Sharma and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 816

Sharma and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 816 (17 October 2016)

Division	GENERAL DIVISION
File Number	2016/1372
Re	Amal Sharma
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member T Tavoularis
Date	17 October 2016
Place	Brisbane

The decision under review is affirmed.

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

Senior Member T Tavoularis

IMMIGRATION – CITIZENSHIP – eligibility – where application for Australian citizenship refused – good character requirement not satisfied – pattern of behaviour/ minor offending – decision under review affirmed.

Legislation

Australian Citizenship Act 2007 (Cth), s 21

Cases

Apire and Minister for Immigration and Border Protection [2014] AATA 193
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
HSXY and Minister for Immigration and Border Protection [2016] AATA 560
Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Tsai and Minister for Immigration and Border Protection [2016] AATA 411

Secondary Materials

Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10 - Character
Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, 1 June 2016, Chapter 11 – Character

REASONS FOR DECISION

Senior Member T Tavoularis

17 October 2016

INTRODUCTION      

1. This is an application for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing Mr Amal Sharma’s (“the Applicant”) application for Australian citizenship. This refusal was on the ground that the delegate was not satisfied that the Applicant met the “good character” requirement contained in section 21(2)(h) of the Australian Citizenship Act  2007 (Cth) (“the Act”).  The Applicant has sought review of that decision by this Tribunal.    For the following reasons, I affirm the delegate’s decision.

2. The relevant decision is dated 9 March 2016.[1] On 17 March 2016, the Applicant lodged an application for a review of the delegate’s decision with the Tribunal.

   [1] Exhibit 4, T Documents, pages 6 – 18.

   BACKGROUND

3. The Applicant is 24 years of age. Born in Lautoka, Fiji, he arrived in Australia on 30 April 2008 as the holder of a Schools sector (Temporary) visa TU-571.  He was later granted a Skilled Independent (Permanent) visa VC-485 on 5 November 2014.  

1. He applied for citizenship by conferral on 29 December 2015.

1. Information obtained from a police and traffic checks[2] revealed that on various dates between 2011 and 2015, he was before the Court for offences primarily relating to the operation of a motor vehicle on at least four separate occasions. Stated chronologically, his offending may be summarized thus:

   [2] Exhibit 4, T Documents, at  T9 page 102 (Crimtrac Check Results Report), and T10 pages 106 – 108 (Department of Transport and Main Roads – Traffic History Record)

a.On 26 May 2011, on a charge of “dangerous operation of a motor vehicle” pursuant to s 328A(1) of the Criminal Code 1899 (Qld), the Applicant entered his own plea of “guilty”. This incident involved the Applicant driving the motor vehicle in a dangerous manner through a significant and busy intersection in the southern suburban precincts of Brisbane. The “dangerous” component of the driving involved the vehicle flipping over and coming to rest in an overturned position. It is notable that the Applicant committed this offence with a passenger in the front seat of the vehicle. There was no emergent reason for the nature of the driving and no other vehicle or factor was cited as being of causative effect. As I understood the evidence, the rationale behind the driving was, in the main, recreational. By way of penalty, the Court ordered the Applicant:

i.Be disqualified from driving for a period of 6 months;

ii.Complete 80 hours of community service within a period of 9 months;

b.Also on 26 May 2011 and as a by-product of the factual circumstances of the “dangerous operation of a motor vehicle” charge, the Applicant pleaded guilty to two additional offences:

i.Driving an uninsured vehicle in contravention of subsection 20(1) of the Motor Accident Insurance Act 1994 (Qld) in respect of which  the Court ordered the Applicant to:

·Pay a fine of $400; and

·pay the said fine on or before the expiration of 28 days.

ii.Driving an unregistered vehicle in contravention of regulation 11 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld)  in respect of which the Court ordered the Applicant to:

·Pay a fine of $320; and

·Pay the said fine on or before the expiration of 28 days.

c.On 26 July 2011, on a charge of “driving of motor vehicle without a driver licence disqualified by Court Order” pursuant to subsections 78(1) and 78(3)(a) of the Transport Operations (Road Use Management Act 1995 (Qld), the Applicant entered his own plea of “guilty”. By way of penalty, the Court ordered:

i.the imposition of a fine in the sum of $500; and

ii.that the Applicant be disqualified from driving for 2 years.

d.On 27 September 2012, on a further charge of “driving of motor vehicle without a driver licence disqualified by Court Order” pursuant to subsections 78(1) and 78(3)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld), the Applicant entered his own plea of “guilty”. By way of penalty, the Court ordered:

i.the imposition of a fine in the sum of $1,200; and

ii.that the Applicant  be disqualified from driving for 2 years.

e.On 17 July 2013, on yet a further charge of “driving of motor vehicle without a driver licence disqualified by Court Oder” pursuant to subsections 78(1) and 78(3)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld),   the Applicant entered his own plea of “guilty”.  By way of penalty, the Court ordered that:

i.the Applicant be sentenced to 4 months in prison, suspended for a period of 24 months; and

ii.he be disqualified from driving for 2 years.

f.Also on 17 July 2013, and as a by-product disqualified driving charge, the Applicant pleaded guilty to two additional offences:

i.Driving an uninsured vehicle pursuant to subsection 20(1) of the Motor Accident Insurance Act 1994 (Qld) in respect of which the Court ordered the Applicant to pay a fine of $450; and

ii.Driving an unregistered vehicle pursuant to regulation 11 of the Transport Operations (Road Use Management - Vehicle Registration) Regulation 2010 (Qld).  The Applicant was fined the sum of $450, such fine being one and the same as the fine for the immediately preceding offence of “driving an uninsured vehicle”, both matters being dealt with conjointly.

1. Interspersed and post-dating the Applicant’s matters dealt with in Court, there have also been a number of additional episodes of driving-derived offending particularised as follows:

·6 July 2011: exceeding the speed limit by more than 20 km/h but not more than 30 km/h. The Applicant was fined $330 and incurred 4 demerit points. It is, in my view, significant that this offence occurred just over a month after the Applicant was disqualified from driving for 6 months  following his Court appearance on 26 May 2011;

·28 December 2011: failing to stop at a red light.   The Applicant was fined $300 and incurred 3 demerit points.  Again, it is, I think, notable that this offence was committed  while the Applicant was disqualified from driving for 2 years as a result of  the penalty imposed by the Court on 26 July 2011;

·28 December 2011: exceeding the speed limit by more than 30 km/h but not more than 40 km/h.  The Applicant was fined $466 and incurred 6 demerit points. Again, the Applicant committed this offence whilst disqualified from driving for 2 years pursuant to the Court’s Order made on 26 July 2011;

·Also on 28 December 2011: the Applicant incurred an  additional 6 demerit points for exceeding the speed limit on two or more occasions by more than 20 km/h within a 12  month period;

·17 June 2012: exceeding the speed limit by at least 13 km/h but not more than 20 km/h. The Applicant was fined $200 and incurred 3 demerit points. By virtue of the 2 year driving disqualification imposed on him on 26 July 2011, he was disqualified from driving at the time of commission of this offence.

1. Taking the traffic offences particularised in the immediately preceding paragraph 5 in totality, the Applicant not only drove a motor vehicle unlicensed, but contrived to incur some 22 demerit points in circumstances where he had (a) no right to drive and (b) zero demerit points to lose.

1. The Applicant’s driving history rounds out with additional offences in 2015 and 2016 respectively:

·14 September 2015: unlawful lane filtering while riding a motor bike.  He was fined $353 and incurred 3 demerit points;

·1 April 2016: issued with a traffic infringement notice for use of a defective vehicle. The Applicant’s traffic history before me [3] is current to 18 February 2016 and this does not contain any reference to the nature of any penalty that may have been imposed for this offence.

[3] Exhibit 4, T Documents pages 106 – 108.

1. Prior to considering the merits of this matter, I will address the scope of the key legislative provisions for this case.

THE LEGISLATIVE FRAMEWORK

1. Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied, inter alia, that the person “is of good character at the time of the Minister’s decision on the Application”.[4]

[4] Australian Citizenship Act 2007 (Cth), s 21(2)(h).

1. The Act does not specify the meaning of the words “good character”.  However, there is strong authority supporting the idea that the phrase should be used in its ordinary sense.  That is, it is 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”.[5] A determination of whether someone is of good character necessitates the “consideration of an aggregate of qualities”.[6] Further, the “enduring moral qualities” of which good character speaks “must be demonstrated objectively over a sufficient period”. The length of time to be considered is not specified; rather, it turns on the circumstances of the individual case.[7]

[5] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 (Lee J).

[6] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald).

[7] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] (Senior Member Toohey).

1. The Minister adopted the Australian Citizenship Instructions (“ACIs”) to provide guidance to decision-makers on the scope and exercise of their powers under the Act. Most important for present purposes is Chapter 10, which deals with assessments of character.

1. The ACIs are not the only policy document that is relevant to the facts of this case.  The Minister’s Department issued the Australian Citizenship Policy (“ACP”) on 1 June 2016.  The ACP replaced the policy guidance content previously provided by the ACIs.  The relevant part of the ACP is Chapter 11.

1. The difficulty that arises is that the Applicant lodged his application before publication of the ACP (ie. while the ACIs were still the official policy guidance), but the hearing was held, and the decision was reserved, on 19 August 2016.   The decision of the Tribunal in HSXY and Minister for Immigration and Border Protection[8] provides some guidance on this item.  In that decision, Senior Member Cotter noted that:

   … notwithstanding the introduction of the ACP, the ACP and ACIs operate side by side as policy and operational instructions.  In the event of inconsistency with respect to policy guidance, the ACP is to be preferred. [9]       

   This point was also considered by Senior Member Poljak in the matter of Tsai and Minister for Immigration and Border Protection.[10] Relevantly, SM Poljak observed:

   …. I am considering this matter afresh (de novo) and although the ACIs were the relevant policy guidance at the date the decision was made, the relevant policy from 1 June 2016, and at the time of the hearing, was the Citizenship Policy [ACP].  In any event, whichever policy I consider makes very little difference to the decision I am tasked to make.  Both documents are similar on the aspects relevant to this matter.[11]

   As there is no inconsistency between the two instruments on the point in question here, however, the point is moot and I will refer to provisions in both the ACP and ACIs where need be.

[8] [2016] AATA 560.

[9] Ibid, [12].

[10] [2016] AATA 411.

[11] Ibid, [7].

1. As the instruments are a reflection of government policy, neither is binding on this Tribunal. That does not mean, however, that they should not be applied by this Tribunal. Indeed, there is considerable authority suggesting this Tribunal should apply the government’s policy unless there is cogent reason to the contrary.[12]  No such reason has been brought to my attention, so I will apply the ACP and ACIs here.

[12] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644 – 645 (Brennan J).

1. The ACP defines “good character” as:

   …. the enduring moral qualities of a person, and is an indication of whether an applicant is likely to respect and obey the laws of Australia and other commitments through the pledge should they be approved for citizenship.[13]

[13] Australian Citizenship Policy, Chapter 11 - Character, page 145 of 237; correspondingly found in Australian Citizenship Instructions, Chapter 10 - Character, at paragraph 10.3.1.

1. On the point of “good character” as a concept necessarily involving “enduring moral qualities”, the ACIs separate “moral” in this context from any religious connotations it may otherwise have.  Instead, it is defined as encompassing:

   ·characteristics which have been demonstrated over a very long period of time

   ·distinguishing right from wrong

   ·behaving in an ethical manner, conforming to the rules and values of Australian society.[14]

The requirement of good character goes to the core of the Applicant.  Thus, the Applicant’s behaviour is to be regarded as a manifestation of his essential characteristics.  Further the ACIs note:

This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting qualities that are evident before their visa application and throughout their migration and citizenship process. [15]

[14] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.3.1.

