Kumar and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 997 (29 June 2017)

Re Safar and Minister for Immigration and Border Protection [2015] AATA 503

Re Wang and Minister for Immigration and Border Protection [2014] AATA 89

1. Ritnesh Kumar is a Fijian citizen. He is present in Australia under a subclass 155 (permanent) visa. He applied for conferral of Australian citizenship. A delegate of the Minister decided to reject his application. Mr Kumar applied for review.

1. The central issue to be decided is whether Mr Kumar meets the eligibility requirements for conferral of Australian citizenship under s 21(2) of the Australian Citizenship Act 2007 (the Act):

(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a) is aged 18 or over at the time the person made the application; and

(i) at the time the person made the application; and

(ii) at the time of the Minister's decision on the application; and

(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

(d) understands the nature of an application under subsection (1); and

(e) possesses a basic knowledge of the English language; and

(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h) is of good character at the time of the Minister's decision on the application.

1. The Minister contends that Mr Kumar does not satisfy the character requirement under s 21(2)(h) for two reasons. Firstly, the Minister argues that Mr Kumar's record of traffic offences, albeit not individually serious in nature, displays a pattern of behaviour that is inconsistent with his claim to be of good character. His offending behaviour, so the argument goes, demonstrates a flagrant disregard for Australian laws and a reckless attitude to community safety. Secondly, the Minister asserts that Mr Kumar failed to disclose his record of offending and related court proceedings in his application for conferral of Australian citizenship. The Minister does not accept that this failure is adequately explained by Mr Kumar's account of memory loss as Mr Kumar's subsequent disclosure was incomplete - he referred to a singular 'mistake', but failed to disclose multiple offences that resulted in court proceedings on two occasions.
2. In the Minister's submission, Mr Kumar's record and conduct stand against his claim to be of good character and for this reason his application for conferral of Australian citizenship should be rejected.
3. Mr Kumar asserts that he has learned from his past mistakes and should be forgiven for committing minor traffic offences. He relies on character witnesses and a positive record of employment as an accountant. He argues that employment in this role demands honesty, which he has demonstrated over the last 3 years. He points to his recent completion of a Graduate Diploma of Chartered Accounting as proof of the contribution he will make to the Australian economy.
4. He rejects the proposition that he was less than frank about his offending record, arguing instead that he simply forgot about the offences, which were minor and occurred a long time ago. He acknowledges that his driving record may not be very good, but argues that this has improved in recent times. He does not consider any of the traffic offences he committed to be of a serious kind and argues that no one was hurt. Furthermore, Mr Kumar argues that his offending behaviour was to some extent predicated upon extenuating circumstances that rendered him unable to afford to pay a fine, in consequence of which his driver's licence was suspended.
5. In his submission, his good character is established by referees on whom he relies; by his record of employment and study; and by the positive contribution he has made, and will continue to make, to the Australian economy.
6. In sum, Mr Kumar asserts that the Tribunal should be satisfied that he is of good character and he should be granted Australian citizenship.
7. The Act does not give any special meaning to the term "good character" and it is to be given its ordinary meaning. The term refers to "the enduring moral qualities of a person, and is an indication of whether [the person] is likely to uphold and obey the laws of Australia".[1] The conception of 'enduring moral qualities' includes -
   • - characteristics which have been demonstrated over a very long period of time
   • - distinguishing right from wrong
   • - behaving in an ethical manner, conforming to the rules and values of Australian society.[2]
8. When determining whether a person is of 'good character' for the purposes of the Act, Chapter 10 of the Australian Citizenship Instructions (the Instructions) provides guidance that should be followed unless there is a good reason to do otherwise. There is no such reason in this case.
9. The Instructions relevantly provide that:

9.3.4 An applicant who is of good character

...

An applicant of good character would:

...

• ... not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)

1. Mr Kumar's driving record is as follows[3] -

Exceed speed limit by more than 10 km/h but not more than 20 km/h whilst driving a motor vehicle

Fine default suspension of Unrestricted (Class C) to commence on 24 February 2011

Disqualified 3 months (Court Order) from 5 May 2010

Advised at 06:00pm by Police not to drive as licence is suspended

14 December 2008 exceed speed limit by more than 15 km/h but not more than 30 km/h whilst driving a motor vehicle

Exemption to hold a NSW driver licence withdrawn on the grounds of failed driving test

1. As can be seen, on 5 May 2010 and 21 July 2010 Mr Kumar's driving offences were dealt with in proceedings before the District Court in Dubbo.
2. On 15 December 2015, Mr Kumar lodged an application for Australian citizenship by conferral.[4] In this application, Mr Kumar answered 'No' to the question "Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any 'spent' convictions)?".[5] This was not correct.
3. On 16 June 2016, Mr Kumar made a statutory declaration in the following terms -

"... that I had committed a minor offence under the Citizenship - Character Summary on 5th May 2010 as listed in the letter dated 26 May 2016 from the Department of Immigration and Border Protection.

At the date of my application for citizenship, it has been almost 6 years and almost slipped from my memory, that I have this offence listed as a criminal activity against my name, hence this was not disclosed.

I further make this declaration that I have learnt from my one-off mistake and have not re-offended in the last 6 years till date and will never commit any similar offence in the future.

I have since paid the fine and currently hold a valid NSW driver's licence. I have always obeyed the law of any country, and if I have made an error in my judgement, I have always learnt from my mistake."[6]

1. One simply has to refer to Mr Kumar's driving record to see that this declaration is factually incorrect.
2. It is quite clear from Mr Kumar's driving record that in 2010 he was twice caught driving an unregistered and uninsured motor vehicle without a current driver's licence - this was not a 'one-off mistake'. On 17 January 2010 he was cautioned about driving without a licence and he was charged and fined for offences involving driving an unregistered and uninsured vehicle. Those matters went to Court on 21 July 2010. On 4 March 2010, he was again caught driving an unregistered, uninsured vehicle without a current driver's licence, for which he was charged. Those matters went to Court on 5 May 2010. Mr Kumar's effort to wrap these offences up into a singular 'mistake', smacks of convenience and I reject it.
3. Mr Kumar's assertion that his Court attendances in respect of traffic offences slipped his memory when he was completing his application for conferral of Australian citizenship poses a number of difficulties. His evidence is that he remembered this at the time, but it slipped his mind when completing the application for conferral of Australian citizenship on 15 December 2015. Having heard Mr Kumar's evidence, it is clear enough that he recalls attending Court - he went to some length to explain the circumstances, arguing, initially, that his two attendances related to the same offence and then asserting that he was required to attend in respect of one offence and his second attendance was in order to contest the amount of a fine, which was reduced. When closely examined on this point, Mr Kumar explained that attending Court made him nervous - he had not previously attended a Court and he represented himself. Considering this, there are serious doubts about the veracity of Mr Kumar's assertion that his Court attendances slipped his mind when he was completing his application for conferral of Australian citizenship.
4. Even if Mr Kumar had truly forgotten the offending conduct that led him to attend Court, consequential difficulties arise in respect of his assertion that he has learned from his 'mistake'- it is difficult to understand how someone can learn from something they have forgotten.
5. Furthermore, if Mr Kumar had learned from his previous mistake, one would not expect to find evidence of him re-offending, or repeating the same mistake. But in Mr Kumar's driving history, it is quite clear that he failed to pay a court-imposed traffic offence fine on 10 February 2011, whereupon his driver's licence was again suspended from 24 February 2011. And he was caught and fined for a speeding offence on 19 March 2015. His explanation of this offence is that he had married and was travelling to Fiji with family members, but his brother forgot a passport. Mr Kumar sped to collect this and was caught. Even accepting this account, it is quite clear that Mr Kumar placed a higher priority on his own interest in collecting his brother's passport than the safety of road users and compliance with Australian law.
6. It appears that Mr Kumar's troubles began when he failed to pay a $243 speeding fine arising from an offence he committed on 14 December 2008. His explanation for not doing so is that he was facing financial difficulties at the time, as his de facto relationship had failed and he alone was carrying the weight of two mortgages. The matter was referred to the State Debt Recovery Office on 2 March 2009. The documentary evidence establishes that Mr Kumar separated from his former de facto wife in March 2010,[7] and by his own account it was always his intention to pay for both mortgages, albeit that he relied to some extent on his previous de facto wife to assist meeting living expenses. None of this satisfactorily explains why Mr Kumar did not pay the $243 speeding fine before March 2009. Mr Kumar's evidence is that he did not miss any monthly mortgage payments, amounting to approximately $2,000 per month, and he was earning income throughout. I think it is clear enough that Mr Kumar chose not to pay the fine, giving higher priority to other expenses. He placed a higher priority on his own convenience and interests than on the safety of other road users and compliance with laws for the protection of the Australian community. I am not persuaded that Mr Kumar recognises that, by offending against the road rules, he has placed his passengers and other road users at risk of harm.
7. This displays a lack of insight into his offending conduct, albeit of a relatively minor nature. For this reason, Mr Kumar's acknowledgement of wrong-doing and remorse is rather hollow. It is not to the point to suggest that nobody has been harmed by his offending conduct, or that he has never had an accident using a motor vehicle. It may be that Mr Kumar has not caused physical harm to anyone by his offending conduct, but one only has to consider the public record to understand the gravity of the risk speeding and unlicensed drivers pose, particularly when driving unregistered and uninsured vehicles.
8. Notwithstanding that each of Mr Kumar's offences do not rise to the level of a "serious offence" under 9.5.2 of the Instructions, and the extent of his offending has diminished since 2010, his lack of insight and the repetition of offending conduct, most recently in March 2015, displays a low level pattern of reckless disregard for the safety of road users. In his offending conduct, it appears to me that Mr Kumar has placed his own interests and convenience above the safety of road users and the laws by which the Australian community is bound.
9. It can be accepted that his case can be distinguished from others involving more serious traffic offences, such as Re Safar and Minister for Immigration and Border Protection[8] and Re Wang and Minister for Immigration and Border Protection.[9] Nonetheless, I am satisfied that Mr Kumar demonstrates a lack of insight into his offending conduct, and he has been less than forthright about that conduct, including in his evidence before this Tribunal.
10. These considerations weigh against an assessment of 'good character' for the purposes of s 21(2)(h) of the Act.
11. It appears that Mr Kumar has not offended since 19 March 2015. It may be that Mr Kumar has learned his lesson, as he contends. Time will tell. I am not able to make that finding now. This is because I am not persuaded that, presently, Mr Kumar has appropriate insight into his previous offending conduct and the risk he has posed to road users and the Australian community.
12. There is no dispute that Mr Kumar has a good record of employment and a successful study record. He has contributed to the Australian economy. He relies on referees who attest to positive attributes of his character. Roslyn Pritchard, Marianne Thomas, Johanna Leader and John Curley gave written character references. All but Mr Curley gave oral evidence.
13. Ms Pritchard told me that she and Mr Kumar had a professional relationship in employment. Her evidence is that Mr Kumar informed her on the day of the hearing that he had been fined for driving an unregistered vehicle, but otherwise she was not aware of his driving record of traffic offences.
14. Ms Thomas and Ms Leader amended their original written character references to include an almost identical paragraph, acknowledging that Mr Kumar attended Dubbo Local Court in relation to a driving offence in 2010, where he was convicted of driving an unregistered vehicle. Ms Thomas and Ms Leader gave evidence that they were not aware of Mr Kumar's driving record when they wrote their first references, and they were not aware of Mr Kumar's record other than an offence involving driving an unregistered vehicle in 2010. Ms Thomas gave evidence that Mr Kumar had written the paragraph and asked her to amend her reference. Ms Leader gave evidence that Mr Kumar did not ask her to amend her original reference and the paragraph was something she wrote. By Mr Kumar's own account when cross-examined on this point, he asked Ms Thomas and Ms Leader to amend their references in order to ensure that their statements were 'valid', and it was he who provided Ms Thomas and Ms Leader with the additional words. Ms Thomas and Ms Leader did not change their positive remarks in support of Mr Kumar's good character, when aspects of his offending record were put to them.
15. Generally, the evidence of Ms Pritchard, Ms Thomas, Ms Leader and Mr Curley provides support for aspects of Mr Kumar's good character, and this evidence weighs for a positive finding under s 21(2)(h) of the Act.
16. But these witnesses were unaware of Mr Kumar's full record of offending conduct, albeit of a minor nature. This and Ms Leader's apparently erroneous account that Mr Kumar did not ask her to amend her reference diminish the weight that can be given to their evidence.

1. This case does not turn on Mr Kumar's relatively minor traffic offences alone, although those offences are at the heart of this case. The sharp point is that Mr Kumar has been less than forthright about his offences. His inconsistent accounts and his lack of insight reveal a disregard for the law and a rather cavalier and reckless attitude to community safety in which his personal interest or his convenience is given a higher value than the safety of road users. The aspects of his character these matters reveal are not consistent with the enduring moral qualities 'good character' embodies. I accept, nevertheless, that Mr Kumar has a positive record of employment and he has contributed positively to the Australian economy. This and the evidence of witnesses he called tend to support his 'good character'.
2. On balance, I am satisfied that the factors weighing against Mr Kumar's good character for the purposes of s 21(2)(h) of the Act outweigh the positive attributes of his character to which Ms Pritchard, Ms Thomas, Ms Leader and Mr Curley attested.
3. For these reasons, I am satisfied that Mr Kumar does not presently satisfy the 'good character' test set out in s 21(2)(h) of the Act. It should not be taken from this that Mr Kumar is of bad character - failure to satisfy the 'good character' test for the purposes of s 21(2)(h) of the Act does not mean that the person is of bad character, and the evidence in Mr Kumar's case would not support any such finding.
4. Nevertheless, it follows that no positive decision can be made under s 24(1) of the Act and the decision under review, refusing Mr Kumar's application for conferral of Australian citizenship, must be affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

........................................................................

[1] Australian Citizenship Instructions at 9.1.2.

[8] [2015] AATA 503.

[9] [2014] AATA 89.