Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 3575
•7 October 2021
Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3575 (7 October 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2685
Re:Raynold Hercules Smith
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:7 October 2021
Place:Sydney
The decision under review is affirmed.
................................[sgd].......................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of a citizenship application – whether the applicant is of good character – criminal conduct – traffic offences – drug offences – failure to disclose offences – whether enough time passed since offences – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42D
Australian Citizenship Act 2007 (Cth), Preamble, ss 21, 24 and 52
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Elias v Commissioner of Taxation [2002] FCA 845
ER Aston and Y Aston and Secretary To the, Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366
Fang and Minister for Immigration and Border Protection [2018] AATA 3866
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27
Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033
MAH v Minister for Immigration and Border Protection [2018] AATA 416
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Multicultural Affairs v SRT (1999) 56 ALD 349
Minister for Home Affairs v Sharma [2019] FCA 597
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
NSWQ and Minister for Immigration and Border Protection (Migration) [2016] AATA 373
QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820
Safar and Minister for Immigration and Border Protection [2015] AATA 503
Secretary to the Department of Justice and Regulation v LLF (a pseudonym) [2018] VSCA 155
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
Shi and Migration Agents Registration Authority [2008] HCA 31
Wang and Minister for Immigration and Border Protection [2014] AATA 89
Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Australian Government Department of Infrastructure, Transport, Regional Development and Communications, Road Deaths Australia (August 2021)
CPI 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Chris Puplick AM, Senior Member
7 October 2021
Mr Raynold Smith (the Applicant) seeks a determination from this Tribunal to set aside a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) to refuse his application for citizenship by conferral on the grounds that the Respondent asserts that the Applicant is not a person of “good character” as required by the Australian Citizenship Act 2007 (Cth) (the Act).
NARRATIVE OF THE APPLICATION
The Applicant, who is a citizen of the Republic of South Africa, was born in 1985, and first arrived in Australia on 19 December 2003 holding a UC-456 visa.[1] He was then granted a BW-856 visa on 29 August 2012 and a Resident Return BB-155 visa on 15 April 2018. This is his current visa status.[2]
[1] UC 456 – Business (Short Stay) visa, granted offshore.
[2] Tribunal documents (T-documents) at 17. BW-956 – Employer Nomination Scheme visa.
On 14 June 2019 the Applicant submitted (electronically) an application for citizenship by conferral using the General Eligibility (1300t) application form.
On 6 April 2020 the application was refused because the Delegate found that there was statutory prohibition on it being considered. Paragraph 24(6)(a) of the Act provides that the Minister must not approve a person becoming an Australian citizen at a time:
when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person…
This prohibition applied to the Applicant at the time, nevertheless he requested a review of the Minister’s decision on 5 May 2020.[3]
[3] Ibid at 1 and 7.
Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) requires that applications for review of decisions must be lodged with 28 days of the date of their receipt by an applicant. This period concluded on 4 May 2020 and so the Tribunal wrote to the Minister on 7 May 2020 to ascertain if there was any objection to accepting the review request one day late.[4] It appears from the documentation that none was forthcoming. In any event the Applicant provided a cogent reason for seeking an extension of time to lodge his application, stating:
“As I was waiting for the court hearing, which has been postponed due to Covid 19, they still have not supplied a date.”[5]
[4] Ibid at 1.
[5] Ibid at 11.
The paragraph 24(6)(a) prohibition was rendered otiose when the charges in question were dealt with by the Court and it was agreed by the parties that the matter should be remitted to the Respondent for a decision to be made on the application while the 5 May 2020 application remained on foot.[6]
[6] Pursuant to an order made under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 42D.
This led to a decision being made by the Respondent on 21 September 2020 to refuse the application for citizenship.
As the application of 5 May 2020 remained on foot, it proceeded accordingly until the matter came before the Tribunal for determination on 22 September 2021 when proceedings were conducted using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols.
At hearing the Applicant was self-represented. The Tribunal found him, as a witness to be a person of credibility and forthcoming and frank in his testimony. He accepted responsibility for his offending behaviour and made no attempt to deny or to diminish his level of personal responsibility.
CITIZENSHIP
In a democracy, citizenship is a bedrock issue. What makes a polity democratic is that the citizens have a free choice as to those who govern them and through the electoral process then hold them accountable. Thus, albeit indirectly in Australia’s case,[7] it is the citizens who are ultimately responsible for the enactment of the laws under which the whole community lives and operates. It is only by the consent of the citizenry that the Australian Constitution, our most fundamental law, may be changed.[8]
[7] In the absence of devices such as Citizen Initiated Referenda or Citizen Initiatives which may lead directly to legislative change.
[8] Constitution s 128, diachronically.
The Constitution itself makes no mention of “citizenship”. Rather, section 51 (xix) gives the Commonwealth Parliament power over “naturalization and aliens”.
This is not surprising given that the Founders were operating within the legal framework established by English law characterised as providing that:
“[t]here are citizens in France and the United States of America, but the law and language of England knows of subjects only.”[9]
[9] Sir William Salmond, Citizenship and Allegiance (1902) 18 Law Quarterly Review 49 at 49.
Hence, at the time of Federation there were, in Australia, only British subjects and aliens. In the Constitutional Debates leading to Federation, Sir Edmund Barton[10] said “[c]itizens is an undefined term, and not known to the Constitution.”[11]
[10] First prime Minister of Australia (1901-1903), foundation member of the High Court (1903-1920).
[11] Official Record of the Debates of the Australasian Federal Convention (Melbourne) 3 March 1898 at 1786.
This approach was reflected in a decision of the High Court in 1906 where the Foundation Bench (Griffth CJ, Barton and O’Connor JJ), all of whom had major roles in writing Australia’s Constitution, said:
We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term "immigration," as used in s 51 of the Constitution, admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean.[12]
[12] Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44.
Indeed, there was no such thing as a distinct Australian nationality or citizenship until the passage of the Nationality and Citizenship Act 1948 (Cth).[13] There were, effectively, no Australian “nationals” living in the Commonwealth from 1901 to 1948, simply “British subjects or nationals” who domiciled here.
[13] Renamed Australian Citizenship Act 1948, replaced by Australian Citizenship Act 2007 (Cth).
After 1948 the concept of a genuine Australian citizenship emerges diachronically and after many changes to that law, it was replaced in 2007 by the passage of the Australian Citizenship Act.
It is thus clear that Australian citizenship is not something inherent but rather something which is a creation of the legislature, with terms and conditions attached.
It is, as the High Court stated:
by this means that Parliament determines who is to be part of the body politic and who is not to be.[14]
[14] Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 at [14] per Keifel CJ in dissent.
People who are not citizens of Australia are “aliens”, unless of course they are First Nations people who, constitutionally cannot be aliens.[15] The terms and conditions upon which people who are not citizens are allowed to remain in Australia depends upon their visa status and their right to join the Australian “body politic” as citizens requires that they meet the tests of the Australian Citizenship Act.
[15] Ibid.
The Australian Citizenship Act is unique as a legislative instrument in that it contains a Preamble which is in the following words:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Upholding and obeying the laws of Australia is not merely a rhetorical flourish. It is redolent with meaning and fundamental to the decision-making process for applications to join the body politic.
LEGISLATIVE FRAMEWORK – THE ACT
The Act provides that a person may make an application to the Minister for citizenship by conferral.[16] The Minister must either approve or refuse the application.[17]
[16] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[17] Act s 24(1).
An applicant must meet certain qualifications as specified in the Act[18] and, if they do, they must then undertake and pass the Citizenship Test[19] (unless they are exempted from so doing).[20] Once that is complete, a qualified applicant must make the Pledge of Commitment[21] (unless they are exempted from so doing) before their citizenship is finally granted.
[18]Act s 21(2).
[19] Act s 23A.
[20]Act ss 21(3)(d), (4)-(8).
[21] Act s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[22] None of which is relevant in this present application.
[22] Act ss 24(4)-(6).
In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
Each of the criteria must be met by an applicant, and the usual practice of the Department is to consider the criteria in the order in which they appear in the Act. In this case, the Respondent found that criteria at paragraphs 21(2)(a), (b), (c) and (g) had been met but that the criterion at paragraph 21(2)(h) had not.[23] The former refer to matters of age and residency whereas paragraph 21(2)(h) refers to a matter of character (see below). The criteria at paragraph (d) to (f) refer to the citizenship test requirements.
[23] T-documents at 163-164.
THE CITIZENSHIP POLICY STATEMENT AND THE CPIs
In deciding whether or not an applicant satisfies the criteria in subsection 21(2), a decision-maker must have regard to the Act, the Australian Citizenship Policy Statement (Citizenship Policy Statement) and the Revised Citizenship Procedural Instructions (CPIs).
The Citizenship Policy Statement came into effect as of 27 November 2020, replacing the previous Citizenship Policy document.[24] Citizenship ProceduraI Instruction 15 (CPI 15) deals with the assessment of issues of good character which is the central issue in this matter.
[24] The previous Citizenship Policy was in place at the time of the decision, but the Tribunal must proceed in accordance with the superseding Australian Citizenship Policy and the CPIs.
The Tribunal notes that the Citizenship Policy Statement and CPIs have been published by the government as a guide to decision-makers in the interpretation of, and exercise of powers under, the Act. The role of such policy is as an indicative guide only and the Tribunal is not strictly bound to apply it. However, it is government policy and the Tribunal should consider it if it is consistent with the Act and unless there are cogent reasons not to do so.[25]
[25] Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634at 640.
In addition, the Tribunal, standing as it does in the shoes of the original decision-maker but making a de novo assessment of the evidence,[26] may take into account any other relevant factors, including where appropriate any relevant factors or evidence which have arisen since the original decision was made and may not have been available to the original decision-maker.
[26] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
Further, in 1985, the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[27]
[27] ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366 at 376.
Similarly, in Gbojueh the Federal Court noted:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[28]
[28] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].
In Elias, this principle was expressed as:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.[29]
[29] Elias v Commissioner of Taxation [2002] FCA 845 at [34].
In relation to the former citizenship policies, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[30] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[31]
[30] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement and Revised CPIs. The current set of Instructions are a different form of advice to decision-makers.
[31] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
More recently this matter was addressed by Besanko J as follows:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case. Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory. The important matter is compliance with the terms of the relevant statute.[32]
[32] MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17] (footnotes and citations omitted).
GOOD CHARACTER
Paragraph 21(2)(h) of the Act requires that a person be “of good character at the time of the Minister’s decision on the application.” As mentioned, the Minister's delegate found that the Applicant was not of good character and this was the sole identified basis for the refusal of his citizenship application.
The term “good character” is, unhelpfully, not defined in the Act and so the Tribunal must rely on the law developed by the Courts and guidance in the Citizenship Policy Statement and the CPIs (particularly CPI 15).
As to the definition of good character, CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs, where the Court 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.[33]
[33] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84 at 94.
The Tribunal has further found that evidence of what a person says, does or what they are heard to say or seen to do should be taken as indication of their acceptance of the values and norms to which they are expected to adhere and be loyal to.[[34]
[34] Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
An elegant encapsulation of what the authorities have identified as the hallmarks of “good character” was given by O’Bryan J in BOY19 as follows:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.[35]
[35] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51]. Citations in original omitted.
CPI 15 itself goes on to outline what the characteristics of good character might amount to. These are set out, at some length, as expecting that applicants would (inter alia):
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police.
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
In relation to assessing the character of an applicant with a criminal record, CPI 15 provides further guidance, explaining that relevant considerations include:
·whether the offences were disclosed;
·whether the offending was serious, with 'drug trafficking (including importation and supply)' listed as an example of a serious offence;
·whether the offending was a one-off or there is a pattern of criminal behaviour, with a pattern of behaviour, even a pattern of repeated minor offences over an extended period, showing a disregard for the law, which may support a finding that the applicant is not of good character; and
·whether the offending was pre-meditated, with pre-meditated offences to be given more weight in the assessment of character.
CPI 15 elaborates, by attaching to the phrase “enduring moral qualities”, further qualifications, namely:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The basis of the refusal
The basis of the Respondent’s decision to refuse this application is that the Applicant has been found not to be a person of “good character” as required by the Act. That decision was made on the basis that:
(a)the Applicant has a number of convictions for traffic offences and at least one for the possession of a prohibited substance (cocaine) and
(b)the Applicant has not been fully honest and forthcoming with the Australian government when required to provide details of his offending behaviour.
The Tribunal has before it a considerable amount of material produced under summons from the Downing Centre and the Hornsby and Manly Local Courts. They provide details of the Applicant’s offences but there are no sentencing remarks from any judicial officers, and it appears that the Applicant pleaded guilty as charged when he came before the Courts.
It should be noted that while the Applicant has been sentenced to pay numerous fines, had his drivers’ license suspended or cancelled and has been subject to good behaviour bonds, he has never been committed to a term of imprisonment.
In total there were seven recorded offences between 16 October 2009 and 13 May 2020, all related to either traffic or drug offences. They may be summarised as follows:[36]
[36] Details taken from documents in Tender Bundle at [5]-[6], [17-18], [35], [60] and Tribunal documents at [137]-138].
Offence date/ Court date
Offence
Penalty
15.08.09
16.10.09
Not comply with P plate conditions
Not display P plate on vehicle
Fail/refuse to undergo breath test
Fined $250 and $750 respectively.
Licence disqualification 12 months.
N/A*
09.10.17
Drive with low range PCA.[37] 1st offence.
Licence expired less than 2 years before – 1st offence
Fine $500. Disqualification for 4 months.
Charge dismissed pursuant to section 10[38]
09.03.18
09.05.18
RBT - Drive with middle range PCA – 2nd offence (0.080 reading)
Fine $800. Disqualification for 12 months.
Section 9 Bond for 12 months
10.02.19
28.08.19
Possess prohibited drug (0.13 grams cocaine)
Fine $300.
24.01.20
13.05.20
Drive with low range PCA – 2nd offence (0.066 reading)
Fine $500. Suspension of licence for 3 months
[37] Prescribed content of alcohol.
[38] Sections 9 and 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provide for dealing with an offender by way of imposing bonds or other conditions taking into account matters such as the character of the offender and where appropriate the “trivial nature of the offence”.
*there are no documents from the Burwood Local Court where this matter was heard to establish date of the offence or PCA reading.
The Respondent’s Statement of Facts, Issues and Contentions (SFIC) characterises the possession offence in a way which might suggest that the Applicant was himself before the Court for sentencing and that the amount of cocaine in question was 0.42 grams.[39] In his oral evidence the Applicant (under affirmation) indicated that he never appeared in Court over this charge and that he was unaware of any conviction or fine.
[39] Respondent’s SFIC at [16(c)].
A close reading of the material provided from the Downing Centre Local Court suggests that this was indeed the case. The Applicant was convicted “ex parte” and the Court documents indicate that he was not present at hearings on either 7 August 2019 (initial hearing date) and 28 August 2019 (relisted hearing date).[40] The Applicant stated that during the relevant period he had amassed something in the order of $2,000 worth of debts and that these were being paid-off via deductions from his Centrelink payments, hence he was unaware of either the conviction or this fine (somehow added to the others) which clearly has been paid as there is no evidence to the contrary. The Applicant states that he did not receive or cannot recall receiving the electronic notification from the Court which is recorded in the court records as being sent to his (correct) email address on 27 June 2019 for a mention on 31 July 2019.[41]
[40] Respondent’s Tender Bundle at 2.
[41] Ibid at 3.
As to the quantum of the prohibited drug, the Police Fact Sheet notes that the substance seized by them was “a total of 0.42 grams inclusive of the packaging” but when weighed free of that packaging amounted to “a total of 0.13 grams.”[42]
[42] Ibid at 6.
The second element of the refusal decision relates to the Applicant’s failure to disclose fully the nature of his offending record.
In completing his application form (1300t) the Applicant, in response to the question:
“Has the applicant 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)?”
only disclosed details of his March 2018 offence, writing:
“Yes
Give details: DYI, March 2018, lost his drivers license for 1 year”
Similarly, he answered “No” to the question:
“Is the applicant aware of any proceedings pending against them overseas or in Australia for an offence, including proceedings by way of appeal or review?”[43]
[43] T-documents at 109.
The Respondent’s assertion in their SFIC is that the Applicant was subject to pending charges related to the February 2019 drug offence at the time.[44] However the evidence before the Tribunal at its hearing established, to the Tribunal’s satisfaction, that the Applicant was genuinely unaware of the pending charge at the time and this evidence was accepted by the Respondent during the Tribunal hearings. As a result, the Respondent no longer presses this aspect of its claim that the Applicant has been less than fully forthcoming.
[44] Respondent’s SFIC at [26].
In relation to the analogous matter of a visa application, the Tribunal in Lachmaiya said:
The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications….
and went on to conclude that where the provision of false information may:
[s]ubvert the administration and, in the context of the Act, to demonstrate that [the applicant] is not a person of good repute or good character.[45]
[45] Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].
The Tribunal recognises that there is a qualitative difference between the wholesale provision of information known to be false and misleading (as was the case in Lachmaiya) and omissions or only partial answers, but this does not detract from the absolute obligation of applicant to tell the truth, the whole truth and nothing but the truth.
The Applicant himself, in his oral evidence conceded that he should have listed all his offences and that “I should have done more due diligence in that process”, although also asserting that the Department should have been able to establish the facts for themselves through their “easier” access to details of his criminal record.
Of course, the onus in these matters lies entirely with the Applicant – it is his responsibility to give all the details required and to be comprehensive in his answers. There is no obligation on the Department to check criminal or other records in this regard.
Drink-driving offences
The issue of drink-driving offences associated with applications for citizenship has come before the Tribunal on numerous occasions.
In Zaya Deputy President Kendall said:
There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.[46]
[46] Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 at [54].
In Kohli the Tribunal said:
The laws against driving under the influence of alcohol are specifically designed to protect members of the Australian community from serious physical harm and/or death. The applicant’s offences of driving under the influence of alcohol are serious and show reckless indifference to the safety of the wider community.[47]
[47] Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326 at [20].
Similarly the Tribunal has previously stated:
·in NSWQ:
Driving while under the influence is indeed a serious issue and one that few in this country should be expected to tolerate.[48]
·in Safar:
Even though each of Mr Safar’s offences may not be within the meaning of “serious offence” under 10.5.2 of the Instructions, the pattern of behaviour and the number and kinds of his offences raise serious concerns. To my mind driving a motor vehicle while under the influence of alcohol is a serious matter. I would say the same about driving a motor vehicle at high speed while holding a provisional licence, driving at 112 km per hour in a 60 km per hour zone for example. One only has to consider the heavy road toll as reported in the media to understand the significant risk such behaviour poses to members of the Australian community.[49]
·in QKJY:
[T]he cumulative effect of the Applicant’s drink driving offences plainly demonstrate his blatant disregard for the road rules and the general safety and welfare of members of the Australian community.[50]
·in Bartlett:
The Applicant’s driving offences may at first blush be considered relatively minor… However, the theme of recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant.[51]
·in Apire:
[I]t is quite clear that Mr Apire has a pattern of disobeying traffic laws over an extended period. He has repeatedly driven a motor vehicle without a current driver’s license; he has driven a motor vehicle while under the influence of alcohol; and he has driven a motor vehicle without current registration. He has been charged and convicted of multiple offences as a result. Behaving in this manner, he has placed his passengers (including children) and other road users at risk of harm.[52]
[48] NSWQ and Minister for Immigration and Border Protection (Migration) [2016] AATA 373 at [58].
[49] Safar and Minister for Immigration and Border Protection [2015] AATA 503 at [28].
[50] QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820 at [41].
[51] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [45].
[52] Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [15].
In Bowdler[53] I wrote:
[53] This Tribunal has, in recent decisions, demonstrated an increasing awareness of the disastrous impact on the Australian community of a rising road toll. Road safety is a matter of legitimate concern to all responsible citizens and to this Tribunal.
…
[56] In assessing claims for citizenship it is not improper, in my view, for the Tribunal to take into account whether or not an applicant for citizenship has, by his past behaviour, demonstrated that he has and may very well continue to act in a fashion which puts at risk the lives and wellbeing of other Australians.
[53] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347.
Underpinning all this is the simple statement in Wang:
[Y]ou continued to disregard the laws whose purpose it is to protect users of the road. Those laws go to the essential safety of the community.[54]
[54] Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7].
All of those Tribunal cases concluded, in the words of Apire:
The important point is that [t]his flagrant disregard for law and for community safety… point to aspects of character that are not consistent with a person who is of ‘good character’ for the purposes of the Act.[55]
[55] Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [25].
The Tribunal notes that the Applicant has some insight into the significance of matters of road safety and while he claims (correctly) that in none of his offences was any other person injured, that does not detract from the fact that by the very nature of being in control of a motor vehicle and under the influence of alcohol, by definition, others (as well as himself) were at risk.
During the 12 months ended August 2021 there were 1,138 people killed on the roads in Australia, regrettably an increase of 3.7% on the previous year.[56]
[56] Australian Government Department of Infrastructure, Transport, Regional Development and Communications, Road Deaths Australia (August 2021).
Every Australian, every road user, has an interest in road safety. Road safety is compromised by people who drink and drive. Looking out for the safety of others, on the roads as much as anywhere else, is a hallmark of good character.
DISCUSSION
There is no doubting that the Applicant has committed the offences for which he has been convicted. The question becomes whether or not those convictions, and their recency, are sufficient to deny him entry to the body politic by citizenship.
Subsection 34(2) of the Act establishes a mechanism whereby a person’s citizenship may be revoked in the event that they commit a “serious offence” or another specific offence as identified in that section and the Minister finds that it is “contrary to the public interest for the person to remain an Australian citizen.”
In commenting on this revocation power, the Tribunal in Waraich said:
In that regard it is not enough in my view merely to point to an offender’s convictions as if it was self-evidently so. Section 34(2)(c) is not expressed in a way which allows that. Merely being convicted does not make it self-evidently contrary to the public interest for a person to remain an Australian citizen. There may be very many good reasons why it is in fact in the public interest for a convicted person to remain an Australian citizen.
It is not however a question under section 34(2)(c) of what is in the public interest but only of what is contrary to it. More needs to be shown than merely convictions to show it is contrary to the public interest for a convicted person to remain an Australian citizen and that in my view was not shown by the Minister in this case.[57]
[57] Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524 at [75]-[76].
It is well established that the Tribunal cannot “go behind” any of the convictions in a way which calls them into question or impugns their finality.[58] The Tribunal can however consider:
[t]he evidence given by the first respondent concerning the circumstances that led to the charges being laid against him and the reasons he pleaded guilty to them;[59]
[t]he essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself;[60]
[i]n some instances this requirement may involve a degree of tension between the use of contentious evidence to explain the underlying circumstances of a conviction (a use that is permissible) and its impermissible use to question the conviction itself.[61]
[58] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Multicultural Affairsv SRT (1999) 56 ALD 349.
[59] Minister for Home Affairs v Sharma [2019] FCA 597 at [26] per Anastassiou J.
[60] Secretary to the Department of Justice and Regulation v LLF (a pseudonym) [2018] VSCA 155 at [42].
[61] MAH v Minister for Immigration and Border Protection [2018] AATA 416 at [24].
It is up to the Tribunal alone to determine what weight it gives to various matters which it must take into consideration when making its determinations.[62] Thus, while the convictions themselves cannot be questioned, and where there are no sentencing remarks which might be of assistance to the Tribunal in this process, it is open to the Tribunal to make its own findings as to just how far an applicant’s offending record goes to deny him or her the right to be found a person of “good character”.
[62] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33].
What the evidence establishes is that the various occasions involving driving while under the influence of alcohol resulted from the Applicant making inappropriate choices to drive after consuming sufficient alcohol to put him over the prescribed limit. Although repeated, there is nothing to suggest that this was a regular pattern of behaviour.
The failure to complete a breath analysis test on the first occasion resulted from the Applicant being unable, at the time, to blow a sufficient volume of air for the test to be conducted and then being unable to secure the services of a medical practitioner to conduct a blood test. The evidence is that he attempted to do so and expressed to the Police that he would “like to try it again and co-operate to the fullest extent.”[63] It is also true that the Applicant suffers from asthma which he describes as “exercise induced” but which Dr Peter Corte characterises as “mild asthma since early childhood”.[64]
[63] Respondent’s Tender Bundle at 17.
[64] Ibid at 27. Report dated 24 September 2009.
As noted above, the Applicant did not deny either the details or his level of responsibility for each of the three PCA offences and agreed with the Respondent that a person who drives under the influence of alcohol puts at genuine risk the safety of other people as well as himself.
The Respondent has, in large part, based its decision to deny the Applicant citizenship, on an assertion that the Applicant has, to use its representative’s words “an underlying issue with alcohol” which it says is manifest in the repeated convictions for PCA offences and in the unsuccessful attempts in the past by the Applicant to give up drinking. It goes on to say that any continuation of such behaviour has the potential to endanger the lives of other people and that this, together with the repeated failure to adhere to the law about drink-driving, establishes that the Applicant is not a person of good character.
“An issue with alcohol”
It was the Applicant’s evidence that he has suffered from depression for a number of years, especially after he was forced to give up his career as a professional sportsman/cyclist in 2008. He wrote in a letter (undated, but possibly September 2020) “I used to turn to addiction to handle my depression, without realizing my problem.”[65] In respect of this, he sought help from Dr Mohammed Ansary and has more recently been consulting with Mr Andre Jaegar, a psychologist. He admitted that he has, on previous occasions, attempted to give up drinking alcohol but that these have generally not been successful on a long-term basis, although when he was a professional sportsman it was the case that he would refrain from alcohol for periods of 6 to 7 months regularly.
[65] T-documents at 151.
On 6 May 2018 the Applicant completed the Traffic Offenders Rehabilitation Program (TORP)[66] from which he said he had “gained a significant insight into my offending behaviour”.[67] The TORP Intake Officer reported[68]:
“Further, Raynold Hercules was able to identify actions safe drivers should take and made a commitment to implement the following behaviours “1. Never drink and drive; 2. Speeding a little can still have great consequences; 3. It’s not only me that will be affected by my actions”. Raynold Hercules was able to demonstrate a positive attitude towards TORP “I would certainly say to the point I would give up drinking alcohol all together. Being more respectful to other humans on and off of the road”.
[66] Respondent’s Tender Bundle at 50.
[67] Ibid at 51.
[68] Ibid at 50.
Despite this, the Applicant reoffended on 24 January 2020 committing another PCA offence.
Similarly, while the Applicant advised (taken to be September 2020) that he had “stopped drinking and smoking”,[69] because he had a newly born child to whom he felt deeply obligated in this regard, it was his evidence that as recently as August 2021 he had drunk sufficiently on at least one occasion so as not to be able to remember what had occurred from 5.00pm on the preceding evening. He was frank enough to say that he occasionally drank in the evenings, that he enjoyed his red wine but that he never got to the stage of being drunk in public or to being in a state of being “drunk and disorderly”.
[69] Ibid at 151.
What the Tribunal makes of this, as best it can, is as follows. The Applicant has attempted on several occasions to give up drinking alcohol. On some occasions he has gone for a significant period without drinking. The birth of his son has changed his life and his attitudes to drinking. When he has felt depressed or under pressure he has occasionally resumed drinking but feels he does so in a controlled and moderate fashion. Nevertheless, he is not a good judge of those occasions when his drinking should have prevented him from driving a motor vehicle and he has offended in this regard on three occasions, two with low-range PCA and once with moderate-range. The Tribunal does not think that the Applicant “has a problem with alcohol” to the extent that he needs clinical intervention to address the problem but rather that when he drinks he lacks judgement about his ability to drive. The solution lies in is own hands to address this matter.
As of this date, the Tribunal cannot be satisfied that the Applicant has addressed this issue with a sufficient degree of commitment which would only be demonstrated were he to be able to show that he had gone for a period of some years without a repeat of his offending behaviour. He has made a good start, now being 11 months into a regime where his car is fitted with an Interlock[70] device and cannot be started unless the Applicant completes a breath-test yielding a less than 0.02 reading.
[70] Which is to remain in place until 24 November 2021. There is a copy of the signed interlock Service Agreement before the Tribunal.
The Possession offence
The Tribunal has noted the confusion surrounding all the exact details of the offence of being in possession of a prohibited substance. The Applicant was entirely forthcoming in his admission that, on a particular occasion the circumstances surrounding which are not entirely clear in the documentation before the Tribunal, he and some companions were using cocaine after they had attended a wedding. The amount which was admitted before the Court was 0.13 grams and the fine imposed was $330. In and of itself, the Tribunal would not have concluded that this was a sufficient basis to establish that the Applicant was not of good character and hence deny the citizenship application.
Misleading the Department
The Respondent in its SFIC (at [27]) characterises the behaviour of the Applicant in only admitting to one previous offence in his application document as him “having practiced deception with the Australian Government”. In both Nguyen and Fang[71] I stressed the importance of applicants being scrupulously honest when making applications for citizenship in terms of providing truthful answers to questions on official forms. In this instance the Applicant did not attempt to conceal the fact that he had offences on his record, he rather failed to list all of them, although he was obliged to do so. It was more a sin of omission rather than commission.
[71] Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082; Fang and Minister for Immigration and Border Protection [2018] AATA 3866.
Similarly, the Respondent added to the burden of offences during the hearing claiming that the Applicant had failed to disclose details of his partner (with whom he appears to have been in a relationship for some months) in his application form which requires the details of family members to be provided. The Applicant stated that he did not think he was obliged to do so given the chronology of his relationship and the timing of the application form. As far as the Tribunal is concerned, nothing turns on this.
The Qualities of the Applicant
Very properly, the Respondent concedes that the Applicant is a person who has many positive features to his character. The Tribunal would go further than this and considers it appropriate to place on record that there are many things to be said on behalf of the Applicant.
In the first instance in his evidence to the Tribunal he was honest, frank and forthright. He did not attempt to deny any of the matter puts against him nor to avoid responsibility for his choices and actions.
He has had a distinguished career as a professional sportsman representing South Africa in cycling world championships and Commonwealth Games selections. It appears that he had a successful career as a professional bike rider until laid low by glandular fever.
He has a consistent record of productive employment in Australia in the fishing, boating and cycling industries.
The Applicant was clear and coherent in his explanation of what he understood as the benefits of citizenship and his sense of commitment to Australia as his new permanent home.
He had provided a number of letters of support all of which attest to his good character and qualities. The Tribunal does not accept the Respondent’s dismissal of these as being of little value, not being fully cognisant of the Applicant’s record or compromised by personal vested interests.[72] For example, the letter from Dr Sophia Petta clearly evidences a knowledge of the Applicant’s past offending and comments favourably on his attempts at rehabilitation.[73]
[72] Respondent’s SFIC at [23].
[73] Respondent’s Tender bundle at 48-49.
Finally, the Tribunal takes note of the extent to which the Applicant reports his life as being “turned around” by the birth of his son in February 2020 and his evident desire to be a good parent and provider for him. He appears to be living in a stable relationship with his partner and their child.
After the hearing and with the express consent of the Respondent, the Tribunal sought information from the Applicant as to the citizenship status of his partner. Her citizenship in itself is not a relevant matter for the Tribunal, but it does help determine the citizenship status of the Applicant’s recently born son. The Applicant informed the Tribunal that his partner is a citizen of the United Kingdom and hence their child is entitled to both South African and British citizenship but has no automatic right of Australian citizenship himself. This is not a matter of any consideration in this application.
IF NOT NOW, WHEN?
When an applicant tells the Tribunal that they have “reformed”, or been “rehabilitated” and will not “repeat” any of their offending behaviour, the Tribunal needs some quasi-objective standard by which to judge their record or likelihood of compliance. In many respects, the best such standard is that of their proven behaviour – how long has it been since they last offended, failed or transgressed.
The Applicant himself clearly understood this point and indicated to the Tribunal that he was “happy to accept” that it needed to be satisfied that he had addressed any issues by demonstrating a non-offending record over a reasonable period of time.
In Ahori the Tribunal (in a matter involving a driving record) the Tribunal had regard to the number of offences and the fact that only a year had passed between last offence and application as factors being “too frequent and too recent”[74] to be satisfied of his good character.
[74] Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601 at [83].
In Assafiri where the applicant had a record of serious drug and financial offences and had served terms of imprisonment the Tribunal found:
I accept that absence of offending is itself and indicator of a person’s rehabilitation, and more so as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.[75]
[75] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [71].
In Kakar the Tribunal was dealing with an applicant with a serious criminal record and noted that:
[A] finding of good character will depend on many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.[76]
[76] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
In that case the applicant had been free from any offending behaviour for a period of some four years and the Tribunal made a decision that his application for citizenship “should be deferred for reconsideration”[77] for a further fifteen months.
[77] Ibid at [18].
In dealing with a similar case in terms of repeat traffic and PCA offences where the applicant had completed a Traffic Offenders Rehabilitation Programme some six months before the date of hearing and had not offended in the preceding 34 months the Tribunal found, in relation to the rehabilitation programme’s completion that:
Whilst this is commendable I believe that more time is required to see if this has been of lasting benefit.[78]
[78] Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033 at [15].
Deputy President Constance dealt with an applicant who had been involved with matters of domestic violence and where the applicant had been subject to a good behaviour bond. The Deputy President stated:
There is no evidence that Mr Sharma has been charged with any offences since the expiry of the bonds in 2013 other than a traffic infringement. Nevertheless, the relatively short period between the expiry of the bonds and the date of this decision, being just over two years, means that I cannot be satisfied, without more, that Mr Sharma has reformed.[79]
[79] Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608 at [48].
Tribunal authority seems to suggest that where offences have been of a relatively lesser degree of seriousness, where no violence has been involved and where no custodial sentences have been imposed, applicants are more likely to have fresh applications considered after they have maintained an unblemished record for a period of between three and five years. There is of course, no formal or statutory guidance on this matter and every case must be dealt with in terms of its individual circumstances and merit.
This Tribunal has no power to pre-empt or to bind any subsequent Tribunal in considering an application for citizenship which the Applicant may lodge in the future. That would be decided on the basis of the material before the Tribunal at that time.[80]
[80] Shi and Migration Agents Registration Authority [2008] HCA 31 at [37].
There is no limit to the number of times an applicant may apply for citizenship. In the meantime, the Applicant has the right of departure and return to Australia by virtue of his current Resident Return visa status. This situation was summarised in Fenn as follows:
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… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.[81]
[81] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
This Tribunal has found the Applicant to be a person who has both the capacity and willingness to make a positive contribution to the Australian community and a person who has a degree of insight into the nature of his past offending behaviour and the need for him to address the underlying causes of it. He now has additional motivation in terms of his new parental responsibilities. If he takes the time and makes the effort, a successful future application for citizenship will also confer benefits on the son for whom he now professes responsibility. It remains to be seen if that motivation is strong enough for the Applicant to maintain an unblemished record of non-offending over the course of the next couple of years.
The Tribunal hopes that will be the case, but until then it cannot facilitate a request for immediate access to citizenship.
DECISION
The decision under review is affirmed.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.................................[sgd].......................................
Associate
Dated: 7 October 2021
Date(s) of hearing: 22 September 2021 Date final submissions received: 27 September 2021 Applicant: In person Solicitors for the Respondent: Mr A Ray, Clayton Utz
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