[15] Ibid.

1. The ACIs then set the characteristics that an applicant of good character would have, including amongst other things:

   ·respect and abide by the law in Australia and other countries;

   ·…..

   ·not be violent…… and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance).[16]

[16] Ibid, paragraph 10.3.4.

1. In addition to the above, paragraph 10.5 of the ACIs establishes a framework within which “good character” decisions should be made.  Paragraph 10.5.2 of the ACIs provides a non-exhaustive list of factors for decision makers to take into account in making this assessment.  The precise weighting of the factors is dependent on the circumstances of the case.

1. For present purposes, the following factors are pertinent:

   “If the Applicant has committed an offence, was it serious or minor …..

   Minor offences include …..

   ·traffic offences which have been included in a criminal record;

   ·offences which do not lead to a conviction or sentence …..

   How many offences have been committed?  Was it a one off or is there a pattern of criminal behaviour?

   ·a pattern or behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the Applicant may not “uphold and obey” the law if citizenship is conferred on them…..”[17]

[17] Ibid, paragraph 10.5.2.

1. There are two sets of considerations that are most relevant to the present facts.  First, one should look to the Applicant’s behaviour to assess why they might not be of good character.  Second, one should look to mitigating factors to establish if, in spite of their behaviour, the Applicant might be of good character regardless.[18]  The assessment of these factors must not be made in accordance with the decision maker’s own personal standards. Rather, it is to be judged by community standards.  In making this consideration a decision maker must, by examining these various factors, come to a conclusion based on the aggregate of qualities shown by the Applicant. Ultimately, the decision maker “needs to look holistically at an Applicant’s behaviour over a lasting or enduring period of time.[19] The amount of time considered to be “lasting” or “enduring” depends on the merits of the case.[20]

   [18] Ibid, paragraph 10.5.2.

   [19] Ibid, 10.5.4; and Australian Citizenship Policy, Chapter 11 – Character, page 150 of 237.

   [20] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.4.

CONSIDERATION

The Pattern of Offending:  2011-2016

1. At the hearing, the Applicant admitted the totality of his criminal and traffic history.  He conceded the possibility that his offending could be construed as conduct that was not consistent with a standard of behaviour expected by the Australian community.

1. It is not disputed that the Applicant’s offending would amount to a pattern of offending constituting a disregard for the law. The behavioural elements of the Applicant’s offending form April 2011 until April 2016 are clearly matters relevant to the issue of his character.

1. To my mind, the Applicant’s offending ought be considered from two perspectives.  First, the potential adverse (indeed catastrophic) impact those offences he specifically committed may have had on other road users and the community at large. Second, a comparison between the impression to be gleaned from his committed offences – taken individually, compared to an examination of his entire pattern of offending while operating a motor vehicle.

The potential adverse impact arising from individually committed offences.  

1. I shall cite two examples. The first example relates to the conviction on 26 May 2011 for “dangerous operation of a motor vehicle” pursuant to subsection 328A(1) of the Criminal Code 1899 (Qld). I make specific reference to the circumstances of that offence. I am troubled by the recreational basis of this offence and the flippancy with which it was addressed with attendant police officers.

   A witness observed:

   “….at about 10.20pm I was travelling along Kessels Road towards Garden City when I saw the car come around the corner from the servo.   I saw that they were taking the corner a bit too [sic] fast and the back end started to drift out when they got to the outer [sic] lane and they started fish tailing.  When he got to the lights I saw he was trying to correct the fish tail.  Then he slid completely sideways [sic] collecting the traffic light and stopping just before us.  I then got out to help and they were just laughing”. [21]

   [21] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 13 July 2016, Attachment B, pages 13.

2. Another witness provided a more detailed version of what he saw:

   “At about 10.20pm we were in the car, I was in the rear seat travelling on Kessels Road towards Garden City. The car that crashed was travelling towards Mains Road.  I saw him speeding and it looked like he was losing control.   He looked like he was fish tailing and then he made a sharp turn into Grout Street.   I didn’t see any indicators on for the vehicle to turn.  All of a sudden the car hit the kerb and lifted and hit a pole, the traffic light.  The car flipped and it landed about 30m away from our car.  The driver in our car stopped fast.  I saw another vehicle stop and I saw a male driver of that car get out and ran towards the crashed vehicle. I ran over with him. The male person pulled them out as I opened the door on the driver’s side. There were two people in the car. They were two males and they looked about 17 years old.  They had scratches on their legs and knees.  I saw blood.   They were conscious and both males were laughing when they were out of the car.   I don’t remember them saying anything.  They sat on the side of the kerb while my friends called an ambulance.  We all waited until the ambulance turned up.  The ambulance took the two males away.   I saw the driver with a neck brace on.  I was sitting behind the passenger’s seat.”[22]

   [22] Ibid, page 14.

1. The interview between the Police and the Applicant’s passenger points to a likely material factor behind the Applicant’s irresponsible driving:

   Q:     Ok, so can you just tell me what happened?

   A:     We were just driving to Hungry Jacks and he just lost control and the car just turned over and hit the pole.

   Q:     How did he lose control?

   A:     I think it was over speeding.

   Q:     Over speeding?

   A:     Yes.

   Q:     Ok did you know why he was speeding?   Be honest mate? 

   A:     Yeah I think it was because we were watching the movie.

   Q:     What movie were you watching?

   A:     Fast and the furious so he just wanted to, I think, drive fast.

   Q:     Ok so do you know how fast he was going?

   A:     Maybe more than 100 (km/h).[23]

   [23] Ibid: page 15.

2. There is, to my mind, nothing to be said in mitigation for such irresponsibility in the management and control of a motor vehicle.    The “Garden City” referred to by the abovementioned witness is a major Westfield regional shopping complex comprising circa 440 retail operators and service providers.  The Applicant may assert this incident occurred in the relatively quiet hour of circa 10.15pm.  No credence can be allocated to that suggestion.   Garden City, via its “Town Square” section is a major entertainment and dining precinct containing multiple restaurants and a 16 screen cinema complex.

3. The intersection at which this incident occurred (Grout Street and Kessels Road) is barely 200 metres from Westfield Garden City.   It is, to my mind, entirely reasonable to assume patrons to its entertainment precinct were in the process of driving home from the facility.  Therefore, factors such as driving at 100 kilometres per hour (in a 60km zone) in a busy area with no emergent reason to do so while seeking to imitate fast-driving conduct he had just witnessed in a popular film, clearly point to an incapacity in this Applicant to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned.

1. A second example of a potential adverse impact arising from offences individually committed by this Applicant derives from the repeated offences of unlicensed driving and of driving an uninsured vehicle. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving of an unregistered/uninsured vehicle for other road users. Whilst professing no expertise in the compulsory third party insurance legislation relevant to this State, it is common knowledge that a victim who suffers personal injury at the hands of an unlicensed and uninsured driver, will most likely be denied the benefit of compulsory third party insurance cover for his/her damages. Such a victim could only have recourse to the Applicant’s personal capacity to meet the quantum of any claim for damages for personal injuries.  Again, for the Applicant to ignore  this obvious and serious consequence of his conduct for other road-users clearly demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of Australian society as they relate to the ownership and operation of a motor vehicle.

The impression to be formed from the totality of this Applicant’s offending.   

1. I agree with the Respondent’s following contentions:

   (i)Although (absent the dangerous driving offence) his offences may be considered “minor”, when viewed holistically, the similarity and repetitious pattern of offending, with its attendant recklessness and indifference towards Court Orders and road laws more than outweighs the nature of the offences[24] and, indeed, “go to the essential safety of the community”.[25]

   (ii)There is similarity between this Applicant’s history of driving offences and that of the Applicant in the recent decision of this Tribunal in the matter of Tsai and Minister for Immigration and Border Protection [2016] AATA 411. The critical point to be derived from the Tsai decision that can, I think be superimposed over the present case is that the Applicant has engaged in a pattern of offending which is indicative of a disregard for Australian law and that he has “not displayed an adequate period of compliance with Australian Law”. [26]

   (iii)The Applicant’s driving privileges were restored to him on 17 July 2015 following a 2 year disqualification which carried a suspended 4 month term of imprisonment for the entire duration of the disqualification period. The severity of this sentence is notable.  It was not a disqualification simpliciter.   Although not obliged to do so, the Court felt compelled to suspend the 4 month custodial term for the entire period of disqualification. This has not resonated with the Applicant because he has offended since 17 July 2015. Once for unlawful lane filtering
   (1 September 2015) and once for using a defective vehicle (1 April 2016).

   [24] See Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, paragraph 27; see also Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].

   [25] See Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16]; and Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7].

   [26] See Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, paragraph 29.

2. I consequently find that I cannot be satisfied this Applicant has demonstrated an adequate period of compliance with the law or that he has reformed his pattern of offending to consider him of good character for the purposes of section 21(2)(h) of the Act.

MITIGATING FACTORS?

1. Any assessment of character has to be weighed against any mitigating factors that need to be taken into account. They include:[27]

   [27] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.2.

   ·The length of time that has elapsed between the date of the relevant conduct or offence and the application for citizenship.

   ·Whether the Applicant has accepted responsibility and shown remorse for his conduct.

   ·How has the Applicant behaved since completion of his period of disqualification from driving?

   ·Has the Applicant rehabilitated himself?

   ·What was the Applicant’s age during the period of offending?

   ·Were there any extenuating circumstances around the offending?

   ·Is there evidence of employment and stable family life and/or community involvement?

   ·References:[28] do they shed light on the Applicant’s character?

   [28] Ibid, paragraph 10.6.5 – References.

The Length of Time

1. The long pattern of offending necessarily requires the passage of a sufficient amount of time before one can be satisfied that the person is now of good character.   As observed by Senior Member Toohey:

   “Time of itself is not enough.  The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period.  How long that will be will depend on all the circumstances of the case.

   ……….

   I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes.  It counts in [the Applicant’s] favour that nearly six years have passed without any further offences.  However, there is not in my view sufficient evidence yet of his good character”.[29]

   [29] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 at [67] and [71] (Senior Member Toohey).

2. On the present facts, the Applicant:

   (i)was last before the Court in July 2013;

   (ii)completed the two year period of disqualification (with accompanying wholly suspended 4 month term of imprisonment) in July 2015;

   (iii)re-offended in September 2015; and

   (iv)re-offended in April 2016.

1. For reasons stated above, I find that the repetitious nature and 5 year duration of the Applicant’s offending is of greater relevance than (a) the period of time since the last offence was committed (that being April 2016); or (b) the period since the expiry of the 2 year period of disqualification imposed upon him (that being July 2015); and (c) the period since his apparent but unproven rehabilitation from a propensity to offend while managing and controlling a motor vehicle.[30] 

   [30] See Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 13 July 2016, Attachment M, pages 66 – 68.

Acceptance of Responsibility, Demonstration of Remorse and Steps to Rehabilitation

1. To the Applicant’s credit, at the hearing, he readily accepted the nature and extent of his offending.  He did not adopt an uncompromising attitude when the trend of the evidence adduced and submissions made on behalf of the Respondent pointed to a necessary modification of his contentions as expressed in his correspondence to the Minister’s delegate.[31] Subject to my following comments, the Applicant’s completion of the “Queensland Traffic Offenders Program” in June 2013 also goes to the Applicant’s credit.  I will  say three things about that rehabilitation:

   (i)The abovementioned program appears to have been completed for the primary purpose of preparing for the matter that came before the Beenleigh Magistrates Court on 17 July 2013.  I think it is notable that the Applicant felt compelled to complete this program as a result of a pending Court appearance rather than doing  so on his own volition.

   (ii)The Applicant completed the above program almost three and a half years ago.  It is surprising that the Applicant did not see fit to complete another program – something say in the nature of a defensive driving course (or equivalent) – closer to the hearing of this application.

   (iii)Has the Applicant really been rehabilitated?  It is a difficult conclusion for me to draw given (a) the three and a half year period since the abovementioned program was completed and (b) the further offending in September 2015 and April 2016.

   [31] Exhibit 4, T-Documents, T1 pages 19 – 22.

   The Applicant’s conduct post his disqualification from driving

2. The period of disqualification concluded in mid July 2015.  Shortly after restoration of his driving privileges, the Applicant reoffends (in September 2015), and again, in April 2016.

1. It is not sufficient for the Applicant to contend the September 2015 and April 2016 offences are minor or “low level”.  Arguably, they may be. The critical point about them is they lead a decision maker in my position to the conclusion that the essence of this Applicant (insofar as the “good character” component of this Application is concerned):

   (i)is such that his basic predisposition towards the ownership, management and control of a motor vehicle has not, to any appreciable extent, been modified;

   (ii)leads him to still be incapable of distinguishing right from wrong.  His September 2015 offence may, perhaps, be attributable to a momentary lapse or inattention. However, the April 2016 offence is, to my mind, more telling.   The condition of a motor vehicle is either both compliant and roadworthy or it is not. There is clear evidence of the Applicant’s interest in automotive matters.[32]  It is reasonable to presume this Applicant would surely have known the basic mechanical state of his vehicle in April 2016.  Therefore, the unfortunate conclusion is that this Applicant has difficulty in distinguishing right from wrong or, more likely, refuses to conform and orientate his behaviour in line with the rules and values of Australian society.

   The Applicant’s age during the period of offending; his employment history and/or community involvement

   [32] Exhibit 4, T-Documents page 109-110 – Letter of Patrick Keating; and Exhibit 9, Letter/Email from Ken Roberts, dated 17 August 2016.

   NB: The reference of Mr Ken Roberts clearly refers to the Applicant’s “…. love for ….. working on cars”.    Likewise the reference of Mr John Keating refers to the Applicant’s “….. interest in motor sports and bikes”.

2. The Applicant committed his first driving offence when he was 18 years of age.  He committed his most recent driving offence at the age of 23.  He has since turned 24.  Any positive assessment of his behaviour is predicated on evidence of his maturity since commission of the offences. Evidence of any such maturity is not apparent to me and I accordingly accept the Respondent’s contention that this Applicant has not demonstrated he has matured with age or that his pattern of offending is not a reflection of his current character.

1. The Applicant is a diligent worker having completed all study and practical training necessary to secure Registered Nurse status.  He seems well regarded by a range of work colleagues and otherwise complies with ongoing training and associated requirements relating to his work.  Driving issues aside, he has at no time been an impost or burden on the Australian community since his arrival from Fiji in 2008 as a 15 year old.

1. He is community minded.  At the hearing, the Applicant tendered a news report[33] about a recent motor vehicle collision in which a 52 year old victim received cardiopulmonary resuscitation (“CPR”) from a “passerby” that served to stabilize the victim until emergency services arrived.  Although not named in the report, the Applicant said in evidence that he was the passerby who administered the CPR. I accept that evidence. Plainly, there would be no requirement for this review if the Applicant’s driving history were as exemplary as his work history and his willingness to contribute to the community around him.

   [33] Exhibit 2.

Do these References Assist the Applicant?

1. The Applicant’s character references can be grouped into two categories:

   (i)Those tendered at the hearing comprising:

   ·         Mrs Rebecca Bone,  work colleague, (dated 9 June 2016);[34]

   ·         Mrs Margaret Girle,  housemate, (dated 11 June 2016);[35]

   ·         Mrs Tracey Churchill,  work supervisor (dated 20 June 2016);[36] and

   ·         Mr Ken Roberts, automotive spare parts business proprietor (dated 17 August 2016). [37]

   (ii)Those filed in support of the application for Australian citizenship by conferral:

   ·         Mr John Patrick Keating, former work colleague (dated 20 February 2016); [38] and

   ·         Mrs Wendy Helen Evans, former work supervisor, (dated 22 February 2016). [39]

[34] Exhibit 8.

[35] Exhibit 7.

[36] Exhibit 6.

[37] Exhibit 9.

[38] Exhibit 4, T-Documents, pages 109 – 110.

[39] Exhibit 4, T-Documents, page 112.

1. Although none of the above references are in the form of a statutory declaration, in addition to the Applicant’s evidence, each of Mrs Bone, Mrs Girle, Mrs Churchill and Mr Roberts provided oral evidence by telephone.

1. Taken collectively, each of the four references tendered at the hearing (plus those of Mr Keating and Mrs Evans):

·are provided with knowledge of the Applicant’s offending;

·attest to his diligence in the workplace;

·attest to his friendly and supportive disposition;

·otherwise carry a tone that the Applicant is a likeable person.

1. Notably for present purposes, Messrs Roberts and Keating make clear reference to the Applicant’s knowledge of and interest in automotive matters.

1. The question for the Tribunal is:  how much weight can be allocated to these references as factors mitigating against a finding that this Applicant is not of good character for the purposes of section 21(2)(h) of the Act?

1. Candid though the references may be, I consider that the Applicant’s pattern of offending and the extended period over which his offending has occurred outweigh the positive and subjective comments of his referees.  The Respondent’s submissions[40] make reference to the comments of the learned Tribunal Member in Apire and Minister for Immigration and Border Protection, a case involving an Applicant’s pattern of offending, involving disobeying traffic laws, outweighed positive character references attesting to the Applicant in the community.  The Tribunal  said:

“I accept that Mr Apire undertakes good works within his community, and he struck me as a well-motivated person in that regard.  Those behaviours point to good qualities in his character.

But his record of repetitive offending, albeit not involving serious deceit or crimes occasioning actual harm, points to another aspect of his character which has led him to flout Court orders, disregarding the law and any potential harm that may result from his behaviour”[41].

[40] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 13 July 2016, paragraph [37].

[41] Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [20]-[21].

I accept and endorse those comments for present purposes.

Extenuating Circumstances?

1. The ACI’s consider extenuating circumstances to include duress or periods of psychological disturbance including the effects of medication, but not including under the influence of recreational drugs.[42] I find no such circumstances of extenuation in the present case.  Similarly, the evidence did not allude to or disclose any emergent reason or dire circumstances warranting or explaining this Applicant’s pattern of offending.

   [42] See Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.2 – Mitigating factors.

A final point

1. Any finding that this Applicant is not of good character now is not determinative of a finding that he is of good character in the future.

2. As is recorded earlier in this decision, two primary conclusions can be formed from the evidence:

   (i)when viewed holistically, the similarity and repetitive pattern of offending, with its attendant recklessness and indifference towards Court orders and road laws more than outweighs the nature of the offences, confronts the “essential safety of the community”[43] and confirms that – for the purposes of this application – the Applicant cannot be considered of good character for the purposes of section 21(2)(h) of the Act; and

   (ii)his persistent pattern of offending (as recently as April 2016) also indicates a disregard for Australian law and confirms he has “not displayed an adequate period of compliance with Australian law”.[44]

   [43] Apire and Minister for Immigration and Borer Protection [2014] AATA 193.

   [44] Tsai and Minister for Immigration and Border Protection [2016] AATA 411 at [34] (Senior Member Poljak).

CONCLUSION

1. I am therefore not satisfied that the Applicant was of good character under section 21(2)(h) of the Act. Consequently, I do not believe he is presently eligible to become an Australian citizen.

1. I accordingly affirm the decision under review.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis

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

Associate

Dated 17 October 2016

Date of hearing	19 August 2016
Applicant	Self - In person
Advocate for the Respondent	Melissa de Jongh
Solicitors for the Respondent	Clayton Utz