FBRB and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 3736

FBRB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3736 (4 October 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4564

Re:FBRB

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:4 October 2018

Place:Melbourne

The Tribunal sets aside the decision under review and remits the application to the Respondent with the direction that the Applicant satisfies section 21(2)(h) of the Australian Citizenship Act 2007 at the time of its decision.

........................................................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – citizenship by conferral – good character test – history of offending – no recent offending – other behaviour in Australia – pattern of conduct – assessment must be contemporary – decision set aside and remitted with direction applicant satisfies good character requirement

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 37

Australian Citizenship Act 2007 (Cth), Preamble, ss 21, 24

Cases

Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FA 663; (1996) 68 FCR 422
Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 564

Secondary Materials

Citizenship Policy, DIBP – 1 June 2016 (Chapter 11 - Character)

REASONS FOR DECISION

Senior Member D. J. Morris

4 October 2018

1. On 6 July 2018 the Tribunal made a direction under section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that the name of the Applicant in this proceedings not be published and that instead the Applicant is to be known by the acronym ‘FBRB’. Certain witnesses referred to in these reasons will also not be named but identified by initials.

2. FBRB was born in the United Kingdom in 1968.  He arrived in Australia in 1977 with his parents and siblings as the holder of a resident entry visa.  He has been a permanent resident since that time and gave evidence that he has not left Australia since that first arrival.  On 23 November 2016 FBRB applied for Australian citizenship by conferral, under section 21(1) of the Australian Citizenship Act 2007 (the Act).  In his application, FBRB acknowledged that he had a criminal history and that he had been convicted of a number of offences between 1983 and 2007. 

3. On 24 July 2017 a delegate of the Minister for Immigration and Border Protection (the Minister) refused FBRB’s application on the basis that the delegate was not satisfied that FBRB met the good character requirement under section 21(2)(h) of the Act.

4. FBRB brought that decision to the Tribunal for review.  A hearing was held on 16 and 17 July 2018.  FBRB was represented by Mr Min Guo of Counsel, instructed by Ms Patricia Chen of AJH Lawyers.  The Minister was represented by Mr Adam Cunynghame of Spark Helmore.  FBRB gave evidence and was cross-examined.  FBRB’s partner (Ms ‘SP’), two senior staff of Odyssey House (Mr ‘EA’ and Mr ‘IL’), and Mr Luke Armstrong, psychologist, also gave evidence.

5. The Respondent tendered documents (T-documents) under section 37 of the AAT Act (Exhibit R1). The Applicant tendered a bundle of documents which were taken into evidence:

   ·Outline of Applicant’s evidence, dated 18 December 2017 (Exhibit A1);

   ·outline of witness evidence (Ms SP), dated 16 December 2017 (Exhibit A2);

   ·the Applicant’s current Working with Children Check (Exhibit A3);

   ·outline of expert witness evidence (Mr Luke Armstrong, psychologist), dated 18 February 2017 (Exhibit A5);

   ·outline of expert witness evidence (Susan Pepper), dated 14 December 2017 (Exhibit A6);

   ·outline of witness evidence (Mr EA), dated 15 December 2017 (Exhibit A7);

   ·a brief biography of Mr Armstrong (Exhibit A8). 

   In the event, the Applicant did not call Ms Pepper to give evidence.

   The legislative context

6. A person is eligible to become an Australian citizen under the Act if the Minister is satisfied that the person meets the general eligibility requirements set out in section 21.  The delegate found that FBRB was aged 18 years or over at the time of his application, and thus met section 21(2)(a) of the Act.  The delegate was satisfied that FBRB was a permanent resident at the time of his application and the time of the decision (section 21(2)(b) of the Act).  The delegate also found that FBRB satisfied the general residence requirement in section 22 of the Act. And that he satisfied sections 21(2)(d),(e) and (f) of the Act, which among other things require a basic knowledge of the English language, an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and that he had sat and successfully completed a citizenship test approved by the Minister.  The delegate was satisfied that FBRB was likely to reside in, or continue to reside in, Australia; or to maintain a close and continuing relationship with Australia if the application for citizenship was approved, and that therefore he satisfied section 21(2)(g).

7. However, the delegate was not satisfied that FBRB was of good character, under section 21(2)(h) of the Act at the time of the decision, because of FBRB’s criminal record in Australia.  Under section 24(1) of the Act, if a person, such as FBRB, makes an application under section 21, the Minister must in writing approve or refuse to approve the person becoming an Australian citizen.  Section 24(1A) of the Act states that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsections 21(2),(3),(4),(5),(6),(7) or (8) of the Act.

8. If, therefore, the Tribunal is satisfied that FBRB is of good character, the matter should be remitted for any other legislative requirements to be assessed.  Importantly, the assessment of character is to be made as at the date of this decision, not the date of the decision under review.

   The Applicant’s criminal record

9. Before the Tribunal was a National Police Certificate dated 11 November 2016 (T3, p 163-171).  Mr Guo conceded that FBRB had recorded offences occurring from October 1983 to June 2007.  FBRB’s first offence of Breaking in with intent to steal occurred when he was 15 years of age.  He had some traffic offences between 1986 and 1989 and in November 1992 appeared in court in Adelaide charged with a number of offences including Common assault, Damaging property, Assaulting police (4 counts) and Resisting police.  The court imposed a mixture of suspended sentences, bonds and fines.  There was a string of other similar offences from March 1993 to the end of 1994, then again in 1997 and 1999.

10. Mr Guo submitted that in 2003, whilst under the influence of drugs and alcohol, FBRB was convicted of driving dangerously and driving a vehicle without consent.  He was convicted of two counts of Causing bodily harm by dangerous driving and sentenced to a cumulative sentence of 36 months, partly suspended with a term to be served of four months.

11. In March 2007 FBRB was convicted of three counts of Theft, Unlicensed driving, Burglary, Handle/receive/retention stolen goods, and two charges of Aggravated burglary (person present).  He was given a sentence of nine months’ imprisonment, partly suspended, of which four months was served.  In July 2008 he was back in court and was convicted, among other offences, of three counts of Theft, one count of Burglary, one count of Uttering forged prescription for drug and two charges of Failing to answer bail.  On appeal to the County Court of Victoria, FBRB was ordered to serve the sentence imposed by way of an intensive corrections order for 24 months.

12. The most recent convictions in the National Police Certificate were in September 2008 for several counts of Theft, Aggravated burglary – person present, and Theft of a motor vehicle.

    The Applicant’s contentions

13. Mr Guo conceded that FBRB has been convicted on 53 occasions and has served periods of imprisonment. Mr Guo submitted that, whilst acknowledging the extensive criminal convictions, the nature of the offences committed by FBRB are not at the same level of seriousness as those offences which are highlighted in the Citizenship Policy manual (the manual) to be very significant offences, in terms of weighing a person’s character:

    If a person 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 then the period of time since the crime was committed.

14. Mr Guo drew attention to the delegate’s observations (T2, p 17), where the delegate wrote:

    Having regard to the sentences imposed I am satisfied that your offences are at the middle range of significance.  I give this factor some weight in my assessment of whether you are of good character.

15. Mr Guo submitted that most of FBRB’s crimes were associated with the consumption of alcohol and drugs and that he “did not intend to strike, hurt or another person [sic], although the consequences of some of his offences, resulted in the same.”

16. Mr Guo submitted that there were mitigating factors in FBRB’s offending which are relevant to the assessment of whether he is of good character.  He drew the Tribunal’s attention to the passages in the manual which direct decision-makers to weigh up certain factors, applying community standards, and that in weighing up these various factors the manual sets out:

    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.

17. Mr Guo submitted that FBRB had a troubled childhood and grew up in an unstable environment and left home at the age of 14.  FBRB started drinking alcohol at 15 years of age and, when he was 23, he fell into bad company and started using drugs until the mix of drugs and alcohol “became a normal activity to him”.  Mr Guo submitted that FBRB’s criminal offending commenced to support his drug and drinking habit.  He pointed out that as far back as 1993 FBRB’s addiction problems were accepted as a relevant factor in his criminal behaviour by a South Australian Magistrate (T3, p 316); and in 2003 by His Honour Judge Clayton of the South Australian District Court.  His Honour, in imposing sentence for FBRB’s conviction of Causing bodily harm by dangerous driving, and other offences, stated (T3, p 320):

    Your counsel has asked me to take into account your pleas of guilty and that you are truly contrite.  He has asked that I set a non parole period that is not crushing on you, but will provide a realistic opportunity to commence a period on parole and embrace the services that are available to further facilitate your rehabilitation.  In general, I accept those submissions, but I must impose a term of imprisonment that reflects the seriousness of your offending.

    I take into account the matters set out in Dr Raeside’s report.  He has suggested that your future prognosis and risk of re-offending could be related to how successfully you can remain abstinent from illicit drugs.

    I am influenced by the report of the social workers at Yarala Labour Prison concerning your involvement in alcohol and other drug programs.

18. Mr Guo submitted that although mitigating circumstances in relation to FBRB do not excuse his criminal conduct, they provide context for his offending and submitted that the Tribunal should note that this is not a case where a mature person deliberately embarked on criminal activity soon after arriving in Australia.

19. Mr Guo said that FBRB has not re-offended for the past 10 years and has been drug and alcohol free since January 2008.  He said that FBRB no longer associates with others who are involved in anti-social and criminal behaviour or people who do not uphold and obey the laws of Australia.  FBRB has a stable family life with his partner of seven years, Ms SP, and her son; he has a full-time job; and he has bought his first house and is paying off the mortgage.

20. Mr Guo submitted that FBRB has complied with all punishments rendered against him as a result of his crime.  He submitted that, apart from undertaking his full-time weekday job, FBRB had also volunteered at Meals at the Bridge to help homeless people in Melbourne and that he works part-time at Odyssey House, usually two weekends a month and on public holidays, as a way of recognising the effect that his drug and alcohol addiction had upon him in the past and “giving back” to support the organisation that assisted him to conquer his addiction.

21. Mr Guo submitted that the passage of time since an applicant’s crime was committed is included in the manual as a relevant factor to be considered and that there is an expectation that a certain period of time needs to elapse so that an applicant can reach the point of “past criminal conduct”. FBRB has, in his submission, met and exceeded this measurement through his conduct over the last decade with “undisputed evidence of his reformation”.

    The Respondent’s contentions

22. The Respondent submitted that FBRB’s offences clearly weigh against him being of good character.  Mr Cunynghame noted that the Applicant accepted he had extensive criminal convictions.  However, he said that, in regard to Mr Guo’s written contention that FBRB has been convicted on 53 occasions, on many of these occasions FBRB was convicted of multiple charges and in total he has, in fact, been convicted of some 110 offences.

23. In terms of Mr Guo’s submissions that FBRB had not been convicted of “very significant offences” as outlined in the manual, the Respondent submitted that this did not assist him: as FBRB’s offending was still significant and serious, as he has acknowledged, including convictions for assault, actual bodily harm and aggravated burglary offences.

24. Mr Cunynghame submitted that the number of offences and their spread over 25 years ”weighs heavily against the applicant being of good character”.  The Respondent submitted that, considered cumulatively, the weight of the evidence does not support a finding that FBRB is, at this point in time, of good character and that therefore the Tribunal should affirm the decision under review.

    Evidence of the Applicant

25. FBRB gave evidence at the hearing.  He said he is employed as a truck driver for a building company and also works at Odyssey House as a duty officer some weekends.  He detailed how he came to Australia with his family when he was 8 years old.  He said there was conflict in the house between his parents, that his mother regretted the move from England to Australia and that his father was a functioning alcoholic who held down a job but each night sat and got drunk.  FBRB said his father was not violent, but family life was very challenging because of his father’s alcoholism and his mother’s dispiritedness.

26. Initially FBRB lived in Adelaide with his family.  In his teens the family of a school friend moved to Queensland and he moved with them (T3, p 22).  In terms of his first offence in 1983, he said he played truant from school with a friend, and they went into a disused hall, which he knew they shouldn’t have done, but he did not recollect they intended to steal anything.

27. He said as a young adult he became involved in a martial arts club.  Some of the club members worked as bouncers at local hotels.  He got a job at a particular Adelaide hotel which was in a seedy district.  He said he had started drinking alcohol from the age of 15 and smoked marijuana.  FBRB said “most of the staff” at the hotel used hard drugs, cocaine and amphetamines.  He said peer pressure meant that he, too, became a drug user.

28. FBRB was taken through several of the offences listed in the National Police Certificate.  He said he could not recall the details of many of them, but did not deny any of them.  In terms of the 2003 offence, he said he was driving the car of a ”so-called friend” and should not have been driving because he was intoxicated.  He went through a red light at an intersection and hit a motorcyclist who had a pillion passenger.  Both of them were injured. 

29. FBRB agreed that he went on to commit further offences but only stopped using drugs when they were not available to him.  In terms of the uttering offence, FBRB said an acquaintance had a prescription for Valium and he “stupidly took it to the pharmacy”.

30. In terms of the aggravated burglary charges, FBRB said he did not injure or threaten anyone. On one occasion for which he was convicted, he reached into the open window of a house and stole a laptop computer.  He did not recall the details of the other aggravated burglary offence.

31. FBRB said that he broke into a warehouse and the only way to get bail was to agree to go on the Court Integrated Services Program (CISP) at the Magistrates Court of Victoria.  FBRB said a CISP worker suggested that Odyssey House would be worth considering for a person like him with a history of drug and alcohol abuse.

32. FBRB said that he lived at Odyssey House from February 2008 and moved out early in 2010 with some peers into a group house.  He said that one of the conditions of being a resident at Odyssey House was submitting to regular urine tests to detect drugs and alcohol, and that he would return each week for a urine test after moving into the group house.  If drugs or alcohol were detected, it would generally lead to the person being made to leave the facility.  FBRB said he never failed a urine test from when he first entered Odyssey House.

33. FBRB explained the programme run at Odyssey House and how the facility is managed.  He said that after he successfully completed his course he went back to help, which he told the Tribunal was termed by the therapy programme ‘Giving Back’, and he subsequently got a paid job as a duty officer.  He said that it was a requirement of being an employee that he obtained a Working with Children Check (WWCC) (A3) because some residents either have children, or have children who visit them at Odyssey House and there is a childcare centre on site.  Obtaining the WWCC required full disclosure of his past offending and an assessment of character by the issuing officers.  The Tribunal notes this disclosure but also that the assessment undertaken in regard to the WWCC has little bearing on the Tribunal’s task in this review.

34. In terms of his other employment, FBRB said he will have been employed there for eight years in November 2018, first in a casual capacity and then he was invited to become a permanent employee by his manager.  In the T-documents was a reference from FBRB’s employer which attested to his diligence and competence in his duties at work.

35. FBRB told the Tribunal that he is studying for a Diploma of Alcohol and Other Drugs (T3, p 120), which he hoped to complete by the end of this academic year.  He gave evidence of his engagement with a psychologist, Ms Zinata Dedovic, of his own volition and said that he had had 20 sessions with her.

36. FBRB told the Tribunal he met his partner, Ms SP, early in 2011.  They have been together since later that year; and three years ago FBRB bought a house as their residence together (T3, p 61).  In terms of his siblings, FBRB said he had a brother who lives in Adelaide who has health problems and he speaks to him each week by telephone.  FBRB said he also has a sister, with whom he had a strained relationship for unrelated family reasons, but which was improving.

37. Under cross-examination, FBRB said he had not had an alcoholic drink since entering Odyssey House, including at Christmas or other social occasions.  In terms of the collision he had with the motorcyclist, the Applicant said he was affected by alcohol and realised later that he could have killed the people he collided with.  He did not remember seeing a Dr Raeside, who is referred to in his sentencing remarks by Judge Clayton but assumed he was a court-appointed psychiatrist.  He said that he had completed an apprenticeship as a spray painter but it was not an occupation he ever really enjoyed.  When asked about some of the street assaults for which he was convicted, FBRB said he could not remember many of the details but assumed that was because he was affected by alcohol and drugs at the time, which also led to his anti-social behaviour.

    Evidence of Ms SP

1. Ms SP, FBRB’s partner gave evidence.  She said she met him in 2011 and he initially did not tell her about his criminal past but after they had been in a relationship for about two months he told her about his drug and alcohol addiction and the time he had spent in gaol. Ms SP said she knew about FBRB’s childhood but that she didn’t know him in the past, she only knows him in the seven or so years they have been together.

2. Ms SP said she has a son who lived with her and FBRB and a grown daughter who has her own house and family.  Ms SP said FBRB is accepted as a grandfather figure by her daughter’s son.

   Evidence of Mr Luke Armstrong

3. Mr Luke Armstrong, a registered psychologist, gave evidence at the hearing.  Mr Armstrong practises on his own account but also undertakes significant work for Odyssey House and said he was chief consultant there from 2003.  He said he has written around 3,000 reports relating to residents of Odyssey House.

4. Mr Armstrong said his last clinical attendance on FBRB was in 2009.  Mr Armstrong said that when FBRB arrived at Odyssey House he was typical of a person who had witnessed hardship and was battling an addiction.  He said that, initially, FBRB did not appear to show remorse for his past action and it was his view that the Applicant was “struggling to surrender to the process” at first, but it was Mr Armstrong’s view that he has become “a loyal and respected staff member at Odyssey House.”

5. Under cross-examination, Mr Armstrong agreed that his 2016 report on FBRB was written based on a review of the Applicant’s previous reports and a telephone discussion he had with FBRB and he did not undertake a formal clinical assessment; and that his most recent clinical report was in February 2009.

6. When asked why he had a positive view of FBRB’s prognosis in terms of not relapsing, Mr Armstrong said that there were “three realities.  He has been drug-free, crime-free and has an ongoing relationship with Odyssey House”.

   Evidence of Mr EA

7. The Tribunal heard evidence from Mr EA, who holds a senior position at Odyssey House Residential Services. He said he has worked at the facility for 30 years, first with adolescents, and later in a therapeutic role and then on family programmes; before moving in to a management and administrative role.

8. He said that FBRB was never a major concern to staff and was ”on the quieter side”.  Mr EA said that through his actions, it was his view that FBRB had demonstrated by example to others how they could defeat their addiction. 

9. When asked whether it was common for former residents to return to Odyssey House as staff, Mr EA said that of about 300 who are admitted each year, about 30 or 40 come back as volunteers, and about four or five individuals come back as paid employees.  In terms of the duties FBRB undertakes on weekends and public holidays at Odyssey House, Mr EA said they encompass ensuring the strict schedule of the day is adhered to, handling medication and money for residents, helping with conflict resolution groups, dealing as necessary with Victoria Police and child protection workers.  Mr EA said that there is an expectation that all staff submit to random breath or urine tests if they are suspected of having drugs or alcohol on the premises.

10. Under cross-examination, Mr EA agreed that he did not have medical qualifications and said he was aware of FBRB’s ”extensive history of serious crime” including threatening behaviour and assaults, and that in his considered view this is conduct that FBRB has ”stepped away from”.

    Evidence of Mr IL

11. Mr IL, who holds a senior position at Odyssey House, also gave evidence to the Tribunal.  He stated that he has been employed there for 17 years, first as Business Manager and then as a therapist, and for the last eight years in an operations role.  He is responsible for maintenance and the kitchen and catering functions, and for managing the weekend roster of duty workers, including FBRB, who report directly to him.

12. Mr IL said that FBRB is seen by the staff of Odyssey House as someone who has done well in terms of recovery and that he had personally observed FBRB help other residents at early stages of their rehabilitation.  Mr IL gave an example of another resident biting FBRB in an unprovoked attack during a football game at the facility, explaining that many residents have poor impulse control, and that it stood out in his memory for the calm way that FBRB responded.

13. Under cross-examination, Mr IL said he was aware FBRB came from what he termed a dysfunctional family but that he did not know the details of FBRB’s past offending.

    CONSIDERATION

14. The phrase ‘good character’ is not defined in the Act.  Some guidance is provided by the manual issued to assist departmental officers.  Brennan J, then President of the Tribunal, said in Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 564:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.  Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

15. The Tribunal therefore has regard to the manual and in particular Chapter 11 – Character.  The manual cites the Full Federal Court decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 where Lee J said, at [431]:

    The words ‘good character’ should be taken to be used in their ordinary sense, namely a reference to the enduring moral qualities of the person, and not to the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion…A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character.

16. The manual goes on to say that, in this context, ‘moral’ does not have any religious connotations. The manual declares that the phrase ‘enduring moral qualities’ encompasses the following elements: 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.

17. There is no doubt to the Tribunal that, on any objective measure, FBRB has a significant criminal history, spanning the period from 1983 until 2007, beginning with petty crime, and including serious offences such as Causing bodily harm by dangerous driving and Aggravated burglary.  His list of convictions includes a particularly serious road collision which injured two persons, and which could well have led to their deaths.  It would appear that from Magistrate Hayne’s comments back in 1999, the spectre of drugs and alcohol had already taken a malevolent hold on FBRB’s behaviour and was a common factor in his offending, either because of aggressive conduct, or lack of control or, in terms of the property crimes, the need to get funds to support his addictive habit.

18. It is to FBRB’s credit that he was open and frank about these crimes in his application for citizenship, in his interactions with the Department and in this hearing.  He did not deny any of the offences, nor did he seek to minimize the extent of his culpability, the nature of the offences nor the seriousness of a number of them.

19. Mr Guo cited a number of previous decisions of the Tribunal in his written and oral submissions.  While these decisions are useful information for the Tribunal to have, they are not especially persuasive because each matter before the Tribunal is considered in terms of its own factual circumstances; and this is especially important where an assessment, such as character, is required to be made, an assessment which is axiomatically subjective.  What the Tribunal must consider is whether a reasonable conclusion can be drawn that FBRB is of good character, with the background of offending over some 25 years.

20. It is significant that the reason the Applicant sought section 35 confidentiality orders in this matter is that he did not want his work colleagues to know the details of his past offending, because he has worked for his current employer for some seven years and, on the evidence, is a valued and dependable employee.

21. The hearing of this matter gave the Tribunal a significant insight into the major and positive contribution that Odyssey House makes in Victorian society, duplicated in similar facilities in other parts of the country.  The extensive evidence given by staff of Odyssey House about their rehabilitative programmes and strict no-drugs regimen was valuable information in this consideration in relation to FBRB’s rehabilitation and his subsequent interaction with the work of the facility.

22. There were in the T-documents a number of testimonials about FBRB, including from some people who had good knowledge of his past offending but who nevertheless were of the view that he had turned a corner in 2008.  The Respondent accepted that the evidence of the witnesses called by the Applicant was generally consistent but submitted that all of the witnesses were unable to demonstrate knowledge, or complete knowledge, of FBRB’s offending history, even when prompted.  The Respondent emphasised that a number of the offences for which FBRB has been convicted involved elements of violence, including assaulting police, and that these cannot be put to one side in assessing the moral qualities of a person.

23. The Full Federal Court in Minister for Immigration and Godley [2005] FCAFC 10 (Godley), stated at [34]:

    His Honour’s consideration of the matter was, in our respectful opinion, correct and constitutes a valuable guide for decision-makers. It bears repetition at length here. The learned primary Judge said:

    ‘Subsection 501(6) acknowledges that it is a limited discretion in that it provides that a person "passes the character test" unless paragraph 501(6)(a), (b), (c), or (d) applies to that person. In so far as s 501(1) requires a visa applicant to "satisfy" the Minister that he or she "passes the character test" it imposes no separate onus on that person. It is s 501(6) that governs the operation of s 501(1). [Emphasis added]

    ...

    The construction of s 501(6)(c) depends on the context and purpose of the Act and, in particular, of s 501. Section 501(6) defines the limits of the discretion Parliament has conferred on the Minister. As set out above, the other paragraphs of s 501(6) require the Minister to make findings of fact, or to form opinions or suspicions based on reasonable grounds, before a discretion to refuse a visa will be conferred. Section 501(6)(c) requires the Minister to have regard to the visa applicant’s past and present criminal conduct and/or past and present general conduct and then determine as a fact whether that person is not of good character.

    Unless such a finding of fact is made by the Minister the visa applicant "passes the character test" and thereby satisfies the Minister under s 501(1). If the Minister finds that the visa applicant is "not of good character" that person "does not pass the character test" and accordingly does not satisfy the Minister under s 501(1). It is a finding of fact in which the meaning of the words "not of good character" is all important.

    The words "of good character" mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432).

    A finding that a person is "not of good character" requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).

    The distinction between "criminal" and "general" conduct as indicia of absence of good character may suggest that the word "criminal" is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions. (See: 4 Bl. Com. 5; Shorter Oxford English Dictionary at 456 – "crime", "criminal").

    …

    For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term "present criminal conduct" is to be understood), becomes "past criminal conduct" must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is a person not of good character. (See: Baker at 194-195).

    Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

    The foregoing is not a mechanical exercise and although expressed in different terms from those considered in Irving and Baker the task to be performed differs very little from that under the Act and regulations as they stood before amendment.

24. FBRB has an extensive criminal history.  From about the age of 15 until the age of 40 he repeatedly offended, sometimes seriously.  There is no doubt from his evidence that he had troubles at home, but many other people have unhappy home lives and do not embark on such criminal behaviour.  The key to FBRB’s offending seems, incontrovertibly, to be his consumption of alcohol coupled with his drug addiction. 

25. There were, as can be seen from the National Police Certificate, periods when FBRB did not offend, but the general trajectory of offending was unfortunately melancholy.  It is clear that sentencing magistrates and judges had the view that FBRB had the ability to modify his behaviour, and a range of sanctions were imposed by the court system to that end.

26. It is significant, in this assessment, that it was FBRB himself who accepted that something had to change.  He went to Odyssey House of his own volition.  By the independent accounts of the staff there and Mr Armstrong, he did not regress and persevered with his course of rehabilitation.  When he completed it, he then obtained a casual job which became a permanent, full-time job.  Accompanying this, FBRB also undertook voluntary charity work, and returned to Odyssey House, first as a volunteer and later was accepted as a part-time paid employee.  The evidence before the Tribunal, which was accepted by the Respondent, is that he has not regressed to his previous addictions, which were the root cause of his offending behaviour.

27. The Tribunal must weigh the character assessment of FBRB as at the date of this decision.  FBRB has not offended since 2008, some ten years ago.  Since he completed his course of rehabilitation, he has formed a good and stable relationship with a new partner, and with her family.  They have bought a house.

28. The Tribunal’s task is to decide, on the balance of probabilities, whether FBRB is of good character now.  The manual contains an exhortation that decision-makers should assess character in a holistic manner, taking into account the aggregate of the behaviour of a person.  The Tribunal adopts this approach and takes into account the Court’s remarks in Godley, that an ‘objective examination at a later stage of life’ of a person of ill-repute because of extensive past criminal conduct may support a finding of contemporary good character.  FBRB’s objective conduct in Australian society over the last decade is such that the Tribunal is satisfied that there is no lack of enduring moral quality, there are objective and tested signs of reform and there is no continuing turpitude that would support a finding that FBRB is not of good character

29. The Tribunal concludes that FBRB understands the duties of an Australian citizen to uphold and obey the laws of this country (Preamble of the Act, (d)).  Perhaps, because of his experiences, he understands the consequences of not adhering to those obligations better than many others.  The Tribunal is satisfied that the Australian community, which as a whole supports the structures available in our society for rehabilitation, and gives credit for individuals who have conquered significant personal challenges such as substance addiction, would adopt the view that FBRB is now of good character.  That is the finding of this Tribunal.

    DECISION

30. The Tribunal sets aside the decision under review and remits the application to the Respondent with the direction that the Applicant satisfies section 21(2)(h) of the Australian Citizenship Act 2007 at the time of its decision.

68.     I certify that the preceding 67 (sixty - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..........................[sgd]..........................................

Associate

Dated: 4 October 2018

Date of hearing:	22 August 2018
Counsel for the Applicant:	Mr Min Guo
Solicitors for the Applicant:	AJH Lawyers
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore