Patel and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 966

Patel and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 966 (15 December 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2575
Re	Chirag Patel
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor R Deutsch, Deputy President
Date	15 December 2015
Place	Sydney

The decision under review is affirmed.

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

Professor R Deutsch, Deputy President

CATCHWORDS

Citizenship – whether applicant of good character – series of driving offences – no extenuating circumstances – insufficient time passed since last offence – applicant subject to good behaviour bond - lack of evidence to establish rehabilitation – applicant not of good character at the time of the Tribunal’s decision – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 s 21

CASES

Chen v Minister for Immigration and Citizenship [2007] AATA 1815

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

Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20, (2010) 182 FCR 115 Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Professor R Deutsch, Deputy President

15 December 2015

FACTS

1. The applicant is a 25 year old citizen of India who first arrived in Australia on 2 October 2008. He is currently the holder of a subclass BS-801 (permanent) visa granted on 12 February 2014.

2. On 12 February 2015 he applied for Australian citizenship.

3. On 18 March 2015, the delegate wrote to the applicant explaining that a person is eligible to become an Australian citizen if (amongst other criteria) the Minister is satisfied that the person is of good character at the time of the Minister’s decision. The delegate invited the applicant to comment on or respond to information held by the Department concerning his criminal history in Australia. The information was set out as follows:

Court	Date	Offence	Result
NSW Fairfield Local Court	14/9/2009	Use of uninsured motor vehicle	H 39263716 Fine: $300 Costs – Court: $76
NSW Fairfield Local Court	14/9/2009	Use unregistered registrable Class A motor vehicle	H 39263716 Fine: $300 Costs – Court: $76
NSW Fairfield Local Court	14/9/2009	Exempt visiting driver not produce licence to police office	H 39263716: DISMISSED S10

1. The applicant was asked to provide:

   a)a statement as to why he should be considered to be of good character; and

   b)his current driving history report from NSW Roads and Maritime Services.

2. On 26 March 2015, the applicant responded to the Department’s letter by providing a number of documents. Among these documents was a statutory declaration from the applicant which sought to explain the circumstances of the offences set out in the table above.

3. The explanation given by the Applicant was as follows:

   “Regarding the incident at the time I was new to the country and its road safety laws, I just turned 19 at that time and I was very young to perform that offence. That was my first car and the lady from whom I bought it gave me wrong information about the registration and insurance. I didn’t drive the car after that cause I was saving money to spend on registration. Only that night my friend called me up to pick him from the station because he was afraid and scared during the night due to all the incidents happening in the night time. I have explained all these situation and circumstances to the court and therefore I was dismissed without any further charge and conviction.”

4. The applicant also provided a copy of his online driving record issued by NSW RMS, which disclosed a further six driving offences as follows :

Date	Offence	Penalty
02/01/2015	Exceed speed limit by more than 20 km/h but not more than 30 km/h whilst driving a motor vehicle	$436
27/04/2013	Exceed speed limit by more than 20 km/h but not more than 30 km/h whilst driving a motor vehicle	$417
01/10/2012	Exceed speed limit by more than 20 km/h but not more than 30 km/h whilst driving a motor vehicle	$417
13/04/2011	Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle	$90
17/02/2010	Drive contrary to stop sign or stop line	$253
07/09/2009	Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (School zone)	$141

1. The record notes that the applicant’s unrestricted licence was due to be suspended for the period 15 April 2015 to 14 August 2015. This was a direct result of having incurred excessive demerit points.

2. On 20 March 2015, the applicant elected, as he was allowed, to enter into a good behaviour bond for 12 months from 15 April 2015, and thereby keep his then current licence.

3. On 6 May 2015, the delegate refused the application for citizenship because he was not satisfied the applicant was of good character as required by s 21(2)(h) of the Australian Citizenship Act 2007 (the Act).

4. In reaching that conclusion the following 2 factors weighed heavily in the delegate’s decision:

   ·First, while the delegate was satisfied that the applicant had been convicted of certain driving related offences in September 2009 which were at the low range of seriousness, the applicant had also committed a number of other traffic offences in the period 7 September 2009 to 2 January 2015 and that these offences were part of an ongoing pattern of behaviour which would suggest that he was not of good character.

   ·Secondly, the applicant’s good behaviour obligation would only end on 14 April 2016 and no time had passed since the end of the obligation to enable him to establish a pattern of good behaviour.

5. The applicant applied for review of the delegate’s decision to refuse his application for Australian citizenship by conferral under s 21 of the Act on the grounds that he is not of good character.

   ISSUE

6. The sole issue is whether the Tribunal is satisfied that the applicant is of good character pursuant to s 21(2)(h) of the Act.

   LEGAL FRAMEWORK AND POLICY

7. Section 21 (2)(h) of the Act 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.

8. In considering the character test under s 21(2)(h), the respondent submitted that Tribunal must be 'positively persuaded that the applicant is of good character’: Chen v Minister for Immigration and Citizenship [2007] AATA 1815 (Chen) at [18] (SM McCabe).

9. Further, the respondent noted that where evidence raises a question in the mind of the Tribunal over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Tribunal to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly, but the Tribunal must be provided with a level of comfort about its decision: Chen at [21].

10. As Lee J pointed out 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. ... 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, [emphasis added]

11. The Minister has issued the Australian Citizenship Instructions (ACIs) which are designed to ‘provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations’.

12. Unless there are cogent reasons not to do so, the Tribunal must take the ACIs into account and give them an appropriate level of weight: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645; Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20, (2010) 182 FCR 115 (Hneidi) at [48] and [61]. However, the overarching principle is that the Tribunal must make an independent assessment on the material before it: Hneidi at [59].

13. Paragraph 10.5.2 of the ACIs lists a number of factors to which consideration should be given by decision-makers when making decisions about character. If the applicant has committed an offence, these factors relevantly include:

    ·Whether the offence was serious or minor;

    ·The frequency and the pattern of the offences involved;

    ·What is the length of time between the date of the offence and the application for citizenship;

    ·Has the applicant demonstrated remorse for their conduct and rehabilitated themselves;

    ·Whether there were extenuating circumstances relating to the offence; and

    ·How has the applicant behaved upon completion of any obligations to a court.

    THE RESPONDENT’S POSITION

14. The respondent contends that the applicant does not satisfy s 21(2)(h) of the Act primarily because:

    (a)insufficient time has passed so as to demonstrate an on-going pattern of good behaviour;

    (b)no extenuating circumstances have been put forward by the applicant;

    (c)the applicant has failed to accept responsibility and has not shown remorse for his conduct;

    (d)the applicant has not taken steps to rehabilitate themselves;

    (e)the references provided by the applicant do not establish the applicant’s good character.

    THE APPLICANT’S POSITION

15. While not specifically and sequentially addressing each of the respondent’s arguments, in his submissions and at the hearing, the Applicant put forward arguments to the contrary in respect of some of the respondent’s contentions. The arguments for both sides, as they were put to the Tribunal are considered below.

    THE TRIBUNAL’S CONSIDERATION

    Insufficient period of time to demonstrate pattern of good behaviour

16. The applicant committed his last speeding offence on 2 January 2015, and applied for citizenship on 12 February 2015. He became subject to a 12 month good behaviour bond on 15 April 2015 and that bond will not expire until 14 April 2016.

17. Section 10.5.2 of the ACIs provides that:

    It is important to see how the client behaves when they are free from the obligations of...a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.

18. The Tribunal notes that barely over a month separates the applicant’s last offence and his application for citizenship. The Tribunal also sees as relevant that the applicant’s obligation of good behaviour remains in force (and will remain in force until 4 April 2016). The respondent contends this demonstrates that insufficient time has passed for the applicant to have established a pattern of good behaviour. Accordingly, the respondent submits the Tribunal cannot be satisfied that the applicant is of good character at this time.

19. In these circumstances it is impossible for the Tribunal to be satisfied that the applicant will not commit further driving offences when he is free from his obligation, as this has not yet been tested.

    No extenuating circumstances

    The 14 September 2009 driving offences

20. The applicant claims that he was young (19 years old) when he committed the September 2009 driving offences, and that his young age should be taken into account.

21. The respondent contends that the applicant was an adult who is expected to know right from wrong, and that the explanations given by the applicant for those offences are inconsistent and, for these reasons, the age excuse should not be accepted.

22. In his undated statutory declaration received by the Department on 26 March 2015, the applicant stated:

    Regarding the incident at the time I was new to the country and its road safety laws, I just turned 19 at that time and I was very young to perform that offence. That was my first car and the lady from whom I bought it gave me wrong information about the registration and insurance. I didn’t drive the car after that cause I was saving money to spend on registration. Only that night my friend called me up to pick him from the station because he was afraid and scared during the night due to all the incidents happening in the night time.

23. In his statutory declaration dated 4 August 2015, the applicant stated:

    Understanding my situation I was very young at the time of offence and also from the fact I came from INDIA where we do not register cars every year. I was not aware of these rules and regulation here in Australia as I didn’t have any family members of relatives to educate me about these rules.

24. At the hearing, the applicant appeared to provide again provide the same contradictory evidence this time verbally in that he seemed to suggest that he knew the car needed to be registered but was misled into thinking it was so registered by the lady from whom he purchased the vehicle but then suggesting that he was caught driving an unregistered car because being of Indian background he did know that vehicles in Australia had to be registered every year.

25. The inconsistency cannot be ignored by the Tribunal and significantly erodes the credibility of the witness in regard to this issue.

    Other driving offences

26. At the hearing, the applicant suggested that he was in a hurry and this caused his speeding offences on a number of occasions. That is no doubt true, but in no way can in and of itself amount to an extenuating circumstance of the kind referred to in the ACIs.

27. Also at the hearing, the applicant asserted that the (camera detected) speeding offence which took place on 7 September 2009 occurred in circumstances where he was not driving the vehicle but that the vehicle in question had been borrowed by a friend who was the driver of the vehicle and the friend had since departed Australia.

28. This was the first time that this matter had been raised by the applicant and certainly caught the respondent’s representative by surprise. No suggestion of this kind had been made in any of the previous statements that have been made by the applicant and I understand that no verbal indication of this matter had previously been raised by the applicant in discussions with the respondent or the respondent’s representatives. Further, at no time was this matter referred to the police or to any other third party in order to have the matter dealt with as an offence committed by somebody other than the applicant.

29. In these circumstances, it is inappropriate to have regard to what appears to be a last-minute suggestion in relation to which there is no independent verification and no means currently of substantiating the claim made by the applicant. In the circumstances, the Tribunal cannot take what amounts to a mere uncorroborated assertion into account in any way.

    Whether the applicant has accepted responsibility and shown remorse for his conduct

30. The respondent contends that the applicant has failed to accept responsibility or show remorse for his offences, particularly his speeding offences.

31. In a letter titled “reasons for review” dated 22 May 2015, the applicant states in relation to the 14 September 2009 driving offences:

    This was my first and last criminal traffic offence...It has been 5 years and 8 months (approx. 2079 days) since I committed this offence and I haven’t repeated this offence again or any other criminal offence.

32. He further states:

    …. according to my knowledge by law and citizenship act 2007, speeding offences are not considered as criminal offence and should be treated as such while assessing an application for citizenship. ...

    I just don’t understand what driving or speeding offence has to do with character of a person in an application to become a citizen. I can’t understand why I was asked to provide RMS driving record? Am I applying for taxi driver license, courier delivery job, bus driver license or truck driver license?

33. In his statutory declaration dated 4 August 2015, the applicant repeats his understanding that his ‘first and last criminal traffic offence’ occurred in 2009.

34. It is apparent from the above statements that the applicant does not understand the gravity of his driving offences and indeed does not consider them to be offences at all.

35. Viewed in this light, the applicant’s assertion in his statutory declaration dated 4 August 2015 that he has ‘learnt a lot from my mistakes and [is] trying hard to recover and improve [his] driving skills to show a good sign of behaviour and follow all the traffic laws’ can be given little weight.

    Has the applicant rehabilitated himself?

36. Section 10.5.2 of the ACIs provides:

    Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws?

37. The respondent submits that the evidence outlined above demonstrates the applicant has a continued pattern of committing driving offences.

38. The applicant provided evidence that he has taken a ‘driving lesson’ from ‘tiger driving school’, a driver’s knowledge test, and a hazard perception test and these are referred to in the applicant’s statutory declaration dated 4 August 2015.

39. It is unclear exactly when the lesson and tests were taken, but given the applicant’s suggestion that they were taken for the purposes of obtaining a NSW driver’s licence, it is likely they were taken in the period October 2012 (when the applicant’s learner licence was issued) to November 2014 (when his unrestricted licence was issued).

40. These steps do in the view of this Tribunal go some way to suggest some rehabilitation but they are insufficient especially in circumstances where the applicant appears to have committed at least one and quite likely more than one further serious traffic offence (ie exceeding speed limit by more than 20 km/h in January 2015) after completion of all the rehabilitation activities.

    References do not establish the applicant’s good character

41. Paragraph 10.6.5 of the ACIs provides that decision-makers should note the bias inherent in any reference submitted by an applicant, give less weight to references from family members and give more weight to references made as statutory declarations.

42. The applicant has submitted written references from the following persons who are connected to the applicant in the manner indicated:

    ·Richesh Shah – acquaintance

    ·Mak Rana - applicant’s landlord

    ·Mansukh Parmar - friend

    ·Ashishkumar Patel - friend

    ·Rao Asif Jamil - friend

    ·G Luisi –  acquaintance

    ·Kultaran Singh Shergill – friend

43. All of the above references are headed ‘Statutory declaration’ however none of them have been properly made and witnessed.

44. The reference from the applicant’s landlord, Mak Rana, is perhaps the most relevant and important as it comes from a person who is neither related to nor in a close personal relationship with the applicant.

45. The signed but undated reference reads as follows:            

    “I am writing this letter in regards to Chirag Patel who is renting my property at [address omitted] since October 2010. He is good tenant with strong payment history in regards to rent and stuff. I have known him since 2011 and I believe he is a good boy in behaviour and honesty. He is looking after my property very well. I have never had any complaints from neighbour or anyone regarding his behaviour or living. I believe he can be a good citizen of Australia and character wise there is no doubt that he is a good person. I assure on my behalf that he will contribute to Australian society in a positive way. Ever since he is renting my property I never had any complaint regarding any stuff or anything inside the house, he always fixes the problems by himself if there is any. So all these positive attitude in him proves me he is of good character and has the ability to grow up in his life.

    After all from my side I believe and assure you that is of good character and therefore he should be considered for his citizenship.

    Thanking you

    Mak rana”

1. The reference, while dealing in considerable detail with the applicant’s performance as a tenant makes no reference to the applicant’s history of speeding and traffic related offences either directly or indirectly. For that reason it can be given little or no weight.

2. The references from Mansukh Parmar, Ashishkumar Patel, Rao Asif Jamil, Kultaran Singh Shergill and G Luisi all state that the applicant’s ‘criminal offence’ is not a serious offence and should not be treated as such in assessing his application for citizenship. It is unclear whether they understand the nature of the offence.

3. The references from Messrs Patel, Jamil, Shergill and Luisi do not refer to the applicant’s speeding offences.

4. The reference from Mr Parmar makes reference to the applicants speeding offences but in doing so it attempts to minimise those offences by asserting that they are not crimes.

5. Accordingly, these references do not reveal a clear appreciation of the applicant’s speeding and driving record and the relevance of those matters to the determination of his character and accordingly carry little weight.

   CONCLUSION

6. This is a case in which the only offences committed are speeding and traffic related offences and there are no other accompanying criminal acts in question. The tone and tenor of the applicant’s comments both at the hearing and in his written statements and the tone and tenor of the referees in their written statements appear to suggest that speeding and traffic related offences should not come into question in relation to the grant of citizenship.

7. It is true that one or two minor speeding offences would be considered relatively insignificant and would be unlikely on their own to come into play in determining a question of citizenship.

8. However, this is hardly a case of that kind where there are seven separate offences including three of speeding in excess of 20 km/h above the limit, two where lesser speed was involved and one which involved driving an unregistered and uninsured vehicle and failing to produce a driver’s licence when asked to do so by police. One offence involved driving over the speed limit in a school zone.

9. In circumstances where there is a significant pattern of continuous  speeding and traffic related offences by a young person in a relatively short period of time, there is no basis for asserting that the matter is minor or of little consequence and should be ignored for citizenship purposes. At this level, it demonstrates what can only be described as a flagrant and continuous disregard of the law and the safety and welfare of others. Such a pattern of offences cannot be treated in any way as trivial or minor.

10. Having regard to all these matters, the Tribunal is of the view that the correct or preferable decision is that the applicant is not currently a person of good character within the meaning of s 21(2)(h) of the Act, and is therefore not eligible for Australian citizenship.

    DECISION

11. Accordingly, the decision under review is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

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

Associate

Dated 15 December 2015

Date(s) of hearing	10 November 2015
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor