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

[2020] AATA 177

Siddons and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 177 (14 February 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2261

Re:Gary Andrew Siddons

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Member I Fletcher

Date:14 February 2020

Place:Perth

The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 12 April 2019 is affirmed.

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

Member I Fletcher

CATCHWORDS

CITIZENSHIP – good character – abide by law in Australia and other countries – criminal record – driving and motor vehicle offences – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21, 21(1), 21(2), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 21(2)(h), 24, 24(1), 24(1A), 52(1)(b)

CASES

Apire And Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 156
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Safar and Minister for Immigration and Border Protection [2015] AATA 503

SECONDARY MATERIALS

Citizenship Policy

REASONS FOR DECISION

Member I Fletcher

14 February 2020

DECISION UNDER REVIEW

1. By application dated 27 April 2019, Mr Siddons (the Applicant) sought review of the decision of a delegate of the Respondent (Minister) made on 12 April 2019 to refuse the grant of Australian citizenship by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (Act). The delegate was not satisfied that the Applicant was of good character for the purposes of s 21(2)(h) of the Act.

2. The application for review has been made pursuant to s 52(1)(b) of the Act which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of a decision made under s 24 of the Act.

   ISSUES

3. The issue before the Tribunal is whether the Applicant is of good character for the purposes of s 21(2)(h) of the Act.

   BACKGROUND

4. Mr Siddons (the Applicant), a citizen of the United Kingdom, first arrived in Australia on 30 August 1965 on a permanent visa (T10/61). The Applicant currently holds a subclass BB 155 Resident Return Visa.

5. On 23 February 2017, the Applicant lodged an application for citizenship by conferral pursuant to s 21 of the Act (T4). The Applicant disclosed that he had a criminal record, answering “Yes” to a question which asked whether he had “been convicted of, or found guilty of any offences… including traffic offences which went to court” (T4/22). He gave details as “DUI x 3, unlawful use of a motor vehicle”. The Applicant’s also answered “Yes” to a question asking whether the Applicant had “ever been confined to a prison…” stating “6 months in jail when I was 20 years old” (T4/22).

6. On 5 January 2018, the delegate wrote to the Applicant to invite his comment on adverse information. The delegate attached the Applicant’s CRIMTRAC report (T6/52). The Applicant did not respond to that invitation to comment.

7. On 5 April 2018, the delegate wrote to the Applicant again to seek his comment and gave him a further seven days to respond (T9/56). The Applicant, again, did not respond.

8. On 12 April 2019, the delegate refused the Applicant’s application for citizenship. (T10) The delegate noted that no response had been received to the invitation to comment on 5 January 2019 and 5 April 2019 (T6/52; T9/56), and therefore the delegate did not have any evidence from the Applicant regarding his character including any character references. In refusing the application, the delegate noted that the lack of response to the invitation to comment meant that she was unable to give any weight to any possible mitigating or exceptional circumstances which may exist. The delegate ultimately concluded that she was not satisfied that the Applicant was a person of good character. (T10).

9. On 27 April 2019, the Applicant applied to the Tribunal for review of the delegate’s decision (T2).

10. The Applicant failed to appear in person at the Tribunal hearing which was scheduled to take place on Tuesday 6 February 2020. On being contacted by phone, the Applicant requested that he be able to participate by phone. The Tribunal agreed to this request. The Respondent was represented by Ms Jones-Bolla from Sparke Helmore Lawyers.

11. The Applicant has an extensive history of offending dating back to 1977. The majority of offences are traffic-related and include speeding, driving under the influence of alcohol and driving without authority, which have resulted in various fines and licence disqualifications. He has also been sentenced to terms of imprisonment for unlawfully interfere parts – motor vehicle, unlawfully drive motor vehicle, unauthorised use of a motor vehicle and stealing. The Applicant’s criminal history is reproduced below as outlined in the Tender Bundle at 79-83:

Date	Offence	Result
18.01.1977	No motor drivers licence	Fine    $20,    3    month MDL disqualification
18.01.1977	Unauthorised use of a motor vehicle	Fine    $200,   3   month MDL disqualification
25.11.1977	No motor drivers licence	Fine $10
15.12.1977	Unlawfully interfere parts – motor vehicle	5 Counts Counts 1-2 - 1 month imprisonment cumulative each Counts 3-5 - 1 month imprisonment concurrent each
15.12.1977	Unlawfully drive motor vehicle	12 Counts Counts 1-4 - 3 months imprisonment cumulative each Counts 5-12 - 3 months imprisonment concurrent each
15.12.1977	Unauthorised use of motor vehicle	1 month imprisonment
15.12.1977	Stealing	8 Counts Counts 1-5 - 1 months imprisonment concurrent each Counts 1-4 - 3 months imprisonment cumulative each
15.12.1977	False name and address	Fine $10
15.12.1977	No motor drivers licence	Fine    $10,    3    month MDL disqualification
02.07.1979	Driving under the influence	Fine    $200,   6    month MDL disqualification
10.11.1979	No motor drivers licence – under suspension	Fine    $200,   9    month MDL disqualification
10.11.1979	No seat belt (driver)	Fine $20
27.01.1988	Speeding by more than 10km/hr but less than 20km/hr	Fine $45
16.03.1988	Speeding by more than 10km/hr but less than 20km/hr	Fine $45
27.04.1988	Speeding by more than 10km/hr but less than 20km/hr	Fine $40
01.06.1988	Speeding by more than 20km/hr but less than 30km/hr	Fine $60
04.10.1988	Excess 0.08%	Fine    $400,   6    month MDL disqualification
22.08.2006	Excess 0.08%	Fine    $800,   6   month MDL disqualification
17.03.2009	No     authority     to     drive     –     fines suspension	Fine $200
21.02.2014	Exceed speed limit in a speed zone	Fine $150
11.09.2015	No     authority     to     drive     –     fines suspension	Fine $300

MATERIALS BEFORE THE TRIBUNAL

1. At the hearing, the Tribunal accepted the following documents into evidence:

   (a)Respondent’s Statement of Facts Issues and Contentions (SOFIC) including Annexure A – Applicants Criminal History, dated 25 October 2019 (Exhibit R1);

   (b)Section 37 documents (T Documents numbered T1 to T11 and comprising 81 pages) (Exhibit R2);

   (c)Respondent’s Tender Bundle (comprising records of Western Australia Police and Department of Transport (WA)), received 18 October 2019 (Exhibit R3); and

   (d)Department of Immigration and Border Protection CPI Assessing Good Character under the Citizenship Act Issued 17/04/2019 (Exhibit R4).

   LEGISLATIVE FRAMEWORK

2. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that if a person makes an application under s 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under ss 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

3. The relevant eligibility criteria for the current matter are those set out in s 21(2) of the Act. In particular, s 21(2)(h) of the Act provides that the Minister must be satisfied that the person is of good character at the time of the Minister’s decision on the application.

4. The term “good character” is not defined in the Act, but it is addressed in some detail in the Citizenship Policy (Policy). The Policy provides guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, will generally apply policy such as that contained the Policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J).

5. Chapter 11 of the Policy defines “good character” for administrative purposes and provides a framework for assessing an applicant under the provisions of the Act. It is noted therein that the concept of “good character” refers to a person’s “enduring moral qualities” including the “characteristics which have been demonstrated over a very long period of time” (Policy, p 145). An applicant’s behaviour is considered to be a “manifestation of their essential characteristics” in this regard (Policy, p 145; T11/70).

6. A decision maker may be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship process (Policy, p 146; T11/71).

7. Relevantly, the Policy provides that a person of good character would (Policy, p 147; T11/72):

   Respect and abide by the law in Australia and other countries

   …

   not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example reckless exhibited by negligent or drink driving, excessive speeding or driving without license or insurance)

8. The Policy also provides a framework by which decision makers are able to “weigh up” a character decision (Policy, pp 149-150; T11/74-75). Decision makers are required to consider:

   (a)whether a person of good character would have behaved the way the applicant did;

   (b)what evidence is available to demonstrate that the applicant has upheld and obeyed the law;

   (c)whether the applicant has behaved in accordance with Australia’s community standards; and

   (d)whether the applicant shares Australia’s democratic beliefs and respects its rights and liberties.

9. In so doing, the decision maker should look holistically at the Applicant’s behaviour over a lasting or enduring period of time (Policy, p 150; T11/75).

   CONSIDERATION

10. The Applicant’s criminal history demonstrates repeated offences over a lengthy period of time of some 38 years, ranging from traffic offences such as driving under the influence and speeding, to more serious offending such as stealing, unauthorised use of motor vehicle, unlawfully drive motor vehicle and unlawfully interfere parts with motor vehicle that resulted in periods of imprisonment (T6/51-52). The severity and regularity of his offending show a pattern of criminal behaviour and disregard for the law and should, accordingly, be viewed as very concerning.

11. At the hearing, the Tribunal noted that the Applicant was dismissive of his record of offences and stated that he did not declare on his application for citizenship all the offences that he had committed because “I knew the department would have this record”.

12. The Respondent contended that the Applicant’s pattern of disobeying traffic laws over an extended period of time demonstrated a flagrant disregard for the law and for community safety. Notably, amongst other traffic offences, the Applicant has been convicted three times for driving under the influence and six times for speeding. This Tribunal has on many occasions emphasised that an applicant’s extensive traffic-related offending can be an indicator that a person is not of good character.[1]

    [1] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347 [49]-[55]; Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 156; Safar and Minister for Immigration and Border Protection [2015] AATA 503 [38]; Apire And Minister for Immigration and Border Protection [2014] AATA 193.

13. The Tribunal noted that the Applicant has continued to commit similar traffic-related offences for almost 40 years, more recently over the eleven years from 2006 and 2017 having had eighteen traffic offences. This evidence is based on the summonsed records from the Department of Transport (WA) (Tender Bundle 106).

14. The Applicant has also tried to minimise his offending by claiming that his drink driving was “two thousands of one percent over the limit on both occasions and it was just a misjudgement on my part” (T2). Contrary to the Applicant’s submission, the Applicant’s blood alcohol level was actually above 0.08g of alcohol per 100ml of blood; a high level reading that results in automatic licence disqualification for six months and liability to be arrested without a warrant. At the Tribunal hearing, the Applicant continued to deny the fact that he was well over the limit for his driving under the influence offences, despite the Tribunal making reference to the Apprehension Information from the Western Australian Police Department dated 3 July 1979 where the result of the breathalyzer test showed a reading of 0.155% (Tender Bundle 48).

15. The Tribunal notes the severity of this penalty which reflects the objective seriousness of this offence. The Applicant’s lack of insight and remorse further reinforces that he is not of good character.

16. The Applicant has otherwise not produced any evidence to demonstrate that he is of good character, such as evidence of his community engagement and employment or letters of reference despite claiming that “anyone who has had dealings with him” could attest to his moral qualities (T2/7).

    CONCLUSION

17. Having regard to the Applicant’s long history of offending and lack of insight into his conduct, and the enduring absence of moral qualities demonstrated by the Applicant, the Tribunal is not satisfied that he is of good character. It is important to note, as has been held by a Deputy President DP Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8] that:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.

    DECISION

18. The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 12 April 2019 is affirmed.

I certify that the preceding 29 (twenty-nine) paragraphs are
a true copy of the reasons for the decision herein of Member I Fletcher

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

Associate

Dated: 14 February 2020

Date(s) of hearing:	4 February 2020
Applicant:	In person
Counsel for the Applicant:	Mr Gary Andrew Siddons
Counsel for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers