Lee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2022] AATA 424

Lee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 424 (2 March 2022)
Division:GENERAL DIVISION
File Number(s): 2021/0590
Re:Hun Lee
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:2 March 2022
Place:Sydney

The decision under review is set aside and remitted for further processing with a direction that Mr Lee is ‘of good character’ within the meaning of paragraph 21(2)(h) of the Act.
.......................[sgd].................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – whether the applicant is of good character for the purposes of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – multiple traffic offences – relevant law and policy considered – relevant material considered – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Irving v Minister for Immigration, Local Government and Ethic Affairs (1996) 68 FCR 422
Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458
Kong and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3733.
Marron-Fanning and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 377
Muhammad and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 795
Nyamande and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4319
Vaezmousavi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 366
Secondary Materials
Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character Under the Citizenship Act
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
2 March 2022

Mr Hun Lee has applied to the Tribunal for the review of a decision to refuse his application for Australian citizenship. His application was refused on 7 January 2021 because a delegate of the Minister was not satisfied that Mr Lee was of good character.
Mr Lee is a citizen of the Republic of Korea. He was born in 1972 and is currently 49 years of age. He is married to an Australian permanent resident and has a son who is an Australian citizen.
On 22 June 2018, Mr Lee applied for Australian citizenship by conferral. He made full disclosure of the driving offences discussed below. He received a Natural Justice letter and, in response, he provided various references including the following documents:
·A statutory declaration made by him and dated 30 December 2020;
·A Court Order Notice at the Parramatta Local Court dated 25 May 2015;
·A certificate of completion of a Traffic Offenders Intervention Program by the applicant dated 21 May 2015;
·A Notice of Penalty dated 18 May 2018 ordering him to pay $964 for the offence of mid-range drink driving;
·A certificate of completion of a Traffic Offenders Intervention Program by him dated 19 May 2018;
·A copy of his driving record from Roads & Maritime Services (RMS) dated 8 December 2020.
The delegate’s refusal of Mr Lee’s application was based on the information disclosed in the Online Driving Record provided by the NSW Roads & Maritime Services (RMS).
The Decision record states:
In assessing whether you are of good character I have taken into consideration the following information.
You had a court appearance in 2015 for the offence of driving with low range PCA and were placed on a good behaviour bond for 12 months. You also completed a traffic offender’s intervention program.
In 2018 you had another court appearance for driving with mid-range PCA, where your licence was disqualified for 8 months. You completed another offenders program in the same year. You provided a copy of your driving record which shows multiple records from 2009. The latest being in 2019 which was after the lodgement of your citizenship application. You submitted a statutory declaration explaining the circumstances surrounding the offences that led to your court appearances. You have also provided character reference letters from members of the community who are aware of your record. Although I have placed weight on your explanation and the references provided, I have placed greater weight on your driving record and the fact you completed an offender’s course twice which does not indicate any change in behaviour.
The Citizenship Policy (CP) provides guidance on factors which I may take into consideration when assessing whether a person is of good character. These guidelines are in chapter 11 of the CP.
I have established your identity and am satisfied that the criminal history records and other information taken into consideration when assessing whether you are of good character are related to you. Based on the seriousness of your offences and your driving record I cannot be satisfied you meet this requirement.
The driving Record indicated that the applicant committed two drink driving offences, in 2015 and 2018.
·On 25 May 2015, the applicant was found guilty in the Parramatta Local Court of 1 count of low-range drink driving, and received a 12 month good behaviour bond pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the s10 bond);
·On 22 May 2018, the applicant was convicted in the Burwood Local Court of 1 count of midrange drink driving. The applicant was fined $800 and was disqualified from driving for a period of 8 months commencing on 22 May 2018 and concluding on 21 January 2019. [1]
[1] T9/ 94.
In addition to these drink driving offences, dealt with by way of court summons, Mr Lee’s driving record shows three disobey sign offences and eight speeding offences dealt with by way of expiation notice - 13 offences in all.
LEGISLATION
The Minister has the power under section 24 of the Australian Citizenship Act 2007 (Cth) (the Act) to approve or refuse a person’s application for Australian citizenship. However, the Minister must not approve a person’s application unless the person is eligible to become an Australian citizen under section 21.
Subsection 21(2) sets out in paragraphs (a) to (h) the various matters of which the Minister must be satisfied for a person to be eligible to become an Australian citizen. Paragraph (h) requires the Minister to be satisfied that the person who is applying for Australian citizenship ‘is of good character at the time of the Minister’s decision on the application’.
The question to be decided is whether I am satisfied that Mr Lee is of ‘good character’ at the time of making my decision.
The term ‘good character’ is not defined in the Act. The Tribunal is guided by the comments made by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; [1996] FCA 663 at 431-432.
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 has 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. (References to authorities omitted)
There are two important points following from this observation, first, that good character is different from good repute or reputation; and second, that a person may recover his or her good character even after being convicted of a serious crime.
POLICY FRAMEWORK
I note the latest iteration of the Citizenship Procedural Instruction (“CPI”) 15 - Assessing Good Character under the Citizenship Act (“the Instruction”) was issued on 26 February 2021.[2]
[2] This statement replaces the previous version issued on 17 April 2019.
Paragraph 3.3 of the Instruction provides:
3.3 What is good character?
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
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 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 while 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 has 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.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application…
Community standards
In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act could provide assistance in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character.
The Preamble to the Act sets out the meaning of Australian citizenship:
Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.
After considering the text of the Preamble, DP Forgie stated:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are 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…
Paragraph 4 of the Instruction provides:
4. An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.(emphasis added)
Paragraph 6 of the Instruction relevantly provides:
6. Assessing good character under the Act
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
A good decision-maker does not seek out and only consider information that supports the decision that they want to make. All relevant information must be considered. This includes all information before the Department whether or not that information was provided for the purposes of a citizenship decision.
Information such as character references provided by people who know the applicant must also be considered.
Decision-makers must guard against making erroneous assumptions…
Paragraph 11 of the Instruction sets out the factors that may be taken into account when assessing good character, including how the applicant has behaved in their interactions with government officials.
Paragraph 12.2 of the Instruction refers to the assessment of the relative seriousness of the offending and identifies factors such as:
·the length of the sentence
·ongoing obligations such as a good behaviour bond
·sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing.
·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
·Any victims of the offence, especially children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant.
I note especially the first dot point in paragraph 4, namely, that as a general proposition, a person of good character would respect and abide by the law in Australia and other countries. Given the strict liability nature of most traffic offences, and the vast numbers who commit such offences on a daily basis, the mere commission of a traffic offence cannot be taken by itself to demonstrate a lack of respect for the law. Conversely, an especially egregious driving record may be incompatible with a finding that a person is law-abiding and has a respect for the law.
Mr Lee’s driving record is far from exemplary. His record includes two drink related offences (one low-range, the other middle-range), and eight speeding offences, for which no reasonable justification has been, or indeed, could be, given.
The matter was heard by the Tribunal on 6 December 2021. There was a considerable focus on the reasons for Mr Lee’s traffic violations. He was examined as to his driving experience, his experience in driving in Korea and the United States, difficulties with converting from right to left hand driving, and the process whereby his foreign licence was converted to a NSW drivers’ licence. He said that when he was issued a licence in NSW, it was on the basis of his North American licence, and that he did not have to do a driving examination or a theory exam.
Mr Lee also gave evidence that during relevant periods he was under considerable stress at home and at work, and that he was working long hours and spending a lot of time on the road between jobs. He was required to drive from one job to another, often under time pressure. This is a phenomenon commonly seen on NSW roads, as drivers in utility vehicles hustle their way through traffic, impatient to get to the next job. It provides no excuse for tailgating or speeding.
COMPARATIVE CASE LAW
It is a reasonable expectation that decisions of the Tribunal should be as consistent as possible, although each case turns on its own special facts. Nevertheless, it is valuable to consider some examples of how other Members of the Tribunal have considered cases where the Minister has rejected a claim for citizenship based on traffic offences alone.
In Ahmed, the applicant had a total of 38 traffic offences (25 speeding offences, five unlicensed driving offences, and one alcohol related) and had not offended in the preceding seven years.[3] In Nyamande, the applicant had a total of seven offences (five substance related), and had not offended in the preceding five years.[4] In Marron-Fanning, the applicant had three drink related offences and had not offended in the preceding six years.[5] In each case, the delegate made an adverse character finding based simply on the traffic offences.
[3] Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458.
[4] Nyamande and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4319.
[5] Marron-Fanning and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 377.

In Kong, the applicant had four traffic offences (one each relating to alcohol and speeding, and two unlicensed driving).[6] Kong was referred to by the Respondent in these proceedings. However, in that case the applicant did not disclose his offending in his application for citizenship. Non-disclosure is a serious matter in its own right, and the case is therefore only marginally relevant to the present circumstances, where the applicant made full disclosure.
[6] Kong and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3733.
In Vaezmousavi and Muhammad the Tribunal found that the applicant was of good character despite having multiple traffic offences, nine in the case of Vaezmousavi (seven speeding, two unlicensed driving),[7] and ten in the case of Muhammad (including five speeding, one drink-driving).[8]
[7] Vaezmousavi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 366.
[8] Muhammad and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 795.
Each case turns on its particular facts. The positive aspects of a person’s character are critical and necessarily individualised. However, from these few decisions the following general principles may be derived.
First, a finding that a person is not of good character may be based on traffic offences alone. Second, relevant factors include: the seriousness of the offending; the presence of physical or personal injury; the penalty imposed for individual offences; the persistency and currency of offending; whether the offending triggered an expiation notice or required a court hearing, and whether there is anything to indicate a contemptuous disregard for the law, as opposed to simple carelessness or inexperience or ineptitude. Third, some categories of offending, such as high-range drink driving and excessive speeding, carry a particular stigma and weigh heavily against a finding of good character. Given the potential for serious injury or death arising from such behaviour, and the strong public safety measures taken by all road authorities, it may be inferred that a person who engages in such behaviour has little respect for the law, or, for that matter, fellow citizens. And finally, a bad driving record may, no less than other serious wrongdoing, be expiated by good conduct over an extended period. There is no prescribed period and this is a matter of subjective judgment for the decision-maker.
When Mr Lee started to drive in NSW, he was not a novice, and it was a matter for him to ensure that he was acquainted with the road rules and regulations. While I acknowledge that his employment created some pressure, I consider that his driving record is such as to raise a legitimate question about his compliance with, and respect for, Australian law and for the safety of his fellow citizens.
THE CRITICAL QUESTION
Having considered Mr Lee’s driving history, it is necessary to consider other matters that bear upon the content of his character. As noted by Deputy President Frost in a similar vein:
19. While it was conceded on [the applicant’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. [9]
[9] Muhammad and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 795, at [19].
And as Lee J noted in Irvine, evidence of reform and rehabilitation may offset the evidence of serious wrongdoing in the past.
The critical question is whether, despite his bad driving record, he may nevertheless be regarded as a person of good character. Importantly, the Tribunal is required to consider not only a person’s failings, but the positive aspects of their lives.
In judging a person’s character, the Tribunal is required to consider a person’s enduring moral qualities, that is, his or her behavioural propensities under a range of circumstances, whether for good or evil. This requires the Tribunal to form a view, not just about bad or criminal deeds at some point in the past, but about the extent to which his or her behaviour displays positive indeed beneficent attributes over an extended period of time. As Lee J cautions in Irvine, it is not simply in the reputation of a person that matters (as conveyed to the Tribunal in testimonials and references) but their deeds over time.
I note especially the examples given in paragraph 4 of the Instruction (see above) to provide some sense of what is required. This is helpful, at least in a negative way. It cannot be said that Mr Lee has done any of the things referred to in paragraph 4, with the possible exception of the question of respect for Australian law, which is, of course, a question of mental attitude.
I note that Mr Lee completed the Traffic Offenders Rehabilitation Program in 2015[10] and 2018.[11] I note that the 2018 offence occurred after he had completed the program in 2015, and is disappointing. However, he expressed what I take to be sincere and deep remorse for the offences, especially the drink-driving offences, and has not incurred any further traffic offences in the last 3 years and 7 months.
[10] T10/99.
[11] T10/102.
Mr Lee’s representative pointed to the fact that the applicant migrated to Australia with his family as a skilled worker and that he now he runs his own business. He assists the community with volunteering. He is honest and financially responsible by paying his taxes. He has not practised any deceit in dealings with the Australian government. He disclosed his drink driving offences on his Citizenship application and the NSW police bail report was provided as an attachment. He has not done any of the other things given by way of illustration in paragraph 4 of the Instruction. These submissions were born out by the evidence presented to the Tribunal.
Mr Lee provided letters of support from two religious leaders from his local Uniting Church of Australia. Reverend Jongkwon Lee said that Mr Lee was an active community member, had a warm heart and always showed kindness to the younger generation. He said that he had a “strong sense of justice” and contributed his talents to church tasks. He had “changed in drinking habits and deeply regrets his past offences”.[12] The Reverend Kiduk Hwang said that he was “a sincere, diligent person who always takes the lead in church activities as a volunteer and his care spreads to people in need and to the ministry as well” and that he “stopped drinking and smoking”.[13]
[12] Letter dated 3 December 2020: T10/106.
[13] Letter dated 12 December 2020:T10/107.
Mr Lee also provided a letter of support from his tax accountant;[14] a long term friend;[15] his former employer Mr Stephen Donadon,[16] and Mr Michael Heo, Justice of the Peace.[17] Each wrote of his positive attributes and good character.
[14] Letter dated 12 December 2020 from Donald (Hyck) Kwon, Registered Tax Agent: T10/108.
[15] Letter dated 7 December 2020 from Jeong Hee Moon: T10/110.
[16] Email dated 8 December 2020 from Mr Donadon, Director of ABC Tiling: T10/109.
[17] Letter dated 19 May 2021 from Mr Heo, Justice of the Peace: filed by the applicant on 29 October 2021.
Mr Donadon made himself available to give evidence to the Tribunal. He was aware of Mr Lee’s drinking record and the penalties imposed. He considered that he was an excellent worker and a person of good character. He wrote:
I have had the privilege of knowing him for the past 10 years. I consider him to be an individual of great character, and he has earned my respect and high regard. I have come to realize that he has a great work ethic, integrity, and kindness, values that make a great citizen. As someone who has seen him in a professional and personal environment, I can attest that he will thrive well in this country. I also am aware of his short down fall with alcohol and drink driving charges which is out of character for him. Hun lee is hard working person and a caring family man.[18]
[18] Email dated 8 December 2020 from Mr Donadon, Director of ABC Tiling: T10/109.
Despite his far from exemplary driving record, on balance I am satisfied that Mr Lee has demonstrated a change of attitude towards road compliance. In light of the evidence presented to the Tribunal, I am satisfied that he has a predisposition to respect and abide by the law in Australia generally; and given the focus of the present inquiry, the road traffic laws of the various states and territories in particular.
I am satisfied that he has developed a greater sense of awareness and maturity about the importance of road safety. Assessing his character in the full, I am satisfied that he is of good character.
DECISION
The decision under review is set aside and remitted for further processing with a direction that Mr Lee is ‘of good character’ within the meaning of paragraph 21(2)(h) of the Act.

I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

....................[sgd]....................................................
Associate
Dated: 2 March 2022

Date(s) of hearing: 6 December 2021

Applicant:
Ms Se Kyung Yeom
Opera Migration Consultants

Solicitors for the Respondent: Ms Kate Gawidziel
Australian Government Solicitor

Date(s) of hearing:	6 December 2021
Applicant:	Ms Se Kyung Yeom Opera Migration Consultants
Solicitors for the Respondent:	Ms Kate Gawidziel Australian Government Solicitor