Ebrahim and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 601
•23 May 2025
Ebrahim and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 601 (23 May 2025)
Applicant:Omid EBRAHIM
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/9874
Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date: 23 May 2025
Decision:The Tribunal affirms the decision under review.
....................[SGND].........................
Senior Member Hon J Rau SC
CATCHWORDS
CITIZENSHIP – application for citizenship - review of decision of Minister’s delegate to refuse Australian Citizenship application – whether the Applicant was of “good character”– Section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) considered – decision affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Regulations 1994 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Drugs Misuse Act 1986 (QLD)
Drugs Misuse Regulation 1987 (QLD)
Penalties and Sentences Act 1992 (QLD)
CASES
Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Haeri v Minister for Immigration and Citizenship [2009] AATA 422
Hartwig v Hack [2007] FCA 1039
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
XMNF and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3248
Joud v Minister for Immigration and Multicultural Affairs (2023/6189)
WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Secondary Materials
The Citizenship Procedural Instructions (CPI)
Statement of Reasons
THIS APPLICATION
The Applicant seeks review of the decision of a delegate of the Minister (the Respondent) made on 22 September 2023, to refuse to approve his application to become an Australian citizen, pursuant to the Australian Citizenship Act 2007 (Cth) (the Act).[1]
[1] Exhibit 3: T-Documents (T24), 273-86.
His application was refused on 22 September 2023 because the Respondent was “not satisfied that (he was) of good character”.[2]
[2] Ibid 15.
The hearing was conducted on 29 April and 19 May 2025 via MS TEAMS. The Applicant was self-represented, and the Respondent was represented by Mr Ben Nam from Clayton Utz.
The Applicant presented in a direct manner. In fact, it was the Applicant, who in answer to questions, alerted the Tribunal to the fact that the materials initially before the Tribunal on 29 April, did not contain his extensive list of traffic offences. The materials were then provided to the Tribunal by the Applicant and the matter was adjourned until 19 May, to enable the Respondent to consider this additional material.
The Applicant called 3 character witnesses. These were his fiancé, Ms Cross, Mr Williams and Mr Fatah. They all gave brief evidence by phone. All of them knew that the Applicant had at some time in the past been charged with cannabis related offences and that he had recently had some traffic related offences. None of them were apparently aware of the full extent his traffic offences record.
BACKGROUND FACTS
The Applicant is a citizen of Iran.
He was born on 12 September 1996. He is currently 28 years old.[3]
[3] Ibid 176.
He arrived in Australia on 22 June 2014 on a Subclass 202 Global Special Humanitarian (Class XB) visa.[4]
[4] Ibid 175.
On 14 August 2014, the Applicant was fined $796 for driving as a learner without a licensed driver and $242 for not displaying learner signs on the vehicle. His learner’s permit was suspended by police until 13 November 2014.[5]
[5] Exhibit 10: Summonsed Material – Transport of NSW.
On 13 November 2014, the Applicant’s learner’s license was restored.[6]
[6] Ibid.
On 28 July 2015, the Applicant was fined $200 in the Southport Magistrates Court for driving with a learner’s permit with a blood alcohol level of 0.047 (on 25 May 2015).[7] His licence was cancelled for 3 months until 27 October 2015.
[7] Exhibit 9: Summonsed Material – Department of Transport and Main Roads (QLD).
On 15 September 2015, the Applicant was fined $117 for driving a vehicle (on 26 July 2015) with less ground clearance than allowed. He was also fined $188 and lost 2 demerit points failing to display legible “P” plates at the front and the rear of the car.[8]
[8] Ibid.
On 28 October 2015, the Applicant was given a 12 month late-night driving restriction.[9]
[9] Ibid.
On 21 March 2016, the Applicant was fined $353 for driving with an unrestrained child in the car. He lost 3 demerit points.[10]
[10] Ibid.
On 19 April 2016, the Applicant was placed on a late-night driving restriction and good driving behaviour for 12 months.[11]
[11] Ibid.
On 11 July 2016, the Applicant was fined $235 and lost 3 demerit points for speeding.[12]
[12] Ibid.
On 25 July 2016, the Applicant was fined $392 and lost 4 demerit points for speeding more than 20 km over the limit.[13]
[13] Ibid.
On 17 August 2016, the Applicant’s license was suspended for 6 months due to loss of demerit points.[14]
[14] Ibid.
On 29 August 2016, the Applicant was fined $121 for driving a vehicle with ground clearance less than allowed.[15]
[15] Ibid.
On 30 August 2016, the Applicant was fined $390 for wilfully driving a vehicle in a way that makes unnecessary noise/smoke. He lost 2 demerit points.[16]
[16] Ibid.
On 16 February 2017 the Applicant’s license was restored.[17]
[17] Ibid.
On 17 February 2017, the Applicant was placed on a late-night driving restriction for 12 months.[18]
[18] Ibid.
On 20 May 2017, the Applicant was found in possession of cannabis.[19]
[19] Exhibit 3: T-Documents (T24), 21.
On 29 May 2017, the Applicant appeared in the Southport Magistrates Court charged with possession of dangerous drugs (the QLD case). No conviction was recorded. He was fined $300, placed on a 6 month’s good behaviour bond and ordered to a drug diversion programme.[20] The Applicant says that this charge related to a “very small amount of marijuana flower”.[21]
[20] Ibid.
[21] Exhibit 2: Applicant’s Reply.
On 13 April 2018, the Applicant was fined $378 and lost 3 demerit points for using a handheld phone while driving.[22]
[22] Exhibit 9: Summonsed Material – Department of Transport and Main Roads (QLD).
On 30 October 2018, the Applicant made an application for citizenship which was rejected.[23]
[23] Exhibit 2: Applicant’s Reply; Exhibit 8: Applicant’s Citizenship Application.
In that application he disclosed a single driving offence which had occurred on 25 May 2015,[24] but no other offences.[25]
[24] This was dealt with on 28 July 2015, as set out above.
[25] Exhibit 8: Applicant’s Citizenship Application, 25, paragraph 39.
On 27 November 2018, the Applicant was fined $261 and lost 3 demerit points for speeding.[26]
[26] Exhibit 9: Summonsed Material – Department of Transport and Main Roads (QLD).
On 13 December 2019, the Applicant was fined $266 and lost 3 demerit points for speeding.[27]
[27] Ibid.
On 2 April 2020, the Applicant was fined $266 and 3 demerit points for speeding on 14 January 2020.[28]
[28] Ibid.
On 6 May 2020, the Applicant’s licence was suspended for 3 months for loss of demerit points.[29]
[29] Ibid.
On 14 July 2020, the Applicant was fined $800 in the Southport Magistrates Court and disqualified for 6 months for driving on 30 May 2020, while unlicensed and driving with a drug present on 17 January 2020. A 12-month late night driving restriction was applied.[30]
[30] Ibid.
On 9 September 2020, the Applicant appeared in the Tweed Heads Local Court charged with driving with an illicit drug present in his blood (the NSW case). He was granted a conditional release for 12 months, without conviction.[31]
[31] Exhibit 3: T-Documents (T24), 21, 173-174.
On 13 January 2021, the Applicant’s license was restored.[32]
[32] Exhibit 9: Summonsed Material – Department of Transport and Main Roads (QLD).
On 14 January 2021, a late-night driving restriction expired.[33]
[33] Ibid.
On 14 April 2022, the Applicant was fined $183 and lost 1 demerit point for speeding, on 1 March 2022.[34]
[34] Ibid.
On 2 March 2023, the Applicant was fined $1078 and lost 4 demerit points for driving with a passenger who was not wearing a seat belt, on 19 November 2022.[35]
[35] Ibid.
On 13 April 2023, the Applicant applied for Australian citizenship by conferral.[36]
[36] Exhibit 3: T-Documents (T24), 10, 94-137.
The Applicant was asked in that application, whether he had been “convicted of, or found guilty of, any offences…. (include all traffic offences which went to court, including………any ‘spent convictions’)”. He responded “No”.[37]
[37] Ibid 105.
On 18 July 2023, a report generated by the ACIC records that the Applicant has a disclosable history of the QLD case and the NSW case.[38] He also had numerous traffic offences as set out in Exhibit 9.
[38] Ibid 20-21.
On 24 July 2023, the Respondent wrote to the Applicant inviting him to provide a statutory declaration in relation to the circumstances of these offences.[39]
[39] Ibid 157-163.
The Applicant responded with an undated statement in these terms:
“• The circumstances that led to the offense were influenced by my lack of understanding at a young age about the situation's implications. I wasn't well versed in the responsibilities and requirements involved. During that period, the incident occurred when I had previously been exposed to a substance that, unbeknownst to me, remained in my system for a few days. Unfortunately, a subsequent test indicated its presence, leading to the positive result, I deeply regret my actions and want to express my sincere apologies for any harm or concern caused by my behaviour, I assure you that I have learned from this experience, and I am committed to ensuring that such a lapse in judgment will never recur in my life. I understand the gravity of the situation and the importance of responsible conduct, and I am dedicated to making better choices moving forward.
• 09/09/2020 and 9/05/2017
• I was unaware that my offense resulted in a conviction, I have a proof statement from the Local Courts of New South Wales. The statement confirms that I was found guilty, but the conviction was not entered. Instead, I was good behaviour to a 12- month conditional release order, which commenced on 09/09/2020. I want to emphasize that since that date, I have remained committed to abiding by the conditions and have not engaged in any wrongful behaviour, I appreciate the opportunity to clarify the situation and assure you that I take this matter seriously. It is my intention to move forward responsibly and demonstrate that I have learned from my past actions.
• Yes I have proof of statement
• I believe that I am a good character as I am 100% dedicated to creating the best life for me and my family. Which means, I now commit most of my time to my hopefully, lifelong career in real estate, When I am not working I use my time to go to the gym or spend time with my family and Australian fiancé. I haven’t and don’t ever intend on engaging in such disruptive behaviour. I also choose who I associate myself with wisely.
• I believe my application should be approved because I have proved myself to be a reliable citizen for Australia. I have been working very hard to get to where I am and getting my citizenship will also allow me to reach my dream career and life in Australia. My goal is to become a top real estate agent and growing my business.
• I'm writing this formal undertaking comment to express my steadfast dedication to upholding and adhering to the highest standards of civic behaviour and legal compliance in all facets of my duties and interactions. Maintaining our community's health and harmony is of utmost importance, in my opinion. As a result, I promise to approach every circumstance with the utmost respect for the accepted community standards and to make sure that my actions consistently reflect the values we uphold. Furthermore, I am committed to acting in a way that is wholly consistent with the law and leaves no room for doubt or accommodation. I am fully prepared to take this responsibility seriously because I am aware that the conscientious observance of laws and regulations forms the cornerstone of a just and progressive society. In my position, I'm dedicated to fostering a culture that values diversity, justice, and respect and ensures that everyone's rights are upheld. I am aware that what I do affects not only how I see myself but also how our neighbourhood is perceived as a whole. I hereby pledge to uphold these principles by acting as a shining example of ethics, integrity, and compliance. I am steadfast in my adherence to the law and community norms, and I make it a point to lead by example by upholding these principles. Thank you for taking my formal request into consideration. I feel privileged to have the chance to support the values of our community and make a positive contribution.” [40]
[40] Ibid 164-165.
The Applicant has also provided character references.[41] These refer to him as having committed “driving offences” in 2017 and 2020.[42]
[41] Ibid 166-167.
[42] See Exhibit 5: Character Reference from Mr DKA, 1-11.
On 20 August 2023, the Applicant was fined $309 and lost 1 demerit point for speeding on 9 July 2023.[43]
[43] Exhibit 9: Summonsed Material – Department of Transport and Main Roads (QLD).
On 22 September 2023, the Respondent decided to refuse to approve the Applicant’s application for citizenship (the refusal).[44] The stated ground for refusal was “I am not satisfied that you are of good character”.[45]
[44] Exhibit 3: T-Documents (T24), 7-16.
[45] Ibid 15.
On 24 September 2023, the Applicant was fined $1161 and lost 4 demerit points for driving, on 18 August 2023, while using a hand-held mobile phone.[46]
[46] Exhibit 9: Summonsed Material – Department of Transport and Main Roads (QLD).
On 25 September 2023, a demerits points warning letter was sent to the Applicant.[47]
[47] Ibid.
On 13 December 2023, the Applicant applied to the AAT for a review of the refusal.[48]
[48] Exhibit 3: T-Documents (T24), 1-6.
On 26 September 2024, the Applicant provided various character references,[49] and an undated personal statement in the following terms:
“My name is Omid Ebrahim, and I am writing this personal statement in support of my application for Australian citizenship. I have lived in Australia since 2014, and I am deeply committed to this country, both personally and professionally. Becoming an Australian citizen is an important goal for me as it would allow me to fully contribute to the community and achieve my personal and family aspirations.
I am the Director of [redacted], leading a team of three, and I have been working full-time as a real estate agent with [redacted] for the past two years. As a lead agent, I have been fortunate to help many people buy and sell properties across the Gold Coast, and I am proud to receive consistently positive feedback from my clients. My dedication to my work and my community is a core part of who I am, and I strive to go above and beyond in everything I do.
Family is incredibly important to me. I have a fiancé, and we are planning our wedding and looking forward to starting a family together. Becoming a citizen would allow me to travel with my family, particularly to fulfill my mother’s dream of us all traveling overseas together. My family members are already Australian citizens, and it would mean the world to me to join them as one. It would also enable me to continue providing for my family and building a stable, successful life here in Australia.
I fully acknowledge and regret that I made some mistakes in the past, particularly regarding driving offences in 2017 and 2020. These incidents have weighed heavily on me, and I have taken full responsibility for them. Since then, I have made significant changes in my life and have worked hard to prove that I am a responsible and dedicated member of society. I deeply regret those actions, and I have ensured that I will never make such mistakes again.
Managing the demands of my business, real estate career, and personal responsibilities has not been easy, and I have at times struggled with anxiety and stress. I have been prescribed medical marijuana to help manage these challenges. Despite these difficulties, I remain committed to working long hours every day and pushing myself to achieve success for both my family and my community.
When I first arrived on the Gold Coast in 2015, I trained in Taekwondo with the Australian team, even competing against an Olympic fighter. Unfortunately, I was unable to represent Australia in the Olympics due to my citizenship status, but I have remained dedicated to martial arts, training in Muay Thai boxing at UFC Gym Ashmore. I hope to one day represent Australia in this sport, making both my family and this country proud.
I am truly grateful for the opportunities Australia has given me, and I am determined to continue contributing to this great country. I kindly ask that you consider my application for citizenship, as it is the final piece in helping me fulfill my personal and professional goals, while also allowing me to travel with my family and further contribute to the community that I love.”[50]
[49] Exhibit 5: Character reference from Mr DKA, 1-11.
[50] Ibid 12-13.
He also provided a pathology report dated 25 September 2024. This indicates that a urine sample taken on 20 September 2024 tested positive for cannabinoids.[51]
[51] Ibid 14.
He also provided a statement from Mr Hagen of “Green Leaf Med Pty Ltd” (Green Leaf) dated 20 September 2024 in the following terms:
“This letter is to confirm that Omid Ebrahim is currently under the care of Green Leaf Med for the management of their medical conditions, specifically stress, anxiety, and insomnia. After a thorough evaluation of their symptoms and medical history, it was determined that medicinal cannabis is a suitable treatment option.
Omid Ebrahim has been prescribed the following medicinal cannabis products to manage their condition:
· Cannabis Flower for relief of symptoms related to stress and anxiety, particularly for its calming effects and assistance with relaxation.
· THC 20mg Soft Chews to aid in the management of insomnia and anxiety, especially in promoting better sleep quality and reducing stress levels.
These products are part of an ongoing treatment plan that is regularly reviewed to ensure their effectiveness and to monitor any side effects.”[52]
[52] Ibid 15.
On 23 October 2024, the Respondent sent an Email to the Tribunal setting out its position as follows:
“We refer to the Tribunal's directions dated 5 September 2024, of which direction 2 provides that the Respondent must give to the Tribunal and the Applicant an email setting out the Respondent's current position in the application.
Please see below a summary of the Respondent's current position.
1. The Minister maintains that the decision under review should be affirmed on the basis that the Applicant does not satisfy paragraph 21(2)(h) of the Australian Citizenship Act 2007 in relation to good character.
2. The Citizenship Procedural Instructions (CPI) 4, at paragraph 4, states that a person of good character would not be involved in illegal drugs. The Applicant was previously the subject of a non-conviction in Queensland for the offence of Possessing dangerous drugs. The Applicant has since tested positive for cannabinoids. Cannabis (other than for medicinal purposes) remains an illegal drug to possess in Queensland.
3. Although the Applicant has provided a letter from "Green Leaf Med Pty Ltd", it is not presently clear to the Minister that such entity has prescribed the Applicant with medicinal cannabis in a way approved by the Australian Therapeutic Goods Administration (TGA).
4. The Minister accordingly requests that the Applicant provide further information in relation to Green Leaf Med Pty Ltd, including:
a. if that entity has prescribed the Applicant with medicinal cannabis in a way approved by the TGA;
b. any medical or health registration/qualification details of Green Leaf Med Pty Ltd and the details of any medical practitioner who prescribed the Applicant with medicinal cannabis;
c. a copy of the Applicant's prescription for medicinal cannabis; and
d. any other material which can otherwise demonstrate Green Leaf Med Pty Ltd's compliance with the TGA's administration of medicinal cannabis.
5. The Minister also notes that while some of the character references and letters of support refer to the Applicant's "driving" offences, the references do not refer to “drug” offences.
6. The Minister accordingly requests that the Applicant clarify what is meant by the term "driving" offences in these references and whether the authors of the references/letters were aware that in addition to driving, his past offending related to drugs as well.”[53]
[53] Ibid 16.
On 11 December 2024, the Applicant sent an Email to the Tribunal in the following terms:
“I like to forward that email from greenleaf boutique regarding verification of the company and the person who is prescribed me for medical marijuana.
Please see the details below and let me know if you have any questions?
In the meantime I like to say I’m sorry for the late response. I really thought the email response will be 26th of January instead of 5th of December. It was my misunderstanding regarding the dates and I like to let you know that all the character references were aware of my drug division offences on 2017 2020 they were all aware of this incident and they just didn’t write it on the character reference. Feel free to contact each of them which they have their contact details on the character reference in the meantime if you have any question that you like to me sort it out please Don’t hesitate to contact me in any time!.”[54]
[54] Ibid 18.
Receipts dated 10 January 2025 and 4 February 2025, show that the Applicant purchased some product from “Green Leaf Boutique”. It seems that the purchases related to cannabis products.[55]
[55] Exhibit 4: Applicant’s Medical Prescriptions.
There is evidence to suggest that Green Leaf is a health care provider registered with the Australian Health Practitioner Registration Authority.[56]
[56] Ibid.
On 23 April 2025, the Applicant provided another statement to the Tribunal in the following terms:
“Dear Tribunal Officer,
Thank you for the opportunity to respond regarding facts and issues statement and the matters raised.
Question 4:
At the time of completing the application, my English was not at its best, and I misunderstood the question. I was not aware that I had been convicted, and only later realised the full implications when I received my citizenship response letter. I now understand that I should have answered “yes” and I sincerely apologise for this mistake. It was never my intention to provide false information. I would also like to point out that my prior application, which was rejected around 2020 or 2021, already included all of my relevant information.
Question 8 – Good Character:
I would like to clarify that most of the referees who provided character references for me are aware of the offences from 2017 and 2020, which were drug-driving related.
Questions 11.b and 11.c – Medical Use:
I am currently prescribed medical cannabis for anxiety and stress, and I purchase it legally through a registered pharmacy. I have attached a copy of my electronic prescription and invoice for your reference. This treatment is managed by Green Leaf Medical.
Question E – Referees:
When I obtained references from my referees, I informed them of the relevant circumstances. Some time has passed since then, Please feel free to contact them for clarification if needed. Kindly note that [redacted] and [redacted] are no longer working with my current group.
Part 4 – Personal Statement:
I am a respectful and hardworking individual who is dedicated to my community. I currently work with [redacted] and am proud to be a sponsor of [redacted]. I strive to go above and beyond to support others and contribute positively to the society I live in.
I deeply respect this country and have been doing everything in my power to build a good reputation. I made mistakes in my early years after moving to Australia during a time when I was still adjusting, unfamiliar with the system, and had no formal schooling due to my age. I’ve always worked hard to make my family proud and to be a positive role model. I truly regret the offences that occurred in 2017 and 2020, and I can confidently say that they will never happen again.
My goal is to continue building a stable future, grow my family, and contribute meaningfully to this country. I am very sorry for my past actions and take full responsibility. I hope to be granted the opportunity to prove my character through my actions moving forward.
Once again, I have attached my current medical prescription and pharmacy invoice, as I now take prescribed THC and CBD medication for medical purposes. At the time of the previous offences, I was not yet prescribed. The possession charge related to a very small amount of marijuana flower, which I fully understand was wrong, and I deeply regret that incident.
Lastly, as I mentioned previously, I was under the impression that because I did not have a conviction on record, I did not have a criminal history. I also thought the department already had this information from my earlier application rejection.
Thank you for your time and consideration. I am happy to provide any further documentation or clarification if required.”[57]
[57] Exhibit 2: Applicant’s Reply.
ISSUES
The issue is whether the Tribunal can be satisfied that the Applicant was of good character at the time of the Respondent’s refusal pursuant to S 21(2)(h) of the Act.[58]
[58] See Exhibit 1: Respondent’s Statement of Facts, Issues and Contentions, 3.
LEGISLATIVE PROVISIONS
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
S 24(1) of the Act provides that if a person makes an application for Australian citizenship under S 21, the Minister must either approve or refuse to approve, the person becoming an Australian citizen, in writing.
Section 24(1A) of the Act provides that the Minister must not approve an application for Australian citizenship unless the Applicant is eligible to become an Australian citizen under ss 21(2), (3), (4), (5), (6), (7) or (8) of the Act.
The Applicant applied for Australian citizenship by conferral under s 21(2) of the Act.
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”.
Citizenship Procedural Instruction 15 (CPI 15) contains relevant guidance in relation to good character. Part 3.3 of CPI 15 explains the meaning of “good character”:
“The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
“Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character”.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
• characteristics which have endured over a long period of time;
• distinguishing right from wrong; and
• behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to
make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.”Part 4 of CPI 15 provides guidance on characteristics that a person of good character would generally be expected to demonstrate:
“As a general proposition, a person who is of good character would:
• respect and abide by the law in Australia and other countries;
...
• not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
……… intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
……. concealing criminal convictions;
...
• not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence)………”
Part 12.2 of CPI 15 provides guidance on assessing the seriousness of offences:
“12.2 Assessing the relative seriousness of the offence
Consider the length of the sentence. Longer sentences carry more weight on a person’s character.Is there a pattern of criminal behaviour?
A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.”Part 14.1 of CPI 15 outlines mitigating factors that should be taken into account, including:
“14.1 Mitigating Factors
Could the applicant be of good character despite the adverse information?The discussion below expands on the points made above. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.
What is the length of time since the offence and conviction?
There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.
Has the applicant accepted responsibility and shown remorse for their conduct?
How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.What was the applicant’s age at the time the offence was committed?
If the applicant committed the offence at a young age, the offence may be given less weight. The person may have matured and gained greater respect for upholding the law, and criminal offences from that period of life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences.
Were there any extenuating circumstances relating to the offence?
An offence committed as a result of duress or psychological disturbance (including disturbance caused by medications other than recreational drugs), may be given less weight. Any claims of mental illness should generally be supported by a report from a psychiatrist or psychologist. Decision-makers should discuss such cases with their supervisors and consult Citizenship Operations if necessary.
Is there any other evidence that the person is of good character?
Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.
Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.
It is open to decision-makers to contact individuals who have provided a referee report for the applicant.
Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose.
14.2 Weighing up the evidence
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
• Would a person of good character behave the way the applicant did?
• What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
• Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
• Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
• Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
• Are there any other factors that are relevant to an assessment of the applicant’s character?”
In assessing the Applicant's character for the purposes of s 21(2)(h) of the Act, the Tribunal need not form an adverse view of the Applicant's character, but rather must be positively persuaded that the Applicant is of good character (Re Chen and Minister for Immigration and Citizenship [2007][59] AATA 1815 at [18]). The Tribunal confirmed this position in Haeri v Minister for Immigration and Citizenship [2009] AATA 422, stating that the grant of Australian citizenship is “a privilege given to persons who demonstrate good character” (at [35]).
The issue of non-convictions
[59] Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815 at [18].
QLD case
The Applicant’s criminal history includes an entry for possessing dangerous drug (on 20/05/2017). He was dealt with by the Southport Magistrates Court on 29 May 2017 by way of “no conviction recorded recognisance $300 Good Behaviour period:6 mo Drug Diversion” (QLD case).
With respect to the QLD case, the Respondent’s position is that the Tribunal is permitted to take into account this QLD case, and any underlying conduct. This is on the basis that the Respondent says that the relevant Queensland non-conviction regime, does not engage the effect of s 85ZR(2) of the Crimes Act.[60]
[60] Exhibit 1: Respondent’s Statement of Facts, Issues and Contentions, 9, paragraph 33.
Section 85ZR of the Crimes Act 1914 (Cth) (Crimes Act) relevantly provides:
“…..(2) Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:
(a)the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and
(b)the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.”
Section 4 of the Penalties and Sentences Act 1992 (Qld) (PSA Act) as at 29 May 2017, defined conviction to mean “a finding of guilt, or the acceptance of a plea of guilty, by a court”. S 12(3) of the PSA Act provided:
“(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.
…
(3) Except as otherwise expressly provided by this or another Act—
(a)a conviction without recording the conviction is taken not to be a conviction for any purpose; and
(b)the conviction must not be entered in any records except—
(i)in the records of the court before which the offender was convicted; and
(ii)in the offender’s criminal history but only for the purposes of subsection (4)(b).”
In Hartwig v Hack [2007] FCA 1039 at (11), Kiefel J held that S 12(3) of the PSA Act does not engage the operation of Section 85ZR(2) of the Crimes Act:
“Section 12(3) of the Penalties and Sentences Act (QLD) and s 85ZR(2) of the Crimes Act (Cth) are however dissimilar. The former is concerned that there be no record of a conviction. The Commonwealth provision envisages a state legislation provision, which removes or disregards the conviction altogether. Their common purpose might be said to be rehabilitation, but they arise in different ways, and from a different circumstance. In my view, the Commonwealth provision is not referring to a provision such as the non-recording provision in s 12(3) of the Penalties and Sentences Act (Qld). The Commonwealth provision does not operate on that provision in the way contended for.”
Hartwig v Hack [2007] FCA 1039 was referred to in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (Thornton), however was expressly distinguished from the legislation regime being considered in the latter, being the Youth Justice Act 1992 (Qld) (see at [39] of Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6).
The Respondent submits that the Tribunal is entitled to have regard to the Applicant's non-conviction for his Queensland offending.
The Tribunal accepts this submission.
NSW case
The Applicant’s criminal history includes an entry for “Drive vehicle, illicit drug present in blood etc – 1st off”. He was dealt with by the Tweed Heads Local Court on 9 September 2020 by way of a “conditional release order w/o conviction” (NSW case).
Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), as at 9 September 2020, provided:
“10 Dismissal of charges and conditional discharge of offender
(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
...
(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),
…
(4) An order under this section has the same effect as a conviction—
(a)for the purposes of any law with respect to the revesting or restoring of stolen property, and
(b)for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and
(c)for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. “
The Respondent “accepts that the operation of s 10 of the CSP Act engages s 85ZR(2) of the Crimes Act (above). This is in circumstances where s 10(1) of the CSP Act expressly refers to ‘without proceeding to conviction’ and s 10(4) of the CSP Act specifies the circumstances in which such a finding of guilt has the same effect as a conviction (which relevantly, does not include for the purposes of the present review before the Tribunal).”[61]
[61] Exhibit 1: Respondent’s Statement of Facts, Issues and Contentions, 8, paragraph 25.
The Respondent “accepts that the Applicant's NSW non-conviction cannot be taken to be a conviction for any purpose, and as such does not form part of the record of offending that may be considered by the Tribunal in its assessment of the Applicant's character”.[62]
[62] Ibid, 8, paragraph 26.
The Respondent submits that, “the Tribunal has previously relied on an applicant's finding of guilt without conviction in assessing an applicant's character: see XMNF and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3248 ('XMNF'); see also the statement of interlocutory reasons given by General Member Maryniak KC on 17 January 2025 in Joud v Minister for Immigration and Multicultural Affairs (2023/6189) ('Joud'). (While both XMNF and Joud concerned the interaction between s 85ZR(2) of the Crimes Act with the relevant non-conviction sentencing regime under Victorian legislation, the Respondent accepts for the reasons above, that similar analysis is applicable to the NSW legislation.)”
The Respondent submits that, “the Tribunal's approach to findings of guilt in XMNF was erroneous, and ought not be followed in this case. In particular, although the non-conviction dispositions in XMNF were made in respect of an adult offender (cf Thornton and Lesianawai), they nevertheless engaged ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act. As explained by Hespe J in WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465 at [7], under s 8(2) of the Sentencing Act 1991 (Vic) (and except as otherwise provided by an Act), a 'finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose'. The Tribunal's reasons for decision in XMNF do not analyse the relevant State law and whether it engaged the relevant provision in Div 2 of Part VIIC of the Crimes Act 1914 (Cth). Instead, the reasons draw a distinction with juvenile offending that does not affect the proper construction of the Sentencing Act 1991 (Vic).”
Although I am of the view that the Applicant’s conduct (though not a conviction), in this context may be relevant to an assessment of his character, for the reasons set out below, I do not regard this to be of sufficient weight, in the context of his other conduct, to tip the balance either way.
CONSIDERATION
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”.
The Respondent contends that the Tribunal should not be satisfied that the Applicant was of good character for the purposes of S 21(2)(h) of the Act because:
“(a) the Applicant's conduct evinces a pattern of illicit drug use;
(b) the Applicant's most recent drug test indicated he tested positive for cannabinoids;
(c) it remains a criminal offence in Queensland to possess cannabinoids other than tetrahydrocannabinols;
(d) there is no evidence to confirm that the Applicant's drug test was only limited to tetrahydrocannabinols;
(e) on the basis that the Applicant's drug test therefore was indicative for other (unlawful) cannabinoids, the Applicant has not provided sufficient evidence to demonstrate that he has been prescribed medicinal cannabis in a lawful manner as regulated by the TGA; and
(f) insufficient time has elapsed for the applicant to demonstrate that he is now a person of good character.” [63]
[63] Ibid 10, paragraph 39.
Applicant's Pathology Report
Under Section 9 of the Drugs Misuse Act 1986 (QLD) (Drugs Misuse Act), it is a criminal offence for a person to unlawfully have possession of a dangerous drug.
A "dangerous drug" is defined by S 4(a) of the Drugs Misuse Act as including a drug listed in schedule 2 of the Drugs Misuse Regulation 1987 (QLD), which contains "cannabis" and "cannabinoids other than tetrahydrocannabinols".[64]
[64] Ibid 10, paragraph 40.
According to Healthdirect (an Australian government-funded virtual health service), the cannabis plant contains a wide range of substances, including around 130 cannabinoids. Two main cannabinoids are, tetrahydrocannabinol (THC) and cannabidiol (CBD). Medicinal cannabis is pharmaceutical-grade and regulated in Australia with labelled levels of THC and CBD. It often comes in oral or capsule forms.[65]
[65] Ibid 10, paragraph 41; Exhibit 5: Character Reference from Mr DKA, 20.
The Respondent submits “that on the present evidence before the Tribunal, it is not evident that:
(a) the Applicant's Pathology Report was indicative of only tetrahydrocannabinols; nor
(b) that the Applicant was otherwise lawfully in possession of cannabinoids.”[66]
[66] Exhibit 1: Respondent’s Statement of Facts, Issues and Contentions, 10, paragraph 42.
According to Queensland Health:
“Medicinal cannabis products are classified as either Schedule 3, Schedule 4 or Schedule 8 medicines, however most products are not listed on the Australian Register of Therapeutic Goods (ARTG). In circumstances where patients need access to therapeutic goods that are not included in the ARTG, a Therapeutic Goods Administration (TGA) approval is required in order for the medicine to be prescribed”.[67]
[67] Exhibit 5: Character Reference from Mr DKA, 25.
Access is managed by the TGA under a “Special Access Scheme (SAS)” and an “Authorised Prescriber Scheme (AP).”[68]
[68] Ibid.
The TGA says that:
“there are a small number of medicinal cannabis goods included in the Australian Register of Therapeutic Goods (ARTG). The use of these goods must be considered before applying for a SAS approval or AP authority for the supply of any unapproved goods ……..the Act provides a number of mechanisms including the Special Access Scheme (SAS) and the Authorised Prescriber (AP) pathways to enable access to 'unapproved' therapeutic goods, including most types of medicinal cannabis. ………..The SAS allows prescribers, including both registered medical and nurse practitioners, to prescribe medicinal cannabis for a single patient on a case-by-case basis. …………An Australian-registered medical practitioner can apply to the TGA to become an Authorised Prescriber (AP) in certain circumstances…..”[69]
[69] Ibid 31-32.
The Applicant's evidence is that he is presently being prescribed medicinal cannabis by Green Leaf.
The Respondent submits that the material provided concerning Green Leaf “does not suggest that Green Leaf Med Pty Ltd is part of the Special Access Scheme, the Authorised Prescriber Scheme, or any other administrative mechanism approved by the TGA”.[70]
[70] Exhibit 1: Respondent’s Statement of Facts, Issues and Contentions, 11, paragraph 47; Exhibit 5: Character Reference from Mr DKA, 15 and 18.
The Respondent submits that, “in the absence of any such evidence, the Tribunal is not able to be satisfied that the Applicant has been accessing cannabinoids other than tetrahydrocannabinols in a lawful manner.”[71]
[71] Exhibit 1: Respondent’s Statement of Facts, Issues and Contentions, 11, paragraph 48.
The Respondent further submits that while the Applicant “has not been the subject of any criminal proceedings in relation to this drug use, the Respondent contends the Applicant is in contravention of the general proposition as contained in paragraph 4 of CPI 15, that a person who is of good character would not be involved in illegal drugs.”[72]
[72] Ibid 11, paragraph 49.
In essence, the Respondent asserts that in the absence of clear proof to the contrary, the supply of cannabis to the Applicant, by Green Leaf, should be presumed to be unlawful. His consumption should therefore also be treated as unlawful, though uncharged conduct.
I have considered this submission.
If Green Leaf were indeed to be an illegal supplier of cannabis as suggested by the Respondent, their behaviour has been extraordinarily brazen. They have not only written to the Tribunal confirming supply of cannabis products, but they have even quoted an HPI-O number. The Respondent has not led any evidence to suggest that this HPI-O number is bogus.
On the available evidence, I am not satisfied that I can assume that Green Leaf is operating unlawfully in connection with the Applicant, or indeed, at all.
The Respondent’s second submission is that the Applicant has not in any event, demonstrated that he was lawfully prescribed and supplied with cannabis when the pathology report was obtained on 20 September 2024. The Respondent says that this is evidence of illegal use.[73]
[73] Exhibit 6: Respondent’s Tender Bundle, 14.
The Applicant says otherwise.
This becomes a dispute about when the Applicant obtained/filled his first prescription and in particular, whether he obtained/filled his first prescription before 20 September 2024.
A letter from Green Leaf dated 20 September 2024, although not explicitly saying so, certainly implies that the Applicant’s cannabis treatment predated 20 September 2024.[74]
[74] Ibid 15.
The Applicant says that his treatment predated 20 September 2024.
Based on the available evidence, I am satisfied that the Applicant was lawfully in receipt of medical cannabis from Green Leaf before 20 September 2024.
The pathology report is not therefore persuasive evidence of illegal consumption of cannabis on or about 20 September 2024.
The Respondent’s submissions regarding this report pointing to a consistent pattern of ongoing illicit drug use, dating back to 2017, therefore fail.
The evidence of drug use, such as it is, dates back to the QLD case (2017) and the NSW case (2020). Given the minor nature of this conduct and the passage of time, I give this conduct little weight. The arcane legal arguments about what to make of a “non-conviction” are in this context, of little if any practical significance in this case.
Failure to declare offending
CPI 15 states (at paragraph 4) that a person of good character would not practise deception or fraud in dealings with the Australian government, including by intentionally providing false personal information during visa or citizenship applications or concealing criminal convictions.
In the Applicant’s application for Australia citizenship (Form 1300t) lodged on 13 April 2023, he was asked if he had “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)?” The Applicant responded “No” to the question.
The Respondent does not rely upon the Applicant's failure to disclose the NSW case, but the Respondent does rely upon his failure to disclose the QLD case.
In addition to this, the Applicant did not disclose his drink driving appearance in July 2015.[75]
[75] See Exhibit 9: Summonsed Material – Department of Transport and Main Roads (QLD).
Mitigating circumstances
Time elapsed since offence and conviction
As has already been observed, the Applicant’s drug record is minor. I am satisfied that it is largely historic.
The Applicant’s driving record, however, has been consistently poor since he first arrived in Australia. His most recent offending was in 2023. These traffic offences were largely dealt with by police, without court appearances.
I am not satisfied that the Applicant has yet demonstrated sufficient compliance with the road rules, for a prolonged period.
Acceptance of responsibility and remorse
The Applicant has provided information in relation to his responsibility and remorse through:
(a)His undated statement provided to the delegate.[76]
(b)His undated statement provided in these proceedings on 26 September 2024.[77]
(c)His oral evidence to the Tribunal.
[76] Exhibit 3: T-Documents (T24), 164.
[77] Exhibit 6: Respondent’s Tender Bundle, 12-13.
The Respondent submits that, in these statements, the Applicant has said that:
(a)He was “influenced by [his] lack of understanding at a young age about the situation's implications”;
(b)He has been "exposed" to a substance which unbeknownst to him remained in his system for a few days;
(d)He deeply regrets his actions and wishes to express his sincere apologies;
(e)He has learned from the experience and is committed to ensuring that “such a lapse in judgment will never recur in [his] life”;
(f)He is “dedicated to making better choices moving forward”;
(g)He was unaware that his offences resulted in a conviction, and that a "proof statement" from the Local Court of New South Wales confirms that he was found guilty but conviction not entered;
(h)He has abided by the conditions of presumably his conditional release order and/or his good behaviour bond and has not engaged in any wrongful behaviour;
(i)He expresses his “steadfast dedication to upholding and adhering to the highest standards of civic behaviour and legal compliance in all facets of [his] duties and interaction”;
(j)He fully acknowledges and regrets that he made some mistakes in the past and has taken full responsibility for them;
(k)He has been prescribed medical marijuana to help manage his anxiety and stress in relation to managing the demands of his business, career and personal responsibilities.[78]
[78] Exhibit 1: Respondent’s Statement of Facts, Issues and Contentions,13-14, paragraph 65.
The Tribunal accepts that the Applicant has expressed remorse for his past behaviour.
The evidence suggests that of recent times, the Applicant has obtained secure employment and is in a stable relationship.
The Tribunal, having listened to the Applicant give evidence, whilst accepting that he was generally a reliable witness, does not accept his suggestion that a language problem has contributed to him providing misleading answers on his application, or that it explains his more recent offending.
Character references
The Respondent accepts that the Applicant has provided a number of character references from individuals in the community attesting to his character and participation in the community.[79]
[79] Exhibit 5: Character Reference from Mr DKA, 1-11.
The Respondent notes that some of these character references either do not identify the Applicant's offending, or only refer to them as "driving" offences.
I note that “…the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community.”
CONCLUSION
I am not satisfied that the Respondent has established a compelling case that the Applicant is not of “good character” based on his cannabis related conduct alone.
Even if that conduct is given no weight however, the Applicant’s record of traffic offences, and his inaccurate answer in his application, taken together, are sufficiently serious and consistent for me to come to the view that I cannot presently be satisfied that the Applicant is of “good character”.
Accordingly, I am of the view that the decision under review should be affirmed.
It is important to note that this does not mean that there is any finding that the Applicant is of bad character.
The Applicant is not prohibited from making a further application in the future.
If he does, that application would be assessed as at that future date.
This may or may not lead to a different decision, depending upon the Applicant’s conduct between now and then and the opinion of the decision maker.
DECISION
The decision under review is affirmed.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.
......................[SGND]......................................
Associate
Dated: 23 May 2025
Date of hearing: 29 April and 19 May 2025 Advocate for the Applicant:
Self-Represented
Advocate for the Respondent: Mr Nam (Clayton Utz)
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