Lokhi and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 839

Lokhi and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 839 (29 October 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1172
Re	Marianno Lokhi
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	29 October 2015
Place	Sydney

The decision under review is set aside and I remit the matter for reconsideration in accordance with a direction that Mr Lokhi is of good character.

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Professor R McCallum AO, Member

CATCHWORDS

Citizenship – whether applicant of good character – previous driving offences – minor offences – expired good behaviour bond – decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007, s 21

CASES

Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

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

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Professor R McCallum AO, Member

29 October 2015

INTRODUCTION

1. Mr Marianno Lokhi, the Applicant is aged in his mid-thirties. He was born in Myanmar and fled to a refugee camp in Thailand in 1992, presumably with other members of his family. Mr Lokhi came to Australia in 2009 through Australia's refugee resettlement program.

   The application for citizenship by conferral

2. On 15 April 2014, Mr Lokhi was granted a class BB, subclass 155 visa. In other words, he became a permanent resident. On 21 November 2014, Mr Lokhi applied for Australian citizenship by conferral.

3. On 13 February 2015, the Minister's delegate refused his application on the grounds that the delegate was not satisfied that Mr Lokhi was of good character. However, the Minister's delegate was satisfied that Mr Lokhi met the other criteria. The reasons why the Minister's delegate was not satisfied that Mr Lokhi is of good character relate to Mr Lokhi's three driving offences. Mr Lokhi now appeals to this Tribunal.

   The legislation

4. The relevant legislation is the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The provision on which the Minister's delegate relied to refuse the application for citizenship of Mr Lokhi is subsection 21(2)(h). It provides:

   (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   ...

   (h) is of good character at the time of the Minister's decision on the application.

   The meaning of “good character”

5. The Citizenship Act does not define "good character". Guidance is found in Chapter 10 of the Australian Citizenship Instructions (the ACIs) which offer guidance on policy in relation to the interpretation of, and exercise of powers under the Citizenship Act and the Australian Citizenship Regulations 2007 (Cth). They are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

6. The ACIs state that "'Good character' ... is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship" (section 10.1.2).

7. As to the meaning of "good character", the ACIs cite Lee J in the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, where his Honour said 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.

8. The ACIs state that the phrase "enduring moral qualities" encompasses characteristics which have been demonstrated over a very long period of time, including: distinguishing right from wrong; behaving in an ethical manner; and conforming to the rules and values of Australian society. This broad definition 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" (section 10.3.1).

9. The ACIs provide a non-exhaustive list of the qualities expected of persons of good character: they will respect and abide by the law in Australia and other countries; be honest and financially responsible, be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations (for example, they will not engage in material deception during visa and citizenship applications) (section 10.3.4).

10. The ACIs set out at length relevant factors when considering the implications of a person's criminal record for their character. They include whether the applicant has disclosed in their citizenship application that they had committed any offence; the nature and seriousness of the offence (traffic offences which have been included in a criminal record and offences which do not lead to a conviction or a sentence are minor offences); whether the offence was pre-meditated, whether it was a "one-off" offence or whether there was a "pattern of criminal behaviour", and the length of sentence. It is noted that decisions of courts, particularly sentencing remarks, may provide insight into the character of the applicant (section 10.5.2).

11. Mitigating factors may mean that, despite serious offending, a person may be found to be of good character. Factors to be taken into account include: the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences. Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful (section 10.5.2).

    THE ISSUE BEFORE THIS TRIBUNAL

12. The sole issue which I am required to decide, is whether Mr Lokhi is of good character. As I stand in the shoes of the Minister, pursuant to subsection 21(2)(h) of the Citizenship Act I am required to decide whether Mr Lokhi is of good character at the time when this decision is made.

    The three driving offences

13. Mr Lokhi has committed three driving offences which I shall outline in chronological order.

    The first driving offence

14. On 23 February 2010, Mr Lokhi was issued with an NSW Learner Driver's Licence (Class C), and on 20 December 2010, he was issued with an NSW P1 Provisional Driver's Licence (Class C).

15. On 14 October 2011 Mr Lokhi committed the first driving offence. He was picked up by a speed camera exceeding the speed limit by more than 20 kilometres per hour, but not more than 30 kilometres per hour whilst driving a motor vehicle. Mr Lokhi was fined $371. Owing to this offence, on 3 December 2011, his P1 Provisional Driver's Licence (Class C) was suspended for 3 months from 7 January 2012 to 6 April 2012.

    The second driving offence

16. On 14 April 2012, Mr Lokhi was issued with an NSW P2 Provisional Driver's Licence (Class C)

17. On the evening of 28 April 2012 in Tamworth, Mr Lokhi committed the second driving offence.  He was apprehended by the police and was charged with a drink driving offence. Mr Lokhi was breath tested and it was found that he had a blood alcohol level of 0.039, that is his level of alcohol concentration was 0.039 grams of alcohol in 210 litres of breath. Holders of a P2 Provisional Driver's Licence, are not permitted to drive a vehicle with any alcohol in their system.

18. On 18 October 2012, Mr Lokhi successfully completed a "Traffic Offender Intervention Program" (from 13 September 2012 to 18 October 2012).

19. On 5 November 2012, Mr Lokhi was found guilty by the Tamworth Local Court for the second driving offence, that is the offence committed on 28 April 2012. Pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court did not proceed to conviction and directed Mr Lokhi to enter into a good behaviour bond of 12 months from 5 November 2012. He was ordered to pay $300 in court costs.

    The third driving offence

20. On 3 December 2012, Mr Lokhi committed the third driving offence when he was fined $243 for he was picked up by a speed camera exceeding the speed limit by more than 10 kilometres per hour, but not more than 20 kilometres per hour whilst driving a motor vehicle. Accordingly, on 9 January 2013, Mr Lokhi was issued a demerit points warning letter for the 3 December 2012 offence. 

    THE EVIDENCE OF MR LOKHI

21. Mr Lokhi attended the hearing and represented himself. He gave sworn evidence and I found him to be an honest and truthful witness.

22. Mr Lokhi said that he had fled to a refugee camp in Thailand in 1992 where he had completed his primary and secondary education. He married in 2007, and his wife accompanied him to Australia. They have been living separately since March 2015.

23. Mr Lokhi gave details of his employment since arriving in Australia in 2009. He first worked as an abattoir worker in Tamworth. Later he worked in warehouses in Melbourne and in Sydney. Currently he is working in Sydney as a slaughter worker in an abattoir.

24. Mr Lokhi said that he undertook community work with the Australian Myanmar Catholic Community. He assists with the music for the church choir.

25. The first driving offence was committed on 14 October 2011. Mr Lokhi said that he was driving to Wollongong to keep an 8am appointment. He was driving along the highway at 90 kilometres per hour (KPH), it was early in the morning and he came to a village and was picked up by the speed camera. It was raining and he said he did not notice the speed sign for 70 KPH.

26. In cross-examination, it was pointed out to Mr Lokhi that his NSW P1 Provisional Driver's Licence (Class C) only permitted him to drive at 90 KPH. As the speed camera picked him up as driving more than 20 KPH (but not more than 30 KPH) it was put to Mr Lokhi that he was driving faster than 90 KPH. Mr Lokhi said that it was just over 90 KPH.

27. The second driving offence occurred on the evening of Saturday 28 April 2012. Mr Lokhi said that he was at a party in Tamworth with friends. He ate some food and had two small bottles of beer. He said that a friend had agreed to drive him home, but the friend was drinking and became drunk. Mr Lokhi said that he drove towards his home with one other person in the car. He said that his home was about 4 kilometres from the party.

28. In cross-examination, Mr Lokhi said that he only began driving after coming to Australia. He did not drive in Thailand for he was in a refugee camp.

29. Mr Lokhi admitted that he knew that under his NSW P2 Provisional Driver's Licence (Class C) he was not permitted to drive after consuming any alcohol whatsoever. Mr Lokhi explained that he successfully completed a traffic intervention program and pleaded guilty in the Tamworth Court.

30. The third driving offence occurred on 3 December 2012. Mr Lokhi said that he was driving along the highway in New South Wales on his way to Melbourne. He drove down a hill and just followed the speed of the car immediately ahead of him.

31. In cross-examination, it was put to Mr Lokhi that the speed limit on his NSW P2 Provisional Driver's Licence (Class C) was 100 KPH. He agreed that he was travelling at about 115 KPH.

32. Mr Lokhi said that he has not committed any driving offences since 3 December 2012. He said that he was sorry that he had broken Australian law by committing these three offences. He also said that he knew that driving rules are designed to safeguard the public. He reiterated that that he had only begun driving cars after he arrived in Australia.

    THE EVIDENCE OF DR WIN

33. Dr Rachel Win gave evidence by telephone. I found her to be a truthful and sincere witness. Dr Win explained that she is a retired medical practitioner and that she is also Burmese. Dr Win said that she recalled and accepted her statement dated 6 February 2015. The revised statement dated 6 February 2015 reads as follows;

    Mariano is a person of good character and has a very friendly disposition. He is very easy to get along with and never hesitates to help another person. He is currently an Executive Committee member of the Australian Myanmar Catholic Community Inc. (AMCC) and is in charge of organizing the Kayah Catholics. He also leads the music ministry and is a great help to all the members. Mariano is a welcomed asset to the AMCC.

    Mariano belongs to the Kayah ethnic group, one of the major national races in Myanmar, and he was awarded with a certificate of honour for his efforts in assisting the Kayah refugees to settle properly in Australia and fulfilling their urgent needs and requirements.

    I was aware that Mariano (then Mariano Mariano), while living and working in Tamworth, was booked by Tam worth Police on 28 April 2012 for having an alcohol content reading of 0.039 grammes during a breath analysis test while driving as a P2 driver and was consequently fined $300.

    I firmly believed that Mariano has learnt a very valuable and bitter lesson.

    I have no qualms in providing my recommendation of character support for Mariano and would be willing to provide any further assistance if required.

34. Dr Win said that she is a friend of Mr Lokhi. In her view, Mr Lokhi is honest and humble.

35. In cross examination, Dr Win said that she did not know much about the first and the third driving offences.

    DOCUMENTARY EVIDENCE

36. The Tribunal has before it the documents prepared by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents. Mr Lokhi also submitted several documents. Other documents were attached to the Respondent's statement of facts and contentions.

37. Ms Sonia Gerolimos submitted a character reference for Mr Lokhi dated 19 May 2015. The material part of this statement is as follows.

    This is to confirm that Marianno Lokhi of [address deleted] is currently employed by B.E. Campbell Pty. Limited as a Grade 2 Packer.

    I am aware that Marianno Lokhi committed an offence on 28th April 2012 for drink driving. Marianno has advised me that these mistakes were unintentional and has confirmed that it won't happen again. I understand that Marianno has applied for Australian Citizenship and does not want this offence to jeopardize that.

    Marianno has worked at B.E. Campbell since 10th March 2014. He is very committed to his role and aspires to progress further in his career at B.E. Campbell.

    I have always found Marianno to be very professional and a person of great integrity and honesty. He has been a valuable employee and has developed a successful working relationship.

    Marianno has expressed to me his great disappointment about committing the offence before the court. He is willing to do anything possible gain Australian Citizenship.

38. Ms Sonia Gerolimos was unavailable to give evidence by telephone to the Tribunal. Accordingly, I give it less weight than I give to the statement of Dr Win.

    CONSIDERATION

39. From the oral and documentary evidence, I find that Mr Lokhi has been in stable employment since coming to Australia under our refugee resettlement program in 2009. I further find that he has also undertaken community work in the Myanmar community.

40. The only evidence before this Tribunal from which it could be inferred that Mr Lokhi is not a person of good character are his commission of three driving offences which I have described in detail. The only offence which went to court was the second driving offence where no conviction was recorded. The first and third driving offences occurred when Mr Lokhi was picked up by speed cameras travelling over the speed limit.

41. The ACIs make it clear that traffic offences which have been included in a criminal record and offences which do not lead to a conviction or a sentence are minor offences (section 10.5.2).

42. Having carefully considered his evidence, I find that Mr Lokhi showed true remorse for breaking Australian law owing to the commission of these offences.

43. From the documentary and oral evidence, I find that the driving offences do not evince a pattern of criminal behaviour. I note that Mr Lokhi spent his formative years in a refugee camp in Thailand, and that he only began driving after he came to Australia. The fact that he has not committed any further driving offences since the commission of the third driving offence on 3 December 2012 shows that his driving skills have improved.

44. The question in my mind is whether sufficient time has elapsed since the third driving offence to show that Mr Lokhi has learned to obey Australia's traffic laws. The date of the hearing before this Tribunal was 7 October 2015 which is two years and ten months since 3 December 2012, the date of the third driving offence.

45. Mr Lokhi entered into a twelve month good behaviour bond on 5 November 2012. One year and eleven months has elapsed since the conclusion of this good behaviour bond. No driving offences have been committed by Mr Lokhi during this period of time.

46. Having regard to all of the evidence, and especially to the remorse shown by Mr Lokhi before me, I find that sufficient time has elapsed to show me that Mr Lokhi has learned to obey our road laws. I further find that Mr Lokhi possesses the appropriate enduring moral qualities. Mr Lokhi clearly distinguishes between right and wrong, he now knows and accepts that he is to abide by Australia's laws, and it is clear that he behaves in an ethical manner.

47. I am satisfied pursuant to subsection 21(2)(h) of the Citizenship Act that Mr Lokhi is of good character.

    DECISION

48. The decision under review is set aside and I remit the matter for reconsideration in accordance with a direction that Mr Lokhi is of good character.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate

Dated 29 October 2015

Date(s) of hearing	7 October 2015
Applicant	In person
Solicitors for the Respondent	Mr K Powell, Clayton Utz