Somerville and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 884

Somerville and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 884 (31 August 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0610
Re	Mark Somerville
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	31 August 2015
Date of written reasons	18 November 2015
Place	Canberra

The decision under review is affirmed.

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

Deputy President Gary Humphries

Catchwords

CITIZENSHIP – Application for Australian citizenship – whether the Applicant is of “good character” – Applicant’s criminal history – decision under review affirmed.

Legislation

Australian Citizenship Act 2007 (Cth) s 21(2)(h)

Australian Citizenship Instructions

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

Deputy President Gary Humphries

18 November 2015

Summary

1. Mark Somerville, the Applicant, is 53 years of age and was born in England. He migrated to Australia in 1970 and holds a permanent visa. On 26 September 2014, the Applicant lodged an application for conferral of Australian Citizenship with the Department of Immigration and Border Protection. On 15 January 2015, a delegate of the Minister decided not to grant Mr Somerville’s application for Australian citizenship on the grounds that he was not was of “good character” — one of the statutory criteria for Australian citizenship — because of his history of criminal offences. The Applicant applied to the Administrative Appeals Tribunal for review of that decision on 9 February 2015. For reasons I will explain, I have decided the decision should be affirmed.

   Statutory framework

2. Section 21(2) of the Australian Citizenship Act 2007 provides that:

   (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (h) is of good character at the time of the Minister’s decision on the application.

3. The term good character is not defined in the Act. The Australian Citizenship Instructions provide further guidance for decision makers to satisfy themselves that the person is of good character in relation to the application of s 21(2)(h) of the Act. Such policy should be applied unless there are cogent reasons not to.[1]

   [1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

   Criminal history

4. The Respondent took the Tribunal through the Applicant’s criminal history in detail. The Minister contends that due to Mr Somerville’s long history of repeated criminal offending, sufficient time has not passed for the Applicant to demonstrate that he is of good character. The Respondent submitted that the Applicant’s criminal history displays a wide variety of criminal offending, offences which reflect poorly on his character and suggest that he does not behave in an ethical manner.

   Drug offences

5. The Applicant’s criminal history includes drug offences. These are serious offences but I note that they occurred almost 20 years ago. If the drug offences were the only matters before me I would probably take the view that they are to be disregarded, in that if a person cannot demonstrate over such a period an ability to set aside their affinity with drugs, then no one ever could.

   Driving offences

6. The matters relating to the Applicant’s driving record are more difficult to disregard. The offences constitute a very concerning pattern which goes back more than 30 years, and which amply demonstrate that at certain points in the Applicant’s life, notwithstanding that there were sometimes exonerating circumstances, he displayed a serious recklessness towards the road rules.

7. The worst of the Applicant’s traffic offending does appear to be 10 or more years distant, but it concerns me nonetheless that within the last 10 years there have been offences, and even within the last 5 years. I note what was said, for example, about the negligent driving offence. The Applicant’s mother made a reasonable point about the pressure the Applicant was under as he was driving the car. However there is an obligation on all of us ­– if we are in charge of a car, where other lives are dependent on our judgement – that we do not allow other things to distract us. Notwithstanding the fact that the Applicant needed to get a child somewhere urgently for good reason, he drove in circumstances where he was not fully focused and concentrating on the road.

8. The driving offence at the beginning of 2014, driving an unregistered motor vehicle, is hard to overlook in the circumstances where the Applicant has had such a pattern of offending in relation to driving unregistered or unlicensed vehicles, or driving when he was not qualified to drive. I accept that it was unfortunate that he was behind the wheel of that car that day but after so much adverse experience in relation to unregistered and uninsured motor vehicles, to have not been entirely sure that he was driving a registered and insured vehicle could only be regarded as reckless. I need to be satisfied that the Applicant is no longer reckless with respect to the laws of Australia.

   Consideration

9. The granting of Australian citizenship is a privilege and Australians are entitled to expect that quite a high standard is set for those who seek conferral, even in this case where the Applicant has lived here virtually all of his life. We expect a high degree of good character, among other qualifications, in order to be an Australian citizen. The oath that citizens take includes the phrase “…whose laws I will uphold and obey”.

10. I accept that the Applicant has had some experiences in his life which, with the benefit of hindsight, he now believes were serious mistakes. The Applicant has come to an appreciation that he needs to turn his life around and to build a creditable citizenship if he is in the position to obtain that in the future. The Applicant wants to set an example to his children, which is important for their upbringing and their future.

11. It is to the Applicant’s credit that he has been able to obtain employment on a casual basis and taken on the responsibility of looking after his four children, at least one of whom is still a minor so needs to be at home and looked after. The Applicant obviously has some people prepared to stand by him and give support in the form of the statements and the evidence that has been presented. That is an indication that the people around the Applicant see him as a person who has taken on the responsibility of getting his life in order for the future.

12. I acknowledge the testimony of the witnesses who have been brought to the Tribunal today and the evidence that the Applicant is making a strong and active attempt to be able to turn his life around, but I do regard the offences, particularly the traffic and driving offences, as showing a pattern of sustained disregard for the laws of Australia. I am not yet satisfied that Mr Somerville has been successful in breaking that pattern. I commend the Applicant for the efforts he is making to reach the point where he can put that part of his life behind him and I hope that that point is reached in the very near future.

    Conclusion

13. Pursuant to s 21(2)(h) of the Australian Citizenship Act, I affirm the decision of the Minister’s delegate of 15 January 2015, in that I am not satisfied that the Applicant is at this point in time of good character.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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

Associate

Dated 18 November 2015

Date of hearing	31 August 2015
Applicant	In person
Solicitors for the Respondent	Clayton Utz