Re Wang and Minister for Immigration and Border Protection

[2014] AATA 89

[2014] AATA 89

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3711
Re	Zhengqin Wang
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	28 January 2014
Date of written reasons	24 February 2014
Place	Sydney

The Tribunal affirms the decision under review.

......[Sgd]..................................................................

Ms N Bell, Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – permanent resident – application for citizenship – applicant does not meet good character requirement – exercise of discretion - application of Australian Citizenship Instructions – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21,21(2)(h), 22(1), 22(2), 22(9)

SECONDARY MATERIALS

Australian Citizenship Instructions, Chapter 5

REASONS FOR DECISION

Ms N Bell, Senior Member

24 February 2014

1. At the conclusion of the hearing of this application the terms of the decision intended to be made and the reasons for it were stated orally. After service upon the parties of a copy of the decision that was made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish it with a statement in writing of the reasons of the Tribunal for the decision.

2. The following statement of reasons, amended and reordered to better exhibit the Tribunal’s reasoning, is drawn from the transcript of the proceedings by Merrill Corporation, the Commonwealth Reporting Service.

3. Mr Wang first arrived in Australia in 2000 at the age of 17 years. Mr Wang seeks review of the decision of the Minister to refuse his application for Australian citizenship.

4. Section 21(2) of the Australian Citizenship Act 2007 provides the general eligibility criteria which apply in each application for citizenship:

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

   (a)is aged 18 or over at the time the person made the application; and

   (b)is a permanent resident:

   (i)      at the time the person made the application; and

   (ii)     at the time of the Minister's decision on the application; and

   (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and

   (d)understands the nature of an application under subsection (1); and

   (e)possesses a basic knowledge of the English language; and

   (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

   (g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

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

5. Of particular importance for Mr Wang, is 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, that is, on 15 July 2013.

6. Mr Wang has the following criminal record:

Court	Offence	Date of Offence	Date Convicted	Sentence
Downing Centre Local Court	Negligent Driving (Occasioning Death)	5 May 2003	7 October 2004	Community Service Order: 100 hours Disqualification: 18 Months Commencing 7 October 2004
Downing Centre Local Court	Use Unregisterable Class A Motor Vehicle Drive with Low Range PCA	4 November 2008	19 November 2008	Fine: $100 Costs – Court: $73 Fine: $400 Costs – Court: $73 Disqualification: 4 months Commencing 25/12/2008 Concluding 24/03/2009
Downing Centre Local Court	Drive on Road Etc While Licence Suspended	4 November 2008	30 March 2009	Fine: $750 Costs – Court: $73 Disqualification: 2 years commencing 25/12/2008
Downing Centre Local Court	Drive While Disqualified From Holding a Licence	15 May 2009	9 June 2009	Convicted S25(2) Warrant to Issue: Warrant Revoked
Downing Centre Local Court	Drive While Disqualified From Holding a Licence	15 May 2009	14 August 2009	Fine: $2,000 Costs – Court: $76 Disqualification: 2 years commencing 14/08/2009 Bond: S9: 3 years

1. Mr Wang, you have had six incidents or traffic infringements from 2003 to 2009. Every one of those is, in effect, serious, but the initial incident resulted in a death and that is a catastrophe. After that terrible event you continued to disregard the laws whose purpose it is to protect users of the road. Those laws go to the essential safety of the community.

2. In your evidence, you acknowledged the seriousness of that initial event in 2003, but you remained very focused on its effect on you and very focused on your employment and not as focused as I would have hoped on the effect of your conduct then and over the following six years on other people. Your focus was also on your need for citizenship to assist you in relation to your travel for work and that is a reasonable thing, but you seemed less focused on the effect of your behaviour on the Australian community and on other road users.

3. You insist that you are a changed person, that you are more mature and better behaved and you point to 10 months driving in Australia with no incidents. It is possible that it is true that you have reformed in that way, but in less than one year of driving after some six years of repeated infringement following an infringement in 2003 that had catastrophic results, I cannot be satisfied that this aspect of your character has yet been reformed. I gain no comfort in this regard from your failure to characterise a speeding infringement and a failure to display P plates as important infringements and that you had forgotten entirely about another infringement.

4. I do not think you were trying to cover anything up, but I do think that you have yet to appreciate the dangerous ramifications of your actions and their potentially deadly effect on the Australian community.

5. I note that you provided some references. I cannot derive much comfort from the character reference provided by your employer Mr Bilmon who, according to your evidence, is unaware of your offence in 2003 that resulted in a death. That offence colours everything that followed.

6. In relation to your other more personal references, while I have had regard to them, I must give them less weight than I would to a more objective referee. I think you are on the way to establishing your good character but I do not think you are there yet, given the gravity and the pattern that existed over those six years. You have to prove yourself and I do not consider you have done that yet but I do think you intend to. It will be open to you to make a further application once you have made further progress.

7. I affirm the decision under review.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

......[Sgd]..................................................................

Associate

Dated 24 February 2014

Date of hearing	28 January 2014
Applicant	In person
Solicitors for the Respondent	Ms Warner Knight, AGS