Anton and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 4187

Anton and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4187 (6 November 2018)
Division:GENERAL DIVISION
File Number: 2017/6601
Re:Anburajan Anton
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:6 November 2018
Place:Perth

The Reviewable Decision is set aside, and remitted to the Department for reconsideration with the direction that the Applicant satisfies the character test under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
.........................[sgd]...............................................
Senior Member Dr M Evans
CATCHWORDS
CITIZENSHIP – good character – considerations to be taken into account when assessing character – whether subsequent conduct of the Applicant shows he has reformed – time at which the tribunal must be satisfied of good character – Applicant involved in riot in immigration detention in 2009 – no subsequent criminal offences – minor traffic offence in 2012 – reviewable decision set aside and remitted with a direction that the Applicant satisfies the character test under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1)
Australian Citizenship Act 2007 (Cth) – s 21(2)(h), s 24, s 52(1)(b)
Criminal Code Compilation Act 1913 (WA) – s 65
Migration Act 1958 (Cth) – s 197B, s 501(6)(aa)(i)
CASES
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fenn vMinister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Lobo and Department of Immigration and Citizenship [2010] AATA 583
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Shi v Migration Agents Registration Authority (2008) 248 ALR 390
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Senior Member Dr M Evans
6 November 2018
BACKGROUND

Mr Anton is a 29 year old man who wants to become an Australian citizen. He first arrived in Australia on 28 June 2009 from Sri Lanka as an unauthorised boat arrival (T1, page 11). Upon arrival, he was put into immigration detention at the Christmas Island Immigration Detention Centre.
On 21 November 2010, whilst he was in immigration detention, Mr Anton took part in a riot. At the time of the riot he was 21 years old. The Australian Federal Police Statement of Facts noted that, during the riot, more than 50 detainees sustained injuries, as did three staff members (ST5, page 206).
Mr Anton was convicted in the Perth Magistrates Court on 4 November 2010 of the offence of “taking part in a riot”, pursuant to s 65 of the Criminal Code Compilation Act 1913 (WA) for which he was sentenced to a term of imprisonment of 6 months, 1 day, which was suspended for 6 months (ST4, page 201). He was also convicted of manufacture and possession of a weapon by a detainee under s 197B of the Migration Act 1958 (Cth) (Migration Act). These will be collectively referred to as the “riot convictions”. The weapons were a wooden stick or branch and a metal pole (ST3, page 200; ST5, page 206).
On 24 November 2010, Mr Anton was granted an XA 866 permanent visa (T1, page 11).
On 14 January 2015, Mr Anton lodged an application for Australian citizenship by conferral (T6, page 97). In his application, he indicated that he had not been convicted of any offences (T6, page 104).
On 22 December 2015, the Department of Immigration and Border Protection (the Department) wrote to Mr Anton to inform him that his application had been received and assessed, however there had been delays in processing it due to the large number of cases being considered by the Department. The Department also requested that Mr Anton provide original copies of documents to the Perth citizenship branch (T8, page 117).
A criminal history check was undertaken as part of the application process, which revealed Mr Anton’s riot convictions. The check also uncovered a traffic conviction for unauthorised driving by a learner driver on 8 May 2012, for which Mr Anton received a fine of $150 (T10, page 185).
On 6 May 2016, the Department wrote to Mr Anton to give him the opportunity to comment on this adverse information. When the Department did not receive a response, they wrote to Mr Anton again on 4 July 2016 (T10, page 183).
In response, Mr Anton provided a statutory declaration in which he acknowledged his offences, together with five written character references (T11).
In a letter dated 5 September 2017, the Department advised Mr Anton that his application for Australian citizenship by conferral had been refused (T1, page 9) (the Reviewable Decision).
The decision record indicated that the basis for the refusal was that Mr Anton was not of good character at the time of the decision (T1, page 13). The delegate gave “considerable weight” to the riot convictions, as well as “substantial weight” to Mr Anton’s failure to disclose his convictions on his citizenship application form. The delegate also gave “little weight” to the character references provided by Mr Anton, stating that they did not refer to his convictions (T1, page 13-14).
On 7 November 2017, Mr Anton made an application to the General Division of the Administrative Appeals Tribunal (Tribunal) seeking a review of the Reviewable Decision (T1, page 1).
ISSUE
The issue requiring determination by the Tribunal is whether the Tribunal is satisfied that the Applicant is of “good character” under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
JURISDICTION
The jurisdiction of the Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In summary, the Tribunal does not have an inherent jurisdiction to review certain types of decisions, but rather s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other enactments, which grant it jurisdiction to review certain decisions made under those enactments.
Section 52(1)(b) of the Citizenship Act provides that, “An application may be made to the Administrative Appeals Tribunal for a review of…(b) a decision under section 24 to refuse to approve a person becoming an Australian Citizen”. The Reviewable Decision was made under s 24 of the Act, and consequently, the Tribunal has jurisdiction to review it.
MATERIAL BEFORE THE TRIBUNAL
The hearing of Mr Anton’s application was held on 14 September 2018. Mr Anton was represented by Mr Farris Faris from Rebus Legal. The Respondent was represented by Mr Arran Gerrard from the Australian Government Solicitor.
Mr Anton gave evidence at the hearing in person, and was cross-examined. Ms Christine May was called by Mr Anton as a character witness, and also gave evidence at the Tribunal hearing.
The Tribunal admitted the following material into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions, undated, with Annexures A to H as follows (Exhibit A1):
(i)Annexure A – Prosecution Notice and Prosecution Report;
(ii)Annexure B – Christmas Island Magistrates Court Statement of Facts;
(iii)Annexure C – Statement of Material Facts;
(iv)Annexure D – ABC News Article, “Inquiry launched into Christmas Island riot”, dated 23 November 2009;
(v)Annexure E – ABC News Article, “Detention riot blamed on chaotic policy”, dated 23 November 2009;
(vi)Annexure F – Western Australian Statutory Declaration and other documents and letters, dated 29 March 2018;
(vii)Annexure G – Personal statement of Mr Anton, dated 11 June 2018;
(viii)Annexure H – Mr Anton’s Amended Tax Assessment for the years ended 30 June 2012 to 30 June 2017;
(b)Section 37 documents (T-documents), numbered T1 to T12 (pages 1-195) (Exhibit R1);
(c)Supplementary s 37 documents (Supplementary T-documents), numbered ST1 to ST5 (pages 196-206) (Exhibit R2);
(d)Respondent’s Statement of Facts, Issues and Contentions, dated 18 July 2018 (Exhibit R3); and
(e)ABC News Article, “Asylum seekers guilty over detention riot”, dated 4 November 2010 (Exhibit R4).
The Tribunal has considered all of the material and evidence before it and is satisfied that the parties had an adequate opportunity to present their case and to be heard by the Tribunal.
RELEVANT LEGAL PRINCIPLES
Citizenship Act provisions
Section 21(2) of the Citizenship Act sets out the general eligibility requirements for Australian Citizenship. It provides:
General eligibility
(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.
Section 24 of the Citizenship Act further provides:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
The time at which the Tribunal must be satisfied of good character
As s 24(2)(h) of the Citizenship Act refers to the person having to be of good character at the time of the Minister’s decision, it is necessary to clarify whether the Tribunal can have regard to any evidence or conduct that occurs subsequent to the time of the Minister’s decision.
In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (Drake No 1), Bowen CJ and Deane J stated, at 419:
The question for determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.
In Shi v Migration Agents Registration Authority (2008) 248 ALR 390, the High Court of Australia recognised that the Tribunal could hear new evidence that was not before the original decision maker. This was explained by Kirby J, at 399:
… ultimately, it was for the tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the tribunal as relevant to its decision. In effect, this was no more than a consequence of the tribunal’s obligation to conduct a true merits review.
The issue of timing was also discussed by Deputy President Forgie in the decision of Zheng v Minister for Immigration and Citizenship [2011] AATA 304 (Zheng). The Deputy President referred to her decision in Lobo and Department of Immigration and Citizenship [2010] AATA 583 at [39], where she provided the following summary:
In summary, and unless varied by the particular legislation conferring jurisdiction on the Tribunal, the position since Shi has been:
(1) the decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it;
(2) the Tribunal will address the same issues or questions as those addressed by the original decision-maker;
(3) unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal reviews a decision as at the date it conducts that review and reaches its own decision;
(4) the Tribunal may have regard to evidence on issues and matters up to the date of its decision on review; and
(5) the task of the Tribunal:
(a) is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and
(b) is not to decide whether the decision under review is itself the correct or preferable decision.
In summary, with respect to the current application, it is appropriate for the Tribunal to take into account evidence up to the date of making its decision. This includes the further submissions and evidence filed by Mr Anton in Exhibit A1, and the evidence given by Mr Anton and Ms Christine May at the Tribunal hearing.
Definition of “good character”
The Citizenship Act does not include a definition of “good character”, however the Department has a Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 (Citizenship Policy) for the purpose of providing, “…guidance on the interpretation of, and the exercise of powers under, the Act…”. Chapter 11 of the Citizenship Policy provides information on what constitutes good character, community standards, characteristics of good character, and guidance for decision makers as to how to weigh up whether an applicant for citizenship is of good character.
The Citizenship Policy refers to a number of decisions that define “good character”. These include in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Irving) at 94 (Lee J):
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 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.
Relevantly, in Irving, at 89, Davies J stated that: “The question whether a person is or is not of “good character” is primarily an issue of fact.” Davies J further stated, at 91:
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.
In Exhibit R3, the Respondent referred to the following relevant passage from the judgment of Davies J in Irving, at 88-89:
…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.
Further, the Respondent cited the following passage regarding criminal convictions from the decision of Deputy President Wright in Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132. After citing the definition of “good character” from Lee J in Irving, Deputy President Wright stated, at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
The Citizenship Policy also refers to the decision of Fenn vMinister for Immigration and Multicultural Affairs [2000] AATA 931 in which Deputy President Breen stated, 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. While Mr Fenn may have made a contribution to the community before these offences and since 1995, he significantly detracted from the community for over 4 years and deprived a number of Australians of their savings and other monies rightfully theirs. That Mr Fenn is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship. 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 year's time when he can demonstrate a longer period of positive contribution to the Australian community.
And further, the Citizenship Policy cites the decision of Deputy President Forgie in Zheng at [120], however, the preceding paragraph is also relevant and has been included here:
119. It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values. I gain some assistance in identifying what society considers good, right and proper from the Preamble to the Act. After recognising that Australian citizenship represents full and formal membership of the Australian community, the Preamble states that citizenship is a common bond, which involves reciprocal rights and obligations and unites all while respecting their diversity. The Preamble goes on to state that persons upon whom Australian citizenship is conferred:
“... enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.”
120. In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another. The ways are not finite.

In a section of the Citizenship Policy titled, “Weighing up the character decision”, the following information is relevant:
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 about 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 Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
The Citizenship Policy also provides the following non-exhaustive list of “[c]haracteristics of good character” (page 147):
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
oinvolvement in bogus marriage
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
oinvolvement in Centrelink or Australian Tax Office fraud
ogiving false names and/or addresses to police
·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
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.
Passage of time since the offending
The following passage from Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 is relevant to the passage of time between the offending and the assessment of good character. In Assafiri, Senior Member Toohey stated, at [64]:
There is no formula for determining how much is sufficient time in order to be satisfied that a person is of good character. The ACIs refer to the phrase “enduring moral qualities” as encompassing the concept of “characteristics which have been demonstrated over a very long period of time”: 10.3.1. At 10.5.2 they state that, in the case of a serious offence, “a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character”. A decision-maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any [...] application”: cl 10.5.4.
CONSIDERATION
In summary, counsel for the Respondent contended that Mr Anton does not pass the character test for the following reasons:
(a)the riot convictions were serious offences, as evidenced by Parliament subsequently passing the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 (which received royal assent on 25 July 2011). This Bill amended the Migration Act to provide that a person does not pass the character test, for the purposes of the Migration Act, if they have been convicted of an offence that was committed while the person was in immigration detention (see s 501(6)(aa)(i) of the Migration Act);
(b)Mr Anton has not taken full responsibility for his actions with respect to the riot convictions and he downplayed his involvement in the riot in order to present himself more favourably;
(c)Mr Anton’s 2012 driving conviction illustrates a continued disrespect for the law; and
(d)He failed to disclose his riot convictions and the 2012 driving conviction in his application for citizenship.
In summary, counsel for Mr Anton submitted that he is of good character for the following reasons:
(a)the riot convictions were offences that were committed some time ago when Mr Anton found himself in circumstances of racial tension whilst in detention;
(b)Mr Anton’s last conviction was a minor traffic offence, and Mr Anton has not displayed a continued disregard of the law or a pattern of lawbreaking;
(c)sufficient time has passed since these offences occurred;
(d)Mr Anton deeply regrets his offending and has accepted responsibility for it;
(e)his failure to disclose his convictions was not due to any dishonesty, but due to a genuine misunderstanding; and
(f)Mr Anton was only 21 years old at the time of the riot convictions and he has substantially matured since that time. Mr Anton is currently employed full-time at a company that produces olive oil. He has worked for this company for 7 years, starting as a packer, and progressing up to being a warehouse manager.
The Tribunal agrees that the riot convictions are serious offences. There are very few details before the Tribunal regarding Mr Anton’s involvement. In a Statement of Facts prepared by the Australian Federal Police (ST5), which is approximately three pages long, there are only three paragraphs which refer to Mr Anton. The remaining text is a general description of the riot. The Tribunal does not have before it any comments from the sentencing judge, for example, or any witness statements.
The references in the Statement of Facts relating to Mr Anton, in their entirety, are as follows (ST5, page 205):
When interviewed ANTON concedes that he was amongst the group that forced the roller doors open and entered the Green Heart area. He states that he wanted to go to the aid of a man he knows as ‘Archu’ who was outside the compound and was injured.
Further, the Statement of Facts states (ST5, page 205):
When interviewed ANTON made admissions to being amongst the group of Sri Lankans and to being in possession of some sticks and a metal pole during the disturbance. He states that he took the weapons in order to defend himself. ANTON also made admissions to the effect that he may have struck someone with the weapons, but could not say who it was.
The final reference to Mr Anton in the Statement of Facts is as follows (ST5, page 206):
[name omitted] states that he recognised several men amongst the groups involved in the violence in the Green Heart area, including a Sri Lankan male with long dark hair whom he knows as ‘Anton’. The male was seen to be running with a group of Sri Lankans in the Green Heart area during the disturbance whilst wielding a broken branch. [Name omitted] later participated in a Photoboard identification interview in which he identified this person as Anpurajan (sic) ANTON.
As noted above, there is no doubt that the riot convictions are very serious. At the hearing, under cross-examination, Mr Anton did not accept that he may have struck someone. He gave evidence at the Tribunal hearing that he took up the makeshift weapons to defend himself. He further denied counsel for the Respondent’s assertion that he downplayed his involvement in the riot in order to be viewed in a more favourable light, for example by denying that he was amongst the group instigating the riot. The Tribunal accepts Mr Anton’s explanation that he was acting in self-defence by arming himself with makeshift weapons during the riot. Mr Anton was a very young man in immigration detention who found himself in a situation of racial tension which developed into a large scale riot. It is plausible that Mr Anton took up the makeshift weapons to defend himself.
In a personal statement dated 11 June 2018 (Exhibit A1, Annexure G), Mr Anton expressed his remorse for having participated in the riot, which he reiterated in his oral evidence at the Tribunal hearing. In his personal statement, Mr Anton stated, at [23] “I sincerely regret my actions and take full responsibility for them. I have been convicted for these offences and have paid a substantial fine and served my sentences as required. I have paid for my actions which I regret to this day and I have learned from them”. At [24] he stated, “I am ashamed that I have a criminal record and that I am viewed as being unworthy of being an Australian citizen.” Further, at [28] Mr Anton stated, “I sincerely regret my actions at the detention centre. I have provided my version of the facts and hope that the remorse and shame I feel are reflected in my statement and submission.” The Tribunal is of the opinion that the remorse expressed by Mr Anton in these statements and at the Tribunal hearing was genuine.
The Tribunal does have some concern that in his personal statement (Exhibit A1, Annexure G), Mr Anton stated at [22] that he “pleaded guilty to possessing a weapon and taking part in a riot”. However, in the prosecution report (ST4, page 201), the plea for both of the offences relating to the riot was recorded as, “not guilty”. A not guilty plea is however, consistent with Mr Anton’s claim that he was acting in self-defence.
The Tribunal also notes the evidence of Christine May who met Mr Anton in June 2010 while he was in immigration detention, in her capacity as a volunteer refugee advocate. Her evidence indicates that Mr Anton acted as a positive influence whilst in immigration detention and suggests that his involvement in the riot was out of character. For example she witnessed him “helping an overburdened Serco officer stock a fridge” (Exhibit A1, Annexure F). She also stated that Mr Anton assisted her to retrieve overdue foreign-language library books which she had brought in for the detainees which had been spread through the dormitory areas so that she could not retrieve them (Exhibit A1, Annexure F). Ms May maintains contact with Mr Anton and sees him at church services and Tamil community events. As well as providing a written statement, Ms May gave oral evidence to the Tribunal as to her belief in his good character. The Tribunal also notes that in Exhibit A1, Mr Anton was able to produce character references which referred to his offending, and yet his referees maintained their opinions that he was of good character. One of these references was provided by Christine May, who attended the whole of Mr Anton’s trial regarding the riot convictions, and would accordingly have heard all of the facts and evidence before the court relating to Mr Anton’s participation in the riot.
It has been approximately nine years since Mr Anton participated in the riot. The evidence before the Tribunal supports the submission that he has substantially matured during these years and is a law-abiding person. Mr Anton commenced full-time work as a powder coater within one week after being released from immigration detention. He started work at his current employment, an olive oil company, where he has worked for seven years, as a packer. He was promoted to team leader, supervisor, and then to his current position of warehouse manager. Mr Anton pays his taxes and submits an income taxation return each year (A1, Annexure H).
Mr Anton undertakes weekly volunteer work at a Hindu temple including gardening, cleaning, and cooking. He appears to have fully integrated into the Australian community and to be well respected at his workplace and in his local community (see character references in Exhibit A1, Attachment F).
In his evidence to the Tribunal at the hearing, and in his personal statement, Mr Anton explained the circumstances of his conviction for unauthorised driving as follows (Exhibit A1, Annexure G, para [25]):
In 2012, I was convicted for unauthorised driving. As I had a valid Sri Lankan driver’s licence, I was unaware that I needed to be supervised by an experienced driver. I have paid a fine for that offence too.
Whilst the Tribunal does not condone any breach of the law, it accepts Mr Anton’s explanation for the 2012 driving offence, which appears to have occurred due to inadvertence, rather than with the deliberate knowledge that he was in breach of the law. The Tribunal notes that with the exception of this driving conviction and the riot convictions, Mr Anton has not committed any other offences. He has been a law-abiding person and has not displayed a pattern of offending or a disregard for the law.
In his personal statement, and at the hearing, Mr Anton also explained his reasons for not disclosing his convictions on his citizenship application (Exhibit A1, attachment G, para [15]):
When I applied for Australian Citizenship, I mistakenly answered negatively to the questions relating to my criminal offences and good character because I was unaware that I had to disclose them. Given that the offences of taking part in a riot and possessing a weapon occurred in a place under the department, I was under the assumption that the DIBP already had the material and that there was no need as such for me to disclose these offences. It was an honest mistake and misunderstanding on my part. It was never my intention to conceal my criminal offences and convictions. In any case, I was aware that my criminal record would reveal any criminal history.
The Tribunal has reviewed question 31 of Mr Anton’s citizenship application (T6, page 104). Mr Anton checked the “no” box in answer to questions 31(a) and 31(b) of his application. These questions read as follows:
(a) 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)?
(b) Have you been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia?
There is a circle around these “no” answers which appears to have been made by a departmental officer when assessing the application form. There is no doubt that, with respect to the riot conviction, Mr Anton should have checked the “yes” box in answer to question 31 (a) which required him to disclose convictions for any offences he had been convicted or found guilty of.
The Tribunal, does however, note that there could be some confusion with respect to the disclosure of traffic offences due to the inclusion of the words, “include all traffic offences which went to court”. In his evidence to the Tribunal, Mr Anton said that, with respect to the 2012 traffic offence, he filled out a form agreeing that he was guilty and paid a fine, but did not go to court.
Additionally, it appears to the Tribunal that the correct answer to question 31 (b) was the answer given by Mr Anton, namely “no”, because Mr Anton was never “confined in a prison”, but rather he received a suspended sentence for the riot convictions. However, it appears that the Department may have mistakenly thought the answer to this question should have been “yes”, as indicated by the circle around this answer.
The Tribunal wishes to emphasise that it agrees with the Respondent’s submission that a failure to disclose offences on a citizenship application is a serious matter which may result in an adverse character finding. This submission is supported by the Citizenship Policy and the case law. However, the Tribunal must consider each case on its own merits, and in this case, the Tribunal is not reasonably satisfied that Mr Anton acted dishonestly or deliberately attempted to conceal his convictions. The Tribunal accepts that his mistaken impression that the Department already knew about the offences because they were committed whilst in immigration detention was wrong, but it does not appear to have been made dishonestly. Additionally, as outlined above, whilst Mr Anton may have provided an incorrect answer to question 31(a) with respect to his riot convictions, the question only refers to traffic convictions that have been to court, so it was not relevant to the 2012 traffic offence. Further, the Tribunal finds that Mr Anton’s answer of “no” to s 31(b) was the correct answer.
CONCLUSION
In conclusion, it is the Tribunal’s opinion that Mr Anton does not fail the character test in s 21(2)(h) of the Citizenship Act. The fact that Mr Anton did not disclose his offences in his application weighs against him, but he has provided a plausible explanation for not doing so, as well as there being some ambiguity in the wording of questions 31(a) and (b) on the citizenship application. It is the Tribunal’s opinion that, although the riot convictions were serious offences, there are mitigating circumstances including that Mr Anton acted in self-defence. Also, substantial time has passed since these offences and, with the exception of the 2012 traffic conviction, Mr Anton’s behaviour over the nine years since the riot illustrates that he has reformed. The evidence before the Tribunal indicates that he is a financially responsible member of the community, who respects the law and who contributes positively through working full time, paying his taxes and undertaking regular and ongoing volunteer work.
DECISION
For the reasons outlined above, the Reviewable Decision is set aside, and remitted to the Department for reconsideration with the direction that the Applicant satisfies the character test under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

..........................[sgd]..............................................
Administrative Assistant - Legal
Dated: 6 November 2018

Date of hearing: 14 September 2018

Counsel for the Applicant: Mr Farris Faris

Solicitors for the Applicant: Rebus Legal

Counsel for the Respondent: Mr Arran Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	14 September 2018
Counsel for the Applicant:	Mr Farris Faris
Solicitors for the Applicant:	Rebus Legal
Counsel for the Respondent:	Mr Arran Gerrard
Solicitors for the Respondent:	Australian Government Solicitor