Semezdin Tupkovic and Minister for Immigration and Border Protection

[2014] AATA 467

[2014] AATA  467

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6652
Re	Semezdin Tupkovic
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	10 July 2014
Place	Sydney

The decision under review to refuse Mr Tupkovic’s application for Australian citizenship is set aside and a decision substituted that his application is approved under s 24(1) of the Australian Citizenship Act 2007.

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

Deputy President RP Handley

Catchwords

CITIZENSHIP – Citizenship by conferral – good character – previous convictions for traffic offences – six years since last conviction – decision set aside and substituted

Legislation

Australian Citizenship Act 2007 (Cth) ss 21(2), 24
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

Deputy President RP Handley

1. Mr Tupkovic has applied to the Tribunal for the review of a decision to refuse his application for Australian citizenship by conferral on the ground that he is not of good character.

   BACKGROUND

2. Mr Tupkovic was born in 1959 in the town of Janjari in the former Yugoslavia. He first arrived in Australia on 3 July 1994 and remains a citizen of Bosnia and Herzegovina. He is a motor mechanic.

3. On 21 July 1994, Mr Tupkovic was granted a Subclass BF209 (permanent) visa which is still current. The Subclass BF209 visa is a special category of humanitarian visa granted to persons who were displaced by the armed conflict which surrounded the dissolution of Yugoslavia.

4. On 6 August 2013, Mr Tupkovic applied for Australian citizenship. His application was refused by a delegate of the Minister for Immigration and Border Protection on the ground that the delegate was not satisfied that Mr Tupkovic was of good character. This was on the ground that Mr Tupkovic had been found guilty of a number of traffic and motor vehicle offences.

5. Aside from a fine for exceeding the speed limit, which resulted in the cancellation of his licence for a failure to pay that fine, Mr Tupkovic did not commit a traffic offence in Australia prior to 1997. However, on 16 April 1997, he was convicted in Campbelltown Local Court of the following offences in relation to an incident on 28 March 1997 when he was driving a car which he had just purchased from a wrecker’s yard:

Charge	Sentence
Use an unregistered vehicle	$50 Fine
Use an uninsured vehicle	$50 Fine
Plates calculated to deceive	$50 Fine
Registration label calculated to deceive	$50 Fine
Drive after licence cancelled	s558 deferral of sentence for 12 months with payment of $500; Disqualification 6 months

1. Mr Tupkovic was next issued with an unrestricted licence in 2002. He was fined for a number of traffic offences over the following years. His licence was also suspended on a number of occasions for failure to pay those fines. 

2. On 23 December 2006, Mr Tupkovic says that he was test driving a car in the course of his work as a mechanic when he was pulled over and charged by the police with driving an uninsured and unregistered vehicle, as well as driving while his licence was suspended. He was convicted of these offences in the Local Court on 17 January 2007. However, Mr Tupkovic appealed his sentence for driving whilst suspended to the District Court on the grounds of its severity. The conviction was overturned in the District Court on 2 March 2007, and the matter dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3. On 20 July 2008, Mr Tupkovic was charged with driving an unregistered vehicle and driving whilst suspended. His licence was suspended at the time due to his default in paying a fine. Of these charges, Mr Tupkovic was convicted and fined for using an unregistered vehicle. The following table details Mr Tupkovic’s convictions for the 2006 and 2008 offences.

Charge	Date of Conviction	Sentence
Use an unregistered vehicle	17 January 2007	$100 Fine
Use an uninsured vehicle	17 January 2007	$100 Fine
Use unregistered vehicle	23 October 2008	$400 Fine

Mr Tupkovic was not convicted on 23 October 2008 for the charge of driving while his licence was suspended. The magistrate made a finding of guilt without proceeding to a conviction, on the condition that Mr Tupkovic enter into a 12 month good behaviour bond.

1. Investigations carried out by the Respondent on 30 September 2013 indicate that Mr Tupkovic has not re-offended since the 2008 offences. He applied for Australian citizenship on 6 August 2013, almost 5 years after his last conviction. Nevertheless, on his application for citizenship, Mr Tupkovic failed to fully disclose his prior offending. When asked whether he had been “convicted of, or found guilty of, ANY offences”, Mr Tupkovic ticked the box ‘No’. However, in the section which requires the provision of further details in the case of a ‘Yes’ answer, Mr Tupkovic wrote “over 10 years ago, RTA sent letter re disq licence for 3 mths [sic]”. No disclosure was made of the above offences.

2. In her decision dated 15 November 2013, a delegate of the Minister found that Mr Tupkovic’s above criminal and traffic history justified a finding that she could not be satisfied that he was of good character. The Delegate therefore refused his application for Australian citizenship. On 16 December 2013, Mr Tupkovic applied to the Tribunal for a review of the delegate’s decision.

   LEGISLATION AND ISSUES

3. The issue for the Tribunal is whether Mr Tupkovic is of good character for the purpose of the conferral of Australian Citizenship. Eligibility for Australian citizenship is governed by the Australian Citizenship Act 2007 (Cth) (‘the Act’). Section 21(2) states relevantly:

   (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.

   The question for the Tribunal is therefore whether Mr Tupkovic was of good character at the time of the reviewable decision, that is at 15 November 2013.

4. The term ‘good character’ is not defined in the Act and the Tribunal must therefore be guided by the ordinary meaning of the words as interpreted by the courts.

5. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving) the Full Federal Court considered the meaning of the expression "good character".  Davies J (with whose reasons R D Nicholson J agreed) said [at 425]:

   ... the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

6. In the same decision, Lee J said [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. (citations of authorities omitted).

7. The Tribunal should also be guided by the Australian Citizenship Instructions (the Instructions), which were developed to assist decision-makers in applying the Act. In Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal stated that decision-makers should apply such policy unless that policy is unlawful, or produces an unjust result in the circumstances of the particular case.

8. Mr Tupkovic’s convictions must be considered in determining whether he is of good character for the purpose of being granted Australian citizenship. The Instructions provide that the decision-maker should consider, among other factors, the seriousness of any offence, the number of offences committed, whether the offences form a pattern of criminal behaviour, and the length of any sentence imposed. Despite this, previous criminal sentences are not determinative of the question of character. As stated by Lee J in Irving, the primary focus must be on an objective assessment of the applicant’s enduring moral qualities.

   APPLICANT’S EVIDENCE

9. Mr Tupkovic provided an undated letter to the Minister filed on 27 February 2014 and gave evidence at the hearing with the assistance of a Bosnian interpreter. He was not legally represented. He said that he arrived in Australia in July 1994. At around that time, he stopped drinking alcohol after being an alcoholic for many years. He has not drunk alcohol since.

10. The incident in 1997 arose out of his buying a car at a wrecker’s yard in order to fix the car and then sell it. He was taking the car home when he was stopped by the Police. He said the ‘Police Facts’ do not give an accurate description of what happened. His English was not very good, and he trusted the people at the wrecker’s yard and so did not check on the vehicle’s registration. He was unaware that the number plates were from another car because he had not checked. Mr Tupkovic denied having himself swapped the plates with those from another vehicle. He said he also did not know that his licence was suspended at that time for non-payment of a fine. His non-payment of fines at that time arose from his being a sole-parent on social security benefits and being unable to afford to do so. Mr Tupkovic said at that time, he had other problems to deal with and acknowledged that he had not taken sufficient care.

11. Mr Tupkovic said his life started to improve until the further traffic infringements in 2007 and 2008. Between 2003 and 2010, he was running his own mechanical repairs business. The offences of which he was convicted in 2007 arose out of an incident on 23 December 2006 when, while working as a motor mechanic, he was test driving a car for the purpose of issuing a pink slip. The car was unregistered and uninsured. At the time, Mr Tupkovic’s licence had been suspended for non-payment of fines. He said he was unaware that his licence had been suspended. Had he known this, he would not have tested the car for its pink slip because this would have been against the law. He appealed his sentence for driving while suspended to the District Court where the judge dismissed his conviction because, Mr Tupkovic said, the suspension was for non-payment of fines.

12. The incident on 20 July 2008 arose when he was stopped while driving a white Mercedes after leaving his brother’s house. Mr Tupkovic’s evidence about this was rather confused. He said was test driving the car for its pink slip. The Police Facts Sheet states that the registration for the car had expired on 14 June 2008. He told the Police Officer he was going to pay his registration the next day. When the Police checked on his licence, they found it was recorded as being suspended for non-payment of a fine. The Police Facts Sheet records that Mr Tupkovic told the Police that he had been told to call the State Debt Recovery Office the next day about this. Mr Tupkovic’s evidence at the hearing was that he had paid the outstanding fine about three days earlier but had not yet phoned the State Debt Recovery Office who, apparently, had to arrange for the suspension of his licence to be lifted. Mr Tupkovic said when he showed the judge (it appears the Campbelltown Local Court magistrate) the document confirming that he had paid the relevant fine, the judge dismissed the matter. The summonsed documents indicate that the magistrate found Mr Tupkovic guilty of the offence but did not record a conviction on his entering into a good behaviour bond for 12 months.

13. Mr Tupkovic referred to his application for Australian citizenship. He said his daughter in law filled out the form for him and, at the time, he did not know how she answered question 29 (which asks whether the applicant has been convicted of, or been guilty of, “ANY” offences including traffic offences). Mr Tupkovic apologised profusely for his mistakes and said he realises now what a big mistake this was, although he had no reason not to tell the truth.

14. In his letter, Mr Tupkovic said he made those mistakes because he was not cautious and he did not feel as if his behaviour was of a criminal nature. The fact that he was test driving a car during the course of his work as a mechanic:

    … does not excuse my actions. I should have known better and I am embarrassed of [sic] such carelessness. … I am embarrassed to admit that I was not mature enough at the time despite my age. My son was also giving me worries at the time because he was involved in a number of serious incidents and this added to the stresses in my life which was a factor in my misguided actions.

    I am in a position now where I feel very sorry for my past actions and behaviours. I will do my absolute best to never be on the wrong side of the law ever again and that is a promise. I have learned my lesson in life the more difficult way. In 2011 I was involved in a serious motorbike accident and I woke up from a coma in hospital. I spent three weeks in hospital fearing for my life and in fear that I will have permanent brain damage. This event changed me as a person and I now respect and understand Australian laws to a greater extent. Since the accident I have become mindful of everything I do unlike how I was in the past. In addition to this incident my daughter aged 31 years old passed away on December 2013. It is a tragedy beyond words, and instead of living my life in sadness I have chosen to show reliance and come back a stronger and more successful man. My past experience is a reminder of a negative history particularly my criminal past, I would like to leave those incidents in the past and move on with my life and take care of my son who is now 27.

    …

    … I once again am extremely sorry. My past mistakes were due to carelessness, stress, ignorance and a lack of understanding for how serious road infringements can be. …

15. Mr Tupkovic provided three references in support of his application. In a letter dated 30 October 2013 addressed to the Department, his treating psychiatrist, Dr Dusan Kecmanovic stated:

    I have known Mr Tupkovic for a period of over 10 years in my role of a Psychiatrist.

    I understand that your office has raised concerns about Mr Tupkovic’s character as a result of various traffic related criminal offences he committed, with the last offence being in 2008.

    It is my professional opinion that such activities are out of ordinary character of Mr Tupkovic. He is a decent, hardworking and trustworthy person who has made mistakes in his life. It is however my belief that such mistakes are purely an error of judgement made as a result of his medical conditions for which he is now receiving ongoing treatment.

    …

    It is my professional opinion that any behaviour displayed by Mr Tupkovic previously, is not a true representation of his current and future good character.

16. Mr Tupkovic said his psychiatrist died about five months ago. Mr Tupkovic thought that he had only been treated by him since after his motorbike accident in 2011.

17. Mr Tupkovic’s General Practitioner (GP), Dr Nick Cvetkovski provided a letter for the Department dated 18 November 2013. He said he had known Mr Tupkovic in his role of family GP for over 10 years. Dr Cvetkovski stated:

    He arrived in Australia post Bosnian war. Given the war and refugee experience, Mr Tupkovic also experienced a decrease in his emotional welfare and wellbeing. He is a single father who has overcome various challenges, especially those of settling into Australia given his post traumatic war experiences.

    I understand that Mr Tupkovic has committed various traffic related nonviolent offences over a period of years. It is my professional opinion that any behaviour displayed by Mr Tupkovic previously, is not a true representation of his current and future good character.

    …

    I believe Mr Tupkovic is a decent man, someone who is not violent and would not intentionally go beyond his way to offend or hurt someone. His current character is that of a current standing resident of Australia.

18. Mr Tupkovic also provided the Tribunal with a character reference dated 23 February 2014 from Muamer Suljevic, a school teacher who said he had known Mr Tupkovic for eight years. Mr Suljevic said Mr Tupkovic had told him about his criminal history. He said Mr Tupkovic “has always been a loving positive and selfless man” but since about 2007/2008, Mr Suljevic has noticed he has become more cautious and understanding of “the significance of following all Australian regulations including road related laws”. Referring to Mr Tupkovic’s motorbike accident in 2011 and the death of his daughter in December 2013, Mr Suljevic said he believed Mr Tupkovic’s character “has changed because of the tragedies in his life and more noticeably his respect and appreciation for Australian laws has awakened him to a whole new degree”.

    DISCUSSION

    Is Mr Tupkovic of good character?

19. Section 21(2)(h) of the Act requires that the Minister, and here the Tribunal standing in the shoes of the Minister, be satisfied that the person seeking to become an Australian citizen is of good character. The comments by the Full Federal Court in Irving, quoted above, make it clear that the ordinary meaning of the term ‘good character’ involves reference to the person’s enduring moral qualities. Being satisfied that a person is of good character requires an objective assessment of these qualities. In the case of convictions, the decision-maker will obviously wish to be satisfied that the person has been rehabilitated.

20. Ms Carr, representing the Minister, submitted that Mr Tupkovic’s convictions, taken cumulatively, should be regarded as serious. She noted that the offences in 1997 and those in 2007/2008 were similar. She submitted that his explanation for driving while his licence had been cancelled/suspended was the same for each offence and should not be accepted. Ms Carr contended that this showed a blatant disregard for the law and that Mr Tupkovic had failed to recognise the potential for causing harm to others. She submitted that insufficient time has passed since the last offences for him to be considered rehabilitated and that little weight should be accorded to his character references because the witnesses had not been made available for cross-examination.

1. Mr Tupkovic apologised profusely for his mistakes. He said he is not a criminal and in the course of the last few years he has tried very hard to comply with the law. He also told his son not to commit even traffic offences. In his letter, Mr Tupkovic said he had learned a lesson from the motorbike accident as a result of which he may have brain damage. He now understands and respects Australian laws to a greater extent, and is mindful of everything he does, unlike in the past. As a result of the accident, he has more difficulty with his English now than previously and has problems with his memory. He is currently not able to work and is still seeing a lot of doctors.

2. My assessment of Mr Tupkovic’s evidence is that it is credible if one takes into account his background in the former Yugoslavia, the difficulty of settling in Australia and his initial reliance on social security benefits as a sole parent, his problems with English, and other family issues. While Mr Tupkovic committed traffic offences in 1997 and 2007/2008 and, had he been in a motor vehicle accident at those times, this could have had serious consequences for others in the community, I am not satisfied that, even if viewed cumulatively, these should considered serious criminal offences. I note that his Local Court conviction for driving while suspended on 23 December 2006 was overturned on appeal to the District Court and the matter dismissed under s 10 of the Crimes (Sentencing Procedure) Act. On 23 October 2008, he was found guilty of driving while suspended on 20 July 2008 but no conviction was recorded on his entering into a 12 month good behaviour bond. Such outcomes do not suggest serious offences. While there were other traffic infringements between 1997 and 2007, these were relatively minor in nature.

3. The incident which gave rise to Mr Tupkovic’s most recent conviction took place on 20 July 2008 – very nearly six years ago. He has apologised profusely for his mistakes and I accept that apology as genuine. I also accept that he now has a good understanding of the potential consequences that might have followed those mistakes. His character references all speak highly of him – I note his now deceased psychiatrist’s assessment of him as “a decent, hardworking and trustworthy person who has made mistakes in his life”. In my view, this accurately sums him up.

4. Having regard to his enduring moral qualities, I am satisfied that Mr Tupkovic was of good character at the time of the Minister’s decision on his application for citizenship, thereby satisfying s 21(2)(h) of the Act. I have examined the Decision Record completed by the delegate. It is apparent from that Record that Mr Tupkovic was found to have satisfied all other relevant criteria for the grant of citizenship. The appropriate decision, therefore, is for me to set aside the decision under review and substitute a decision that Mr Tupkovic is qualified for the grant of Australian citizenship. His application is approved under s 24(1) of the Act.

   DECISION

5. The decision under review to refuse Mr Tupkovic’s application for Australian citizenship is set aside and a decision substituted that his application is approved under s 24(1) of the Australian Citizenship Act 2007.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley

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

Associate

Dated 10 July 2014

Date(s) of hearing	9 July 2014
Date final submissions received	9 July 2014
Applicant	In person
Solicitors for the Respondent	A Carr, DLA Piper Australia