Ali and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Ali and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3155 (27 September 2022)
Division:GENERAL DIVISION
File Number: 2021/7519
Re:Rahma Hassan Ali
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member S Barton
Date:27 September 2022
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 September 2021 which refused a grant of Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.
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Member S Barton
Catchwords
CITIZENSHIP – refusal of application for Australian citizenship by conferral – whether Tribunal is satisfied of Applicant’s good character – criminal conviction – failure to declare – Reviewable Decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24, 24(1), 52(1)(b)
Cases
BOY19 v the Minister for Immigration and Border Protection [2019] FCA 574
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship Policy
Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 15 – Assessing Good Character under the Citizenship Act (2021) – paras 3.1, 3.3, 4, 6, 12.1, 12.2
REASONS FOR DECISION
Member S Barton
27 September 2022
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Respondent dated 17 September 2021 to refuse the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The delegate refused the application on the basis that the Applicant did not meet requirements under s 21(2)(h) of the Citizenship Act at the time of the decision.
BACKGROUND
The Applicant, a citizen of Somalia, arrived in Australia on 25 June 2015 as a holder of an Orphan Relative (Subclass 117) visa.
On 21 October 2019, the Applicant was convicted in the Fremantle Magistrates Court of common assault and fined $1,000 (T15).
On 6 November 2019, the Applicant applied for Australian citizenship by conferral.
On 12 March 2020, the Applicant’s application for citizenship was refused on identity grounds. On 16 March 2021, by consent, the Tribunal set aside the decision under review and remitted the matter for reconsideration with a direction that the Respondent was satisfied of the Applicant’s identity (T9).
On 17 September 2021, a delegate of the Minister refused the Applicant’s application for citizenship in accordance with s 21(2)(h) of the Citizenship Act, because the Applicant was assessed as not meeting the character requirements. This is the Reviewable Decision before the Tribunal.
On 15 October 2021, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision.
JURISDICTION
The application for review was made in accordance with s 52(1)(b) of the Citizenship Act which allows the Tribunal to review decisions made under s 24 of the Citizenship Act. The Tribunal is satisfied that it has jurisdiction to hear this application.
ISSUE
The issue to be determined by the Tribunal is whether the Applicant satisfies the character requirements for the purposes of s 21(2)(h) of the Citizenship Act.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Monday 29 August 2022. The Applicant was self-represented and the Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
The Applicant gave oral evidence and was cross-examined. The Respondent made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statutory Declaration with attachments, dated 23 August 2022 (Exhibit A1);
(b)Applicant's Notice of Conviction, dated 21 March 2022 (Exhibit A2);
(c)Character reference letter by Hassan Ismail Farah, dated 18 March 2022 (Exhibit A3);
(d)Applicant’s National Police Certificate, dated 2 June 2022 (Exhibit A4);
(e)Section 37 T-Documents, labelled T1-T21, consisting of pages 1-138, filed 12 November 2021 (Exhibit R1); and
(f)Respondent’s Statement of Facts, Issues and Contentions with records produced under summons from Western Australian Police attached, dated 4 July 2022 (Exhibit R2).
RELEVANT LEGAL PRINCIPLES
Section 21(1) of the Citizenship Act provides that “[a] person may make an application to the Minister to become an Australian citizen”.
From 1 January 2019, the Citizenship Policy, Department of Immigration and Border Protection is being systematically replaced by the Revised Australian Citizenship Procedural Instructions (Revised Instructions) which provide guidance on the application of the “good character” requirement relevant to assessing an applicant’s application for Australian citizenship by conferral. CPI 15 – Assessing Good Character under the Citizenship Act (CPI15) is the Instruction relevant to this application.
Character
A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Citizenship Act, as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
Good character is not defined in the Citizenship Act. The Tribunal is guided by CPI15, mentioned above, in its discussion of this requirement.
Paragraph 3.1 of CPI15 states:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·     consider any character issues that arise on the facts of a case;
·     consider all relevant information;
·     guard against bias;
·     be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·     be mindful that a person who may not have been of good character can become a person of good character;
·     continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
Relevantly, paragraph 3.3 of CPI15 states:
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
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 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 while 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.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·     characteristics which have endured over a long period of time;
·     distinguishing right from wrong; and
·     behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
Paragraph 4 of CPI15 provides a list of characteristics that may be expected from someone of good character, it states:
As a general proposition, a person who is of good character would:
·     respect and abide by the law in Australia and other countries;
·     be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·     not practise deception or fraud in dealings with the Australian Government, or other organisations, for example …
ointentionally providing false personal information …
…
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
Also of relevance in this matter is paragraph 6, which states:
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
EVIDENCE
On 6 November 2019, the Applicant lodged her application for Australian citizenship by conferral, dated 30 October 2019 (T4). In question 39 (a) and (e) of her application, the Applicant was asked the following respective questions (T4/24):
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
…
Are you aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review?
The Applicant ticked ‘No’ to both questions.
On 21 October 2019, nine days prior to her signing her citizenship Application, the Applicant was convicted in the Fremantle Magistrates Court of common assault and fined $1,000 (T15/82).
According to the Statement of Material Facts (R2, Attachment 4, p 5) on 21 August 2019, the Applicant was walking to her class in school when a verbal altercation ensued with a fellow student, A. This altercation turned physical, resulting in school staff and A’s friend, B, intervening to separate the pair. B extended her arm to separate the Applicant and A, and in doing so, made contact with the Applicant’s right shoulder. In response, the Applicant:
…grabbed the victim’s hair and struck her multiple times to the upper back. [The Applicant] did not let go of the victims [sic] hair…[and] continued to strike the victim to the back of the head whilst the victim attempted to free herself from the [Applicant’s] grip.
The assault was recorded on closed circuit television.
The Applicant stated that she received the fine in November 2019 and paid it (A1, at [42]; [50]).
On 21 March 2022, the Fremantle Magistrates Court recorded a spent conviction for the Applicant (A2).
This conviction is the Applicant’s only interaction with the criminal justice system.
CONSIDERATION
There are two key matters to be considered when assessing if the Applicant is of good character: that she was convicted for common assault and that she failed to declare this fact when she applied for Australian citizenship.
Paragraph 12.1 of CPI15 states that decision-makers should act on the basis that the verdict of an Australian court, and the essential fact findings supporting the verdict, are correct. It also provides guidance on assessing criminal offences, stating that serious offences may include crimes of violence, including assault. As stated in paragraph 12.2, it is also important to consider the sanction for that crime, as it is indicative of its seriousness.
While the Applicant was convicted of a crime of violence (common assault), the punishment was a fine and with no custodial sentence. This should be given some weight. In terms of seriousness, while mindful that there was a victim involved, this is a crime of violence towards the lower end of severity.
The Applicant was 18 years old at the time of her offence and has not offended again in the three years since the incident occurred. These factors should be given some weight.
During the hearing, the Applicant was shown the Statement of Material Facts as presented by Western Australian Police. When asked if everything in that statement was true, she replied, “[y]es” (transcript/7).
However, in her Affidavit to have her conviction set aside, the Applicant stated (A1, at [49]; [66]):
I would not have paid the fine at the time had I understood the consequence of what had happened.
…
I have now read the Statement of Material Facts and I do not accept that I was guilty as alleged.
When asked to explain this discrepancy between accepting that the Statement of Material Facts was true and her Affidavit, the Applicant stated (transcript/8-9):
Okay. The reason why I say that I wasn’t guilty is because, see, at the first time when this fight happened, I’m not actually a violent person and I don’t like fighting but when this happened because I was defending myself at that time and three girls were attacking me. One of them did not fight but the other two. So the only reason why I said this is because I know the CCTV camera, they have written everything in this document and that is what the CCTV camera captured, I guess, at the time but, you know, in this, like, when I read this even exactly, like, it doesn’t say how did it start and all of that.
…
I accepted everything in here which is true.
… This is exactly what happened but, you know, there was a - I’m just talking about, like, how did it start. I know all this happened, I accept it because this is, like, exactly what happened. But, you know, when this fight started it was - how did it started, the camera didn’t capture it. At the time I was walking to my last class, so the girl that I had a fight with, so I was - we were walking by. I walk - like, we were walking by each other and then she, like, you know, her friends told her, like, I can hear her friends was telling her to, like, you know, attack me, do something to her. I can hear but I didn’t say anything, I didn’t respond, you know. I walked away, still I’m walking to my class. So the girl run back, she comes back to me and then she pushed my right shoulder. That is how the fight happened.
In her application for a review by the Tribunal, the Applicant stated that (T2):
I think this decision is wrong because when I was in high school, I had [sic] fight with some girls [sic] this was self defence. unfortunately [sic] the court has been given the wrong information about my fight with [sic] girls.
Based on the Applicant’s account it is not at all clear that she has accepted responsibility or shown any remorse. Moreover, any regret from the incident comes not from the assault itself, but from the consequences from the court proceedings.
The Respondent has drawn the Tribunal’s attention to HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, where Bromberg J summarised the following relevant legal principles (at [78]):
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
(Emphasis added.)
If the second principle applies to the Applicant’s matter, there is a heavy onus upon her to challenge the facts upon which a conviction is based. The Applicant has not done so.

Bromberg J’s decision was upheld on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202. With respect to the term ‘heavy onus’, Colvin J observed (at [191]):
... unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings.
In her Affidavit and in her evidence to the Tribunal, the Applicant stated that she had not understood the process. She claims that when interviewed by the police on 26 September 2019, she was not offered an interpreter, she had no legal counsel present and that she was not advised that she was under arrest or was going to be charged with assault (A1, at [24]; [26]-[27] & [36]).
The Applicant stated (A1, at [31]; [39]):
I asked the police officers how the incident might affect my future and my career. The police officers responded that it ‘was just a fight.’ They said that it wasn’t a big deal and not worry about it, it wouldn’t affect my career or words to that effect.
…
In light of what the police officer had told me, I did not think anything would flow from the incident and interview. I left the station believing that nothing further was going to occur and that was the end of the matter.
The Applicant further stated that she received a notice of a fine in November 2019, the same address she was living in when she had committed the offence. The Applicant paid the fine, but stated that she did not understand the words such as “sentenced” and “conviction” (A1, at [46]). Only later, after she applied for a police clearance as part of her nursing studies, did the Applicant claim that she became aware she had a criminal record (A1, at 54-55).
The Applicant stated that, prior to 15 November 2021, when her solicitors forwarded to her the Prosecution Notice and Statement of Material Facts, she could not recall seeing or receiving them.
The Tribunal is being asked to accept that the Applicant was unaware that she had been charged, unaware that she had been summoned and unaware that she had been convicted, and that she had not received any of the relevant correspondence, but she had received the fine, that she decided to pay, not knowing that it was a fine related to a criminal conviction.
The Tribunal notes that the Applicant arrived in Australia in 2015 and commenced English classes that year. She stated that she could not “actually understand” English until the end of 2019, and later enrolled in TAFE English units in 2020 (transcript/11-12).
The Applicant, in her Affidavit, stated that she commenced studying nursing in November 2020 (A1, at [52]). This suggests a reasonable competence with the English language, and while it may have improved that year, there is no evidence before the Tribunal beyond her statement, that she could not understand English in 2019. Of note, in her Affidavit, the Applicant quoted her conversation with the police officers, which suggests a level of competence with the language.
For the police interviews to have been conducted in such a way that the Applicant did not fully comprehend the proceedings, would suggest impropriety by Western Australian Police. However, the Applicant did not offer any compelling reason to doubt the integrity of that process.
The Applicant did not disclose the criminal record in her application for Australian citizenship. Even if we allow for some confusion around the process and accept, for the purpose of argument, that she had not known about the summons to the Fremantle Magistrates Court, she should have been aware, from her police interview, that proceedings may have been pending. However, she did not disclose this.
It is well established that truthfulness in the completion of Government documentation goes to the enduring moral qualities of an individual. Put another way, a person of good character, would not seek to knowingly conceal information from a Government agency or body. Paragraph 4 of CPI15, notes that a person of good character would respect and abide by the law in Australia and not practise deception or fraud, or intentionally provide incorrect or incomplete information.
On 17 June 2021, the Applicant received correspondence from the Department of Home Affairs (the Department) inviting her to comment on adverse information, relating to her conviction for common assault (T15).
The Applicant did not comment, despite being given the opportunity to do so. She did however contact the Client Services Centre on 16 July 2021 and stated that she did not advise the Department of the incident, because it occurred after she applied for Australian citizenship (T19). This is not the case.
When questioned about this during the hearing, the Applicant responded (transcript/18-19):
The only reason why I told them that is because, see, to be honest, I thought I applied for my application before the incident happened and I wasn’t the person who applied for this application. It was my aunt at the time who applied for me and I thought she did it before, like, you know, before the incident. So once I found out that, like, once I found out the whole story, like this application has been applied, like, on the day after the incident happened.
The Applicant was then taken to her signature on her application for Australian citizenship, which was dated 30 October 2019. When it was put to the Applicant that she signed the application knowing the offence had taken place, she stated (transcript/20):
Yes, I knew that it happened because, like, you know, like I said, I don’t really thought of anything of this - I didn’t have that knowledge of, like, you know, how this was going to affect my, you know, being citizen. Yes, that’s the only reason why I signed it.
CONCLUSION
The Applicant was convicted of common assault in a school yard fight. This should not be a permanent bar to Australian citizenship. That it was at the lower end of the spectrum and there was no custodial sentence is given some weight. Her lack of other offending is also given some weight.
However, this must be balanced against the lack of clear remorse and the confused and implausible explanations for not declaring the offence in her citizenship application. In short, the Applicant’s crime is compounded by her attempt to conceal it in her application for Australian citizenship.
As detailed above in CPI15, ”good character” refers to the enduring qualities of a person: characteristics that have endured for a long period of time, such as knowing right from wrong and conducting oneself in an ethical manner, in accordance with Australian society’s expectations. The Applicant’s conduct, for these reasons detailed above, falls short of this standard.
In BOY19 v the Minister for Immigration and Border Protection [2019] FCA 574, O’Bryan J, noted that (at [55]):
In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.
The Tribunal is mindful that a person who is not of good character, can become a person of good character. It is also true that a person of good character may do things they otherwise regret or is out of step with their usual conduct and behaviour.
There is a chance the Applicant is of good character who made a series of mistakes; however, this falls short of the affirmative belief required.
It is open to the Applicant to apply for Australian citizenship in the future. The Applicant may choose to continue with her studies and become a responsible, law abiding member of the community, accepting and remorseful of her actions as an 18-year-old. In these circumstances, a future decision maker may be able to reach an affirmative belief that the Applicant is of good character.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 September 2021 which refused a grant of Australian citizenship under s 24(1) of the Citizenship Act, is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

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Associate
Dated: 27 September 2022

Date of hearing: 29 August 2022

Applicant: Self-represented

Solicitors for the Respondent: Mr A Burgess, Sparke Helmore Lawyers

[2022] AATA 3155

27 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Standing

Date of hearing:	29 August 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers