Zhiliang Yang and Minister for Immigration and Border Protection
[2014] AATA 731
•9 October 2014
[2014] AATA 731
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5944
Re
Zhiliang Yang
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date 9 October 2014 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS – CITIZENSHIP – criminal record – whether applicant of good character – traffic offences – driving while under suspension – driving while disqualified – applicant still disqualified from driving at time of the Tribunal proceedings – Tribunal not satisfied applicant of good character for the purposes of conferral of citizenship – decision under review affirmed
Legislation
Australian Citizenship Act 2007 s 21(2)
Cases
Re 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
Senior Member J Toohey
Background
Mr Zhiliang Yang is a citizen of the People’s Republic of China. He arrived in Australia with his mother in 2000 when he was 14 years old and has lived here since. In 2009, he was granted a permanent resident visa.
In July 2013, Mr Yang applied for Australian citizenship. A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Australian Citizenship Act 2007 (the Citizenship Act). One of those requirements is that the person be of good character at the time of the Minister's decision on the application: s 21(2)(h).
At the time he applied for citizenship, Mr Yang had committed a number of traffic offences. He had been convicted of driving while under suspension and driving while disqualified, and was disqualified from driving until June 2015. A delegate of the Minister for Immigration and Border Protection was not satisfied that he was of good character and refused his application. Mr Yang seeks review of that decision.
Whether Mr Yang is “of good character” is the only requirement in issue in these proceedings.
Mr Yang’s education and employment history
When he arrived in Australia in 2000, Mr Yang wanted to attend high school but lacked sufficient English speaking skills. He enrolled in an intensive English language course, which he completed in April 2001, and worked part time in a restaurant before enrolling in high school. He completed his secondary education in 2003.
After leaving school, Mr Yang successfully completed two advanced diplomas in telecommunications at TAFE. He achieved distinctions in several subjects. One of his teachers recommended him to a multinational company but his immigration status at the time precluded him from working full time and he had to turn down the offer. He wanted to continue his studies at university but could not afford to do so and enrolled in a Certificate in Automotive Mechanics at TAFE. He completed the course with credit in mid-2006. Based on his performance during a work experience week, a large company offered him work but again he had to decline the offer because of his immigration status.
According to a submission on his behalf, in about 2006, Mr Yang “became confused and lost about his future”. He had no work and stayed home most of the time; he only went out to help friends fix their computers and minor problems with their cars.
Around this time, Mr Yang’s mother bought a small food shop where he worked long hours, seven days a week, until mid-2009 when the business was doing poorly and his mother sold the shop.
In August 2009, Mr Yang was granted a permanent resident visa. Between 2012 and mid-2014 he was employed by IBM. He says he was under a lot of pressure due to the long hours and the responsibility of his position. Nevertheless, he apparently did well enough to be recognised in September 2011 as one of the top performers in his team and he was promoted to a senior consultant position. In May 2014, he took up a position with another multinational company where he has already received a promotion.
Mr Yang’s driving record
Mr Yang was issued with provisional licences in August 2005 and February 2007, and an unrestricted licence on 8 August 2009. His driving record, which is not in dispute, shows the following:
10 June 2006 Failing to display P-plates
24 November 2007 Using a hand held phone while driving
2 August 2009 Exceeding limit by more than 10 km/h but not more than 20 km/h
6 March 2010 Exceeding limit by more than 20 km/h but not more than 30 km/h
5 April 2010 Demerit warning letter issued
5 April 2011 Exceeding limit by more than 10 km/h but not more than 20 km/h
13 May 2011 Exceeding limit by more than 10 km/h but not more than 20 km/h13 June 2011 Licence suspended for 3 months for loss of demerit points; converted to good behaviour bond until 9 April 2012
13 February 2012 Exceeding limit by more than 30 km/h but not more than 45 km/h
5 March 2012 Licence suspended to 8 January 2013 for loss of demerit points
8 December 2012 Driving while suspended
10 January 2013 Convicted drive while suspended; disqualified 1 year, $200 fine
24 April 2013 Driving while disqualified
17 June 2013 Convicted drive while disqualified; disqualified 2 years, $750 fineAs his record shows, Mr Yang’s licence was first suspended for loss of demerit points in June 2011. Rather than lose his licence for three months, he elected to be placed on a good behaviour bond for nine months. In February 2012, while subject to that bond, he exceeded the speed limit by more than 30 kilometres per hour and, in March 2012, his licence was suspended until 8 January 2013. In December 2012, he drove while under suspension. On 10 January 2013, he was disqualified from driving for one year for this offence. Three months later, in April 2013, he drove while disqualified for which he was disqualified from driving for a further two years.
Asked to explain why he drove while under suspension, Mr Yang said his wife became ill at work and asked him to come to work and accompany her home. He caught a train to her work but, when she was too ill to drive home, he drove her. He does not appear to have seriously considered alternatives such as taking a taxi home with her. He was stopped for random breath testing on the way home and found to be driving under suspension.
Asked to explain why he drove while disqualified, Mr Yang said he was under pressure at work at the time and had a 4.30am start, before the buses started running. He was running late and not thinking clearly; there were no taxis and he decided to drive to work. He was stopped for random breath testing and found to be driving while disqualified. There is no suggestion that the manner of Mr Yang’s driving was itself of concern on either occasion.
There were some inconsistencies in Mr Yang’s evidence about these occasions. For instance, a record of a discussion with the delegate in October 2013 shows that Mr Yang told the delegate that, on the second occasion, he had arranged for his wife to drive him to work but she became unwell; he did not think about catching a taxi but “just took the risk” and drove. Giving oral evidence, he said his wife had been unwell the previous evening and had been up and vomiting all night and could not drive him.
In contrast, in an email to his legal representative in March 2014, he said he decided not to wake his mother or his wife because they work long hours; he got out and “could not find any taxi around” so he took the risk of driving to work. Without wanting to put too much weight on what might be minor inconsistencies, I have some doubts that Mr Yang was entirely frank in his oral evidence about these events which he claimed were the only occasions on which he drove without a licence. I also have some doubts as to his claim that the only occasions on which he ever used his mobile phone while driving or drove over the speed limit were those when he was apprehended. However, I will accept his evidence.
Documents submitted by Mr Yang in support of his application
In support of his application, Mr Yang has submitted documents certifying his successful completion of high school and TAFE courses, and a record of his work experience which shows he was considered to be a “diligent” and “ hard-working young man” who was “highly recommended” to any future employer. He also submitted a letter from Australian Red Cross thanking him for joining the 2009 volunteer collector team.
Letters from Mr Yang’s wife, mother, uncle, cousin, friend, neighbour, and a friend of his mother, and a statutory declaration from a close friend all speak highly of his good character. They describe him as a person with “a kind heart who cares about others and the community”, “always willing to help others” and “a true friend that anyone would have”. All say they believe his offences are out of character.
Mr Yang’s wife Xinying Huang, his mother Suijin Yu, and his close friend Jie Lin, gave oral evidence and testified that he is a good person whose offences were out of character and committed in stressful and difficult circumstances.
I accept that each of these persons has genuine reason to speak well of Mr Yang and genuinely believes his offences were out of character. His determination to learn English and get a good education in Australia, and his willingness to help his mother and others are to his credit. However, family and friends are not always objective in their assessments and the fact is that Mr Yang’s driving record speaks for itself.
The meaning of good character
The Citizenship Act does not define “of good character” but guidance about its meaning is found in the Australian Citizenship Instructions (ACIs) the current version of which came into effect on 1 January 2014. The ACIs are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The statement of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 has been adopted by the Court and this tribunal as describing the meaning of “good character”:
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 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 while 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.
“Moral” does not have any religious connotation; rather, the phrase “enduring moral qualities” encompasses 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: cl 10.3.1.
Clause 10.3.4 of the ACIs sets out a non-exhaustive list of characteristics expected of a person “of good character”. It includes that a person of good character would respect and abide by the law in Australia, and “would not be violent … [or] cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)”.
In considering a person’s behaviour, it is relevant to consider any offences he or she has committed and whether any offence was serious or minor: cl 10.5.2. Serious offences include crimes of violence, crimes against children, drug trafficking, fraud, extortion, illegal pornography, terrorist activity and breaches of immigration law: cl 10.5.2. Minor offences include shoplifting, traffic offences which have been included in a criminal record and offences which do not lead to a conviction or sentence.
Consideration
Up until the time that he drove under suspension and while disqualified, it is fair to say that Mr Yang had only minor traffic offences, none of which was of itself serious. That is not to say they should be disregarded because even minor offences may be indicators of a person’s respect for, and willingness to abide by, Australian law.
What Mr Yang’s record shows is a pattern of driving offences which has tended to become more serious in time and appears to show a growing disregard for the law. In particular, he has shown a disregard for disqualification from driving. In my view, he must at least complete the current period of disqualification and demonstrate that he intends abiding by the law before it can be said that he is of good character for the purpose of acquiring citizenship.
It is relevant to consider whether there are any mitigating factors that mean a person may be found to be of good character despite matters suggesting otherwise. Factors include the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences. Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful: cl 10.5.2.
I am prepared to accept that Mr Yang found himself in difficult circumstances when he drove while under suspension and while disqualified. However, on neither occasion was there an emergency of the sort that left him with no option but to drive. Inconvenience, even extreme inconvenience, is usually the consequence of losing one’s driving licence; something more is required before it can itself be considered a mitigating factor.
It is submitted for Mr Yang that, having regard to the hardships he has encountered in his life, he should be given a chance to prove that he is indeed a good Australian citizen. It is not entirely clear what particular hardships he has suffered but I accept that he has had to start a new life in Australia and has faced some financial difficulties. To his credit, he has obtained good English skills and an education, he has worked hard and has steady employment in which he is apparently well-regarded. However, citizenship is not an opportunity to prove oneself of good character; rather, good character must be demonstrated in order to become a citizen.
Mr Yang would like to travel to China to see his aged grandparents. Apparently, he is unable to obtain a Chinese passport for reasons to do with the fact that he was granted permanent residence at the Minister’s discretion. I accept that must be difficult for him but it is not a factor which goes to whether he is of good character.
Conclusion
There is much in Mr Yang’s character that is to his credit. However, it is relevant that he remains disqualified from driving until June 2015. Given the occasions on which he has driven without a licence previously, I am not satisfied that he can yet be said to be of good character for the purposes of being granted citizenship. That is not to say that he could not be found to be of good character in the future.
For these reasons, I affirm the decision under review.
33. I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 9 October 2014
Date(s) of hearing 3 October 2014 Counsel for the Applicant Mr Jim Young Solicitor for the Respondent Ms Brooke Griffin, Australian Government Solicitor
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