Samithamby Thiyagaratnam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 743

Samithamby Thiyagaratnam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 743 (12 April 2022)

Division:GENERAL DIVISION

File Number(s):2021/6695      

Re:Kandeepan Samithamby Thiyagaratnam  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Damien O'Donovan

Date:12 April 2022

Place:Canberra

The decision under review is affirmed.         

………….[Sgd]…………

Senior Member Damien O’Donovan

Catchwords

IMMIGRATION & CITIZENSHIP – whether Tribunal satisfied Applicant is of good character – humanitarian visa recipient - drug use – dangerous driving occasioning death – remorse – subsequent good conduct – decision under review affirmed.

Cases

Drake v Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634.

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 22, 24, 25.
Crimes (Administration of Sentence) Act 1999 (NSW)

Secondary Materials

Australian Citizenship Policy, ch 11
Citizenship Procedural Instructions, 15

REASONS FOR DECISION

Senior Member Damien O'Donovan

12 April 2022

1. Mr Thiyagaratnam (the applicant) came to Australia from Sri Lanka on a humanitarian visa on 28 October 2010. He was 16 years old.

2. He applied for Australian citizenship on 9 November 2020.

3. On 16 September 2021 the respondent notified the applicant that a decision had been made to refuse to approve his application for citizenship on the basis that the delegate was not satisfied that the applicant was of good character. A person is not eligible to become an Australian citizen unless the Minister (or his delegate) is satisfied that the person is of good character at the time the decision is made.[1] The issue of concern for the delegate was that in 2019 the applicant was convicted of one count of dangerous driving occasioning death. This was regarded as sufficient to cast doubt on the applicant’s character.

   [1] Section 21(2)(h) Citizenship Act 2007 (Cth)

4. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for a review of that decision. The Tribunal conducted a hearing in relation to the matter on 21 March 2022. The only issue to be resolved is whether, at this point in time, the Tribunal is satisfied that the applicant is of good character.

5. For the reasons set out below, I am not satisfied that the applicant is of good character for the purposes of the Citizenship Act 2007 (Citizenship Act). I accept the respondent’s submission that insufficient time has passed since his conviction to allow me to be satisfied that the applicant meets this requirement.

   LEGISLATIVE FRAMEWORK

6. Section 21 relevantly provides as follows: [2]

   21 Application and eligibility for citizenship

   (1)A person may make an application to the Minister to become an Australian citizen.

   (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.

   [2] Australian Citizenship Act 2007 (Cth) s 25.

   24Minister’s Decision

   (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

7. The term ‘good character’ is not defined in the Citizenship Act but clearly directs the decision maker to consider the applicant’s qualities as a person.

8. It is addressed in detail in the Australia Citizenship Policy Statement (Policy) and the Citizenship Policy Instruction (CPI) – Assessing Good Character Under the Citizenship Act. The Policy provides guidance on the interpretation and exercise of the powers under the Act. The Tribunal is not obliged to apply the policy documents prepared by the Department but for reasons of administrative consistency it is appropriate to do so provided the policy is lawful (see Drake v Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634). As a general rule the Tribunal will apply Departmental policy in reviewing a decision unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.

9. In the CPI, an applicant’s behaviour is considered to be a manifestation of their essential character. An applicant’s adherence to community values, including relevantly their obedience to and observance of the law, can be examined. An applicant of good character would normally respect and abide by the law in Australia and not cause harm to others through their conduct.

10. These are important matters to consider in deciding whether I am satisfied that the applicant is of good character.

    Facts

11. There is no significant dispute about the relevant facts in this case.

12. The applicant was born on 4 June 1994. The applicant grew up in Sri Lanka. He moved with his family to Australia when he was 16 arriving on 28 October 2010. He and his family arrived in Australia on humanitarian visas. The applicant knew very little English when he arrived but learned it when he attended school.  He has mostly lived with his family since his arrival in Australia and he has adjusted reasonably well to life in his adopted country.

13. The applicant did however fall into drug use and for a period of time was a daily user of marijuana. The applicant accepts that there were times when he was learning to drive that he was affected by marijuana. He also tried both cocaine and ice at some point around 2014.

14. He says that he has not used any drugs or consumed alcohol in the last few years. I accept that evidence.

15. From 2014 the applicant had a number of admissions to hospital for schizophrenia. According to medical reports[3] the longest of these was for 3 months in 2015. The applicant does not accept the diagnosis of schizophrenia but says that he complies with the medication regime. Again, I accept his evidence in that regard.

    [3] Exhibit 1 p30

16. In January 2018 the applicant was a holder of a Provisional 2 Drivers Licence, colloquially known as his Green Ps. On the afternoon of 4 January 2018 the applicant drove his brother and a friend and a friend of his brother (the deceased) around in his small Toyota. The drive had no particular purpose – they were just a group of young men spending time together. During the journey the applicant drove along a road which had a speed limit of 70km/h. The road curved to the right at a certain point. While taking this bend the applicant was driving at no less than 89km/h. The applicant’s evidence is that he did not know what speed he was going but he accepts the police assessment of his speed. The applicant told a Forensic Psychiatrist in an interview on 28 February 2019 that he was listening to ‘pumped up music’ and that ‘he lost concentration’ and that is the factual basis on which I will proceed. The applicant lost control of the vehicle at the point where the road curved to the right. The car spun out of control passing into the other lane before it hit an embankment and then rolled several times before coming to rest in the driveway of one of the houses on the street.

17. The applicant and two of his passengers suffered minor injuries. The deceased however suffered a major head trauma in the crash and was pronounced dead in an ambulance en route to hospital.

18. The applicant was charged with dangerous driving occasioning death and pleaded guilty. The result was that he was sentenced to a term of imprisonment of 2 years to commence on 16 April 2019 and expiring on 15 April 2021. The term of imprisonment was ordered to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW).

19. The applicant met with the family of the deceased but it was clear from the applicant’s evidence that his mother and siblings did most of the talking with the grieving family.

20. The applicant was not under the influence of drugs or alcohol at the time of the accident. Speed was the biggest contributing cause to the applicant losing control.

21. In about 28 October 2010 the applicant moved with his family to Canberra. Since arriving in Canberra he has obtained some work at Ethiopia Down Under Restaurant as a delivery driver and kitchen hand however is currently seeking permanent employment.

22. He applied for citizenship on 9 November 2020. It is worth noting that the application was made while the applicant was still the subject of an intensive corrections order. Had he not had the benefit of the intensive correction order, the applicant would have been applying for citizenship from prison.

    Impressions of the applicant

23. When the applicant gave his evidence, he did so in a straightforward manner. I was confident that he was being honest in his answers. He was very frank about his past drug use and I was confident he was being honest when he said that he no longer used drugs or alcohol and had not done so for some time. He seemed determined to be law abiding and sensible and wanted to obtain work and become a productive member of society. His behaviour since the accident was supportive of these conclusions.

24. There were however some troubling aspects to his evidence.

25. He gave the impression that his greatest regret about the accident was that it may interfere with him becoming a citizen. He had a very strong desire to become a citizen because of the freedom it would give him to travel. The fact that he had been irresponsible and as a result taken another person’s life did not seem to weigh as heavily on him as I would have expected. I was uncertain whether this impression was a reflection of an underlying character defect or the result of the applicant communicating in a language which was not his mother tongue or the result of the applicant’s underlying mental illness. It was however concerning. Ultimately, the fact that the applicant was prepared to apply for citizenship in circumstances where he was still subject to the punishment for his crimes indicated to me that what I was observing may be an accurate reflection of the applicant’s underlying attitude to his wrongdoing.

26. I hope I am wrong about that.

27. However, in circumstances where I must be affirmatively satisfied that the applicant is of good character, I still have doubts.

28. He has now had a number of years of good behaviour which strongly suggests that he is of good character. He was well spoken and earnest in his presentation to the Tribunal and his aspirations and conduct were consistent with a finding that he is a person of good character. However, given his apparent lack of insight into the seriousness of his conduct which led to the death of his brother’s friend, I consider that a longer demonstration of good conduct is required before I could be satisfied that he is of good character.

29. If the applicant remains on the path that he is on then I am confident that at some point the conclusion will be reached that he is of good character, but at this point in time significant doubts remain. 

30. In those circumstances, I affirm the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

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

Associate

Dated: 12 April 2022

Date of hearing: 

21 March 2022

Representative for the applicant:

Solicitors for respondent:

Counsel for the respondent:

Self-represented

Ms Emily Hill

Mr. John Bird