Marron-Fanning and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 377
•26 February 2021
Marron-Fanning and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 377 (26 February 2021)
Division:GENERAL DIVISION
File Number(s): 2019/8668
Re:Alan Peter Marron-Fanning
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:26 February 2021
Place:Adelaide
The decision under review is affirmed.
................[SGND]....................
Senior Member B J Illingworth
CATCHWORDS
CITIZENSHIP – application for Australian citizenship– application for citizenship refused – drink driving and related offences – whether Tribunal is satisfied Applicant is of good character – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth).
CASES
Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458 at [53]-[54].
BOY19 v Minister for Immigration and Border Protection [2019] FCA 54 [54]-[55].
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 at [7].
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 2020 at [71] and [90].
Irving v Minister of Immigration, Local Government & Ethnic Affairs (1968) 68 FCR 422 at [431]-[432].
KSHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1969 (19 June 2020) [142] – [143].
Zaya and Minister for Immigration and Border Protection [2017] AATA 366 at [54].
ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2000 (30 June 2020) [156]-[157].
SECONDARY MATERIALS
Australian Citizenship Policy Statement, Department of Immigration and Border Protection, 27 November 2020.
REASONS FOR DECISION
Senior Member B J Illingworth
26 February 2021
The Applicant has applied for a review of the decision of a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent), dated 3 December 2019, refusing his application for Australian Citizenship by conferral because he did not satisfy s 21 (2) (h) of the Australian Citizenship Act 2007 (the Act).
The delegate was not satisfied that the Applicant was of good character at the time of the decision because of his driving record which included three drink driving offences for which he was convicted on 26 March 2008, 23 August 2012 and 3 February 2016 respectively.
At the hearing before the Tribunal, the Applicant appeared in person and was represented by Mr Hendrik de Korte, TdK Law who appeared by telephone. Ms Alice Ashby, Australian Government Solicitor, appeared for the Respondent.
Background
The Applicant was born on 13 May 1984 and is a 36-year-old citizen of Ireland[1]. On 9 April 1995 he arrived in Australia as the holder of a Close Family Visitor (Short Stay) TR673 Temporary Visa.
[1] T6, page 100.
On 7 June 2011, the Applicant was granted a Skilled-(VB 886) Sponsored (Full Fee) permanent visa and on 10 October 2017 he was granted a Residential Return: Five Year (Web) (BB 155) permanent visa.
On 19 July 2017 the Applicant applied for Australian citizenship and two years later, on 19 July 2019, the Department sent him an invitation to comment on adverse information[2]. That adverse information was the Applicant’s offender history which related to drink driving and related offences for which he was sentenced in March 2008, August 2012 and February 2016, which offences occurred on 5 January 2008, 22 April 2012 and 28 November 2015 respectively.
[2] T18, pages 150 – 153.
The Applicant’s reply was contained in a letter from TdK Law dated 16 August 2019[3] with various attachments including a statutory declaration signed by the Applicant and dated 15 August 2019[4]. He there outlined his offending as follows:
First offence
‘On the night of 5 January 2008, I had too much to drink and made a stupid decision’. The Applicant’s car sideswiped a vehicle and bumped into another that was pulling out of the driveway. Police were called and he was charged with high range drink driving, failing to give particulars to the other driver (two counts), negligent driving, drive recklessly/furiously for speed/manner dangerous (two counts) and drive with high range prescribed concentration of alcohol (PCA). His blood alcohol level was 0.270 grams. His sentence included community service, a fine and three years’ disqualification from holding or obtaining a driver’s license. He lost his employment as an electrician due to his loss of license[5].
Second offence
The Applicant was living with friends at the time. He was employed full-time as an electrical leading hand and working evenings and weekends helping his friends set up a café. The café business became too much for the friends who had a “fall out” and, as a result, the Applicant had to find a separate residence. He was disappointed his hard work and friendship ended abruptly and, on the weekend, decided to drown his sorrows. On 22 April 2012, he drove a motor vehicle under the influence of alcohol. He provided a random breath test and was charged with high range PCA and pleaded guilty. His sentence included a 12-month suspended sentence of imprisonment upon entering into a bond, a fine and disqualification from holding or obtaining a driver’s licence for two years seven months and 30 days[6]. His breath analysis reading was 0.216 grams.
Third offence
On 28 November 2015 he had late-night drinks. The next morning, he woke early. He did not feel the effects of the previous night’s drinking. He drove to the beach to go surfing. He received a telephone call while driving and answered the call. He was pulled over by police, breathalysed and his blood alcohol reading was 0.081 grams. He was disqualified from holding or obtaining a driver’s licence for five years commencing 3 February 2016. He completed a sober driver program.
[3] T19, pages 164 – 280.
[4] T19, pages 215 – 219.
[5] T19, page 216.
[6] T19, page 218.
The New South Wales Police Fact Sheet for the third offence confirmed that the Applicant was seen using a mobile phone while driving. Police described the Applicant as slightly affected by alcohol and his breath smelt of intoxicating liquor[7].
[7] T24, pages 333 – 334.
The Applicant in his statutory declaration said that thereafter he made some significant changes in his life and cut down his alcohol consumption. He and his partner moved interstate. He had difficulty obtaining employment due to his loss of license. He obtained work as a labourer. His partner subsequently returned to Sydney and the Applicant was able to get “fly in fly out” employment. His relationship came to an end. He then moved to live with an aunt in South Australia for a time, while maintaining his “fly in fly out” work. He has since returned to Sydney for employment where he continues to work as an electrician. The Applicant declared that he has changed his lifestyle to include daily fitness training, entering fun runs and being sponsored to raise money for charity such as the City to Surf in which he raised $3500 for the Cancer Council. He reduced his alcohol consumption and enrolled in a project management course.
On 3 December 2019, the delegate refused the Applicant’s citizenship application.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The only issue for the Tribunal is whether the Applicant is of good character at the time of the Tribunal decision and meets the eligibility requirement in s 21 (2) (h) of the Act.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24 (1) of the Act provides that where the Minister receives such application the Minister must approve or refuse to approve the person becoming an Australian citizen.
Section 24 (1A) provides that the Minister must not approve a person to become an Australian citizen unless that person is eligible under s 21 (2) - (8) of the Act. Relevantly in this matter, s 21 (2) (h) 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 decision on the application.
In BOY19 v Minister for Immigration and Border Protection,[8] O’Bryan J considered the requirement that a decision maker be satisfied of an Applicant’s good character.
His Honour stated:[9]
Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite.[10] Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion.
…
It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision maker to have a high degree of confidence that the applicant is a person of good character.
[8] [2019] FCA 574.
[9] Ibid at [54]-[55].
[10] McDonald v Director General of Security (1984) 1 FCR 354 at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Sun v Minister for Immigration (2016) 243 FCR 220 at [6] per Logan J and at [76]-[79] and [95] per Flick and Rangiah JJ.
The term “good character” is not defined in the Act; however, there is guidance on the application of the good character requirement in the Australian Citizenship Policy (the Policy). The Tribunal is not bound to apply the Policy; however, should give regard to and apply the Policy unless there are cogent reasons not to do so.[11] The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration in this case.
[11] Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.
Chapter 11 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian citizenship where good character is involved. It states:
‘Good character' refers to the enduring moral qualities of a person, and 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.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs,[12] Lee J 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 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.
[12] (1996) 68 FCR 422 (‘Irving’).
Chapter 11 of the Policy also sets out the phrase "enduring moral qualities" as encompassing the following concepts:
(i)characteristics which have been demonstrated over a long period of time;
(ii)distinguishing right from wrong; and
(iii)behaving in an ethical manner, conforming to the rules and values of Australian society.
The Policy also outlines the characteristics of good character as an Applicant who would:
(i)respect and abide by the law in Australia and other countries;
(ii)be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisation; and
(iii)not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without license or insurance).
The Citizenship Procedural Instructions originally provided at T5 pages 68 – 98 were replaced by new Citizenship Procedural Instructions (CPIs)[13] and were in similar terms. The CPIs provide instructions to a decision maker in assessing good character and provides, amongst other things that, as a general proposition, a person who is of good character:
would respect and abide the law in Australia and would not be violent, involved in illegal drug 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).
[13] After the hearing, the Respondent provided new CPIs which came into operation on and from 27 November 2020 which the Tribunal received into evidence and is marked as Exhibit H.
The CPIs also says that the instruction is not to be applied rigidly or inflexibly but provides guidance about the types of behaviour which may give rise to an adverse finding. It is for the Tribunal to exercise its statutory obligation having regard to the facts of the matter[14]. A decision maker needs to look holistically at an Applicant’s behaviour over a lasting or enduring period of time.
[14] Exhibit H, CPI 15, paragraph 4.4.
The CPIs also provides guidance with respect to such conduct which may be regarded as a serious offence and includes offences incurring prison sentences of 12 months or more[15].
[15] Exhibit H, page 12.
THE DEPARTMENT’S FINDINGS
The delegate’s decision is dated 3 December 2019. The delegate referred, amongst other things, to a number of statutory declarations which were also before the Tribunal from members of the community and relatives, attesting to the Applicant’s good character, the efforts by the Applicant to reduce his alcohol consumption, his contribution to charities, academic achievements and employment.
The delegate referred to the Policy that states that a reasonable amount of time will need to have passed to establish a pattern of good behaviour since the Applicant’s conviction for the second and third offences. The delegate wrote[16]:
[16] T1, page 12.
Whilst the offence itself is not generally considered to be a serious offence, it is still an offence you have conducted, which puts the Australian community at risk each time you decide to drive in these circumstances. It is the third offence of this nature, and you are currently serving a license disqualification period of five years. Due to the disqualification from driving, you cannot clearly demonstrate that you have learnt from your mistake and have consequently had a positive change in character. I am not satisfied that a reasonable amount of time has passed to establish a pattern of good behaviour, even of repeated minor offences, which shows a disregard for the law and indicates that you may not uphold and obey the law if citizenship is conferred on you. I give this factor considerable weight in my assessment of whether you are of good character.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant’s evidence
The Applicant provided a statutory declaration dated 1 August 2019, two affidavits dated 20 April 2020 and 3 September 2020, together with annexures and gave oral evidence.
Statutory Declaration[17]
[17] T19, pages 215 – 220.
The Applicant was born in England in May 1984 to Irish parents. He has a younger brother. When he was to start school, the family returned to Ireland where they remained.
The Applicant completed his education in Ireland. He worked as an apprentice electrician with a major company. He worked for that company throughout Europe. He completed his apprenticeship at age 21 years and then planned to travel to Australia.
The Applicant said that “I have never had contact with police in Ireland, I was a hard worker with good work ethic and was a law abiding tax paying citizen.”
In January 2007, aged 22 years, the Applicant travelled to Australia and he has remained predominantly in Australia since then. He soon obtained employment and commenced a relationship with a young lady. He declared he “was very much in love”. This relationship ended in late 2007. Uncertainty with respect to the Applicant’s sponsorship contributed to the breakup. He said, “Over the Christmas holiday of 2007…I was emotionally unwell”. He committed the first offence on 5 January 2008. He was nearly 24 years of age.
The Applicant detailed the circumstances of his first offending to which the Tribunal has referred in paragraph seven above. Following his sentence and three-year license disqualification for the first offence, he lost his job. He enrolled in an Advanced Diploma of Electrical Technology which he completed in 2010, a Certificate III in Electrotechnology Electrician in 2011 and obtained a Craft Certificate and Certificate of Proficiency Australian Electrical License also in 2011.[18] The Applicant also attained qualifications in a number of other certificates in his profession, together with first-aid accreditation and produced various certificates to the Tribunal, the latter consisting of an Electrical Workers Licence dated 26 August 2014.[19]
[18] T19, pages 180 – 188.
[19] T19, pages 187 – 196, 214.
The Applicant applied for and was granted permanent residency in Australia. He travelled and worked within Australia.
The Applicant detailed the circumstances of his second offence to which the Tribunal has also referred in paragraph seven above. He was studying and working full time. He helped his friends in the evenings and on weekends. He drove his motor vehicle on 22 April 2012 and was charged with high range drink driving with a blood alcohol level of 0.216 grams. He was then approximately 28 years of age. He was sentenced to a suspended term of imprisonment of 12 months and was disqualified from holding or obtaining a driver’s licence for 2 years 7 months and 30 days. His period of licence disqualification ended on 21 April 2015. He also had an interlocutory suspension order for four years with a minimum compliance period of 12 months and was required to partake in the alcohol interlock program for 12 months.
His third offence, to which the Tribunal has also referred in paragraph seven, occurred on 28 November 2015, seven months after the reinstatement of his licence. He was then aged 31 years. His blood alcohol level was 0.081. When sentenced on 3 February 2016, his licence was suspended for 5 years and was due to be reinstated in February 2021.
The Applicant declared that, following that last court sentence he completed the sober driver program. On this occasion, he was able to maintain his employment, he made major changes in his life and reduced considerably his alcohol consumption. He and his partner relocated to the Gold Coast, but he had difficulties obtaining work as an electrician. He found employment as a labourer near his then place of residence. Employment was difficult because of the loss of license. He and his partner returned to Sydney. The relationship ended. He relocated to Adelaide and lived with his aunt and obtained fly in and fly out work.
He commenced fitness training and subsequently returned to Sydney. He continued his fly in fly out work and he helped raise money for charity. The Applicant provided a 2018 Cancer Council City to Surf certificate in which he raised $3653.18[20] and he donated to other charitable organisations on a regular basis and provided records of such donation.[21]
Affidavit dated 8 April 2020[22]
[20] T19, pages 197 – 204.
[21] T19, pages 205 – 213.
[22] Exhibit C.
The Applicant detailed his mother’s visit to Australia from Ireland to coincide with his aunt’s 80th birthday. His father was unable to travel due to ill health. The Applicant paid for his mother’s business class plane fare. He spent time with his mother and relatives in Adelaide and she later joined him in Sydney, and they travelled to New Zealand and visited relatives. The Applicant provided photographs of the birthday celebration, business class international plane tickets and holiday photographs.
The Applicant started working on four personal goals namely (i) continue to engage in counselling, (ii) complete studies in project management, (iii) complete the Sydney marathon and (iv) obtain his Australian Citizenship.
The Applicant deposed that, in 2019, he decided to engage in counselling because of mental and emotional battles he had for many years. He said he used alcohol as an outlet and to build confidence. He accepted responsibility for his offending and decided to take a positive step to get professional help. He said he had now managed to limit his drinking to social and occasional use in a responsible manner. He has found counselling effective; he has gained self-awareness and learned techniques including meditation, deep breathing exercises and frontal lobe control. He provided a letter from his psychologist Dr Stewart which the Tribunal will refer to later.
The Applicant has also continued with his studies undertaking a Project Management course and exhibited to his affidavit his personal career development plan for 2020 and a completed course assignment. He maintains regular fitness training albeit interrupted by injury. He maintained employment and was currently working on the upgrade of the Central Station Sydney. That position was with New South Wales Rail which required the Applicant to hold a rail ticket which rendered him subject to random drug testing and daily breathalyser checks on arrival to the worksite each day. He worked a 40-hour week. He later submitted that he was subject to similar testing for the two years that he held fly in fly out positions to which the Tribunal has referred.
The Applicant deposed to the importance of obtaining his Australian citizenship and that he has worked hard and will continue to work to remedy his mistakes and be a responsible member of the community.
Affidavit dated 3 September 2020[23]
[23] Exhibit E.
The Applicant obtained and produced his credit rating report from Experian which confirmed his “clean credit rating” and produced financial records in support of his financial reliability. He provided an updated psychological report from Dr Stewart dated 16 August 2020, to which the Tribunal will refer later. He also deposed that he submitted his final submission for his Project Management Course, together with an email from his course assessor, complementing him on his consistent and very good written work throughout his study and confirming he passed the last module of study.
The Applicant’s oral evidence
In evidence in chief, the Applicant said that he had been in a long-term relationship. His partner was from Ireland and living in Australia. She returned to Ireland before the third offence. He was to travel to Ireland in December 2015 and in the New Year return to Australia with his partner and her daughter to continue to live in Australia.
Regarding the last offence, on the morning of 27 November 2015, he said it was a misjudgement. He said he believed he was alright to drive that morning. He woke early on a Saturday morning, had a coffee and decided to go surfing at Bondi Beach about two kilometres from where he lived. He received a telephone call from his father in Ireland while driving. It worried him because it was late at night in Ireland and he impulsively picked up the telephone. He said he would ring his father back. Police stopped him. He was breathalysed and gave a positive reading.
The Applicant said he was very worried about how this latest offence would impact upon his partner’s return to Australia in the New Year and also because of his prior offending. With regard to the Police Fact Sheet,[24] insofar as the officer reported that the Applicant was slightly affected by alcohol, the Applicant explained that he was panicking thinking about his partner’s return to Australia and the possible further loss of licence, so he started “rabbiting on” and may have given that impression.
[24] ST24, page 334.
When the Applicant returned to Ireland at Christmas 2015, he had a conversation with his father and partner. They recommended he see someone because he did not appear to be dealing with his social anxiety and demons. The Applicant’s partner returned to Australia, but they struggled because he again did not have a licence, and only having one driver in the family contributed to the demise of the relationship. She returned to Ireland in 2017.
After his partner returned to Ireland, he had fly in fly out work and based himself with his aunt in Adelaide. After that finished in 2018, he returned to Sydney and applied for treatment with a clinical psychologist. This was about a year after his partner returned to Ireland. He obtained a referral from his treating doctor.
He said in respect of his demons, he suffered from hypervigilance. He was always on edge and paranoid which contributed to his anxiety. His psychologist explained to him that it was from childhood traumas. He was using alcohol as an outlet rather than dealing with it appropriately. He has now learned about triggers; he does homework and meditation. He has learned to use his hypervigilance to his advantage, for example with his continued studies, such as project management. He does not expose himself to events that will make him feel anxious. Family gatherings would cause him anxiety. If he must attend a gathering, he would arrive early and prepare himself, meeting people as they arrive rather than dealing with a large group all at once. He explained how he practiced patience or introduced himself to people which helped overcome his initial anxiety when meeting someone at gatherings.
He repeatedly expressed his remorse for his offending and said, if anything happened to a member of the public, he would not be able to live with himself. He said in respect of the third offence, he could not believe he had let this happen again.
The Applicant obtained his referral to a clinical psychologist in April 2019, but it took six months before his first appointment. He continues to see his psychologist once a month. She has said that he has made great improvement. She said there had been a significant change in him from the first consultation.
In cross-examination he confirmed his date of birth was 13 May 1984 and that he is currently 36 years of age. He confirmed that he first arrived in Australia on 9 April 1995 and held a number of visas, the last being a residential return visa granted on 10 October 2017.
He said that he was no longer employed in the upgrade of the Sydney Central Railway Station. He was last employed in May 2020 which ended as a result of COVID -19 but currently has a number of offers of employment. It was solely because of the pandemic that he has been unemployed. When employed in the upgrade of the railway station he did not fail any random drug test or daily breath test.
He confirmed he had a clear financial credit history, consistent rental payment history and completed all of his assessments for his diploma, which he said he was able to complete whilst unemployed due to the pandemic. He confirmed his charitable contributions through running events such as the City to Surf. He also makes regular direct debits from his bank account to a children’s charity. He also confirmed his ongoing training, including for the Sydney Marathon should the event proceed.
The Applicant was referred to his antecedent criminal history. He agreed to the accuracy of that history. He was legally represented and pleaded guilty to the offences[25].
[25] T17, page 148.
He was also referred to the NSW Police Facts Sheet in relation to the first offence on 5 January 2008[26]. He admitted the allegations. As for the negligent driving, he admitted he reversed into another vehicle and left without making an effort to leave his details. He then collided with another parked vehicle that was occupied at the time. He did not check if the person in the vehicle was injured. He said he did not realise there was someone in the car. He did not stop. He then explained that he had an argument with Ms MK, was on his own and went to a friend’s place. The incident occurred outside the friend’s place as he was leaving to go home.
[26] ST24, page 290 -295.
The Applicant said he should not have gone out in his car. He should have taken a taxi. He was not thinking. He accepted his blood alcohol reading was 0.270 grams. He acknowledged that he had consumed alcohol from about 3.00pm that afternoon.
In respect of his statutory declaration,[27] insofar as it was not consistent with the Police Facts Sheet[28], he accepts he did not provide his personal details. He said, embarrassingly, he did not remember committing the offence. He accepted that he placed other road users at risk. He said he was incoherent. He accepted that he breached his duty to ensure he was not intoxicated, and the offence was a blatant disregard for the laws of Australia. The licence suspension affected his relationship and he lost his job.
[27] T19, page 215.
[28] Ibid.
As for the second offence, he agreed this was 1 year and 5 months after the reinstatement of his driver’s licence. He was represented and pleaded guilty. The interlocutory suspension order required him to have a breath analysis device installed in his car that required him to blow into the device, including randomly when driving. It would let the driver know if he had a blood alcohol reading.
He was referred to the Police Facts Sheet in respect of the second offence[29]. He agreed with its content. He failed to stop at a give way sign, was stopped by police, breath tested and had a blood alcohol reading of 0.216. He said he was so intoxicated he didn’t think. He accepted that he put others’ lives at risk and jeopardised the safety of other road users and this was a blatant disregard for the laws of Australia. He agreed it was more serious because he committed the offence again.
[29] ST24, pages 329 – 330.
In relation to the third offence, he agreed it occurred less than 10 months following the reinstatement of his licence. He was legally represented and pleaded guilty. He completed the drug and alcohol programme and sober drivers programme. This required him to attend every Saturday for 10 weeks for 8 – 10 hours. He said it was confronting. It was in the nature of group counselling. After the programme he continued to consume alcohol but moderately.
In referring the Applicant to the Police Facts Sheet[30], he accepted the contents of that document and recorded a blood alcohol level of 0.081. He detailed his eating and drinking the night before the offence. He consumed a considerable quantity of scotch that evening.
[30] ST24, pages 331 – 334.
The Applicant was referred to his statutory declaration in which he described that he had a few drinks. He agreed he had more than a few drinks. In hindsight he accepts that, given the events of the night before and the amount he drank, he would have been intoxicated that evening. He said he did not know he was intoxicated that morning. He accepted the seriousness of the offence but did not think it was as serious as his previous offending. He said he would invest in a similar breath analysis device in his car that he was previously required to have installed in consequence of his second offence.
He accepted that he put other road users at risk, and it was his duty to ensure he was not intoxicated while driving. He accepted his offending was serious but qualified his answer by saying it was a minor offence, but that it could be very serious. He accepted it was a disregard for the laws of Australia, but he did not know he was exceeding the blood alcohol limit. He understood the use of a mobile phone when driving was an offence.
Before the reinstatement of his driver’s licence on 3 February 2021, he will have to undertake a drug theory test and resit his driver’s licence. He understood that he would need to use learner’s plates for 3 months to enable him to practice driving.
The Applicant accepted he reoffended after being suspended, but he did not offend intentionally. He was sorry for his offending. The Applicant accepted that he had not had an opportunity to demonstrate that he can adhere to road laws since his last offending due to his licence being disqualified. He said that with Uber and other driving services he will never drink drive again. He intends to forge a future in Australia and settle down.
The Applicant said, in response to the suggestion he would reoffend once his license is returned, that in the last two years he was required to return to Ireland twice for extended periods and he drove without any issue. He holds a valid Irish driver’s licence. He was there between fly in fly out contracts for 4 – 6 months, and again for 6 months from October 2018 – March 2019 when he returned for his father’s 80th birthday. He committed no driving offence on those occasions. He drove every day.
The Applicant was referred to his affidavit[31] and the reference to counselling. He said in April 2019 he was put on a waitlist and started in September that year. In relation to the letters dated 2 April 2020[32] and 16 August 2020[33] from Clinical Psychologist Katherine Stewart, he agreed that the contents of each were correct. He said he learned from counselling that he was hypervigilant. He was referred because of his anxiety. He agreed that he now controls his use of alcohol and limits his drinking to social and occasional use.
[31] T24, page 295.
[32] T24, page 315.
[33] T26, page 336.
The Applicant agreed that his past offending related to a time when he was a heavy drinker. Now he does not use alcohol as a release for his anxiety or to deal with his paranoia and hypervigilance. He explained that he is better now than he has ever been.
The Applicant was taken to the character evidence contained in Mr DO’C’s statutory declaration dated 14 August 2019[34] and affidavit dated 8 April 2020[35]. The Applicant said that he detailed his offending to Mr DO’C. The Applicant worked for Mr DO’C. He asked for employment closer to home due to his licence disqualification. He has been employed on a number of occasions, including over the last four years. The Applicant said he was highly regarded as an electrician and Mr DO’C encouraged him to return to work for him.
[34] T19, page 221.
[35] T25, page 335.
He said they met in about October 2016. They have spoken about his previous drinking problems and, when he returns to Sydney, the Applicant plans to go into project management with the hope of gaining a junior project management role. The Applicant also intends to train in human management and occupational health and safety.
The Applicant was referred to the statutory declaration of his cousin FMH dated 15 August 2019[36]. She lives in Adelaide. He said she knows about his offender history. He has been through the details of each offence with FMH. He told her about the 2015 offending. She was shocked because the Applicant was doing so well. At the time he had his own business and had a contract with a local realty business.
[36] T19, pages 225-226.
In respect of the statutory declaration of MK[37], his former partner, she attended court in relation to the first and second offence. They have maintained contact and she was aware of the circumstances of the third offence.
[37] T19, page 227.
Similarly, with his former employer and friend JC[38] the Applicant advised JC about his offender history. They met in 2010 when studying. They remain very close. The Applicant runs JC’s business when he takes leave and JC hired a driver for the Applicant when he was working for him and his license was suspended. JC has a position for the Applicant when he returns to Sydney. He was working for JC at the time of the 2015 offending and JC knew of the licence suspension.
[38] T19, page 229.
In relation the statutory declaration of DF dated 16 August 2019[39], the Applicant said that he spoke to DF about each of his offences and that DF was the person who moved his car from the beach carpark after the commission of the third offence. He picked up the Applicant from the police station that morning. He knows about the Applicant’s drinking problem. The Applicant has known DF since 2004. They used to drink together but he now has a family and, more recently, they haven’t seen as much of each other. They maintain regular telephone contact.
[39] T19, page 231.
In relation to the letter of the Applicant’s Aunt MMcT dated 12 August 2019,[40] she knows the details of the Applicant’s criminal history and the circumstances of each offence.
[40] T19, page 233.
In relation to the letter from Mr KM dated 21 September 2020[41], the Applicant said that Mr KM was a trainer in his business management course. They have known each other since March 2020. He did not tell him about his offender history and license suspension. He told him that he had an immigration hearing and Mr KM was prepared to give a reference. The Applicant said that he was embarrassed about his history and did not see the need to tell him about his offending or his drinking problem.
[41] Exhibit G.
In answer to the Tribunal’s question, the Applicant further explained the circumstances of the first offence in 2008. He explained that he and his former partner Ms MK had argued on the day of the offending. They did not then end the relationship. She told him to return to his own home because her family were coming to stay with her. It was his first Christmas away from Ireland. He was upset and he drank. He again detailed to the Tribunal the circumstances of the second offence and the work he was doing in the café. He said he took the wrong approach in dealing with the situation.
Reports of Dr Katherine Stewart dated 2 April 2020 and 16 August 2020
2 April 2020 Report
Dr Stewart reports that the Applicant’s first consultation was on 18 September 2019. He attended 10 sessions in 2019 and a further three sessions in 2020 as at the date of the report and the treatment was to continue. She reported:
He was referred for the treatment of extreme anxiety due to troubling family issues and problems with alcohol. Therapy focused on supportive solution-focused psychotherapy particularly in relation to his difficulties with social anxiety, poor self-esteem, and agitation (motor ties), which have now improved with his commitment to therapeutic process and his dedication to completing “homework”. He recognises the “triggers” for his anxiety including stressors associated with his family and friends and his strategies, both mental and physical, to cope with difficult situations.
Dr Stewart opined that the Applicant is serious about improving himself and recognising the seriousness of his mistakes. At the relevant time, he was studying project management and was an accomplished musician. She confirmed the Applicant’s wish to eventually marry and raise a family in Australia. She said that he had acted responsibly with respect to improving his life and mental health.
16 August 2020 Report
Dr Stewart diagnosed the Applicant as suffering from severe depression and anxiety. He suffered complex trauma with consequential negative hypervigilance relating to his early childhood. In addressing these issues, therapy focused on supportive solution-focused psychotherapy and practical strategies to manage emotions. He was attending regular therapy sessions, including remote phone sessions due to the COVID-19 lockdown, and was continuing with monthly appointments.
Dr Stewart described the Applicant as an ideal client who kept all his appointments, was actively involved in the therapeutic process, keeping notes in a journal and detailing how he applied his homework. The Applicant reported his life greatly improved and Dr Stewart opined his anxiety condition was declining. He is now controlling his alcohol use.
Dr Stewart reported the Applicant had returned to Adelaide to attend the hearing before the Tribunal in person, rather than by phone. She described him as a conscientious person, wanting to improve his life and living in Australia is important to him.
Closing Submissions
In closing submissions, counsel for the Applicant said that the timeframe from the date of the last offence up until the Tribunal hearing did not give the Applicant any opportunity to establish he will not reoffend with regards to the offence of drink driving. However, there were matters which the Tribunal could take into account, namely
(a)when in Ireland he was driving and committed no offence which was confirmed by the Police Certificate[42];
(b)the regular testing that he underwent while working for New South Wales Rail (and fly in fly out contracts) and never failing such tests; and
(c)the medical explanation in relation to his psychological difficulties that he grappled with, including before the offences.
[42] T16, page 146.
Counsel referred the Tribunal to KSHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[43] (Citizenship), in which the Tribunal found that the Applicant in that case had suffered from psychological illness, which tended to corroborate his evidence of persecution and that he was a credible and reliable witness. Counsel submitted that, similarly, here the Applicant gave plausible explanations for his transgressions and that he was a reliable truthful witness who was consistent in giving his evidence.
[43] [2020] AATA 1969 at [142] – [143].
Counsel also referred the Tribunal to ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship,)[44] and submitted that, albeit the issue in that matter was whether it was contrary to the public interest for the Applicant to remain an Australian citizen, the Tribunal there found that the determinative weight attributable to an Applicant, having successfully re-established good character in the eyes of the Tribunal, outweighed the seriousness of the Applicant’s offending and the likelihood of him not being granted citizenship. In other words, the Tribunal’s assessment of the Applicant’s good character should be given more weight than the seriousness of the Applicant’s offending, and that such an approach was appropriate in this matter.
[44] [2020] AATA 2000 at [157].
The Applicant in evidence agreed with Counsel for the Respondent that on each occasion the offending was serious. However, it was submitted that the evidence established the Applicant was good at his job, ambitious, willing to take steps to improve himself, had a high focus on family and that, weighing up the whole of the evidence, the Tribunal ought be persuaded that he is of good character.
The Respondent submitted that, in respect of the Applicant’s character, the issue for the Tribunal was whether the Applicant satisfied the general eligibility criteria in s 21(2)(h) of the Act and, if not so satisfied, the Tribunal must not approve the application for Australian citizenship as required by s 24(1)A of the Act.
The Respondent submitted that the Act does not define the term ‘good character,’ however, the expression was referenced in Irving[45] and referred to the enduring moral qualities of a person. The Respondent referred to the Policy,[46] which gave insight into the meaning of ‘good character,’ which included characteristics demonstrated over a very long period of time, distinguishing right from wrong and behaving in an ethical manner. It was submitted the Tribunal needs to look holistically at the Applicant’s behaviour over a lasting or enduring period of time.
[45] (1996) 68 FCR 422.
[46] T4, page 56.
Further, the Policy[47] defines the characteristics of good character, which includes: respecting and abiding by the law in Australia and other countries, being truthful and not practicing deception or fraud in dealings with the Australian Government or other governments, not being violent, involved in drugs or unlawful sexual activity, and not causing harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without a license). The Respondent also referred the Tribunal to paragraph [8] in Fenn v Minister for Immigration and Multicultural Affairs[48]
The grant of Australian Citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.
[47] Ibid, page 58.
[48] [2000] AATA 931.
The Respondent also referred to the CPIs which provided examples of serious offences, including those which incur a prison sentence of 12 months or more. The Respondent referred the Tribunal to BOY19 v Minister for Immigration and Border Protection,[49] and said that the level of satisfaction in which the Tribunal must decide the question of good character is a high level of satisfaction.
[49] [2019] FCA 574.
The Respondent submitted that the Tribunal has cause for concern and ought not be satisfied of the Applicant’s good character and summarised the circumstances of his offending in 2008, 2012 and 2015.
As for the first offence, the Applicant’s blood alcohol level was 0.270. He failed to stop twice after colliding with separate motor vehicles. He said he was incoherent, and it was submitted that his offending demonstrated a blatant disregard for the law and safety of road users.
As for the second offence, his blood alcohol level was 0.216, and it was committed one year and five months after the reinstatement of his driver’s licence. He did not comply with a give way sign. The Applicant said in evidence that he did not think at the time he was that intoxicated. He said, “I didn’t think”. He admitted knowingly putting others at risk, agreed his offending was serious and that it demonstrated a disregard for the laws of Australia.
The Respondent submitted that these were serious offences and the Applicant agreed with that proposition in evidence.
As to the third offence, his blood alcohol level was 0.081, and it was committed 10 months after his driver’s licence was reinstated for a second time. It arose after he was seen driving and using his mobile phone.
The Respondent was critical of the Applicant’s classification of this offence as being less serious and that the circumstances could be distinguished from his other offending or driving, well-knowing he was affected by alcohol. He said he made a bad decision. It was submitted that the Applicant misrepresented the circumstances of the offending.
The Respondent also referred to the evidence of the Applicant with respect to the quantity of whiskey he consumed on the evening immediately before the offence, which was described differently in the Police Facts Sheet. The Respondent referred to HZCP v Minister for Immigration and Border Protection[50]. The Respondent submitted that the issue on appeal in that matter was whether and for what purpose, when considering a revocation decision, evidence inconsistent with the relevant conviction or sentence may be considered by an administrative decision maker. Accordingly, the Respondent submitted that the Tribunal cannot take into account the Applicant’s evidence that he only consumed a 200ml bottle of whiskey, and the Tribunal must accept the facts contained in the antecedent report as the facts upon which the Tribunal must make a decision.
[50] [2019] FCAFC 202.
However, when pressed by the Tribunal the Respondent conceded that the issue was, at the relevant time, that his blood alcohol level was 0.081, rather than the number of drinks or volume of alcohol consumed earlier that evening.
The Respondent noted the Applicant had made good progress in therapy and undertook his alcohol rehabilitation training. The Respondent submitted, however, that the treatment by Dr Stewart was not specifically provided with respect to the consumption and misuse of alcohol. The Applicant initiated treatment to deal with his demons and social anxiety and he sought that therapy three years after his offending, which further supported the Respondent’s submission that the therapy was not directed to his alcohol consumption or his offending. The Respondent submitted that the Applicant still drinks socially and has not changed his relationship with alcohol and was critical of his use of alcohol to deal with personal issues such as in the 2008 and 2012 offending.
As for the Applicant driving whilst in Ireland over two six-month periods of time, the Respondent submits that this is not a test of his compliance with the laws of Ireland. This is a question of whether he can abide by the laws of Australia and, so far, that has not been established.
The Respondent submits that the Applicant is not a person of good character for the purpose of his citizenship application. In Brown v Minister for Immigration and Citizenship,[51] Rares J observed that a suspended sentence of not less than 12 months is a very serious penalty. In the current matter before this Tribunal, the Applicant received a suspended sentence of 12 months imprisonment for his second offence.
[51] [2010] FCAFC 33 at [7].
In Ahmed and Minister for Immigration and Border Protection (Citizenship),[52] Senior Member Pulpick said:
It may be thought, in the wider scheme of things, that driving offences, especially where no-one (fortuitously, to date) has suffered any physical injury, are relatively minor matters and should be given little weight in the process of assessing what constitutes “good character.”
That is emphatically not the view of the Tribunal.
[52] [2018] AATA 4458 at [53]-[54].
The Respondent also referred the Tribunal to Zaya and Minister for Immigration and Border Protection[53](Zaya), where the Tribunal commented on the seriousness of driving offences and the consequence of not complying with driving laws as quite serious.
[53] [2017] AATA 366.
The Respondent submitted that, having twice reoffended after prior licence suspension, ought to mean that the Tribunal cannot be satisfied that the Applicant will not reoffend in the future. He has not driven in Australia for 5 years and it is tenuous to suggest he will not reoffend. The Tribunal can only be satisfied after his license is reinstated. His demonstrated pattern of behaviour is inconsistent with Australian community standards and undermines the rights of communities to be safe on the road. The Tribunal ought not be satisfied that his pattern of behaviour has changed without objective evidence. Hence, the Tribunal should not be satisfied about the Applicant’s good character which is to be displayed over a very long period of time.
CONSIDERATION
The CPIs provides instruction and guidance to the decision maker, in this case the Tribunal, in considering the various statutory requirements under the Act. However, each matter will turn on its own facts and the Tribunal will adopt a holistic view of the Applicant and the circumstances of the offending when considering whether the Applicant is a person of good character.
The Applicant was a credible and reliable witness who did his best to assist the Tribunal. He came to the hearing from interstate and entered into COVID-19 quarantine for two weeks so that he could present in person before the Tribunal. The application was important to him.
In this matter the issue is whether the Tribunal, having regard to the Applicant’s driving record and his personal circumstances and presentation before the Tribunal, is reasonably satisfied that the Applicant is of good character as contemplated by the Act.
It is therefore necessary to first consider whether the Applicant’s offending is serious offending.
Seriousness of the offending
Although the delegate observed that the offences themselves, for which the Applicant was charged, are not generally regarded as serious offences, that does not mean that there will never be an occasion when drink driving is regarded as a serious offence. Indeed, as referenced in paragraph 104 above, the Tribunal in Ahmed and Minister for Immigration and Border Protection (Citizenship) empathetically rejected such an assessment of the seriousness of drink driving offences[54]. The CPIs also recognise that offences incurring a prison sentence of 12 months or more are examples of serious offending.
[54] [2018] AATA 4458 at [53]-[54].
Those who drink alcohol and drive when under the influence of alcohol or when exceeding the PCA place other road users at risk of harm, serious injury or death. The relevant legislation also recognises that different blood alcohol levels in a driver may attract different penalty ranges, which reflects the measure of culpability that is occasioned upon those who place the community at risk by committing a drink driving offence.
The Applicant’s first offence of drink driving in 2008 involved driving with a high range PCA, namely 0.270 grams. He was disqualified from holding or obtaining a driver’s licence for three years from March 2008. The Applicant described himself that night as incoherent. The manner of driving was particularly alarming and gave rise to additional charges of negligent driving, driving a vehicle recklessly/furiously or in a speed/manner dangerous. He collided with two other stationary vehicles and did not stop. The second vehicle was occupied, and the Applicant made no attempt to check on the welfare of the occupant. He said he did not know the vehicle was occupied. The Tribunal accepts that the Applicant did not know the vehicle was occupied, but there was no excuse for what was, appalling driving.
The Applicant to his credit did not try to minimise or excuse his culpability. He accepted that the offending was serious and that he placed other road users at risk.
Having regard to the circumstances of this offending, it was very serious and satisfies the criteria of serious offending for the purpose of considering his application for citizenship.
His second offence in 2012 was, again, a high-range PCA offence. His blood alcohol level was 0.216. The Applicant’s licence was reinstated in about March 2011 and this offending occurred just over 12 months later in April 2012. The Applicant came to the attention of police when he failed to comply with a give way sign, was stopped and gave a positive reading to a random breath test. Again, by his manner of driving, the Applicant placed other road users at risk. He rightly accepted that this offending was serious.
The suspended sentence of 12 months’ imprisonment, together with the licence disqualification of two years seven months and 30 days, is indicative of the seriousness with which the court regarded the Applicant’s offending. Even though the sentence of imprisonment was suspended, this was nonetheless an offence incurring a prison sentence of 12 months or more which satisfies the CPIs guide as to conduct that may be regarded as a serious offence. The CPIs do not distinguish between a sentence of imprisonment to be served or suspended with conditions. The seriousness of the offence may inform the sentence imposed, but whether the sentence is to be served or suspended gives rise to other considerations, including matters personal to the offender.
A sentence of imprisonment of 12 months that is wholly suspended is still a very serious penalty. Having regard to the circumstances of this second offence, the conduct was very serious and satisfies the criteria of serious offending for the purpose of considering the Applicant’s application for citizenship.
The third offence in November 2015 was, again, a drink driving offence with a PCA of 0.081. The Applicant came to the attention of police when he was seen using his mobile phone when driving. So again, it was his non-compliance with traffic laws that resulted in the Applicant being stopped and spoken to by police.
The Applicant at first said in evidence that the offence was serious, but then qualified his answer by saying it was not serious when compared to his previous offences. He submitted that the circumstances of this offence were unusual in that he had been drinking the preceding evening and was surprised when the following morning he tested positive to a blood alcohol level.
The seriousness with which the court regarded this offence, when taking into account his antecedent history, is indicated in the five-year licence disqualification from holding or obtaining a driver’s licence. It is also relevant that the Applicant committed this offence in November 2015, less than 12 months after the reinstatement of his licence following the second offence.
The Tribunal does not accept that the circumstances of this offence are properly classified as unusual, albeit the circumstances are different to the first two offences when he drove more proximate in time to the consumption of large quantities of alcohol. However, the Tribunal finds that the Applicant had consumed a considerable quantity of alcohol in the evening before the offence, such that by the time he was arrested he still produced a positive PCA of 0.081. Having consumed a large quantity of alcohol the night before, the Applicant had a responsibility to ensure that the following morning he did not exceed the blood alcohol limit before driving.
The Applicant said that he did not feel that he was affected by alcohol at the time of the offence. The Tribunal believes he was being genuine in expressing that belief. However, the NSW Police described the Applicant at the time as slightly affected by alcohol and his breath smelt of intoxicating liquor. The Tribunal accepts the police observation as the correct description of the Applicant’s presentation relevant to his level of intoxication. His decision to drive was irresponsible.
When viewed as an isolated incident, the third offence may not generally be regarded as serious. However, the third offence is to be viewed against the background of previous very serious drink driving offending. This was also the second time, within a relatively short period of time from the reinstatement of his driver’s licence following suspension, that the Applicant not only drove under the influence of alcohol, but showed a further disregard for the law by, on this occasion, driving while using his mobile phone. Having regard to all of these factors, the third offence is properly regarded as serious, albeit not to the level of the first or second offence.
It is also useful to point out that, since his first sentence in March 2008, the Applicant has had his licence suspended for a total of 10 years 7 months and 30 days. In February 2021, he is entitled to apply for a licence. He said in evidence he must now obtain a learner’s permit which will give him 3 months to refamiliarize himself with driving, after which he will be required to pass a driver’s test before he is given a new licence.
In Zaya, Deputy President Dr Kendall, quoting the Tribunal in Apire and Minister for Immigration and Border Protection, stated[55]:
Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection at [7] – laws to protect users of the road go to the essential safety of the community. Behaviours of this kind is not consistent with Australian community values.
Deputy President Dr Kendall further stated[56]:
The Tribunal agrees with this assessment. There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequence of not adhering to safe driving laws are themselves quite serious.
[55] Zaya and Minister for Immigration and Border Protection [2017] AATA 366 at [53].
[56] Ibid at [54].
The Tribunal respectfully agrees with and adopts the Deputy President’s remarks. Driving a motor vehicle whilst under the influence of alcohol or with a PCA exceeding the statutory limit is not offending which can be trivialised. Too often members of the community are devastated by the consequences of injury or loss of life occasioned by those who drive motor vehicles in such circumstances.
The CPIs provide principles to be considered in determining whether the Applicant is of good character. Those principles are not to be applied rigidly or inflexibly and must be considered having regard to the facts of this matter. The CPIs, as a general proposition, state that a person of good character would, amongst other things, respect and abide by the laws in Australia, not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct. The CPIs specifically give examples of offences which a person of good character would not commit, namely: multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence.
The meaning of the phrase ‘good character’ was considered by Lee J in Irving[57]:
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.
[57] (1996) 68 FCR 422 at 431.
Insofar as the Respondent submits that the Tribunal must reach a high level of satisfaction in determining whether an applicant is of good character, that is not the correct approach. The relevant level of satisfaction to be met is one of “reasonable satisfaction.[58]” In BOY19 v Minister for Immigration and Border Protection[59] O’Bryan J, with reference to the Tribunal decision under review in that matter, stated:
… the Member rejected the Minister’s submission that a higher level of satisfaction of the applicant’s identity was required under s 24(3) of the Act in comparison to s 116 of the Migration Act, and also rejected the submission that the Tribunal may have regard to the principle articulated in Briginshaw. The Member was correct to do so. Evidentiary burdens of proof are inapposite to the administrative decision to be made by the Tribunal on review. The Member also concluded that the relevant level of satisfaction to be met was “reasonable satisfaction.” By that expression, the Member can be taken to mean that, in determining whether the Tribunal is satisfied that the applicant is a person of good character, it must act reasonably in a legal sense. Again, that statement of the applicable legal standard is correct.
[58] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [57].
[59] Ibid.
The Tribunal received a number of letters and statutory declarations from those who knew the Applicant and from family members, all of whom spoke of the Applicant in glowing terms. Without detailing the contents of each, and in summarising their content, all but one knew of his offender history. The Applicant said, and the Tribunal is satisfied, that he detailed to each the circumstances of his offending. Nonetheless, he was highly regarded as an employee with strong work ethic; highly regarded in his profession; had taken steps to change his behaviour and be a responsible member of the community; is friendly, polite and supportive; is highly regarded by all and will be a productive and contributing member of the community; is decent and never violent or aggressive; contributes to charity and is deeply remorseful for his offending.
Each spoke of the Applicant in glowing terms. However, those character references are each a subjective opinion of the Applicant’s standing, fame or repute within his own community. As Lee J said in Irving[60] ‘good character’ is a reference to enduring moral qualities, which is an objective factual consideration, not the good standing, fame and repute of the Applicant which is a review of subjective public opinion.
[60] (1996) 68 FCR 422.
The Applicant has always been employed or self-employed, save for the period during which COVID-19 restrictions impacted upon his employment. He has continued to study and improve himself over several years. More recently, he has studied project management and received a glowing report from his course trainer and has developed a 2020 personal career development plan.
The Tribunal received evidence of his considerable fundraising for charity including the 2018 City to Surf fun run, the Cancer Council and, for a number of years, he has regularly contributed to a children’s charity by direct debit from his bank account.
The Tribunal is satisfied that the Applicant has made genuine efforts to reduce his alcohol consumption. That effort is particularly so after the commission of the third offence. He subsequently travelled to Ireland on two occasions, each for approximately six months. He was permitted to drive in Ireland and did not commit an offence during that time. The Tribunal received a Police Certificate dated 31 May 2019 confirming that he was not convicted of any crimes while residing in Ireland, which the Tribunal accepts[61].
[61] T16, page 146.
The Respondent submits that a history of non-offending in Ireland is of little assistance to the Tribunal. This, it was submitted, was not a matter requiring the Applicant’s compliance with the laws of Ireland. This matter involved consideration of the Applicant’s compliance with the laws of Australia, which he has failed to do.
This submission takes a too narrow view of the relevance of this evidence in considering whether the Applicant is of good character. It is relevant because the Applicant first returned to Ireland in early 2016 not long after the commission of the third offence. He acknowledged that he drank to excess and was determined to do something about it. To that extent, this evidence demonstrates that the Applicant did not reoffend in a similar manner when permitted to drive in Ireland over a total period of 12 months and provides some support for the Applicant’s promise not to reoffend.
There is further support for the Applicant’s change in alcohol consumption, insofar as he was drug and alcohol tested when engaged in fly in fly out contracts, and when working for NSW Rail. He said, and the Tribunal accepts, that he never failed those tests by providing a positive drug or alcohol sample. He was tested for blood alcohol by NSW Rail daily.
The Applicant said that when he returned to Ireland for Christmas 2015, shortly after the third offence, his father and then partner recommended the Applicant seek professional help because they observed he did not appear to be dealing with his social anxiety and demons. The Applicant and his partner then returned to Australia. His relationship ended in 2017 when his partner returned to Ireland.
However, it was not until over year after his partner returned to Ireland, and in early 2019 after he returned from his second trip to Ireland, that he first requested a referral from his doctor and sought treatment with a clinical psychologist. He was unable to secure an appointment until September 2019 and he has continued with regular consultations to date with the intention of that treatment to be ongoing.
The Applicant said that he decided to go to counselling because of his emotional battle that he fought for years, and for which he used alcohol as an outlet and to build confidence. He said that counselling has been very effective; he has learned meditation, deep breathing exercises, frontal lobe control and has limited his alcohol consumption to social and occasional purposes[62]. The Tribunal accepts that evidence.
[62] ST24, page 295.
In submissions, the Respondent said that the Applicant was not treated by the clinical psychologist for alcohol use and relied on the report dated 16 August 2020 in which Dr Stewart recommended, “therapy supported solution focused psychotherapy and practical strategies to manage his emotions”. However, that narrow interpretation does not accurately reflect the purpose and focus of the treatment.
In her report dated 2 April 2020, Dr Stewart said that the Applicant attended 10 sessions in 2019 and three sessions in 2020. He was referred for treatment for extreme anxiety due to troubling family issues and problems with his goals.
Therapy focused on supportive solution-focused psychotherapy and practical strategies particularly in relation to his difficulties with social activity, poor self-esteem, and agitation…”. [The Applicant] recognizes the “triggers” for anxiety, including stressors associated with his family and friends and has strategies, both mental and physical, to cope with difficult situations.
In her report dated 16 August 2020, Dr Stewart diagnosed severe depression with anxiety, and that the Applicant most likely suffered from complex trauma with consequential negative hypervigilance. The Tribunal accepts that it was because of this psychological condition that the Applicant used alcohol and, in treating the diagnosed psychological condition, there was a consequential effect on the Applicant namely decreased alcohol consumption.
Dr Stewart developed the Applicant’s understanding of the triggers of his condition and appropriate coping mechanisms. In so doing, Dr Stewart was treating his alcohol consumption by treating the psychological condition that was intrinsically linked to the level of his alcohol use. The Tribunal is satisfied that this had a positive effect on the Applicant’s reduced alcohol consumption.
Dr Stewart said that the Applicant had been an ideal client and kept all of his appointments. He takes notes and maintains journals on how he has applied his homework and he reports that his life is improving. Dr Stewart opined that the Applicant’s anxiety was declining. She said he also reports feeling well and is now controlling his alcohol use: he “has taken his mental health and alcohol issues seriously and made a dedicated effort to improve his health and well-being.” She described him as conscientious, wanting to improve his life and that he views living in Australia as an important part of improving his life.
The Tribunal accepts the opinions Dr Stewart expressed about the Applicant’s mental health diagnosis and improvement. Her observations of the Applicant about his genuineness and determination to improve are consistent with the impression the Tribunal gained of him when giving evidence.
Yet when considering the question of the Applicant’s good character, as was observed by Lee J in Irving, the Tribunal is to have regards to the enduring moral qualities of the Applicant. He may show that he has reformed and is of good character, and that is an objective factual consideration. As observed by his many character references, he is of good standing and repute by all who deal with him, which the Tribunal accepts. The Tribunal also accepts that the Applicant has made significant steps to address his anxiety and related mental health issues and his related alcohol consumption. However, the difficulty for the Tribunal is that he has only engaged with appropriate professional support from September 2019 to date.
The Tribunal does not ignore his absence of offending when in Ireland, or his compliance with drug and alcohol abstinence on a regular basis when employed in fly in fly out contracts, or when working for NSW Rail. However, it is from that point in time when the Applicant engaged with Dr Stewart that he began to deal with his demons and his severe depression and anxiety. It was that psychological condition that was directly relevant to his excessive alcohol consumption and was evidenced in his drink driving offences.
The Tribunal accepts that the Applicant recognises the triggers for his anxiety and has developed strategies to cope physically and mentally with his condition. Further, the Tribunal accepts the opinion of Dr Stewart that his anxiety is declining, that he has undertaken further studies, improved family relationships and is controlling his use of alcohol, all of which is to his great credit.
However, the Applicant has only actively engaged with treatment and sufficiently demonstrated his improvement since September 2019, and at a time when he continued to be disqualified from holding or obtaining a driver’s licence. As the Tribunal has said, since 2008 the Applicant has been suspended from driving for over 10 years due to serious drink driving offending.
He Tribunal accepts that the Applicant had sought assistance from early 2019, but there is a difference between a desire to better one’s self and actually engaging with professional services to achieve the desired outcome. He needs to engage with his mental health support practitioner and demonstrate his enduring moral qualities; he needs to obey the laws of Australia, not engage in serious offending by placing members of the community at risk, and he needs to do so for a longer period of time, and when he is again the holder of a driver’s licence. To do so, particularly from September 2019 to date, when unlicensed, does not demonstrate objectively, the required enduring moral quality over a sufficient period of time.
CONCLUSION
The Applicant has not demonstrated the required enduring moral quality over a sufficient period of time, as outlined above, and accordingly the Tribunal is not satisfied that the Applicant is of good character pursuant to s 21(2)(h) of the Act and at this time should not be granted Australian citizenship.
This conclusion will be disappointing for the Applicant. His appearance before the Tribunal after quarantining due to the pandemic and his evidence generally indicated his strong desire to become an Australian citizen. Yet this conclusion does not mean that the Applicant may not apply in the future for his Australian citizenship after a sufficient period of time has passed to enable him to demonstrate those enduring moral qualities that underpin the finding of good character; and the Tribunal encourages him to do so in the future.
DECISION
For the reasons outlined above, the decision under review is affirmed.
……………[SGND]…………….
Administrative Assistant LegalDated: 26 February 2021
Date of hearing: 7 September 2020 Representative for the Applicant: Mr Hendrik de Korte, TdK Law Representative for the Respondent: Ms Alice Ashby, Australian Government Solicitor
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