Australian Immigration Daily News

One might observe rather flippantly that compiling a record of minor driving offences is a “rite of passage” for Australians! Or perhaps that “getting caught” for relatively minor offences is something that happens to most people who drive a car, sooner or later. 

Whatever the case, a decision that was handed down earlier this week by the Administrative Appeals Tribunal – Bhownik and Minister for Immigration and Border Protection  (2015) AATA 426 (17 June 2015) – demonstrates that relatively minor driving offences are not enough to prevent a person from gaining Australian citizenship if they are otherwise a person of good character.

On the other hand, a second decision, delivered by the AAT just last week, Brown and Minister for Immigration and Border Protection (2015) AATA 414 (12 June 2015), shows that having a really horrible driving record combined with a history of other serious criminal offences may well pose difficulties – even when the applicant for citizenship has lived in Australia since early childhood.

Indeed, these two cases present a really fascinating contrast. The comparison is illustrative of how citizenship decisions may unfold before the AAT.

The successful applicant in the Bhownik case was a 32 year old citizen of Bangladesh who had been living in Australia for about 10 years at the time that he lodged his application for Australian citizenship. He held permanent residency through a visa granted under the Employer Nomination Scheme (subclass 186). He was married, had worked for the same business for six years, and was able to produce a total of seven character references from his employer and work colleagues which spoke about him in extremely favourable terms.  Other than the few minor driving offences, the applicant did not have any record of offences in Australia.

The applicant’s driving record consisted of a conviction for speeding (going 131 km/h in a 110/km/h zone); a “No Right Turn” offence that was dismissed without conviction; an offence for using a mobile phone while driving, and, most significantly, a “low range prescribed concentration of alcohol (“PCA”) offence, which had been dealt with by placing the applicant on a two-year “good behaviour” bond.

In deciding this case, the Deputy President of the AAT (Brian Tamberlin QC) concluded that the relatively minor driving offences were not enough to show that the applicant was not a person of “good character” and were thus not grounds to disqualify him from Australian citizenship. Accordingly, the AAT “set aside” the Department’s refusal of the application. In reaching this conclusion, the Deputy President took into account that there were extenuating circumstances for the speeding offence (that it had occurred on a federal highway and that there was no record of further speeding offences) and for the mobile phone offence (the applicant had just gotten married at the time of the offence and the call he took was received from his wife at a time when she was not feeling well).  Further, the applicant had expressed “shame and remorse” with respect to the drink driving offence and had sold his car. The Deputy President was therefore satisfied that there was little likelihood that the applicant would “re-offend”.  Also operating in favour of the applicant was the fact that he had not received strong penalties in relation to the driving offences.

Therefore, when balanced against the applicant’s excellent character references, his strong employment history, and his status as a married person, the minor driving offences did not, in the view of the Deputy President, amount to a sufficient basis to refuse the grant of Australian citizenship.

In comparison, the applicant’s personal history and criminal record in the Brown case were an entirely “different kettle of fish”.

The applicant in Brown had lived in Australia for 53 years at the time he made his citizenship application, having arrived when he was about 3 years old. During that period of residency, he had compiled an extensive criminal record, including convictions for possession and use of marijuana, drink driving with a high level blood alcohol ccntent, “peep and pry”, “willful and obscene exposure”, and common assault.

The applicant had received a grant of permanent residency in November 2010, and in 2011 (3 years before he made his application for citizenship) he was convicted of drug possession, two offences involving driving with a “high range” blood alcohol content, and using a “high beam” on an oncoming vehicle.

In deciding upon this citizenship application, Deputy President Deutsch of the AAT took the view that the applicant’s record of multiple driving offences “could not be ignored”, especially since some of the offences involved “high-range PCA” and thus exposed other people to a risk of serious harm.  Although the applicant expressed remorse for his previous criminal history and produced a character reference which stated that he had “changed his ways of past drinking and substance smoking”, this was simply not enough to salvage the application.  The Deputy President was concerned by the fact that the applicant had a record of “at least half a dozen” serious offences, and was not satisfied that sufficient time had passed since the most recent offence in order to support a determination that the applicant could be considered to be a person of “good character”.

The moral of these two cases is that minor driving offences which do not put other people in danger are unlikely to pose a problem for a citizenship application, especially where the applicant otherwise has an unblemished record and positive employment history and character references.  However, more serious driving offences, especially those that place others at risk like high range drink driving are more likely to be problematic.  If an applicant has also has a record of offences resulting in harm to others (such as assault), and if only a short relatively short period of time has elapsed since the serious driving offences, the chances that a citizenship application will be approved by the Department or by the AAT are truly small. Also, being the best driver on the planet is not going to be enough to rescue a citizenship application when there is a history of recent violent offences!! Which is not to say that Australia couldn't use as many good drivers as it can get, especially better than a person such as myself who learned to drive "on the wrong side of the road"!!!

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