this instance for this Tribunal making a decision at this particular point of time.
In Wang the Senior Member considered the impact of traffic offences in reviewing the denial of a citizenship application on character grounds. In that case the applicant’s record included a serious case that had resulted in a road death but also a PCA and driving while disqualified – a total of five offences over a six year period compared with Mr Bowdler’s total of 22 traffic-related offences over a similar period.
In weighing the citizenship application she concluded her assessment in the following terms:
“[12] ……. I think you are on the way to establishing your good character but I do not think you are there yet, given the gravity and the pattern that existed over those six years. You have to prove yourself and I do not consider you have done that yet but I do think you intend to. It will be open to you to make a further application once you have made further progress.”[15]
[15] [2014] AATA 89
A similar position was taken by Deputy President Constance in Sharma and Minister for Immigration and Border Protection[16] where, in affirming a decision of the Minister’s not to grant citizenship, he said:
“My conclusion does not preclude Mr Sharma from making a further application for citizenship at some time in the future. It may be that with the passage of time, Mr Sharma will be able to demonstrate that he does meet the requirements for a grant of citizenship.”
[16] [2015] AATA 608 at [61]
In the Respondent’s final submission to the Tribunal it was suggested that at some time in the future Mr Bowdler would be in a better position to seek favourable consideration of his application, once more time had passed without further driving offences.
I find that this Augustinian approach has much to commend it.
Given my emphasis on questions of driving record, road safety and responsible behaviour behind the wheel, lest it be thought that the Tribunal is inclined to uphold a refusal to grant citizenship as some form of punishment related to the Applicant’s driving (and driving-related) record it should be noted that the Tribunal is fully seized of the comments in Fenn and Minister for Immigration and Multicultural Affairs that:
“The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home……. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State.”[17]
[17] [2000] AATA 931 at 8
Similarly, the Tribunal said in Safar:
“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.”[18]
[18] [2015] AATA 503 at 38
Punishment or the imposition of penalties is, as noted above, a matter for the Courts. The Tribunal has no such role nor is it adopting such a position now.
In this instance the question before the Tribunal is whether or not the Applicant’s behaviour as a driver is or was such that it calls into question his character and whether or not, given that record, the Australian community would be prepared to accept Mr Bowdler as a fellow citizen.
In his appearance before the Tribunal I found Mr Bowdler to be a person who evidenced some confusion about the full details of his various encounters with the Courts and the meaning or import of their decisions. This is entirely understandable given his multiple encounters with the legal system and the fact that the documentation before the Tribunal reveals numerous errors in both police reports[19] and in sentencing decisions. Much of the narrative is hard to follow and the Respondent conceded that some of the Court documents were “not understandable”.
I have noted the personal reference which Mr Bowdler has supplied from his work colleague Mr Tom Connell [T-63] but it does not really help one way or the other in relation to the gravamen of Mr Bowdler’s driving record nor the accuracy of his citizenship application.
Mr Bowdler, I believe, exhibited genuine remorse for his offences and made appropriate apologies for them. He stated that his first few years in Australia had been attended with numerous personal problems but that in the last two years he had become more “grounded” and settled. He stated that he is careful not to drink and drive; that he does not go out regularly and certainly not to over-indulge in alcohol and that he is making changes in his life and that he is, in his own words, not a “nasty” or “bad” person. I understand Mr Bowdler’s assertion that he is a “good” person but the problem for him, in this instance is that he is not a good driver.
Accepting Mr Bowdler’s contentions and the genuine nature of his remorse and apologies, I do believe that, in due course, with greater attention to the acceptance of responsibility as a driver, Mr Bowdler could become a worthwhile addition to the Australian community.
However, to make a finding which overturns the Minister’s decision, it would be necessary for me to find, that as of today, Mr Bowdler is of “good character” based on both the definitions laid down by the courts and in policy and on the basis of evidence now before me. It must encompass considerations of both honesty in dealing with the supply of information to the Department and the Police and the willingness to observe the road rules and the responsibilities of being a licensed driver.
For the reasons outlined above I cannot so find and the decision of the Minister is affirmed.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd].........................................
Associate
Dated: 2 March 2018
Date(s) of hearing: 19 February 2018 Applicant: In person Solicitors for the Respondent: Mr W Sharpe, Minter Ellison
19
7
0