Jackson and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 133

Jackson and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 133 (29 February 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4299
Re	Elizabeth Jackson
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President S E Frost
Date	29 February 2016
Date of written reasons	4 March 2016
Place	Sydney

The decision to refuse the application for Australian citizenship is affirmed.

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

Deputy President S E Frost

CATCHWORDS

CITIZENSHIP – whether Tribunal satisfied that the applicant is of good character – multiple traffic offences – drug offence – failure to provide candid responses in citizenship application form – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 – s 21(2)(h)

CASES

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

REASONS FOR DECISION

Deputy President S E Frost

2 March 2016

1. On 29 February 2016 the Tribunal delivered an oral decision in this matter.  The Minister has requested written reasons for the decision.  Those reasons follow.

2. The applicant applied for Australian citizenship in February 2015.

3. A delegate of the Minister, charged with making the decision on the application, was not satisfied that the applicant was of good character at the time of making the decision.  For that reason the application for Australian citizenship was refused.

4. The applicant has applied to the Tribunal for review of that decision.  The only issue for determination is whether the Tribunal is satisfied, as required by s 21(2)(h) of the Australian Citizenship Act 2007, that the applicant is of good character.  Unless the Tribunal is so satisfied, the delegate’s decision must be affirmed.

   TRAFFIC OFFENCES

5. The applicant was issued with a learner driver’s licence in February 2003, about a month before her seventeenth birthday.

6. By the end of May that year, she had been booked for exceeding the speed limit by more than 15 km/h but not more than 30 km/h.  She was fined $197.

7. In September of the same year, the applicant was caught on camera going through a red light.  She was fined $221. 

8. In December that year, the applicant was booked for driving a car without displaying her L-plates and driving whilst not accompanied by a licensed driver.  She was fined $76 for each offence.

9. There was a speeding offence in June 2004 which led to a fine of $127.

10. In September 2004 the applicant was convicted in the Burwood Local Court on further traffic offences – again, driving a car without displaying her L-plates and driving whilst not accompanied by a licensed driver, but also not wearing a seat belt.  These offences occurred in August 2004.  Fines totalling $200 were imposed.

11. In January 2005 the applicant drove whilst suspended and for that offence she was fined $300 and disqualified from driving for 12 months.

12. In December 2006 the applicant appeared in court again to answer further charges of driving a car without displaying her L-plates and driving whilst not accompanied by a licensed driver, this time in August 2006.  On these charges plus the additional charge of driving without her headlights on she was fined a total of $500.

13. In April 2007 the applicant had her learner licence suspended for non-payment of fines.

14. In May 2008 the applicant was fined $318 for negligent driving.

15. There were further speeding fines imposed in October 2008 which led to another suspension of the applicant’s licence in April 2009.

16. In July 2009 the applicant received a 12-month bond for driving while her licence was suspended.

17. The applicant was declared an habitual offender in September 2009 following her refusal to submit to a breath analysis test.  The applicant has explained that she had been pulled over by the police while she was driving on a provisional licence, which has a zero alcohol limit.  She had had one glass of wine.  When asked to submit to the breath test she had a panic attack and could not comply with the request.  That led to the automatic imposition of a high-grade PCA (prescribed concentration of alcohol) charge and a 3-year disqualification from driving. 

18. In 2012 the applicant attended and completed a Serious Traffic Offenders Program.  She did this, she said, because she thought it was the best way to move forward and to overcome her “past poor history of driving offences” (T5-63).  On completion of the program she appealed to the Local Court which quashed the 3-year disqualification in December 2012.

19. In July 2013 the applicant was reissued with a learner licence but again, as a result of non-payment of fines, her licence was suspended the following month.

20. In April 2014 the applicant was again booked for driving a car without displaying her L-plates and driving whilst not accompanied by a licensed driver.  The police suspended her licence on the spot.

21. In September 2015 the applicant applied for, and was apparently issued, a new learner licence.  There appear to have been no further traffic offences since that date.

22. That summary presents a history of regular, and repeated, failure to comply with the traffic laws.  Many of the offences occurred between 2003 and 2009, when the applicant was aged between 17 and 23.  Disturbingly, though, the latest offences occurred less than two years ago, when the applicant was 28 years old – and this was after she attended and completed the Serious Traffic Offenders Program.

    DRUG OFFENCE

23. In March 2013 the applicant was celebrating her birthday with a number of friends in a hotel room.  She said that during the celebration about 20 people came into and out of the room over a period of several hours.

24. Police were called after the cleaning staff entered the hotel room and found white powder on a bedside table and the applicant, either asleep or unconscious, on the bed.  The applicant told the police that the white powder (subsequently confirmed to be cocaine) was hers.  She now denies that it was hers, and says that she gave that version to police to stop her friends getting into trouble.

25. In June 2013, in the Local Court, the applicant was found guilty of possessing a prohibited drug. No conviction was recorded; instead the applicant was directed to enter into a good behaviour bond for 18 months under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    INCOMPLETE INFORMATION PROVIDED TO THE DEPARTMENT WITH THE APPLICATION FOR AUSTRALIAN CITIZENSHIP

26. The application for Australian citizenship discloses some, but not all, of the applicant’s traffic offences.  It does not include any reference to the drug conviction.

27. The applicant explained, and I accept, that it was her father who completed the relevant part of the application form at T3-25.  The applicant was placed in a difficult position because she had not told her father about the drug conviction. 

28. She was therefore confronted with a difficult decision – either tell the truth on the application form, but in so doing disclose to her father a drug conviction that she had been desperately keen to keep quiet from him; or continue to keep the secret from her father, but in so doing make a false declaration to the Department.  She chose the latter.

    CONSIDERATION

29. At the hearing the applicant’s solicitor submitted that her traffic offences (most of which occurred up to 2009) are minor.  If I were dealing with a one-off occurrence I might be persuaded to accept that submission.  But there were far too many of them to support a finding that the applicant’s breaches of the law were of a minor nature. 

30. The applicant’s solicitor also submitted that the drug offence should be accepted as a minor transgression, given that the court dealt with it by way of a bond under section 10. He also noted that it occurred three years ago. Since then, he said, the applicant had led a “particularly exemplary” life. That may be so, but it will take some time for the applicant to show that she possesses the “enduring moral qualities” which are generally regarded as the indicators of good character: see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431.

31. Unfortunately the applicant has shown herself over a long period of time to be a person who pays scant regard to the law.  So much is clear from her driving history.

32. As for the drug conviction, on her version of events she took the blame for something that she was not responsible for.  If that is true then she has allowed the true transgressors to evade the legal consequences of their actions.

33. In addition to that, the applicant lodged a citizenship application form that she knew was false.  She preferred to make a false declaration to the Department rather than tell her father the truth.

34. I have taken into account the several character references submitted in support of the applicant’s application for Australian citizenship but, having regard to her criminal history and her failure to provide candid information in the citizenship application form, I am not satisfied that the applicant is of good character at this time.  The decision to refuse the application for Australian citizenship is affirmed.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

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

Associate

Dated 4 March 2016

Date(s) of hearing	17 February 2016, 29 February 2016
Solicitors for the Applicant	Diamond Conway Lawyers
Solicitors for the Respondent	AUSTRALIAN GOVERNMENT SOLICITOR