Kugathas and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 129

Kugathas and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 129 (28 January 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1034
Re	Baloshanan Kugathas
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Prof R Deutsch, Deputy President
Date	28 January 2016
Date of written reasons	4 March 2016
Place	Sydney

The decision under review is affirmed.

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

Prof R Deutsch, Deputy President

CATCHWORDS

CITIZENSHIP - citizenship by conferral - good character - drink driving - issue of probity and honesty - decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 52(1)(b)

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Prof R Deutsch, Deputy President

4 March 2016

INTRODUCTION

1. This is an application for review made in accordance with section 52(1)(b) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. The issue before the Tribunal is a straightforward issue as to whether the Applicant is of good character for the purposes of being approved to become an Australian citizen.  That is the narrow issue that I needed to consider and I conclude that at this point in time the Applicant is not of good character and the delegate’s decision to refuse the Applicant’s application is the correct and preferable decision.

3. In reaching that conclusion I would like to emphasise to Mr Kugathas that he is free to apply for citizenship at some subsequent point in time but my decision currently is that he is not of good character for the purposes of the Act.

   BACKGROUND

4. By way of background, I make reference to the fact that the Applicant is a 36 year-old Sri Lankan citizen who arrived in Australia in September 2009.

5. On 26 November 2014 he applied for Australian citizenship by conferral and in that application he indicated that he had been convicted of and found guilty of an offence and provided a copy of his driving record in particular.

6. The proceedings hinge on the question of good character and the question of good character is canvassed extensively in the Australian Citizenship Instructions. My decision is based essentially around three factors which I believe are relevant in determining the character of the Applicant.

   CONSIDERATION

7. There are three factors that are potentially relevant in this proceeding.

8. The first factor is the drink-driving charge which has been laid against the Applicant and in respect of which he was convicted.

9. Secondly, there are matters of probity and honesty in relation to the behaviour of the Applicant.

10. Thirdly, there are issues regarding domestic violence which have been brought to my attention and which must be taken into account as part of the overall framework of analysis in this case.

    Drink driving charge

11. The Applicant was found guilty of an offence in March 2013.  The offence cannot possibly be considered to be minor.   Driving with middle range PCA places the lives of many people at risk and potentially has very serious consequences.

12. The seriousness attached to the offence is reflected in the punishment that the law seeks to attribute to it.  The offence can carry a maximum sentence of 20 penalty units or imprisonment for nine months or both in the case of a first offence.

13. The severity of these penalties must inevitably be taken into account.

    Matters of Probity and Honesty

14. The Applicant’s 12 month good behaviour bond expired in March 2014. In my view, an insufficient amount of time has passed since the expiry of the bond to be able to be satisfied that there is a pattern of good behaviour that could justify a conclusion at this point that the Applicant is of good behaviour.

15. There is also no convincing evidence that there were extenuating circumstances.  I have taken into account the Applicant’s statement that he was required to drive the car at the time when he was under the influence of alcohol because his wife had called him to indicate that his stepson was in great pain with appendicitis.  In this regard, there were inconsistencies in the Applicant’s version of this story and I am not satisfied that the Applicant was clearly in a position where he had to drive as a result of his stepson’s medical condition.

16. There were also inconsistencies regarding the fact that he was travelling in the opposite direction to that which he should have been travelling in at the time that he was stopped and the Applicant indicated that this was largely because he had to pick up a key that was relevant to his work.  I was unconvinced of the veracity of the Applicant’s testimony in this regard.

17. I should also point out that the Applicant was 32 years of age at the time that the offence took place and accordingly, in accordance with the Australian Citizenship Instructions, that does not provide him with any basis of an excuse based on age.

18. It is true in addition that the Applicant has only been found guilty of one offence in Australia but there have been other occasions on which the Applicant has returned a positive reading.  I have taken that into account although I have not based my decision on those other matters.

19. Finally, I would mention simply that there were at least two references provided.  Neither of those references were in the form of statutory declarations and neither of the references provided any examples or explanation to substantiate the Applicant’s claim as to the circumstances of the offence regarding the drink-driving charge and they did not necessarily attest to his good character.

20. The reference in particular from Reverend Jegasothy dated 26 January 2015 indicates that the Applicant has resolved to avoid drink driving once and for all but this quite clearly has been proven to be incorrect by virtue of the Applicant’s drink-driving which took place in May of 2015.

21. I would also comment that the reference from Dr Pillai is extraordinarily brief and makes no reference to the Applicant’s offence that is primarily in question here.

22. He has also qualified his endorsement of the Applicant by stating that he has known the Applicant on a professional level and the Applicant is of “good character” “to the best of my” - that is the author’s - “knowledge.”

    Matters relating to domestic violence

23. Both at the hearing and in formal submissions there were allegations of domestic violence. I note that there are no convictions in relation to such matters. Nonetheless I can in appropriate circumstances take such allegations into account provided that I am satisfied that the Applicant has been given an appropriate and adequate opportunity to deal with those allegations before the Tribunal. In this case, I have considered the allegations but have given them little weight having regard to the limited extent to which the Tribunal was able to test the allegations. 

    CONCLUSION

24. In all these circumstances, having regard to the drink-driving charge and the Applicant’s probity and honesty which has been called into question on a number of occasions, I am at this stage not satisfied as to the good character of the Applicant and accordingly the decision under review is affirmed.

    DECISION

25. The decision under review is affirmed.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 4 March 2016

Date(s) of hearing	20 January 2016, 28 January 2016
Solicitors for the Applicant	Mr S Sinnarajah, SENTIL SOLICITORS & BARRISTER
Solicitors for the Respondent	Mr K Eskerie, SPARKE HELMORE