Martin and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 1093

Martin and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1093 (14 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3845

Re:Paul Martin

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 July 2017 

Place:Sydney

The decision under review is set aside. The Tribunal decides in substitution that the applicant is of good character for the purposes of s 21(2) of the Australian Citizenship Act 2007 and that, subject to the applicant satisfying other relevant requirements, the applicant shall be granted Australian citizenship. 

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Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – citizenship by conferral – eligibility – whether applicant of good character – traffic offences – question of disclosure of traffic offences in citizenship application – applicant found not to be of good character for the purposes of citizenship legislation – positive contribution – charity work – decision set aside and substituted.

LEGISLATION

Australian Citizenship Act 2007 s 21(2)(h)

CASES

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Senior Member A Poljak

14 July 2017 

1. Mr Martin (“the applicant”) is a citizen of the United Kingdom, born in Northern Ireland, who first arrived in Australia in 1973 and was granted permanent residency in 1974.

2. The applicant applied for citizenship by conferral on 25 January 2016 (“the application”).

3. On 21 June 2016, a delegate of the Minister for Immigration and Border Protection (“the delegate”), under section 24(1) of the Australian Citizenship Act 2007 (Cth) (“the Act”), refused the applicant’s application (“the decision”). The basis of the decision was that the delegate was not satisfied that the applicant met the good character requirement under s 21(2)(h) of the Act. This is the reviewable decision in these proceedings.

   DEFINITION OF ‘GOOD CHARACTER’

4. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which came into force as of 1 June 2016 (“the Policy”). Further guidance is provided by the Australian Citizenship Instructions (“the ACIs”), dated 1 July 2014, which detail operational instructions and supplements the policy guidance provided in the Policy.

5. The role of the Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

6. As to the definition of good character, the Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

   Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not 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…

7. The Policy states the phrase “enduring moral qualities” which encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

8. The Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevantly, a person of good character would, inter alia:  respect and abide by the law in Australia and not cause harm to others through their conduct.

9. In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in citizenship applications:

   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…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community. (Emphasis added)

10. That then leaves the question of mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Policy, the Tribunal is to weigh up certain factors, applying community standards.

11. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant has; the amount of time that has lapsed since offending; whether the applicant has demonstrated that he can uphold and obey the law; whether he has accepted responsibility and shown remorse for his conduct; and any extenuating circumstances relating to the offences.

    TRAFFIC OFFENCES AND BEHAVIOUR

12. The applicant has an extensive history of traffic offences. The applicant accepted at hearing that his driving record was “appalling” but appeared to grapple with the Minister’s contention that, cumulatively, his driving record could not support a finding that he was of good character for the purposes of s 21(4)(h) of the Act.

13. In 1995 and 2004, the applicant was found guilty of driving with low and mid-range prescribed concentration of alcohol (“PCA Offences”).

14. He has committed some 39 traffic offences since 1980, consisting of 29 speeding offences, 13 of which were for speeding in excess of 15km/h. The applicant’s other offences include disobeying traffic lights, driving unlicensed and driving a vehicle other than a bus in a bus lane. Significantly, the applicant continued to offend despite receiving 12 demerit point warning letters, and suspension and disqualification of his license.

15. The most recent offences occurred in 2016; one on 3 May 2016, for exceeding the speed limit by no more than 10 km/h and one on 24 May 2016, for disobeying traffic lights. These offences occurred following receipt of a demerit point warning letter which was sent to the applicant on 18 June 2015.

16. While traffic offences are not ordinarily considered serious, the number and consistency of the applicant’s traffic offences are significant. The number of repeat offences indicates a pattern of offending and the disregard for the law.

    FAILURE TO DISCLOSE OFFENCES

17. The applicant failed to disclose, or failed to adequately disclose, his PCA offences in the section headed ‘Character declarations’ of his Citizenship application.

18. The applicant applied for citizenship by conferral on 25 January 2016. In his application, in answer to the question “have you ever been convicted of, or found guilty of, ANY offences… (Include all traffic offences which went to court…)”, the applicant replied “no”.

19. Following lodgement of his application for citizenship, the delegate wrote to the applicant by letter dated 21 April 2016 (“procedural fairness letter”) inviting him to comment on or respond to information before the Department of Immigration and Border Protection, indicating that he might not be of good character for the purposes of his citizenship application. That information related to 2 convictions for driving with a mid-range and low-range prescribed concentration of alcohol.

