In recent articles on this blog, I have reviewed decisions of the Administrative Appeals Tribunal in which appeals were taken against Departmental decisions to refuse Australian citizenship on the basis of findings that the applicant was not of “good character”.  In one of these cases, FBMR and Minister for Immigration and Border Protection, (2015) AATA 116 (2 March 2015) an applicant’s failure to accurately disclose his extensive record of serious criminal convictions in New Zealand on his “incoming passenger card” proved fatal to the application. In a second case, Hasib v Minister for Immigration and Border Protection (2015) AATA 82 (13 February 2015), a number of mitigating factors weighed against the applicant’s history of having committed 10 offences involving credit card fraud while in Australia including the fact that the applicant was subject to duress when he committed the offences) and the applicant was able to have the refusal of his application set aside.

In this post, I look at a third case, decided on 1 April, where the applicant’s criminal record consisted only of two traffic offences.  The case, Thuraisamy and Minister for Immigration and Border Protection [2015] AATA 202 demonstrates that minor driving offences are not likely to disqualify a person from Australian citizenship.

The applicant in this case originally arrived in Australia from Sri Lanka as an “unauthorized maritime arrival” and spent time in immigration detention before being granted a Protection Visa.  The driving offences that led the Department’s officer to determine that the applicant was not a person of “good character” included an incident involving “drink driving” in which his blood alcohol level was found to be .034 percent.  Although he was initially convicted of this offence in a NSW Local Court, fined $200 and disqualified from driving for 3 months, the conviction was quashed on appeal to the District Court and the applicant was placed on a “good behaviour bond” for a period of 18 months.  As it turned out, at the time of this first offence, the applicant held a “special category driver’s licence” which prohibited him from having any alcohol in his system, but he was in fact entitled to hold an unconditional licence based on his driving experience before coming to Australia. Had the applicant held this unconditional licence, his blood alcohol level would have been below the legal limit of .05, and no offence would have been committed.

The second driving offence occurred two weeks after the drink driving incident and involved speeding at 140 km/hour in a zone where the speed limit was 110.  The applicant received an “on-the-spot” fine of $800 for this offence as well as a 3 month suspension of his driving licence. However, in his evidence before the Tribunal the applicant explained that the circumstances underlying this offence were that a passenger in his car had been complaining of stomach pains and that he had been speeding in order to get the passenger to a rest facility as quickly as possible.

The AAT was not persuaded that these two driving offences were enough to show that he was not a person of good character, and it therefore set aside the Department’s decision to refuse the citizenship application.  The factors that tilted the balance in the applicant’s favour before the AAT included that he had no other criminal record, that other than these 2 offences the applicant had an “unblemished” driving record (leading the AAT to view the offences as “regrettable exceptions”), that he had a solid working record since being released from immigration detention involving working as a cleaner in a public school and as a carer for disabled people, and that he was able to provide numerous positive references to the AAT.

The outcome here illustrates that a Departmental decision to refuse the grant of Australian citizenship on character grounds can be successfully challenged in circumstances where the Department fails to undertake a considered, nuanced assessment of the applicant’s character.  The Australian Citizenship Instructions require Departmental officers to consider whether an applicant’s criminal record is “serious” or “minor”. Under the ACI  (10.5.2) serious offences include matters such as crimes of violence, war crimes, drug trafficking, and crimes against children, while traffic offences, and offences which do not lead to a conviction or sentence, are categorised as “minor offences”. 

It appears plain that in this case that the Department misapplied the guidelines of the ACI, incorrectly identified offences which were clearly minor to be a basis for an adverse character finding, and wrongly refused his citizenship application.  The case shows that when the Department makes a character decision that does not take into account the full circumstances of an applicant’s criminal record (including of course the nature of the offences) and determines a matter in a way that conflicts with the ACI, the decision can be successfully challenged on appeal to the AAT.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.  Tel: (02) 8068 8837 Web: concordialaw.com.au

A recent decision of the Federal Circuit Court re-enforces that it is critically important that Registered Migration Agents provide correct contact details for themselves on 956 forms that are lodged with the Department.  The case also again emphasizes (not that any further emphasis is needed!) that the deadlines for filing an appeal with the MRT against the refusal of a visa application will be strictly and inflexibly enforced.

The story of this case – Lutchanah v Minister for Immigration & Anor (2015) FCCA 550 (26 March 2015) – can only evoke the strongest feelings of sympathy for the visa applicant.  It is apparent from the factual history, as recounted in the Court’s judgment, that the applicant would almost surely have obtained the visa in question (a subclass 485 visa) if only emails from the Department which sought further evidence in support of the application had been brought to her attention by the migration firm that she used. Likewise, it seems apparent from the decision that the applicant would have filed a timely appeal to the MRT had she been made aware that her visa application had been refused, and that her appeal would very likely have been successful.

Instead, the visa applicant was left in the unfortunate circumstance of “being left out in the cold”: rather than securing a 485 visa allowing her to remain in Australia to work following the conclusion of her studies, it appears that the applicant will be forced to go offshore and to follow a pathway for either independent or sponsored skilled migration.  The applicant’s prospects for returning to Australia are therefore now uncertain, and, at the least, the commencement of her working life in Australia has been significantly postponed.

A 24 year old man is reportedly ‘near death’ after being on a hunger strike for 44-days. Leading refugee rights activist Victoria Martin said that this young person’s tragedy is another example of “the failure of the case workers at the Department of Immigration to support people and deliver honest, accurate information in a timely manner.”

Saeed Hassanloo fled Iran with his brother as a nineteen year-old in 2009. His refugee status was rejected but because Iran does not take forced returns, Mr Hassanloo has been in immigration detention since his arrival in Australia.

“Saeed has repeatedly complained to advocates that his case manager at Yongah would not return his calls would not come in and see him would not give him information about his case,” said Ms Martin in a report in thestringer.com.au, an independent news site.

Ms Martin said she “sees this a lot” in her advocacy. Advocates across the nation tell much the same.

“We find people who have not got copies of their documents, who are harassed, as Saeed was harassed, to just go home,” says Ms Martin

Latest reports indicate that Ms Hassanloo’s condition is improving after he accepted medical assistance, according to Immigration Minister Peter Dutton.

Once a year Bupa reviews its premiums and benefits in line with industry standards to ensure your customers are getting great value from their cover. We have improved our Overseas Visitor Health Cover brochure to keep it simple and easy for our customers to understand. We’ve also included a full table of benefits so your customers can see exactly what they’re getting from their cover. Please click on the link below to find our latest Overseas Visitor Health Cover brochure for Working and Non-Working visas, applicable from 1st of April 2015.

http://www.bupa.com.au/staticfiles/BupaP3/pdfs/10306-OVC-Brochure-Important-Information-Guide.pdf

Please take some time to review these changes and if you have any questions, please do not hesitate to contact your Bupa representative.

A message has been received from, Innovation, Trade and Investment, Chief Minister, Treasury and Economic Development Directorat, as follows:

"As of 5 pm AEST tomorrow Friday 3 April 2015, the ACT is closing applications for the Skilled Nominated Visa (190)  from all overseas residents due to reaching our 2014-15 numbers . The ACT Government  will continue to process applications from ACT residents.

Acceptance of overseas applications,  will recommence on 1 July 2015."