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

[2021] AATA 824

Thakur and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 824 (9 April 2021)

Division:GENERAL DIVISION

File Number:          2020/0597

Re:Siddhartha Thakur

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:9 April 2021

Place:Sydney

The decision under review is set aside and remitted to the Respondent with the direction that the Applicant satisfies paragraph 21(2)(h) of the Act.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – drink driving and traffic offences – whether applicant is of good character – application of Citizenship Procedural Instructions – decision under review set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21, 24

CASES

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

SECONDARY MATERIALS

Australian Citizenship Policy Statement, 27 November 2020

Australian Citizenship Procedural Instructions (Cth); CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Mr S Evans, Member

INTRODUCTION

1. Siddhartha Thakur (“Mr Thakur”) is a 33 year old Indian national.  He lodged an application for Australian citizenship by conferral on 30 April 2018.  On 9 January 2020, a delegate for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) refused Mr Thakur’s application as it was determined that he did not meet the good character requirement for Australian citizenship by conferral.  Mr Thakur contends that the decision to refuse his application did not take into account all the relevant considerations and seeks review at the Administrative Appeals Tribunal (“the Tribunal”). 

   Background

2. Mr Thakur first arrived in Australia in February 2007.  He departed Australia in August 2010 and appears to have resided in India until permanently relocating to Australia in March 2014.  Mr Thakur is married to an Australian citizen and is father to a son who was born in June 2018. 

3. Mr Thakur make an application for Australian citizenship by conferral which was lodged on 20 April 2018. 

4. On 9 January 2020 Mr Thakur’s application for Australian citizenship by conferral was refused by a delegate of the Minister on the basis that he did not meet the character requirements in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”).  The delegate was not satisfied that Mr Thakur was of good character as a reasonable time had not passed since a Conditional Release Order (“CRO”), which was imposed on him, concluded on 2 September 2019. The delegate also considered that Mr Thakur’s failure to disclose the conviction for which the CRO was made in his citizenship application weighed against him being of good character. 

   ISSUE

5. The issue to be determined is whether Mr Thakur is of good character at the time of the Tribunal’s decision such that he meets the requirement for eligibility to become an Australian citizen.

   LEGISLATIVE AND POLICY FRAMEWORK 

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. 

7. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

   Determining questions of character

8. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, under paragraph 21(2)(h) of the Act, a person is eligible to become an Australian citizen if, among other things, the Minister is satisfied that the applicant is of good character at the time of the Minister’s decision on the application.

9. The term “good character” is not defined or qualified by the Act.  Its meaning was considered by the Full Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (“Irving”) in the context of the power of the Minister to refuse to issue a visa.  Lee J said:

   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.[1]

   [1] (1996) 68 FCR 422, 431-432.

10. The Department’s official guides to decision makers, includes both the Australian Citizenship [Policy Statement] (“the Policy Statement”), which details the overarching legislative requirements for becoming an Australian citizen, and the Australian Citizenship Procedural Instructions (“the Instructions”). The Policy Statement provides context to the Instructions.

11. The Instruction relevant in this matter is CPI 15 - Assessing Good Character under the Citizenship Act (“the Instruction”). The Instruction provides guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.

12. Informed by the discussion in Irving, section 4.3 of the Instruction states that:

    … a decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

13. The Instruction specifically calls for the decision maker to “look holistically at an applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities”.[2]

    [2] The Instruction, section 4.11.

14. The Tribunal is guided by these considerations in determining whether Mr Thakur meets the good character requirement for Australian citizenship.   

    EVIDENCE AND CONTENTIONS

    Driving offences

15. On the evening of 9 November 2018 Mr Thakur was stopped at a random breath testing station after he had been drinking with his father-in-law.  On 3 December 2018, Mr Thakur was found guilty by the Nowra Local Court of drive with middle range PCA (prescribed concentration of alcohol) (“drink driving offence”).  He was directed to enter a CRO for 9 months commencing 3 December 2018 and concluding 2 September 2019. 

16. Mr Thakur did not inform the Department of his conviction.  Documents produced under summons from Nowra Local Court and NSW Police revealed that Mr Thakur has two further traffic offences – specifically a January 2018 conviction for exceed the speed limit by more than 10 km/h but not more than 20 km/h whilst driving a motor vehicle for which he was fined $259 and another offence from January 2019 of drive on nature strip for which he was issued an infringement notice. 

17. Mr Thakur was issued a procedural fairness letter by the Department on 20 November 2019 and afforded an opportunity to comment on the offences in his National Police History Check Report.  He responded by providing three character references, a certificate of attendance at a serious traffic offenders program dated 17 November 2018 and a signed letter in which he explained the circumstances of his offending and the reasons for not informing the Department. 

    Mr Thakur’s explanation for the drink driving offence

18. In a written submission, Mr Thakur explains that he did not disclose the drink driving offence to the Department because he was given a good behaviour bond for the drink driving offence, for which he states he was “not convicted” and was told “[the offence] would not reflect on [his] permanent record”. He explained that the “magistrate took into account that this was a first-time offense [sic] and that it was completely out of character and so she did not convict me of the charges and placed me on a good behaviour bond for 9 months which I completed without incident”. 

19. Mr Thakur also recounted the events prior to the drink driving offence. He wrote in part: 

    The circumstances that led to my offense were that on the 9th of November 2018 I was having a few drinks with my father in law and had left my wife and our 6 month old baby at home sleeping. There is only about 2 kms in-between my wife's parent's house and ours so I had originally intended on walking home later that night. It was about 10 pm when I got a phone call from my wife saying that our baby had woken screaming, was not settling and that she needed me home immediately. It is worth mentioning that our son was born with a rare condition that required major surgery a few weeks after birth and makes him more susceptible to bowel obstructions. In a panic I jumped in the car and didn't even think about the alcohol I had consumed. I was pulled over and breath tested and found to have a midrange blood alcohol reading.

    [errors in original]

20. Mr Thakur concedes that he broke the law and that his drink driving offence was “wrong”.  That said he notes that he plead guilty to the offence and maintains he was unaware of the obligation to inform the Department of his conviction.  He suggests that the offence should been placed in the context of his time in Australia noting that he has been here “on and off” since 2007 and has been driving “pretty much every day to and from work” without incident.  He explains that he is not “inclined to break the law” and the drink driving offence was the outcome of a “confluence of circumstances”. 

21. During the hearing Mr Thakur provided additional detail regarding the circumstances which preceded this drink drive offence.  He claims that following a phone call from his wife informing him that their child was crying, he got into his car to get home as quickly as possible.   He reiterated that such impulsive actions are not “something that happens every day”.  Nor, he explained, was he attempting to justify his actions. 

22. Evidence before the Tribunal supports Mr Thakur’s assertions regarding his child’s health challenges.  Included is a discharge summary from a foetal cardiac specialist at Sydney Children’s Hospital dated February 2018.  The summary confirms that Mr Thakur’s son was born in June 2018 and was diagnosed with a congenital abnormality, and both mother and child were discharged three days after birth. 

23. In July 2018, Mr Thakur’s son was required to undergo surgery to repair a congenital diaphragmatic hernia at Sydney Children’s Hospital. In October 2018, his son presented for a follow up appointment at Sydney Children’s Hospital. Mr Thakur explained that during this time he was working long hours at a farm to pay for the unforeseen expenses arising due to his son’s condition.  He became mentally and physically exhausted, which added to the stress of his mortgage from the previous year.

24. During the hearing Mr Thakur was asked why his father-in-law did not go back home with him.  He was also questioned if he had asked the police if he could check in on his wife before being taken to the station for an alcohol test.  Mr Thakur explained that he called his wife prior following the roadside breath test and prior to being taken to the station.  In hindsight he appreciates that it was not necessary for him to have rushed home on account of his child.  The Tribunal concludes that the events leading to the drink driving offence were closer to an overreaction on Mr Thakur’s part than a potential medical emergency. 

25. With reference to his other traffic offences, Mr Thakur told the Tribunal that the drive on nature strip offence was the result of his driving from his workplace to a fast food restaurant next door.  He had seen others do the same thing and thought it was acceptable to do so.  This offence occurred on 29 January 2019 whilst Mr Thakur was subject to the CRO.   

    Witness statements

26. Mr Thakur has provided three supporting character statements which speak to his reform since his drink driving offence and his general good character and dedication to family. 

    CONSIDERATION

27. The Respondent contends that Mr Thakur is not of good character for the purposes of paragraph 21(2)(h) on account of his drink driving offence and dishonesty in not notifying the Department of his drink driving conviction. 

28. In relation to the drink driving offence, the Respondent submits that the Mr Thakur demonstrated recklessness and indifference to the safety of the general public and other members of the community. 

29. It is also submitted that Mr Thakur’s explanation for the drink driving offence is implausible and “demonstrates a failure to accept responsibility for his actions”. Casting doubt on Mr Thakur’s explanation for his drink driving, the Respondent notes that the offending occurred some four months after the birth of his son and his subsequent surgery.  The Respondent also argues that Mr Thakur’s explanation is further undermined by a respiratory paediatrician’s report dated 11 October 2018 which found that Mr Thakur’s son was clinically well in October 2018 and did not require further examination until April 2019. 

30. The Respondent also argued that insufficient time has elapsed since the conclusion of Mr Thakur’s court obligations for the Tribunal to be positively satisfied that Mr Thakur is of good character. 

31. In cross examination it was put to Mr Thakur that he had produced his Indian driver’s license to police at a time he had already been issued a NSW driver’s licence.  Mr Thakur was insistent that this was not the case and was afforded an opportunity to provide documentary evidence.  Mr Thakur provided additional documentary evidence clarifying the status of his NSW driver licence and the Respondent withdrew this submission.  However, it would appear that Mr Thakur was driving using his Indian license at a time by which he should have already obtained a NSW driver’s licence.

32. Based on the evidence, the Tribunal does not accept that the seriousness of Mr Thakur’s drink driving offence is ameliorated by his son’s medical condition.  The Tribunal accepts Mr Thakur was under additional pressure owing to the birth of his child and medical appointments which ensued before and after his birth, but this again does not lessen the seriousness of the offence. 

33. However, in terms of the seriousness of the offending the drink driving offence was a mid-range first time offence for which Mr Thakur was required to pay a fine of $166 in addition to the CRO.  The Tribunal accepts that Mr Thakur’s offending was at the lower end of the range of drink driving offences.  Mr Thakur has two additional driving related offences, or traffic offences, both of which are minor in nature and do not appear to reflect a pattern of recklessness or persistent disregard for the law. 

34. Mr Thakur has a busy life.  He is a young father and has a new child to care for.  He and his wife had the additional burden of attending to specialist medical requirements owing to his son’s condition.  He works two jobs – on a farm and previously at a service station – and his offence of driving on the nature strip occurred as he went to get fast food after work.  He has now set up a company cleaning short term holiday rentals. He and his wife have a substantial mortgage and car payments to keep up, and their income is reduced as his wife is unable to work full time. 

35. It is not in dispute that Mr Thakur failed to notify the Department of his drink driving conviction.  However, I do not accept the Respondent’s contention that it is indicative of dishonesty so much as Mr Thakur’s contention that it was an oversight borne of the competing demands on his time and attention.  The drink driving conviction was recorded some seven months after Mr Thakur lodged his citizenship application, so it is understandable that his obligations to inform the Respondent were not front of mind.  In a letter to the Tribunal, Mr Thakur described his personal circumstances at that time: 

    The second half of 2018 was a very trying time for my wife and I as we had a complicated birth of our first child…

    During this time as one could imagine we were both emotionally and financially taxed as [Mrs Thakur] was staying in Randwick whereas I was driving back and forth from Nowra for appointments as I had to continue to work. After the birth of our son we returned home for 3 weeks before we had to return to Randwick to have our baby go through an operation and remain in hospital for another 4 days to recover. All through this time I was working at a farm starting at 3:30 am through to 1 pm, sometimes putting in overtime till 5 pm to be able to get money together for the unforeseen expenses. I was mentally and physically exhausted and the pressure of having bought a house with a mortgage the previous year meant i didn't have any other option but to keep going.

    [Errors in original]

36. The Respondent submits that “a person of good character would have disclosed the PCA offence to the Department as soon as practicable after the court outcome”, however I do not place great weight on his failure to do so in light of the totality of the circumstances outlined above. 

37. Decision makers, including the Tribunal, are required to look holistically at applicants when determining questions of character.  In considering Mr Thakur’s character it is apparent that he is working hard to provide a future for his family.  He has made a mistake in drink driving, which he accepts responsibility for.  His failure to inform the Department of his offending is accepted as being an oversight rather than an attempt to mislead the Respondent. Without diminishing the potential harm and seriousness of drink driving, it is accepted that Mr Thakur’s mid-range drink driving is at the lower end of the scale for such offences. 

38. Finally, the delegate determined that Mr Thakur’s obligations to the court had not long expired at the time of the original decision.  Since then, a further 15 months has passed, and I am satisfied that at the time of the Tribunal’s decision Mr Thakur satisfies the good character requirements for Australian citizenship. 

39. For these reasons, on balance, the Tribunal is satisfied that Mr Thakur currently satisfies the good character requirement in paragraph 21(2)(h) of the Act. 

    DECISION

40. The decision under review is set aside and remitted to the Respondent with the direction that Mr Thakur satisfies paragraph 21(2)(h) of the Act. 

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 9 April 2021

Date of hearing:	17 December 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Mr C Burke, Sparke Helmore Lawyers