Mr Kyaw Zaya has applied to the Tribunal for the review of a decision of a delegate dated 12 May 2016 refusing his application for conferral of Australian citizenship. The delegate determined that Mr Zaya did not meet the “good character” requirement contained in section 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
Mr Zaya is a Burmese male, born in Mandalay District in Myanmar. He is 45 years old. He arrived in Australia on 2 February 1996 as the holder of a subclass 211 permanent visa.
Mr Zaya lodged a Class 211 Visa Permanent Entry for Australia (Special Assistance Category) “Class 211 Visa” at the Australian Embassy in Bangkok on 21 November 1994. He applied for the Class 211 Visa on the basis that he was subjected to substantial discrimination by the Military Government in Myanmar for his involvement in the 1988 political uprising.
Mr Zaya was granted his visa on 21 January 1996. He arrived in Australia on 2 February 1996.
On 11 December 2015, Mr Zaya lodged an application for citizenship by conferral. At question 35 on the relevant form, Mr Zaya indicated that he had never been convicted of, or found guilty of, any offences in Australia. Mr Zaya did indicate that he had been confined in a prison or psychiatric institution by order of a court made in connection with a criminal proceeding and indicated that he was currently seeing a psychiatrist at a clinic.
A national police check report run on 7 April 2016 revealed that Mr Zaya had 14 convictions over the period from 2002 to 2008. His criminal history is set out in the following table:
- Possess a Prohibited Drug (Cannabis): Fine $200
- Disorderly behaviour in a public place: Fine $300
- Unlicensed Vehicle: Fine $50
- Driver contravene red traffic control signal: Fine $150
- No Motor Drivers Licence – Under Suspension: Fine $400, driver’s licence cancelled & disqualified 9 months
- Drive whilst blood alcohol excess 0.08%: Fine $700 driver’s licence cancelled & disqualified 6 months
- Careless Driving: Fine $250 driver’s licence cancelled & disqualified 9 months
- No Motor Drivers Licence – Under Fines Suspension: Fine $1000 driver’s licence cancelled & disqualified 9 months
- Drive whilst blood alcohol excess 0.08%: Fine $500 Drive driver’s licence cancelled & disqualified 4 months
- Drive whilst blood alcohol excess 0.05%: Fine $150 driver’s licence cancelled & disqualified 3 months
- No Motor Drivers Licence – Under Suspension: Fine $500 driver’s licence disqualified & cancelled 9 months
- Drive vehicle without lights illuminated: Fine $100
- No Motor Drivers Licence: Fine $100, driver’s licence cancelled & disqualified 3 months
- Drive whilst blood alcohol excess 0.02: Fine $100, driver’s licence cancelled & disqualified 3 months
A procedural fairness letter was sent to Mr Zaya on 7 April 2016 by the Department. In response, Mr Zaya provided a Statutory Declaration which stated that he forgot to declare his convictions and fines, was not aware properly of the laws and regulations and had a lack of English language skills. He further stated that he was sorry for not declaring the convictions and explained that Australian citizenship is important to him because he wants to see his mother from whom he has been apart for 20 years. A more detailed Statutory Declaration was made by Mr Zayar on 14 December 2016 in which he stated that he did not declare his offences because he had limited English and believed that because his offences were ‘so long ago’ and his fines had been paid that they would no longer be on his record.
Mr Zaya also provided character statutory declarations.
On 12 May 2016, a delegate of the Minister refused to grant Mr Zaya citizenship by conferral. The delegate determined that Mr Zaya was not of “good character” as per section 21(2)(h) of the Act, taking into account the number and seriousness of the offences, his failure to declare the offences, the lack of remorse shown and the poor quality of the character references.
On 7 June 2016, Mr Zaya lodged an application for merits review by the Administrative Appeals Tribunal (the “Tribunal”).
The issue for the Tribunal to consider is whether Mr Zaya meets the good character requirement in s 21(2)(h) of the Act.
Section 21(2)(h) of the Australian Citizenship Act 2007 (“the Act”) provides:
- (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.
From 1 June 2016, the Citizenship Policy (“Citizenship Policy”) replaces the policy guidance previously provided in the form of the Australian Citizenship Instructions.
The relevant policy guidelines are outlined in Chapter 11 of the Citizenship Policy.
Without limiting the many other factors that the Tribunal can look to, guidance can be found in the Citizenship Policy’s description that an applicant of good character would:
- respect and abide by the law in Australia and other countries
- be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
- providing false personal information (such as fraudulent work experience or
- qualification documents) or other material deception during visa and citizenship applications
- concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
- not be violent, involved in drugs or unlawful sexual activity, and 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)
- not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
In relation to weighing up these various factors, the Citizen Policy states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment of whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities.
Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision-makers are asking themselves:
- would a person of good character have behaved the way the applicant did
- what is there to demonstrate that the applicant has upheld and obeyed the law
- has the applicant behaved in accordance with Australia’s community standards
- does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
In determining whether Mr Zaya is of good character for the purposes of the Act, the first thing the Tribunal needs to examine is whether the offences for which Mr Zaya received convictions are “serious”.
The Tribunal has consistently found that persistent offending of this nature is not consistent with Australian community standards.
The Tribunal held that there is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.
It has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character.
The Tribunal does not accept on the evidence that Mr Zaya was “dishonest” in relation to his application. To act “dishonestly” means to behave or be prone to behave in an untrustworthy, deceitful, or insincere way or to act in a way that is intended to mislead or cheat. Mr Zaya struck the Tribunal as entirely honest and sincere. The Tribunal accepts his evidence that because of his language difficulties and mental health condition, he simply did not understand what he was being asked. There was no deception here. Rather, there was only confusion.
The Tribunal held that overall, Mr Zaya’s behaviour subsequent to his criminal offences reflects a failure on Mr Zaya’s part to fully appreciate the connection between his alcohol and drug use and his mental health and, ultimately, the type of behaviour that resulted in his convictions in the first place. Not enough time has elapsed for the Tribunal to be satisfied that Mr Zaya will remain non-violent, not involved in drugs and will not cause harm to others through his conduct.
The Tribunal concludes that Mr Zaya is not of good character pursuant to section 21(2)(h) of the Act and should not be granted Australian citizenship at this time.
This conclusion should not be seen as suggesting that Mr Zaya will never be entitled to Australian citizenship. Mr Zaya is entitled to apply again at a later stage and the Tribunal encourages him to do so in due course.