Singh and Minister for Immigration and Border Protection (Citizenship)
[2019] AATA 1406
•24 June 2019
Singh and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1406 (24 June 2019)
Division:GENERAL DIVISION
File Number: 2017/3835
Re:Karanjeet Singh
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:24 June 2019
Place:Melbourne
The Tribunal affirms the decision under review.
.......................[sgd].................................................Senior Member R. Pintos-Lopez
CITIZENSHIP – application for citizenship by conferral – where citizenship application refused – good character requirement – driving offences – drink driving – driving whilst disqualified – property damage – minor traffic infringements – whether applicant of good character – mental and moral qualities – applicant’s failure to disclose certain offences on application for citizenship – applicant’s untruthfulness in witness statement – applicant’s history of offending – applicant not of good character – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)Migration Act 1958 (Cth)
Cases
Al Temimi v Minister for Immigration and Border Protection, Re [2014] AATA 97
Beyan v Minister for Immigration and Border Protection, Re [2015] AATA 256
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs, Re [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Lo and Minister for Immigration and Border Protection, Re [2016] AATA 579
Minister for Home Affairs v G [2019] FCAFC 79
Patel and Minister for Home Affairs, Re [2018] AATA 3466
Prasad and Minister for Immigration and Ethnic Affairs, Re [1994] AATA 326
Singh v Minister for Immigration and Citizenship [2012] FCAFC 12Zheng v Minister for Immigration and Citizenship, Re [2011] AATA 304
Secondary Materials
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Department of Immigration and Citizenship (Cth), Australian Citizenship Instructions,
10 September 2016REASONS FOR DECISION
Senior Member R. Pintos-Lopez
24 June 2019
The Applicant seeks review of a decision made by a delegate of the Respondent, the Minister for Immigration and Border Protection, now the Minister for Home Affairs (also referred to herein as the “Minister”) pursuant to s 24(1) of the Australian Citizenship Act 2007 (Cth) (the “Act”), dated 14 June 2017 (the “reviewable decision”), to refuse to approve the Applicant becoming a citizen. The decision was made on the basis that the delegate was not satisfied that the Applicant was of “good character” as required by
ss 21(2)(h) and 24 of the Act.For the reasons that follow, the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is an Indian citizen born on 22 October 1988.
On 24 January 2008, the Applicant arrived in Australia and was initially granted a temporary student Higher Education Sector visa (subclass 573). On 1 November 2013, he was granted a permanent Partner (Residence) visa (subclass 801).
On 13 September 2016, the Applicant applied for Australian citizenship by conferral.
On 13 February 2017, the Respondent invited the Applicant to comment on adverse information relating to his character. This information included a number of criminal offences for which the Applicant had attended court. On 10 March 2017, the Applicant provided material in response to the Respondent’s request including a personal statement, a psychological report prepared by Dr Raul Foglia dated 18 May 2015 and four character references.
On 14 June 2017, a delegate of the Respondent wrote to the Applicant to advise him that his application for Australian citizenship had been refused under the Act. The delegate considered his application against the requirements set out in s 21(2) of the Act finding that the Applicant did not satisfy the good character requirement.
On 30 June 2017, the Applicant applied to the Tribunal for review of the delegate’s decision.
In support of the present application, the Applicant provided a number of witness statements and a psychological report. In addition, a number of witnesses gave oral evidence at the hearing. The Tribunal also had before it the Statement of Facts, Issues and Contentions of the Applicant and of the Respondent, and a volume of documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
The Applicant’s offending
The Applicant’s prior offending in the period from 2009 until 2014 is of significance in this application. A record entitled “Check Results Report” prepared by Crimtrac, sets out the Applicant’s disclosable court outcomes as at 30 May 2017. It provides that:
(a)on 4 May 2011, the Applicant was convicted in the Magistrates’ Court of driving whilst disqualified and was sentenced to 3 months imprisonment, which was suspended with an “operational period” of 24 months;
(b)on 5 May 2011, the Applicant was found guilty in the Magistrates’ Court of intentionally destroying property. He was ordered to pay $500.00 to the Court Fund and $650.00 in compensation, with no conviction recorded; and
(c)on 22 May 2015, the Applicant was convicted in the Magistrates’ Court of breaching an alcohol interlock condition. The matter was adjourned to
21 November 2016. Other documents show that the Applicant was required to comply with a court appointed undertaking during that period.The Respondent’s Statement of Facts, Issues and Contentions provides a summary of the Applicant's Victorian driving record and Victoria Police records obtained under summons in a table as follows:[1]
[1] Respondent’s Statement of Facts, Issues and Contentions, 4.
Date of offence
Court appearance date Offence / incident
Results / comments
6 December 2009
4 January 2010
Exceeding the prescribed concentration of alcohol between .130% - .139%
Car licence or permit cancelled and disqualified for
13 months from
4 January 201021 April 2010
2 June 2010
Driving whilst disqualified
Fined $250.00 and car permit or licence suspended for
12 months from
2 June 20102 December 2010
5 May 2011
Intentionally destroy property
Without conviction, compliance with bond/undertaking, payment to Court Fund of $500.00 and $650.00 compensation
17 December 2010
4 May 2011
Having or exceeding the prescribed concentration of alcohol within 3 hours after driving or being in charge of a motor vehicle
With conviction, fined $1000.00 and car permit or licence cancelled and disqualified for
24 months from
4 May 2011Drive whilst disqualified
3 months imprisonment. Sentence wholly suspended for
24 monthsState false address when requested
With conviction, fined $1000.00
6 February 2014
-
Disobey traffic control signal
3 demerit points
6 September 2014
22 May 2015
Having or exceeding the prescribed concentration of alcohol within 3 hours after driving or being in charge of a motor vehicle
With conviction, fined $1000.00 and car permit or licence cancelled and disqualified for
36 monthsBreaching alcohol interlock licence condition
With conviction, adjourned on own undertaking to be of good behaviour from
22 May 2015 to
21 November 201630 September 2014
-
Exceed speed limit by less than 10 k/h
1 demerit point
The Respondent’s Statement of Facts, Issues and Contentions states that:
(a) the Applicant was caught drink-driving on three occasions ([with court appearances on] 4 January 2010, 4 May 2011, 22 May 2015);
(b) the Applicant has had his licence disqualified three times, and has driven whilst on a disqualified licence;
(c) the Applicant has a number of other infringements on his driving record; and
(d) the Applicant was sentenced, without conviction, for an offence of intentionally destroying property on 5 May 2011.[2]
[2] Respondent’s Statement of Facts, Issues and Contentions, 5.
The Respondent’s Statement of Facts, Issues and Contentions contends that the Applicant is not of good character, having regard to:
(a) his sustained pattern of offending (with two offences in 2010, four offences in May 2011, two traffic infringements in 2014 and an offence in May 2015);
(b) his failure to disclose certain offences on his citizenship application (namely none of his drink driving offences);
(c) the Applicant’s lack of understanding as to the gravity of the offences, insight into or acceptance of responsibility for his offending conduct.[3]
[3] Respondent’s Statement of Facts, Issues and Contentions, 2.
ISSUE
The issue for determination by the Tribunal, is whether it can be satisfied that the Applicant is a person of good character for the purposes of s 21(2)(h) of the Act.
RELEVANT LAW
The requirements for Australian citizenship by conferral are provided in Part 2, Division 2 (Subdivision B) of the Act.[4]
[4] Part 2, Division 1 of the Act provides the circumstances where automatic citizenship may apply, including by birth, by adoption for abandoned children or by incorporation of Territory.
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. The additional subsections of s 21 of the Act provide seven situations in which a person may be eligible to become an Australian citizen each having a set of eligibility criteria which must be satisfied:
(a)General eligibility: s 21(2).
(b)Permanent or enduring physical or mental incapacity: s 21(3).
(c)Person aged 60 or over: s 21(4)(a)(i) or person with hearing, speech or sight impairment: s 21(4)(a)(ii).
(d)Person aged under 18 years: s 21(5).
(e)Person born to former Australian citizen: s 21(6).
(f)Person born in Papua: s 21(7).
(g)Statelessness: s 21(8).
The general eligibility criteria at s 21(2) of the Act are relevant and apply in this application.
Section 21(2) of the Act provides for general eligibility:
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 satisfies the defence service requirement (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.
(Emphasis added.)
Section 24 of the Act grants power to the Minister to make a decision in relation to a person who has made an application under s 21 of the Act:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(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).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
(Emphasis added.)
Section 24(6) of the Act sets out circumstances where an application for Australian citizenship by conferral must not be approved if a person has committed an offence against an Australian law or where there are proceedings for an offence against an Australian law pending in relation to the person.
In Singh v Minister for Immigration and Citizenship [2012] FCAFC 12, the Full Court considered the operation of s 24 of the Act:
… First, the appellant’s assumption that he had an “entitlement” to citizenship is incorrect. Section s 21(5) provided only that a person under the age of 18 years was “eligible” to become an Australian citizen, not entitled to that status. We note also that, pursuant to s 20:
A person becomes an Australian citizen under this subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; …
In other words, the Act itself treated the entitlement to citizenship as being dependent upon a favourable exercise of the power conferred by s 24. Further, the word “must” was frequently used in Div 2 where it was intended that the Minister act in a particular way. See s 17(2), providing that approval “must” be given in the absence of disqualifying factors, and the subsequent subsections which provided that the Minister “must not” give approval. See also subss 24(1), (3) et seq. There were many other examples. There was no express requirement that the Minister “must” approve an application pursuant to s 21. Section 24(1) provided that the Minister must either approve or refuse to approve a person’s application for citizenship. Subsection 24(1A) provided that the Minister must not approve an application in certain circumstances. Subsection 24(2) provided that the Minister “may” refuse to approve such an application.
The appellant places great emphasis upon s 24(2). Such an approach places no weight upon the clear alternatives offered in s 24(1). Other, broader considerations, discussed below in connection with the matter raised in para 2(a) of the appellant’s outline, also militate against this approach. Brennan J said in Drake (No 2) at 642, concerning the relevant provision in that case, that the power was “either to deport or, reciprocally, not to deport”. The s 24 power should be similarly construed. We consider that s 24 conferred power upon the Minister to approve or disapprove, without any presumption for or against either alternative. Section 24(2) simply made it clear that entitlement to make an application did not imply entitlement to approval.[5]
[5] [54]-[56].
The expression “good character” is not defined in the Act but it has been considered by a number of authorities.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Davies, Lee and R D Nicholson JJ, considered an appeal from an application for a business visitor (short stay) visa under s 501 of the Migration Act 1958 (Cth) on the basis that the decision maker was not satisfied that the appellant was of good character. Justice Davies stated:
The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review.
…
It should also be observed that 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 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]
(Emphasis added.)
[6] [8] and [9].
Further, Lee J stated:
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. (See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1090 per Ld Radcliffe at 1128-1129, Ld Denning at 1138.) 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, (see: In Re Davis [1947] HCA 53; (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[7]
(Emphasis added.)
[7] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [19].
The policy documents
The Minister refers to and relies upon certain policy documents in its submissions. Chapter 11 of a policy document of the Respondent entitled “Citizenship Policy” is provided in the T documents (the Policy). Also contained in those T documents is Chapter 10 of a policy document entitled “Citizenship Instructions”.
In Re Lo and Minister for Immigration and Border Protection [2016] AATA 579, the Tribunal stated in relation to citizenship policy documents:
The Department has developed policy in the form of the Citizenship Policy to support the Citizenship Act. …
Decision-makers should generally apply policy such as the Citizenship Policy unless there are cogent reasons not to, such as the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 645 per Brennan J.[8]
[8] [16]-[17].
In Minister for Home Affairs v G [2019] FCAFC 79, the Full Court stated in relation to executive policy:
It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see Drake (No 2) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [24] per Gleeson CJ; Cummeragunga at [159] per Jacobson J...
…an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case”: Drake (No 2) at 641. [9]
[9] [58]-[59].
In relation to s 24 of the Act, their Honours stated further:
First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve a person who has made an application under s 21 becoming an Australian citizen…
The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion… Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64 at [54].[10]
[10] [64]-[65].
The T documents in this application contained chapters of the two policy documents. I have obtained, reviewed and refer to the Policy and the Citizenship Instructions in their entirety rather than restricting my consideration to the chapters provided.
The Policy, which is referred to by the Respondent in this application, states:
The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.[11]
[11] Citizenship Policy, 1 June 2016, 1.
Further, the Policy states:
Citizenship Policy, which is part of the centralised departmental instructions system (CDIS), replaces the policy guidance previously provided in the form of the Australian Citizenship Instructions (the ACIs), which were last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions.
The structure of the Citizenship Policy differs from that used in the ACIs and additional policy clarification and updated policy guidance has been provided throughout.[12]
[12] Ibid.
The Policy provides an overview of the legislative framework:
The Act, which came into effect on 1 July 2007, sets out the conditions under which Australian citizenship may be acquired or lost. The Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act) provide for transitional matters in relation to applications under the old Act. The Australian Citizenship Regulations 2007 (the Regulations) prescribe matters permitted by the Act for carrying out or giving effect to the Act. There are also a number of legislative instruments, instruments of delegation, instruments of authorisation, and a determination made under the Act.
The Acts, the Regulations, instruments, determinations and procedural guidance are published and distributed separately from this policy document.
The Citizenship Policy document provides guidance on the purpose and interpretation of the Act and the Regulations. It also provides additional policy requirements within the framework of the Act.[13]
[13] Ibid, 18.
Chapter 11 of the Policy, which forms part of the T documents, provides:
The Act requires that applicants aged 18 and over who seek to become Australian citizens must be of ‘good character’. Good character is not defined in the Act. The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’.
It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis that an applicant is, or is not, of good character.[14]
[14] Ibid, 144.
In terms of the definition of “good character”, the Policy states:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship (refer to What is good character).
Character considerations under the Migration and Citizenship Acts are not the same and it is possible that an applicant could have passed the migration character test but still not be of good character under the Act (refer to Relationship between citizenship and migration legislation).[15]
[15] Ibid, 145.
The Policy then proceeds to consider the definition of “good character” by reference to various decisions including by reference to the decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, referred to above, and other decisions of the Tribunal including Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Re Zheng v Minister for Immigration and Citizenship [2011] AATA 304 and Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326.
The Tribunal is bound to follow a decision of the Federal Court where that decision is pertinent, as a matter of the correct legal principles enunciated, to the application before the Tribunal. The role of the Court, of course, is to determine the matter it has before it, but, in addition, the Court will, at times, assist and direct the Tribunal by interpreting and clarifying ambiguities in relation to the relevant legislation.
A proper understanding of legislative provisions is central to the functioning of the Tribunal. The Federal Court will correct the decision of a Tribunal that has strayed or acted beyond power. Often it is said the Tribunal has misunderstood its function by misunderstanding the words of a provision.
The roles of the Tribunal and the Court are different, however, in that the Court exercises judicial power granted by statute whereas the Tribunal exercises executive power, also by statute, although it is said, that the manner of exercise of the Tribunal’s power may be quasi-judicial.
Interpreting and clarifying ambiguities in relation to the relevant legislation aside government policy may, at times, bear upon the Tribunal. Government policy poses a particular concern in the exercise of the Tribunal’s power as the nature of that power is executive. The role of executive policy in the Tribunal’s decision-making has long been considered: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Policy does not operate to constrain the proper function of the Tribunal in this application. It is a policy document intended to assist executive decision-making.
The words of the Act are paramount, to be applied in the circumstances of the Tribunal exercising executive power. Material before the Tribunal, such as the Policy, which is intended to assist, is a matter to be taken into account, as the Tribunal considers necessary in the exercise of the power conferred upon it. Accordingly, I have considered and take the Policy into account in this decision.
RELEVANT CIRCUMSTANCES
The Applicant provided evidence in support of his application by, among other things, the filing of witness statements prepared by others and by him. The Applicant and another four witnesses gave oral evidence at the hearing.
The Applicant also provided a psychological report prepared by Dr Raul Foglia dated
18 May 2015, which was prepared for and provided to the Magistrates Court of Victoria, in relation to the Applicant’s breach of an alcohol interlock condition (the Foglia Report).
The Applicant’s offending
The witnesses gave evidence in relation to the Applicant’s offending and in relation to the Applicant’s family background that he says gave rise or led to his offending.
The Applicant provided a statement, dated 10 March 2017, which considered the circumstances that led to his offending stating “my offending was due to my lack of maturity and forethought at the time.”
More specifically, the Applicant stated that there were circumstances relating to his childhood and his previous marriage that were relevant. These matters were considered in detail in the Foglia Report, which is set out below, and the Applicant stated further:
I did not drink out of fun, but out of necessity. I married at a young age to an even younger wife, I was in new country, with a newfound freedom away from my strict family and emotionally, I was struggling to make sense of it all. I enjoyed my freedom at first, but I soon began feeling trapped and helpless in my situation...
I was in a rut of self-loathing and depression and I hid my drinking from Bianca, as her parents were alcoholics, which made me even more ashamed of myself. Additionally, all the childhood memories of the bashings I’d suffered at the hands of my father had come flooding back, making me fearful, lonely, belittled, isolated and degraded I felt that my dad further betrayed me by leaving my mother after having an affair, which made her depressed and suicidal, only to come back to the family when his mistress dumped him for another man.[16]
[16] T documents, T4, 77-8.
The Applicant stated in oral evidence that when he lived in India, he had no freedom and did not drink.
Ms Bianca Roach provided a statutory declaration, dated 10 March 2017, stating that she was formerly in a spousal relationship with the Applicant and that they remain on good terms to this day. She stated that:
I do believe that I am partly responsible for KJ [the Applicant’s nickname] turning to alcohol to cope with his problems because, KJ had to shoulder all the pressure on his own. Because we were both so young when we got married, we also had a lot of issues in our marriage. I should not have demanded so much from KJ, because the stress I put on him contributed to his emotional and mental decline and I am very regretful of losing him as a consequence after 4 years of marriage.[17]
[17] T documents, T5, 105.
Ms Roach stated that the Applicant has made a significant positive difference in her life, setting out some of the circumstances of her troubled childhood including that her parents were both alcoholics.
Ms Roach stated as to her marriage to the Applicant:
As I was only 16 at the time, by law, I had to have my mother’s consent so that I could marry KJ. By the time March 2010 approached, which was when KJ’s visa was about to expire, mum still hadn’t signed the forms and I was in a very anxious state, as I didn’t want to lose him.… By the time we married and lodged the Partner visa application, KJ’s visa had expired.[18]
[18] T documents, T5, 107.
Ms Roach stated that, eventually the Applicant was granted a partner visa in 2013.
The Applicant provided a statutory declaration made by Mr Karan Kumar, dated 10 March 2017. Mr Kumar stated that he had known the Applicant since 2016 and that the Applicant had been working for Mr Kumar’s company for more than six months up until the date of the declaration, as a security officer. Mr Kumar stated that the Applicant had explained to him the circumstances surrounding his offending in 2011, including that the Applicant was under “immense pressure from a difficult marriage, with a former partner who had mental issues and frequently engaged in self-harm.”[19]
[19] T documents, T5, 95.
Mr Satwant Singh provided a statutory declaration, dated 10 March 2017, stating that he is a protective services officer working with Victoria Police and has known the Applicant since 2009. Mr Singh stated that the Applicant’s:
… past offences have come about as a result of the trauma and self-esteem issues he experienced in his abusive childhood and difficult marriage.[20]
[20] T documents, T5, 98.
Ms Casey Smith provided a declaration, dated 10 March 2017, stating that she has known the Applicant since 2016. Ms Smith stated that the Applicant:
… has never used his abusive childhood or his difficult marriage as an excuse. In fact, he’s used his past experiences to really help improve his life and the lives of others.[21]
[21] T documents, T5, 101.
The Applicant also gave evidence specifically in relation to some of his offences. The Applicant stated, in relation to one offence, that:
… I had been attending a party and had been drinking with friends. After feeling that I was getting drunk, I became very tired and asked my friend for his car keys so that I go have a nap in the car. When I got to the car and tried to sleep, the car park was really noisy, so I made the stupid decision to drive somewhere less noisy so I could sleep. The police intercepted me while I was in the process of doing that.[22]
[22] T documents, T4, 77.
Mr Kumar stated that in relation to the 2015 offence, the Applicant told him that:
… it was not his intention to breach the interlock condition, as he had only intended to drive to a quieter area to take a nap, after feeling tired at a party. Although this was not a wise decision on [the Applicant’s] part, the intent behind it held no maliciousness...[23]
[23] T documents, T5, 95.
The Foglia Report
The Applicant stated in oral evidence that when he was caught the third time for
drink-driving, he began to see the psychologist whom he saw about 14 to 15 times until May 2015. After he was sentenced he did not go back to see the psychologist. He stated that the psychologist showed him “a way to do things” which assisted a change for the better.
The Foglia Report was prepared for and provided to the Magistrates’ Court of Victoria, in relation to the Applicant’s breach of an alcohol interlock condition. The Foglia Report states that the Applicant’s father was physically violent with his mother and with him.
The Foglia Report states that the Applicant was immature and unprepared for the freedom he was granted once he arrived in Australia. After arriving, the Applicant drank alcohol, smoked cannabis and gained significant weight.
The Foglia Report states that the Applicant:
… stated that three years ago, he had a wake up call after a weight related knee injury that prompted him to change his lifestyle. Mr Singh indicated he changed his diet and engaged in a fitness program.[24]
[24] T documents, T5, 120.
The Foglia Report summarises that the Applicant:
… presents with symptoms related to anxiety, depression and a history of substance use, which have led him to heightened levels of distress.
Mr Singh is predisposed to depression through a family history; reportedly, his mother would have been living with the condition for some years. Also of significance, are his childhood and adolescence experiences of abuse perpetrated by his father, Mr Singh has begun to grapple with the implications of these lifelong events. In addition, his history of resettlement appears as weighty, as it was prompted by his determination to escape the authority of his abusive father rather than being stimulated by a positive longing.
The above named experiences restricted his personal and emotional development and contributed to his adoption of maladaptive coping mechanisms, such as emotional avoidance and substance use, circumstances that perpetuated his symptoms. The precipitating factors, namely his legal predicament and the consequent financial hardship, reawakened feelings of inadequacy, self-doubt and emotional dichotomy towards his father. This was further compounded by the loss of employment and his fear of imprisonment emerging from the upcoming court hearing.
Mental health issues were evaluated using unstructured clinical interviews; the administration of the Psychiatric Diagnostic Screening Questionnaire (PDSQ); the Kessler Psychological Distress Scale (K10) x 2 times; and the Depression, Anxiety and Stress Scale (DASS-21). Mr Singh endorsed symptoms consistent with depression and anxiety disorders. Mr Singh has a history of substance use disorder.
His substance use history is no doubt significant, however his willingness to participate in treatment and his recent attainment of abstinence from alcohol use are indicative of his commitment to consolidating a drug free lifestyle. The events that led to his current charges are reflective of immature attitudes, egocentricity (inability to take responsibility for his drinking behaviour); impulsivity (unduly risky behaviour); lack of foresight (about potential consequences, recurrent drink driving); emotional lability (asking for the car keys after arranging a non drinking driver); and a need for instant gratification (getting a comfortable place to sleep).[25]
[25] T documents, T5, 126-7.
The Foglia Report stated finally that:
In my opinion, at the time of the offending he was suffering from alcohol dependence with physiological dependence. In my opinion, the drug and alcohol treatment provided over 14 sessions assisted Mr Singh as he reported achieving and maintaining abstinence for the last two months.
The current assessment indicates that Mr Singh remains affected by his early family experiences; recent psychological exploration unearthed previously uncharted issues. His responsive attitude towards personal and emotional growth; improving communication at both intra and interpersonal levels; and his determination to embrace more adaptive coping behaviours away from alcohol use and emotional avoidance, make his prognosis positive.
Given his considerable history of alcohol use, it would seem inappropriate to ignore his residual risk of relapse into substance use. Therefore, Mr Singh is encouraged to continue attending drug and alcohol counselling with a focus on maintaining abstinence through further exploration of relapse prevention strategies.[26]
[26] T documents, T5, 127-8.
The Applicant’s conduct post-offending
The Applicant and the other witnesses gave evidence in relation to the Applicant’s conduct post-offending and specifically in relation to:
(a)the impact of sentencing upon the Applicant and his efforts to reform himself and “turn his life around”;
(b)the Applicant’s alcohol consumption after his reform; and
(c)the Applicant’s general good character.
The Applicant’s reform
The Applicant stated in relation to his reform, after being charged with breaching an alcohol interlock condition, that it:
was a real wake-up call and caused me to hit rock bottom. Drinking had initially been a source of comfort, but over time, I started to feel that it wasn’t helping me and in fact, it was actually causing me to feel even more depressed, stressed and anxious. It was affecting my life in a negative way and I wasn’t enjoying it anymore. I was drinking alcohol for the wrong reasons, because I was using it as an emotional crutch. It was only by hitting rock bottom that I was forced to do something about myself and with the help of my Psychologist, who I saw for 14 sessions, I was able to learn effective techniques to deal with my issues and move on from them. I’ve learned how to reject peer pressure, I’ve learned to say no, I’ve learned to avoid risky social situations and also to find new ways to cope with stress. I review my life daily, using the methods that I’ve learned from my counselling and psychology sessions and since admitting that I’m not perfect and forgiving myself and others, I’ve never let my past hold me back again.[27]
[27] T documents, T4, 78.
The Applicant stated in oral evidence that September 2014 was a “big wake-up call” for him, that he was disqualified from driving for three years, and that as a result he decided to fully change his life.
In addition to providing a statement, Ms Smith also gave oral evidence at the hearing. She stated that the Applicant had gone through a rough period and turned his life around.
Mr Satwant Singh, who also gave oral evidence at the hearing in addition to providing a statement, stated that:
With psychological treatments, [the Applicant] has been able to move beyond his past traumas and proven his capability of completely turning his life around.[28]
[28] T documents, T5, 99.
The Applicant stated in oral evidence that he currently worked as a courier, since obtaining his license in September 2017, and that from mid-2016, he worked as a security guard on weekends.
The Applicant provided certificates evidencing completion of various courses including, certificates in fitness.
The Applicant’s alcohol consumption after his reform
The Applicant and witnesses gave evidence in relation to the Applicant’s alcohol consumption post-offending. The Applicant stated in relation to his drinking that:
I genuinely believe I won't drink again, not only because I know what alcohol can do to a person, but it actually no longer holds any appeal for me whatsoever. I don't miss it and have no cravings for it. People can drink around me and I'm totally okay with it. Giving up alcohol has helped me to respect my body as well as create a healthy life and I am also dedicated to helping others do the same. When people see me living my life to the full without alcohol or other harmful substances, they have been inspired to make positive change in their lives. I teach people to be kind to themselves when they make a mistake, I teach them to search for reasons and solutions going forward, because this is a lot more useful than beating themselves up and feeling like a failure, because this is what I went through and it didn't help. Going through my past ordeals has helped me to find the strength I never knew I had and I've used these lessons as reminders to get back on track and stay focused on my goal of continuing to help others improve their physical, emotional and mental well being through a change of lifestyle and bad habits.[29]
[29] T documents, T4, 80.
In addition, the Applicant stated:
… My offending was due to my dependence on alcohol and since this has been resolved successfully, I can confidently state that there is little likelihood that I will reoffend ever again. I have not had any alcohol for the past 2 years and I don’t intend to ever drink again[30]
[30] T documents, T4, 79.
However, contrary to the evidence that the Applicant has become a teetotaller, the Applicant and other witnesses gave evidence at the hearing of his ongoing albeit infrequent drinking.
The Applicant stated in oral evidence that he had had a drink in the months before the hearing. He stated that he stopped drinking in 2011 but not completely.
The Applicant stated in oral evidence that he only drinks on special occasions. He stated that he would have at most one to two drinks a month.
Mr Satwant Singh’s evidence was similarly confusing in that his written statement stated that the Applicant had completely abstained from alcohol but his oral evidence was that the Applicant did drink alcohol from time to time. Mr Singh stated:
[The Applicant] trains at the gym 6 days a week and has completely abstained from alcohol over the past 2 years.[31]
[31] T documents, T5, 99.
Mr Singh also gave oral evidence at the hearing. He stated that he had lived with the Applicant in 2008. He stated that he had seen the Applicant drinking but that he had not seen the Applicant intoxicated. He stated that he sees the Applicant socially currently once every two to three months. He stated that he had not recently seen the Applicant drinking at social events.
Ms Smith stated that she had seen the Applicant have one glass of beer four months ago. She stated that she had known the Applicant to have a drink every so often.
Ms Elhawli gave oral evidence at the hearing. She stated that she had known the Applicant for many years, probably five years, and that he was close to her like a brother. Ms Elhawli stated that she had seen the Applicant have one drink around two years ago.
Evidence of Applicant’s general good character
The witnesses gave evidence in relation to the Applicant’s general good character.
Ms Roach stated that the Applicant is a very kind and caring person who gives without reservation or expectation.
Mr Kumar stated that he was aware of the Applicant’s prior convictions for driving while disqualified, intentionally destroying property and breaching an alcohol interlock condition. He stated that the Applicant:
… was very upfront about his past offences and fully disclosed all of them to me when he applied for a position at my company. It was [the Applicant’s] integrity and honesty, coupled with his genuine remorse for his past offences, which convinced me to hire him for the job.[32]
[32] T documents, T5, 95.
Mr Kumar stated that the Applicant has been an exemplary employee and is reliable, always on time and one of his best employees.
Mr Satwant Singh stated that the Applicant:
… always dedicates additional time and energy to those who want to improve their lives through fitness, particularly those who have had emotional issues due to being overweight and substance problems, as he has experienced first-hand the difficulty of facing, working through and ultimately overcoming these issues.[33]
[33] T documents, T5, 99.
Ms Smith stated that she is aware of the criminal nature of the Applicant’s offences. Ms Smith is a corrections prison officer at a Victorian prison and stated that the Applicant “does not exhibit any traits of a person who is not of good character.”
Ms Smith stated:
I feel that I am well qualified to comment on KJ’s character, as in my line of work, I interact on a daily basis with prison inmates, from the most hardened criminals, to those have been incarcerated on lesser charges. In my experience, I have seen many offenders claim to be remorseful in order to gain earlier release or possibly a reduced sentence, but I believe the true measure of whether or not a person is genuinely remorseful of their past offending is what they do with their lives thereafter. KJ has completely turned his life around since his last offence.[34]
[34] T documents, T5, 101.
The Applicant’s citizenship application
The Applicant filed an application for Australian citizenship, signed 16 August 2016 (the “Citizenship Application”). The Citizenship Application was provided by a migration agent as previous offences did not allow the Applicant to lodge his application online.
Paragraph 35(a) of the Citizenship Application asks:
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
In relation to this question, the Applicant ticked in the Citizenship Application the box marked “Yes”.
Paragraph 35 of the Citizenship Application provides further:
If you answered ‘Yes’ to any of the questions at Question 35, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention.
In answer to the request to provide more information, the Applicant wrote in the Citizenship Application:
4 May 2011: Driving while disqualified – Imprisonment 3 months. Sentence wholly suspended for 24 months.
4 May 2011: Stating false address – Fined $1000
5 May 2011: Intentionally destroying property – No conviction, good behaviour bond, payment to court fund of $500 and compensation payment of $650
The Applicant’s Statement of Facts Issues and Contentions states:
When the Applicant attended the appointment for his Australian citizenship test and interview on 5 January 2017, he brought along with him a supplementary application form[35]… In this form, the Applicant declared his traffic offences to the best of his recollection. The Applicant understood that there was no point in concealing any past offending, since if the delegate undertook checks with the relevant authorities, then all of this information would have effectively come to light anyway.[36]
[35] The Applicant refers to a "supplementary form" that was given back to him after his interview stating "there is no record of this supplementary form in the s 37 “T” Documents."
[36] Applicant’s Statement of Facts, Issues and Contentions, 13-14.
The Applicant’s Statement of Facts Issues and Contentions states further:
As per Ahmadi and Minister for Immigration and Border Protection, where Senior Member J Sosso writes: “While vigilance is essential in assessing claims for citizenship, particularly having regard to the significant consequences that flow from the bestowal of this privilege, care needs to be exercised not to unduly focus on minor or peripheral inconsistencies in an applicant’s overall account and then doubt the veracity of the account and impute bad motives.” Thus any offences not declared by the Applicant should not be misconstrued as the Applicant being dishonest or attempting to hide information. The Applicant simply declared what he remembered. [37]
(Emphasis added.)
[37] Applicant’s Statement of Facts, Issues and Contentions, 14.
The Applicant gave oral evidence at the hearing in relation to the adequacy of his declarations on the Citizenship Application. The Applicant stated that he had not tried to hide any of his offences. He stated that he could see that the Department had all of his records and asked rhetorically: “why would I lie?”. He stated that the offences he declared were based on his memory.
The Applicant stated that at the time that he prepared the Citizenship Application, he was working night shifts and his father was coming soon to visit him. Given the evidence of the Applicant’s relationship with his father and his physical abuse, the inference is that the Applicant ought to be excused for any oversight in providing a complete list of his offences.
The Applicant was asked by Counsel for the Respondent if, after receiving the Australian Federal Police check, which did not contain the further offences, whether he had taken advantage of the mistake. He denied that he had taken advantage of the situation and stated that his actions were as a result of mere carelessness and that he should have been more careful.
APPLICATION
Section 21(2) of the Act provides that a “person is eligible to become an Australian citizen if the Minister is satisfied that the person”, among other things, “is of good character at the time of the Minister’s decision on the application.”
The Applicant’s Statement of Facts, Issues and Contentions submits that:
The crux of the Applicant’s offending was attributed to one main issue, being his drinking.[38]
[38] Applicant’s Statement of Facts, Issues and Contentions, 19.
The Applicant submits that his drinking was as a result of his family circumstances:
… At the time the Applicant started drinking, he had been overwhelmed by feelings of frustration and resentment of himself and his family (mainly his father), which he did not know how to deal with prior to his psychological treatment, so he drank. The Applicant states without any hesitation that getting caught was the best thing to have happened to him, it was the “wake up call” he needed that signalled his transition into becoming an adult and forcing him to take responsibility for his life and his poor behaviour.[39]
[39] Applicant’s Statement of Facts, Issues and Contentions, 19.
In relation to the Applicant’s consumption of alcohol, he submitted that he:
… has been completely sober since March 2015, which will be close to 3 years by the time his Tribunal hearing is due to take place. Such is his determination to turn his life around that the Applicant has not once “fallen off the wagon” or relapsed at any stage. The Applicant submits that he will never touch alcohol again, as it no longer holds any appeal for him, he does not need it, nor does he want it.[40]
[40] Applicant’s Statement of Facts, Issues and Contentions, 19.
The Applicant’s Statement of Facts, Issues and Contentions states further that:
… the Applicant contends that his conduct to date has been good and that he has shown that he has learned from his past mistakes. The likelihood of the Applicant engaging in further criminal offences, taking into account the evidence he has provided, is extremely slim, as the factors that caused him to offend in the past no longer exist.[41]
[41] Applicant’s Statement of Facts, Issues and Contentions, 19.
The Applicant submits that his sobriety:
… is also largely in part of the Applicant’s unqualified acceptance of his culpability, the realisation that even though no persons were harmed in his offending, that his past foolishness could have potentially wrought worse consequences than they did. The regret of his actions has weighed heavily on the Applicant, however, he uses his past mistakes as a reminder to never go down the wrong path again.[42]
[42] Applicant’s Statement of Facts, Issues and Contentions, 20.
The Applicant submits that, in any case, his behaviour is not dissimilar from the conduct of similar persons of his age in Australia:
The question of “community standards” as stated in policy, is whether the Applicant experienced anything different than what a normal young person in the Australian community would have experienced? Certainly there would be many young people in the community who have been through a stage of “partying” and drinking too much upon discovering freedom and driving after drinking, which unfortunately occurs all too frequently in the Australian community in any given week. The Applicant contends that there would be few people in the community who in their youth, have never committed foolish acts such as these, of which they would not have realised the gravity and seriousness at the time.[43]
[43] Applicant’s Statement of Facts, Issues and Contentions, 19.
As noted above, the Respondent summarises the Applicant’s history of offending as follows:
(a) the Applicant was caught drink-driving on three occasions ([with court appearances on] 4 January 2010, 4 May 2011, 22 May 2015);
(b) the Applicant has had his licence disqualified three times, and has driven whilst on a disqualified licence;
(c) the Applicant has a number of other infringements on his driving record; and
(d) the Applicant was sentenced, without conviction, for an offence of intentionally destroying property on 5 May 2011.[44]
[44] Respondent’s Statement of Facts, Issues and Contentions, 5.
The Respondent submits in its Statement of Facts, Issues and Contentions that the Applicant is not of good character, having regard to:
(a) his sustained pattern of offending (with two offences in 2010, four offences in May 2011, two traffic infringements in 2014 and an offence in May 2015);
(b) his failure to disclose certain offences on his citizenship application (namely none of his drink driving offences);
(c) the Applicant’s lack of understanding as to the gravity of the offences, insight into or acceptance of responsibility for his offending conduct.[45]
[45] Respondent’s Statement of Facts, Issues and Contentions, 2.
The Applicant has a substantial history of traffic offences and prior offending dating from 2009 until September 2014. I find that the Applicant’s drinking was as a result of his abusive childhood and the circumstances surrounding his marriage. I make that finding on the basis of the Applicant’s evidence, and on the evidence of his ex-wife and the others who gave evidence in relation to this issue. As is noted in the Foglia Report, the Applicant arrived in Australia from India where he was constrained by his particular cultural upbringing. Once he arrived in Australia, the constraints were released and, given his inherent immaturity, the Applicant was unable to properly behave in a manner expected of a young person of his age in Australia.
The Applicant’s narrative
The Applicant provided an account to the Tribunal, which placed his reform and sobriety at its core. He submits that the “crux of [his] offending was attributed to one main issue, being his drinking”.[46] He submitted further that the cause of his drinking was his childhood abuse and the circumstances of his marriage. As noted above, I accept this fact.
The Applicant submits that being charged in 2014 resulted in him obtaining psychological counselling which enabled him to understand his family circumstances and deal with his drinking. He submits that since that psychological counselling, he has stopped drinking and turned his life around.
[46] Applicant’s Statement of Facts, Issues and Contentions, 19.
I have several concerns in relation to the Applicant’s account. First, the assumption that 14 sessions with a psychologist would be sufficient to overcome any difficulties that the Applicant had in relation to his abusive and violent childhood and his pattern of abuse of alcohol, seems inherently unlikely. I do not place any weight on this issue but rather raise it as a consideration.
Second, the Applicant states that being charged with breaching an alcohol interlock condition in 2014 precipitated a major turnaround in his life. However, the Foglia Report, which was prepared in May 2015 states that the Applicant had told the psychologist that a weight related knee injury that occurred three years prior to the report, that is in 2012, was a wake-up call to the Applicant and that as a result, the Applicant changed his diet and engaged in a fitness program. Again, I do not place any weight on this issue but rather raise it as a consideration.
Third, the evidence that the Applicant continues to drink alcohol does not accord with the Applicant’s narrative in which he swore to never drink again. This is an important concern which is considered further below.
The Applicant’s renunciation of alcohol
In his submissions and his earlier statement, the Applicant stated that he had been completely sober since March 2015 and that such “is his determination to turn his life around that the Applicant has not once “fallen off the wagon” or relapsed at any stage”.[47] He submitted that “he will never touch alcohol again, as it no longer holds any appeal for him”.[48] The Applicant stated in 2017 that “I have not had any alcohol for the past two years and I don’t intend to ever drink again”.[49] However, at the hearing the Applicant stated that he had stopped drinking in 2011 but not completely. He stated that he drinks only on special occasions and would have one to two drinks a month. Other witnesses gave similar evidence of the Applicant drinking on social occasions.
[47] Applicant’s Statement of Facts, Issues and Contentions, 19.
[48] Applicant’s Statement of Facts, Issues and Contentions, 20.
[49] T documents, T4, 79.
The concern which is raised by this conflict in the evidence is that the Applicant has either been intentionally untruthful in his earlier statement and submissions and tailored his evidence to suit his application, or that he was careless or imprecise.
Also of concern is that the Applicant himself has submitted that “the crux of [his] offending was attributed to one main issue, being his drinking”.[50] The evidence given at the hearing sits uncomfortably with that submission. Perhaps it may be said that the submission could be rephrased to say that the crux of the Applicant’s offending was due to his “excessive” drinking.
[50] Applicant’s Statement of Facts, Issues and Contentions, 19.
On the basis of the evidence before the Tribunal, I find that the Applicant was intentionally untruthful in his witness statement declared in March 2017 when he stated that he had not had any alcohol for the past two years and did not intend to ever drink again. I make that finding on the basis of the contradictory evidence given by the Applicant himself orally at the hearing and on the evidence given by the other witnesses stating that the Applicant continues to drink. This does not mean that the Applicant has a problem with drinking or excessive drinking, rather, that the Applicant has not been truthful in his earlier statement.
The Applicant submitted, by reference to the Policy, that “there would be few people in the community who in their youth, have never committed foolish acts such as these, of which they would not have realised the gravity and seriousness at the time”.[51] I accept that young people may commit foolish acts, as could a person of any age, but I reject the submission that there would be few people in the community who in their youth have never committed foolish acts such as the Applicant’s offending. The Applicant’s offending goes beyond the ordinary bravado and foolishness of youth. It is not ordinary or commonplace to be caught repeatedly for drink-driving or to continue to drive whilst disqualified, to be charged for intentionally destroying property or for breaching an interlock condition. Not much turns on this. However, the Applicant would have been better served by applying for review on the basis of his circumstances and contrite as to his offending, rather than on the basis that his actions are to be regarded as commonplace.
[51] Applicant’s Statement of Facts, Issues and Contentions, 19.
The Citizenship Application
The Citizenship Application asked clearly of the Applicant: “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?”[52] Further, the Citizenship Application was absolutely clear that the Applicant must give all relevant details.
[52] T documents, T7, 141.
In reply, the Applicant provided details of his offending for which he was sentenced in May 2011. The Applicant states that the failure to provide details or acknowledgement of any other offences was a mere oversight as he was relying upon his incomplete memory and was affected by his working hours and the proximity of a visit from his father who had physically abused him as a child. The Applicant’s contention that he would not lie on his application because he understood that the relevant department had all of his information including the further offences, has the hallmarks of a post-facto explanation. It does not explain why, given what the Applicant submits, the request to declare and provide details of his offending is at all necessary in the Citizenship Application.
I find that the Applicant intentionally failed to properly provide details of his convictions for offences including all traffic offences in his Citizenship Application. I make that finding because it is inherently unlikely that the Applicant, relying upon his memory, simply forgot about his other convictions. It is completely implausible that the Applicant would have forgotten about his 2014 convictions and, in particular of his having been convicted of breaching an alcohol interlock condition. In addition, I make that finding because the Applicant’s history of offending is a source of great shame to him, the details of which are unlikely to have been forgotten now or then.
CONCLUSION
On the material before the Tribunal, and taking into account the submissions made by the parties, I determine that the correct or preferable way in which to perform the duty under
s 24(1) of the Act and to exercise the discretion in s 24(2) of the Act, in relation to the Applicant’s citizenship application, is to affirm the reviewable decision.
I find that the Applicant is not of “good character” for the purposes of s 21(2) of the Act and thus is not eligible to become an Australian citizen under s 24(1A) of the Act.
I find that the Applicant is not of “good character” for the purposes of s 21(2)(h) of the Act as a question of fact, on the basis of circumstances that relate directly to his application to become an Australian citizen, which matters inform a finding in relation to the Applicant’s mental and moral qualities, in particular, the good character failures cumulatively of:
(a)His failure to disclose certain drink driving offences on the Citizenship Application. Dishonesty in an application to a government department, authority or agency, including a migration or citizenship application in and of itself may be indicative that a person is not of good character.[53] More so when there is a failure to disclose material facts relevant to the application.
(b)The Applicant’s untruthfulness in his witness statement declared in March 2017 where he stated that he had not had any alcohol for the past two years and did not intend to ever drink again.
[53] A number of earlier decisions have been made on the basis that dishonesty in migration and citizenship applications is indicative that a person is not of good character: see Re Patel and Minister for Home Affairs [2018] AATA 3466 at [23] (referring to Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Re AlTemimi v Minister for Immigration and Border Protection [2014] AATA 97, Re Beyan v Minister for Immigration and Border Protection [2015] AATA 256).
I also take into account, but to a lesser degree, the Applicant’s history of offending.
On balance, I find that the Applicant is not eligible to become an Australian citizen as required under s 24(1A) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 122 (one-hundred-and-twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Pintos-Lopez
............................[sgd].....................................
Associate
Dated: 24 June 2019
Date of hearing:
28 March 2018 Advocate for the Applicant: Ms Jacqui Yang Advocate for the Respondent: Mr Adam Ray Solicitors for the Respondent: Clayton Utz
2
16
0