Prapysatok and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 693

Prapysatok and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 693 (20 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2718

Re:Kakanang Prapysatok

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:20 March 2018

Place:Melbourne

The reviewable decision that the Applicant does not satisfy section 21(2)(h) of the Australian Citizenship Act 2007 is affirmed.

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

Senior Member D. J. Morris

CITIZENSHIP – citizenship by conferral – whether applicant of good character – series of drink driving offences – misleading answers and false declaration on application form – no recent offences – factors to take into account – decision affirmed.

Legislation

Australian Citizenship Act 2007 (Cth), ss 21, 50

Administrative Appeals Tribunal Act 1975 (Cth), s37

Cases

Albert and Minister for Immigration and Border Protection [2017] AATA 2036
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

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

Secondary Materials

Australian Citizenship Instructions, Department of Immigration and Border Protection

Citizenship Policy, Department of Home Affairs, Chapter 2

REASONS FOR DECISION

Senior Member D. J. Morris

20 March 2018

1. The Applicant, Miss Kakanang Prapysatok, applied for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (‘the Act’) on 3 April 2016.

2. On 10 April 2017, a delegate of the Minister for Immigration and Border Protection refused Miss Prapysatok’s application because the delegate was not satisfied that the Applicant was of ‘good character’ under s 21(2)(h) of the Act.

3. On 16 May 2017, the Applicant lodged an application for review of the delegate’s decision by this Tribunal. The Tribunal had before it documents provided by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975, relating to the Respondent’s consideration of Miss Prapysatok’s application for Australian citizenship by conferral.

4. The documents showed that the Applicant was born on 30 May 1982 in Thailand and she is a citizen of that country.  Miss Prapysatok first arrived in Australia on 28 February 2009 on a student visa.  She later obtained her permanent residence through the Partner Visa Scheme when she was granted a subclass BS-801 visa on 30 October 2013.

5. The legislative framework for acquisition and conferral of Australian citizenship is the Act and regulations made under that Act.  Specifically, Subdivision B, Division 2, Part 2 of the Act deals with Australian citizenship by conferral.  It was accepted by the Respondent that Miss Prapysatok satisfied ss 21(2)(a) and (b) of the Act in that she was aged 18 or over at the time of her application and a permanent resident.

6. It was also accepted by the Respondent that Miss Prapysatok satisfied the other relevant criteria set out in s 21, except for s 21(2)(h) which requires the Minister to be satisfied that the person is of good character at the time of the Minister’s decision on the application.

7. The Tribunal also noted the Australian Citizenship Instructions and Citizenship Policy  (‘the Policy’), extracts of which were included in the s 37 documents, which provide guidance to departmental officers making decisions as delegates of the Minister. Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 concluded that decision-makers undertaking merits review should generally apply ministerial policy unless the policy was unlawful or there were cogent reasons to the contrary. The Tribunal therefore takes account of these documents in its consideration.

8. The Tribunal had before it the Respondent’s Statement of Facts, Issues and Contentions dated 30 October 2017.  At Part 2, this Statement contended that the sole issue is whether the Tribunal is satisfied that the Applicant is of good character.

9. The Department’s material before the Tribunal, on its face, shows that Miss Prapysatok did satisfy the other requirements of Australian citizenship when she made her application.  The Tribunal therefore accepts this contention of the Respondent and considered this matter on the basis of whether Miss Prapysatok is of good character.       In making this assessment, the Tribunal notes that the assessment is a contemporary exercise.  A person may not have been of good character at the time a delegate makes a decision in relation to the person but that assessment may change in the light of additional or new information.  If the Tribunal is satisfied that the Applicant is of good character, the matter would be remitted to the Minister with a direction that s 21(2)(h) is satisfied.  The Minister can then consider any other legislative requirements set down by the Act.

10. The hearing was held on 30 January 2018.  The Applicant represented herself, gave evidence and was cross-examined.  The Respondent was represented by Mr Zeng He, of Clayton Utz.  The Tribunal also received into evidence a volume of summonsed material (Exhibit R1) produced by Burwood Local Court, NSW Roads and Maritime Services, the NSW Police Force and the Newcastle Court House.  The Applicant tendered a letter dated 18 September 2017 from the Community Service Organiser, Leichhardt Community Corrections of NSW Corrective Services (Exhibit A1).  This material was also taken into account.

    The Respondent’s opening submission

11. Mr He drew the Tribunal’s attention to Miss Prapysatok’s citizenship application.       Under the heading Character Declarations is the following question:

    Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?

