Suwedhan Thuraisamy and Minister for Immigration and Border Protection

[2015] AATA 202

[2015] AATA 202 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/4258
Re	Suwedhan Thuraisamy
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President S E Frost
Date	1 April 2015
Place	Sydney

The Tribunal sets aside the decision under review, and remits the matter for reconsideration in accordance with a direction that the Applicant is of good character.

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

Deputy President S E Frost

CATCHWORDS

CITIZENSHIP – whether applicant of good character – previous traffic offences – expired good behaviour bond – decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 s 21, 24

CASES

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

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Deputy President S E Frost

INTRODUCTION

1. Mr Thuraisamy has applied to the Tribunal for the review of a decision to refuse his application for Australian citizenship by conferral.  His application was refused on 22 May 2014 by a delegate of the Minister on the ground that he was not of good character.

   BACKGROUND

2. Mr Thuraisamy is a 34-year-old national of Sri Lanka who first arrived in Australia in June 2009.  He arrived as what the Migration Act 1958 refers to as an “unauthorised maritime arrival”.  Accordingly he was immediately taken into immigration detention.  In January 2010 he was released from detention on the grant of a subclass XA 866 permanent residence visa.

3. In February 2014 Mr Thuraisamy lodged an application for Australian citizenship by conferral.  In his application he declared that he had been convicted or found guilty of an offence, and that he was at that time subject to a good behaviour bond. 

4. The Minister’s delegate who was responsible for considering Mr Thuraisamy’s citizenship application sought a National Police History Check through CrimTrac, which describes itself as “the national information-sharing service for Australia’s police, wider law enforcement and national security agencies”[1].  The report disclosed what looked like two “disclosable court outcomes” – both of them designated “Special category driver drive with special range PCA[2]” – and which were dated 19 June 2013 and 2 August 2013. 

   [1]

   [2] Prescribed Concentration of Alcohol

5. The delegate thought these results raised the question as to whether Mr Thuraisamy was a person of good character.  On 9 April 2014 Mr Thuraisamy was invited to comment on that question and he did so.  After taking Mr Thuraisamy’s response into account the delegate formed the view that Mr Thuraisamy was not of good character and refused his application for Australian citizenship. 

   MR THURAISAMY’S EXPLANATION OF THE CRIMTRAC RECORD

6. Both Ms Taah, who represented the Minister at the hearing, and I were somewhat confused by the CrimTrac record so we asked Mr Thuraisamy to explain it to us.

7. Mr Thuraisamy said that in the early hours of 10 March 2013, just after he had driven a friend home and while he was sitting and talking to his friend in the car, police officers approached him and asked him to undertake a roadside breath test.  He tested positive.  The officers took him to the local police station and carried out a further test which returned a reading of 0.034 per cent.  The CrimTrac entry for 19 June 2013 records the day Mr Thuraisamy appeared in the Parramatta Local Court in relation to that offence.  He was convicted, fined $200 and disqualified from driving for three months.

8. Mr Thuraisamy explained that, before his appearance in the Local Court on 19 June 2013, he had attended a five-session, court-ordered course directed towards drink-drivers and dealing with the effects of drink-driving.  He said that he passed that course although he had no paperwork to confirm that.

9. The reason the record refers to Mr Thuraisamy as a “Special category driver” is that he holds a green provisional (P-plate) licence.  Green P-plate licence holders are not allowed to drive with any alcohol at all in their system.  If Mr Thuraisamy had held an unconditional licence, for which he was qualified at the time of the offence, but which he had never taken the effort to obtain, his offence would not have been an offence at all, because his alcohol reading would have been below the permitted 0.05 per cent.

10. In any event, Mr Thuraisamy appealed against the sentence imposed upon him by the Local Court Magistrate.  On 2 August 2013 his appeal was heard in the District Court in Parramatta.  His appeal was successful.  The judge found Mr Thuraisamy guilty of the offence but, “without proceeding to conviction”, ordered Mr Thuraisamy to enter into a good behaviour bond for 18 months.  This appeal hearing in the District Court is the second entry on Mr Thuraisamy’s CrimTrac record, but it is only a continuation of the first offence.  He has in fact only committed one traffic offence which needed to be dealt with by way of a court appearance.

11. But that is not his only traffic offence.  He also told the Tribunal that on 24 March 2013, only two weeks after the PCA offence, he was booked for speeding – travelling at 140 km/h in a 110 km/h zone.  (As a green P-plate licence holder he should not have been travelling over 100 km/h, and so he was actually travelling at 40 km/h over the speed limit.)  This speeding offence was dealt with by way of an on-the-spot fine (which he said was $800) plus an immediate three-month suspension of his licence.

12. Mr Thuraisamy has been driving in Australia since about April 2010.  He started driving on a learner’s licence, after passing a Road Rules test.  Then, about a month later, he passed a practical driving test and moved straight to a green (rather than red) P-plate licence because he had over two years experience driving overseas.  He explained that he could have subsequently progressed to an unrestricted licence after driving for at least one year on his green P-plate licence.

13. Apart from the two offences in March 2013, Mr Thuraisamy has committed no other driving offences, either before or after that time.  He has no other police record at all.

    LEGISLATION AND POLICY

14. The relevant legislation is the Australian Citizenship Act 2007 (the Act).

15. The Minister has the power under s 24 of the Act to approve or refuse a person’s application for Australian citizenship.  However, the Minister must not approve a person’s application unless the person is eligible to become an Australian citizen under s 21.

16. In this case the relevant part of s 21 is subsection (2), which sets out in paragraphs (a) to (h) the various matters of which the Minister must be satisfied for a person to be eligible to become an Australian citizen.  In relation to Mr Thuraisamy, the Minister is satisfied that he meets all of the requirements except the one in paragraph (h).  That paragraph requires the Minister to be satisfied that the person who is applying for Australian citizenship “is of good character at the time of the Minister’s decision on the application”.  As the Tribunal is undertaking merits review of the Minister’s decision, the central question is whether I am satisfied that Mr Thuraisamy is of good character at the time that I make my decision.

17. Sitting behind the Act is a body of departmental guidelines known as the “Australian Citizenship Instructions”, or ACIs, which guided the Minister’s delegate in making the decision which is now under review.  The Minister, referencing Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (Drake No. 2), contended that the Tribunal must take those guidelines into account unless there are cogent reasons not to.

    THE DELEGATE’S DECISION

18. The delegate noted in the reasons for decision that, according to the ACIs, the task of assessing good character involves:

    ·establishing whether or not an applicant has a criminal record, and the nature of that record, if any

    ·establishing whether or not an applicant may have been involved in crimes against humanity, without having criminal convictions, through having undertaken military or similar service or having held a position of authority in a country that has experienced conflict and serious human rights abuses

    ·establishing whether or not there is other information relevant to the issue of character

    ·according procedural fairness to the applicant where there is credible, relevant, and adverse information which the decision maker intends to take into account and

    ·considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicant’s behaviour.

19. Evidently believing that Mr Thuraisamy had been convicted of two separate PCA offences, the delegate formed the view that Mr Thuraisamy was not of good character.  She stated:

    I am satisfied that you have been convicted of a Driving offences (sic) and that this is therefore considered to be low to middle range in terms of seriousness.

    Having regard to the sentence imposed I am satisfied that your offence is at the middle range of seriousness.  This weighs against you being of good character.  I give this factor considerable weight in my assessment of whether you are of good character.

    I am satisfied that the offences you committed is (sic) your only finding of guilt in Australia and, on the face of it, it may be a one-off occurrence.  This weighs in favour of you being of good character.  I give this factor little weight in my assessment of whether you are of good character. 

    You have not provided any information that indicates that there were any extenuating circumstances relating to your offence(s).  This weighs against you being of good character.  I give this factor some weight in my assessment of whether you are of good character.

    After considering an applicant’s conduct, citizenship policy states that one of the factors to be considered is whether the applicant has rehabilitated themselves and made a conscious effort to obey and uphold Australian laws.

20. Then, after referring to the favourable character references Mr Thuraisamy submitted, the delegate stated:

    Citizenship policy states that a reasonable amount of time will need to have passed since the applicant has been free of obligation to the court (including the duration of the driver disqualifications) to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character. Your obligation to the court, is still on-going, you were directed to enter into a good behaviour bond for 18 months pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to commence on 2 August 2013 and accept the following conditions: the offender must be of good behaviour and appear before the court during the bond term if required. I am not satisfied that a reasonable amount of time has passed to establish a pattern of good behaviour and to conclude that you are now of good character. This weighs against you being of good character. I give this factor considerable weight in my assessment of whether you are of good character.

    OBSERVATIONS

21. When Mr Thuraisamy was given the opportunity in April 2014 to respond to the department on the question of good character, he did not make it clear that he had committed only one PCA offence.  He also did not address the CrimTrac report reference to the “speeding offence” on 24 March 2013.  The delegate formed a reasonable view that Mr Thuraisamy habitually broke the traffic laws and, with no explanation of the circumstances behind such behaviour, weighed that factor heavily against him.

22. It is now clear that Mr Thuraisamy has committed only one PCA offence.  Of course, that is one too many, but at least it can be said that it was a low-range reading.  The District Court Judge declined to record a conviction, and set aside the Magistrate’s sentence of a $200 fine and a three-month disqualification.  That indicates the Judge’s view that the offence is at the lower end of seriousness.

23. Mr Thuraisamy also provided the Tribunal with an explanation of the circumstances that led to the speeding offence.  He said he was driving on the Hume Highway between Sydney and Melbourne, not far from Gundagai.  He had two friends in the car.  One of them was complaining of stomach pains and had an urgent need to use the toilet.  Mr Thuraisamy sped to try to get to a rest stop as quickly as possible.  When the police pulled him over, he explained the circumstances to the officer but was told, “Rules are rules; I have to apply the rules to everyone.”

    CONSIDERATION

24. The term “good character” is not defined in the Act and the Tribunal must therefore be guided by the ordinary meaning of the words as interpreted by the courts.

25. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Full Federal Court considered the meaning of the expression “good character”. Davies J (with whose reasons R D Nicholson J agreed) said at 425:

    ... 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 … 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.

26. In the same decision, Lee J said at 431-432:

    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 ... 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. ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. (References to authorities omitted)

27. Mr Thuraisamy’s traffic offences occurred within the space of a fortnight, two years ago.  Apart from these offences, Mr Thuraisamy’s driving record is unblemished.  He has no other criminal record.

28. Since joining the Australian community in January 2010, he has worked as a cleaner in a public primary school for about three years, and more recently as a carer for disabled people.

29. He has a number of favourable references from the primary school principal, several of his current work colleagues and a Minister of the Uniting Church.

30. The Minister submits that Mr Thuraisamy’s two traffic offences demonstrate a pattern of behaviour – of not obeying Australia’s driving laws.  I do not agree.  I think Mr Thuraisamy’s driving record shows a pattern of obedience to those laws, with two regrettable exceptions.

31. The Minister then submits that Mr Thuraisamy’s apparently satisfactory behaviour during the 18-month good behaviour bond period, which only recently expired, should be viewed cautiously by the Tribunal since Mr Thuraisamy has been under a particular motivation not to transgress during that period and would have been well aware of the consequences if he had.  However, in my view, Mr Thuraisamy has simply continued to demonstrate the same standard of behaviour that he had demonstrated in his three years in the Australian community prior to committing the offences.  He has demonstrated that he does not need to be specially motivated to conduct himself in the way expected of a good citizen.

32. Finally the Minister submits, consistently with the ACIs, that a further amount of time equivalent to the 18-month bond period needs to have expired before Mr Thuraisamy can show that he has reformed and is of good character.  I do not see why that should be so.  First, it assumes, wrongly in my view, that placing Mr Thuraisamy on a good behaviour bond necessarily indicates that he was not of good character at that time.  Second, while it might in some circumstances provide a reasonable guide to a person’s “reformation”, it should never be regarded as anything more than a rule of thumb, and a flexible one at that.  It is not a universal rule, and it should not be applied as if it is.

33. I am satisfied on the material before me that Mr Thuraisamy is of good character.

    CONCLUSION

34. As a consequence, and because of the Minister’s acceptance that all other criteria in s 21(2) of the Act have been met, Mr Thuraisamy is “eligible to become an Australian citizen”.  That opens the way for the Minister to approve, under s 24, Mr Thuraisamy’s application.  However, s 24(2) provides that the Minister can still refuse the application despite Mr Thuraisamy’s eligibility.  While that would be an extraordinary outcome in this case, and possibly one incapable of justification, I do not consider that I should simply substitute a decision that Mr Thuraisamy be granted Australian citizenship.

    DECISION

35. The appropriate decision is to set aside the decision under review, and remit the matter for reconsideration in accordance with a direction that Mr Thuraisamy is of good character.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

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

Associate

Dated 1 April 2015

Date(s) of hearing	3 March 2015
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor