Gavi and Minister for Home Affairs (Citizenship) - [2020] AATA 1492

Gavi and Minister for Home Affairs (Citizenship) [2020] AATA 1492 (19 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/4965
Re:Edson Gavi
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:19 May 2020
Place:Perth

The decision of the delegate of the Respondent made on 12 August 2019 to refuse the grant of Australian citizenship by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) on the basis that the delegate was not satisfied that the Applicant was of good character for the purposes of s 21(2)(h) of the Act is affirmed.
................................[sgd]...................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – good character – enduring moral qualities – unlawful and indecent assault – breach of protective bail – false or misleading declaration – character references – claimed cultural differences – complete disclosure of convictions to Department – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21, 21(2)(h), 24, 24(1), 24(1A), 52(1)(b)
CASES
Fawaz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 889
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Deputy President Boyle
19 May 2020
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent made on
12 August 2019 to refuse the grant of Australian citizenship by conferral, pursuant to
s 24 of the Australian Citizenship Act 2007 (Cth) (Act). The delegate was not satisfied that the applicant was of good character for the purposes of s 21(2)(h) of the Act.
Section 52(1)(b) of the Act provides for the Administrative Appeal Tribunal (Tribunal) to review a decision under s 24 of the Act to refuse to approve a person becoming a citizen.
BACKGROUND
The Applicant is a citizen of Zimbabwe. He first arrived in Australia on 3 October 2012.[1] The Applicant currently holds an Employer Nomination Scheme (subclass 186) visa.[2]
[1] T17/104.
[2] T17/104.
On 2 May 2017 the Applicant lodged with the Department an application for citizenship by conferral pursuant to s 21 of the Act.[3] In that application, in response to the question ‘has the applicant 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 answered ‘Yes – Indecent Assault’.[4]
[3] T4/14.
[4] T4/32.
On 31 August 2016 the Applicant was convicted of five counts of breach of protective bail conditions for which he was fined $2,000 for each offence (global) as well as one count of unlawful and indecent assault for which he was fined $4,000 payable to the victim and three months imprisonment (cumulative) until the fine was paid.[5]
[5] T11/71.
On 25 June 2018 the Applicant was invited[6] to comment on the failure in his citizenship application to disclose offences recorded in the Crimtrac report which included the five convictions for breach of protective bail conditions.[7]
[6] T12/73-79.
[7] T11/71.
On 12 July 2018 the Applicant responded to that invitation. His stated reason for not disclosing the five convictions for breach of protective bail conditions was that he ‘…thought the system can pick it up and disclose everything when I stated it as you have done’.[8] The Applicant accepted that he breached the bail conditions, but claimed that he did so ‘without knowing’ and that he had contacted the victim as it was taking a long time for the case to be heard in Court and it was affecting him financially. The Applicant further claimed that the unlawful and indecent assault offence occurred because of ‘cultural differences’.[9]
[8] T13/86.
[9] T13/86
On 12 August 2019 the delegate refused the application for citizenship on the basis that the Applicant did not satisfy the good character requirements in s 21(2)(h) of the Act.[10]
[10] T17/104-110.
On 15 August 2019 the Applicant applied to the Tribunal for review of the delegate’s decision.[11]
[11] T2/3
THE ISSUE
The issue to be determined by the Tribunal in this review is whether the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
LEGISLATIVE FRAMEWORK
The Preamble to the Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Subsection 21(2)(h) provides that a person is eligible to become a citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister's decision on the application’.
Section 24(1) of the Act provides:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Act provides:
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Accordingly, under s 24(1A), the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister's decision on the application’, that being the requirement of

s 21(2)(h) (see [12] above).
THE HEARING
This application initially came on for hearing on 6 March 2020. On that date the Applicant, represented by Mr D Boghal, sought an adjournment of the hearing on the basis that the Applicant had only recently instructed Mr Boghal to represent him. The Respondent, represented by Ms D Jones-Bolla, opposed the adjournment. The adjournment was granted.
The adjourned application was heard on 30 April 2020. The Applicant was represented by Mr D Boghal and the Respondent was again represented by Ms D Jones-Bolla.
The following documents were admitted into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions (Exhibit A1);
(b)Statutory declaration of Edson Gavi, declared 19 December 2019(Exhibit A2);
(c)Statutory declaration of Edson Gavi, declared 9 July 2018 (Exhibit A3);
(d)Statutory declaration of Applicant’s daughter, affirmed 5 March 2020 (Exhibit A4);
(e)Statutory declaration of Ms D Gavi, sworn 19 December 2019 (Exhibit A5);
(f)Statutory declaration of Justen Ziyebangwa, declared 9 July 2018 (Exhibit A6);
(g)Relationship Australia letter, dated 12 December 2019 (Exhibit A7);
(h)KSJV letter headed ‘Change of Assignment’, dated 7 January 2018 (Exhibit A8);
(i)Edson Gavi’s business card, front and back (Exhibit A9);
(j)Document received on 19 December 2019 relating to reviews of services provided by the Applicant (Exhibit A10);
(k)Respondent’s Statement of Facts, Issues and Contentions (Exhibit R1);
(l)Revised Citizenship Procedural Instruction, CPI 15, Assessing Good Character Under The Citizenship Act (Exhibit R2); and
(m)Respondent’s T Documents and Supplementary T Documents (Exhibit R3).
The Applicant gave evidence and was cross-examined. The following witnesses also gave evidence:
·Mrs D Gavi, the Applicant’s wife;
·Ms T N S Gavi, the Applicant’s daughter
·Mr Christopher Chingombe
CONSIDERATION
Citizenship Policy and Citizenship Procedural Instructions
The term “good character” is not defined in the Act, but it is addressed in some detail in the Citizenship Policy (the Policy). The Policy provides guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, will generally apply policy such as that contained the Policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[12] at 640 per Brennan J). In the present case there is no cogent reason why the Tribunal would not apply policy as contained the Policy.
[12] (1979) 2 ALD 634.
The overview of Chapter 11 of the Policy[13] states that ‘the purpose of the chapter is to provide guidance on the administration of the “good character” provisions under the Act and to define, for administrative purposes, the meaning of “good character”’.
[13] R1, T20/141.
The Policy, under the heading ‘What is good character?’ states:[14]
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia…should they be approved to be a citizen.
[14] R1, T20/142.
The Policy goes on to note[15] that the term ‘good character’ is not defined in the Act but that the Federal Court and the Tribunal have used the ordinary meaning of the words and made references to dictionary meanings and notes that:
Most cases have adopted have adopted the following definition from the Full Court FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432)
[15] R1, T20/142.
The passage from Irving v Minister for Immigration, Local Government and Ethnic Affairs[16] (Irving) cited is as follows:
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character: see Re Davis (1947) 75 CLR 409 at 416 per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character
[16] (1996) 68 FCR 422.
The Policy then states that:[17]
[17] R1, T20/142-3.
In this context ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
ocharacteristics which have been demonstrated over a very long period of time
odistinguishing right from wrong
obehaving in an ethical manner, conforming to the rules and values of Australian society
The good character requirement looks at the essence of the applicant.

Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting qualities that are evident before their visa application and throughout their migration and citizenship process.
The Policy relevantly provides that an applicant of ‘good character’ would:[18]
orespect and abide by the law in Australia...
obe honest...
obe truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
· providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.
· …
[18] R1, T20/144.
The Policy, under the heading ‘Weighing up the character decision’ states:[19]
[19] R1, T20/146.
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of

‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble [to the Citizenship Act], and the pledge to be made if citizenship is approved, decision makers are asking themselves:
owould a person of good character have behaved the way the applicant did
owhat is there to demonstrate that the applicant has upheld and obeyed the law
ohas the applicant behaved in accordance with Australia’s community standards
odoes the applicant share Australia’s democratic beliefs and respects its rights and liberties.
The Revised Citizenship Procedural Instructions (CPIs)[20] relevantly note that, as a general proposition, a person who is of good character would ‘not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct’.[21]
[20] R2.
[21] CPI 15, 4.4.
The material included in the G documents[22] included a number of character references. As noted above, Mr Christopher Chingombe also gave oral evidence at the hearing as to the Applicant’s good character. In relation to references provided in support of an application for citizenship, the Policy provides that:[23]
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
[22] R1.
[23] R1, T20/152.
In relation to an applicant’s criminal record, Deputy President the Hon C R Wright QC in Kakar and Minister for Immigration and Multicultural Affairs[24] (Kakar) said at [14] that:
14.When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
[24] [2002] AATA 132.
The Tribunal notes that Deputy President the Hon C R Wright QC in Karkar also adopted at [13] the passage from Irving cited at [24] above. The learned Deputy President concluded that:
16.The applicant is not having his character assessed as a potential criminal deportee in which case other factors would need to be considered. The simple question is whether he is of such character that he should be accorded the privilege of Australian citizenship.
17.In my opinion the cloud cast over his character by the beating he administered to his niece still lingers, despite the many positive steps he has taken towards redemption. In my view sufficient time has not yet passed to enable me to be satisfied that the applicant is now a person of good character.
A useful summary of the law as it presently stands is set out in Member W Frost’s decision in Fawaz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[25] (delivered 20 April 2020) (Fawaz) at [59]-[70].
[25] [2020] AATA 889.
The evidence
The Respondent in his statement of facts, issues and contentions (Respondent’s SFIC) points to the following evidence and behaviour which does not support a finding that the Applicant is of good character:
21.First, the applicant’s offending was extremely serious and repeated and a person of good character would not have behaved the way the applicant did.
22.The records produced under summons from the Western Australia Police as well as the Armadale Magistrates Court (ST1 and ST2) reveal that:
a. On 2 September 2014, police were called to the applicant’s home in relation to a physical altercation between him and his wife in which he was accused of slapping his wife and bitting her shoulder.
b. On 17 October 2015, the applicant committed the offence unlawful & indecent assault. On that date, the applicant, an Uber driver, had collected the victim from her house and took her to the airport. During the trip they struck up a conversation about relationships. The applicant then rubbed his hand under the victim’s dress up her thigh, the victim struck away his hand. The applicant then grabbed her hand and held it tightly, placed it in his lap on his crotch/penis for about five seconds until the victim pulled her hand away. On her return to Perth the victim reported the matter to police. The applicant obtained the victim’s telephone number as she lost her phone in the vehicle prior the incident and used the applicant’s phone to call her own.
c. On 27 November 2015, the applicant appeared before the Armadale Magistrates Court in relation to the unlawful & indecent assault offence and bail was granted on the basis that he “not contact or attempt to contact [the victim] by whatever means”. On 22 January 2016, the applicant appeared before the Armadale Magistrates Court and bail was renewed.
d. On 28 February 2016, the applicant breached the protective bail condition by contacting the victim by telephone. The victim did not answer.
e. On 2 March 2016, the applicant breached the protective bail condition by contacting the victim by telephone. The applicant had a 17 minute conversation with the victim wherein the applicant asked for forgiveness.
f.   On 6 April 2016, the applicant breached the protective bail condition by contacting the victim by telephone. The victim did not answer.
g. On 7 April 2016, the applicant breached the protective bail condition by contacting the victim by telephone. The victim did not answer.
h. On 8 April 2016, the applicant breached the protective bail condition by contacting the victim by telephone three times over a two minute period. The victim did not answer.
i.   On 12 May 2016, the applicant appeared in the Armadale Magistrates Court in relation to the breach of protective bail conditions offences. He appeared again on 17 May 2016, and on 17 June 2016, guilty pleas were entered.
j.   On 17 June 2016, leave was granted, in relation to the unlawful & indecent assault offence, for the victim to give evidence by video link. On 25 August 2016, there was a further appearance in the Armadale Magistrates Court and decision was reserved. On 31 August 2018, the applicant was convicted of the offence unlawful & indecent assault.
k. In June 2017, the applicant’s daughter made allegations to police that the applicant had punched her and hit her with his belt. The applicant advised police that “he had hit his daughter with a belt as he believed it to be an acceptable form of punishment”.
23.The Minister’s contends that the applicant has demonstrated limited remorse for his offending, the applicant instead:
a. maintains that he did not physically attack the victim but rather, was simply not aware that “commenting on someone’s dress code or sex is an assault” (T2/11).
b. Seeks to downplay the seriousness of the offences by suggesting he was unaware that he was prohibited from contacting the victim.
c. Seeks to justify his behaviour by suggesting he contacted the victim as the Court proceedings were prolonged and affecting him financially.
24.Second, whilst the applicant suggests that his offences were a result of “cultural differences” and that he has “since learnt to appreciate other cultures” the Tribunal cannot be satisfied that he is now rehabilitated as there is insufficient independent evidence supporting such an assertion.
25.Third, the applicant failed to disclose his full criminal history in the application and then told the Department that he had assumed that the further offences would be picked up (T13/86). In that answer, the applicant merely reveals s propensity to blame others for matters that were his responsibility. The citizenship application form warned the applicant that it was an offence under s 50 of the Act to deliberately make a false or misleading statement, or conceal circumstances in relation to an application, and, having read that, the applicant then declared that the information he had supplied in this form was “complete, truthful and correct in every detail” (T4/41).
26.Truthfulness in the completion of government documents, such as applications for citizenship, “is an absolute requirement” and it is the responsibility of a citizenship applicant to ensure that information submitted by them or on their behalf is truthful.1 The applicant’s failure to fulfil this responsibility weighs heavily against a finding that he is presently of good character.
27.To similar effect are the comments of Puplick SM in Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 (Nguyen) at [82]-[83]:
“Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
Citizenship cannot be awarded on the basis of false statements.
There are no excuses for making false statements in this regard.”
(emphasis added).
28.Fourth, limited weight should be given to the limited and brief character references submitted by the applicant (T13/82; T13/86; T13/89; the statutory declaration from the applicant’s wife dated 19 December 2019; and the numerous internet reviews provided by clients of the applicant’s electrical business).
Altercation with wife on 2 September 2014

The Applicant in his statement of facts, issues and contentions (Applicant’s SFIC) responds to each of the incidents and convictions identified by the Respondent. In relation to the 2 September 2014 incident involving an altercation between the Applicant and his wife, the Applicant says that he was ‘working away at that time’ and that

‘[t]here were ongoing family issues between him and his wife relating to their daughter’.

He admits that his behaviour was unacceptable and that he ‘could not handle the stress and pressure and reacted in such a way’.
He says that since then he and his wife have undertaken counselling and that ‘[t]here is a healthier relationship between him and his wife now’.
The only one of the Applicant’s statements that addresses this incident in 2014 in any detail is that of 19 December 2019.[26] In that statement the Applicant goes into some detail about the issues that he and his wife were having with their daughter’s behaviour at that time. He then makes the statement (quoted verbatim):
My wife was looking forward to me to beat her [his daughter] as she was continuing to misbehave. we had an argument that ended up police coming to our house and I was asked to look for somewhere to sleep that night up to 2 pm the following day. My name was taken because they said in case I don’t comply or something happens. no statement was recorded.
[26] A2.
The Police Detected Incident Report[27] asserted that at about 11 pm on 2 September 2014 there had been an altercation at the Applicant and his wife’s residence and that:
…the incident escalated and a physical altercation has taken place, whereupon it is alleged that the [Applicant] has slapped the victim to the face…and then alleged to have bitten the victim on the shoulder.
[27] R1, ST2/197.
When cross-examined about that incident at the hearing, the Applicant admitted that he had hit and bitten his wife.[28]
[28] Transcript at 26.
The Applicant’s wife’s statement[29] does not refer to the incident. She was asked about the incident at the hearing. Her evidence as to the circumstances that led up to the assault was:[30]
I remember we had just gone to bed and my daughter was still very small.

So we had come from church so we just immediately went to bed because we were tired. But Edson say that you need to brush the child’s teeth and I said that you haven’t gone to sleep, I’m tired, you can do that. And he said, no you have to do it because you have to teach her how to clean her teeth. And that’s where the altercation ensued from.
[29] A5.
[30] Transcript at 35.
Her evidence was that following that incident she and the Applicant sought counselling from church elders and that her relationship with the Applicant was now healthier and that he knew when to seek help.[31]
[31] Transcript at 36.
Unlawful and indecent assault committed on 17 October 2015
In relation to the conviction for unlawful and indecent assault committed on

17 October 2015, the Applicant at paragraph 19(b) of his SFIC describes the circumstances of the offence as follows:
The Applicant was driving Uber at the time. The Applicant submits that the incident happened after his interaction with the victim. They had a chat and discussed each other's affairs. The Applicant dropped the victim at the airport and agreed to pick her back from the airport in 3 weeks. The victim never reported the incident at the airport or at her arrival destination. The victim reported the incident to the Western Australian Police on 11 November 2015 exactly after the [sic] 24 days after it happened. The Applicant submits that he should never have physically touched the victim and is regretful for his actions. The Applicant has been punished for his actions and now understands and have [sic] utmost respect towards women.
The Applicant has provided several statements relating to the circumstances which resulted in his conviction for unlawful and indecent assault. In support of his application for citizenship the Applicant provided a statement by way of a statutory declaration declared

9 July 2018.[32] In that statement the Applicant asserted, amongst other things, that:
On the case of assault charge the incident occurred because of cultural difference and I have since learnt to appreciate other cultures.
[32] R1, T13/86-88.
The delegate of the Minister considering the application for citizenship wrote to the Applicant seeking more detail of this and the other convictions. The questions posed by the delegate and the Applicant’s answers are set out in the Applicant’s email dated

14 August 2019 as follows:[33]
You address the assault charge as "the incident occurred because of cultural deference and I have since learnt to appreciate other cultures, I have shown good character and behaviour to both my family, friends and workmates. Since the day of the incident almost 3 years now"
I acknowledge roughly four years have passed since your convictions. Three years since the court sentence. I am however not satisfied that assault is to be attributed to culture as opposed to a person's owns actions. The severity of the fines imposed with a potential of imprisonment should a fine to the victim not be paid leads me to believe the court placed significantly more weight upon your actions over the character references you provided. Within your response, you have not addressed how these convictions occurred and what if anything you have done to prevent a repeat in behaviour.
In response to your above statement, when I said cultural difference I was referring that in some cultures you can make certain comments without the other person taking offence and I did not physically attack the Complainant. I have also attached the case record for your consideration. What I meant was that I was not aware that commenting about someone's dress code or sex is an assault. As I was shown that this was wrong and penalized for this I since learnt a big lesson about respecting other people rights.
(Emphasis in original.)
[33] R1, T18/112-3.
In his statement of 19 December 2019 the Applicant described the circumstances of this offence as follows:[34]
[34] A2.
I picked [the victim] at her place in Thornlie to T3 airport she was out of employment that time and on our way the airport we started to discuss about affairs and she told me that she was single and searching, although I asked her about the guy who was at the house when I picked her she told me he was a friend. We exchanged numbers and she was coming hack to Perth after 3 weeks and I was supposed to collect her at the airport. We hugged and I saw her off.

We continued texting and since she had my number in her phone, she told me that she got a Facebook notification and saw that I was married with kids. So, I was driving Uber after hours from that time until 10/11/15 my Uber account was closed, and l was told to clear my name with the police 1st. So, l went to the police and

I was told of the assault, l asked the police why she didn't report the case the very same day as there are police personnel at the airport or reported the case when she arrived at her destination as it is the same law. The case happened on 17/10/15 and was reported on 11/11/15. I also asked the police to provide me with her returning airline ticket as when I was chatting with her she was telling me a different date of returning which was early than the day the case was reported.

The police told me that the dress that she was wearing on the day of the incident was going to be presented to the court and was not washed to prove the fingerprints I agreed but when I asked for it nothing was presented. These were some of the reasons I didn't hire a lawyer at first because I had evidence of phone calls and text. When I was called to police on breach of bail the officer advised me to organise a lawyer as the case that l was now facing was more serious than the 1st one
The Applicant was cross-examined on the incident that resulted in his conviction for unlawful and indecent assault. The following exchanges occurred:[35]
[35] Transcript at 19-20.
COUNSEL:You said in your evidence today that ‘where you come from, making a suggestion is not a crime’, but you didn’t just make a suggestion, did you?
APPLICANT: Right. I didn’t say to him I made the suggestion. That lady, when to drop off, she gave me a hug, all right? And then when I help her, I then tried sort of to put my head against, like it sort of our heads collided as if we wanted to kiss.
…
COUNSEL: The contact, the physical contact, with the victim wasn’t just limited to that, was it? During the ride, you also rubbed your hand under the victim’s dress and up her thigh, didn’t you?
APPLICANT: No, no, no, no, no, no, no. The victim, when she was feeling my hair, just because she asked me to feel my hair, and I let her do that. Who was contacting the other person?
COUNSEL:Well, you accept you touched her without consent, don’t you?
APPLICANT: Myself, I consented. I consented when she was touching me.
COUNSEL:No. No, my question is: you touched her - the victim - without her consent, didn’t you?
APPLICANT: No! Unless if she’s saying when she gave a goodbye hug it was a – she not against it. If she saying she was against it, yes, I can say yes I touched her without her consent.
Counsel then took the Applicant to the Western Australian Police Statement of Material Facts:[36]
[36] R1, ST2/170.
COUINSEL:…that is a summary of the unlawful and indecent assault charge. What that says there is - at the fifth line down - that the accused – that’s yourself –
…has rubbed his hand under the victim’s dress, up her thigh, and the victim has struck away his hand.
COUNSEL:Mr Gavi, assault is defined as touching a person without consent, and you were found guilty of unlawful indecent assault, weren’t you?
APPLICANT: That didn’t happen. That didn’t happen. That’s why I said I didn’t present myself in the court of law just because I had another case to answer. I had all the evidence of all the texts that we were sending - the victim - and if she found out that, how do I explain it? And the exchange (indistinct) So I didn’t even present all those in the court. That’s why I didn’t even want the lawyer at first. I was representing myself, that’s what I knew that I was going to but to win my case, because I had all the evidence. I only engaged the lawyer when

I had that breach of bail, when I was told by the guys at the court that this is a serious offence of breaching and it was a (indistinct) I think about 15 or 10 counts of breaching bail conditions.[37]
[37] Transcript at 20-21.
The Tribunal also referred the Applicant to the part of the Statement of Material Facts which said:
The accused has then grabbed her hand and held it tightly and placed it in his lap on his crotch/penis for about five seconds. The victim has pulled her hand away.
The Applicant denied that that had happened. The Applicant claimed that he had only touched the complainant twice, once by accident when they were looking for her phone which she had dropped in his car, and then when they hugged when she got out of the car at the airport. The following exchange took place:[38]
[38] Transcript at 21-22.
COUNSEL:So, Mr Gavi, what you’re telling this tribunal is the only two times you physically came in contact with the victim was when you hugged her? Is that what you’re telling this tribunal?
APPLICANT: Yes. In the car, at first, when she found the phone and the second time when she was leaving.
COUNSEL:Despite the fact that you have been found guilty of unlawful indecent assault, you’re telling this tribunal the only time you touched the victim was when you hugged her?
APPLICANT: Yes.
COUNSEL:So you did not – what you’re telling this tribunal - is that you did not try to push your hand up her leg and touch her under her dress?
APPLICANT: No, no, no, no. That, that, that, that’s lie, that’s lie.
COUNSEL:And you grabbed her hand and held it against your crotch as well, didn’t you?
APPLICANT: No.
COUNSEL:And she repeatedly told you to stop, didn’t she?
APPLICANT: No.
Counsel then took the Applicant to the complainant’s statement[39] which asserted that the Applicant had put his hands on the complainant’s leg and tried to push his hand further up her leg and up her dress, that she had told him to stop and that he had then taken hold of her hand and placed it on his crotch. According to the complainant’s statement,
[39] R1, ST2/184-190.

the Applicant also tried to kiss her, that when he did that she put her head down and that is when their heads butted. These allegations are also included in the Police Statement of Material Facts.[40] The Tribunal asked the Applicant whether the Statement of Material Facts had been read to the court at the time of his entering his plea of guilty in
[40] R1, ST2/170.

August 2016. The evidence was as follows:[41]
[41] Transcript at 25.
TRIBUNAL:Okay. Now, when you pleaded – you changed your plea to ‘guilty’ – did the prosecutor read out the material facts to the magistrate or to the court?
APPLICANT: Yes, they did.
TRIBUNAL:And were the material facts as set out on page 170? If you go now to page 170[42] Ms Jones-Bolla has taken you to that?
APPLICANT: Yes.
TRIBUNAL:Is that the Statement of Facts that was read to the court when you pleaded ‘guilty’ on 31 August 2016?
APPLICANT: Yes.
TRIBUNAL:And did you, in response - or were you legally represented at that hearing?
APPLICANT: For this one, yes.
TRIBUNAL:And did you or your lawyer at that time dispute the facts as read to the court?
APPLICANT: Yes.
TRIBUNAL:So, did your lawyer say, ‘Well, those facts are disputed.’?
APPLICANT: Yes.
[42] This is a reference to R1, ST2/170.
Unfortunately the transcript of the proceedings before the Armadale Magistrates Court was not before the Tribunal. The Applicant’s evidence proceeded:[43]
[43] Transcript at 25.
TRIBUNAL:Are you saying your lawyer’s advice was to plead ‘guilty’?
APPLICANT: Yes.
TRIBUNAL:Well, the story that you’re telling this tribunal in answer to Ms Jones-Bolla’s questions, would mean that you weren’t guilty. If it was consensual and you deny putting your hand up her dress?
APPLICANT: If I didn’t breach the bail condition, there was no way that I was going to plead ‘guilty’ that’s because I entered evidence. I was going to show the court the evidence. I was going to ask the court to bring the dress for forensic, like fingerprint, and I was going to show them the (indistinct) where I would check that the text that we texted, the day that she was coming I was supposed to pick her up, the time that was supposed to pick her up. All those things.
TRIBUNAL:So why, then, did you plead ‘guilty’?

APPLICANT: It was the instruction from my lawyer that I should (indistinct) and then the court should show lenience on me on the breach of bail condition.
There are a number of aspects of the Applicant’s evidence which cause this Tribunal not to accept his version of the events which gave rise to his conviction for unlawful and indecent assault. There are significant discrepancies between the various versions that he has given in his several statements and in his evidence at the hearing. His earlier statements, those being the statutory declaration made in July 2018 (see [42] above) and his email of 14 August 2019, supposedly providing more information about the circumstances of the offending (see [43] above), both fail to mention any physical contact with the complainant. Both are materially misleading or, at best, obfuscatory. The first referred only to ‘cultural differences’ and the second, supposedly explaining that terminology, attempted to explain the unlawful and indecent assault as the victim taking offence to comments made by the Applicant: that ‘commenting about someone’s dress code or sex is an assault’.
The Applicant, both in his written statements and in his evidence at the hearing, attempted to discredit the complainant’s version of the events by asserting that the complainant delayed in reporting the incident to the police. That was not the case. As the Respondent’s counsel correctly pointed out:[44]
COUNSEL:… the applicant has also made submissions that the victim did not report the incident straightaway and that there was some time lapse between the incident and the reporting of the incident, it’s unclear what the applicant is attempting to gain by that submission. But in any event, that is just not true on the contemporaneous records before this tribunal. The statement by the victim at page 189 of the supplement T documents, outlines that at paragraph 69 of that statement it outlines that on the Thursday 22 October 2015, she attended the Frankston Police Station, which is a couple of days after the incident occurred on 17 October 2015.
She goes on to state that she spoke to a police officer there and was advised that she needed to make a report in Western Australia, which she then proceeded to do when she returned to WA.
[44] Transcript at 46.
The Respondent’s counsel’s above summary is confirmed by the documentary evidence contained in the T documents R1.
The Applicant’s evidence on this offence was, in the Tribunal’s view, inconsistent, evasive and wholly unpersuasive. Certain aspects of the Applicant’s evidence were obvious nonsense. The most glaring example of this was his initial denial of any contact with the victim and her taking offence at comments made by him which then changed to two possible incidents of contact, one accidental when they were looking for her telephone and the other consensual when they hugged, neither of which would sustain a charge of any type of assault let alone a charge of unlawful and indecent assault. He was charged and pleaded guilty to the serious offence of unlawful and indecent assault.
Further, and in any event, irrespective of what the Applicant now claims, he has been convicted of unlawful and indecent assault. Even if the Tribunal accepted (which it does not) that the Applicant did not touch the victim other than accidentally or with her consent, the Tribunal cannot go behind or impugn the conviction. A useful summary of the law on this point is contained in the recent decision of Justice Murphy in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[45] handed down on 28 April 2020 at [55]-[57]. This Tribunal adopts his Honour’s reasoning. The Applicant has been convicted of unlawful and indecent assault and, even if it were minded to do so, which it is not, the Tribunal cannot accept any version of the events which gave rise to that conviction which is inconsistent with the offence having been committed.
[45] [2020] FCA 556.
Five convictions for breach of protective bail committed February to April 2016
In relation to the breaches of protective bail conditions the Applicant in his SFIC says:
The Applicant was convicted for breaching 4 bail conditions between 2 March 2016 to 8 March 2016. The Applicant submits that he was not fully aware of the consequences of breaching a bail condition. The case was taking a long time.

The only reason he contacted the victim was to make an apology for his actions.
The first thing to note is that the Applicant has in fact been convicted of five breaches of protective bail, not four, and that the offences occurred on five separate occasions between February 2016 and April 2016, not in March 2016. As with the conviction for unlawful and indecent assault, the Applicant has provided a number of versions of the circumstances giving rise to these convictions. None is convincing.
In his statutory declaration made 9 July 2018,[46] the Applicant asserts that (errors included):
I breached the bail conditions without knowing on 31/08/2016 after I contacted the victim because our case was taking a long time to be heard to the court. This was because the victim was working outside perth and I was working up north as a FIFO worker. The incident happened on 17/10/2015. Every time the court date was set I would attend alone and this was affecting me financially as I was paying for the air fares instead of the company...
[46] R1, T13/86.

As similar story was given by the Applicant to the delegate in his email of

14 August 2019:[47]
I am satisfied that the above convictions represent a pattern of behaviour.
These six convictions remain as global offences as opposed to spent convictions. A global convictions becomes a spent conviction after a waiting period. The waiting period is intended to demonstrate that an individual has been of 'good behaviour' since being convicted.
In response to your statement above, I stated in my statutory declaration that I breached the bail condition by phoning the accused person. The case took a year without being head because the Complaint was said to be difficult to contact or sometimes they would say they had managed to contact her and the case could be heard via video call as the Complaint would be working then it could not go ahead. What happened is that after spending a year without the case being heard as I was the only one attending the court as the complaint was not attending. I then tried to contact the Complaint on the phone and it was on voicemail. The police took my phone and requested my call history from Telstra. It had recorded that I had contacted the Complaint 5 times and out of the 5 times I spoke to the person once so I was charged for this one time.
[47] R1, T18/112.
The Applicant’s version(s) of the events which gave rise to his being convicted of five counts of breaching protective bail conditions is patently false. Totally contrary to what the Applicant says, he contacted or attempted to contact the victim within a couple of months of the protective bail conditions being imposed. Those conditions were first imposed at the time of his appearance in the Armadale Magistrate’s Court on 27 November 2015.[48]

The terms of that protective bail were that the Applicant was:
Not to contact or attempt to contact [the victim] by whatever means.
[48] R1, ST1/157.
Protective bail, on those same terms, was renewed on three subsequent appearances in the Armadale Magistrates Court, including on 22 January 2016. The Applicant attended on each occasion. Contrary to the Applicant’s repeated claims that he had only contacted the victim because the case had ‘took a year’ (see [59] above), the Applicant in fact first attempted to contact the victim on 28 February 2016, that is just over eight weeks after the protective bail terms were imposed on 27 November 2015 and about five weeks after they were renewed on 22 January 2016. He attempted to contact or contacted the victim a further four or five times. The Police Statement of Material Facts[49] particularises the Applicant as having contacted or attempted to contact the victim on six occasions, however, it appears that the Applicant was not charged, or the charge was dropped, in relation to the allegation that he contacted the victim on 12 April 2016.
[49] R1, ST2/167.
The Applicant was cross-examined on these convictions and his stated reasons for breaching bail:[50]
[50] Transcript at 28-29.
COUNSEL: Mr Gavi, on that date, bail was granted with a condition that you are not to contact the victim by whatever means. Is that correct?
APPLICANT: Yes.
COUNSEL:And you attended the court again on 22 January 2016?
APPLICANT: Yes.
COUNSEL:And again bail was granted with the condition that you are not to contact the victim by whatever means?
APPLICANT: Yes.
COUNSEL:And you were present in court on both occasions weren’t you?
APPLICANT: Yes, I was present.
COUNSEL:Yes. You claim in your statutory declaration, dated 9 July 2018, that you breached the bail conditions without knowing. That’s not correct is it, Mr Gavi? You were aware of the bail conditions, weren’t you?
APPLICANT: You see sometimes, yes I was aware, I just wanted them to do something. On that day I went to fetch…
COUNSEL:No, Mr Gavi, that really wasn’t..
APPLICANT: Pardon?
TRIBUNAL:If you’d just answer the question, Mr Gavi?
APPLICANT: Yes. I said yes.
COUNSEL:I’ll just move to my next question. Thank you. You breached the bail condition multiple times, didn’t you?
APPLICANT: Yes.
COUNSEL:And on 22 February 2016 you contacted the victim by phone, didn’t you?
APPLICANT: Yes.
COUNSEL:On 2 March 2016, you again contacted the victim and you spoke to her for 17 minutes?
APPLICANT: Yes.
COUNSEL:In April 2016, you contacted the victim six times, didn’t you?
APPLICANT: I only spoke to
…
COUNSEL:I’m going to repeat my question, Mr Gavi In April 2016, you contacted the victim six times, didn’t you?
APPLICANT: Yes, but they were not answered. Just got from the dates of my knowledge, I only spoke to the victim once. That’s because they out.
…
COUNSEL:Mr Gavi. You say in your statement that the case took a year, which is why you contacted her. But the first time you contacted the victim was within three months of the first court date, wasn’t it?
APPLICANT: I don’t think so. I don’t think so. Just because the (indistinct) only answer.
COUNSEL:Well, I’ll take you through that timeline again, Mr Gavi. Your first court date was on 27 November 2015?
APPLICANT: Yes
COUNSEL:You’ve just told the tribunal that that was your first court date?
APPLICANT: Yes.
COUNSEL:You’ve also just told the tribunal that your first contact with the victim was on 28 February 2016, when you phoned her?
APPLICANT: Yes.
COUNSEL:So you first contact with the victim was within three months of that first court date, wasn’t it?
APPLICANT: But I didn’t talk to her. I only rang.
Unfortunately, the above was fairly typical of the evidence given by the Applicant. He was repeatedly evasive, failed to answer the question posed and was less than frank in the answers that he provided. On many issues the Applicant seemed incapable of giving a straight answer to a simple question.
The Applicant was also asked questions by the Tribunal about these convictions as follows:[51]
[51] Transcript at 33-34.
TRIBUNAL:In the second paragraph of that document, which talks about the six convictions for breaches of bail?
APPLICANT: Yes.
TRIBUNAL:You say in response to your statement above:
I stated in my Statutory Declaration that I breached the bail conditions by phoning the accused person. The case took a year without being heard because the complaint was said to be difficult to contact. Sometimes they would say they had managed to contact her and the case could be heard by video
APPLICNAT: Yes
TRIBUNAL:Now, Ms Jones-Bolla took you to a similar statement. You’re trying to suggest there, aren’t you, that the reason you contacted her was the case at the time you contacted her – had taken a year and hadn’t yet come to a hearing. That’s what you’re trying to suggest in that paragraph, isn’t it?
APPLICANT: Yes.
TRIBUNAL:That’s false, isn’t it?
APPLICANT: Right. It’s not false just because it’s from November and the case was at the – when the day went to court to…
TRIBUNAL:No, Mr Gavi, you started to comment as Ms Jones-Bolla pointed out – your first breach was within three months of your initial appearance at which the bail conditions were set. That was November 2015. You started to call the complainant – or the victim – within three months of your first appearance. So it’s just not true to say the reason you rang her was because the case had taken a year, is it?
APPLICANT: Right, I think you are right then.
TRIBUNAL:So that’s just false, isn’t it?
APPLICANT: Yes.
June 2017 assault on daughter
The Applicant in his SFIC says of this incident:
The incident in June 2017 was a domestic issue between the Applicant and his daughter. The Applicant is genuinely remorseful for his altercation with his daughter. The Applicant's daughter has provided a Statutory declaration stating that the incident was a mistake. The Applicant has moved his daughters to a private school. The Applicant's daughter has a better relationship with him.
It is the case that the Applicant’s daughter has provided a statement which says that the:[52]
1. The domestic issue that happened with my father …in 2017 was a mistake.
2. I’m now in a better situation at home because I now have a better relationship with both my parents now and I’m happy at home.
[52] A4.
She then talks about her and her sister now being at a Christian school and that there are now better influences in their lives.
The Applicant’s daughter also gave evidence at the hearing. She was able to give some background to the incident. Her evidence was that she had a mobile phone which caused the Applicant to punish her, but that her relationship with her father was now better.[53]
[53] Transcript at 40.
She was cross-examined on the incident as follows:
COUNSEL:You went to the police in June 2017 and made a statement, didn’t you?
WITNESS:Yes.
…
COUNSEL:You told the police that your dad punched you?
WITNESS:Yes
COUNSEL:And that he hit you with his belt?
WITNESS:Yes.
COUNSEL:And this was to your face, arms and body?
WITNESS:Yes.
COUNSEL:You had a golf ball size lump to your forearm with a cut?
WITNESS:Yes.
COUNSEL:You had grazes to your right arm?
WITNESS:Yes.
COUNSEL:And you had injuries to your upper body?
WITNESS:Yes.
COUNSEL:After the beating you’ve told the tribunal that you spent time away you’re your family in a friend’s house and that was for five months, is that correct?
WITNESS:Yes.
COUNSEL:You did not return or you did not want to return home because you feared for your safety, is that correct?
WITNESS:Yes. But - - -
…
COUNSEL:I am just moving on to my next question, you were 14 years old at that time?
WITNESS:Yes.
COUNSEL:Have you been hit on any other occasion?
WINTESS:No.
The injuries that were put to the Applicant’s daughter in cross-examination were those described in her statement given to the police at the time of the incident.[54]
[54] R1, ST2/194.
The Applicant was cross-examined on this incident. He admitted that he had hit his daughter to discipline her.[55] He admitted that he had punched her and hit her with a belt. He said that he stopped hitting his daughter when he was told about Australian culture.
[55] Transcript at 26.
Irrespective of whether the Applicant and his daughter have a better relationship now, the fact is that relatively recently, within the last three years, he seriously assaulted his daughter causing her not insignificant injuries.
Failure to disclose convictions
The Applicant’s SFIC responds to the Respondent’s SFIC on this issue (see [33] above) as follows:
20.The Applicant lodged his citizenship application himself. He did not seek the assistance of a Migration Agent. Hence, the Applicant failed to declare his full criminal history in his application. He also was unable to provide an Australian Police Clearance, further proving that he did not have the required knowledge or expertise to self-lodge his application. The Applicant was under the impression that the Department will contact him for the missing information. The Applicant was truthful in completing his application as he did declare ‘Yes’ to the question if he has been convicted of any offences by stating ‘Indecent Assault’.
The assertion that the Applicant was truthful in answering the question in the application for citizenship is clearly unsustainable. On any reasonable reading of the question,[56] an applicant for citizenship is being asked to ‘Give details’ of all of his or her convictions.

To give the detail of one conviction only, particularly when, according to the Applicant’s evidence, he was told that the breach of protective bail charges were more serious than the unlawful and indecent assault charge[57] is patently false or, at best for the Applicant, incomplete. In that regard the citizenship application contains a declaration at the end[58] which, amongst other things, provides as follows:
Warning: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application. Read the following carefully before lodging:
The applicant declares that:
o…
oThe information they have supplied in this form is complete, truthful and correct in every detail
[56] R1, T4/32.
[57] Transcript at 14, 21, 25 and 31.
[58] R1, T4/40.
The Applicant was cross-examined on this at the hearing:[59]
[59] Transcript at 30-31.
COUNSEL:And as part of that application you made a declaration that the information you provided in the form was true and correct, didn’t you?
APPLICANT: Yes.
COUNSEL:But you failed to disclose your full criminal history, didn’t you?
APPLICNAT: I did. I did. I did, just because on that section, I answered yes thinking that I was going to get some (indistinct) clearly stated what happened. But from the information that I got from the person who had already applied, already seen here, and I just thought when you are doing this, like here in Australia, you don’t want the papers going to and fro, to and fro. You ask the person just to admit (indistinct) don’t worry. But here in Australia, the moment you present your driver’s licence, everything comes out. Like, for example…
…
COUNSEL:Mr Gavi, I’m going to read out the declaration that is at page 40 of the T documents?...
That declaration says:
The information that you have supplied in this form is complete, truthful and correct in every detail. As part of the declaration, you are also warned that it is an offence under section 50 of the Citizenship Act to deliberately make or cause to make a false or misleading statement or conceal circumstances in relation to an application.
…
COUNSEL:You only declared – sorry, Mr Gavi, I’m not finished. But you only declared on your form the indecent assault. You did not declare the breach of protective bail conditions, did you?
APPLICANT: That’s right. Maybe I missed it. I’m sorry for that one.
TRIBUNAL:Well, sorry, Mr Gavi, I thought your story was that you didn’t need to disclose it because the authorities would check in any event?
APPLICANT: Okay.
TRIBUANL:Well, which is your story? You’re telling an inconsistent story now. Did you deliberately not put it there because you thought that the authorities would check in any event, or did – as you just indicated a second ago – simply forget it, or overlook it? These are the convictions for breaches of bail which you’ve also given evidence today, you had been told by a lawyer are more serious than the indecent assault charge?
APPLICANT: Right. It’s in the file, I was going to ask today, I was going to say in December assault only and then I missed the breach of bail condition, only see it now that I was overlooking – I didn’t know that it was part of it, just because – I think I was ignorant on that one. For the breach of bail condition, I was ignorant of that one.
TRIBUNAL:When you say you were ignorant, you didn’t realise you’d been convicted?
APPLICANT: I sort of just miss it.
TRIBUNAL:Okay. That’s my question. Is your story that you overlooked it by accident, or is your story?
APPLICANT: Overlooked it by accident.
TRIBUNAL:Well, what was – you’ve been telling us for some time now that you didn’t think you needed to disclose it because the authorities would check in any event and it would all come out. You gave us the example of renewing your licence and so on. So which is it? Did you not put it in there because you thought it would come out in any event? Or did you not put it in there because you overlooked the six convictions?
APPLICANT: To tell the truth, the breach of bail condition, I overlooked it. From now on I just see it now, when you are telling me, that it’s something that I overlooked.
Again, the evidence of the Applicant was confused, contradictory and unconvincing.

The Tribunal is satisfied that the Applicant knowingly made a false declaration in his citizenship application.
Character references
As noted above, in addition to their oral evidence, written statements were provided by the Applicant’s wife[60] and the Applicant’s daughter.[61] The Applicant’s daughter’s evidence went no further than as outlined in [66]-[69] above. The statement from the Applicant’s wife, as noted above, does not refer to the Applicant’s assault on her in September 2014. In her statement the Applicant’s wife says that the Applicant is a dedicated, loving father and partner and that he is remorseful. It is not clear to which particular incident the Applicant’s wife is referring. She also refers to the fact that the Applicant has established his own electrical business and that he receives good reviews from customers.
[60] A5.
[61] A4.
Mr Christopher Chingombe provided a statutory declaration declared 9 July 2018[62] as well as giving evidence at the hearing. He says in his statement that he has known the Applicant as a friend and a workmate for 15 years. He says that the Applicant is remorseful for having committed the offences and that the charges of unlawful and indecent assault and the breaches of the protective bail conditions was having ‘grave ramifications for his family and his career’. He says that the Applicant is (or was at the time of making the declaration) a ‘regular member of connect group of Pentecostal Revival Ministries’ and that he is confident the offending ‘was a one off incident’.
[62] R1, T13/84.
Statutory declarations were also provided by Mr Justin Ziyebangwa dated 9 July 2018[63] and Mr Cedric Ngadze dated 12 July 2018.[64] They were both to the effect that the Applicant regularly attended church and that the offending was out of character.
[63] A6 and R1, T13/82.
[64] R1, T13/90.
A letter from Relationships Australia (12 December 2019)[65] stated that the Applicant had attended three counselling appointments in April 2018. A letter from KSLV, a former employer of the Applicant, to the Applicant dated 7 January 2018,[66] thanked the Applicant for his performance on a project that he had worked on for that company.
[65] A7.
[66] A8.
[67] A10.
Various testimonials which appear to be from customers of the Applicant were also tendered into evidence.[67]
CONCLUSION
The Tribunal is not satisfied that the Applicant is of ‘good character’ as required by subsection 21(2)(h) of the Citizenship Act to be eligible to become an Australian citizen.
When considering the Applicant’s criminal offending, the Tribunal cannot at this time be satisfied that he is of good character. In making this assessment, the Tribunal has considered the Applicant’s application for Australian citizenship together with all the evidence before the Tribunal, including the Citizenship Policy and the Citizenship Instructions.
The offences of which the Applicant has been convicted, in the relatively recent past, are, on any view serious and, in the Tribunal’s assessment, do not evidence that the Applicant has ‘the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia…’ (see [22]-[24] above).
In addition to the serious crimes of which Applicant has been convicted, there are two instances, the last of which was within three years, of the Applicant assaulting women, firstly his wife and secondly his then 14 year old daughter. These are not the actions of someone with the requisite enduring moral qualities.
While in some cases it may not be appropriate to judge a person’s character by reference to his criminal past, in the present case the serious offences of which the Applicant has been convicted are only one aspect that the Tribunal has taken into account in finding that it is not satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act. He has, as recently as less than three years ago, acted with considerable violence against his daughter. Such behaviour is totally unacceptable.
Further, the Applicant’s attitude to his serious offending is of concern. His repeated reference to the unlawful and indecent assault being the result of cultural difference is not only a patent nonsense, but is, in the Tribunal’s view, indicative of the Applicant’s attitudes not being aligned with fairly basic Australian values. Even at the hearing the Applicant was trying to argue that, in effect, he had not committed the unlawful and indecent assault.

He was still claiming, notwithstanding his pleas of guilty, that contact with the victim had been consensual. That was clearly not the case.

The Applicant’s repeated claim that he had only contacted, or attempted to contact, the victim in breach of the protective bail conditions because the hearing of the charges had dragged on for over a year was also a patent lie. He first attempted to contact the victim about eight weeks after the imposition of the bail conditions. The Applicant, in the Tribunal’s assessment, is someone who appears to have little regard for the truth or an appreciation of the need to adhere to the law.
If one looks at the Applicant’s conduct before, during and after his making the application for citizenship in light of the description of good character, and enduring moral qualities as described in the Policy (see [25] above), his conduct does not demonstrate:
·The Applicant being able to distinguishing right from wrong
·The Applicant behaving in an ethical manner, conforming to the rules and values of Australian society
·The good character requirements being manifested in the Applicant’s behaviour
Based on the Applicant’s behaviour, the Applicant has not
…demonstrated good enduring/lasting qualities that are evident before their application and throughout their migration and citizenship process.
(see [25] above)
The evidence, in the Tribunal’s assessment demonstrates that the Applicant:
·Does not have respect for and abide by the law in Australia;
·Has not been honest;
·Has not been truthful in his dealings with the Australian Government, or other governments and organisations, by providing false or incomplete personal information during visa and citizenship applications
(see [26] above)
Member W Frost at [121] in Fawaz said:
The Federal Court in Irving stated that ‘good character’ referred to the ‘enduring moral qualities of a person’. The Citizenship Policy states that ‘good character’ refers to these enduring moral qualities being ‘an indication of whether an applicant is likely to uphold and obey the laws of Australia’. The Citizenship Policy provides that ‘enduring moral qualities’ means, amongst other things, ‘distinguishing right from wrong’; and ‘behaving in an ethical manner, conforming to the rules and values of Australian society’. Plainly, based on the Tribunal’s findings, Mr Fawaz does not meet these principles set out in the Citizenship Policy. More specifically, the Tribunal is not satisfied that Mr Fawaz is of good character because he does not demonstrate ‘good enduring/lasting moral qualities’. In this regard, the Tribunal’s determination as to whether an applicant meets the requirement for good character ‘imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions...the expression [good character] requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship’.
(Footnotes omitted.)
The Tribunal agrees with and adopts the comments of Member W Frost.
For the reasons sets out above, the Tribunal is not satisfied that the Applicant is a person of good character. He is therefore not eligible to be conferred Australian citizenship, because he does not meet all of the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.
DECISION
The decision of the delegate of the Respondent made on 12 August 2019 to refuse the grant of Australian citizenship by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) on the basis that the delegate was not satisfied that the Applicant was of good character for the purposes of s 21(2)(h) of the Act is affirmed.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

............................[sgd].....................................
Associate
Dated: 19 May 2020

Date(s) of hearing:

Counsel for the Applicant: Mr D Bhogal

Solicitors for the Applicant: West Coast Consultants

Counsel for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

Date(s) of hearing:
Counsel for the Applicant:	Mr D Bhogal
Solicitors for the Applicant:	West Coast Consultants
Counsel for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers