Awkar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Awkar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2314 (16 July 2020)
Division:GENERAL DIVISION
File Number: 2019/7084
Re:RAYMOND AWKAR
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:16 July 2020
Place:Melbourne

The Tribunal affirms the reviewable decision.
......................[sgd]..................................................
R CAMERON SENIOR MEMBER
Catchwords
CITIZENSHIP – refusal of an application for Australian citizenship by conferral – whether the Applicant is of good character – failure to disclose criminal history in application for citizenship – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Sentencing Act1991 (Vic)
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Drake v Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
Grass v Minister for Immigration and Border Protection [2015] FCFCA 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Wang and Minister for Immigration and Border Protection [2014] AATA 89
Secondary Materials
Citizenship Policy, 1 June 2016
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
16 July 2020
INTRODUCTION.

The Applicant seeks review of a decision made on 15 October 2019 by a Delegate of the Respondent which refused an application made by him for Australian citizenship by conferral (“the reviewable decision”).[1]
[1] The reviewable decision is document T2 of the T documents.
ISSUE FOR DETERMINATION BY THE TRIBUNAL.
The sole issue for determination in this application is whether the Tribunal is satisfied that the Applicant is a person of good character as required by sections 21(2)(h) and 24(1A) of the Australian Citizenship Act 2007 (“the Act”).
THE EVIDENCE AND OTHER MATERIAL BEFORE THE TRIBUNAL.
There was both documentary and oral evidence before the Tribunal.
The following documents were tendered in evidence:
(a)the “T” Documents;
(b)the “ST” Documents;
(c)documents produced under summons by Victoria Police;
(d)documents produced under summons by the Registrar of the Broadmeadows Magistrates’ Court;
(e)documents produced by the Registrar of the Melbourne Magistrates’ Court; and
(f)a statutory declaration made by the Applicant on 15 April 2020.
The Applicant gave oral evidence on affirmation.
The Respondent lodged with the Tribunal and served on the Applicant a Statement of Facts, Issues and Contentions.
RELEVANT FACTS.
The Applicant arrived in Australia in 1976. He has been a permanent resident ever since and has two children born in Australia. Since his arrival he has never left the country.
Since he has arrived in Australia, he has established a significant criminal history resulting in numerous appearances in the Magistrates’ Court of Victoria.[2]
[2] Details of the Applicant's extensive criminal history are contained in the criminal history "Check Results Report” which is document T 7 of the T documents. They need not be reproduced in full in these reasons.
On 26 July 2018, the Applicant lodged with the Department of Home Affairs an application for Australian citizenship.[3]
[3] Document T 4 of the T documents.
The application for Australian citizenship contains several questions which the applicant is required to complete. Question 38 contains two questions as follows:
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)?
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?
In response to both of these questions the Applicant ticked the box entitled “No”.
Reference should also be made to question 39 of the application for Australian citizenship. The precise words used in the relevant sections of the question need not be reproduced for the purposes of these reasons. However, the first bullet point of that question included the Applicant’s consent to his personal and identifying information being provided to the National Police Checking Service for the purposes of that agency conducting a National Police Check as part of the citizenship application process. It also contained a declaration, or warranty, on the part of the Applicant, that he understood the purposes of undertaking a National Police Check was for assessing whether he was of good character, and whether the “Offences provision” as defined in section 24(6) of the Act applied to him. There was a further acknowledgement made by him that his personal and identifying information would be disclosed to Australian police agencies for law enforcement purposes.
It is perhaps appropriate to observe at this juncture of these reasons that the very specific and clear language used in each of questions 38 and 39 to which the Applicant responded in the way he did would have alerted even the most unsophisticated individual in no uncertain terms of the importance of accurate disclosure of someone’s criminal record. It could leave the reader, or for that matter the Applicant, in no doubt as to their obligations in completion of the form.
The application for Australian citizenship contained both a warning and a declaration that are also relevant to this application.
The warning was in the following terms printed in bold font:
WARNING: It is an offence under section 50 of the Australian Citizenship Act is 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.
Subsequently in the application for Australian citizenship, paragraph 51 contains the following notation and declaration:
Please read the following carefully before signing.
…
I declare that the information I have supplied in this form is complete, truthful and correct in every detail.
Following the lodgement of the application for Australian citizenship, the Respondent undertook a criminal history check of the Applicant. The results of this check brought to light the Applicant’s extensive criminal history noted earlier.
By way of a letter dated 28 August 2019,[4] the Department wrote to the Applicant informing him that applicants who seek to become Australian citizens must be of good character. The definition of good character as contained in the Australian Citizenship Policy was explained in that letter. The Applicant was further informed that the Delegate intended to take into consideration the results of the criminal history check in assessing his application. Prior to any decision being made concerning his application, he was requested to respond concerning the results of the criminal history check by providing any further information or comment that he might be inclined to make. The letter also requested that he provide a statutory declaration addressing the following:
(a)the full nature and details of the offences committed;
(b)any mitigating factors that should be taken into account;
(c)the reason he did not declare the offences on his application for conferral of Australian citizenship;
(d)whether he completed and/or fulfilled any obligations to a court; and
(e)why he believed he is of good character, and why his application for citizenship should be approved.
[4] Document T 8 of the T documents.
Additionally, he was requested to provide two character references from reputable Australians attesting to his present reputation in the community. Details of what information was required to be included in such statutory declarations were also clearly spelt out in that letter.
In response to the letter of 28 August 2019 from the Department of Home Affairs, the Applicant made a statutory declaration on 9 September 2019 which declared his complete criminal history that accorded with the information obtained by the Department in the criminal history check undertaken by it.[5] The Applicant also lodged statutory declarations dated 9 September 2019, made by Mark Iacono a pharmacist at Olsen Place Pharmacy and 10 September 2019, made by Father Alain Fares a Parish Priest of Our Lady of Lebanon Maronite Catholic Church in Thornbury.[6]
[5] Document T 9 of the T documents.
[6] The statutory declarations form part of document T 9 of the T documents.
The Department considered the further material lodged by the Applicant. On 15 October 2019, the Respondent made a decision to refuse the Applicant’s application for Australian citizenship by conferral.[7] The Delegate in the letter of notification of refusal considered several matters. They may be summarised as follows:
(a)the significance of the offences committed by the Applicant;
(b)the making of a false statement on the Application for conferral of Australian citizenship;
(c)the failure to provide any evidence of rehabilitation;
(d)the failure of his referees in their statutory declarations to acknowledge the Applicant’s criminal background, or attest to a change in his character since;
(e)the failure to make any attempt to explain the circumstances surrounding the Applicant’s offending, including whether there were any mitigating factors that should be taken into account;
(f)the Applicant did not declare the offences on his application for Australian citizenship by conferral; and
(g)the Applicant’s failure to state, as requested, why he believed he was now of good character, and why his application for Australian citizenship should be approved.
[7] Document T 2 of the T documents.
Given these matters, and weighing them up, the Delegate concluded that she could not be satisfied that the Applicant was of good character as required by the relevant sections of the Act.
The Applicant sought to explain why his prior criminal history was not declared in the application for Australian citizenship in a letter to the Tribunal dated 29 October 2019, in a Statutory Declaration made on 15 April 2020 and in his evidence from the witness box. The explanation proffered by him for this omission both in documentary and oral evidence was that his niece assisted him in completing the application form. She apparently speaks English. He contended that she never once asked him the questions concerning his prior criminal history. There was no reference to whether or not he was alerted to the possibility of a National Police Check being undertaken, which was referred to in question 39 of the application form. Further, she did not explain to him the precise terms of the relevant declarations and the warning contained in the application form referred to earlier in these reasons. He stated that had he been aware of the questions, he would have answered them truthfully.
APPLICABLE SECTIONS OF THE ACT AND THE MEANING OF GOOD CHARACTER.
Section 21(2) “General eligibility” of the Act provides several requirements for which the Minister must be satisfied of if a person is eligible to become an Australian citizen. Relevantly, for the purposes of this application, section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application”.
Section 24 “Ministers decision”, subsection (1A) of the Act states that the Minister must not approve a person becoming an Australian citizenship unless such person is eligible to become an Australian citizen under, amongst others, subsection 21(2) of the Act.
The Act does not contain a definition of either good or bad character. The concept however is well known in the context of immigration law, let alone the general law. Frequently, reference is made to the often-cited passage of Lee J concerning such concept in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs.[8] It is cited, quite properly, as an accurate statement of the law. His Honour observed as follows:
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe, Lord Denning at 1138. 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: see Re Davis 91947) 75 CLR 409 at 416 per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
[8] (1996) 68 FCR 422 at 431. This case is apposite in that although a visa refusal case under the MigrationAct1958 that Act contained a reference to “good character” and was decided before the 1998 amendments which removed such reference and substituted the “character test”.
In assessing whether or not a person is of good character, the decision-maker should consider a range of events and conduct in connection with the person. Ultimately, this is an issue of fact.[9]
[9] See the decision of Grass v Minister for Immigration and Border Protection [2015] FCFCA 44 at [60].
The Responded in its Statement of Facts, Issues and Contentions referred to a passage from a decision of this Tribunal in Kakar v Minister for Immigration and Multicultural Affairs[10] which held that “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”. These observations are particularly relevant to the determination of the issue before the Tribunal.
[10] [2002] AATA 132 at [14].
Additionally, there is of course the guidance offered by the definition of “good character” contained in the current Citizenship Policy (“the Citizenship Policy”).[11] Generally, the Delegate of the Minister will apply the Citizenship Policy in the absence of good reasons for not doing so.[12] They are free to adopt such a policy in order to guide them in the exercise of the statutory discretion, provided the policy is consistent with the statute. Chapter 11 of the Citizenship Policy “Character” is referred to in its entirety for its full force and effect.[13]
[11] The current version commenced on 1 June 2016 and it is document T3 of the T documents.
[12] See Drake v Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634 at 640 per Brennan J.
[13] In its Statement of Facts, Issues and Contentions the Respondent also referred to several sections of the Citizenship Procedural instructions which decision-makers are entitled to, and frequently do, refer to when weighing up the character decision within the meaning of the relevant sections of the Act. They need not be repeated for the purposes of these reasons however they do provide guidance on assessing an applicant for Australian citizenship’s character. In many respects they are a mirror image of the Citizenship Policy and those aspects of it that have already been referred to in these reasons.
Under the heading “What is good character” the Citizenship Policy incorporates a description that accords with that of Lee J in Irving referred to above, being the enduring moral qualities of the person, as an indication of whether an applicant is likely to uphold and obey the laws of Australia and other communities made through the pledge should they be approved for citizenship.
However, some aspects of the Citizenship Policy warrant reference. The phrase “good character” encompasses concepts which include:
(a)characteristics which have been demonstrated over a very long period of time;
(b)distinguishing right from wrong; and
(c)behaving in an ethical manner, conforming to the rules and values of Australian society.
It prescribes that for a decision-maker to be satisfied that an applicant is of good character he or she must demonstrate:
good enduring/lasting moral qualities that are evident before their Visa application and throughout their migration and citizenship process[14]. (Emphasis added).
[14] Document T 3 of the T documents, page 85.
Further “Characteristics of good character” referred to in the Citizenship Policy[15] include that an applicant of good character would:
(a)be honest …;
(b)be truthful and not practise deception or fraud in their dealings with the Australian government…for example:
(i) providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
…
(ii)concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship. (Emphasis added).
[15] Document T 3 of the T documents, page 86.
It is noted in the Citizenship Policy under the heading “Weighing up the character decision”[16] that when an assessment about whether an applicant is of good character is being undertaken that requires the consideration of an aggregate of qualities. A decision-maker must apply “Community standards” and ask themselves the following questions:
(a)Would a person of good character have behaved the way the applicant did?
(b)What is there to demonstrate that the applicant has upheld and obeyed the law?
(c)Has the applicant behaved in accordance with Australia’s community standards?
(d)Does the applicant share Australia’s democratic beliefs and respect its rights and liberties?
[16] Document T 3 of the T documents, pages 87-88.
It is then observed that 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. However, it is stated that in most cases this excursion into the history of the applicant’s behaviour will commence at a point prior to any visa application being made.[17]
[17] This part of the Citizenship Policy is found at document T 3 of the T documents, page 88 under the heading "Weighing up the character decision".
SOME OBSERVATIONS CONCERNING THE APPLICANT’S EVIDENCE.
It is appropriate for the Tribunal to make some comment concerning the nature and demeanour of the Applicant in giving his evidence. He was in many respects a most unsatisfactory witness. Naturally, the Tribunal gives him considerable latitude given that English is not his first language. Further, he apparently has limited, if any, literacy in his native language which is Lebanese Arabic. Indeed, the evidence from him and his treating doctor was that he is illiterate in both Arabic and English.[18]
[18] The Applicant gave this evidence to the Tribunal. Additionally, contained in the T documents were two medical certificates dated 29 April 2016 from his treating general practitioner Dr Naim to this effect.
However, it should be recalled that his evidence was given through the aid of an interpreter. He also had the assistance of his ex-wife and his son, both of whom were fluent in English. Regrettably, despite the warning that his evidence was to be his own, from time to time his responses were prompted by others or assisted by them when it was just not necessary.

Notwithstanding the Applicant’s language and literacy difficulties he was extremely articulate. Whilst his literacy may be extremely limited, his capacity to conduct a rational conversation with the Arabic interpreter was evidently perfectly normal. He had no difficulty understanding the questions put to him by the interpreter and no difficulty responding properly when he saw fit to do so.
Another unfortunate feature of his evidence was that very frequently when a question was put to him, particularly one which highlighted an inconsistency between his evidence on affirmation and a prior statement, he simply did not answer the question. Alternatively, his response was evasive.
Selective memory to an unrealistic level was also a quality of his evidence that was most unsatisfactory.
There also was a tendency or propensity in his evidence to simply pass all responsibility for his actions to others, or to indicate that he could not recall matters.
It was apparent listening to his evidence that he had, contrary to the image he was attempting to portray, a carefully refined sense of looking after his own interests and doing or saying anything that may advance those interests as he saw fit. This led to his evidence from time to time being given with an air of flippancy on some occasions, deflection on others and sometimes embellishment or evasion.
More will be said about specific aspects of the unsatisfactory aspects of his evidence later in these reasons, but at the outset the Tribunal must regrettably express the conclusion that the Applicant is an unreliable witness.
CONSIDERATION.
In determining the question of the Applicant’s character, the Tribunal standing in the shoes of the Minister and decision-maker is required to be satisfied that the Applicant is of good character at the time of making such decision on the application.
There are several matters that are relevant to a determination of whether the Applicant is presently of good character which have already been identified in parts of these reasons above. They will be addressed individually.
FAILURE TO DISCLOSE CRIMINAL HISTORY IN THE APPLICATION FOR AUSTRALIAN CITIZENSHIP.
The Applicant in both the written documentation before the Tribunal, and when he gave oral evidence by affirmation sought to pass the blame for the failure to disclose his criminal history in its entirety to the person who assisted him complete the form. He stated that he trusted her and that she did it on his behalf. She did not ask him any questions or explain the form to him. This evidence on its own from the Applicant is difficult to accept. He readily conceded that he was with her when she completed the form. He stated that she filled it out and was sitting next to him. The following day upon completion they personally visited the Department in the city. This level of attention to completion of the form by his friend and their interaction seems to the Tribunal inconsistent with such glaring errors. Assuming that she reads and writes English as he says, it is highly improbable on such an important matter that she would not have carefully sought his instructions; having done so accurately recorded them on the application form, contrary to the evidence that he now gives to the Tribunal.
Of course, this friend did not give any evidence before the Tribunal concerning the circumstances surrounding the completion of the application for Australian citizenship, corroborating this account given by the Applicant. It is surprising that she was not called, nor was any explanation given for the failure to do so.
The Tribunal cannot accept the Applicant’s explanation regarding the application form. As noted earlier in these reasons the Applicant presented as someone who is very alive to protecting his own interests. He readily conceded that when he prepared his statutory declaration of 15 April 2020, which was written by his ex-wife and signed by him in the presence of an authorised witness, that it was read over to him and he fully understood its contents with which he agreed. This approach concerning the statutory declaration was consistent with how the Tribunal observed him, and his demeanour overall. Obtaining Australian citizenship is very important to him, and it seems inconceivable having had the opportunity to hear his evidence, that he would not have had the person completing the form carefully explain its contents, and the consequences of his answers so given in it to him.
Another reason why the Tribunal cannot accept the Applicant’s explanation arose from the evidence that he gave during the course of the hearing on affirmation. When asked in cross-examination about what criminal charges he had faced his response was speeding and drink-driving. He was asked if he had appeared in court for other reasons and stated he could not remember. Almost flippantly, he stated: “it happened about 18 or 19 years ago how could I remember?”. This answer was completely inconsistent with later responses that he gave to a question from the Tribunal about the conviction recorded against him for possession, carriage and use of an unregistered handgun. He then suddenly and immediately spontaneously responded that “nothing happened”, “there was no charge”, and that the gun was a “fake”.
The response to the question relayed to him by the Arabic interpreter was in significant parts English, and it must be repeated spontaneous. He was very much alive to the sensitive issue of this conviction of possession, use and carriage of a handgun and its grave consequences for him. In the light of these observations the Tribunal fails to comprehend how the simple question asked in paragraph 38(a) of the application for Australian citizenship could have been met with a response from the Applicant of “No”. This also must be viewed in the light of the warning contained in the application form and the declaration that the information supplied in the form was complete, truthful and correct in every detail. The Applicant’s response both in the form and, from the witness box has a complete air of unreality.
The Tribunal also cannot accept the Applicant’s evidence about the completion of the application for Australian citizenship by reason of another inconsistency in his evidence exposed in cross-examination. As noted earlier, he consistently said that the friend completed all the responses and answered all the questions on his behalf without any contribution from him. He said she had not asked him any questions. Mr Brinley for the Respondent reported to the Applicant that if he didn’t provide her with any information how could she possibly have known his father’s date of birth. When confronted with such an obvious inconsistency his evidence rapidly shifted to say that she was in fact asking him some questions about how old his father was, “but she didn’t ask what happened to me”. This evidence is completely implausible. Surely if she questioned the Applicant about his father’s date of birth, she would have seen fit to ask him about a serious matter of whether he had prior convictions.
The Applicant’s failure to disclose his criminal history in his application for Australian citizenship shows significant failings on his part in the context of the question of good character. The concept of not being of good character is explained in amongst other places in Lee J’s decision in Irving and in the relevant portions of the Citizenship Policy. For the sake of completeness, they should be identified and are:
(a)an inability to distinguish right from wrong;
(b)not behaving in an ethical manner conforming to the rules and values of Australian society; and
(c)a concealment of convictions that could have led to refusal of citizenship.
A person of good character would not have behaved in the way the Applicant did in completing the application for Australian citizenship. The Applicant has also not behaved in accordance with Australia’s community standards.
The significance of the failure of the Applicant to disclose the criminal convictions in the application for Australian citizenship and its reflection on his character within the meaning of section 21(2)(h) of the Act was also compounded by his subsequent efforts to deflect blame for such non-disclosure. It is appropriate to briefly make some observations concerning this fact.
Attached to the Applicant’s letter to the Tribunal dated 29 October 2019 (in which he admitted that he had given a “false answer” to the question asking whether he had previously been convicted of, or found guilty of any offences) was a table in which each court, date, offence, and penalty were identified. The last column to that table is headed “Raymond responses as at October 2019”. Without going into detail, several of the responses he has given in that table were contrary to the findings of the Magistrates’ Court which were adequately proved from a variety of sources including the documents subpoenaed from the Magistrates’ Court of Victoria and Victoria Police. They were also corroborated out of the Applicant’s own mouth when he was asked a specific question by the Tribunal as to whether or not he made the statutory declaration which appears as document T9 of the T documents. The details of the convictions and penalties imposed are identical with the police check obtained by the Respondent and included in the letter to him sent by the Department on 28 August 2019. He agreed that it was his statutory declaration and signature that appeared on it. The Tribunal, as it is entitled to do, treats this as an admission of the truth of its contents. It should not need to be reiterated that of course a statutory declaration is a solemn document for which serious penalties apply if it is false and/or misleading (including in certain cases perjury).
By way of example, with respect to several offences, including those convictions for possession, carriage and use of an unregistered handgun, the Applicant provided a response that there was no proof or evidence. The response that there was no proof or evidence was repeated on several occasions. This response must be false and of course is contrary to the findings of the Magistrates’ Court. The Applicant in his oral evidence given on affirmation was asked if he gave the information to be included in that column to the person who help him complete it. He repeatedly did not answer the question, which was a simple one calling for answer with the word either “yes” or “no”. Eventually, after much pressing his response was that she asked him about the Tribunal and the courts, but she didn’t ask him anything about these matters. He was inviting the Tribunal to imply that the responses were the complete invention of the woman who assisted him complete the table.
The Tribunal cannot accept this evidence. It is all the more alarming given the fact that his failure to disclose criminal convictions had been exposed, he was aware from the correspondence sent to him by the Department on 28 August 2019 of the consequences yet he proceeded to allow this document, which had a table containing false and misleading information, to be proffered in support of his application.
Once again this conduct on the part of the Applicant does not bear the hallmarks of someone with a good character, particularly those characteristics identified in paragraph 51 of these reasons.
THE NATURE, FREQUENCY AND SIGNIFICANCE OF THE APPLICANT’S OFFENDING.
The are several factors that are relevant to a consideration of this question.
The Tribunal acknowledges that the Applicant has not reoffended for over nine years.
However, the frequency of the Applicant’s offending is of much concern. His first appearance before the Magistrates’ Court of Victoria was in November 1989. His most recent appearance was in February 2011. This is a period in excess of 20 years.
Another concern, apart from the frequency of the Applicant’s offending, is that on the third occasion in March 2003, he appeared at the Broadmeadows Magistrates’ Court facing extremely serious charges. Amongst them were possess, use and carry an unregistered handgun, and the manufacture and storage of unauthorised explosives, together with possession of a prohibited weapon. More will be said about these later in these reasons. The sentence imposed by the Magistrate on that occasion was an aggregate of 6 months imprisonment. The term of imprisonment was wholly suspended under the relevant provisions of the Victorian Sentencing Act 1991 for 21 months.
It seems inconceivable that someone faced with such a sentence, yet given an opportunity to rehabilitate themselves, did not avail themselves of it. He continued to offend. Whilst the Tribunal acknowledges that his later offending may not have been as serious as that which brought him before the Magistrates’ Court in March 2003, the offending was nonetheless repetitive. The repetitive offending showed characteristics of disobedience to the law and institutions of this country demonstrated over a very long period of time. It was not behaviour of an ethical type which conforms to the rules and values of Australian society.
Unquestionably, the Applicant would have been warned by the sentencing Magistrate on each of the occasions that he appeared at the Court, of the necessity to obey the law, not to mention the consequences of reoffending. These warnings it would appear, were simply not heeded by him for many years. These matters indicate that the essential characteristics of the Applicant and his enduring moral qualities are lacking.
As noted earlier he was convicted in March 2003 of amongst other things, the possession, carriage and use of an unregistered handgun. He was also convicted of the manufacture and storage of unauthorised explosives. A further conviction on that date was entered for possession of a prohibited weapon. It hardly needs to be observed that these are extremely serious offences. The Parliament of the State of Victoria has imposed heavy penalties for such offending. It reflects the seriousness with which the Legislature views this conduct. It is all the more puzzling that the Applicant has asserted that he never had possession of any handgun or weapons of any kind.[19] There is also the inconsistent evidence given on affirmation by the Applicant when pressed by the Tribunal referred to earlier in these reasons, namely that the handgun was a fake and nothing happened. This response by the Applicant, apart from being false, was completely disingenuous. The Tribunal is completely satisfied on the material before it of the conviction, and the offending underlying it. There is no excuse for the possession of an unregistered handgun. They have no place in Australian society. Their purpose is predominantly to seriously injure or kill people. Such behaviour cannot be countenanced. The fact that the Applicant is still in denial about his possession of the handgun reflects a total lack of insight into his conduct. Yet again this is a bad character trait which is a manifestation of his essential characteristics or enduring moral qualities which are unsatisfactory.
[19] This statement is made in the Applicant's letter to the Tribunal dated 29 October 2019 and forms part of document T 1 of the T documents at page 4. This statement in the letter is also puzzling given that an examination of documents subpoenaed from Victoria Police reveals the existence of a report concerning his interception on 8 May 2010. These events resulted in his appearance at the Broadmeadows Magistrates’ Court on 25 February 2011. In that report, the police officer stated that an army coloured knife with a blade of approximately 20cm in length was located in the centre console of the Applicant’s vehicle during inspection. There appears to the Tribunal no reason not to accept the authenticity of the contents in this report. It is acknowledged however, that a subsequent charge brought before the Court on that day of possessing a controlled weapon was either struck out or withdrawn. It is of concern that the Applicant was driving whilst unlicensed and committed a drink-driving offence with a 20cm long bladed knife of an army style in the vehicle. The circumstances are hardly a good mix.
Something should be said about the motoring offences that he has committed. Once again, there is a repeated pattern of offending which shows a remarkable disregard for the law. They fall into two categories, drink driving and driving whilst unlicensed or disqualified.
The Respondent in its Statement of Facts, Issues and Contentions refers to authority from this Tribunal to contend that whilst, taken individually, the Applicant’s traffic offences may not be considered to be serious in nature, the Tribunal should consider his offending holistically.[20] Accordingly, when considered in such a way the frequency and seriousness of his traffic offences collectively evidence a pattern of recklessness. Additionally, a disregard on his part for Australian road laws which go to the essential safety of the community.[21] The Tribunal accepts this contention.
[20] Paragraph 7(c) of the Respondent's Statement of Facts, Issues and Contentions and the case referred to therein of Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
[21] Paragraph 7(d) of the Respondent's Statement of Facts, Issues and Contentions and the cases referred to therein of Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] and Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7].
An examination of the Applicant’s National Police Check[22] (the contents of which were admitted by the Applicant in his statutory declaration made on 9 September 2019 and sent to the Department) shows that he has appeared in the Magistrates’ Court and been convicted of drink driving offences on five occasions between 2008 and 2011.
[22] Document T 7 of the T documents.
The National Police Check also reveals that the Applicant has appeared in court and been convicted of either driving whilst disqualified, or unlicensed driving on no less than seven occasions between 2003 and 2011.
Documents were also subpoenaed from the Registrar of the Magistrates’ Court concerning the Applicant’s appearances in that jurisdiction over the years. They reveal additional matters concerning the Applicant’s appearances in that court, and convictions for motoring offences that should be mentioned. Those documents disclose that he has been found guilty of driving an unregistered vehicle on eight occasions. Also, he has been found guilty of speeding offences in that court on seven occasions.
This history of traffic offences resulting in the Applicant being summoned to the Magistrates’ Court is an appalling record by any standard. Apart from the repeated disregard for the motoring laws of this nation over many years (not to mention fellow road users), once again this shows a total lack of insight into his offending, and a comparative incapacity to rehabilitate himself.
The road death toll throughout the Commonwealth of Australia is well known. Each year too many people meet untimely deaths (not to mention those who suffer serious injuries which has the effect of forever changing the course of their lives and those of their families) due to negligent and/or reckless driving. Frequently, these are law-abiding road users going about their business in the ordinary fashion, who are innocent victims of such behaviour. Negligent and reckless driving occurs in a variety of ways. It can be caused because motorists’ capacity to control and manage a vehicle is impaired due to alcohol consumption. It can be due to negligence by reason of someone not paying sufficient attention to the prevailing road and traffic conditions at the time concerned and not driving in an appropriately safe manner consistent with those road and traffic conditions. Regrettably, and all too frequently it encompasses excessive speed in a variety of settings such as wet roads, conditions of poor visibility, heavy traffic or narrow, winding or poorly surfaced roads.

Amongst the drink driving offences of which the Applicant was convicted, there was also on several occasions refusal by the Applicant to accompany police to the police station for the purposes of undertaking a breath test. On at least two of these occasions, this occurred whilst the Applicant was driving a motor vehicle unlicensed. Once again this demonstrates a high level of civil disobedience to the laws of this country. Laws that are enforced for the protection of its citizens. These are not characteristics that demonstrate the Applicant is able to distinguish right from wrong, nor is it behaviour in an ethical manner, conforming to the rules and values of Australian society. It reflects considerable disdain for such rules and other law-abiding Australian citizens and residents.
The drink driving offences, together with driving whilst disqualified and unlicensed demonstrates that the Applicant also does not have a particularly high consideration for fellow motorists using the road. This is also another disturbing trait that reflects badly on his character.
MITIGATING FACTORS AND REHABILITATION.
There was limited evidence before the Tribunal that would fall into the category of mitigating factors. The only real evidence proffered by the Applicant to provide any explanation for his offending was in his letter of 29 October 2019 to the Tribunal. In that letter he did not deny the offences but said they related to poor decisions he had made which he regretted. He stated that he had become uncontrollable when he went through a divorce and had not handled it very well. He pleaded that his thinking was impaired and he did not consider that such behaviour might impact on his future. He also referred to health issues caused by heart disease. The Tribunal in the absence of any other corroborative evidence, given the Applicant’s propensity for unreliability in his evidence as outlined above, cannot place much weight upon this contention.
Overall, as noted earlier, there was a complete inability of the Applicant to confront his previous bad behaviour manifested in his offending and gain an appropriate insight into the fact that what he did was wrong. There was no serious explanation of why he did the things he did, which one would have expected, particularly from a person who showed a reasonable sense of self-awareness, and being alive to his own interests. This makes the omission all the more glaring.
In terms of rehabilitation the Tribunal acknowledges that he has not offended for many years. This is some sign of rehabilitation in the relevant sense. However, the denial of some offending, the attempts to portray it in a different light or downplay it are not signs of rehabilitation or perhaps, more accurately, satisfactory rehabilitation. It is again an example of the lack of insight into his offending which is disturbing. Particularly the evidence that he gave concerning his conviction for the carriage, possession and use of an unregistered handgun and explosives. He still to this day cannot appreciate the gravity of such offending. This has been canvassed to some considerable extent previously in these reasons, but it should be reiterated that it does not reflect well on his character.
THE CHARACTER REFERENCES.
The Tribunal has taken into account the character references of both Father Fares and

Mr Iacono. For the sake of completion, it should also be mentioned that the 2016 medical certificates furnished by the Applicant’s treating general practitioner are in evidence before the Tribunal and relevant on this question they have been taken into account. The medical certificates identify several health problems from which he suffers.
Concerning the character references from Father Fares and Mr Iacono several things should be said. There is no doubt that both those referees have known the Applicant for many years. In the case of the Priest, he states that the Applicant and his family had been parishioners at his church for over 30 years.
Surprisingly, Mr Iacono states that as far as he knows the Applicant has no criminal history. Presumably, the Applicant simply has never told him of his criminal history.
Father Fares does not mention any criminal history.
The difficulty with these references and the ability of the Tribunal to place much weight on them in determining whether the Applicant is of good character within the meaning of section 21(2)(h) of the Act is that neither of them address the Applicant’s offending. They do not say whether they know he has committed any of the offences of which the Tribunal has found he did. In light of this knowledge, they do not say whether they consider him to have rehabilitated and presently be of good character. Their references are completely silent on this topic. If they were aware of the history of the Applicant’s offending in all respects one would have expected them to have said so when furnishing such references to the Tribunal. As noted earlier, Mr Iacono was not informed of the Applicant’s prior criminal history. Given the failure of Father Fares to mention any prior criminal history, the Tribunal infers the Applicant did not tell him of such history.
For these reasons very limited weight can be placed upon these character references. They do not establish to the satisfaction of the Tribunal that the Applicant is presently of good character as required by section 21(2)(h) of the Act.
CONCLUSION.
By reason of the foregoing matters, the Tribunal concludes that the Applicant is presently not of good character as required by section 21(2)(h) of the Act.
Accordingly, the reviewable decision is affirmed.

I certify that the preceding 84 (eight-four) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.......................[sgd].................................................
Associate
Dated: 16 July 2020

Date of hearing: 29 June 2020

Applicant: By telephone

Advocate for the Applicant: Ms Malvina Awkar

Solicitor for the Respondent: Mr Chris Brinley

[2020] AATA 2314

16 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Date of hearing:	29 June 2020
Applicant:	By telephone
Advocate for the Applicant:	Ms Malvina Awkar
Solicitor for the Respondent:	Mr Chris Brinley