Alemu and Minister for Home Affairs (Citizenship)

Alemu and Minister for Home Affairs (Citizenship) [2019] AATA 3352 (9 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7486
Re:Temesgen Nigussie Alemu
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:9 September 2019
Place:Sydney

The Tribunal affirms the reviewable decision.
.............................[sgd]...........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal – good character requirement – Drink driving offences – stalk/intimidate intend fear of physical/mental harm – recklessly wound another person – common assault – affray – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (Cth)
Criminal Records Act 1991 (NSW)
Migration Act 1958 (Cth)
Road Transport (safety and Traffic Management) Act 1999 (NSW)
CASES
Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Re Sogir Ahmed and Minister for Immigration and Border Protection [2018] AAT 4458
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
9 September 2019

This is an application for review of a decision made under s 24(1) of the Australian Citizenship Act 2007 (the Act) by a delegate of the Minister to refuse to approve an application for Australian citizenship by conferral on character grounds.
The Applicant was born in Sudan in November 1991. He is a 27 year old citizen of Ethiopia and wishes to become an Australian citizen. He came to Australia with his mother in September 2008, sponsored by his sister and brother in law (“AE”). He was 16 when he arrived in Australia.
He is currently the holder of a Contributory Parent (Subclass CA-143) visa granted on 8 December 2009.
On 26 June 2014, aged 23, the Applicant lodged his first application for Australian citizenship by conferral. His application was unsuccessful. The delegate was not satisfied that he was of good character as required by paragraph 21(2)(h) of the Act. This decision was based on the Applicant’s history of criminal and traffic offences.
On that occasion the decision noted the Applicant’s assertion that his father and four of his brothers were killed in the civil war in Sudan while his mother was pregnant with him, and that his mother left Sudan following targeted killings by Islamists by reason of ethnicity, Christianity, or being animist or infidels.[1] The Applicant said that he suffered horrific physical injuries from assaults, physiological abuse, torture and disease.[2]
[1] Decision record, 1 October 2014, 8.
[2] Affidavit, paragraph 8, signed, 14 September 2014.
On 9 February 2017, the applicant applied for citizenship a second time. On 10 October 2018, he was sent a “natural justice letter” and invited to comment on adverse information, namely, specific offences listed in the national police data base. He failed to respond to the letter.
On 20 November 2018 the delegate refused his application on the basis that he failed to satisfy the good character requirements in subsection 21(2)(h) of the Act. In the ensuing 3 years there had been only one relatively minor addition, a traffic offence that occurred on New Years’ Eve 2016, just before he lodged the application.[3] The essence of the second delegate’s decision is as follows:
[3] On 31 December 2016 the applicant was driving on a provisional licence with a blood alcohol content of .034 (special range). He was charged with special range PCA, disqualified for 3 months and fined $400. He was reissued with a provisional licence on 24 May 2017 subject to a one passenger limit.
In a letter dated 10/10/2018, you were informed that there were (sic) information before the Department that indicates that you may not be of good character for the purposes of your citizenship application. The details of this information were provided to you and you were invited to respond to or comment on the information relevant to the issue of whether you are of good character.
You were provided 21 working days from the date of the letter to respond to or comment on the information.
There is no information before me to indicate that you have provided a response or contacted the department to request an extension of time to respond. The time frame to respond has now passed.
The Citizenship Policy (CP) provides guidance on factors which I may take into consideration when assessing whether a person is of good character. These guidelines are in chapter 11 of the CP.
I have established your identity and am satisfied that the criminal history records and other information taken into consideration when assessing whether you are of good character are related to you.
Under citizenship policy, I must consider whether your offence is serious or minor. Serious offences include, but are not limited to, crimes of violence, crimes against children and other vulnerable people, domestic violence, common assault, drug trafficking, people smuggling, fraud (including identity fraud), illegal pornography (including child pornography), war crimes, crimes against humanity and terrorism. In addition the Citizenship Act specifies that a serious prison sentence is one of 12 months or more.
I am satisfied that you have been convicted of common assault and domestic violence and that this is therefore considered to be serious.
I consider the offence you have committed to be at the high range of seriousness as it is contrary to the Australian Society’s values.
Given the nature and level of seriousness of the offence you committed and your failure to respond to the Department’s letter weighs against you being of good character. I give this factor considerable weight in my assessment of whether you are of good character. [4]
[4] Section 37 Documents [14].
The applicant applied for review to the Tribunal. He claimed that the decision was wrong because:
The Delegate decided to refuse to approve the citizenship application to become an Australian citizen by conferral because it assumed that the applicant did not meet Paragraph 21(2)(h) concerning good character. The applicant is of good character and the concerns raised were about non-serious offences that occurred in February 2017. Earlier offences in 2012 were addressed and assessed as non-serious as well.
The Delegate is required to assess eligibility for Australian citizenship in accordance with the Act and Citizenship Policy, although the concept of “good character” referred to in subsection 21(2)(h) is not defined in the Act.
The Tribunal turns to those matters in the applicant’s criminal history giving rise to an apprehension as to his character.
THE 2010 AVO APPLICATION – 11 MARCH 2010[5]
[5] Respondent’s Evidence [171], [178].
When he arrived in Australia, in September 2008, the applicant was 16. He and his mother lived with his sister, her husband AE, and their 3 young children. AE arranged for the applicant to work with him as a painter.
On 11 March 2010 a simmering argument between the applicant and AE escalated. The following facts emerge from a police application form dated 12 March 2010 and headed AVO (non-urgent) Domestic AVO Application No: 840341. As normal, on that day the Applicant was at work as a painter with AE. An argument broke out between them regarding a $10,000 bond paid to the Australian Government as part of his and his mother’s application for permanent residence. The Applicant was very agitated. The Applicant thought that the money was rightfully his. The argument continued on the drive home and the Applicant became more heated. This led to AE locking the Applicant out of the house. The Applicant then smashed a kitchen window and the windscreen of AE’s van. AE called the police. He said he did not want the Applicant charged but he feared further damage and wanted an AVO. The Applicant’s sister gave the Applicant some money and he left. He did not return for 18 months. There is no record of any police interview with the Applicant arising from this incident.
The Applicant was directed to appear at Blacktown District Court. The summons is dated 24 March 2010 but his present whereabouts were then not known.[6] Charges were not laid although this incident did lead to an unfortunate rift in the family. The Applicant told the Tribunal that he had apologised to AE and that they are friends again. At the date of the hearing he was living with his mother in AE’s house.
[6] Respondent’s Evidence [180],
This incident, although not trivial, is not of sufficient weight to destroy a person’s claim of good character, especially in light of his age, immaturity and recent arrival in Australia. The AVO documentation records that there was no evidence of drugs, alcohol, mental illness or harm to persons.
THE 2011 FIGHT WITH “A FRIEND”
Following his 11 March departure from the security of AE’s home, the Applicant moved to a shared house in Doonside. The Applicant might be described in 2010 as a young man in a strange land adrift from the security of his family, and very much a hostage to fortune. He had been in Australia for 18 months and was still learning English.
On 2 April 2011 he got into a fight with a friend. He was charged with affray.[7] His account of this incident is that of a friendly jousting event gone wrong – a “game” of Nubian wrestling – “a type of sport in which you wrestle another person to gain points for getting them onto the ground”.[8] The police account is somewhat less jocular and involved the discharge of two bursts of capsicum spray to the scrapping young men – for they showed no sign of responding to firm police direction to desist. On 21 February 2012 he was convicted and fined $800.[9]
[7] Respondent’s Evidence [24].
[8] Affidavit, August 2019, paragraph 6. Counsel advised the Tribunal that the affidavit was signed in June 2019, not August 2019.
[9] T2, at p. 24.
THE 2011 INCIDENT INVOLVING AN ASSAULT ON A WOMAN
At around this time, in March or April 2011, the Applicant started dating a young Kenyan woman GX. She fell pregnant. He was nineteen years old. According to his evidence the Applicant was happy with the prospect, and set about planning a future with his girlfriend and child. At her request he was sending money to her parents in Africa. By October the relationship had deteriorated. He apparently believed that his girlfriend was stringing him along. A major issue related to the paternity of the expected child. He said his friends told him that she had other partners. He no longer believed that the child was his. He said she confirmed that the child was not his in a text message.
On 14 October 2011 it all came to a head. GX was by then 6 months pregnant. There was an incident. The Applicant’s behaviour was violent. It involved at the very least face-slapping and hair-pulling. At some point an artificial braid detached from GX’s scalp, and she suffered a scraped knee, falling to the ground, either exiting the car or as she was dragged to it by the Applicant.
The Applicant says he was trying to remove the victim from his car, having told GX that the relationship was over. This is at odds with a bystander account given to the police, which suggests that he was trying to get her back into his car after she fled to seek help at a nearby house.
The incident gave rise to six charges but they arose essentially from one course of conduct by the Applicant. The charges were bargained down to three victim charges and one traffic offence, to which the applicant pleaded guilty.[10] He was sentenced to community service and a fine and disqualification in respect of the traffic offence.
[10] On 9 December 2011, the DPP issued a certificate under s 35A Crimes (Sentencing Procedure) Act 1999.
OFFENCES
·001     Common assault
o150 hours community service
·004     Reckless wounding domestic violence related
oCrimes Act 1900 (NSW), s 35(4)
o150 hours community service
·006     Stalk or intimidate to cause fear of physical or mental harm.
oCrimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
o12 months supervised probation service
·003      Drive with middle range of alcohol (0.109 in 210 litres)
oRoad Transport (safety and Traffic Management) Act 1999 (NSW), s 9(3)(a)
oFine $800 – disqualification 8 months
WITHDRAWN
·002      Take/detain person with intent to obtain advantage
oCrimes Act 1900 (NSW), s 86(1)(b)
·005     Assault occasioning actual bodily harm
oCrimes Act 1900 (NSW), s 61
There are no sentencing comments by the magistrate available to the Tribunal. Some assessment of the seriousness of the offences may be gleaned from the sentences imposed, which given the aggravating circumstance that the victim was pregnant, appear to be very light.
Some further insights may be gained from the pre-sentencing report prepared by the Community and Offender Service, the Applicant’s affidavits, and a Fact Sheet prepared by the Police.
PRE-SENTENCE REPORT
A pre-sentence report dated 30 March 2012 was prepared by Probation and Parole Services of the Community and Offender Services.[11] The report notes the following:
The offender stated that he has been in a relationship with his partner, who is also the victim in this matter for the past 12 months, explaining that they have had a child now aged two months. Mr Alemu described the relationship as loving and claimed that there has been no history of violence within their relationship. The offender stated that he and his partner are in the process of looking for a rental property to raise their daughter together. This information has not been verified as contact with the offender’s partner has been unsuccessful to date…
Mr Alemu stated that he disagreed with the entirety of the Police facts. In regard to the drink driving offence, the offender stated that he was aware that he should not have driven the vehicle and had made a poor decision. He stated that he was aware of the ramifications his decision making could have had not only on himself but the wider community…
In relation the offence of Common Assault (DV) – T2, Mr Alemu denied assaulting his partner and minimized his actions. The offender claimed that an argument had erupted between him and his partner as she had attempted to exit the vehicle whilst it was moving. He claimed that he had panicked and had physically restrained her in order for her to remain in the vehicle. Mr Alemu denied dragging his partner back to the vehicle, claiming that he was holding her around the torso…
Mr Alemu presented to this Service as a person who has been raised in law abiding and supportive family environment. ... It is of concern that the offender’s denial of his violence related offence has resulted in his failure to acknowledge the seriousness of his offending behaviour with a view to addressing this issue for the sake of his ongoing relationship with his partner who was the victim of his offence.
While the offender has been assessed as suitable to perform unpaid work under a Community Service Order, it is considered that no available developmental program would significantly benefit the offender for the following reasons: Given the offender’s low level risk rating, there are no programs to suit his needs.
[11] T3 at p.66.
THE APPLICANT’S AFFIDAVITS RELATING TO INCIDENT
The following extract is taken from the applicant’s statutory declaration dated 14 September 2014[12]:
9. When I first arrived here, I studied English course at Macquarie College in Blacktown. I left college in 2010 so that we could work full time and earn enough money to support myself and my family. It was then in 2011, that I got into a relationship, with a Kenyan national who was at that time, a student undertaking her studies in Australia.
10. I thought our relationship was good. However it was apparently scum relationship. She told me that she pregnant and the baby was mine. I believe her, so I had been looking after her at that time financially and emotionally.
11. I started doing extra shifts every Saturday as I was expecting a baby and sending as much money as I could overseas to her parents. It was about this time that I found out that she had multi-partners and I was certain from reading a text message that baby was not mine. I was drinking at that time and it was too stressful for me to bear. I then made a wrong decision and ran out of the pub in Blacktown and left her inside the pub. She followed me and she got into my car. I told her to get out but she refused to get out. It is at this point of that I got out of the driver seat and I grabbed her by the arm to get her out. She was holding steering wheel and was unable to let go of it. While pulling her by her arm, she fell on her left knee and grazed it. I was drunk at that time and very upset about what had just happened to me.
[12] Applicant’s affidavit dated 14 September 2014.
He gave a similar account in the Statutory Declaration signed on 21 June 2019[13]
[13] The affidavit is incorrectly dated 21 August rather than 21 June.
8. In relation to the four offences for which I have been charged on 14 October 2011 relating to the same incident. I wish to explain the circumstances as follows. In early 2011, I met GX and began dating her from that time. Our relationship was going well, and after a couple of months, I found that she was pregnant. I was looking after her financially and emotionally. I was working on Saturdays so that I could save money to support the new baby. GX also requested that I send her parents money to help support them which I also did.
9. Prior to 14 October 2011, I began hearing from friends, that GX was not carrying my baby and that she was sleeping with other men.
10. On about 14 October 2011, while I was at work, GX and I was messaging one another. GX had asked that we live together and I refused as I was not sure whether the baby was mine. After a few heated messages, she texted me to say “Don’t worry about living together, the baby is not yours anyway”
11. Following this text message, I became very upset and attended a pub in Blacktown after finishing work that day. Shortly after, GX came to the pub and we began arguing about whether or not I was the father of the baby. I left that pub and went to another pub by myself and a short time later GX came to the second pub where I was.
12. We continued arguing and she said “I want to get my stuff from your house”. I said “okay go back to the first pub and I will you up from there”.
13. I went to pick GX up from the first pub about 10 minutes later. When I arrived she was crying and got in the car, and I began driving towards my house. While I was driving, we continued arguing and she told me not to leave her. I admit that I slapped her on the face two times but these were very light and it was out of anger due to her pregnancy with another man.
14. GX then said to me, “do you really want to leave me”, I said “yes” after which time she opened the car door and jumped out while I was stationary at a traffic light. As she got out, she fell and grazed her knee.
15. She began yelling and crying towards one of the houses that we had stopped nearby to. I got out of the car to tell her to get back in so I can take her to my house to collect her belongings, she became hysterical and was screaming and shouting. I took her by the arm and walked her to the car so that I could calm her down and take her to my house where she could gather her belongings.
16. She told me “I don’t want to go to your house, I want to go to my friend’s house in Seven Hills. I began driving to Seven Hills and a short time later I was pulled over and charged with several offences.
17. I would like to say that, I did not pull GX’s hair or drag her at any time. I have been told by GX, that her hair is not real and she has braids put in to make her look like she has long hair. On a number of occasions, I have seen her hair fall out, especially in bed. I have seen her braids laying on the pillow and in other places in my home.
18. I paid all fines, and completed all penalties including community service and complied with my good behaviour bond. I also attended and completed a traffic offenders’ program and I have been very embarrassed and remorseful to have been in such a bad situation. Also, shortly after this time, I moved back in with my mother and committed to look after her and ensure I was behaving so that I would not upset her and cause her any further grief.

The following is extracted from the Police Fact Sheet.[14]
The accused stopped his motor vehicle in the vicinity of an address known to police … It was at this time the complainant exited the vehicle in haste to escape further assaults by the accused. Whilst attempting to exit the vehicle the complainant has fallen which caused a graze to her right knee. The complainant saw a residential premises, the address is known to police, had the front door open and so she ran to this address and yelled for help. At this address were the witnesses DS and HE. The extent of the complainant‘s pleas for help were described by DS as bloodcurdling. Both DS and HE exited their house to see the accused chasing the complainant. They also witnessed the following. The complainant grabbed onto their front screen door and yelled “Please help me”. DA said “Leave her alone what’s wrong?” The complainant continued to scream “Please help me”. The accused grabbed the complainant by the back of the hair and pulled her head backwards. The accused grabbed the complainant under her armpits, lifted her off the ground and began to drag her back to his motor vehicle. The complainant was resisting and the accused and yelling “Please help me sir”. DS said “What are you doing just get out of here and let her go”. The accused said “Fuck off”. The complainant was crying and begged “Please help me please sir” The accused dragged the complainant about 15 m to his motor vehicle. The complainant screamed the whole way. “Please help me please help me”! The accused said “What do you do this fucking shit for?” The accused pushed the complainant into the front passenger seat of his vehicle. The front door of his motor vehicle was still open from when the complainant exited the car. The accused slammed the door closed. The accused drove [on] with the complainant…
Once the motor vehicle had left DS and HE saw a braid of black coloured hair, a pair of female sandles, scattered Australian currency and two separate mobile phones. These items were scattered within their yard and the adjoining roadway.
[14] Respondent’s Evidence at pp 51, 62.
It is apparent that there are discrepancies between the evidence presented by the Police in the agreed Fact Statement and the accounts given by the Applicant in 2014 and 2019. This matter will be discussed further below.
The Applicant’s record in relation to licensing and traffic violations is as follows.
(a) His learner’s driver’s licence was issued on 22 April 2009.
(b) On 5 July 2009 he was convicted of speeding (not more than 10 kms). His learners licence was cancelled and reissued on 22 April 2010.
(c) His provisional licence was issued on 26 August 2010.
(d) On 14 October 2011 his P licence was suspended by police. On 30 March 2012 he was disqualified for drink driving (special range) and fined $800. (This is the matter dealt with above)
(e) On 7 July 2012 his P licence was reissued and on 19 July 2014 he failed to comply with a condition of his P licence by not displaying his P plates.
(f) On 31 October 2015 he was fined for disobeying a left/right turn sign and not giving particulars after a crash and fined $248 and $319 respectively.
(g) On 15 December 2015 his P license was suspended for exceeding demerit points.
(h) His P licence was reissued on 20 April 2016 and on 23 February 2017 it was suspended for 3 months with a $400 fine for driving with alcohol (special range).
(i) On 24 May 2017 his P licence was reissued with a one passenger limit until 24 May 2018.
DECISION
The Tribunal is required to consider whether the Applicant is of good character by taking into consideration the material that was before the Minister’s delegate and any new material that is before this Tribunal.
The term “good character” is not defined in the Act, but it is addressed in the Citizenship Policy. Chapter 11 of the Policy defines “good character” for administrative purposes and provides a framework for assessing an Applicant under the provisions of the Act.
The concept of good character refers to a person’s enduring moral qualities including characteristics which have been demonstrated over a very long period of time. An applicant’s behaviour is considered to be a manifestation of their essential characteristics.
Under the Policy, decision-makers are required to consider
(a)Whether a person of good character would have behaved in the way the applicant did;
(b)What evidence is available to demonstrate that the applicant has upheld and obeyed the law;
(c)Whether the applicant has behaved in accordance with Australia’s community standards; and
(d)Whether the applicant shares Australia’s democratic beliefs and respects its right and liberties.
Some assistance as to the meaning of good character may be gained from the Federal Court decision Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660. The context of the decision in Irving was the withholding of a visitor’s visa under the Migration Act 1958 and Regulations made thereunder, as opposed to the conferral of citizenship under the Australian Citizenship Act 2007. The appellant was refused a (Business) Short Stay Visitor Visa by the Minister for Immigration, Local Government and Ethnic Affairs. The appellant had been convicted of offences in Germany relating to his comments about the Holocaust and expelled from that country. He had been deported from Canada, and denied entry to South Africa and Italy. There was an arrest warrant outstanding for him in Austria. The Minister was not satisfied that the plaintiff was of good character. The appellant appealed to the full Federal Court against a decision of a single judge dismissing an appeal by way of judicial review against the Minister’s decision. The appeal was dismissed.
Davies J stated, at [9]:
9. It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. See Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account…
The following passage from Lee J’s judgment has been widely quoted.
Unless the terms of the Act and regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion…A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character…. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
Lee J was keen to emphasise that the question of character was a matter of fact for the decision-maker.
8. …The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review…
And at [23] the learned judge said:
23. I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character". Although, in general, "good character" can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision. Once the decision has been made, it matters not that another decision-maker may have concluded differently. The decision will stand unless an error of law is established, eg., that the decision was such that no reasonable decision-maker could have arrived at it. No such error has been established in the present case.
ANALYSIS
At the Tribunal hearing, the Applicant gave evidence and was cross examined by counsel for the Respondent.
The Applicant has been in employment since 2012. He has several references attesting to his good character.
The case against the Applicant has various elements– his driving record over the past 9 years; the incident with GX in October 2011; the conviction for affray; and his failure to answer the natural justice letter. The Tribunal is required to weigh these matters together in order to decide whether the delegate ought to have found that the Applicant was of good character.
The 2011 Affray offence, considered at paragraph 16 above, might be regarded as an excessive if unfortunate display of youthful exuberance. Given the physicality and violence involved it was not a trivial incident, and merited an $800 fine. It would not however by itself constitute a permanent stain on his character, and indeed, considered in isolation would be barely visible after this passage of time.
His driving record is not good. In summary, his Provisional licence has been suspended three times (14 October 2011; 15 December 2015; 23 February 2017). He has been convicted of two drink driving related offences (March 2012, 23 February 2017); two moving violations (31 October 2015; 5 July 2009); and two lesser offences (19 July 2014; 31 October 2015). His licence was reissued on 24 May 2017 and remains current.
The most recent offence was committed on 31 December 2016. He had a blood alcohol content of .034. He was driving on a provisional licence at the time. On 9 February 2017 he applied for citizenship and the traffic matter was dealt with on 23 February 2017.
The significance of a bad driving record was recently considered by Senior Member Chris Puplick AM in Re Sogir Ahmed and Minister for Immigration and Border Protection [2018] AAT 4458. The applicant in that case had more than 25 speeding fines and one conviction for driving under the influence of cannabis. The Tribunal recognised that a bad record may be sterilised or neutralised by a period of good driving. The Tribunal considered it would take many years of driving with a clean record to demonstrate that the license-holder was a responsible driver and road user, and that responsible driving was directly relevant to the ascription of good character required for a grant of citizenship.
In the present case the conviction in early 2017 for driving with a proscribed blood alcohol content does not assist the Applicant. This single offence might be regarded as a minor blemish in what might otherwise be regarded as a poor but not unsalvageable driving record. But the timing of this recent offence is most unfortunate for the present application.
The delegate emphasised the Applicant’s failure to answer the natural justice letter as relevant to the question of character. The Tribunal is slow to draw this inference in the absence of evidence from which it might be inferred that the Applicant’s non-responsiveness was a manifestation of indifference verging on contempt for legal process. In the absence of such evidence, it is a factor, but not a strong one.
The gravamen in this case relates to the domestic violence incidence in 2011. The question is whether this incident suggests an enduring weakness of character, or whether it was a one-off incident fuelled by alcohol and other human emotions that spun out of control. The offences occurred within a potent cocktail of suspected infidelity, pregnancy, fear and anger fuelled by alcohol.
At the Tribunal hearing the Applicant said that in 2012 he was drinking more and was worried about money and employment. He is no longer drinking to the same degree and has had a steady job for many years. He is no longer dating. He is remorseful about the incident with his pregnant girlfriend. He has a secure home environment, thanks largely to his sister and brother in law AE.
A person who commits an offence of personal violence within the context of a domestic relationship will face a major hurdle in demonstrating good character. He or she may do so by demonstrating that sufficient time has elapsed without any repetition of such behaviour, and that he or she understands the serious consequences, physical and psychological, for the victim; and the community’s intolerance of such behaviour. The perpetrator must demonstrate understanding and remorse. The Tribunal has a duty to protect persons within domestic relationships from violence by giving very careful consideration to this issue. That such behaviour may have been tolerated or swept under the carpet in the past does not speak to present standards and modern times. The fact that the New South Wales Parliament enacted legislation in 2007 to deal with the issue is proof positive of the gravity of the issue.[15] The Australian community expects that persons who commit acts of violence within a domestic context will not be seen to be of good character. Where the incident is a one-off bad incident in an otherwise unblemished record, a decision-maker will no doubt look for signs of comprehension, remorse and reform. And the effluxion of time.
[15] Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The decision rejecting the application was made on 20 November 2018. Seven years have passed since the offences were committed on 14 October 2011. A quarter of his life has passed since the fateful day. Is this enough time to demonstrate remorse and recovery?
The Tribunal notes that the Applicant has rejected the account given by the Police specifically relating to his dragging GX back to the car after she fled. He gave conflicting account. In 2014, the Applicant stated, in a sworn affidavit:[16]
She followed me and she got into my car. I told her to get out but she refused to get out. It is at this point of that I got out of the driver seat and I grabbed her by the arm to get her out. She was holding steering wheel and was unable to let go of it. While pulling her by her arm, she fell on her left knee and grazed it.
[16] Applicant’s affidavit dated 14 September 2018, paragraph 11.
In 2019, also in a sworn affidavit, he stated:
14. GX then said to me, “do you really want to leave me”, I said “yes” after which time she opened the car door and jumped out while I was stationary at a traffic light. As she got out, she fell and grazed her knee.
15. She began yelling and crying towards one of the houses that we had stopped nearby to. I got out of the car to tell her to get back in so I can take her to my house to collect her belongings, she became hysterical and was screaming and shouting. I took her by the arm and walked her to the car so that I could calm her down and take her to my house where she could gather her belongings.
16. She told me “I don’t want to go to your house, I want to go to my friend’s house in Seven Hills. I began driving to Seven Hills and a short time later I was pulled over and charged with several offences.
17. I would like to say that, I did not pull GX’s hair or drag her at any time.
The Applicant’s assertion that he took her by the arm and walked her back to the car so that I could calm her down is not consistent with the eyewitness accounts deposed to by the Police. None of this was tested in a criminal trial although it was a condition of the charge bargain arrangement that the facts tendered by the Police were agreed by the Applicant. It is impossible to know where the truth lies, for the truth is obscured by time and the Applicant is the only present witness.
Despite these difficulties, the Tribunal is satisfied that the 2019 affidavit significantly understates the nature of his conduct, and that the Applicant did drag GX back to the car while she was calling for help from strangers, and that during this altercation she lost her hair extension and scraped her knee. He may well have acted out of fear, panic and anger, but in any event, the impact on GX was severe.
The court treated the matter with relative leniency, settling upon community service as an appropriate sentence rather than a fine or suspended custodial sentence.
It may well be that the Applicant has fallen into the human error of sanitizing his own behaviour. It is after all, a human failing to see one’s actions in the best possible light.
The Tribunal is mindful that the offences in question occurred a considerable time ago. Indeed, within two years the offences will be expunged from the criminal record for most purposes. By coincidence, in the same year the applicant fell out with GX, the NSW Parliament passed the Criminal Records Act 1991 (NSW). The primary object of the 1991 Act is to implement a scheme to limit the effect of a person's conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person's criminal history. The crime-free period in the case of a conviction of a court (other than the Children's Court) is any period of not less than 10 consecutive years after the date of the person's conviction during which the person has not been convicted of an offence punishable by imprisonment.
It may be that the existence of spent convictions is not something that a decision-maker may consider in relation to an Australian citizenship application.[17]
[17] See Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 for the relevance of such provisions in relation to review by the Tribunal in a different context.
It is often said that this is a land of second chances, that many who came to these shores under the cloud of penal servitude made lasting and permanent contributions to this land. However, the prize of Australian citizenship is not to be granted lightly and it is only to be granted to those of good character.
The evidence shows that the Applicant has risen above adversity, that his journey from Africa has been anything but easy, and that he has been gainfully employed as a painter virtually since arriving as a boy of 16. With the exception of an 18 month period in 2012-13 he has lived with his extended family, mother, sister and brother in law and three children in a supportive family environment. He has solid references from various employers.

By many lights the Applicant is an admirable young man and will one day, hopefully, make a fine citizen. But he has some way to go in accepting fully the consequences of his actions with GX some 7 years ago. The fact that she was pregnant may well explain his aroused passions; it also serves to condemn categorically any violence directed against her. A cluster of traffic offences and licence suspensions is also unhelpful in demonstrating compliance with the law and acceptance of Australian community standards. The case for reform on this front has been set back by the most recent drink driving offence, committed on New Years’ Eve 2016, shortly before the application for citizenship was submitted.
The combination of matters identified by the delegate remains a bar to citizenship at the present time, although it must be said that there are grounds for optimism that the valuable prize of Australian citizenship can be achieved in the not too distant future. It is hoped that these reasons will assist the Applicant in understanding what he needs to do.
For these reasons the Tribunal affirms the reviewable decision.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.........................[sgd]...............................................
Associate
Dated: 9 September 2019

Date(s) of hearing: 15 August 2019

Applicant: In person

Solicitors for the Applicant: A Antoon, Simon Diab & Associates

Solicitors for the Respondent: C Campbell, Minter Ellison

[2019] AATA 3352

9 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	15 August 2019
Applicant:	In person
Solicitors for the Applicant:	A Antoon, Simon Diab & Associates
Solicitors for the Respondent:	C Campbell, Minter Ellison