Belkahe and Minister for Home Affairs (Citizenship)

Belkahe and Minister for Home Affairs (Citizenship) [2019] AATA 4472 (22 October 2019)
Division:GENERAL DIVISION
File Number: 2018/0830
Re:Mehdi Belkahe
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:22 October 2019
Place:Sydney

The decision under review is affirmed.
............................[sgd]...........................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP – eligibility – where application for Australian citizenship refused – domestic violence and driving offences – whether applicant is of good character – considerations to be taken into account when assessing good character – whether applicant has demonstrated the “enduring moral qualities” associated with “good character” over a sufficient period of time – community attitudes towards domestic violence offences –whether applicant has demonstrated full acceptance of responsibility and remorse for conduct – applicant found not to be of good character at the time of the Minister’s decision on the application for citizenship – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Sharma and Minister for Immigration and Border Protection [2015] AATA 608
Umer and Minister for Immigration and Border Protection [2018] AATA 1630
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 July 2014
Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Senior Member Linda Kirk
22 October 2019

Mr Mehdi Belkahe (‘the Applicant’) is a citizen of Iran who was born in 1976. He arrived in Australia on 16 May 2011 and was granted a permanent protection visa on 10 September 2012.
The Applicant applied for Australian Citizenship on 30 May 2016 (‘the citizenship application’) under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[1]
[1] Exhibit R2, T3, pp. 18-54.
The citizenship application was refused by a delegate of the Minister for Home Affairs on 23 January 2018. The delegate was not satisfied that the Applicant was of ‘good character’ at the time as required by s 21(2)(h) of the Act, and the s 24(6)(g) prohibition applied because the Applicant was subject to a s 9 bond at the time of the decision.[2]
[2] Exhibit R2, T2, pp. 7-17.
On 13 February 2018 the Applicant applied to the Tribunal for review of the delegate’s decision.
The matter was heard in Sydney on 4 April 2019 and 15 July 2019. The Applicant attended the Tribunal hearing in person and was represented. He was assisted by an interpreter in the Persian language.
The following documents were before the Tribunal:
§ Respondent’s Statement of Facts, Issues and Contentions dated 21 January 2018;
§     Applicant's Bundle of Evidence (Exhibit A1), including:
(i)Statement of Issues dated 18 December 2018;
(ii)Applicant's Statement dated 18 December 2018;
(iii)Applicant's submissions dated 18 December 2018;
(iv)Bundle of Statutory Declarations from: Edmund Teng, Mohsen Sahafi, Reza Amini, Roberta Darkin, Darius Soltani, My Phuong Vuong, Abram Ayouk and Ammar Kejer;
(v)Applicant’s intention to marry current partner;
(vi)Report of Judy Chan (Clinical Psychologist) dated 30 October 2015;
(vii)Report of Massoud Amani (Psychologist) dated 15 March 2015;
(viii)Further Report of Massoud Amani dated 7 April 2015;
(ix)Report of Dr Jim Taylor (Consultant Psychiatrist) dated 12 February 2016;
(x)Good Behaviour Bond dated 21 March 2017;
(xi)Final Apprehended Domestic Violence Order dated 21 March 2017;
(xii)Various documents in Chinese (untranslated);
(xiii)Applicant’s Australian Taekwondo card;
(xiv)Police Domestic Violence Brief (including NSW Police Facts Sheet, photographs of victim’s injuries and Provisional Apprehended Violence Order);
(xv)Transcript of Local Court Hearing before Magistrate Pierce on 21 March 2017;
(xvi)Report of Hamid Attai (Psychologist) dated 20 December 2018;
(xvii)Additional documents from Taekwondo Australia;
(xviii)Applicant's further submissions dated 21 March 2019;
§Further Statement of Applicant dated 21 March 2019 – Exhibit A2;
§Email from Applicant attaching 3 statements from Mosen Sahafi dated 30 September 2018, Ammar Kejer dated 30 September 2018 and My Phuong Vuong dated 30 September 2018 – Exhibit R1;
§     Section 37 T-documents (T1-T14, pages 1-189) – Exhibit R2;
§     Tender Bundle (TB1-TB3, pages 1-63) – Exhibit R3; and
§     Supplementary Tender Bundle (ST1, pp. 1-19) – Exhibit R4.
LEGISLATIVE FRAMEWORK
The ‘good character’ test
The issue before the Tribunal is whether it is satisfied that the Applicant is of ‘good character’ in accordance with s 21(2)(h) of the Act which provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
Citizenship Policy
The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy effective from 1 June 2016.
The Policy states its role as:
to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.[3]
[3] Citizenship Policy at p.1.
Prior to the introduction of the Citizenship Policy, decision-makers were required to have regard to the policy guidance provided in Chapter 10 of the Australian Citizenship Instructions (ACIs), which was last published on 26 February 2015. From 1 June 2016 the ACIs detail the citizenship operational instructions.
The Applicant lodged his citizenship application on 30 May 2016 before the introduction of the Citizenship Policy when the ACIs were the relevant policy guidance. The Respondent made its decision, and the Tribunal heard and reserved its decision in this matter, after the Citizenship Policy became effective.
The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21]:
Policy is not law. A statement of policy is not a prescription of binding criteria.
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J.
The meaning of ‘good character’
There have been numerous Federal Court decisions on the meaning of good character and the application of the good character test. The classic exposition of the meaning of this term is found in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (‘Irving’). Lee J said at [431]-[432]:
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The question whether a person is or is not “of good character” is primarily an issue of fact.[4] As Davies J remarked in Irving at [427]-[428]:
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.
[4] Irving v Minister for Immigration Local Government and Ethnic Affairs at [424] per Davies J (with whom Nicholson J concurred).
In deciding that fact, the Tribunal is “entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act”.[5]
[5] Drake v Minister for Immigration and Ethnic Affairs(1979) 46 FLR 409 at [420] per Bowen CJ and Deane J.
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, the Full Federal Court stated at [197]:
The words “good character” in this section, should as Lee J pointed out in Irving (at 431-432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.
Neither party argued that there are cogent reasons to warrant a departure from the Citizenship Policy. Nevertheless, the Tribunal notes that the Citizenship Policy expressly states that it is not a binding checklist, and that decision-makers need to look at the merits of each case, and turn their minds to the issues until they are ‘satisfied’ on a reasonable basis that an applicant is, or is not, of good character.
The Citizenship Policy states that the term “moral” does not have any religious connotations, and that the phrase “enduring moral qualities” encompasses the following concepts:[6]
·     characteristics which have been demonstrated over a very long period of time
·     distinguishing right from wrong
·     behaving in an ethical manner, conforming to the rules and values of Australian society
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship process.
[6] Citizenship Policy at p. 145.
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the character requirement in a citizenship application:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home … The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
The Citizenship Policy sets out a non-exhaustive list of ten “Characteristics of good character”.[7] A person of good character would:
[7] Citizenship Policy at p. 147.
- respect and abide by the law in Australia and other countries
- 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
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
- not be violent ... 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)
The Citizenship Policy provides guidance to decision-makers on weighing up all of the above in reaching a conclusion:[8]
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.
[8] Ibid pp.149-150.
The Citizenship Policy refers to the decision in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7], in which the Tribunal 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.
The Citizenship Policy further advises that:[9]
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.
If a person has committed a very significant offence (such as taking the life of another person, sexual assault, crimes against children, war crimes, crimes against humanity, genocide) the lasting/enduring period would be much longer, potentially over a period of many years. In such an assessment, the nature of the significant offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. Thus, it may be extremely difficult for a decision maker to be satisfied that a person is of good character after having committed such offences, even after the passage of many years.
[9] Ibid p. 150.
ISSUES FOR DETERMINATION
The s 9 bond to which the Applicant was subject at the time of the delegate’s decision expired on 21 March 2019, and therefore the s 24(6)(g) prohibition on the approval of citizenship no longer applies.
The sole issue for determination by the Tribunal is whether the Applicant satisfies the requirements of s 21(2)(h) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Domestic violence offence
On 21 March 2017 the Applicant was convicted in the Downing Centre Local Court of Assault occasioning actual bodily harm (DV) and was sentenced to a s 9 bond for two years.[10] The victim of the offence was the Applicant’s then partner. The Applicant pleaded not guilty to the offence,[11] and both he and the victim gave evidence at the trial.
[10] Exhibit R2, T13, p. 105.
[11] Exhibit R2, T13, p. 86.
The NSW Police Facts Sheet in relation to the offence which was committed on 13 September 2016 describes the incident as follows:[12]
In the early evening of Tuesday 13th September 2016, the Accused has gone to the Victim's address … where they have begun to consume alcohol and have dinner. About 8pm, the Accused has made a comment where he has expressed his displeasure for the age difference between himself and the Victim. The Victim has suggested they should end the relationship if that is how he feels.
The comment made by the Victim has caused the Accused to become enraged where he has begun to strike the Victim. The Accused has then formed a fist and in a downward motion, has struck the Victim on the top of her scalp two times. The Victim has felt immediate pain radiate from the top of her head and sat on the floor. She has then felt blood begin to flow down from her head and down her face onto her chest. It is at this time; the Victim has raised her and felt her head. When she has observed her hand, she has observed it to be covered in blood. The Victim believes the Accused has had car keys in his hand at the time of striking. The Victim has then punched the Accused as a means of self-defence.
The Accused has changed his demeanour and become kind towards the Victim. He began to assist cleaning up the Victim by wiping her face and having her change her clothes as they had been soiled by blood. The Accused has started to try to console the Victim. About 8:10pm, the Accused has conveyed the Victim to St Vincent's hospital where they both presented to the Emergency Department. Nursing staff at the hospital have triaged the Victim with the Accused present.
Hospital staff have become suspicious of the injuries on the Victim and contacted police. The Accused was asked to leave the hospital and he did so with no issues.
Police arrived a short time later and spoke with hospital staff who informed them of the situation. Police spoke with the Victim who disclosed that the Accused had caused the injury to her head. Police observed there to be a small laceration on the top of her head that appeared to be bleeding. The Victim took part in a video statement during which he (sic) stated that the Accused had punched her twice to the top of her head causing it to bleed.
[12] Exhibit A1.
In his evidence at his criminal trial the Applicant described the incident as follows:
There was a shelf on the top of the bed and she had hit her head two times that I have witnessed and she was in pain because of that impact.
…
I have never had any argument or fight with her because I never like to fight.
…
Every time she was drunk, she was fighting with me because she thought that I have an issue with her age … On Wednesday she took a day off to come with me to Melbourne but unfortunately she was so drunk that she caused this trouble for herself. She was taking my clothes and not allowing me to wear my clothes to leave the house and as I was sitting she was insisting me to leave the house. The room is only 9 square metre and it’s very small and very, very untidy and messy and she knows that I didn’t hit her and she was very drunk that night. If I was talking to her she could have cry and scream while she was drunk and if I would keep quiet she was even more angry.
I have my key there … If I would have hit her like this with my key, there would be a big hole in her head. If I had hit her, then how come that I took her with all respect to the hospital to get attention for her treatment? [13]
… I don’t allow myself to raise my hand on a woman. You don’t know my character and you can investigate my character. I am not that type of man.
… I have not done this crime. I was going to drive that night. [14]
[13] Exhibit R2, T13, pp. 99-100.
[14] Exhibit R2, T13, p. 102.

During cross-examination at his criminal trial, the Applicant was asked whether the victim had hit or otherwise attempted to harm him. He replied:
No, how can she hit me? That is very funny if she can. We never had any problem to have this fight or a physical fight and I did not have any fight with her that night …[15]
[15] Ibid.
Magistrate Pierce found the Applicant guilty of the offence and stated as follows:
I find that he did hit her on the top of the head, as well as in the body and the legs and that the keys were in his hand but not in such a fashion as to act like a weapon pointing down but just in his hand which caused the blood. It is the only conceivable explanation.[16]
[16] Exhibit R2, T13, p. 105.
In a statutory declaration made on 15 December 2017 and provided to the Department in support of his citizenship application, the Applicant claimed that he was not guilty of the assault offence, and denied harming his ex-partner claiming she injured herself. He stated:
I wasn’t guilty and I couldn’t defend my rights because I had a severe financial situation and I couldn’t hire the decent lawyer.
On that day she consumes alcohol consumedly, and she had no control of her behaviours. She fell and injured herself, and I transferred her to the hospital.
I am regretful for undesirable happened in my life during that time and made me a miserable character. [17]
[17] Exhibit R2, T13, p. 106.
The Applicant provided a statutory declaration dated 18 December 2018 in support of his application for review, in which he stated: [18]
8 … Although I myself truly thought I am not guilty (as I raised the issue of self-defence) but the Magistrate found against me which I totally respect (the subject matter of the assault was a scratch on the top area of my partner’s head and I also hit her on the body which I now tremendously regret and & for which I am remorseful).
9. I recently, on or about Nov 2018; received my first legal advice that although I thought I had a self-defence in that proceeding of March 2017, I am guilty of the assault that I inflicted on my ex-partner in September 2016. Accordingly, I wish that AAT disregard any evidence provided thereof to the department (i.e. Stat Dec. dated 15^th December 2017); in which I initially thought I am not guilty of the offence (that was my true belief at that time). But I now indeed know that I am guilty & that I was convicted.
10. However, and having said the above, I am usually a very peaceful person and I do not assault others but, on that occasion, I lost my self-restraint and acted in improper way which I immensely regretted immediately after the incident occurred and thereafter. I am truly remorseful for my actions and I must admit that incident was one-off event and I never ever again did anything to harm anyone under any circumstance.
11. Not to justify the Sep 2016 offence itself but to shed light on the circumstances, I must inform AAT and the respectful Member that on that day of the incident, I lost one of my good friends (he died in Victoria- he was very close to me - this was mentioned in the Court hearing/evidence) and I was extremely sad & upset. When the arguments happened with my then ex-partner, I overreacted (which was wrong) - I should have only walked away. I learnt a big lesson from that incident and I would never ever do that again. As I mentioned before, I am very remorseful and sorry for that incident - that was not "me" - I truly could not believe I acted in that way, but I was under tremendous pressure at that time.
…
13. I strongly believe that 1 incident of domestic-violence does not make me a person of "bad character"- at least not under those extenuating circumstances as outlined above. During my entire life, I never committed any crime, nor I assaulted anyone except the ex Partner incident which occurred on Sep 2016.
…
32. That Sep 2016 incident/offence was one-off occurrence. It never happened again, and it won’t ever happen again.
33. The Sep 2016 offence was committed at a time of extreme pressure (close friend’s death) and I am tremendously remorseful/regretful for my actions. I truly consider the circumstances to be extenuating/mitigating indeed.
[18] Exhibit A1.
During cross-examination at the Tribunal hearing, the Applicant described the circumstances of the assault against his former partner as follows:
I was in this lady’s home. Her home was very small, it was like a studio, no bigger than 12 square metres. … She was so intoxicated with alcohol that she was - she could not control her behaviour. For example, she would tell me to leave, and just as I was about to leave she would stop me and tell me to stay and come back inside again. She had drinking more than one whole bottle - one and a half whole bottle of alcoholic beverage. Of course, this was not my business, everybody is allowed to do as they wish and drink as they wish. She was being very loud and when she talked she tried to fight with me. There was a small chair in which I was sitting. She first kicked the chair and attacked me, and started punching me with her feet. Of course because she was intoxicated and when she punched me it wasn’t as severe as I could go and say, okay, she was really beating me up. I could tolerate it. She had all my documents in her hand, my keys, my clothes, I was just wearing ordinary home clothes at that time. As I was trying to exit and go out of the door she wouldn’t allow me. When I would come back inside and listen to her and sit on the chair to calm her down, she would start telling me, “Why are you sitting here?” She was just totally out of control in terms of her behaviour. And her house was so small and her place was so small and the last time I tried to exit the apartment I just pushed her away. She kept repeatedly - she kept coming to me and attacking me to punch me. I just wanted to exit the place, that’s all. And that’s what happened when she hurt her head. I got - I was very upset, I was very sad because of that incident. The only thing I could do was to take her to the hospital. [19]
…
She’s shorter than I am. I had all my clothes in my hand, I just wanted to get out of that situation and I was feeling terrible because of the incident with my best friend. I just pushed her. The key that I had in my hand just kind of scratched her head. And the lady turned to me and said, “If I had a blood condition, I have a blood problem, I wouldn’t stop bleeding. If I start bleeding it wouldn’t stop.” So - and she was crying. The only thing I could do - the only thing I could think of, I was so much affected by the incident, I was very sad. So the only thing I could do was to just take her to the nearest hospital in her area. She was the type of person who would show a lot of affection and a lot of - yes, a lot of affection and sentimentality in order to have me and to control me, so she tried very hard to stop me because she thought if I leave she would lose me, so she tried to stop me at the door. This is how she was and this is what happened.[20]
[19] Transcript, 4 April 2019, p. 44.
[20] Ibid p. 45.
During cross-examination, the Applicant was asked about his statement, in his statutory declaration dated 18 December 2018, that he believed he could have claimed self-defence in relation to the assault. He was asked about his understanding of self-defence. The exchange between the Applicant and the Respondent’s representative was as follows:[21]
INTERPRETER: When she hit me I pushed her. When she, yes, hit me I pushed her.
MR HUTTON: Okay.
INTERPRETER: I shoved her really. I don't know what - exactly what else you mean. What exactly do you want me to say?
MR HUTTON: Do you mean that you were not guilty because, although you had hit her, she had hit you, so your assault was in self-defence?
INTERPRETER: Yes, exactly. Because I never thought that this, you know, would become such a huge problem. Exactly.
MR HUTTON: Okay.
INTERPRETER: Because she has mentioned in her statement, she has mentioned what her opinion was.
MR HUTTON: And this was what you believed was the case at the time of the hearing that you had?
INTERPRETER: At that time I didn't - I wasn't quite clear about the law, about what the law said. I wasn't sure whether this is called domestic violence or whatever they call it. I couldn't even believe it was - she had drunk a bottle and-a-half - a full bottle and-a-half of alcohol. I could believe her - I can't even drink that much water let alone alcohol. [22]
[21] Ibid p. 53.
[22] Ibid.
The Applicant was further questioned about whether he pleaded guilty to the assault charge at his criminal trial. The exchange between the Applicant and the Respondent’s representative was as follows:
MR HUTTON: Okay. Did you plead guilty before the court for your assault?
INTERPRETER: It is with respect to law of course. You need to understand something, legally ---
MR HUTTON: I'm sorry, Mr Belkahe, I don't need to understand something. There's a question, yes or no, did you plead guilty?
INTERPRETER: At first I pleaded not guilty, and then I accepted. Because I didn't know what the law says.
MR HUTTON: Whilst you were before the court did you plead to the judge that you were guilty or not guilty?
INTERPRETER: I can't be sure. I was under so much stress. Because I was advised by Legal Aid that if they sentence you, you might get after two years of sentence in jail.
MR HUTTON: Just the question
SENIOR MEMBER: It's just a simple question. The question is, did you plead guilty or not guilty in the court?
INTERPRETER: I can't remember.
MR HUTTON: You can't remember whether you pleaded guilty or not guilty?
INTERPRETER: I just signed something, signed a paper. I signed a paper, I don't know.
…
MR HUTTON: Now, you had said in your sworn statement that you thought you had a self-defence in that proceeding of March 2017.
INTERPRETER: Yes, true.
MR HUTTON: And you said before what your understanding of a self-defence is, or you've agreed with my summation that you thought that, although you had hit her, you were not guilty because she had hit you first.
INTERPRETER: Yes, exactly.
MR HUTTON: Yes. Now, did you say that before the court?
INTERPRETER: I was too embarrassed to be saying these things. It is not of my - for somebody like me with this calibre to be doing this. I have never raised a hand at my wife at home, so I was embarrassed, I was not myself. [23]
[23] Ibid pp. 53-54.
The Applicant provided a further statutory declaration dated 21 March 2019 in response to the Respondent’s Statement of Facts, Issues and Contentions.[24] In relation to the assault conviction the Applicant stated:
2. (iv) … At that time, my honest belief was that I acted in self-defence. Later and post the Court's verdict, I obtained independent legal advice for the first time. Accordingly, I accepted and regretted the conviction for Sep 2016 assault.
…
(ix)… The mere fact that I previously believed something was right, which I later came to know as "wrong" and rectified it, should not be used against me for purpose of undermining my good character. This is not fair. I further add that my current lawyer who advised me about the findings of the Court, expressly explained and advised me that I should accept the Court's findings against me as finding of "facts"- which I did.
(x)My belated admission to AAT (of accepting the findings of the Court) was in light of the legal advice I received in 2018. I was made aware that I was found guilty of the assault charge & that I should accept the Court's findings (regardless of whether these events have occurred or not & regardless of whether I at the time of the hearing and or after truly believed in a self-defence argument.
[24] Exhibit A2.
During cross-examination, the Applicant was asked about these statements in his statutory declaration. The exchange between the Applicant and the Respondent’s representative was as follows:
MR HUTTON: So was it only when you were told that you had to accept the court’s findings that you accepted them?
INTERPRETER: Yes.
MR HUTTON: Okay. So you didn’t consider that they were correct until then?
INTERPRETER: I did not have enough information.
MR HUTTON: What do you mean by that?
INTERPRETER: I did not have enough information about this issue or this subject. [25]
[25] Transcript, 4 April 2019, p. 64.
Driving offences
On 19 May 2014 the Applicant was convicted in the Parramatta Local Court for the offence of Drive motor vehicle during disqualification period and fined $600 and disqualified from driving for 12 months.
NSW police records record that on 25 March 2014 the Applicant was driving a vehicle and was involved in a collision with another vehicle. He was stopped at a red light and a car came from the opposite side and hit him on the driver’s side. He was rendered unconscious and his neck and right shoulder were injured and his car was written off. He was taken to hospital for assessment.[26]
[26] Exhibit R3.
The Applicant was questioned by police and a check of his NSW licence showed that it was endorsed as ‘Disqualified’. He had been charged by Victoria Police on 1 January 2014 for the offence 0.070-0.99% Blood Alcohol Content and issued with a Traffic Infringement Notice which had the effect of disqualifying him from driving from 30 January 2014 to 29 July 2014. He was questioned by NSW Police about his knowledge of the Disqualification. He showed them a copy of a confirmation letter confirming the disqualification. However, he indicated doubt or confusion about his driving status.[27]
[27] Exhibit R3.
During cross-examination at the Tribunal hearing, the Applicant was asked about the circumstances surrounding the charges in Victoria in January 2014. He said he was in the car with a lady who was “driving in a terrible way” as she was not in a condition to be driving and so he sat behind the wheel. As soon as he did they were stopped by police and he was arrested as he was intoxicated at the time. He said that because this incident occurred in Melbourne he thought that he could still drive in Sydney. The police had told him that his driver’s license was suspended for six months in Melbourne but not in Sydney. He denied that at the time of the collision in March 2014 he provided the NSW police with a confirmation letter in relation to his disqualification to drive.[28]
[28] Transcript, 4 April 2019, pp. 28-29.
Psychological assessments
The Applicant provided four medical reports to support his application for review.
Following the injuries he sustained in the motor vehicle collision in March 2014, the Applicant applied for and was granted a Disability Support Pension (‘DSP’). He was assessed by a clinical psychologist, Ms Judy Chan, as part of his application for DSP. Ms Chan provided a report dated 30 October 2015 in which she stated:[29]
Mehdi was involved in a MVA in March 2014 where another car careered into his stationary car and resulted in neck and lower back injuries. He has since that time experience (sic) PTSD symptoms of frequent nightmares, intrusive flashbacks and an overactive nervous system … Medhi was a coach in Taekwondo and completed regularly. Since the accident, Mehdi has not being [sic] able to coach or compete due to his anxiety and chronic pain, truncating his career and future prospects. Loss of a career and passion in sport has led to Medhi experiencing severe depression. I strongly support Medhi’s application for the disability support pension while he obtains treatment. His condition is unlikely to improve significantly in the next two years.
[29] Exhibit A1, pp. 25-26.
Mr Massoud Amani, psychologist, provided two reports dated 15 March 2015[30] and 7 April 2015[31] to support the Applicant’s application for NSW Housing Commission accommodation. Mr Amani reported that he had been seeing the Applicant since May 2014. The Applicant showed signs of “severe depression, anxiety, panic attacks, PTSD, Whiplash, insomnia and intrusive thoughts which trigger negative emotions such as anxiety”. He described the Applicant’s health as “at a critical stage” and that he was requiring “long term treatment in order to recover from his PTSD”.[32]
[30] Exhibit A1, pp. 27-29.
[31] Exhibit A1, pp. 30-31.
[32] Citizenship Policy at p. 30.
Dr Jim Taylor, consultant psychiatrist, provided a report dated 12 February 2016 in which he reported that the Applicant had “the diagnostic features of PTSD” and the “current symptoms of major depression”.[33] He noted that the Applicant worked as a Taekwondo instructor until the motor vehicle accident in March 2014.[34]
[33] Exhibit A1, p. 32.
[34] Citizenship Policy at p. 33.
Mr Hamid Attai, psychologist, provided a report dated 20 December 2018 in support of the Applicant’s application for review.[35] He reported that the Applicant has “a history of depression and post-traumatic disorder” for which he has sought psychological and psychiatric counselling and intervention and medication since 2014.[36] In his opinion, this was continuing at the time of the assault offence in September 2016. He diagnosed the Applicant as meeting the diagnostic criteria for Major Depressive Disorder with anxious distress.[37] He stated that the Applicant’s symptoms “were exacerbated at the time of the offence” as his friend had died on the same day, “which resulted in his overreaction and impulsive act”. He noted that the Applicant “displays regret and remorse when narrating the incident”.[38]
[35] Exhibit A1, pp. 104-108.
[36] Ibid p.106.
[37] Ibid p. 107.
[38] Ibid p.108.
Mr Attai gave oral evidence at the Tribunal hearing. He said that he saw the Applicant for four or five sessions at the end of 2018.[39] He confirmed his diagnosis of Major Depressive Disorder with anxious distress. He explained that this condition is diagnosed if the symptoms are present for a period of more than two weeks.[40] An episode can last a few weeks or a few months or even a few years. He said it was a “reasonable assumption” and “very plausible” that the Applicant was suffering this condition at the time of the assault offence.[41] He agreed that the Applicant’s level of control would have been less given his emotional state.[42]
[39] Transcript, 4 April 2019, p. 75.
[40] Ibid p. 76.
[41] Ibid p. 77.
[42] Ibid p. 78.
Taekwondo coaching and competing
The Applicant competed in the 2014 Australian National Championships for Taekwondo held in Adelaide in December 2014.[43] He also received $1,421 in funding from the Willoughby City Council in the 2014-2015 financial year for his organisation ‘Fighter Tae Kwon Do’.[44] He provided a certificate from the Taekwondo Interclub Tournament 2014, for Division Champion.
[43] Exhibit R3, p. 40 and p. 50.
[44] Ibid p. 55.
During cross-examination, the Applicant was asked about the statement made by Ms Chan in her October 2015 report that he had been unable to coach or compete in Taekwondo since the motor vehicle accident in March 2014. He said this was correct. He then qualified this by saying that he would sometimes compete because he was encouraged to do so by his friends. In his age group (35 to 40 years) it is not very competitive and he was given the certificate in 2014 as “an honorary respectful way of appreciating [his] participation”.[45] In 2016 his name was entered into a competition because there was no other person in his age group and his friends put forward his name in order to improve his mood. He said he also would go to classes with his students to give them encouragement, but this was just to help him cope with his mental health issues.[46]
[45] Transcript, 4 April 2019, p. 38.
[46] Ibid p. 36.
The Applicant provided evidence by way of a letter dated 11 February 2016 in support of his entry as an athlete into the Oceania 2016 Olympic Qualification Tournament, which took place on 27 February 2016 in Port Moresby, Papua New Guinea.[47] He was asked about this in cross-examination, and he said it was only an invitation and they did not know about his disabilities and physical issues at the time. Also, he could not participate because he had not competed in any international competitions in 2015 and was therefore ineligible.[48]
[47] Exhibit A1.
[48] Transcript, 4 April 2019, p. 40.
Character references

The Applicant provided character references from Edward Kin Cheun Teng, Mohsen Sahafi, Reza Sayyari Amini, Roberta Darkin, Darius Soltani, My Phoung Vuong and Ammar Kejer.
Mr Teng provided a statutory declaration dated 17 December 2018.[49] In his oral evidence he confirmed that the Applicant is his children’s Taekwondo instructor and has been for about four or five years. He said the Applicant has not had any absences during this period, and he was not aware of him having any injuries. He confirmed that he was surprised that the Applicant was convicted of an assault charge because an instructor has to be “pretty disciplined and focused”.[50] He said he was not familiar with the circumstances surrounding the assault offence, and he agreed that he said “It’s out of character” without any knowledge of the details of the offence.[51] He said he thought the Applicant also had minor driving offences.[52]
[49] Exhibit A1, p. 16.
[50] Transcript, 4 April 2019, p. 85.
[51] Ibid p. 85.
[52] Ibid p. 86.
Mr Sahafi provided a statutory declaration dated 17 December 2018.[53] In his oral evidence he told the Tribunal that he is an auto mechanic and he has known the Applicant for six years since he first came into the mechanics shop and they became friends.[54] He sees him every two or three weeks. He said he understood from the Applicant, and from many other people in the community, that the Applicant faced some problems with his ex-partner once she learned that he was about to become bankrupt, and she made “an excuse to put a complaint against him” and “get out of that relationship”.[55] He said he did not know what they had said to each other to have caused the incident. He only heard that they had a fight and he never figured out how they hit each other or assaulted each other.[56] He told the Tribunal that he does not think that the Applicant is the kind of person to intentionally harm someone or to start a fight with them.[57]
[53] Exhibit A1, p. 17.
[54] Transcript, 4 April 2019, p. 90.
[55] Ibid p. 91.
[56] Ibid p. 92.
[57] Ibid p. 82.
Mr Amini provided a statutory declaration dated 19 December 2018.[58] In his oral evidence he confirmed that he wrote the statement himself and it was signed before a Justice of the Peace. He knows the Applicant because he is an active Taekwondo participant and he met him at one of the state competitions and they became friends.[59] In his statement he said that he has known the Applicant for more than five years. He confirmed that the Applicant is also a Taekwondo coach and that he has been coaching for the whole time he has known him.[60] During cross-examination he was asked whether the Applicant has had any breaks due to injury, and he said that he did have an injury and this stopped him from competing, but he cannot recall when this occurred.[61] He said that he does not know the details of the assault by the Applicant on his former partner, but he has spoken to him about it many times and he has shown remorse.[62] He believes the assault was out of character and/or a one off event. The Applicant told him that he was not guilty of the offence, but because he did not have a lawyer and had difficulties with the language he could not explain to the judge what had happened.[63] He said he believes the Applicant was not guilty but it is only the judge who can make a finding of guilt. He has not heard anything bad said about the Applicant in the community.[64]
[58] Exhibit A1, p. 18.
[59] Transcript, 4 April 2019, p. 95.
[60] Ibid p. 96.
[61] Ibid.
[62] Ibid p. 97.
[63] Ibid p. 98.
[64] Ibid p. 101.
Mr Soltani provided a statutory declaration dated 18 December 2018.[65] In his oral evidence he confirmed that he has known the Applicant for about five or six years.[66] He said he does not know the details of the assault by the Applicant against his former partner, but he believes it was an accident and “the key happened to hit the girlfriend’s head” and he had to take her to hospital.[67] The Applicant didn’t hit her, but he felt bad as it was an accident and it wasn’t meant to happen.[68]
[65] Exhibit A1, p. 20.
[66] Transcript, 15 July 2019, p. 110.
[67] Ibid p. 111.
[68] Ibid.
Mr Vuong provided a statutory declaration dated 17 December 2018.[69] In his oral evidence he confirmed that he has known the Applicant for more than 10 years and they have had neighbouring rooms in the same house for two years. He told the Tribunal that he does not know the details of the assault.[70]
[69] Exhibit A1, p. 21.
[70] Transcript, 15 July 2019, p. 114.
Mr Kejer provided a statutory declaration dated 17 December 2018 in which he stated that he is the Applicant’s manager.[71] He told the Tribunal the Applicant has worked for him as a truck driver for four or five years. In his oral evidence he said that he does not know the details of the assault by the Applicant against his partner, but he knows it was not the Applicant’s fault.[72] Mr Kejer spoke to the Applicant’s partner who thought that the Applicant assaulted her but he did not; he just tried to talk to her.[73]
[71] Exhibit A1, p. 22.
[72] Transcript, 15 July 2019, p. 119.
[73] Ibid p. 121.
Ms Darkin provided a statutory declaration dated 17 December 2018. [74] In her oral evidence she told the Tribunal she has known the Applicant since 2011/12 and they dated for a year or two. They are now very good friends and she sees him every couple of weeks. She stated that she does not recall him to be angry, agitated or hostile towards her at any stage. In her oral evidence she said that the Applicant told her that he and his former partner had a fight and she was trying to hit him and take his keys and pants and throw everything outside, and he lifted his arm to defend himself in reflex.[75]
[74] Exhibit A1, p. 19.
[75] Transcript, 15 July 2019, p. 126.
Mr Ayouk provided a statutory declaration dated 5 February 2019.[76] He told the Tribunal that he and the Applicant are both truck drivers and they work together. He said he understands that the Applicant and his partner were “just arguing” and there was no physical contact between them and he did not hit her.[77] He has never seen the Applicant do anything bad to anyone.[78]
CONSIDERATION AND REASONS
Is the Applicant of ‘good character’?
[76] Exhibit A1, p. 129.
[77] Transcript, 15 July 2019, p. 131.
[78] Ibid p. 132.
Domestic violence offence
The Applicant’s conviction for a domestic violence offence is not consistent with the requirement in the Citizenship Policy that an applicant not be violent and not cause harm to others.[79] Domestic violence offences are serious offences involving, by definition, vulnerable persons over whom the offender exercises power and control. The Australian community has zero tolerance for crimes of domestic violence. In Mendoza and Minister for Immigration and Border Protection [2018] AATA 686, Senior Member Puplick made this point in the context of a character assessment for a citizenship application at [48]:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.
[79] Citizenship Policy at p. 147.
Applicants for citizenship who have been convicted of domestic violence offences face a high bar in establishing that they are a person of ‘good character’. In Sharma and Minister for Immigration and Border Protection [2015] AATA 608, Deputy President Constance said that domestic violence is conduct that is “fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character” at [37].
In Ahori and Minister for Immigration and Border Protection [2017] AATA 601 Senior Member Sosso stated that a conviction of domestic violence gives rise to a presumption that an applicant for citizenship is not a person of good character at [54]:
There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character and not a person who deserves the conferral of Australian citizenship.
This Tribunal adopted this approach in Umer and Minister for Immigration and Border Protection [2018] AATA 1630, namely, that there is a presumption that a person is not of good character in circumstances where the applicant for citizenship has been convicted of a domestic violence offence, and that this presumption is only negated in the face of compelling evidence and persuasive reasons which support a contrary finding. This approach does not, as Senior Member Sosso noted, allow the Tribunal to automatically reach a conclusion that an applicant is not of good character purely on the basis of a conviction for domestic violence - it must consider and evaluate all the evidence presented.
The Tribunal adopts this approach in this matter and, in the paragraphs which follow, considers whether there is compelling evidence and persuasive reasons to support a finding that the presumption that the Applicant is not of good character is negated.
Acceptance of responsibility and remorse for conduct
The evidence before the Tribunal is that the Applicant was charged and convicted of a domestic violence offence in March 2017. Magistrate Pierce found that the Applicant hit the victim on the top of her head as well as her body and legs, and that the injury to her head was sustained by the Applicant’s keys which were in his hand when he struck her head causing it to bleed.
The Applicant has proffered a number of different versions of the circumstances that gave rise to this assault, including the degree to which he was responsible for the injuries sustained by the victim. At his criminal trial in March 2017, the Applicant pleaded not guilty and told the Court “I have not done this crime”. He said that he had not had an argument with the victim, had not hit her on her head with his keys, and had not hit her on her lower legs. He also denied that the victim had hit or otherwise attempted to harm him. The transcript from the trial indicates that at no point did the Applicant accept that he inflicted any harm on the victim nor that he had a claim to self-defence.
In his statutory declaration dated 15 December 2017, some 10 months after his conviction and sentence for assault, the Applicant continued to deny that he was guilty of the assault offence. He claimed that he was not guilty and he could not defend himself because he could not afford a lawyer. He maintained that the victim injured herself because she had consumed too much alcohol and could not control her actions.
Twelve months later in a statutory declaration dated 18 December 2018 in support of his application for review, the Applicant claimed that he had obtained legal advice about the assault, and although he believed he had a defence of self-defence he now understands and accepts that he was guilty of the assault against his former partner. This was the first occasion on which the Applicant claimed that he had believed he acted in self-defence after the victim attempted to harm him, and that it was he not the victim herself that caused her injuries.
The Applicant maintained this version of events in his oral evidence at the Tribunal hearing. He claimed that the victim repeatedly attacked and punched him, and that the key he had in his hand “just kind of scratched her head”. This claim of self-defence is consistent with the Applicant’s statutory declaration dated 18 December 2018, but inconsistent with his evidence at trial and his statutory declaration dated 15 December 2017, both of which make no mention of self-defence.
The Tribunal further notes that the version of assault that the Applicant provided in his statutory declaration dated 18 December 2018 and at the Tribunal hearing makes no mention of the full extent of the injuries to the victim’s body and legs that Magistrate Pierce found the Applicant had inflicted upon her. His statutory declaration and oral evidence referred only to the “scratch” to the victim’s head, thereby minimising the extent of the injuries the victim sustained during the assault.
The evidence of the witnesses who provided character evidence for the Applicant also indicate that he provided them with a version of events in relation to the assault that did not fully detail what occurred, his responsibility for the assault, and the extent of the injuries the victim sustained. Ms Darkin gave evidence that the Applicant and his victim were arguing and she tried to hit the Applicant and take his keys and he was defending himself and lifted his hand “in reflex” when she was harmed. Mr Ayouk said the Applicant told him he and his partner were “just arguing” and there was no physical contact between them and he did not hit her. Mr Kejer said the assault was not the Applicant’s fault and he had not assaulted the victim but had only tried to talk to her. Mr Amini said that the Applicant told him that he was not guilty of the offence, but because he did not have a lawyer and had difficulties with the language he could not explain to the judge what had happened.
Whereas the Applicant told the Tribunal that he now accepts that he is guilty of the assault and is remorseful for his actions, on the basis of the evidence before it the Tribunal is not satisfied that the Applicant has accepted full responsibility for his actions.
Despite being convicted and sentenced in March 2017 for the assault he committed in September 2016, the Applicant’s oral evidence indicates that he continues to maintain that he was either not guilty of the offence or that he had a defence of self-defence. The evidence of the Applicant’s character witnesses indicates that the Applicant has told them either that he did not hit the victim, or was otherwise not guilty of the offence.
This Applicant’s claim that it is only recently, following advice from his lawyer, that he came to understand the nature and seriousness of domestic violence and that it is an offence under Australian law, is not a matter that mitigates the seriousness of the offence.
On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant’s belated acceptance of his guilt and his expressions of remorse for his actions are genuine. Accordingly, the Tribunal finds that the Applicant’s evidence concerning the assault and his remorse for his actions, and the evidence provided by his character witnesses, do not negate the presumption that an applicant for citizenship who has been convicted of domestic violence is not a person of good character.
Length of time elapsed
The Applicant was convicted of Assault occasioning actual bodily harm on 21 March 2017 in relation to an offence he committed on 13 September 2016. Therefore, three years have passed since the assault was committed by the Applicant. The Applicant was sentenced to a two-year s 9 bond which expired on 21 March 2017, some six months ago.
The Tribunal does not consider that sufficient time has elapsed in order for it to be satisfied that the assault was out of character for the Applicant, and that he has demonstrated the ‘enduring moral qualities’ associated with ‘good character’.
The seriousness of the Applicant’s offence, it being one of domestic violence, requires a significant amount of time to pass before a finding can be made that he is now of ‘good character.’ The Tribunal notes that the Citizenship Policy provides that in determining the period of the enduring/lasting moral qualities of an applicant, the nature of the offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. Senior Member Toohey observed in Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 at [67]:
Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
The Tribunal cannot be satisfied that the Applicant is a person of good character after the passage of just three years following his commission of a domestic violence offence. The serious nature of domestic violence, coupled with the Applicant’s inconsistent accounts of the offence and his reluctance to accept responsibility for his actions, are such that the Tribunal finds that the passage of time is insufficient for it to be satisfied that the Applicant has demonstrated he is of good character.
Psychological assessments
The psychological assessments provided by the Applicant do not assist the Tribunal to be satisfied that the presumption that an applicant for citizenship who has been convicted of domestic violence is not a person of good character is negated in the Applicant’s circumstances.
Ms Chan’s October 2015 report was written in support of the Applicant’s application for DSP following his motor vehicle accident in March 2014. The content of Ms Chan’s report, particularly her statement that the Applicant was a coach in Taekwondo and competed regularly prior to the accident but has not since been able to do so due to his anxiety and chronic pain, is inconsistent with the Applicant’s own evidence and that of his character witnesses. Dr Taylor in his February 2016 report also refers to the Applicant having worked as a Taekwondo instructor until the motor vehicle accident in March 2014. The statements in these reports are inconsistent with the evidence before the Tribunal that he participated in a Taekwondo tournament at the national level in December 2014, received $1,421 in funding from the Willoughby City Council in the 2014-2015 financial year, and was Division Champion of the 2014 Taekwondo Interclub Tournament. Further, the statements are also inconsistent with the oral evidence of the witnesses, including Mr Teng, who told the Tribunal his children have been coached consistently by the Applicant for four or five years, and Mr Amini, who said that the Applicant has been coaching for the more than five years since he has known him.
The Tribunal finds that the Applicant overstated, if not lied, about the extent of his injuries from the motor vehicle accident and the impact of these injuries on his ability to undertake work and other activities. It therefore cannot be satisfied that the Applicant has been truthful and not practised deception or fraud in his dealings with the Australian Government and the State Government, specifically in his applications for DSP and for housing assistance. Accordingly, the Tribunal cannot be satisfied that the Applicant has demonstrated the ‘enduring moral qualities’ of which good character speaks.
The Tribunal has considered the report of Mr Attai and his opinion that it is a ‘reasonable assumption’ that the Applicant was suffering from the diagnosed condition of Major Depressive Disorder with anxious distress at the time of the assault offence in September 2016, and that accordingly his level of control would have been less given his emotional state following the death of his friend. It notes that Mr Attai saw the Applicant on four occasions in 2018 and that his opinion in relation to the Applicant’s psychological state two years earlier is based on supposition. Accordingly, the Tribunal has placed limited weight on Mr Attai’s written report and oral evidence.
Character references
To the limited extent that the character references address the Applicant’s character, they are formulaic in content and presentation; for example, they contain a line to the effect that “[w]hilst I know of Medhi Belkahe’s assault on his ex-partner in 2016, I consider it was out of character/it was a one-off event/’I truly don’t think he will do it again”. Furthermore, as outlined above, the statements do not indicate their authors are aware of the details of the assault, a matter which was confirmed during their oral evidence at the hearing. The Tribunal has therefore placed limited weight on the statements contained in the statutory declarations of the character witnesses to the extent they attest to the Applicant’s assault offence being out of character.

In making this finding the Tribunal has had regard to the Citizenship Policy which provides guidance to decision-makers in relation to character references:[80]
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
[80] Citizenship Policy at p. 155.
CONCLUSION
In considering all of the relevant circumstances and weighing the available evidence, the Tribunal is not satisfied there are compelling evidence and persuasive reasons to negate the presumption that the Applicant is not of good character in circumstances where he has been convicted of an offence of domestic violence. The Tribunal is therefore unable to make a positive finding of ‘good character’ in relation to the Applicant. Accordingly, the Tribunal finds that the Applicant does not satisfy s 21(2)(h) of the Act.
This conclusion does not preclude the Applicant from making a further application for citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he does meet the ‘good character’ requirement for the grant of Australian citizenship.
DECISION
For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

................................[sgd].................................
Associate
Dated: 22 October 2019

Date(s) of hearing:
4 April 2019
15 July 2019

Solicitors for the Applicant: Mr M Al-Shadidi, Asad Lawyers

Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor

[2019] AATA 4472

22 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	4 April 2019 15 July 2019
Solicitors for the Applicant:	Mr M Al-Shadidi, Asad Lawyers
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor