Tsai and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 411

Tsai and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 411 (22 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5607
Re	I-Pei Tsai
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	22 June 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP - eligibility - whether applicant of good character - traffic offences – question of disclosure of traffic offences in citizenship application - applicant found not to be of good character for the purposes of citizenship legislation - decision affirmed

LEGISLATION

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

CASES

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Hang Zhang and Minister for Immigration and Border Protection [2014] AAT 136
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Zhengqin Wang and Minister for Immigration and Border Protection [2014] AATA 89

SECONDARY MATERIALS

Citizenship Policy

REASONS FOR DECISION

Senior Member A Poljak

22 June 2016

INTRODUCTION

1. Ms Tsai is a 39-year old female born in Taiwan, who first arrived in Australia on 5 May 2001. She is currently the holder of a subclass VE175 (permanent) visa granted on 14 July 2011.

2. She lodged an application for Australian Citizenship on 6 August 2015 (“Citizenship application”) under section 21 of the Australian Citizenship Act (2007) (Cth) (“the Act”).

3. On 7 October 2015, the Minister’s delegate refused Ms Tsai’s Citizenship application because she was not satisfied that the applicant was of ‘good character’ (“the decision”). Ms Tsai has applied to the Tribunal for review of that decision.

4. The issue before the tribunal is whether it is satisfied that Ms Tsai is of good character in accordance with s 21(2)(h) of the Act.

   DEFINITION OF ‘GOOD CHARACTER’

5. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which from 1 June 2016, replaces the policy guidance previously provided in Chapter 10 of the Australian Citizenship Instructions (“the ACIs”), which was last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions.

6. The role of the Citizenship Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

7. As submitted by the respondent at hearing, I am considering this matter afresh (de novo) and although the ACIs were the relevant policy guidance at the date the decision was made, the relevant policy from 1 June 2016, and at the time of hearing, was the Citizenship Policy. In any event, whichever policy I consider makes very little difference to the decision I am tasked to make. Both documents are similar on the aspects relevant to this matter.

8. As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 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…

9. The Citizenship Policy states the phrase “enduring moral qualities” which encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

10. The Citizenship Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevantly, a person of good character would, inter alia:  respect and abide by the law in Australia and not cause harm to others through their conduct.

11. In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in citizenship applications:

    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. (my emphasis)

12. That then leaves the question of mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Citizenship Policy, the Tribunal is to weigh up certain factors, applying community standards.

13. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way Ms Tsai did, the amount of time that has elapsed since offending, whether Ms Tsai has demonstrated that she can uphold and obey the law, whether she has accepted responsibility and shown remorse for her conduct and any extenuating circumstances relating to the offences.

    TRAFFIC OFFENCES AND BEHAVIOUR

14. Ms Tsai first applied for an Australian drivers licence around 2008 but did not obtain her learners licence until 21 October 2011. During the hearing, Ms Tsai told the Tribunal that prior to her first traffic offence in June 2010, she drove a vehicle in Australia using her International licence and it took her a very long time to pass the requisite tests to obtain her learners licence. Her difficulties with obtaining her licence were due to language difficulties and not understanding the Australian traffic laws.

15. Ms Tsai’s Online Driving Record records the following offences:

Date	Offence	Conviction Date	Penalty
27 November 2012	Drive whilst disqualified	22 January 2013	Disqualified 2 years from 27 November 2013 100 hours Community service
1 October 2012	Drive whilst suspended	27 November 2012	Disqualified 1 year from 27 November 2012 $600 fine
1 October 2012	Not complying with conditions of learner licence (not display L Sign(s)) as required	27 November 2012	$100 fine
1 October 2012	Not complying with conditions of learner licence (unaccompanied)	27 November 2012	$400 fine
1 October 2012	Police suspension of learner licence commencing 1 October 2012 to 31 December 2012. Decision lifted on 5 December 2012.
2 December 2011	Demerit point suspension of learner licence for offence dated 24 October 2011
24 October 2011	Exceed speed limit by not more than 10km/hr	$154 fine
22 May 2010	Exceed speed by more than 30km.hr but not more than 45km/hr	9 June 2010	Disqualified for 3 months from 9 June 2010 $300 fine
22 May 2010	Drive unlicensed- first offence in 5 years	9 June 2010	$300 fine

1. The respondent contends that even if the Tribunal accepted Ms Tsai’s lack of understanding of Australian traffic laws, this would only be relevant for the first traffic offences in 2010 and does not provide a reasonable explanation for her subsequent traffic offences in 2012 and 2013. I agree.

2. While traffic offences are not ordinarily considered serious, the number of Ms Tsai’s traffic offences and the relatively short period of time in which they were committed are significant. The number of repeat offences indicates a pattern of offending. I am not satisfied that language difficulties and a lack of understanding of Australian traffic laws are enough to explain Ms Tsai’s pattern of offending.

3. Significantly, on 1 October 2012, Ms Tsai was pulled over on the highway driving home to Gosford from Hornsby. She was charged with not complying with the conditions of her learner licence (not displaying L sign(s) and driving unaccompanied). Ms Tsai’s evidence at hearing was that the Police officer told her, at the time she was charged, that her licence was suspended and that she could not drive. She attempted to contact a Taxi and her flat-mate to collect her from the Highway. Neither attempt was successful. Ms Tsai said that because it started to get dark and because she had no other way to get home, she decided to drive herself home, even though she knew that she would be breaking the law. On her way home, Ms Tsai was again pulled over by the Police and charged with driving while suspended. As a result of this offence she was disqualified from driving for 1 year from 27 November 2012.

4. On 27 November 2012, the same day that the Court ordered her disqualification, Ms Tsai was once again caught driving her vehicle and subsequently charged with driving while disqualified. Ms Tsai evidence was that she only intended to drive her vehicle to the dealer in order to sell it. I do not accept this as a reasonable explanation for the behaviour. On her own evidence she knew she was breaking the law, but she drove anyway. As a result of this offence, she was disqualified from driving for two years from 27 November 2013 and was ordered to complete 100 hours of community service.

5. During the hearing, Ms Tsai gave evidence that she understood the requirements of her learner’s licence and relevant traffic laws in 2012-2013 but she continued to break the law anyway. When pressed in cross examination, Ms Tsai told the Tribunal that she broke the law many times prior to her conviction in January 2013 but was never caught. Accordingly, she accepted that her driving record was not an accurate reflection of how many times she broke the law and that it was not an accurate reflection of her behaviour in the period up to January 2013. It is in fact, much worse.

6. Ms Tsai told the Tribunal that she did not drive a vehicle during the period of her disqualification from January 2013 and instead relied on public transport and friends. When questioned about why her behaviour changed, she stated that undertaking community service made her realise the seriousness of her offences.

7. In December 2015, just less than six months ago, Ms Tsai was issued an unrestricted licence. She gave evidence at the hearing that during this recent six month period she had already received a speeding ticket for exceeding the speed limit by 5km/hr in a school zone.

   FAILURE TO DISCLOSE OFFENCES

8. The Minister contends that Ms Tsai failed to disclose, or failed to adequately disclose, her traffic offence record in the section headed ‘Character declarations’ of the Citizenship application. I do not accept this contention.

9. The Citizenship application and Ms Tsai’s answers were as follows:

   Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia? 
   Yes
   Give details:
   Traffic offences- Drive with suspend license
   Speed

10. Ms Tsai told the Tribunal at hearing that she believed her disclosure to be adequate. She did not have at hand a copy of her driving record but believed that the Minister would have access to such records.

11. While Ms Tsai did not disclose in detail each and every one of her traffic offences, I am satisfied that she disclosed her traffic record. This is evident from the wording used, namely that ‘traffic offences’ is given in the plural, representing numerous offences.

    CHARACTER REFERENCES

12. Ms Tsai produced a number of documents in support of her application before the Tribunal; which included references from Associate Professor Jeong, Ms Stevens and Ms Augustine, letters of recognition from Australian Red Cross and World Vision and a letter confirming the completion of driving lessons with NRMA Safer Driving School. I have read and considered all of these documents provided.

13. It is clear from the evidence that Ms Tsai is a hardworking and dedicated registered nurse. Her references speak highly of her skills, knowledge and immense empathy that she has towards her patients. Associate Professor Jeong, who is Ms Tsai’s supervisor at the University of Newcastle, where she is enrolled in the Master of Philosophy (Nursing), states that she is impressed by Ms Tsai’s commitment and work ethic and states that she “is hard working, initiative, honest, diligent, and passionate about what she does as a registered nurse in both academic field and clinical setting.”

14. The characteristics described in the references demonstrate qualities of someone with ‘good character’ but I am not satisfied that they outweigh the evidence of behaviour demonstrated by Ms Tsai’s pattern of offending. None of the documents provided acknowledge the frequency of offences or the seriousness of Ms Tsai’s traffic record. Accordingly, the weight I give to the references provided is minimal.

15. The Citizenship Policy states that:

    …referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character.

16. In regards to the letter from the NRMA Safer Driving School, I accept that it is a record of Ms Tsai completing driving lessons for the purposes of obtaining her unrestricted licence. Ms Tsai advised the tribunal during hearing that the lessons did not include any theoretical study of the Australian road rules but was solely focused on driving skill. As a result, I am not satisfied that this evidence goes towards Ms Tsai’s taking steps to break her pattern of offending, but merely demonstrates that she has taken steps to improve her driving skills for the purposes of her licence exam.

    CONSIDERATION

17. In view of Ms Tsai’s Driving Record and evidence given orally during the hearing, it is quite clear that she has a pattern of disobeying traffic laws over an extended period of time. It is this pattern of behaviour which is troubling, especially given that I am not satisfied that Ms Tsai has taken any active steps to reform in the period since her first offence of driving without a license in June 2010 to the present.

18. I agree with what the Tribunal said in Zhengqin Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7] – the purpose of traffic laws is to protect users of the road. “Those laws go to the essential safety of the community”. Ms Tsai’s pattern of offending demonstrates a disregard for Australian law and community safety.

19. Given that she has only had her unconditional licence for just under six months and the fact that she has already committed another traffic offence (speeding) in that time, I am not satisfied that she has displayed an adequate period of compliance with Australian law. In Hang Zhang and Minister for Immigration and Border Protection [2014] AAT 136 the Tribunal stated at [45]:

    Until a person is free of such obligations to the Court, their conduct cannot be truly tested. On the other hand compliance with a supervisory order should not be dismissed as irrelevant.

20. In considering all of the relevant circumstances and weighing the available evidence I am unable to make a positive finding of good character for Ms Tsai. For this reason, she does not satisfy the section 21(2)(h) of the Act. 

21. Ms Tsai may make an application for citizenship in the future after a reasonable period of time has passed without offending.

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated 22 June 2016

Date(s) of hearing	9 June 2016
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor