Awad and Minister for Immigration and Multicultural Affairs (Citizenship) - [2024] AATA 3118

Awad and Minister for Immigration and Multicultural Affairs (Citizenship) [2024] AATA 3118 (30 August 2024)
Division:GENERAL DIVISION
File Number: 2023/9589
Re:Thaar Zuhair Awad
APPLICANT

AndMinister for Immigration and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:30 August 2024
Place:Melbourne

The Tribunal affirms the reviewable decision.
...................[sgd].....................................................
Senior Member A. Nikolic AM CSC
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – citizen of Afghanistan – whether the Tribunal is satisfied of the Applicant’s good character – Australian Citizenship Act 2007 (Cth) – criminal history 2003 to 2022 – denial of certain offences despite pleading guilty – false or misleading information in Statutory Declaration – Tribunal satisfied Applicant is not of good character at time of decision – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions - Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
30 August 2024

INTRODUCTION

The Applicant seeks review of a decision by the Respondent to refuse his application for Australian citizenship based on the good character requirement at s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”).
The hearing was conducted on 22 August 2024. The Applicant appeared in person and was self-represented. The Respondent was represented by Ms Emma Letcher-Boldt, a solicitor with Clayton Utz Lawyers.
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 47-year-old citizen of Iraq who first arrived in Australia on 16 July 1999 under the false name Alain Frund.[1] He stated during the hearing that he purchased a fraudulent passport in this name while living in India. The Applicant has been known by multiple other names since living in Australia but denies that all the aliases listed on his National Criminal History Check are attributable to him.[2] He claimed in oral testimony to have officially changed his name on four occasions while living in Australia but tendered two change of name certificates dated 23 February 2009 and 12 November 2019.[3] When asked why he utilised multiple names, the Applicant said he travelled overseas extensively for business and felt that a ‘Muslim name’ was disadvantageous. He also claimed to be ‘worried about protecting [his] family’.
[1] Exhibit R1, 203.
[2] Ibid 26; Exhibit R2, 6.
[3] Exhibit A2.
The Applicant has departed Australia over 20 times since arriving here in 1999.[4]
[4] Exhibit R1, 203-205.
The Applicant’s criminal history in Australia since 2003[5] includes a conviction for intentionally causing serious injury on 19 June 2013, for which he received a sentence of 18 months imprisonment. Twelve months of the sentence was suspended, resulting in him serving six months in prison. The Applicant also has multiple other findings of guilt or convictions recorded against him at six court appearances relating to dishonesty offences,[6] breaches of conditional liberty, drink driving, criminal damage, and speeding / unlicenced / unregistered driving. A variety of sentences resulted from these court appearances, including fines, Community Based Orders, good behaviour undertakings, periods of licence disqualification of up to 17 months, and suspended sentences of imprisonment. Notwithstanding a lengthy period between late 2013 and 2022 where no court appearances are recorded, the Applicant was found guilty of unlawful assault on 16 September 2022. A conviction was not recorded for this offence, and he received a fine of $1000. The Applicant stated during the hearing that his appeal to the County Court against this finding of guilt was dismissed in the week prior to the present hearing. This claim was uncorroborated by supporting evidence from the Court.
[5] Ibid 25-8.
[6] Including burglary, theft, and possessing goods for sale with false trademark.
On 26 October 2022, the Applicant applied for Australian citizenship by conferral through his then migration agent. Reference is made in his application to the Applicant being known by five different names due to ‘political issues’.[7] The Applicant listed his occupation as ‘Mechanical Engineer’. When asked about this during the hearing he confirmed that he does not hold a tertiary qualification and tendered a copy of a vocational Certificate III qualification from Melbourne Building Academy, which was taken into evidence.[8]
[7] Ibid 107-8, 189-192.
[8] Exhibit A1.
The Respondent wrote to the Applicant on 20 July 2023 and 6 September 2023, inviting him to comment on information held by the Department that was averse to his application.[9] The Applicant responded with letters from his migration agent.[10]
[9] Exhibit R1, 179-186.
[10] Ibid 187, 193-4.
On 21 November 2023, a delegate of the Minister refused the Applicant’s citizenship application under s 21(2)(h) of the Act.[11]
[11] Ibid 10-24.
On 15 December 2023, the Applicant filed his review application with the Tribunal.[12] He stated that he did not require the assistance of an interpreter and explained that the citizenship refusal decision was wrong for the following reasons:
[12] Ibid 1-9.
‘Based on my past i have had a clean record for the last 10 years except for the 2022 family dispute with no conviction. I have been here for 23 years and have all my family, children and friends and Australia is my home and i wish to be fully integrated into this system by getting my citizenship to show my commitment to this wonderful country that has provided me with so much opportunity.’
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. To be eligible, a person must meet each of the eight general eligibility requirements under s 21(2) of the Act.
Section 21(2)(h) of the Act requires the Minister to be satisfied that citizenship applicants are of good character. Section 24(1A) of the Act prohibits the Minister (or a person delegated by the Minister under s 53 of the Act) from approving an application unless so satisfied. The assessment of character is at the date of the Tribunal’s decision.[13]
[13] BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39, 40 [3] (O’Bryan J) (‘BOY19’).
Section 52(1)(b) of the Act confers jurisdiction on the Tribunal to review decisions made under s 24 of the Act.
The Tribunal’s decision in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 is often cited for its elaboration on the significance of good character:
‘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 year’s time when he can demonstrate a longer period of positive contribution to the Australian community.’[14]
[14] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
The term ‘good character’ is not defined in the Act, but has been interpreted broadly by the Full Court of the Australian Federal Court:
‘…Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…’[15]
[15] Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128, 142 [60].
The Australian Citizenship Policy Statement (“Policy”) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (“CPIs”) (reissued 26 February 2021) guide decision-makers exercising powers and discharging their functions under the Act. Although such policy is not binding on the Tribunal, decision-makers undertaking merits review should generally apply it unless it is unlawful or ‘there are cogent reasons to the contrary.’[16] The Tribunal has not identified any reason why the Policy and CPIs should not be considered. That said, the Tribunal is mindful of the need to consider the exercise of delegated powers based on the specific circumstances of each case.
[16] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
Relevant to this application is Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (“CPI 15”). CPI 15 refers to good character as relating to the ‘enduring moral qualities’ of an applicant, which draws on the Full Federal Court’s judgement in Irving.[17]
[17] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 425 (Davies J), 431 (Lee J) (‘Irving’); Cited with approval in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Gleeson CJ and Gummow J), albeit in the context of the Migration Act 1958 (Cth).
More recently, O’Bryan J elaborated in BOY19 about the evaluative reasoning underlying a determination about whether a person is of good character:
‘First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions…Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship’.[18]
(References removed)
[18] BOY19 (n 13) 51-2 [51].
CPI 15 provides guidance as to the meaning of the term ‘enduring moral qualities’:
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.
CPI 15 provides an inclusive list of characteristics generally expected of a person of good character, noting that ‘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, and 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 (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;

…
Under the heading ‘Community standards’, CPI 15 states that the Preamble to the Act can assist in identifying what the Australian community considers to be proper behaviour when assessing good character:
Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship 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.
Under the heading ‘Weighing information’, CPI 15 sets out how a holistic assessment of a person’s character may be made:
In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:
·     characterise the nature of any offence or behaviour
·     is the offence serious or minor?
·     did the offence harm other people?
·     who were victims?
·     is there a pattern of behaviour?
·     was it a one off incident?
·     were there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
·     length of time since the offence was committed
·     age at time of offence
·     behaviour since completing prison sentence or obligations to court
·     remorse regarding their offending behaviour
·     community support (referee reports etc)
·     changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
The requirement for a global assessment of a person’s character has previously been discussed by the Tribunal in Prasad and Minister for Immigration and Ethnic Affairs:
‘…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’.[19]
EVIDENCE
[19] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7].
Documentary evidence
The Respondent lodged a Statement of Facts, Issues and Contentions and two bundles of documents numbering 206 pages[20] and 13 pages[21] pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). The Applicant did not lodge any documents during the pre-hearing phase but tendered multiple documents during the hearing. These were taken into evidence without objection as follows:
[20] Exhibit R1.
[21] Exhibit R2.
(a)Certificate III vocational qualification from the Melbourne Building Academy dated 7 January 2022;[22]
(b)Two certificates dated 23 February 2009 and 12 November 2019 from the New South Wales Registry of Births, Deaths and Marriages;[23]
(c)Letter from the Applicant’s General Practitioner dated 6 August 2024;[24]
(d)Letter dated 22 September 2023 from Ms Joliana Jameel, the Applicant’s friend and counsellor;[25]
(e)Letter dated 20 August 2024 from Mr Ahmed Oushar, President of the Western Sudan Community Association of Victoria;[26]
(f)Letter dated 21 August 2024 from Mr Umair Mahmood, a business acquaintance of the Applicant;[27]
(g)Letter dated 21 August 2024 from Mr Ali Sourat, a representative of Hussaineyat Ale Yassin Inc of Sydney;[28]
(h)Letter dated 21 August 2024 from Mr Daniel Evans, Regional Manager of Independence Care;[29]
(i)Letter dated 21 August 2024 from Dr Maged Sabry Alm, a friend of the Applicant;[30] and
(j)Letter dated 11 April 2024 from Ms Aba Lucia Garzon Acevedo, who the Applicant states he was previously in a relationship with.[31]
[22] Exhibit A1.
[23] Exhibit A2.
[24] Exhibit A3.
[25] Exhibit A4.
[26] Exhibit A5.
[27] Exhibit A6.
[28] Exhibit A7.
[29] Exhibit A8.
[30] Exhibit A9.
[31] Exhibit A10.
Applicant’s evidence
At the commencement of the hearing the Tribunal explained the procedure to be adopted and confirmed that the sole issue for determination is whether the Tribunal is satisfied at the time of its decision that the Applicant is of good character within the meaning of s 21(2)(h) of the Act. The Tribunal explained to the Applicant his privilege against self-incrimination and emphasised that the Tribunal would draw no negative inference if he chose not to answer questions on this basis. The Applicant confirmed his understanding of this privilege, which the Tribunal re-emphasised during aspects of his cross-examination.
The Tribunal has considered the Applicant’s documentary materials, which include:
(a)His citizenship application.[32] Adjacent to a question about whether he had ‘been convicted of, or found guilty of, any offences…in Australia’ the following is recorded: ‘Yes Driving offences relating to Alcohol and driving while unlicenced.'[33] In response to a question about whether he had ever been confined in a prison by order of a court made in connection with criminal proceedings overseas or in Australia, the Applicant responded: ‘No’. In the ‘Declarations’ section of his citizenship application, the Applicant agreed to the following:
[32] Exhibit R1, 106-41.
[33] Ibid 124.
‘Warning: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application. Read the following carefully before lodging.
The applicant declares that:
• …
• The information they have supplied in this form is complete, truthful and correct in every detail.
…’[34]
[34] Ibid 129.
(b)Statutory Declaration dated 18 April 2023.[35] The first bullet point states: ‘I have never been convicted of a crime or any offence in any country’. The Declaration goes on to state:
[35] Ibid 174.
‘I fully understand the above, or the above has been fully explained to me by another person or interpreter who fully understands the above, such that I fully understand the above.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this statement are true in every particular.
I understand that any incorrect information may result in refusal of my application or the possible future cancellation of my Australian Citizenship.’
(c)Letter from the Applicant dated 13 September 2023.[36] This correspondence, which is written on the letterhead of his former Migration Agent and signed by the Applicant, states:
[36] Ibid 193-4.
‘We offer the following explanations to the Criminal Intelligence Commission check release report. These explanations and responses in for all Names of the primary and its alias.
I arrived in Australia in 2001 as a young man with very little understanding of the culture and its people. This unfortunately led to me become involved with persons who lead to me committing many traffic offenses between 2003 to 2013. These consisted of driving while suspended or unlicensed vehicles. As this was over 10 years the exact detail regarding each individual offence has clouded over the years gone by. Because of ignorance of the law and a lack of Language understanding many of these offences occurred and did not understand the seriousness and impact of these offences. I know have a full comprehension of the seriousness of this and paid all infringement.
I was also arrested in 2007 for criminal damaged and burglary and theft. This was regarded as the ghost house which was unoccupied at the time and in a drunken state and as a prank, I entered this property. The offence I was never imprisoned for.
In 2022 I was fined $1000.00 without conviction for assault stemming from an altercation with my ex-wife over my son. He is now in my custody and living with me because of this altercation.
I regret all these offences as a young man when most of these happened and have tried to amend for this over the last 10 years by not committing any other offences except for the most recent with my ex-wife.
I have attached statements from persons within my community who have attested to my reform and my life know which I am daily trying to remain within the law and lawful.
If you require any further information of explanations, please do not hesitate to contact me
(Errors in original.)
(d)One-page unsigned and undated letter from ‘Joliana Jameel Counselor (sic) Australian Mental Therapy Clinic’.[37] The letter is general in nature and makes no reference to the Applicant’s criminal history. The letter states in part:
[37] Ibid 198.
‘…
I kindly request that you reconsider your decision regarding the return of Mr. Thaar's citizenship (sic) Doing so would greatly contribute to his mental and physical well-being, enabling him to access necessary medical surgery. Moreover, it would significantly bolster his ability to pursue financial growth in his Australian trade business.
Sincerely, Joliana Jameel Counselor Australian Mental Therapy Clinic’
(Errors in original.)
(e)Ms Jameel gave oral evidence and adopted Exhibit A4 as her evidence in this proceeding. She made clear that she appeared in the capacity of a friend and supportive lay witness rather than an expert witness. Ms Jameel’s oral evidence is summarised as follows:
(i)She wants to support the Applicant because he has ‘been through a lot recently’ and had assisted her in the past. She met him ‘through work’ a ‘couple of years ago in an education setting and then became his counsellor’. She said the Applicant had given freely of his ‘skills and knowledge’ and that many of Ms Jameel’s clients who are refugees or ‘women suffering from violence from ex partners’ had benefitted from this. When asked if she was still the Applicant’s counsellor, Ms Jameel responded: ‘Recently he’s been referred to a psychologist’.
(ii)The Applicant used to work in the Iraqi Army where he suffered injuries. When put to Ms Jameel that the Applicant’s evidence was he never served in the Iraqi Army, she responded: ‘Maybe he was kinda helping the Army’.
(iii)When asked by Ms Letcher-Boldt if the Applicant has a criminal history, Ms Jameel said she was unaware of any criminal history.
(iv)When asked by Ms Letcher-Boldt if the Applicant has dementia, Ms Jameel said he had ‘recently mentioned it’ but she if unaware of any diagnosis.
(f)Two-page character reference from Mr Nazar Yousif.[38] This letter is in very general terms and states the author has known the Applicant for five years. No reference is made to the Applicant’s criminal history and Mr Yousif was not called as a witness.
[38] Ibid 195-6
(g)Six-line character reference from Mr Nathan Murphy.[39] This brief note is in very general terms and refers to the Applicant as a generous, hardworking, and ‘amazing engineer’. No reference is made to the Applicant’s criminal history and Mr Murphy was not called as a witness.
[39] Ibid 197.
(h)One-page character reference dated 3 October 2023 from Migration Agent Mr Mohammad Dahdoule.[40] No contact number is provided in the letter. The letter is general in nature and Mr Dahdoule was not called as a witness. The letter states:
[40] Ibid 201.
‘To whom it may concern
Re: Thaar Zuhair Awad
I have known Thaar for more than ten years. During that time, I have found him honest and helpful. He is a person of integrity, dedicated to his work and his family.
Thaar arrived alone in Australia as a refugee. He made some mistakes which he regrets. He told me that he is currently caring for his 16 years old son. He completed diploma in engineering around 3 years ago. Thaar is managing his mechanical engineering business and transport.
If you have any questions, please do not hesitate to contact me’.
(Errors in original.)
(i)One-page letter dated 2 October 2023 from the Applicant’s accountant.[41] The letter is general in nature and refers to the Applicant as a hardworking person with a positive attitude who pays his accountant’s fees ‘promptly’. No reference is made to the Applicant’s criminal history and the author was not called as a witness.
[41] Ibid 202.
(j)One page referral from the Applicant’s general practitioner dated 6 August 2024.[42] This referral states that the Applicant ‘suffers from depression / anger episodes’ and seeks to arrange ‘6 visits’ for him under a Mental Health Care Plan. The doctor was not called as a witness.
[42] Exhibit A3.
(k)One-page letter from Mr Ahmed Oushar, President of the Western Sudan Community Association of Victoria.[43] This letter refers to the Applicant’s fostering of ‘strong relationships between the Iraqi and Sudanese communities’. The reference is in general terms, no reference is made to the Applicant’s offending, and Mr Oushar was not called as a witness.
(l)One-page letter from Mr Umair Mahmood.[44] Mr Mahmoud states he has known the Applicant for a year in a business context. He expresses awareness of the Applicant’s ‘matter in court’, without any explanation for what ‘matter’ is being referred to. The only recent court matter raised by the Applicant is the County Court’s purported rejection a week prior to the current hearing of his appeal against the finding of guilt for unlawful assault in 2022. The rest of this character reference is in general terms and Mr Mahmoud was not called as a witness. Aspects of this letter are concerningly similar to Exhibit A9, which is later discussed.
(m)One-page letter from Mr Ali Surat of Hussaineyat Ale Yassin Inc.[45] This letter is brief, general in nature, and refers to a different person rather than the Applicant in the final sentence. Mr Surat makes no reference to the Applicant’s past offending and was not called as a witness.
(n)One-page letter from Mr Daniel Evans, Regional Manager of Independence Care.[46] This letter is brief, general in nature, and makes no reference to the Applicant’s past offending. Mr Evans was not called as a witness.
(o)One-page letter from Dr Maged Sabry Alm.[47] This letter contains inconsistencies and makes no reference to the Applicant’s past offending. For example, Dr Alm refers to the Applicant doing ‘his final study at Latrobe University…at Mechanical Engineering School’ and completing ‘his bachelor degree’, whereas the Applicant stated during oral testimony he has no university degree and only a Certificate III vocational qualification.[48] Dr Alm was not called as a witness. The Tribunal is concerned about the similarity in language between this letter and Exhibit A6, with both stating: ‘I am aware that Thaar is [currently before the court / has a matter in court] and I fully understand the seriousness of the matter….I believe he genuinely regrets any …mistakes…I respectfully ask that the court takes this letter into consideration when evaluating Thaar’s case / character…I am confident that he will continue to demonstrate good behaviour and make positive contributions to our community’. This concern extends to whether these two references were independently authored.
(p)Two-page letter from Ms Alba Lucia Garzon Acevedo.[49] The Applicant said this letter was prepared in support of his recent unsuccessful application for leave to appeal the 2022 unlawful assault finding in the County Court. He stated that the purpose of leading Ms Acevedo’s evidence, with whom he was previously in a relationship, was to establish that he was not guilty of this offence. The Tribunal explained it is impermissible to impugn court findings.[50]
[43] Exhibit A5.
[44] Exhibit A6.
[45] Exhibit A7.
[46] Exhibit A8.
[47] Exhibit A9.
[48] Exhibit A1.
[49] Exhibit A10.
[50] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244-5; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [89] (Bromberg J).

The Applicant gave oral evidence under oath. His evidence is summarised as follows:
(a)He suffered a head injury during the ‘First Gulf War’, when a ‘rocket’ injured him. The Applicant claimed his heel and head were injured and he ‘lost [his] memories for about a couple of years’. He further claimed that his current ability to recall events remains compromised. There is no expert corroboration of this claim.
(b)The Applicant said he came to Australia illegally using a passport in the name of Alain Frund, which he purchased while living in India. He claimed there was ‘no other way [for him] to reach Australia’ because he had no documents from Iraq. The Applicant said he did the ‘right thing’ by disclosing his false identity to Australian authorities on arrival. He further stated that he has ‘done so much for this country’, and ‘deserves to have [his] citizenship’.
(c)The Applicant referred to two children in Australia from a former relationship, one of whom is now an adult and the other approaching adulthood. He said that his parents are deceased, but he has five sisters living in Iraq and one brother living in Melbourne. No statements were lodged from the Applicant’s children or other relatives.
(d)The Applicant accepted that his National Criminal History Check dated 17 July 2023 was an accurate record of his court appearances and the findings against him. He admitted to having ‘a lot of driving offences’ and said his early offending resulted variously from his ‘health issues’ and immaturity. The Applicant stated: ‘I used to ignore medication, I used to ignore things … That’s why I didn't really take it serious ... but now its different.' He denied guilt for more serious offences, claiming he routinely pleaded guilty despite being innocent: 'If you don't say you're guilty they just drag you for your life to go to court every day. For that reason, any court I used to go to I don't fight ok guilty and just walk out.'
(e)The Applicant was asked why he stated in a Statutory Declaration dated 18 April 2023 that he has ‘never been convicted of a crime or any offence in any country’.[51] He conceded this was inaccurate but attributed it to a misunderstanding and said he wished that he had taken the Statutory Declaration ‘more seriously and understood the question more clearly before signing’. He intended to convey no convictions outside of Australia.
(f)The Applicant said he pleaded guilty to burglary, theft, and criminal damage in 2007 despite not having stolen or damaged anything. He claimed: ‘they just put some record against [him] and he ‘had to say [he] was guilty just to get out of court’. When asked to elaborate, the Applicant claimed there was a vacant house from which he heard noises and wanted to see what was inside. He claimed that he entered the house with a group of ‘Māori’s’ from his church who accompanied him to ‘deal with bad spirits and ghosts’, but ‘police put all this against [him]’ because ‘someone very important in the Government’ owned the house he entered. When asked by Ms Letcher-Boldt why he previously claimed to have entered this house ‘in a drunken state and as a prank’, the Applicant agreed he signed the document in which this claim was made, but said his lawyer must have misunderstood him and entered the wrong information due to language issues.
(g)The Applicant claimed he pleaded guilty to intentionally causing serious injury on 19 June 2013, despite having acted in self-defence against two persistent aggressors, one of whom purportedly struck him several times with a crowbar. The Applicant claimed he repeatedly removed the crowbar from the aggressor’s hands to defuse the situation, but the aggressor kept pursuing him and eventually chased him with a car. When asked by Ms Letcher-Boldt if he struck the aggressor, the Applicant stated: ‘It wasn’t like I meant to hit him… Somehow I was scaring him and the next thing he was on the ground… I don’t know if I hit him or [the other aggressor] did.’ When pressed for further details, the Applicant said he has a ‘memory problem’ but claimed the person who was struck has ‘a bad history and … wasn’t a good man’. The Applicant said his ex-wife witnessed these events but demanded $20,000 to appear as a witness on his behalf. When she did not appear, the Applicant recalled telling his lawyer to ‘finish it – I’m tired of it – just plead guilty – it was too much for me’. He was imprisoned for six months because of this conviction and recalled working hard to improve himself.
(h)The Applicant claimed he pleaded guilty to Unlawful assault in September 2022 despite not having assaulted anyone. He claimed that the victim of this offence was his then 13-year-old son. When asked by Ms Letcher-Boldt why a letter he signed stated this incident stemmed ‘from an altercation with [his] wife over [his] son’,[52] the Applicant again invoked a misunderstanding with his former legal representative. He explained that his ex-wife’s negative influence on his son and being charged by police from the same station that caused problems for him during the ‘2007 burglary’, was such that he eventually ‘had enough’ and decided to plead guilty to put the matter behind him. He did not think a finding of guilt without conviction and fine of $1000 would affect his citizenship application but later decided to appeal. He claimed the County Court rejected his appeal on 1 August 2024 because he ‘didn’t have a lawyer to protect [him]’. The Applicant stated: ‘things always go against me but there’s nothing I’ve done wrong.’
(i)Ms Letcher-Boldt asked the Applicant why he only referred to ‘Driving offences relating to Alcohol and driving while unlicenced’ in response to a question in his citizenship application about criminal history. The Applicant responded: ‘I didn’t know I had to explain everything’ and said his complete criminal history was readily accessible by the Respondent. When asked why he did not list all his overseas travel in his citizenship application, the Applicant said he could not recall every instance of travel and countries stopped stamping passports, which made it hard to obtain this information. He recently travelled to Iraq to visit one of his siblings, during which he acquired an Iraqi Passport in his current legal name. He said this was so he could travel more easily overseas. He did not tender a copy of this passport.
(j)The Applicant claimed he undertook an ‘alcohol course in 2013’ and completed a ‘lot’ of other rehabilitative programs since his imprisonment in 2013. He recalled discussing ‘many things with [his] psychologist’, receiving medication for depression, and had tried to ‘keep [him]self as a good person’. He claimed to have previously possessed a file with certificates of completion for rehabilitative courses but did not have it anymore and could not recall what other offence-specific programs he completed due to memory issues. He speculated that his ex-wife may have stolen the file while visiting. When asked by Ms Letcher-Boldt what he learned during his alcohol course in 2013, the Applicant recalled group discussions about how ‘drinking is not good for you and really affects your health’. He could not recall how many sessions he attended because of the passage of time.
(k)In terms of medical issues, the Applicant claimed to have been diagnosed with multiple medical conditions. This included a dementia diagnosis at the Alfred Hospital in 2006 or 2007. He could not recall who diagnosed him and there is no independent expert corroboration of this claim. The Applicant agreed with Ms Letcher-Boldt that the only issues referred to in an August 2024 letter from the Applicant’s general practitioner are ‘depression / anger episodes’.[53] The Applicant also agreed with Ms Letcher-Boldt that he is currently working and said he has run his own company since 2013 that performs modifications on trucks and other heavy machinery. He has also imported furniture from China as the owner of two furniture stores from 2004 until 2013. Prior to that was a painter, plasterer, and panel beater.
(l)The Applicant said he undertakes some volunteer work under the National Disability Insurance Scheme (“NDIS”) but also does some paid work under the NDIS.
[51] Exhibit R1, 174.
[52] Ibid 193.
[53] Exhibit A3.
Contentions of the Respondent
The Tribunal has considered the Respondent’s Statement of Facts, Issues, and Contentions dated 28 May 2024. Ms Letcher-Boldt also submitted orally:
(a)The Tribunal can’t be positively satisfied the Applicant is of good character for the purpose of s 21(2)(h) of the Act because of his repeat offending over a 20-year period, which includes some serious, violent offences.
(b)Some of the Applicant’s crimes are repeated and, on his own evidence, his most recent finding of guilt was for unlawful assault against a minor child.
(c)The Tribunal should be concerned about the Applicant’s claims of innocence despite multiple court findings to the contrary, which is indicative of an unwillingness to accept responsibility for his actions. This included the provision of a false claim in a Statutory Declaration dated 18 April 2023.
(d)The Applicant’s rehabilitative claims are uncorroborated and he ‘has not provided information to demonstrate that he has addressed the underlying factors which led to his offending’.
(e)Insufficient time has passed since the most recent finding of guilt against the Applicant and the various explanations he invokes for past offending are uncorroborated.
(f)The references relied upon by the Applicant contain scant and general references at best to his past offending. The only other witness to give oral testimony, Ms Jameel, has no knowledge of the Applicant’s criminal history.
(g)Any mitigating circumstances in favour of the Applicant do not outweigh the seriousness of his offending.
CONSIDERATION
The Applicant contends he has demonstrated positive personal conduct for much of his residence in Australia and that notwithstanding his criminal history, much of which he is innocent of, he is of currently good character. There is material in evidence standing to his credit in the form of positive character references. The weight to be afforded to these is diminished, however, in circumstances where the remarks are of a very general nature and there is no reference, or only general reference, to the Applicant’s criminal history.
The Applicant has an extensive criminal history during the decade to 2013. A period of nine years then followed before the most recent finding of guilt against him for unlawful assault in 2022. Although some of the Applicant’s past offending such as driving offences can be considered less serious, their repeat nature is of concern and the Tribunal found some of his claims in a letter dated 13 September 2023 to be unpersuasive and self-serving.
The decade-long persistence of the Applicant’s crimes till 2013 is not adequately explained by youth, bad company, language issues, or ignorance of the law. The Applicant committed more serious crimes than the ‘traffic offences’ referred to in his citizenship application, which comes across as minimising past conduct. The totality of his crimes raises significant character concerns. His claims of innocence regarding a 2007 arrest for criminal damage, burglary, and theft came across as unpersuasive at best. This includes because of the inconsistency between his past documentary claims that this offending arose from a drunken prank, and current oral testimony. The Applicant’s current claims invoking self-defence and being unsure whether he struck a person in 2013, is also inconsistent with his conviction for intentionally causing serious injury.
Of significant concern is that after an extensive period without court appearances or convictions, the Applicant was found guilty of unlawful assault in 2022. Notwithstanding uncertainty about whether it was his ex-partner or minor child who was the victim of this offence, it is suggestive of a continuing disregard for Australian laws. On his own evidence this conduct was in a family violence context, although it is difficult on current evidence to persuasively establish which of the Applicant’s narratives should be preferred.
Approximately a month after his appearance in court for unlawful assault, the Applicant failed to declare the full extent of his criminal history in his citizenship application and falsely claimed in a Statutory Declaration dated 18 April 2023 that he had never been convicted of any crime or any offence in any country. This continues to raise character concerns and casts doubt on the overall veracity of his evidence.
Aspects of the Applicant’s evidence during the hearing came across as incomplete, revisionist, implausible, exaggerated, or uncorroborated. This includes his claims regarding innocence for some offences, extent of past rehabilitation, and dementia diagnosis.
CONCLUSION
The Tribunal has considered and given appropriate weight to the personal factors positive to the Applicant’s character. Weighed against that, however, is a lengthy offending history, which most recently includes a finding of guilt for unlawful assault in 2022, unpersuasive or implausible claims of innocence, and the provision of false or misleading information in an official context. While it is acknowledged the Applicant may yet redeem his character with a lengthy period of law-abiding behaviour, the Tribunal’s concerns are heightened by the Applicant’s failure to fully disclose his criminal history in his citizenship application, which was lodged approximately a month after his court appearance for unlawful assault. Moreover, the information he provided about his offending history in a Statutory Declaration dated 18 April 2023 was false and enlivens concerns about a possible breach of the Statutory Declarations Act 1959 (Cth) and s 50 of the Act. The Applicant’s explanations for doing so were unpersuasive.
Insufficient time has passed since the Applicant’s most recent court appearance less than two years ago, and conduct since, for the Tribunal to be satisfied he is currently of good character as required by s 21(2)(h) of the Act.
Refusal of the Applicant’s citizenship application does not affect his visa status in Australia, nor deprive him of any benefits he may currently be entitled to. He is also not prevented from making a new citizenship application when his claims regarding the good character requirement are more persuasive.
DECISION
It follows that the Tribunal affirms the decision under review.

39.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 30 August 2024

Date of hearing: 22 August 2024

Advocate for the Applicant: Applicant in person

Advocate for the Respondent: Ms Emma Letcher-Boldt

Solicitors for the Respondent: Clayton Utz

Date of hearing:	22 August 2024
Advocate for the Applicant:	Applicant in person
Advocate for the Respondent:	Ms Emma Letcher-Boldt
Solicitors for the Respondent:	Clayton Utz