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

GFYX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3761 (28 September 2020)
Division:GENERAL DIVISION
File Number: 2019/8380
Re:GFYX
APPLICANT

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

DECISION
Tribunal:Ms A E Burke AO, Member
Date:28 September 2020
Place:Melbourne

The Tribunal sets aside the decision of the Delegate, dated 16 September 2019 refusing GFYX’s application for Australian citizenship by conferral; and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to
s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), that GFYX is a person of good character for the purposes of the Act.
.......[sgd].................................................................
Ms A E Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether Applicant is not of good character – whether the application for citizenship made by Applicant should be approved – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2007 (Cth)
Crimes Act 1958 (Vic)
Cases
Aston and Secretary, Department of Primary Industry, Re (1985) 8 ALD 366
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs, Re [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
LHJS and Minister for Immigration and Border Protection [2015] AATA 842
Singh and Minister for Immigration and Border Protection [2018] AATA 2311
Zheng v Minister for Immigration and Citizenship, Re (2011) 55 AAR 94
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms A E Burke, AO Member
28 September 2020
INTRODUCTION AND BACKGROUND

GFYX, the applicant, is a 32-year-old Pakistani citizen who arrived in Australia as the holder of a temporary Student visa (subclass 572) on 25 February 2010. Subsequently, on 31 July 2013, he was granted a permanent Protection visa (subclass 866).
Section 501K of the Migration Act 1958 (Cth) provides that if a person applies to the Administrative Appeals Tribunal for review in the person’s capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. As GFYX holds a protection visa, the Tribunal has directed under section 35(3) of the Administrative Appeals Tribunal Act1975, that GFYX’s name be suppressed and appear as “GFYX”. Similarly, the names of witnesses in this application are also de-identified.
On 6 September 2012, GFYX was charged with the following:
I.The accused at Lara on 07/07/2012 assaulted … in indecent circumstances while being aware that…... was not consenting or might not be consenting while not giving any thought to whether the person is not consenting or might not be consenting.
II.The accused at Lara on 07/07/2012 did unlawfully assault.
III.The accused at Lara on 07/07/2012 being the driver of a taxi-cab did fail to start the taxi meter as soon as the taxi-cab was hired
On 29 November 2013, GFYX was charged with failing to comply with his reporting obligations as a registered sex offender.
On 4 May 2016, GFYX lodged an application for Australian citizenship by conferral.
On 16 September 2019, a delegate of the Respondent (Minister) refused GFYX’s application for citizenship under section 24 of the Australian Citizenship Act 2007 (the Act), as they found he did not satisfy the good character requirement to become an Australian citizen. In the decision the delegate states:
In summary, I find that you have been convicted of indecent assault and failing to comply with reporting obligations. Previously, your offences promoted the Department to consider cancellation of your permanent Protection visa (subclass 866). My assessment of whether you are of good character under the Citizenship Act is a separate consideration. I acknowledge the clear efforts you have made to make positive changes to your life and to engage with your local community through sport and regular volunteering. I also acknowledge that you have not reoffended for a period of more than 5 years. However, your offending has included crimes against children and it is my assessment that this outweighs this period of good behaviour. Given the significant nature of your offending, I cannot be satisfied that you are of good character.
On 11 December 2019, GFYX applied to this Tribunal for review of the delegate's decision. In the application he claims the decision is wrong for the following reasons:
GFYX has not had a relevant criminal conviction other than in 2012 and 2014. Whilst the delegate referred to the filed ASRC Counselling Report, fails to consider the affluxion of time from the offences committed in 2012 and 2014.Particularly, the delegate failed to consider LHJS v Minister for Immigration and Border Protection [2015] and many other relevant cases which identify circumstances where GFYX's similar circumstances were granted Citizenship. GFYX's sex offences registration will lapse next year in November 2020 in any event.
GFYX' does not agree that he is not of good character. No one who supplied references were even contacted and out of the 4 two were given consideration. GFYX considers it to be an arbitrary decision.
GFYX has moved on with this life and is married. It was open to the Department to consider his filed documents regarding his marriage and partner visa filed 10 October 2014.
At the hearing by video conference, GFYX was represented by Ms K Chan of counsel instructed by Ms J Tam of JT Lawyers and Mr C Orchard, of Sparke Helmore Lawyers, appeared on behalf of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Tribunal was assisted by an interpreter in the Pashto language. GFYX, MN, ID, QH and CG gave evidence.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether GFYX is of good character.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
(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.
(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).
The Citizenship Policy
The role of the Department of Immigration and Border Protection Citizenship Policy issued by the Minister in 2016 (the Policy) is to provide guidance on the interpretation and the exercise of powers under the Act and the Australian Citizenship Regulations 2007. The Tribunal is not bound to strictly apply the Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [21]: “Policy is not law. A statement of policy is not a prescription of binding criteria.”
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J.
The term “good character” is not defined by the Act. However, guidance is provided by the Policy.
Chapter 11 of the Policy deals with good character. Importantly, it is expressly stated at the outset that it is not departmental policy for decision-makers to be bound by a checklist.[1] Rather, decision-makers are to look at the “merits of each case and turn their minds to the issues of character until they are satisfied, on a reasoned basis, whether an applicant is, or is not, of good character”.[2]
[1] T17 of the T documents, 166.
[2] Ibid.
Reference is made to the definition of good character given by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431–432):
the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion: 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 he 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.
The Policy goes on to state:
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
The Policy also refers to ReFenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of the State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
To assist decision-makers, the Policy contains a non-exhaustive list of the characteristics of good behaviour, which is set out below:
… an applicant of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be 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
§involvement in bogus marriage
§concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
§involvement in Centrelink or Australian Tax Office fraud
§giving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not to be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.[3]
[3] Ibid 169.
The Policy also provides guidance on weighing up the character decision. It points out that the assessment of whether an applicant is of good character requires the consideration of an aggregate of qualities. The Policy identifies that more weight is to be given to significant offences in the assessment.[4]
[4] Ibid 171.
The Policy further states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
…
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application
The Policy makes reference to Deputy President Forgie’s decision in ReZheng and Minister for Immigration and Citizenship (2011) 55 AAR 94 (at 120), to demonstrate this point:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
EVIDENCE

The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents.” GFYX provided a witness statement and several character references.
The following summary of recorded offences against GFYX’s name has been derived from a Criminal Intelligence Commission check results report dated 8 January 2019:

Court Date Nature of Offence Sentence

Melbourne Magistrates Court

3 April 2014

Fail comply with

reporting obligations

With conviction, fined

$1000.00

Geelong Magistrates Court

28 Nov 2012

Indecent assault

With conviction, fined

$2500.00

Geelong Magistrates Court

28 Nov 2012

Fail start taximeter -

Taxi-cab hired

Without conviction, fined

$100.00

A summary of charges (with redactions) prepared by Victoria Police dated 12 July 2012 provides a guide to what GFYX was accused and later convicted:
On Saturday the 7th of July 2012, at approximately 11pm the victim used her mobile phone to call for a taxi to pick her up from a residential address of <redacted>. The victim waited outside the premises with a friend for the taxi to arrive.
Taxicab registration U0052, a 2008 Holden Commodore yellow expiring 09/09/2012, was dispatched via Geelong Taxi service to the premises of <redacted> a sort time later. The driver of the Taxi GFYX stopped outside the premises, the victim got into rear driver’s side of the vehicle. The victim was the only passenger in the cab.
The victim gave the accused the address of <redacted> and gave clear verbal directions how to get there. The victim observed that the accused/driver had failed to start or operate the taxi meter. She mentioned this to the accused and was told that the meter was broken.
The ride to <redacted> took about 7 minutes, and a brief conversation between the accused and the victim took place. Once at the address the accused parked the taxi at the end of the driveway and told the victim the fare was $15. The victim only had $12 on her and explained to the accused that if he waited, the victim’s friend would pay the outstanding amount of $3. The accused stated that $12 would suffice.
The victim grabbed her bag and answered her phone as she got out of the taxi, it was her friend stating he was on his way down the driveway to pick her up. As the victim closed the taxi door the accused got out the drivers seat of the vehicle and approached the victim. The accused grabbed the victim around the waist with both hands and pulled her towards him, kissing the victim on the cheek, the accused then attempted to kiss the victim on the lips. The victim pushed the accused away saying “Get off me!” and ran away from the accused towards her friend’s car coming down the driveway, the victim was fearful that the accused would try something else on her. The accused got back into his taxi and left the scene. The victim was extremely upset and disgusted by the events.
The victim attended the Corio Police station the following day and reported the matter in the presence of her father as she is only 17 years old.
As a result of enquires made with Geelong taxi Service, Police were able to ascertain the drivers details and vehicle registration. The cab was located and the current driver presented the vehicle at the station for the taxi directorate to attend and down load any footage available. Unfortunately this proved to be unsuccessful.
On the 12/07/2012, at 15.25pm, the accused attended the Corio Police as per agreement, he was arrested and interviewed. The accused was co-operative, and admitted to being the driver on the night of the alleged offence and dropping the victim off in <redacted> it denied the allegations. He admitted to getting out of the taxi but to check his front tyre.
The accused was released pending summons.
Defendant’s reasons:
Indecent assault “Well look if I kissed”
Unlawful assault: “I didn’t do these things”
Fail to start taxi meter: “That I know, sometimes I forget”

The Geelong Magistrates’ Court Order of the 28 November 2012 stated:
Sex Offender Registration Order granted
The offender is to report to Victoria police for a period 8 YEARS
Remarks:
Offence involved unwanted kiss on cheek and attempt to kiss on lips without evidence of other sexual actions or intent, and deemed at the lower end of the range of offending encompassed by the offence.
With conviction, fined $2500.00
Stay to 26/2/2013
A police brief of 18 March 2014 outlines the background and consequences of GFYX’s failure to report obligations, for which he was convicted on 3 April 2014, it states:
The accused is currently a Registered Sex Offender, as defined by the Sex Offenders Registration Act 2004. He became a Registered Sex Offender from 28/11/2012 for a period of 8 years. He is fully aware of his Sex Offender Registry obligations and he has been served with a copy of these obligations whilst being a Registered Sex Offender.
On the 29th of November 2013, approximately 5.00 p.m. the accused attended at the Altona North Police Station where an annual sex offender registry interview was conducted as per his Victorian Sex Offender Registry obligations. During his annual interview the accused disclosed a SKYPE internet account, which he had previously failed to disclose.
On the same day, the accused was arrested in relation to disclosing this SKYPE internet account. At the Altona North Police Station, a video recorded interview was conducted with the accused, where he made admissions to forgetting to notify the police and the sex offender registry of the SKYPE account. He stated he generated the SKYPE internet account approximately 6 months ago and then began using the SKYPE account approximately 2 months ago. He stated that he was using the SKYPE account to speak with his family in Pakistan. He forgot to notify the police and sex offender registry of the SKYPE account because his focus was on his family in Pakistan and the concerns he has for his family.
Accused Explanation ............................
Fail to comply with Sex Offender Registry obligations (SKYPE internet account).
"I was not using it at the time and I was suffering depression because of my family."
GFYX provided a signed statement to the Tribunal dated 15 May 2020 in which he stated:
The reason why I fled Pakistan and chose to come to Australia
I was born in Parachinar, Kurram Agency, Pakistan. I am a Shia Muslim of Turi race, was born in Parachinar, Kurram Agency, where my family had a history of strife with the Taliban, who is hostile to Shias.
In 2001, when I was 12-13 years old, the Taliban burned my family’s possessions
and killed my youngest sister in a mortar and missile attack.
In 2007, the Taliban attacked Parachinar, and burned and destroyed my father’s
family business.
In 2004, I finished school at the Pilot Model School. From then, I attended the
Government Degree College in Parachinar, Pakistan and finished college in 2006.
Between 2008 – 2009, I completed several short courses in Graphic Design, Autocad and Microsoft Computer System Engineering in Peshawar, Pakistan.
In 2009, I was attacked in Peshawar where I was studying. At that time I was
completing a short course Microsoft Computer System Engineering in Haris Institute
in Peshawar Pakistan. I was walking on the path when I was followed by a car
containing several people. I heard some shooting and ran to a street and dived into
a deep drainage channel beside the road. I was rescued by some pedestrians. I
believe the people in the car wanted to kidnap me.
My father did not believe it was safe for me to remain in Pakistan and encouraged
me to leave. I fled Pakistan and arrived in Australia on 25 February 2010.
After my arrival in Australia, when I was 23 years old and studying in Australia, I heard that my brother had been kidnapped by Sunni anti-Shia extremists. This disrupted my studies and caused me to have depression. The kidnapping was reported in both Urdu and English newspapers in Pakistan and happened on a road where Shias are commonly kidnapped. My brother remans missing and is presumed dead.
In 2011, my father was murdered in a targeted attack for which the Taliban claimed
responsibility.
On 31 July 2013, I was granted a protection visa, after the Refugee Review Tribunal
decided, on 30 April 2013, that I would face a real chance of serious harm as a
perceived opponent of the Taliban or its allies if I were to be returned to Pakistan.
The circumstances of my offending in 2012 and 2014
I understand the Minister’s decision to refuse my application for citizenship was
because he was not satisfied, based on my prior offending, that I am a person of good character. There are three offences on my record.
The offences of indecent assault and failing to start a taximeter are related and both
arose out of my conduct on the night of 7 July 2012, when I was working as a taxi
driver. I picked up a customer, a female, whom at that time I believed to be an adult,
from a residential address in Lara, Victoria. She asked to be taken to an address
about seven minutes away. When we were half way, she mentioned to me that I had
failed to start or operate the taxi meter. At the time, I told her that the taxi meter was
broken. I then realised I just forgot to turn on the meter and decided to leave it
because it was already half-way.
While I was driving, we struck up a conversation. We talked about the taxi fare being
$15 and the customer said that she only had $12. I did not want her to feel bad so I
informed her that $12 should be enough. I thought we had a friendly conversation.
At the time, I had only been in Australia a short time. Back then, I had few friends, I
was not in a romantic relationship, I was still adapting to the cultural differences
between Pakistan and Australia. And I did not have the family and community support that I have now, nor the years of friendships with local Australians and experience and understanding of cultural norms that I do now.
So, I was not sure of how to approach relationships with a female. Being a young
man at 24-year-old, I did not know better. What happened next I deeply regret. When
the passenger got out of the taxi, I reached out and touched her waist with both hands and kissed her on the cheek. That is when she pushed me away and said “Get off me!”
I immediately retreated. I knew then I had made a terrible mistake, but did not know
how to take my actions back. I could see that she was extremely upset and disgusted. I was upset and disgusted with myself. In hindsight I know this was beyond foolish, and wrong.
The police later found me and asked me to attend a police interview, which I did. At
the interview I admitted to being the driver and initially denied the charges as I was
very scared and confused. At this interview, police informed me that the victim was
17 years old.
…….
On 28 November 2012, I was convicted in the Geelong Magistrates’ Court of indecent assault, and fined $2,500, and of failing to start taximeter, fined $100. The Magistrate remarked that my offending was “at the lower end” of the scale.
As a result of the description of the indecent assault offence and the age of the victim, I was automatically placed on the Victorian Sex Offender Register, and required to report to police if I travel, change address, mobile number or download any apps on the phone and other major activities. This is a matter of immense stigma to me.
On 4 December 2012, my tax driver accreditation was mandatorily cancelled because of my conviction of indecent assault.
In March 2014, I downloaded the phone application “Skype” so I could speak to my
mother in Pakistan. I forgot that I had to report the downloading of this application to
the police within 14 days. I reported to the police as soon as I remembered. This was a genuine mistake. I immediately paid the required fine in full and did not seek to contest it.
On 3 April 2014, I was convicted in the Melbourne Magistrates’ Court of failing to
comply with reporting obligations and fined $1,000.
My life in Australia
Over the years, I have reflected on my actions on the night of 7 July 2012. I do not
seek to deny that I was wrong and accept responsibility for my misconduct. It
impacted me significantly, making me depressed and anxious, but at the same time
driven to change myself so that I would not repeat the same mistake again. I used
my negative feelings as motivation to become more mature.
Between 2012 – 2017, I was working in various jobs. I have worked for a chemical
company, a fruit and vegetable company and a car removal company. Since 2018, I have been working as a truck driver.
I have been involved with community work at the Asylum Seeker Resource Centre
since April 2011. I have helped to set up and participated in music programs and food programs for members. I also played cricket and soccer with staff members and other refugees who were regular at the centre.
Through my employment and my community work at the Asylum Seeker Resource
Centre I have met and formed bonds with a wide range of people. For example:
a. Through the Centre’s soccer club, I have made friends from all walks of life. After sport sessions, we used to meet each other and have coffee or eat
together. Many of them were also refugee like myself from Iran or Afghanistan. During get-together, we shared our own stories and the difficult journey that we had all been through.
b. I tried and got involved in assisting other migrants to avoid making the same mistakes that I did, and to give a helping hand in bridging cultural awareness in the community. Many times, I have helped new arrivals, who were also refugees in Pakistan to book and go to doctor appointments. I also took them to AMES in Footscray and helped them register for Medicare.
c. I have since gained a better understanding of a culture different than my own. I learnt that In Australia, there is more freedom to express yourself and
everyone cares about the safety of each other.
Listening to the experiences of others with an open mind, in combination with the own experiences from my past, has deepened my capacity for compassion and empathy. Seeing a counsellor, Dr Emma Hodges, at the Asylum Seeker Resource Centre, was also a catalyst for my psychological recovery and personal growth. I know that the victim in my taxi on 7 June 2012 would have felt scared, vulnerable and violated. The guilt I feel at having caused another person to feel that way stays with me.
I am now married and focused on building a loving, stable life with my wife. I met her
through my mother, who introduced her to me and we married on 10 October 2014.
I have been in steady gainful employment and have always paid all my taxes. Following my charges in 2012, because I lost my job as a taxi driver, I had received 3-month payment from Centrelink in 2013. Despite the short fall, I immediately secured lawful employment and have been working ever since. My manager and my colleagues attest to my work ethic and good character. My wife and I plan to have children and build a family in Australia, and I wish to raise them to be kind, compassionate, respectful members of the Australian community.
Why I wish to be an Australian citizen
Like many of the friends I have met at the Asylum Seeker Resource Centre, I am
incredibly grateful to live in a country that holds dear: a belief in democratic
government, respect for the rights and liberties of all Australians, and obedience to
and observance of the law and government institutions. In Australia, I have
experienced security, safety and freedom that was lacking in my past. My wish is to
be able to express my gratitude and repay Australian society by continuing to
contribute in positive ways, and make my pledge of commitment as a fully fledged
citizen.
GFYX advised the Tribunal that:
(a)At the time of the incident he had been in Australia for two years and a cab driver for one year;
(b)It was a very stressful time for him, because of his family situation in Pakistan, he was suffering with significant mental health issues, was still adapting to life in Australia, experiencing and coming to terms with cultural difference particularly in respect of being around women;
(c)He was very remorseful for his actions, he understood he had no right to grab or kiss his victim, that the victim had not given her approval for his actions and he had not tried to excuse his actions because he thought she was being over friendly;
(d)He recalled on the night of the offence he had got out of the cab to check his tyre, as he thought he heard a noise from them, he had talked to the victim briefly as she was waiting for her friend to pick her up and he had then kissed her; he said his version of events were his version of events and did not dispute what the victim had reported but he could only comment on his recollection of his actions;
(e)He had lied to the police at the interview as he was very scared and ashamed of his actions;
(f)He had not plead guilty in court as his lawyer had advised him not to, but he accepted he had been found guilty and was in the wrong;
(g)He had overlooked his obligation to report the installation of a skype account on his phone, he was using skype to contact his family in Pakistan for whom he was and is very worried, he had admitted straight away to the police he had not reported the matter and plead guilty to this and paid the fine;
(h)He has worked in numerous jobs since being in Australia and would welcome the opportunity to return to study to better his family’s situation;
(i)Australia is his home, it is safe here, he appreciated Australia had let him study here, he wants to build a life here, with his wife who is pregnant, the situation of his citizenship was causing him and his wife a great deal of stress;
(j)It was eight years since he had offended, he has learnt a lot, had never had any issues with women since this incident or been in any further trouble with the police; and
(k)He had gotten a great deal of assistance from the Asylum Seeker Resource Centre (ASRC) when he first arrived in Australia through counselling and other support and had been volunteering there ever since. At first he spent a great deal of time there as he did not want to be at home, involved in soccer and other activities, he enjoyed giving back to the community and assisting others settle into their new home.
MN, Office Manager, GFYX’s friend and colleague provided a statement in support of GFYX’s application for Australian citizenship dated 15 May 2020, in which they state:
While I am aware of the sexual charges against GFYX, I can wholeheartedly attest to his good character for the reasons outlined below:
GFYX and I are not only colleagues, but we have become great friends. I have known GFYX to be a very kind-hearted, compassionate and a considerate individual. He is very approachable and is always the first to stop what he is doing to help someone in need. As I do not drive, and on the rare occasion I find myself working late, GFYX would stay behind and accompany me, to ensure that I am safe until my partner arrives to pick me up, a gesture that I am very grateful for. GFYX is the kind of person who does things without being asked.
During the time I have known GFYX, my observance of his behaviour towards fellow colleagues and customers has always been respectful and polite and this has been consistent. GFYX is extremely hardworking, and has demonstrated high levels of work ethics, initiative and productiveness.
…
I am aware of the indecent assault charges against GFYX, and I was completely dumbfounded as this is incongruous to his character. GFYX has never made me feel uncomfortable in any way and I feel incredibly fortunate to have someone like GFYX as my friend and colleague. Personally, I do not believe that he would be capable of such conduct and query how it happened. Regardless of my perspective of the incident, GFYX has expressed grief and sorrowfulness for the victim to construe the incident the way that she felt.
MN advised the Tribunal that:
(a)they and GFYX had become great friends through their work;
(b)they were shocked to learn of his offending as it was so out of character with the man they knew;
(c)they was aware the victim was 17 and that GFYX was on the sex offenders register as he had been very open with them;
(d)they always felt completely safe with GFYX who was always respectful to them and others particularly to any elderly clients he assisted;
(e)GFYX was hard working, diligent and would be a great asset to the Australian community.
ID, Director, GFYX’s employer provided a statement in support of GFYX’s application for Australian citizenship dated 15 May 2020, in which they state:
…GFYX has been employed with me full time, as a tow truck driver since 25 March 2019. He was highly recommended to me from my previous employee.
…
Over the course of his employment with me, GFYX has been a considerable asset for my company. He is very well rounded and adept, displaying incredible competence in his work performance regardless of what he is tasked with. As GFYX has demonstrated great proficiency and seasoned practicality, our team of Directors have promoted him to driving our new hooklift truck within a few short months of him commencing employment with.
GFYX is very well liked and respected not only in my workspace, but within the scrap metal industry. I am very fond of GFYX as he places safety and customer satisfaction as his priority. He has a very kind heart, and would always go above and beyond for customers, particularly elderly/senior customers.
Whatever challenges GFYX encounters, he will always find a way to overcome the obstacles to get the job done.. This illustrates how highly skilful and well versed GFYX is, not only as an employee but as an individual.
I am very delighted to have GFYX as part of my team and will continue to employ him.
ID advised the Tribunal that:
(a)they were aware of GFYX’s offending but not the details;
(b)they were very confused that such a thing could have taken place;
(c)GFYX was kind, a very hard worker, a fast learner, and they had observed GFYX was especially good at dealing with older clients in a respectful manner.
QH, general practitioner, a close friend of GFYX’s for over five years provided a statutory declaration for these proceedings dated 15 May 2020, in which they state:
…I met GFYX through another friend. GFYX was the first to help me find affordable accommodation in a shared unit next to where he lived in Castle Ct. Bell Park area of Geelong. He was then a taxi driver, and I was preparing for my Australian Medical Council exams. One thing that stood out in those first days that I was beginning to know him was his kind and caring attitude, even to people he' d just met. He lent me money, would invite me many a time to his place for dinner.
…
I have no doubts that GFYX is a person of good character and is considered a respectable person, both in the community and in our friends' circle. What he had done was clearly very wrong and deplorable, but this was highly unusual for him. When the incident happened,
GFYX was too embarrassed to tell me what had happened. When he received his suspension letter from the then VTD (Victorian Taxi Directorate) he shared it with me and asked for help to deal with the situation that had arisen. I was shocked and in disbelief. He was clearly having a hard time explaining why it happened. He was himself in a state of panic.
He clearly wasn't expecting this would happen. He was very troubled by the damage it would cause to his standing in the community. GFYX was visibly under a lot of stress those days.
I was with him when we met his Lawyer in Melbourne. I was with him when we went to the Magistrate' s court in Geelong. He needed my support, and I wasn't going to deny it to him. I was with him when we discussed with his lawyer if he would be better off pleading guilty. I sat in the court while the case was contested. I observed as the events of that fateful night were discussed in a great deal of depth and detail. GFYX did not speak during those 2-3 hours. I could see the remorse on his face, the regret that he should have known better. The disbelief that this is happening to him. He deeply regrets this incident ever happened.
The court agreed that despite the gravity of the crime, there were no intentions to cause harm. He didn't speak in the court as advised by his counsel.
GFYX couldn't drive taxis anymore. He got his HR and MC licenses, moved to Altona, and started working as a forklift and truck driver for a transport company. It was at our behest because we thought getting back to work would help him get his mind off these events. He has been employed ever since and pays his taxes regularly. His employers and supervisors speak highly of him. He is punctual to work. In the afternoons, he plays soccer with his friends. He works long shifts to save some money, so he can prepare himself financially if and when his wife' s visa (Spouse Visa) is granted. He is ready to buy a house, according to him, but is only waiting to hear about his wife's visa, which has been in a limbo for these very same reasons. GFYX sends money to support his wife and his mother who has a heart condition. He bears all the medical expenses for her. He is a loving husband, and caring son.
…
…I notwithstanding the gravity of the conviction, still regard GFYX as a man of admirable character who is held in high esteem in our community. I do not believe he is of any risk to the Australian community, now and in the long-term future. There are no eccentricities in his behaviour or personality. He loves being around people.
I am confident, a 100 percent, that he will only contribute positively to the community and country in the short and long term. What has happened was wrong, but considering the circumstances, I strongly believe that he should be given a second chance. He has learnt his lesson. He still has a long life ahead of him. I am sure he will utilize his energies for the benefit of himself and those around him. I can assure you what has happened will never be repeated again. He is working very hard to be a productive member of the community.

QH advised the Tribunal they had gotten to know GFYX when they had moved to Geelong and knew no one, they had been introduced to GFYX by friends and they became good friends quickly. They explained GFYX had been of great assistance to them at that time and when GFYX came to them about losing his taxi license they felt they could give back to him. They were shocked by GFYX’s actions as they appeared completely out of character with the man they knew. GFYX was very ashamed and embarrassed by what had happened. They said they went with GFYX to see the lawyer and was with him in court for the original conviction.
QH advised that both they and GFYX were completely ignorant of the law and relied upon the lawyer for advice and guidance. QH asserts that the lawyer had advised GFYX to plead not guilty, that the lawyers main concern was the impact on GFYX’s visa or refugee status, the lawyer thought GFYX would have a good chance in court based on age of consent, confusion over the incident and he advised to see what would transpire in court. GFYX simply followed the lawyer’s advice at all times.
CG, a professional social worker at Brotherhood of St Laurence, provided a statement in support of GFYX’s application for Australian citizenship dated 15 May 2020 in which they state:
I am a professional social worker and met GFYX through my work as the Social and Community Development Manager at the Asylum Seeker Resource Centre (ASRC - my previous employer).
I have known GFYX since I commenced in this role in April 2011 and know him to a respectful and caring individual.
…
While I am aware of GFYX's history and previous criminal conviction, I can attest to his good character, for the reasons outlined below:
When I met GFYX he was going through the refugee determination process. Although I am not aware of the full details of why he had to leave his home country, I am aware that the process of seeking asylum was challenging and traumatic for him. GFYX was having to rebuild his life away from his family, friends, community and culture and was in a state of uncertainty not knowing what the outcome of his application would be, which was highly stressful. My aim was to create a safe and welcoming space where GFYX did not need to disclosure the traumas that he had faced or was facing and receive some respite from these through social, community and physical activities.
My relationship with GFYX developed due to his heavy engagement in the Social and Community Development Programs at the ASRC. GFYX would often attend the centre four days per week and be an integral part of our community space engaging with staff, volunteers and members. He has always treated everyone he interacts with respect and kindness and is a very gentle and approachable man.
GFYX's behaviour towards me has always been friendly and polite. He was always a joy to be around and would always bring a calm energy to the activities that he participated in.
GFYX participated in many of the activities which I coordinated being:
·An orientation program, which helped him navigate through the settlement process through gaining an better understanding of the systems and services in Australia,
·A cricket program, which consisted of community cricket matches with other organisations and community groups,
·Attended social outings that enabled him to meet new people and explore different places within Melbourne, and
·Was a founding player within the ASRC Soccer Team, a mixed female and male soccer team, which was established in 2012.
I believe that GFYX's participation in these activities benefited him as it gave him the opportunity to build friendships with many people of different cultures, including Australians. Through these friendships, I believe he has been able to learn more about Australian cultural norms which has helped with his settlement experience.
I got to know GFYX extremely well through his involvement in the ASRC Soccer Team as I managed the team and was present at all of the games. GFYX was a reliable player who was always on time for training and matches and was a good team member. He supported the other players and always welcome new players into the team.
During his time as a player within the team, he never showed aggression on the field even when matches became heated. He always remained calm and encouraged other players to be the same. He also was always very helpful on game days supporting with tasks such as setting up the nets and packing up all of the equipment. He was a great role model to other players.
GFYX has informed me about the charges against him which occurred in 2012, which surprised me as it seems out of character and I believe GFYX to be remorseful and regretful about the incident that occurred. I believe it to be a once off behaviour, which is unlikely to occur again in the future.
Despite this, I still believe GFYX to be a person of good character as per my interactions with him listed above. Additionally, I know GFYX to be a hard-working person who works at and makes valuable tax contributions.
I believe GFYX should be successful in his citizenship application as he has worked hard to build a life here, he holds Australian values and is keen to be a contributing member of society, support his family and community and I believe this will only grow and strengthen with his time in Australia.
I am available to be contacted by the Tribunal should there be any further questions on the above.
CG advised the Tribunal they had gotten to know GFYX in their professional capacity when they worked at ASRC and had always found GFYX to be a courteous person who was always smiling and was very keen to be involved in the community. CG advised GFYX had told them of his offending in about 2016-17, but they only had a “sketchy” idea of the facts. When advised of the age of the victim during cross-examination they agreed that was a terrible thing to occur, but they could only comment on how they had found GFYX and that was as a person who always showed respect to everyone.
SUBMISSIONS
Ms Chan contended that GFYX was a witness of truth who had accepted his conduct was wrong, had not sought to diminish his offending or shift blame, was remorseful for his actions and accepts that his criminal record is a relevant factor to be considered in determining if he meets s 21(2)(h) of the Act.
Ms Chan argued that the recent decision of BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, from the Federal Court of Australia, being the most applicable law at present, provided a useful distillation of the principles governing the meaning of “good character” in s 21(2)(h) of the Act. Ms Chan contended the Tribunal had to reach a state of satisfaction requiring: “an affirmative belief that the applicant is a person of good character”, but “it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character”.
Mr Orchard concurred that the matter of BOY19 was useful as it provided a guide to the framework of the legislation and policy.
Ms Chan submitted that, in the Tribunal’s assessment of “enduring moral qualities”, the offences in 2012 and 2014 should not outweigh the evidence before the Tribunal which supports a finding of good character. Ms Chan argued the Tribunal should give significant weight to the following:
(a)the evidence of MN, QH, ID and CG who all attested that GFYX is a highly valued friend, colleague and member of the community; who is kind, hardworking, compassionate, considerate of others, respectful of women and someone willing to put himself out for others;
(b)GFYX clearly does not pose a risk of sexual re-offending, does not have a psychological composition that would indicate such propensity, given the one-off nature of the incident and the absence of any subsequent re-offending;
(c)GFYX has not, in fact, had so much as a parking infringement since the date of his offences, nor met with any other type of trouble with the law;
(d)GFYX has been honest and open, and did not seek to deny the offences in his citizenship Application;
(e)GFYX has demonstrated financial responsibility since his arrival in Australia, having been gainfully employed for the majority of his time in Australia, he is now married and is seeking a life of family, stability and security in Australia;
(f)GFYX respects the law and governmental institutions, is not violent or reckless, nor involved with illegal or anti-social behaviours or criminal persons.
Ms Chan argued, the Tribunal should also give little weight to the 2012 offences because the offences were at the lower end of the scale as demonstrated both by the penalty imposed and the record of the Magistrate’s court order. Ms Chan contended the Magistrate, based on the evidence put forward at the hearing, had concluded that a fine of $2,500 was an appropriate quantum in terms of the gravity of GFYX’s offending and this was obviously at the lower end of the scale of sentencing, given s 39 of the Crimes Act 1958 (Vic) provides that indecent assault carries a maximum penalty of 10 years’ imprisonment.
Mr Orchard contended that the GFYX’s convictions are obviously serious, as he had committed an assault against a child and in line with the Policy, argued that the seriousness of the offences meant the period in which the applicant is required to demonstrate good character is much longer. Mr Orchard contended GFYX’s offending should be given significant weight by the Tribunal against a finding that GFYX is of good character.
Mr Orchard contended the circumstances of the offending, indecently assaulting a child, demonstrate the actions of a person who is not of good character. Whilst GFYX had expressed qualified remorse toward his victim, he had sought to diminish his criminal offending by shifting blame onto the victim and offering excuses such has his youth and cultural differences. Mr Orchard contended that at the hearing and in his statements, GFYX “maintains it was a misunderstanding of cultural differences” and that “was still adapting to the cultural differences between Pakistan and Australia”.
Mr Orchard contended that the letter from Mr SH, submitted as part of GFYX’s response to the delegate’s invitation to respond to information which may indicate he was not of good character dated 9 May 2019 and not to the hearing, expressed sentiments that were out of step with community expectations and demonstrated that GFYX’s recounting of his offending reveals an ongoing attempt to shift blame. Mr Orchard argued the letter also sought to diminish GFYX’s criminal offending and place the blame on the victim, as Mr SH states the applicant “had an issue with his overly friendly customer” and that “he misread the signs of her overfriendliness and got pushed into the matter”.
Mr Orchard argued strenuously that this was not an appropriate excuse for criminal offending and in any event, that GFYX had been in Australia for approximately two years prior to the offending and driving taxis for over a year at the time. Mr Orchard argued that by GFYX’s ongoing attempts to qualify his offending by reference to “cultural differences”, he had demonstrated little insight into his sexual offending, had not fully accepted responsibility for his actions, and instead had sought to contextualise by way of his culture.
Mr Orchard further argued that GFYX’s statement that he was a “young man” at age 24 and “did not know better” was further evidence of his ongoing inability to reflect properly on his offending, as he was plainly an adult at the time of his offending. His actions of seeking to mitigate his responsibility because of his age demonstrated he had not developed an enduring moral quality over time and could not be considered of good character.
Ms Chan submitted the Tribunal was also entitled to find GFYX’s conviction for failing to comply with reporting obligations did not carry significant weight in the assessment of “enduring moral qualities”, as the breach occurred as a result of inadvertence, as opposed to any deliberate attempt to evade the law.
Mr Orchard contended that GFYX’s conviction of failing to comply with his reporting obligations as a registered sex offender demonstrated a disregard for Australian law and that GFYX had not behaved in accordance with Australia’s community standards. Mr Orchard contended it was GFYX’s responsibility to meet his reporting obligations and his failure to meet them shows an ongoing lack of understanding of the seriousness of the obligations imposed on him as a registered sex offender.
Mr Orchard acknowledged that whilst GFYX’s offence “of fail start taximeter” is objectively less serious, nevertheless he contended it constitutes a further offence of which he has been found guilty and when viewed alongside his other offending, must be viewed as more serious than it would if considered as an isolated incident.
Ms Chan contended of most significant, was that GFYX has learned about Australian laws, culture and society, not merely as a product of the effluxion of time, but because he has worked hard to do so and taken active, conscious and deliberate steps to establish himself as a different man. As demonstrated by his:
(a)deep regret and remorsefulness of the conduct underlying the offences, and empathetic to the feelings of the victim; and
(b)the sense of shame and embarrassment he has felt as a result of the offending which has motivated him not only to reform his own behaviour and ways of thinking, but to assist other new migrants not to make the same mistakes that he did, and to assist in cultural awareness and bridge building in the community.
Ms Chan said the Tribunal should place significant weight on the testimony of the character referees who had come forward to the hearing all describing GFYX as:
(a)a kind, compassionate, calm person who is an asset to the community;
(b)possessing the characteristics as outlined in the Policy to be consider of good character;
(c)someone who had shown insight into his offending, was of no risk of reoffending, had been in no trouble with the law since, had demonstrated financial responsibility, was gainfully employed, starting a family and volunteered his time back into the community.
Ms Chan took exception to Mr Orchard’s contention that GFYX had sought to diminish his actions, shift blame onto the victim or sought to mitigate them because of his age or cultural differences. Ms Chan asserted GFYX’s testimony to the Tribunal clearly articulated he was aware that his actions were wrong, unwarranted and the victim had done nothing to invite his advances. Ms Chan argued that GFYX had shown insight and remorse for his actions.
Mr Orchard argued the Tribunal should place little weight on the evidence of GFYX’s referees at the hearing and their written submissions, particularly those of his work colleagues, but conceded some weight should be given to QH’s as it was based both on a therapeutic and friendship basis.
Ms Chan argued, the Tribunal ought not place any independent weight on GFYX being placed on the Victorian Register of Sex Offenders as this was not a discretionary decision by the Magistrate, but automatic by operation of the Sex Offenders Registration Act 2004 (Vic), i.e. because of the description of his offence and the victim’s age (17 years old). Ms Chan argued that in any event, GFYX’s registration will lapse on 28 November 2020.
Ms Chan took the Tribunal to the AAT decision of LHJS and Minister for Immigration and Border Protection [2015] AATA 842, arguing this case was analogous to the present and provided a clear indication of the weight to place on the consideration of GFYX’s being placed on the sex offenders register. Ms Chan referred to LHJS at [28]-[30] where Member Peron observed:
The respondent suggested that LHJS's continuing presence on the Victorian Register of Sex Offenders is also a relevant factor to take into account in assessing his character. The Tribunal initially found that submission somewhat persuasive but then discovered that the registration on that list automatically follows a conviction of indecent assault where the victim was aged 16 years. It is not a discretionary decision by the Magistrate.
In April 2012 the Victorian Law Reform Committee handed down a report on the sex offenders' registration scheme. Extracts from the overview follow:
...
The scheme has been operating since October 2004.
Under the Sex Offenders Registration Act 2004, all adults sentence for committing sexual offences involving the child are automatically included in a register of sex offenders....
Registration is not part of the offender's sentence. It is a separate scheme administered by Victoria Police. It is intended to be protective, not punitive.
Registered sex offenders living in the community must keep the police informed about their personal details and whereabouts for a period determined by the Act...
...
Existing research indicates that child sex offenders do not comprise a homogenous and coherent group. For example, commonly held assumptions that child sex offenders have high rates of recidivism and predominantly prey upon children who were unknown to them are not supported by evidence. Research overseas has found the sex offenders have lower recidivism rates and less criminal history than offenders who commit nonsexual serious crimes. Most serious violent and sex offenders do not have previous convictions for offences of that type, and nor are they convicted again for offences that type.
...
As not all sex offenders present the same risk of re-offending, the automatic registration of every adult who commits a sexual offence against a child has extended the reach of the scheme to offenders were highly unlikely, based on any reasonable assessment, to offend again.
The Sex Offenders Registration Act proceeds on the assumption that all people convicted of the same offence pose the same risk of reoffending and should have the same reporting obligations for the same period. The approach is generic and not based on individual assessments of risk. The current undifferentiated, and generic rather than individual, method of selecting who should be registered has led to a Register which appears to have outstripped initial estimates of size.
...
Details about people who might be potentially dangerous sex re-offenders sit alongside those of offenders who pose no risk of harm, with police in child protection authorities having no reasonable means of allocating risk ratings, and investigative resources, to particular offenders.
The long reporting periods impose a significant burden on the police to compile and manage information that may be of little operational value in many instances...
The Tribunal has considered the factors set out in the Instructions for decision-makers where there is a criminal record. Because the victim in this matter was under 18 years, the offence is considered serious. The offence does not appear to have been premeditated. The sentence does not constitute a serious prison sentence which is defined in the Act as being a period of at least 12 months. At the time of the Tribunal's decision, it has been two years since the period of suspension of the sentence expired. As discussed above, LHJS remains on the sex offenders register as he was automatically put on that list because of the description of his offence and the victim's age. Unfortunately there are no sentencing remarks available as the matter was conducted in the Magistrates Court. The offence appears to have been a one-off.
Mr Orchard contended GFYX’s current status as a registered sex offender is reason enough for the Tribunal to find the applicant is not of good character, arguing that it is highly relevant that the parliament in Victoria has enacted mandatory reporting for an eight year term for sex offenders such as the applicant to remain registered and restricted in the community, reflecting the community’s distrust in such offenders and the need for their ongoing monitoring. Mr Orchard contended that a person subject to such conditions in the community should not be considered to be of “good character”, especially those who have breached their obligations under such orders. Further Mr Orchard contended that even if GFYX is de-registered in November of 2020, a further period of time would still need to pass for him to demonstrate positive characteristics which have endured over a long period of time since his offending and its consequences.

Mr Orchard argued that the case of LHJS was of no precedential value to the Tribunal as the cases had no parallels, contending that LHJS had not lied to the police, nor had he tried to diminish his actions and had plead guilty at the first opportunity.
Ms Chan also took the Tribunal to the matter of Singh and Minister for Immigration and Border Protection [2018] AATA 2311 where Senior Member Morris also found that Mr Singh was of good character although he had been convicted of a crime against a minor and placed on the Sex Offenders Register. Mr Orchard again argued this case had no precedential value to the Tribunal as Mr Singh’s case was being considered two years after his mandatory eight-year term on the Sex Offenders Register had expired.
Ms Chan contended that:
(a)GFYX was now fully aware that his actions were wrong and unwarranted;
(b)that it is eight years since his offending and in that time, he has learnt a great deal, shown remorse and contributed positively to the Australian community;
(c)the firsthand evidence to the Tribunal was of a man who was of good character who had demonstrated enduring moral qualities over time;
(d)there must be a capacity for people to change and the Tribunal should find that significant time has passed for that to occur; and
(e)the intent of the Victorian Parliament could not stand in place of GFYX’s enduring moral qualities.
Mr Orchard contended that GFYX started offending shortly after he arrived in Australia and that for the majority of his time in Australia, he has been (and remains) a registered sex offender, arguing that his status in this regard is antithetical to any submission that he is currently of good character for the purposes of an application for Australian citizenship.
Mr Orchard argued that not enough time has passed since GFYX’s offending had occurred. The weight of the evidence before the Tribunal indicated GFYX’s lack of insight into his offending, indicating that he is not fully reformed or that he can be considered now of good character. GFYX had incidentally assaulted a child and that he required more time once he was no longer on the Sex Offenders Register to demonstrate he had enduring moral qualities.
Fundamentally Ms Chan argued on balance, that the conduct giving rise to the offences in 2012 and 2014, as at the time of the Tribunal’s review, is not so deficient as to show it is for the public good to deny GFYX citizenship. Ms Chan argued that the evidence indicated that GFYX has been a positive contributor to his community through his involvement in community activities, and by his own efforts in reforming himself and supporting others, and that is consistent with being a person of good character, being a test of “a less exacting standard” than “the highest standards of integrity”. GFYX’s attributes of being kind, compassionate, calm and hard-working, to which GFYX’s referees attest, are moral qualities concomitant with Australian citizenship.
Fundamentally Mr Orchard argued the Tribunal must be positively satisfied that GFYX is a person of good character, submitting that the weight of the evidence, in particular the seriousness of his sexual offending, weighs against the applicant, especially when considered in the context of his failure to fully accept responsibility for his wrongdoing, and therefore his failure to demonstrate reform. Noting that particular concern is GFYX’s ongoing registration on the Sex Offenders Register, which alone signals clearly that the community does not consider the applicant to be trustworthy, let alone of good character for the purposes of granting Australian citizenship.
CONSIDERATION
The Tribunal considered the issue of GFYX’s good character in light of the Policy, as the Act is silent on the definition of good character, by carefully weighing up the evidence, before it found that GFYX’s actions were indeed serious and in terms of the Policy would not be indicative of a person of good character, as they caused harm to another by unlawful sexual activity against a minor.
The Tribunal however places great weight on the fact that the Magistrate, who was able to consider all the facts of the evidence at that time, imposed a conviction with a $2,500 fine, when the Court had available to it a substantial range of penalties including a sentence of imprisonment for 10 years in the most serious of cases. The Tribunal also considers the Court order which clearly indicates the offending was deemed at the lower end of the range of offending encompassed by the offence.
The Tribunal considered the actions of GFYX were inexcusable and would have undoubtedly caused a great deal of stress to the young victim, as she was alone with GFYX in remote and isolated settings. This was, of course, compounded by the fact she would have believed herself in a safe environment having gotten into a taxi with a registered driver fully aware of his obligations to all clients.
The Tribunal whilst aware of the gravity of GFYX’s action, inclusive of his failure to meet his report obligations, does not consider this is sufficient to consider his actions so serious he should be denied citizenship.
The Tribunal notes the Policy clearly articulates that the decision maker should question whether any mitigating factors or circumstances provided by an applicant for citizenship outweigh their behaviour in question. Whilst the Tribunal was appraised of GFYX’s difficult background, this was not pressed as a mitigating factor for his behaviour. Contrary to the view of Mr Orchard it appeared to the Tribunal no argument was proffered to excuse GFYX’s offending, outside his oversight of his reporting obligations.
Mr Orchard contended GFYX had sought to diminish his responsibility for his actions, had shown only qualified remorse for the harm caused to his victim and had attempted to excuse his behaviour because of his youth and cultural differences. The Tribunal finds GFYX’s testimony to the Tribunal and his written statement demonstrates insight, remorse, contrition and regret for his actions. The Tribunal places no weight on the statement of SH as it was not relied upon by GFYX at the hearing and SH was not called to clarify his understanding of GFYX’s actions. The Tribunal finds that at no stage did GFYX attempt to shift blame onto the victim by describing her as overly friendly or had given any indication she would welcome his advances. The Tribunal finds that GFYX was aware he had no right to attempt to kiss his victim without her consent and had not sought to diminish his behaviour, noting his statement:
I immediately retreated. I knew then I had made a terrible mistake, but did not know how to take my actions back. I could see that she was extremely upset and disgusted. I was upset and disgusted with myself. In hindsight I know this was beyond foolish, and wrong.
The Tribunal places significant weight on the testimony and written statements of GFYX’s character referees who had all attested to him possessing the qualities of good character identified in the Policy direction: that he was hard working, respectful, financial responsible, considerate, calm, honest and law abiding. All the referees were aware of his offending and were surprised that he had been involved in such an incident as it appeared completely out of character. The Tribunal places considerable weight on the refence and testimony of QH, which indicated that GFYX was ashamed and remorseful for his actions:
I was with him when we discussed with his lawyer if he would be better off pleading guilty. I sat in the court while the case was contested. I observed as the events of that fateful night were discussed in a great deal of depth and detail. GFYX did not speak during those 2-3 hours. I could see the remorse on his face, the regret that he should have known better. The disbelief that this is happening to him. He deeply regrets this incident ever happened.
The court agreed that despite the gravity of the crime, there were no intentions to cause harm. He didn't speak in the court as advised by his counsel.
The Tribunal also places significant weight on the reference and testimony of CG who as a professional social worker attested to the strength of GFYX’s community engagement and courtesy shown to all members of society. When appraised of the age of GFYX’s victim, they rightly expressed their disgust at such actions but said they could only speak of the man they knew that they had always found him to be a joy to be around and a calming presence.
The Australian community has a low tolerance for individuals who show no respect for our laws and values, especially those who commit serious and violent offences, particularly against women. The community also expects that individuals will gain insight into their actions and behaviours, demonstrate genuine contrition and remorse for their actions which the Tribunal considers GFYX has demonstrated.
The Australian community expects that people will be given a chance to redeem themselves and that GFYX’s numerous actions had demonstrated he was seeking to atone for his offending. As demonstrated by GFYX:
(a)giving back through his volunteering at the ASRC (assist other new migrants not to make the same mistakes that he did, and to assist in cultural awareness and bridge building in the community);
(b)appreciated the seriousness of his offending;
(c)appreciated the impact of his actions on the victim and community at large;
(d)had no pattern of serious criminal behaviour since the 2012 conviction, eight years ago; has consistently worked since, outside a short period on Social Security after his offending; and
(e)his employer and work colleagues regarded him as a good worker.
The Tribunal accepts the contention of GFYX’s counsel that he had taken steps to understand Australian laws, culture and society, not merely as a product of the effluxion of time, but because he has worked hard to do so and taken active, conscious and deliberate steps to establish himself as a different man.
The Tribunal notes it is a matter of the operation of the law that GFYX was placed on the Victorian Sex Offenders Register as a consequence of his conviction and the age of the victim. Mr Orchard contended that a person subject to such conditions in the community should not be considered to be of “good character”. Ms Chan argued that GFYX’s presences on the register should not be an impediment to him being considered of good character.
The Tribunal finds that GFYX had meet the obligations to the court in respect of his convictions and his presence on the Register did not operate as a bar to him being considered of good character, noting the words of the Law Reform Commission which stated the Registration is not part of the offender’s sentence. It is a separate scheme administered by Victoria Police. It is intended to be protective, not punitive. The Tribunal considers GFYX’s presence on the Register does not demonstrate that his enduring moral qualities are so deficient that he should be denied the right to citizenship, drawing upon the decision of his Honour Justice O’Bryan in the matter of Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383, where the Full Court of the Federal Court of Australia found:
The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.
The Tribunal considers that an automatic mandate placing GFYX on the Sex Offenders Register did not assess his risk of reoffending or consider the seriousness of his actions. The Tribunal is tasked to consider such things and an automatic mandatory action of a Parliament without consideration of the totality of a person’s qualities is not sufficient a reason to bar that individual from being considered of good character, as the Court observed in Goldie the authorities had distilled good character in s 21(2)(h) of the Act to mean:
the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression 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 Tribunal finds that sufficient time has passed for GFYX to be considered of good character since his obligations to the court had ended some seven years ago and in that time he has demonstrated, outside his one reporting failure to be law abiding, hardworking and an asset to our community.
The Tribunal, taking the following into account, finds that whilst GFYX’s offending was serious it was at the lower end of the spectrum based on the conviction imposed and courts orders; GFYX has not offend since; has been in steady employment; has contributed back to the community through his volunteering at ASRC; had references from numerous individuals that attested to his good character; has married and is starting a family; that sufficient time had passed since he had offended; had shown remorse and insight into his actions to demonstrate he has reformed to now be considered of good character. The Tribunal is therefore satisfied that GFYX is a person a good character and that he should not be denied the right to seek citizenship by conferral.
DECISION
The Tribunal sets aside the decision of the Delegate, dated 16 September 2019 refusing GFYX’s application for Australian citizenship by conferral; and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), that GFYX is a person of good character for the purposes of the Act.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decisions herein of Ms A E Burke AO, Member.

.......[sgd].......................................
Associate
Dated: 28 September 2020

Date of Hearing: 14 August 2020

Counsel for GFYX: Ms K Chan

Solicitors for the Respondent: JT Lawyers

Advocate for the Respondent: Mr C Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 3761

28 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

Jurisdiction

Court	Date	Nature of Offence	Sentence
Melbourne Magistrates Court	3 April 2014	Fail comply with reporting obligations	With conviction, fined $1000.00
Geelong Magistrates Court	28 Nov 2012	Indecent assault	With conviction, fined $2500.00
Geelong Magistrates Court	28 Nov 2012	Fail start taximeter - Taxi-cab hired	Without conviction, fined $100.00

Date of Hearing:	14 August 2020
Counsel for GFYX:	Ms K Chan
Solicitors for the Respondent:	JT Lawyers
Advocate for the Respondent:	Mr C Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers