Australian Immigration Daily News

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