Bhowmik and Minister for Immigration and Border Protection [2015] AATA 426 (17 June 2015)

Last Updated: 17 June 2015

[2015] AATA 426

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/4112
Re	Arup Bhowmik
	APPLICANT
And	Minister for Immigration and Border Protection
	RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin, QC, Deputy President
Date	17 June 2015
Place	Sydney

The decision under review is set aside and substituted with a decision that the application is approved under s 24 of the Australian Citizenship Act 2007.

........................................................................
The Hon. Brian Tamberlin, QC, Deputy President

CATCHWORDS

CITIZENSHIP – character test – whether applicant is of good character – decision under review set aside and substituted
LEGISLATION

Australian Citizenship Act 2007 ss 21, 24

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

The Hon. Brian Tamberlin, QC, Deputy President

17 June 2015

1. The Applicant seeks review of a decision made by a delegate of the Respondent to refuse to grant the Applicant Australian citizenship.
2. The Applicant is a 32 year old citizen of Bangladesh who first arrived in Australia on 20 May 2004. He was granted a permanent subclass 186 visa on 14 May 2013.
3. On 23 May 2014 he lodged an application for Australian citizenship which disclosed that he had been involved in the following traffic incidents in the last 10 years as follows:
   • An ‘over speeding’ offence in July 2005 for which he received a fine. He was travelling at 131 km/h in a 110km/hr zone (Burwood Local Court).
   • A ‘No Right Turn’ sign offence in January 2013 which was dismissed by Sydney District Court.
   • Using a mobile phone whilst driving offence in September 2013 for which he received a fine (Newtown Local Court).
   • Driving with a low range prescribed concentration of alcohol (PCA) in March 2014 (Burwood Local Court).
4. An order was made under s 10 of the Crimes (Sentencing Procedure) Act 1999 imposing a good behaviour bond for a period of two years and a requirement not to commit any traffic offences.
5. The Applicant has provided a Statutory Declaration and character references from seven persons including work colleagues and his employer. He acknowledges the importance of the prescribed concentration of alcohol offence and expresses his shame and remorse and his thoughtlessness and immature behaviour.
6. Apart from the above incidents, there is no other aspect of the Applicant’s conduct upon which the Respondent relies in refusing the citizenship application.

LEGISLATION AND ISSUES

7. The issue for the Tribunal is whether the Applicant is of good character for the purposes of the conferral of Australian citizenship. Eligibility for Australian citizenship is covered by the Australian Citizenship Act 2007 (the Act). Section 21(2)(h) states:

(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.”

8. Accordingly, the question of the Applicant’s good character is to be assessed at the time of the application, namely 23 May 2014. As noted, at that time he was subject to a good behaviour bond for two years from 17 March 2014 and a requirement not to commit any traffic offences.
9. The expression “good character” has been held to refer to the mental and moral qualities of an individual. It can also refer to the reputation or repute of a person. If there is a criminal conviction the decision-maker should have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the Applicant. If it is in the past, the decision-maker must turn his attention to whether the Applicant has shown that he has reformed, and the decision-maker would also take into account whether the Applicant has shown that he has reformed. The concept of good character refers to the enduring moral qualities of a person and not solely to the good standing or reputation of a person in the community. It is an objective assessment: see Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 at 425 and at 431-432. In deciding the question of good character consideration must be given to the guidelines contained in the Australian Citizenship Instructions (the Instructions) intended to guide decision-makers in the application of the Act.
10. The traffic incidents referred to above must be considered in determining whether Mr Bhowmik is of good character for the purpose of being granted Australian citizenship.
11. The Instructions provide that the decision-maker must take into account, among other things, the seriousness of any offence, the number of offences committed, whether the offences form a pattern of criminal behaviour and the length of any sentence imposed or any sentencing remarks. Previous criminal sentences are not in themselves determinative on the question of character, and the primary emphasis must be on an objective assessment of the Applicant’s enduring moral qualities.
12. The grant of Australian citizenship is a privilege involving an appraisal of relevant considerations and the exercise of a discretion. It involves the evaluation and assessment of many factors.
13. The preamble to the Act notes that Australian citizenship represents full and formal membership of the community of Australia, involving reciprocal rights and obligations including upholding and obeying the laws of Australia.

REASONING

14. In relation to the four incidents relied on by the Respondent the following matters should be noted. In relation to the speeding offence it was committed in a 110 kilometre zone and was in excess of 20 kilometres per hour. It was committed almost 10 years ago. The sentence imposed was a fine. The Applicant says, and there was no contest as to his credibility, that there were mitigating circumstances and this is reflected in the imposition of a fine. The incident occurred on a federal highway and in a letter dated 22 May 2014 he explains the mitigating circumstances. Given the fine imposed and the fact that there is no other record of any speeding offences since that date, I do not think that this incident should be given any significant weight.
15. The second incident concerned a no right turn sign and this is of no importance because it was dismissed.
16. The third offence was using a mobile phone while driving in September 2013 for which he received a fine. This is not a significant offence, in the circumstances I do not think it reflects adversely on his enduring moral character or the qualities of his character. He explained that he had just been married and he had to leave his wife at home whilst she was not feeling well. He was on the way to work when he received a call from her and because he was concerned he answered the phone. I accept his explanation and do not consider that this incident which occurred eight years after the speeding matter is of any significant weight as to his character.
17. The final and most recent incident was being with a low-range prescribed concentration of alcohol (PCA) in March 2014. The level was .056 which is at the lowest end of the scale. He pleaded guilty and has since sold his car and uses public transport exclusively. He expressed genuine remorse and regret at this offence. In his statement he concedes that he has carried out a stupid act and says that he was truly sorry towards Australian society and society and feels repentant. I accept his sincerity in expressing his regret.
18. This is a more significant offence than the others but nevertheless I do not consider that it is sufficient, either alone or in conjunction with the other offences, to warrant a finding that the Applicant is not a person of good character, for the purpose of being an Australian citizen. The fact that he sold the car and he takes public transport, no doubt at considerable inconvenience, is clear objective proof of his regret at this offence.
19. The Applicant is a well-educated young man who is married and who has produced uncontradicted references from employers and fellow employees in a business in which he was employed for six years. He is described as an extremely hard worker with excellent attention to detail and remarkably fast at completing tasks. The recommendations are in the strongest terms in favour of the Applicant.
20. The three offences for which he has been convicted did not attract strong penalties and are at the lowest scale of seriousness apart of course from the PCA offence in respect of which I am satisfied that he is truly regretful and I accept there is little likelihood of being repeated. There were no victims of any of the incidents. It is true that the offences all concern traffic matters but I am satisfied that there were extenuating circumstances. The penalties imposed were relatively light and at the time they the offences committed he was not subject to any obligation to a court such as a good behaviour bond.
21. I consider that the Applicant has established a pattern of overall good behaviour over the past nine years so as to point to a conclusion that he is now of good character. He is a person of good repute, although this is not determinative.
22. The Respondent argues that it is not appropriate to grant citizenship at the present time, because he is subject to a good behaviour bond and therefore it is premature to grant citizenship until a pattern of conduct after the expiry of the two year good behaviour bond has been established. The Respondent submits that it is important to see how the Applicant behaves freed from the obligations of a bond and that a period of at least equivalent to a supervisory order, such as a good behaviour bond, would be expected to elapse before a person can be considered reformed and of good character.
23. I do not accept that in the circumstances of this case it is necessary or appropriate to await the expiry of the bond in order to properly consider the enduring moral qualities of the Applicant.
24. Having regard to the relatively low scale of the offences, the time over which they were committed, the character references and the explanations given by the Applicant, together with the fact that he has held down employment for many years and is married, I am satisfied that he is a person of good character to such an extent that he satisfies the requirements in s 21(h) of the Act, and that he is not ineligible to become an Australian citizen on the ground that he is not of good character at the time of the Minister’s decision on the application.

DECISION

25. The decision under review is set aside and substituted with a decision that Mr Bhowmik’s application is approved under s 24 of the Australian Citizenship Act 2007.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President

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

Dated 17 June 2015

Date(s) of hearing	27 March 2015
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor