Kong And Minister for Immigration and Border Protection
[2018] AATA 3733
•5 October 2018
Kong and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3733 (5 October 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/0127
GENERAL DIVISION )Re: Clement Heh Nian Kong
Applicant
And: Minister for Immigration and Border Protection
Respondent
DIRECTION
TRIBUNAL: Member C Edwardes
DATE of CORRIGENDUM: 11 October 2018
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- in paragraph 51 the reference to “October 2015” is amended to read “October 2014”.
.........................[sgd]....................................
Member
Division:GENERAL DIVISION
File Number: 2018/0127
Re:Clement Heh Nian Kong
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:5 October 2018
Place:Perth
The decision under review is affirmed.
..............[sgd]..........................................................
Member C Edwardes
CATCHWORDS
CITIZENSHIP – permanent resident – whether applicant of good character – meaning of good character – traffic offences – failure to disclose – character references – applicant found not to be of good character – decision under review is affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(1) – s 21(2) – s 21(2)(h) – s 24(1), s 24(1A), s 52(1)(b)
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy, (1 June 2016) Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005 – Chapter 11
REASONS FOR DECISION
Member C Edwardes
5 October 2018
INTRODUCTION
This is an application for the review of a decision made on 18 December 2017 (R1, T11 pp 69-76) to refuse the Applicant’s application for Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The decision to refuse the Applicant’s citizenship application was made on the basis that the Minister’s delegate found that the Applicant did not satisfy the good character requirements in s 21(2)(h) of the Citizenship Act at the time of her decision.
The application for review is made in accordance with s 52(1)(b) of the Citizenship Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 24 of the Citizenship Act to refuse to approve a person becoming an Australian citizen.
BACKGROUND
The Applicant is a 26 year old citizen of Malaysia who arrived in Australia on 26 January 2003 as the holder of an Electronic Travel Authority (Visitor) (subclass 976) visa. On 5 July 2013 the Applicant was granted a permanent State/Territory Sponsored Business Owner (subclass 892) visa (R1, T11 p 72).
On 21 August 2016 the Applicant applied for Australian citizenship (R1, T4 pp 19-40).
The Applicant’s citizenship application was refused on 18 December 2017 as a result of the Applicant having failed to disclose a number of traffic offences (R1, T11 pp 69-76).
On 18 December 2017 the Minister’s delegate refused the Applicant’s application and stated:
In your application for Australia (sic) citizenship you answered NO to the question ‘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)?’
Your Police Check Results report however indicates that you were convicted of two offences, one in 2012 and the subsequent offence in 2014 as listed below:
Source
Court
Date
Offence
Result
WA
Perth Magistrates Court
12/03/2014
Excess 0.08g/100ml
[Counts 1] Mdl Disqualified: 8 mths – Concurrent; FINE: $650
WA
Perth Magistrates Court
30/05/2012
No Authority to Drive – Disqualified/Suspended
[Counts 1] Mdl Disqualified: 9 mths – Cumulative; FINE: $400
Failure to disclose the truth to this question goes against your character and I give this substantial weight.
On 18 January 2017 the Department wrote to you and provided you with the opportunity to comment on the adverse information held by the Department and invited you to provide any further information you wished to have considered in relation to your application, including providing character references from members of the community to assist your claim to be of good character.
You provided the following personal statement in support of your citizenship application via email dated 13 March 2017:
Sorry I must of (sic) misread the need to notify you about my previous traffic offence I didn't think it was a serious criminal offence and i (sic) had no intention to hide this since it can be found out so easily through my record. I have tried to improve and haven’t had the same offence since then. Please don’t hesitate to contact me if you need further information.
You were given the opportunity to respond to two offences however your response mentions “offence” in the singular rather than an acknowledgement of the two offences recorded.
I give no weight to your response that you did not declare your offence as you did not consider it a serious criminal offence. The question on your Citizenship application clearly stated (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
I also give little weight in your favour in the fact that you did not address your second offence. As you have not provided any character references I am unable to give weight to any possible mitigating or exceptional circumstances that may exist
Given the seriousness of the two offences I am not satisfied that you have established a long enough pattern of good behaviour in Australia. I see no remorse for this past behaviour to take into consideration since your conviction to justify the conclusion that you are presently a person ‘of good character’. I do not consider enough time has elapsed since the offence was committed to provide me with evidence that you will not re-offend. Based on the information available to me at this time, I am not satisfied that you are presently a person ‘of good character’ within the meaning, and for the purposes, of the Act (R1, T11 pp 74-75).
On 23 February 2018 the Applicant applied to the General Division of the Tribunal to review the decision of the Minister’s delegate (R1, T2 pp 3-17).
The Applicant stated the following in his application to the Tribunal as to why he thought the decision was wrong:
The decision of not approving the citizenship application by the applicant was wrong.
The applicant has been living in Australia since 2008 on a sponsored business owner subclass 163 visa. He was subsequently granted a subclass 892 visa and became an Australian permanent resident on 5 July 2013. He applied for conferral of Australian citizenship on 21 August 2016. He failed to declare his two traffic offences in 2012 and 2014. When requested by the Department to comment on his traffic offences, the applicant responded that he misunderstood the question and did not intend to hide his traffic offences as the record could be found easily by the Department.
The applicant’s two isolated traffic offences in the past do not reflect his enduring moral qualities, nor do they suggest that he is not a person of ‘good character’. The applicant is very remorseful for his past traffic offences and he did not re-offended (sic) again since his last traffic offence in 2014. Before lodging his Australian Citizenship on 21 August 2016, 2 years and 5 months had passed since his last traffic offence.
The applicant is committed to obeying Australian laws and upholding Australian values. The applicant has actively participated in community events since arriving in Australia. For example, he volunteered in HBF Perth City to Surf event in 2008 and competed in WA state body building competition and a singing competition in 2017. The applicant also has good character references from the Australian community to support he is a person of ‘good character’. Therefore, there is sufficient evidence to suggest that the applicant satisfies the ‘good character’ criteria and his application for conferral of Australian citizenship should be approved. A complete submission letter and other supporting documents will be submitted soon (R1, T2 p 7).
LEGISLATION
Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Citizenship Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Citizenship Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6), (7) or (8) of the Citizenship Act.
Section 21(2) of the Citizenship Act sets out the general eligibility criteria to become an Australian citizen. Relevantly, s 21(2)(h) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
The term “good character” is not defined in the Citizenship Act. There is, however, guidance on the application of the “good character” requirement in the Department’s Citizenship Policy (the Policy).[1] The Tribunal will apply ministerial policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645).
[1] The Tribunal notes that the Policy came into force as of 1 June 2016. Further guidance is provided by the Australian Citizenship Instructions (ACIs), dated 1 July 2014, which detail operational instructions and supplement the policy guidance provided in the Policy.
The meaning of good character
Chapter 11 of the Policy provides guidance for assessing an applicant under the “good character” test prescribed by s 21(2)(h) of the Citizenship Act. Chapter 11 of the Policy cites Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432, in which the Full Federal Court noted:
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 is 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.
Chapter 11 of the Policy further states that the term “enduring moral qualities” encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of the Australia society.
Chapter 11 of the Policy states this broad definition of “good character” means 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 their migration and citizenship processes…
(R1, T12 p 83)
Chapter 11 of the Policy further provides that an applicant of good character would, among other things:
· respect and abide by the law in Australia and other countries
· …
· be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o …
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship…
· … not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)…
(R1, T12 p 84)
The Policy also provides that in weighing up whether an applicant is of good character, decision makers are required to apply community standards, not their own personal standards, and question whether any mitigating circumstances and/or explanations provided by the Applicant outweigh the Applicant’s behaviour in question. Decision makers are to consider factors including:
·would a person of good character have behaved the way the applicant did;
·what is there to demonstrate that the applicant has upheld and obeyed the law;
·has the applicant behaved in accordance with Australia’s community standards; and
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
The Policy states that a decision maker “…needs to look holistically at an applicant’s behaviour over a lasting and enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application” (R1, T12 p 87).
The Policy provides that referee reports “…can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application” (R1, T12 p 92).
When considering whether an applicant who has had previous criminal convictions is a person of good character The Honourable Deputy President Wright, QC in Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 stated at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
ISSUE
The issue for review by this Tribunal is whether the Applicant is of good character for the purpose of satisfying s 21(2)(h) of the Citizenship Act.
EVIDENCE
The matter was heard in Perth on 26 September 2018. The Applicant was represented by Ms Wang, an advocate from Australian Visa Station. The Respondent was represented by Mr Burgess of Sparke Helmore Lawyers.
The Tribunal received the following evidence:
·Exhibit A1 – the Applicant’s witness statement dated 3 April 2018;
·Exhibit A2 – the Applicant’s statutory declaration dated 1 March 2018 and the statutory declarations of five witnesses in support of the Applicant’s good character;
·Exhibit A3 – the Applicant’s Statement of Facts, Issues and Contentions dated 17 June 2018 (Applicant’s SOFIC);
·Exhibit A4 – Appendix 1 to the Applicant’s SOFIC, the Applicant’s witness statement dated 3 April 2018 (this is the same as the witness statement in Exhibit A1);
·Exhibit A5 – Appendix 2 to the Applicant’s SOFIC, six character references in support of the Applicant’s good character (some of these character references are also contained in Exhibit A2);
·Exhibit A6 – the Applicant’s Hearing Certificate;
·Exhibit R1 – T-documents (T1-T12 pp 1-93);
·Exhibit R2 – the Respondent’s Statement of Facts, Issues and Contentions dated 20 July 2018 (Respondent’s SOFIC);
·Exhibit R3 – documents produced under summons from the Department of Transport, received by the Tribunal on 17 May 2018; and
·Exhibit R4 – the Respondent’s Hearing Certificate.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Respondent’s submissions
The Respondent contends the following in respect to the Applicant’s failure to disclose his traffic convictions:
21. For the reasons that follow, the Minister contends that the Tribunal cannot be satisfied that at this point in time, the applicant is of good character.
22. The applicant’s offences weigh against his being of good character.
23. In addition to the offences noted by the delegate, the summons records of the Department of Transport reveal that the applicant was also convicted of the offence of ‘Exceed Speed Limit Between 30 and 40km/h’ and ‘fail to display P plates’ which resulted in his licence being suspended for three months. The applicant has not declared these offences in the past and did not refer to them in his Application to this Tribunal in which he referred to his ‘two isolated offences’. The additional offences were only discovered upon receipt of the summons records of WA Department of Transport.
24. The applicant has therefore been convicted of serious speeding offences, high level drink driving and driving whilst unlicenced (sic). The applicant failed to disclose any of these offences and all three of these offences are directly relevant to the examples given in the Policy, above at 18.b and demonstrate that the applicant is not of good character.
25. The Minister also contends that the applicant is not of good character at this time as a result of his conviction for ‘no authority to drive – suspended’. The applicant was aware that he had been suspended from holding a licence as a result of his speeding offences, and his continued driving whilst suspended demonstrates a lack of respect for the laws of Australia.
26. In addition to these offences, the applicant has not disclosed these offences in his application for citizenship. The Policy again notes that a person of good character would not practice deception or fraud in their dealings with the Department, for example by concealing convictions which could lead to the refusal of citizenship.
27. Considered cumulatively, the Minister contends that the weight of the evidence does not support a finding that the applicant is, at this point in time, a person of good character for the purposes of s.21(2)(h) of the Act (see the Respondent’s SOFIC at pp 5-6).
The Applicant’s submissions
The Applicant states in response:
11. On 21 August 2016, the Applicant lodged an online application for Australian citizenship.
12. During the application process, the Applicant failed to disclose his past traffic offences by answering ‘No’ to the question ‘Has the applicant been convicted of or found guilty of any offences in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, any ‘spent’ convictions)?’ in the online application.
13. On 18 January 2017, The (sic) Department of Immigration and Border Protection (hereafter ‘the Department’) sent an email to the Applicant and requested the Applicant to provide comment on the two traffic offences on 12 March 2014 and 30 May 2012 found in the Applicant’s Police Check Results.
14. On 13 March 2017, the Applicant replied by email to the Department by stating ‘sorry I must of misread the need to notify you about my previous traffic offence I didn’t think it was a serious criminal offence and I had no intention to hide this since it can be found out so easily through my record. I have tried to improve and haven’t had the same offence since then. Please don’t hesitate to contact me if you need further information’.
15. On 18 December 2017, the Department sent a notification of refusal of the Applicant’s application for Australian citizenship.
16. In the decision record, the Delegate found that the Applicant did not satisfy the ‘good character’ requirements of subsection 21(2) of the Act for mainly two reasons.
17. A substantial weight of the refusal decision was given to the Applicant’s failure to disclose the truth about his past traffic offences.
18. The Delegate also did not think that the Applicant has established a long enough pattern of good behavior in Australia, he is remorseful for his past behavior, or enough time has elapsed since the last offence to given (sic) evidence to support that re- offending will not occur.
19. The Delegate did not give any weight to the Applicant’s reply to the Department’s request on commenting on the two traffic offences.
20. The Delegate took note on that the Applicant’s response mentioned ‘offence’ in the singular form, and considered the Applicant to have failed to address the second offence.
21. As no character references were provided by the Applicant, the Delegate could not give weight to any mitigating or exceptional circumstances.
22. The Department Transport (sic) record shows that the Applicant got his provisional license on […] March 2011 at the age of 19 years’ old.
23. The Applicant had four traffic offences to date. A summary of the offences is listed below:
Date Offence Penalty 27 April 2011 Exceeding speed limit between 30 and 40 KM/H 5 demerit points
3-month suspension
Fine: amount unknown
9 November 2011 Fail to display Green Plate Fine: $100.00 13 March 2012 No authority to drive Fine: $400.00
9-month disqualification period
7 February 2014 Drink driving excess 0.08g/100ml Fine: $650.00
8-month disqualification period
24. The Department Transport (sic) record shows that the Applicant, while on his provisional driver’s license, had the first offence on 27 April 2011 for exceeding speed limit between 30 and 40 KM/H, 5 demerit points were deducted for this offence.
25. The second offence was on 9 November 2011 for failing to display Green plate (sic).
26. The traffic record shows that the Applicant’s license was suspended due to demerit point deduction for a period of 3 months from 14 December 2011 to the revocation expiry date of 14 March 2012.
27. On 13 March 2012, one day before the revocation expired, the Applicant was caught to drive (sic) on the suspended license, this was the first offence referred in the Police Check Results. A fine of $400.00 and a further license suspension of 9 months were issued.
28. About 2 years’ later, the Applicant had his fourth traffic offence on 7 February 2014 for driving under the influence of alcohol, a fine of $650.00 and a disqualification period of 8-month were issued. This was the second offence referred in the Police Check Results.
29. The Applicant has not had any traffic offences since his last traffic offence in February 2014 to date.
30. Since the last traffic offence in 2014, the Applicant has been feeling remorseful of his conduct. He realized that his behavior could potentially have resulted in harm to other innocent people.
31. The Applicant has shared his past traffic offences experience with some of his friends and colleagues and use (sic) them as a bad example to tell others not to follow his suit.
32. The Applicant has gradually progressed to the next stage of his life and has significantly changed his life style.
33. The Applicant has been committed to body building training since 2015. Therefore, he has started strict diet and quit drinking ever since.
34. The Applicant has started to live a strict routine life by working full-time and practicing body training on a regular basis.
35. The Applicant actively participated in community programs such as the Australian Chinese Times Chinese idol singing competitions and WA fitness competitions, and won prizes in these competitions.
36. The Applicant completed the study for Certificate III and Certificate IV of fitness course in FIT College WA in May 2018. His current goal is to open his own fitness centre one day to promote healthy living practice to the wider Australian community.
37. The Applicant is currently working full-time in a franchise restaurant – Sushi Sushi. He started working as a sushi chef and was subsequently promoted to be the restaurant’s assistant manager in November 2017. His current responsibilities include managing and supervising the crew member’s (sic) work, banking, till management, stock replenishment, and providing guidance and training for food preparations etc.
38. …
ISSUES:
39. Whether or not failing to disclose the past traffic offences in the application form for Australian Citizenship represents the Applicant’s character and should be given a substantial weight to the refusal decision?
40. Whether or not the Applicant’s traffic offences suggest that the Applicant is not a person of good character?
41. Whether or not enough time has passed to suggest that there was low risk of re- offence?
42. Whether or not there are (sic) other mitigating evidence available to provide positive evidence for the Applicant’s character?
CONTENTIONS
43. The Applicant contends that the Delegate’s decision to refuse the Applicant’s application for an Australian citizenship:
a. has incorrectly concluded that the failure to disclose the past traffic offences reflects the Applicant’s character;
b. has failed to take the Applicant’s personal background into consideration and formed an erroneous opinion on the Applicant’s failure to disclose past traffic offences as well as his response to the Department’s request for commenting on the traffic offences;
c. has misinterpreted the Applicant’s explanation of his failure to disclose in the application form to be a sign of not showing remorse;
d. has incorrectly drawn the conclusion that the Applicant is not of good character solely based on his past traffic records;
e. has failed to properly consider the risk of re-offence and undermined the length of time that had passed at the time of the first decision since the Applicant’s last offence in February 2014.
44. The Applicant contends that his failure to disclose the traffic offence does not reflect his character in anyway other than his failure to pay attention to the question and his lack of understanding of the legal terms.
45. The Applicant in his response to the Department’s request for comment on 13 March 2017 says that ‘I had no intention to hide this since it can be found out so easily through my record’, which indicated that he did not have the intention nor did he think it was necessary to hide his past traffic offences from the Department.
46. In the Applicant’s Witness Statement (see Appendix 1), the Applicant states that ‘I did not read the question carefully nor word by word. Therefore, I did not notice the traffic offences wordings in the brackets following the question.’. (sic) Due to my ignorance of the legal terms, I also misunderstood the meaning of the question as I thought it would only be counted as a conviction if I had been to jail before.’ ‘I was not aware of that my past traffic offences fell into the category of conviction at the time.’
47. In the case of Dabbousi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 812 (17 October 2016), the applicant also failed to disclose his past traffic offences. The Deputy President states that:
The respondent said the applicant’s failure to give correct answers was a serious problem even if that failure was the product of inattention rather than a conscious desire to mislead.
… I accept that carelessness might reflect on the applicant’s character in some circumstances, but I am not persuaded this instance of inattention is strong evidence of an inability or unwillingness to obey the law or the norms of Australian conduct. The applicant candidly admits he should have paid closer attention. It may be that he has learned an important lesson, but in any event I am not satisfied his error on this occasion suggests he is unwilling or unable to follow the laws of Australia.
48. In the case of Martin and Minister for Immigration and Border Protection (Citizenship) [2017] AATA1093 (sic) (14 July 2017), the applicant also failed to disclose his traffic offences due to ‘oversight’. The senior member accepted the applicant’s explanation and states that ‘I am not convinced that the applicant was deliberately untruthful or lied in his citizenship application.’ The member further commented that ‘I accept that carelessness might reflect on the applicant’s character in some circumstances, but I am not persuaded this instance of inattention is strong evidence of an inability or unwillingness to obey the law’.
49. By the same reasonings (sic) above, the Applicant contends that his failure to disclose his past traffic offences was unintentional, was due to the lack of attention to details as well as his ignorance on the meaning of legal terms, and the failure does not represent his character in any way and should not be given a substantial weight to the refusal decision.
50. The Delegate was aware of the Applicant’s national background, however, the Delegate failed to consider the fact that the Applicant at the time of application was a 25 years’ old young man whose mother tongue is not English and who came from a very different culture and legal system from that of Australia.
51. The Applicant’s English language ability and his background and experience at the time suggested that he had very limited English vocabulary and was lack of (sic) technical knowledge and understanding of many legal terms such as ‘conviction’.
52. The above factors could easily result in grammatical mistakes and ambiguity in the Applicant’s response to the Department’s request.
53. The Delegate misinterpreted the statement in the Applicant’s reply on 13 March 2017 that ‘I didn’t think it was a serious criminal offence’ as a sign of showing no remorse. In fact, the Applicant was trying to explain that he was not aware that the traffic offences was a serious criminal offence at the time of the application, instead of speaking of his state of mind at the time of the reply. This statement could not be used as an (sic) evidence that the Applicant failed to see the seriousness of the traffic offences and showed no remorse of his offences. It was simply an explanation on the reasons why he did not disclose his traffic offences at the time of application.
54. In the Applicant’s witness statement on 3 April 2018, he further explained his failure to disclose by stating that ‘I answered ‘no’ to this question based on my misunderstanding of the question and the meaning of the word ‘conviction’ as well as my oversight of the words ‘traffic offences’’.
55. The Delegate also failed to see that the singular form of ‘offence’ in (sic) Applicant’s response was a pure grammatical mistake that often occurs in second language speaker’s oral and writing language, but she took it as a sign of not being remorseful and failure to address the second offence.
56. The Applicant also provided the explanation on this point in his witness statement on 3 April 2018 that ‘I intended to comment on both traffic offences when responding to the Department’s email. I did not intend to ignore any of the offences by using the singular form of the word ‘offence’ in the response.’ ‘As a second language speaker, I often make grammatical mistakes such as using the singular form of the words when I should have used the plural form. This was the case in my reply to the Department. It was purely a grammatical mistake.’ ‘I meant to explain the issue as a whole and did not deliberately ignore or neglect any of the offences.’
57. The truth is that the Applicant was very remorseful of what he did in the past. Not only did he expressed (sic) his deep remorse in his witness statement (Paragraph 44 to 55), but also it was evident by his total change of life style, working and living attitude in the subsequent years of his life.
58. The Applicant contends that should the Delegate took (sic) a more considerate approach in taking the applicant’s personal background and surrounding factors into the consideration, the Delegate would have equalized (sic) the Applicant’s inattention to details to him being of not good character.
59. It is not disputed that the Applicant has four traffic offences including two resulted in court convictions. However, the Applicant contends that his driving history and whether he is of good character are two different concepts and should not be considered as interchangeable.
60. As ‘good character’ is not defined in Citizenship legislation, the guidelines in Chapter 11 of the Citizenship Policy referred (sic) by the Delegate at the time of decision provides factors for consideration of a person’s character.
61. The meaning of ‘good character’ took a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community.’ The ‘enduring moral qualities’ further encompasses three concepts, namely: ‘1) characteristics which have been demonstrated over a very long period of time; 2) distinguishing right from wrong; 3) behaving in an ethical manner, conforming to the rules and values of Australian society.’
62. The very first two offences occurred during the first year when the Applicant first got his provisional license in 2011. One offence was speeding and the other was failure to display the green plate.
63. The most recent two offences in the Police Check Results were respectively in 2012 and 2014. The first one was driving on suspended license, while the second one was driving under the influence of alcohol.
64. All four offences are different in nature and occurred in the span of 4 years between 2011 and 2014, the offences may indicate a lack of driving practice, awareness and reckless attitude that may exhibit in many new drivers’ driving behaviors.
65. There were no repetition of a particular type of offences, nor do the offences indicate any pattern of enduring poor moral qualities of (sic) a long period of time. Therefore, the traffic offences should not be used as a sole indication that the Applicant is person of not good character.
66. Further, in the case of Muhammad and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 795 (11 October 2016), the Deputy President contested:
While it was conceded on Mr Muhammad’s behalf that his driving record is ‘by no means exemplary’, the question is not about his driving ability but whether he is of good character. Decision-makers should be careful not to conflate the two concepts, for the enquiry about a person’s character goes far beyond his or her driving record.
67. Based on the above comments, the Applicant contends that he should not be judged as a person of not good character purely based on his four traffic offences committed during a relatively shorter period of 4 years comparing to his 10 years’ (sic) period spent in Australia.
68. The Applicant contend (sic) the Delegate’s statement that ‘I do not consider enough time has elapsed since the offence was committed to provide me with evidence that you will not re-offend’.
69. There was no specific criteria on the length of ‘enough time’, it will be judged on a case by case basis depending on the nature and seriousness of the past offences. However, the Applicant contests that in this case ‘enough time’ has elapsed based on the decision of Muhammad case referred above.
70. The Deputy President contested in the Mohammad’s case that
…. he has committed three offences in the last six years (two of them for low- range speeding) and none in the last two years. Not perfect, but in my view not indicative of a person who could reasonably be described, based on his driving record, as not of good character.
71. In the case of Martin and Minister for Immigration and Border Protection (Citizenship) [2017] AATA1093 (sic) (14 July 2017), the applicant Paul Martin has (sic) committed 39 traffic offences, consisting of 29 speeding offences, 13 of which were for speeding in excess of 15km/h. In viewing of the applicant’s Driving Record, the senior member states ‘it is significant to note that the applicant’s last offence was in May 2016, over 12 months ago, and he confirmed at the hearing that there have been no driving offences since. … I am satisfied that a reasonable amount of time has elapsed since offending.’
72. Reviewing the history of the Applicant’s traffic offences, he had 4 offences over the span of 9 years between the time that the Applicant first resided in Australia and the time of his application for Australian citizenship. In the last 7 years, the Applicant had 2 traffic offences. With the last offence happened in 2014, the Applicant had (sic) not have (sic) any traffic offences over the last 4 years.
73. The Deputy President in Muhammad’s case further states that ‘it is less instructive to focus on his driving record as such, than it is to focus on what he has done to improve it.’
74. The Applicant in the current case has actively taken actions to improve his behavior. In his witness statement, he explained that he had initially changed his life style by reducing drinking and would call Uber if he drinks socially. He had then started his body building training seriously and eventually quit drinking in 2015.
75. The Applicant became more conscious of his diet and started to train his body routinely. He started to make plans and work hard to pursue his dream of opening his own personal trainer business. He also participated actively in community activities such as singing competition and fitness competition and set a good role model to Australian community at large.
76. The Applicant has also expressed his remorse in his witness statement and realized the seriousness of his traffic offence and the potential serious consequences that could result in himself and other innocent people. He had repeatedly expressed his remorse in his witness statement on 3 April 2018.
77. Given that the Applicant has a perfect driving record for the last 4 years, he has genuinely being (sic) remorseful, he has taken active steps to change his behavior, and he is currently living a healthy and positive life style, it is argued that a reasonable amount of time has elapsed since offending and the Applicant poses very low risk of re-offending.
78. At the time of responding to the Department’s request to comment on his past traffic offences, the Applicant did not provide any character references at the time to give any possible mitigating circumstances that may exist to support him as a person of good character.
79. The Applicant has now obtained 6 character references (See Appendix 2) to support his review application.
80. The character referees have described that the Applicant is (sic) an ‘honest’, ‘trust worthy’, and ‘dependable’ person, who upholds true Australian value, obeys the law and is a person who deserves Australian citizenship.
81. One of the references is from the Applicant’s Chiropractor, who is considered as a prominent Australian citizen in the Australian community. The references strongly suggest that the Applicant is a man of honesty and integrity and he is of good character and deserves Australian citizenship (Applicant’s SOFIC, pp 2-12).
The Hearing
In her opening submission on behalf of the Applicant Ms Wang essentially relied on the Applicant’s SOIFC. Ms Wang stated there was no intention by the Applicant to hide his offences, the Applicant was not disrespectful of the law and his failure to declare the offences was as a result of his lack of understanding of the terminology used in the question in the citizenship application.
Mr Burgess opened by relying on the Respondent’s SOFIC. He stated there was insufficient time between the offences and the application before the Tribunal to determine if the Applicant met the character criteria for Australian citizenship. Mr Burgess stated the failure to disclose the offences went to the core of the Applicant’s character.
The Applicant’s evidence
The Applicant said the following at the hearing:
·he was a personal trainer;
·he considered himself an Australian;
·he loved the Australian lifestyle;
·he admitted he was responsible for the offences and that he was remorseful;
·he wanted to live in Australia forever; and
·he attended years 11 and 12 of schooling in Australia.
During cross-examination the Applicant stated:
·he was caught speeding and lost his licence;
·he was caught driving without his P plates displayed and then failed to declare this in his witness statement;
·he was caught driving whilst under suspension going through a RBT (random breath testing) stake out and he had his car towed away for this offence;
·he was caught driving under the influence with an alcohol range of 0.12 to 0.14 and received a further licence suspension;
·whilst in Malaysia he was taught English and Maths was taught in English;
·he attended high school in Australia for years 11 and 12;
·he undertook ESL (English as a Second Language) in high school;
·he holds a Diploma in Accounting from Canning College;
·he is in his second undergraduate year of a Bachelor of Commerce course at Curtin University (he is not currently studying);
·he works in the service sector;
·he filled out his citizenship application himself; and
·he misunderstood the question relating to offences.
The Applicant called Mr Lionel Chow as a witness. Mr Chow provided a statutory declaration in support of the Applicant’s citizenship application (Exhibit A2). Mr Chow stated:
·he had known the Applicant for four years;
·he believed the Applicant was a very responsible person;
·he knew about the Applicant’s drink driving offence and could not recall any further offences;
·he said the Applicant had confided in him that he regretted his past behaviour;
·he said as the Applicant’s personal trainer he always followed instructions; and
·he said he trusted the Applicant.
During cross examination Mr Chow was referred to his statutory declaration (contained in Exhibit A2) by the Respondent’s counsel and confirmed that he had completed the statutory declaration. He confirmed that the Applicant had told him about his offence of driving while on a suspended driving licence.
CONSIDERATION
The issue for determination by the Tribunal is whether the Applicant is of good character for the purpose of s 21(2)(h) of the Citizenship Act.
The Applicant’s Offences
The Applicant has four traffic convictions:
·exceeding speed limit between 30 and 40 KM/H – Penalty 5 demerit points and 3 month suspension of driver’s licence;
·failure to display Green P Plates – $100 fine;
·no authority to drive – $400 fine and 9 month suspension of driver’s licence; and
·drink driving excess 0.08g/100ml – $650 fine and 8 month suspension of driver’s licence.
The Tribunal notes and agrees with the Respondent’s contention that the Applicant’s traffic offences do not reflect the behaviour of a law abiding person.
The Tribunal does not consider these traffic offences as minor and considers them in a very serious light given the potential unintended consequences they have for other road users.
Further, the Tribunal is aware that the Australian community considers drink driving as a very serious offence given the tragic consequences that can flow from such behaviour. These offences have the potential to have serious consequences for other road users, leading to lifelong disabilities or tragically death, impacting on the loved ones of victims.
The Tribunal notes that since 2011, the Applicant has been suspended from holding a motor vehicle driver’s licence for a period of 20 months. The Applicant applied for citizenship on 21 August 2016 some ten months after serving a significant suspension of his motor vehicle driver’s licence for a drink driving offence. The Tribunal views this very seriously.
The Applicant’s failure to disclose his offences
The Tribunal views the Applicant’s failure to disclose his past offences when making an application for citizenship as serious. The Tribunal is not persuaded that the Applicant misunderstood the question. The question is not in small print and is clear in terms of the requirement to disclose “…all traffic offences which went to court”.
The Tribunal finds there is no ambiguity in the question and that the Applicant has a good command of the English language.
The Tribunal notes that the Applicant offers as an explanation for not disclosing his offences his misunderstanding of the question as a result of cultural and language barriers, however the Tribunal finds the Applicant has a good command of the English language.
In support of this finding the Tribunal notes the Applicant attended years 11 and 12 at high school (in 2008-2009) in Australia, completed a Diploma in Commerce at Canning College in 2011-2013 and enrolled at Curtin University in 2014 to undertake a Bachelor of Commerce. In addition the Applicant states in Exhibit A1 that he commenced a Certificate III and IV of a fitness course.
The Tribunal, having considered the evidence before it, and having observed the Applicant closely during the hearing, is persuaded that the Applicant deliberately failed to disclose his offences in his application.
The Tribunal notes the Applicant claims that his lifestyle has changed substantially since his days of traffic offending.
The Tribunal notes the Applicant is well educated, has worked in the service sector and currently holds a management position in a restaurant.
The Tribunal is mindful that citizenship is an important part of being accepted into the Australian community, and citizenship comes with tangible and intangible benefits. As such, it is important that, to attain citizenship, one must satisfy requirements such as the character requirements.
Failure to disclose all information to the authorities is viewed seriously and cannot be dismissed as being careless. Honesty and truthfulness are key elements for the Tribunal to consider when assessing character.
The Tribunal also notes the Applicant’s submission that he was remorseful for his past actions.
The Tribunal is not convinced that the Applicant understands the seriousness of his past behaviour and the effect, in particular the drink driving offence, this might have had on unsuspecting members of the community, nor is the Tribunal persuaded that the Applicant was merely careless when he filled out his application for citizenship.
The Tribunal is of the view that the failure to declare the offences casts doubt over whether the Applicant was of good character at the time of his citizenship application.
The Tribunal notes that the Applicant only completed his motor vehicle driver’s licence suspension for drink driving in October 2015.
This, in the view of the Tribunal, is not sufficient time to evaluate if the Applicant would be a valued member of the Australian society in the future. At this point of time, the Tribunal is not satisfied that the Applicant understands what is required to be a law abiding and productive citizen in Australia.
Given the above findings, the Tribunal therefore agrees with the view of the Minister’s delegate, that the Applicant fails the character test pursuant to section 21(2)(h) of the Citizenship Act.
Character references
The Tribunal notes the character references provided on behalf of the Applicant.
In summary the references, including that of the Applicant, contain the following information:
·the Applicant is a strong participant in community activities;
·the Applicant is involved in body building and is disciplined in terms of his approach to this activity;
·the Applicant has changed his behaviour since his last traffic offence and is committed to being a law abiding citizen;
·the Applicant works hard and is committed to his goal of improving himself;
·the Applicant is an honest, dependable, peaceful and conscientious person; and
·the Applicant regrets his past behaviour in terms of his traffic offences.
It is unclear to the Tribunal whether the Applicant outlined in detail to those who provided the character references the specifics of his traffic offences.
The Tribunal accepts the Applicant is making an effort to address his past behaviour and to become a productive member of Australia.
The Tribunal notes that the Applicant genuinely accepts that he has made mistakes in the past however, it is not clear when this sense of realisation occurred.
The Tribunal accepts that the Applicant may be involved in some community activities, and the Tribunal acknowledges that the Applicant’s community involvement is an important aspect to consider. The Tribunal does attach some weight to the Applicant’s character references and his involvement in the Australian community.
CONCLUSION
The Tribunal accepts that the Applicant has a genuine desire for Australian citizenship and wants to commit to Australia. The Tribunal however believes that more time needs to pass before a proper assessment can be made in favour of the Applicant meeting the character requirements under the Citizenship Act.
Having considered all of the evidence before it, the Tribunal is not reasonably satisfied at this point in time, that the Applicant is of good character for the purposes of s 21(2)(h) of the Citizenship Act.
DECISION
For the reasons stated above, the Tribunal affirms the decision under review.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
..........[sgd]..............................................................
Associate
Dated: 5 October 2018
Date of hearing: 26 September 2018 Advocate for the Applicant: Ms Xuedan Wang, Australian Visa Station Counsel for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
2
2
0