    The Applicant responded ‘No’ to this question.

12. Later in the same section of the form is the question:

    Is the applicant presently under a probation order, good behaviour bond, on parole, released on licence or subject to period detention overseas or in Australia?

    Miss Prapysatok responded ‘No’ to this question.

13. On 2 June 2016, a Department of Immigration and Border Protection officer wrote to the Applicant inviting her to comment on, or provide an explanation about, adverse information that may lead to a decision to refuse her Australian citizenship application.  The letter listed four disclosable court outcomes relating to the Applicant.  They were listed (Exhibit R1, p 70-71) as:

Court and date	Offence	Result
Newcastle Local Court – 15 November 2011	Drive with middle range PCA	Fine: $500. Disqualification: 7 months commencing 15 November 2011 concluding 14 June 2012
Newcastle Local Court – 20 March 2014	Drive with middle range PCA – 2nd offence	Fine: $1,100. Disqualification: 12 months commencing 20 March 2014 concluding 19 March 2015
Burwood Local Court – 4 June 2015	Drive with high range PCA	Disqualified 5 years (Court Order) from 4 June 2015.  9 months Intensive Corrections Order.
Burwood Local Court – 4 June 2015	Drive while disqualified	Disqualified for 2 years (Court Order) from 4 June 2015. Good Behaviour Bond 18 months.

1. On the same page, four speeding offences were recorded against the Applicant’s name for exceeding the posted speed limit by more than 10 kilometres per hour but not more than 20 kilometres per hour.

2. On 16 June 2016, Miss Prapysatok responded to the Department’s letter inviting her to comment on the adverse information.  She stated, in part:

   I almost have done everything which are residences in Australia has responsible to do.  I have never done anything illegal.  However, as you already known that I had drink driving offences and I know that was my mistake.  At that time I have had so much pressure from my failure marriage and my previous business was not successful.  I were the only person who manage everything so that made me turn to consume alcohol.  It was the worse decision to drive a car while I were not ready to drive.

   Aftermath, that I attended the traffic offender program and sober driver program.  I learned the effects from drink driving that how it will be dangerous and effected to many people.  During participate the program, I promised to myself that I will never ever do this again and I have changed my consumption of alcohol.  I drink less than I used to be.

3. Miss Prapysatok attached a statutory declaration dated 6 June 2016 in which she said that she misunderstood the questions on the application and did not intentionally fail to disclose information regarding her police record.  She stated that she thought she did not have any criminal record because she had been to court and undertaken the community order made by the Court.  The Applicant also attached two further statutory declarations.  The first was declared on 6 June 2016 by Ms Thitirat Srisomboon.  Ms Srisomboon stated that she first met the Applicant when she applied for a partner visa with her then husband, and went on to say that she thought Miss Prapysatok did not intend to provide false information.  The second was from Ms Wilawan Moonasa who recorded friendship with the Applicant since 2009.  Ms Moonasa stated that Miss Prapysatok’s drinking was caused by a marriage break-up and business pressures.  Ms Moonasa also indicated that the Applicant should otherwise be regarded as a good member of the community.

4. The Respondent contended that the Applicant’s explanation that she ‘misunderstood the questions’ and mistaken belief that she no longer had a record because the matters had been dealt with in court were unsatisfactory.  The Respondent said that Miss Prapysatok’s failure to disclose her drink driving offences demonstrated a lack of honesty and candour in her dealings with the Australian Government.

5. The Respondent conceded that none of Miss Prapysatok’s driving offences were “serious offences” in terms of how that phrase is used in the Policy.  However, the Respondent contended, the offences show a pattern of offending and disobeying the law, particularly the offence of driving when disqualified.  In the view of to the Respondent, the   Applicant’s offending demonstrated a “reckless disregard” for the law.  Mr He said that Miss Prapysatok should be expected to demonstrate a clean driving record over a more substantial period before she should be considered to be of good character.

   The Applicant’s submissions

6. Miss Prapysatok told the Tribunal that when she applied for citizenship she completed the form online.  She said she did not understand all of the questions.  The Applicant said that she accepted the offences and had pleaded guilty on each occasion.  She submitted that this and the fact that she had not done anything wrong since 2014 should be taken into account.

7. Miss Prapysatok told the Tribunal that she had attended VicRoads and asked if she could apply for a driver licence in Victoria, and was told she could.  She showed the Tribunal a Victorian drivers licence she obtained on 2 August 2017.  She said she told VicRoads that she had been disqualified from driving in New South Wales. She also stated that she was not driving (at all) on her own volition until the expiry of her driving ban in June 2020.

8. When questioned about the speeding offences, the Applicant said that some of these were on occasions when her brother used her car.  She accepted that one of the speeding offences was when she was driving the car.  She told the Tribunal that her brother had since returned to Thailand, in November 2014.  Miss Prapysatok said her brother had paid the speeding fines and she had also asked him to ensure the speeding infringements were recorded against his name, and not hers, but she did not check to see that he had done so.

   Consideration

9. The Applicant did not deny any of the drink driving offences, nor that the offences had increased in seriousness.  She said 2014 was a tough year in her life, and she accepted that she should not have driven after having so many drinks.  Although there was no corroborating evidence that her brother may have been responsible for some of the speeding offences, I have no reason to doubt Miss Prapysatok’s evidence on this matter.  The Tribunal notes that unless another person makes a declaration accepting personal responsibility, speeding offences detected by fixed cameras are the legal responsibility of the registered owner of the vehicle photographed, unless the person is able to prove otherwise.

10. Miss Prapysatok told the Tribunal about the restaurant she formerly operated in Sydney.  She said she employed around four other staff and her brother also assisted at that time.  She said that she is now in partnership with a friend at another restaurant in Wangaratta which employs four other persons.  The Tribunal questioned her about familiarity with government forms in terms of running her restaurants.  Miss Prapysatok confirmed she was familiar with various local government and public health requirements, and that she had been partly assisted by her solicitor in regard to the paperwork for establishing the two restaurants.

11. The Tribunal accepts that Miss Prapysatok has made, and is continuing to make, a worthy contribution to Australia.  She has operated one business and shared in the operation of another.  She has employed other persons and, apart from her driving offences, there was no substantial evidence before the Tribunal of any other behaviour that might call into question her conduct.

12. However, the Applicant answered two questions on her citizenship application about whether she had any previous traffic offences and whether she had been subject to a good behaviour bond, falsely, in the negative.

13. Miss Prapysatok marked the Declarations section of the citizenship application form with “Agree” and initialled it.  The following is written at the head of that part of the form:

    Declarations

    Warning: it is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.

    And, later in the same section:

    The applicant declares that…the information they have supplied in this form is complete, truthful and correct in every detail.

14. In cross-examination, when asked about these answers, Miss Prapysatok said “I had a quick read – I didn’t read all the questions.  I thought Immigration would tell me if I couldn’t apply.”  When particularly pressed by the Tribunal about why she signed the Declaration, the Applicant said: “I didn’t read it all, just agreed.  When asked about terms and conditions, I always tick ‘agree’.”

15. The Tribunal has consistently taken the approach that truthfulness is an essential element in the immigration process. In Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 Deputy President McMahon stated, at [35]:

    The observance of truth in dealing with officials and migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in Visa applications...Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.

    I consider that, as citizenship is effectively the end-point for a non-citizen in the broader immigration process, this principle also extends to apply when permanent residents are applying for Australian citizenship.  There is a reasonable expectation by the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.

16. Relevantly, the Policy states, at chapter 11, when discussing how decision-makers should assess ‘good character’:

    (c)         Among other things, an applicant of good character would:

    (i)Respect and abide by the law in Australia; and

    (ii)       be truthful and not practise deception or fraud in their dealings with the Australian Government, for example concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.

17. The Tribunal finds that the Applicant’s failure to answer the two relevant questions honestly and to heed the warning clearly set out in the Declaration, weighs against a finding that she was of good character when she made her application.  The Tribunal does not conclude these omissions were inadvertent because Miss Prapysatok agreed that she was familiar with official forms from running her businesses and because, on her own evidence, she indicated she ‘always’ agrees to terms and conditions when filling in forms online.

18. I also note that the good behaviour bond imposed by the Court did not end until 4 December 2016, eight months after Miss Prapysatok lodged her citizenship application.  At that time, and now, she is still disqualified from driving. Therefore the Tribunal believes that the Respondent’s submissions that the Applicant has yet to show evidence that she can maintain a clean driving record carry some weight.

19. I note that the Applicant submitted proof from NSW Corrective Services that she ‘satisfactorily’ completed the Intensive Corrections Order.  However, the fact that a person has complied with court orders are not positive evidence demonstrating good character; it is conduct expected of any person in the Australian community, whether a citizen or not.

20. Evidence of a person failing to respond to a court order does, however, have relevance in the assessment of good character.  In this regard, the breach by Miss Prapysatok of the driving ban imposed by the Court weighs against her in this assessment.  She knew she was disqualified from driving in New South Wales from 20 March 2014 to 19 March 2015 and yet she drove a motor vehicle in that State on 10 December 2014, not only while intoxicated but while she was prohibited from driving.  In cross-examination the Applicant said she recalled receiving a letter formally advising her of the period of the disqualification.  She admitted that she knew the disqualification period had not ended when she decided to drive that evening, but said her business was not going well and “at the time [she] was drinking almost every day after work.”

21. The Tribunal agrees with the comments in the recent decision Albert and Minister for Immigration and Border Protection [2017] AATA 2036 which also touched on an applicant’s drink driving offences. In that matter Senior Member Tavoularis said, at [35]:

    While I accept, to some extent the contention that the Applicant has not been convicted of, or engaged in, any crime other than that committed on 27 March 2014, there cannot be said to be any identifiable frequency in his offending nor can there be found any cumulative effect of his offending. However, I do not accept the contention that his conduct on 27 March 2014 was some type of aberration because of a relative paucity of similar conduct in his history. This was not just an aberration or a momentary lapse of reason it was a dreadfully immature decision committed by a mature man, a family man with children of his own, who should have known better. I do not accept any suggestion that the ingestion of alcohol is to blame. The consumer of the alcohol is in control of the ingestion of that alcohol well before any such ingestion commences. The catastrophic consequences of drinking and driving have been made very well known – often in very graphic and stark advertising – which makes it clear that the commencement of responsibility for consumption of alcohol starts well before the first drink is consumed.

22. The Applicant agreed in cross-examination that she was aware of the laws which regulate what percentage of alcohol persons may have in their blood and still legally drive, and said that there are similar laws in her home country.  These laws are in place for the general protection of the community and must be complied with. 

1. Miss Prapysatok provided two answers to important questions which, at the very best interpretation, were highly misleading and at the other end of the scale, may be interpreted as deceitful.  The Applicant also agreed to a Declaration (which included a warning about the relevant section of the Act which governed false information) that she had been truthful in her foregoing answers, when she had not been.

2. Taking all of this into account, the Tribunal is not satisfied that Miss Prapysatok is of good character.  She may be able to satisfy that requirement in the Act after a greater period of time has passed.  The Tribunal cannot specify what that period would be, because that will depend on the Applicant’s other conduct and whether, when her driving disqualification period ends, she is able to show by her action that she will not again drive while intoxicated. 

3. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen said, at [8]:

   …refusal did not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again…

4. I accept that Miss Prapysatok’s unlawful conduct has been confined to driving offences, but they are serious offences and in one respect showed a disregard for the authority of the courts.  However, the Tribunal notes that she has been a productive businesswoman since coming to Australia, which is to her credit.  I have no reason to believe that, provided some more time has passed and no recurrence of unlawful conduct, a fresh application for Australian citizenship by the Applicant may not be successful.

   Point about driving privileges

5. The Applicant told the Tribunal that, before leaving Thailand to settle in Australia, she had obtained an International Driving Permit in Thailand with a “lifetime” expiry.  I note that NSW Police observed (Exhibit R1, p 82) that they had no authority to confiscate this permit from Miss Prapysatok.  Miss Prapysatok told the Tribunal that at one court appearance the Magistrate asked her why she had not obtained an Australian driver licence, in spite of being in Australia for some years.  It is somewhat disturbing to the Tribunal that the Applicant has now been issued with a Victorian drivers licence even though she said she told the licensing authorities in Victoria that she was currently disqualified from driving in New South Wales. The Tribunal acknowledges her evidence that she has not, in fact, driven since 2015 because she is aware of the disqualification imposed by the NSW courts.

6. The Tribunal is not clear whether there may be a loophole in terms of reciprocal information passed between State jurisdictions in cases where a person was driving in Australia on an International Driving Permit, because the person has lost the privileges to drive in a State, but did not have a licence issued by that State.  On the Applicant’s evidence this did not prevent her obtaining a licence from another State.  This is not a matter in this consideration, but the Tribunal feels bound to mention it as a slightly disquieting piece of evidence that emerged in this hearing.

   DECISION

7. The reviewable decision that the Applicant does not satisfy s 21(2)(h) of the Australian Citizenship Act 2007 is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 20 March 2018

Date(s) of hearing:	30 January 2018
Applicant:	Self-represented
Advocate for the Respondent:	Mr Zeng He
Solicitors for the Respondent:	Clayton Utz