20. The applicant responded to the procedural fairness letter with a letter dated 25 May 2016, enclosing numerous character references.  He described in that letter that his failure to disclose “was an embarrassing and idiotic oversight” in his eagerness to get his application in again. He says that while he was reading over the good character section and filling in his application his “eyes ran down the list of serious offences… Crimes of violence, war crimes, drug trafficking… so I tick NO”.

21. This however is not an accurate reflection of question 34 of the citizenship application. Question 34 (a), the first option in the list requiring a response, relates specifically to traffic offences which went to court. The question relating to war crimes appears further down the list at (c). None of the items listed in question 34 specifically identify crimes of violence and drug trafficking. The applicant’s explanation for his “oversight” in not disclosing his traffic offences is unsustainable. However I would like to stress that based on the evidence I have before me, I am not convinced that the applicant was deliberately untruthful or lied in his citizenship application. The premise of question 34 deals with the disclosure of criminal offences, and it may very well have been an oversight or mistake by the applicant to not tick “yes” to question 34 (a). As he states in his letter dated 25 May 2016, “I was truly shocked when I read your letter highlighting my traffic offences and my stupidity and the seriousness of my oversight.” He maintained this position at hearing and apologised for his failure to disclose.

22. I accept that carelessness might reflect on the applicant’s character in some circumstances, but I am not persuaded this instance of inattention is strong evidence of an inability or unwillingness to obey the law.

    CONSIDERATION

23. In view of the applicant’s Driving Record and evidence given orally during the hearing, it is quite clear that he has a pattern of disobeying traffic laws over an extended period of time. This pattern of behaviour is troubling. However, it is significant to note that the applicant’s last offence was in May 2016, over 12 months ago, and he confirmed at hearing that there have been no driving offences since. His last PCA offence occurred in May 2004, some 13 years ago. Given the nature of the offences committed in 2016, and the period of time that has passed since his last PCA offence, I am satisfied that a reasonable amount of time has elapsed since offending.

24. At hearing, the applicant did not shirk away from his extensive driving record and acknowledged on a number of occasions that his record was appalling. I am satisfied that the applicant now understands the seriousness of his driving record.

25. The applicant has provided written references in order to shed light upon his good character. I have carefully read and considered all of the references provided by the applicant.

26. Mr Phill Bates AM offers his support for the applicant to become an Australian citizen in a letter dated 20 May 2016. He states that he has known the applicant for a considerable number of years and has “been amazed at his generosity with his time and his ability to entertain people volunteering his services on so many occasions”. Mr Bates advises that the applicant has been the patron for the St George Cancer Care Centre Foundation and the Prostate Cancer Institute for more than a decade. He advises that the applicant has explained to him his reasoning behind wishing to become an Australian citizen, namely to eventually become an Australian Day Ambassador. Mr Bates states that he believes “there is no one more worthy to undertake the role”. On all accounts, this is a glowing reference from Mr Bates. However, it is important to note that the reference does not acknowledge the applicant’s extensive traffic record and past offences.

27. Mr Phill Bates AM has provided an additional reference dated 6 June 2016, which specifically identifies that he has been advised by the applicant of his offences of driving under the influence. Mr Bates says that this does not change the support that the entire Prostate Cancer Institute Board and Cancer Care Centre Foundation have for the applicant. He offers his total support and states, “as a person who has been honoured with Citizen of the Year and an Order of Australia, in my eyes there is no-one more deserved of been an Australian”.

28. The Hon. Kevin Greene has provided two written references for the applicant in these proceedings and appeared at hearing to give oral evidence. At hearing, he confirmed that he had no hesitation in supporting the applicant, even in light of his driving record. He said that the Australian community should feel extremely honoured that the applicant wants to become an Australian citizen and that it would be “our Nation’s loss” if his application was refused.

29. I acknowledge that the applicant has been actively involved in charity work, to the benefit of the Australian community, for over approximately 40 years. The evidence strongly suggests that the applicant is a man of integrity who has a good reputation and is successfully contributing to Australian society. On balance, I am satisfied the applicant is a person of good character for the purposes of s 21 of the Act.

    DECISION

30. The decision under review is set aside. I decide in substitution that the applicant was, at the date of the Minister’s decision, a person of good character within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007. Subject to him satisfying other requirements under the Act, he should be granted Australian citizenship.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak.

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Associate

Dated: 14 July 2017 

Date of hearing:	2 May 2017
Applicant: In person	In person
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers