Gillbanks and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 3929
•21 November 2022
Gillbanks and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 3929 (21 November 2022)
Division:GENERAL DIVISION
File Number:2022/2698
Re:Warren Gillbanks
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Deputy President J Sosso
Date:21 November 2022
Place:Brisbane
The decision under review is affirmed.
........................[SGD]................................................
Deputy President J Sosso
Catchwords
CITIZENSHIP — application for Australian citizenship by conferral — where Applicant has been convicted of criminal offences — where Applicant failed to disclose criminal convictions in citizenship application — where Applicant made a false statutory declaration — where Applicant has an extensive traffic offence history — where Applicant failed to lodge tax returns — decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Drugs Misuse Act 1986 (Qld)
Taxation Administration Act 1953 (Cth)
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
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
Minister for Home Affairs v G (2019) 266 FCR 569
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Patel and Minister for Immigration and Border Protection [2015] AATA 966
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Australian Government, Department of Immigration and Border Protection, ‘Australian Citizenship [Policy Statement]’.
Australian Government, Department of Immigration and Border Protection, ‘Citizenship Procedural Instructions’.
REASONS FOR DECISION
Deputy President J Sosso
21 November 2022
INTRODUCTION
Mr Warren Gillbanks (the Applicant) seeks review of a decision of a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) made on 4 March 2022 to refuse to grant Australian citizenship by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) – Exhibit 1 T11 pp. 82 – 91.
The Applicant was born in December 1977 in Auckland, New Zealand, and is a citizen of that country – Exhibit 1 T4 pp. 40, 47, T11 p. 86. On 14 April 1984, when aged 6 years old, he first entered Australia with his mother – Exhibit 1 T4 p. 18, Transcript (Tr.) 18.10.2022 p. 7.
The Applicant’s mother is listed on his New Zealand Birth Certificate as Helen Elizabeth Gillbanks who was born in Auckland, New Zealand, in 1941. The Applicant’s father is not recorded on the Birth Certificate – Exhibit 1 T4 p. 47.
On 1 September 1994, the Applicant was granted a permanent visa – Class BF-C – Exhibit 1 T11 p. 86.
The Applicant lodged an “Application for Australian citizenship” (Form 1300t) on 19 July 2021 – Exhibit 1 T4 pp. 16 – 52.
In response to Question 39(a), “Have you 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 ticked the “Yes” box. The Applicant attached a National Police Certificate – Exhibit 1 T4 p. 30.
The National Police Certificate was authorised by the Manager, Police Information Centre, Queensland Police Service, and was stated to be valid as at 3 June 2021 – Exhibit 1 T4 p. 49.
The National Police Certificate listed three Court outcomes, all of which, were in the Southport Magistrates Court on 7 December 2015 and 13 February 2017.
The first Court outcome for 7 December 2015 was a conviction for failure to lodge income tax returns, involving 14 charges. The Applicant was convicted and fined $5,000.
The second Court outcome for 13 February 2017 involved the following offences:
(a)Possessing anything used in the commission of a crime on 19 October 2016;
(b)Possessing a dangerous drug on 19 October 2016;
(c)Possessing utensils or pipes etc. that had been used on 19 October 2016; and
(d)Possessing property suspected of having been used in connection with the commission of a drug offence on 19 October 2016.
Convictions were recorded for all offences, but the Applicant was not further punished.
The third Court outcome involved charges of producing dangerous drugs on 19 October 2016. A conviction was recorded, and the Applicant was fined $2,500 and in default imprisonment. He was given 12 months to pay the fine.
On 4 and 23 November 2021, the Applicant was invited to comment on, or provide an explanation about, adverse information, namely, a National Police History Check Report – Exhibit 1 T8 and T9 pp. 65 – 78.
The National Police History Check Report listed a further three Court outcomes, namely – Exhibit 1 T8 p. 72:
(a)East Maitland District Court, 18 February 2000, concealing a serious offence;
(b)Muswellbrook Local Court, 3 May 2000, contravening apprehended domestic violence order, fined $250 and Court costs of $54; and
(c)Ipswich Magistrates Court, 14 October 2005, committing a public nuisance, no conviction recorded, but fined $200.
Despite being given opportunities to provide a comment or explanation, the Applicant failed to avail himself of these opportunities. The Applicant does not deny he failed to provide a response and, in his Statutory Declaration of 21 July 2022, he provided the following explanation – Exhibit 2 paras 5 – 8:
“5.…I did not respond to the three Home Affairs requests emailed to me… I was busy at work, kept meaning to do, and simply missed the Home Affairs deadline – I did not give requests my full attention and did not seek the assistance I needed to put my thoughts and responses in writing.
6.I should have responded to the first letter following citizenship appointment on 4 November 2021, inviting me to lodge a statement in response to the offences listed on my National Police History Check. I do have difficulty putting my thoughts and responses in writing but I should not have kept putting off.
7. With regard to the 23 November 2021 additional National Police History check conducted by Home Affairs; again, I should have responded asking for more time and asked for assistance in putting my response in writing. As stated, my earlier years are a bit of a blur; I thought report I lodged was full history.
8.As such I did not provide Home Affairs with an explanation as to the history around the offences, my state of mind etc, the person I was when the offences were committed. I should not have delayed.”
On 4 March 2022, a Delegate of the Minister refused the Applicant’s application for citizenship – Exhibit 1 T11 pp. 82 – 91. In reaching this decision, the Delegate was not satisfied that the Applicant was of good character for the purposes of s 21(2)(h) of the Act. The following reasons were given – Exhibit 1 T11 p. 88:
“Post citizenship appointment on 04 November 2021, you were sent a Natural Justice Letter via email inviting you to provide a statement in response to the offences listed on your National Police History Check. You failed to provide the department with a response.
On 23 November 2021 the department conducted an additional National Police History Check. The new report contained additional offences not listed on your original police report that you provided the department with your application. You were sent another Natural Justice Letter via email inviting you to provide a statement in response to the updated offences listed on your National Police History Check. You failed to provide the department with a response.
On 12 January 2022, you were sent another Natural Justice Letter via email, and on 13 January 2022, a physical letter via registered post, inviting you to provide a statement in response to the offences listed on your National Police History Check. You failed to provide the department with a response.
As you have not provided a response to the request made by the Department on 12 January 2022, I am unable to make a full and accurate assessment of your character and I am therefore unable to be satisfied that you are of good character at the time of decision on your application. Therefore, I find you do not satisfy paragraph 21(2)(h) of the Act.”
On 31 March 2022, the Applicant applied for a review of the Delegate’s decision – Exhibit 1 T2 pp. 4 – 14. Section 3 of the Application allows an applicant the opportunity to give reasons for the application. In this instance, the Applicant provide the following reasons – Exhibit 1 T2 p. 5:
“…With work commitments I simply neglected to respond to Home Affairs within timeframe…”
LEGAL OVERVIEW
Pursuant to s 21(1) of the Act, a person may make an application to the Respondent to become an Australian citizen. Subsections 21(2) – (8) prescribe the various eligibility criteria. General eligibility criteria are dealt with in s 21(2) and, in the reviewable decision, the only eligibility criteria the Applicant was found not to have met was s 21(2)(h) namely:
“is of good character at the time of the Minister’s decision on the application.”
The Delegate was satisfied that the Applicant met the following statutory criteria – Exhibit 1 T11 pp. 87 – 88:
(a)s 21(2)(a);
(b)s 21(2)(b);
(c)s 21(2)(c); and
(d)s 21(2A).
As the Delegate was not satisfied that the Applicant was a person of good character pursuant to s 21(2)(h), the following criteria/prohibitions were not assessed – Exhibit 1 T11 pp. 87 – 89:
(a)s 21(2)(g);
(b)s 24(4);
(c)s 24(4A)(a); and
(d)s 24(4A)(b).
The term “good character” is not defined in the Act. It has been observed that the absence of a definition indicates that Parliament intended that the term be used in a broad way and allows a decision-maker to consider a range of events and conduct connected with an applicant – per O’Bryan J in BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (BOY19) at [46].
There have been a number of Federal Court decisions on the meaning of this term and the proper application of the good character test. Reference can be made to the following observations of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving) 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 subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
An assessment of good character, then, is an objective exercise governed by a review of the evidence presented, as distinct from an exercise coloured by emotion and only a partial understanding of a person’s character and behaviour.
Such an assessment is by no means an easy task and a decision-maker must reach the requisite state of satisfaction. The Tribunal made these observations in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7]:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”
Subparagraph 21(2)(h) requires a decision-maker to be “satisfied” that an applicant is of good character. Guidance on what degree of satisfaction is required can be found in the judgment of O’Bryan J in BOY19 (at [54] – [55]):
“54. Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word ‘satisfied’ in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite… Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion…
55. The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision‐maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision‐maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision‐maker to have a high degree of confidence that the applicant is a person of good character. Further, where a power is conferred by statute, Parliament is taken to intend that that power will be exercised reasonably… However, the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision‐maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees…”
Although the Act does not define “good character”, guidance is provided to decision-makers by:
(a)the Australian Citizenship Policy Statement (ACPS) – Exhibit 1 T12 pp. 92 – 101; and
(b)the Citizenship Procedural Instructions (CPI) – Exhibit 1 T13, T14 pp. 102 – 132.
It needs to be noted that neither the ACPS nor the CPI are made pursuant to a specific provision in the Act. In Minister for Home Affairs v G (2019) 266 FCR 569, the Full Court (Murphy, Moshinsky and O’Callaghan JJ) made the following observations ([18]/574):
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”
Their Honours also made the following observations ([58]/586):
“It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created…”
The Tribunal will generally apply the ACPS and CPI unless there is a cogent reason not to do so – Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
However, although the ACPS and CPI provide sound general guidance to a decision-maker, where a level of satisfaction is reached for the purposes of s 21 of the Act, then any further requirements or steps as set out in the ACPS and CPI need not be addressed – Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72.
Reference can also be made to the non-exhaustive list of characteristics expected of a person of good character set out in Cl. 4 of the CPI 15 “Assessing Good Character under the Citizenship Act” (Exhibit 1 T14 p. 115). The relevant characteristics, as set out in CI. 4, as relevant to this matter, are:
“An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
o…
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
o…
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia…
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.”
It is also important to set out the following guidance in Cl. 4 which informs a decision-maker on how to sensibly apply these principles in particular circumstances – Exhibit 1 T14 p. 115:
“Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.”
CPI 15 Cl. 14 also gives guidance on the weighing of information and, when a decision-maker is assessing whether an applicant is of good character, the following general propositions are to be taken into account – Exhibit 1 T14 p. 126:
·“characterise the nature of any offence or behaviour
·is the offence serious or minor?
·did the offence harm other people?
·who were victims?
·is there a pattern of behaviour?
·was it a one off incident?
·were there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
·length of time since the offence was committed
·age at time of offence
·behaviour since completing prison sentence or obligations to court
·remorse regarding their offending behaviour
·community support (referee reports etc)
·changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decisionmaker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.”
A decision-maker is required to be satisfied that an applicant is of good character at the time of the decision, and not at an earlier period of time – CPI 15 Cl 14.2. Decision-makers should consider the following matters – Exhibit 1 T14 p. 127:
·“Would a person of good character behave the way the applicant did?
·What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
·Has the applicant behaved in accordance with Australia’s community standards, such as obeying the law?
·Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
·Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
·Are there any other factors that are relevant to an assessment of the applicant’s character?”
THE HEARING
A Hearing was convened in Brisbane on 18 October 2022.
The Applicant appeared in person and gave evidence under oath.
The Minister was represented by Mr Matthew Hawker who also appeared in person.
No witnesses were called by either party.
CONSIDERATION
Introduction
The Minister contends that the Tribunal cannot be positively satisfied that the Applicant is a person of good character because of his criminal history and his failure to declare the totality of his offending – Exhibit 4 para 19.
The Applicant, conversely, submits that he has been alcohol and drug free since 2017, has put his life in order, is physically and mentally well, and intends to remain so – Exhibit 2 para 10. Further, the Applicant submits that he is now financially stable and runs his own tiling business. He claims also that he is a practising Muslim, does not consume alcohol and follows the principles of his faith, namely, respect for himself and others – Exhibit 2 paras 11 – 12.
It is not disputed that the sole issue before the Tribunal is whether the Applicant is, at the time of this decision, a person of good character.
As was explained by O’Bryan J in BOY19, for a decision-maker to be satisfied that an applicant is good character, the decision-maker must reach an affirmative belief of that state of affairs. It is not necessary for a decision-maker to have a high degree of confidence that an applicant is of good character, but, conversely, it is insufficient to reach that state of satisfaction if there is only a chance that an applicant has met that standard.
It is necessary to deal with one matter at the outset. The Applicant claimed that he has an Australian citizen father. In his Statutory Declaration of 21 July 2022, the Applicant named the person as VAB, who was born in Randwick, New South Wales, in February 1945. The Applicant deposed that he did not apply for Australian citizenship by descent because VAB was not recorded on his birth certificate. The Applicant also deposed that he had been estranged from VAB for most of his life, and currently had a strained relationship with him – Exhibit 2 paras 13 – 16.
At the Hearing, the Applicant testified that he was the youngest of seven children, and that he was the only child to have VAB as his father. He also testified that he and his mother followed VAB to Australia, but that he did not live with them after they settled in New South Wales – Tr. 18.10.2022 pp. 7, 11.
At the Hearing, the following exchange occurred – Tr. 18.10.2022 pp. 12 – 13:
“DEPUTY PRESIDENT: So when you say your father is this gentleman… is that because your mother told you that he was your father.
MR GILLBANKS: Yes. I know he’s my father. He was probably the only figure I remember when I was a bit younger, like from the age of six, five, four.
DEPUTY PRESIDENT: Did you have any contact with him?
MR GILLBANKS: Off and on, yes. Off and on.
DEPUTY PRESIDENT: But he’s not registered on your New Zealand birth certificate as your father. Has he ever admitted paternity?
MR GILLBANKS: He hasn’t but my mother has.
DEPUTY PRESIDENT: So you’re relying entirely on what your mother has to say. There’s no DNA evidence that he’s your father.
MR GILLBANKS: No.”
It is clear from the above exchange that there is no secure evidence before the Tribunal concerning the paternity of the Applicant. Quite properly, in the absence of DNA evidence or a formal admission of paternity by VAB, the Applicant is limited to applying for citizenship by conferral, as distinct from citizenship by descent. The Tribunal has proceeded on this basis.
In his summing up address, Mr Hawker referred the Tribunal to CPI 15, and, in particular, to the principles contained in Cl. 4 headed “An applicant who is of good character”. The Tribunal will adopt the relevant principles set out therein when making an assessment as to whether the Applicant is a person of good character.
Respect and abide by the law in Australia
First, as previously noted, the Applicant was convicted on 18 February 2000 of “conceal serious offence” for which he was released on a recognisance – Exhibit 1 T8 p. 72.
The Tribunal was provided with a record of interview conducted by New South Wales Police at the Muswellbrook Police Station on 27 August 1998. The Applicant, who was accompanied by his mother, was interviewed in regard to an armed robbery of the Black Hill Service Station on 29 May 1997. The Applicant denied playing any active role in the armed robbery. He admitted that one of his acquaintances had boasted that he would rob the Service Station but he did not believe that he would carry through with this proposed course of criminal action. He admitted to being at the Service Station some hours before the robbery and dropped off the person who committed the crime. He denied that he received any proceeds of the crime and admitted that he did not inform either the proprietors of the Service Station or the Police of the proposed robbery – Exhibit 5 ST8 pp. 203 – 228.
A New South Wales Police Service Facts Sheet prepared for Court proceedings summarised what the initial Police position was – Exhibit 5 ST8 pp. 237 – 238:
“During the evening of the 28 May, 1997 the defendant was with Craig and Trent EZZEY and Philip HICKSON at HICKSONS home where HICKSON stated that he was broke and needed money. Another in the group suggested they rob the Black Hill Service Station at Muswellbrook. The four then spoke about robbing the station and HICKSON obtained a beanie and cut eye holes out. He also obtained a black handled serated knife.
The defendant then drove the three other offenders in his vehicle towards the Black Hill Sendee Station where the EZZEY brothers argued about who was going to rob the station. It was decided that HICKSON would rob the station and that the others would wait in the defendants car nearby and pick him up after the robbery.
HICKSON waited several hours in the bushes, during which time he saw the defendants vehicle containing the three persons drive past the garage several times and wait up the road at a near by property.
HICKSON then entered the station, pulling the beanie over his head. He produced the knife and demanded money from the till. The victim handed HICKSON S3D0 in assorted notes. HICKSON then left the garage and saw that the defendants vehicle had left. HICKSON then ran back to the EZZEY's home and informed the defendant and the others that he had committed the robbery. He then produced the $300 and devided [sic] it between the four of them.
At 12.10pm 27 August, 1998 the defendant attended the Muswellbrook Police Station with his mother where he was electronically interviewed. The defendant stated he was present at HICKSONS home the night prior to the robbery and that HICKSON discussed that he was going to commit a robbery at the Black Hill Service Station. He further stated that he and Trent EZZEY drove HICKSON to the Black Hill garage where HICKSON went to the toilet. He states he dropped HICKSON there to hitch hike to Singleton for an unknown reason and he and Trent EZZEY left and went to the EZZEY's home. He further stated he was awoken at 6am by HICKSON who stated he had committed the robbery and showed them the cash he had received. He stated he received no money and was unaware that HICKSON was going to rob the garage. He was then charged.”
The Applicant was charged, with Craig and Trent Ezzey, that on 29 May 1997 at Muswellbrook, believing that Phillip Hickson committed the offence of robbery whilst armed with an offensive weapon, failed, without reasonable excuse, to bring information that might be of material assistance in securing the apprehension of Phillip Hickson, to the attention of a member of the Police Force – Exhibit 5 ST8 p. 199.
The Applicant was convicted of this offence on 18 February 2020 by Judge Morgan of the New South Wales District Court. The Applicant was released upon entering a bond of $500 for one year – Exhibit 5 ST8 p. 200.
In assessing this conviction, the Tribunal has taken into consideration a Pre-Sentence Report that was prepared by a Probation and Parole Officer on 18 November 1999 – Exhibit 5 ST8 pp. 229 – 230.
The Report notes that, at that time, the Applicant was living with his mother in Tenterfield and was the youngest of six children. It is also noted that his parents separated about two years prior, and the Applicant had formed a relationship with a woman of his age and they were the parents of a two month old baby. Since leaving school, the Applicant had worked in a variety of labouring and semi-trade positions, and, in particular, worked as a tiler. At the time of the report, the Applicant was not known to abuse alcohol or other substances. At the time of the offence, he was working as a farm hand in the Muswellbrook area and met the Ezzey brothers. The report concluded as follows – Exhibit 5 ST8 p. 229:
“Mr Gillbanks presents as a young man who until this time had been leading a law-abiding lifestyle. He has a consistent record of employment and continues through study and work to improve himself and his prospects, The anticipated restoration of his relationship [with his partner] would offer him the support to continue with this.
Unfortunately, in the period leading up to the sentencing, circumstances for the Applicant deteriorated. A Probation and Parole Pre Sentence Report dated 17 February 2000 provides the following information – Exhibit 5 ST8 p. 233:
“Since the Pre Sentence Report of 18 Nov 1999… a number of factors have changed.
He is no longer seeing the mother of his infant son, the relationship having dissolved acrimoniously.
Mr Gillbanks has withdrawn from, his Mechanical Engineering, studies, finding the work too onerous. While looking for work in the Muswellbrook area he is concentrating on developing his Martial Arts prowess with the long term aim of becoming an Instructor in the Boxercise area…”
The breakdown in the Applicant’s relationship with his partner resulted in the next part of his criminal history. Before turning to the next matter, the Tribunal notes the Applicant’s account of this conviction – Exhibit 3 para 1:
“I was young, foolish and naive. I had close friend who was involved in a crime; he told me about it – I thought he was mouthing off. I did nothing about it and, when questioned by police, I admitted I had been made aware of friend’s crime. I associated with the person who committed the crime, and was made aware of it. Whilst I did not commit the crime, I did not report his actions.”
The Tribunal accepts that, as a young and impressionable 19 year old, the Applicant was foolish and naïve. If this were the only stain on the Applicant’s life, then a right-minded decision-maker would place little weight on it.
The Applicant was next charged with breach of an Apprehended Violence Order (AVO) that occurred on 13 January 2000. The AVO was made on 7 December 1999 at the Muswellbrook Local Court for the protection of the Applicant’s previous partner (then aged 18 years) and their infant son. The Order required the Applicant not to contact, engage in intimating conduct or otherwise assault, threaten etc. his ex-partner – Exhibit 5 ST6 pp. 183 – 185.
A Police report of the incident contains the following information – Exhibit 5 ST5 pp. 174 – 175:
“about 12.30 pm on the 13.1.00 the victim … and her five month old baby … were going to the … medical centre with a friend … when ms … saw her ex de facto warren gillbanks in a vehicle … sitting at the intersection of … for the victim to get to the doctor’s surgery she has had to cross the road in front of the defendant, warren gillbanks, warren gillbank’s sister … was also in the vehicle and has started yelling at the victim but she unable to work out what was said. After attending the doctor’s surgery, the victim and her friend went to marketplace shopping centre. Whilst inthe Williams shoe store the victim has seen the defendant approaching her. To stop the defendant from getting near the child, the victim has also started to walk towards the defendant. Both parties have argued about access visits and the defendant has at one stage shook his right fist at the victim. The victim has gone back to her friend and started to push the pram away from the defendant when he has stopped her by getting in front of the pram and has tried to take the baby out. Again both parties have argued with the defendant admitting to the victim that he had already attended the victims home looking for her. The victim has again moved away from the defendant who has again approached her, both parties again argued. The victim has contacted the police by mobile phone to report the matter…”
The Applicant was charged, and the matter was heard on 3 May 2000. The Applicant’s previous partner, as well as Ms Marilyn Ezzey and the Applicant, gave evidence. The presiding Magistrate found the case proven and fined the Applicant $250 and placed him under probation supervision for such time as deemed necessary – Exhibit 5 ST6 p. 179.
The Applicant, in a Statutory Declaration deposed on 31 March 2022, provided this account of the incident – Exhibit 3 para 2:
“Again, young and stupid. My relationship had ended. We have a son. Order taken out against me. I was in a shopping centre and saw ex-partner and our son, who was a baby at the time. I went over to see my son (he was in his stroller), to touch him, and say hello. I was told to get away. I left after stating ‘he is my blood’. This incident was reported as a breach. As I was in a public place, I had not though [sic] that this was a breach of the Order.”
At the Hearing, the Applicant disputed aspects of the account recorded by the Police – Tr. 18.10.2022 pp. 25 – 27.
It would appear that the Applicant’s ex-partner had formed a relationship with one of the Ezzey twins, and that his relationship with her had become acrimonious. In these circumstances, having regard to the Applicant’s youth and the stressful circumstances that existed, the Tribunal would not place significant weight on this conviction if, as with the previous conviction, they stood alone as exceptional events during a particular period of time when the Applicant was an immature young man. However, as will be outlined below, that is not the case.
The next time that the Applicant came to the attention of Police was on 24 September 2005 when he was charged with committing a public nuisance and was fined $200 on 14 October 2005 by the presiding Magistrate at the Ipswich Magistrates Court. No conviction was recorded – Exhibit 5 ST2 p. 108.
The Applicant provided the following account of what occurred – Exhibit 3 para 3:
“I was at the Settlers Pub with my 18 year old nephew:
He won raffles that night: 2 x 6 pack of beer. We went to a public space, drank them. I went to an ATM to get money out to go to a club and when I returned to my nephew, he had been getting lippy with some local boys – 3 or 4. They got upset at the insults he was saying and threatened him. Being drunk, we both went too far – him insulting people and me stepping in, a fight started. The police arrived and arrested us.
Again, poor choices around my actions: young and stupid and alcohol involved.”
At the Hearing, the Applicant expanded on this incident – Tr. 18.10.2022 pp. 28 – 30. It would appear that the Applicant and his nephew became involved in an altercation with three youths. Both the Applicant and his nephew were intoxicated. Police officers arrived at the scene and the Applicant was arrested.
It is tolerably clear that, by this point of time, a pattern of behaviour was beginning to appear. The Applicant was making poor choices, whether intoxicated or not, and engaging in impulsive and, potentially, reckless behaviour.
The Tribunal has been presented with a report from Dr Fawaz Mufti, Consultant Psychiatrist, dated 24 October 2015. Dr Mufti assessed the Applicant on 22 October 2015 and made the following observations – Exhibit 5 ST2 p. 104:
“He suffers from Generalised Anxiety Disorder and symptoms of depression for the past 20 years. The symptoms include feeling ‘on edge’, anxious ruminations, poor concentration and some depressive symptoms such as low mood, feeling fatigued easily, anhedonia and feeling suicidal thoughts, but no active thoughts, intents, or plans.
Above symptoms affect his concentration, attention and decision making abilities as well as cause lack of interest, motivation and energy levels. This disrupts his psycho-social and occupational functioning.
He has received treatment in the past and currently being prescribed Lexapro 10mg mane. He is keen to continue treatment and attend regular appointments.”
Approximately one year after Dr Mufti’s report, the Applicant was charged with his most serious breach of the criminal law. On 19 October 2016, the Applicant was charged with five offences under the Drugs Misuse Act 1986 (Qld), namely:
(a)“That on the 19th day of October 2016 at Nerang in the State of Queensland one Warren Alan GILLBANKS unlawfully produced a dangerous drug namely Cannabis” – Exhibit 5 ST2 p. 34;
(b)“That on the 19th day of October 2016 at Nerang in the State of Queensland one Warren Alan GILLBANKS had in his possession lights plastic sheeting plastic pots and fertilizer that he had used in connection with the commission of a crime as defined in Part 2 of the Drugs Misuse Act 1986 namely producing dangerous drugs” – Exhibit 5 ST2 p 38;
(c)“That on the 19th day of October 2016 at Nerang in the State of Queensland one Warren Alan GILLBANKS unlawfully had possession of a dangerous drug namely Cannabis” – Exhibit 5 ST2 p. 40;
(d)“That on the 19th day of October 2016 at Nerang in the Magistrates Courts District of the Gold Coast in the State of Queensland one Warren Alan GILLBANKS unlawfully had in his possession a thing namely two water pipes and an electric grinder that he had used in connection with the smoking of a dangerous drug” – Exhibit 5 ST2 p. 42; and
(e)“That on the 19th day of October at Nerang in the Magistrates Courts District of the Gold Coast in the State of Queensland one Warren Alan GILLBANKS had in his possession property namely a PVC pipe reasonably suspected of having been used in connection with the commission of an offence defined in Part II of the Drugs Misuse Act 1986” – Exhibit 5 ST2 p. 44.
The Queensland Police Service Court Brief sets out the facts relating to the first charge – Exhibit 5 ST3 p. 162:
“At about 2:55pm on Wednesday the 19th day of October 2016 police from Nerang CIB attended … in possession of a PPRA search warrant for dangerous drugs.
Upon attending the dwelling at the address police located and detained three occupants including the defendant. At this time all occupants were provided with their rights and cautions in relation to the search warrant.
Upon being advised of this rights and cautions the defendant immediately declared to police that he wished to make them aware of items of interest in the rear of the dwelling within his bedroom.
Upon speaking with the defendant he made full admissions having made and maintained a hydroponic set up in an area of his bedroom which was producing the dangerous drug Cannabis.
Through further questioning the defendant stated to police that he had acquired items including plastic sheeting, light fittings, tubing etc. and utilised these items for the purpose of growing Cannabis for his own personal use. The defendant also stated that he cultivated this Cannabis by watering and feeding them a homemade fertiliser to assist in its growth.
Upon observing the hydroponic setup police observed ten (10) metre high Cannabis plants in black plastic pots positioned under light fittings within a room fashioned by plastic sheeting.”
The Applicant provided the following explanation for the commission of the above serious crimes – Exhibit 3 para 5:
“My bad habits, depression, lack of direction, motivation, poor personal choices (including friends), and production and use of drugs. I was arrested for possession of drugs, producing drugs and equipment.”
On 13 February 2017, the Applicant was convicted of each of the charges laid and was fined $2500 and given 12 months to pay – Exhibit 1 T4 p. 51.
The Applicant seeks to excuse this pattern of criminal offending over a lengthy period to him being young, foolish, naïve, keeping bad company, or being under the influence of alcohol or drugs. In addition, the Applicant seeks to explain his drug offences due to his mental state. As noted above, there is medical evidence that he was suffering from generalised anxiety disorder with symptoms of depression. However, it is patently clear to the Tribunal that the Applicant has shown, over an extended period of time, a disregard for the law and has engaged in criminal activity that has escalated over time.
The Minister drew to the Tribunal’s attention the following observations of the Tribunal in Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 (Kakar) at [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.”
The above incidents are not exhaustive of the Applicant’s criminal history, and further offences are dealt with below. However, the Minister submits that the length of time that has passed since 2017 is not sufficient for the Tribunal to be satisfied that the Applicant is reformed – Exhibit 4 para 35.
Although, as the Tribunal explained in Kakar, the length of time since the commission of an applicant’s last criminal offence is an important consideration. It has to been considered in light of a range of other factors. Not only are the seriousness of the crimes committed and rehabilitation undertaken important, but so too are the number of crimes committed, the age of the applicant, as well as medical and social factors that may explain why an applicant has committed crimes and is likely or unlikely to continue to reoffend.
In this matter, the Tribunal agrees with the Minister’s submission that an insufficient period of time has elapsed since the Applicant’s last serious criminal conviction for the Tribunal to be reasonably satisfied that he has reformed.
Be honest and financially responsible – pay tax
The evidence before the Tribunal is that the Applicant failed to furnish income tax returns for 14 consecutive years from 1 July 2000 until 30 June 2014 – Exhibit 4 para 26. The Applicant was charged with 14 offences pursuant to s 8C(1)(A) of the Taxation Administration Act 1953 (Cth) of failing to furnish an approved form or any information to the Commissioner of Taxation as required under the taxation laws of the Commonwealth – Exhibit 5 ST2 pp. 76 – 80.
The Applicant provided this explanation for his failure to lodge tax returns – Exhibit 3 para 4:
“I was in and out of work: I am a tiler. My life was spiralling out of control, depression, drugs and lack of motivation and I did not keep on top of my responsibilities – at the time I did not care or consider the consequences. I could not afford an accountant and simply let everything slide. I was fined for non-lodgement of tax returns/payment of tax.”
The Applicant’s excuse would be plausible if it were for a short period of time; however, the failure spanned more than a decade.
At the Hearing, the real reason was given for the failure to lodge tax returns – Tr. 18.10.2022 p. 35:
“What you don’t include in this explanation which we now know, having asked you some questions about your history, is that there was also a deliberate element to it? ---Yes, child support as well.
Yes. Do you accept that someone of good moral qualities would not do what you did over such a long period of time?---I fully agree.”
This exchange followed a series of Questions that were asked of the Applicant – Tr. 18.10.2022 p. 24:
“And after you moved to Queensland had you seen your child since then?---No.
Have you ever seen your child since then?---I did not first meet my son until 2008; yes, 2008.
So he was, what, around eight years of age by that point?---Yes.
And what was the nature of the contact after 2008?---He was in my care for six months, then he went back to his mother.
And after that?---There was really no contact at all. It was pretty much cut off.
After he was the age of about eight years of age?---Eight, yes.
Did she seek Child Support from you?---Yes.
And is that why you didn’t lodge your tax return for 14 years?---Yes. I’m glad you recognise that. That wasn’t purely the reason why I didn’t do my tax income return for 13 years; it wasn’t purely that reason.
But you did acknowledge it was at least a reason?---A reason, yes.”
The above exchanges illustrate that the Applicant’s excuses for his failure to lodge tax returns over a very long period of time do not comport with the reality of what occurred. The Tribunal accepts that the Applicant was going through a time of emotional turmoil and suffered, and suffers, from a mental ailment. However, there was clearly an intentional element in his failure to lodge tax returns, and that was to avoid or minimise his obligation to pay child support for his son. The Applicant agreed that this was the case on two occasions under cross-examination by Mr Hawker.
The Tribunal has taken this into account in reaching a finding on the question of good character.
Not to associate with persons who are involved with antisocial or criminal behaviour
The Tribunal notes that the Applicant submits that his original conviction in 2000 for concealing a serious offence was brought about by keeping with persons of bad character. Indeed, his defence to the initial charges laid against him was that he had kept company with persons of bad character, one of whom had carried out a robbery which he was not a party to.
Insofar as these events occurred more than two decades ago, and when the Applicant was a young man, it would be ordinarily appropriate and sensible to place not too much weight on these events.
However, the Tribunal was concerned about some of the evidence given at the Hearing in relation to the drug offences in 2016. The Applicant testified that, not only were Queensland Police officers present, but he surmised that Australian Federal Police and ASIO officers were also present. When questioned why ASIO officers would be interested in a drug raid, the Applicant made reference to his, and his son’s, association with Oliver Bridgeman. Bridgeman left Australia when he was only 18, travelling first to Indonesia, and then to Syria. The Commonwealth Government cancelled his passport and issued a warrant for his arrest, accusing him of travelling to Syria to engage in hostile activities. The following exchange occurred at the Hearing – Tr. 18.10.2022 pp. 36 – 37:
“DEPUTY PRESIDENT: Just before you continue Mr Hawker, are you saying that apart from Queensland police officers, ASIO and the Federal Police were there?---Yes.
Yes. Why was ASIO – – – ?---That’s what I’d like to know. No, that question has not been answered to me.
How do you know the people in question were ASIO? Did they identify themselves? ---Because you can tell. I can tell that – they’ve got the Federal Police badge on their chests.
But ASIO’s different than the Federal Police?---Yes. But I’m assuming they were ASIO, because one had guns, because by the way they’re dressed, by their appearance. One was Federal Police because he had a gun on his hip. ASIO doesn’t carry a gun on their hip.
Was anything asked of you apart from drug-related offences?---Yes, a lot of things. Especially about Islam and about that young fella back in 2012, 2013, Oliver Bridgeman, who went to Syria. I got questioned about that. That’s what I mean. It was – it was a very vague day, that day. It wasn’t just there for drugs. It was a lot of things that day.
Why would they have asked you questions about that gentleman, Mr Gillbanks?---That’s what I’m questioning for. My lawyer’s have said they just took advantage of the situation.
Did you know the person who had gone to Syria?---Yes, I – my son knew him. I knew of him. I can’t say I knew him very well. I just met him at the mosque a few times.
When you say your son, who do you mean?---My son was around his age group. My son would have been 14 at the time. Oliver would have been 18. So around about that age group.
I didn’t think you had any relations with your son?---He came to me when I was 14. He came to me when I [sic] was 14. In 2013.
And so was your son attending the Islamic mosque?---Yes. He’d become Muslim as well.
And was he radicalised?---No. No.
But he knew the person who’d gone to Syria to fight for ISIS, did he?---Oliver Bridgeman did not join ISIS.
What did he do?---He was actually there for humanitarian purposes.
Is he still alive?---I can’t – I don’t know. You do see him on Facebook a few times – – –
No. Some of those people who have gone there for humanitarian reasons are still being held by the Kurdish authorities?---He’s more towards Aleppo. He’s probably in the west. He’s like – – –
Aleppo?---Aleppo, yes.
Because Aleppo’s in the hands of the Syrian government, isn’t it?---I’m pretty sure. Yes.
Maybe he’s in Idlib?---He could be anywhere. He could be in Rome
Could be. Thank you Mr Hawker.
MR HAWKER: Thank you. Have you had any contact from ASIO or the Federal Police since then?---No, not since that day. They just asked me about my certain beliefs and things like that.
Have you tried to travel internationally since that time?---No.
You’re not aware if you’re on any particular list?---Not that I’m aware of. I hope not.”
The fact that the Accused attended the same mosque and associated with (as did his son) a person who the Commonwealth Government saw fit to cancel their passport is of concern. Again, while there is no evidence before the Tribunal to suggest that the Applicant has engaged in any activity that would constitute a threat to national security, he has a history of making unfortunate choices with the persons he associates with.
Not practise deception or fraud in dealings with the Australian Government
When assessing good character, CPI 15 focuses on whether a person has, inter alia, concealed criminal convictions.
The Minister submits that the Applicant has not been forthcoming and honest in his dealings with the Commonwealth about the totality of his offending which weighs against a finding that he is of good character – Exhibit 4 para 38.
The Applicant failed to disclose, in his citizenship application, the offences for which he was sentenced in 2000 and 2005. In his Statutory Declaration of 21 July 2022, the Applicant provided the following reason for this omission – Exhibit 2 paras 2 – 3:
“2. I provided police check reports as part of my application and I believed that the police checks I provided were a full and complete history.
3. I did not at any stage knowingly omit details of my earlier years and criminal history. As outlined, in my youth, I did have a problem with addiction and violence, and my lifestyle at the time was out of control and my recollection of events not great. I did provide Police Check reports and understood this was a full record.”
This account is at odds with that testimony of the Applicant at the Hearing – Tr. 18.10.2022 pp. 42 – 43:
“Okay. At the time in July 2021, you knew that your criminal history was more extensive than what was on that police certificate. Correct?---Yes, yes. Yes. I was actually quite disappointed when I got that police certificate.
Yes. But rather than disclose the balance of your criminal history, you left it. You were silent on your early history and left it at just what was on the police certificate? ---Intentionally silent, no.
Having known – and you’ve, as I understand your response, you knew your history was more extensive?---Yes, but I can only provide what I’ve got given. It’s not like I can actually have special privileges and (indistinct) all to go deep into my criminal history.
Well the reason – what I’m suggesting to you is the reason that you didn’t go into any more detail – and there’s a free text part – is because you didn’t really want the Department to know the rest of the story?---Are you sure?
You accept that?---No, it’s you’re saying it, not me.
Because that really wouldn’t be beneficial to your application at the time, would it? ---I don’t know. I didn’t have that type of mindset or that thought going into my mind at that period of time.
But from what you’re saying, you knew the report you lodged was not a full history. Correct?---Yes, that’s true.
Okay. Well can I ask you to turn to your statutory declaration then, made on 21 July 2022? At numbered paragraph 7, where you say something different again. In the last sentence there, you say:
‘My early years a bit of a blur. I thought the report I lodged was full history.’
Now having regard to what you just said to the tribunal, that is simply false. Correct? ---Is it? I don’t believe it’s false. It’s probably inaccurate. It’s not false.
You’re arguing with me about a word between whether it’s false or whether your statement there is inaccurate?---It was accurate to the best of my knowledge at that period of time.
You just said that you knew at the time you were completing your application, you knew the report not to be full. Correct?---Not at the time. I was kind of questioning, why didn’t they go back further into my criminal history.
And the reason why you’ve explained that to the tribunal today is because it’s simply not plausible whatsoever to suggest that when one examines the full circumstances of your history and your extensive engagement with the authorities at the time –whether it’s sitting in a police interview, whether it’s contesting a matter at trial before court – it’s simply not plausible at all to suggest that at the time you were making your application for citizenship, you would have had any reasonable belief that that criminal history you first submitted was a full report. Correct?---To my knowledge, to my greater knowledge, yes.”
It is clear from this exchange that the Applicant knew that his criminal history was more extensive than the National Police Certificate of 3 June 2021 disclosed – Exhibit 1 T4 p. 51. The Applicant’s statement in his Statutory Declaration that he “understood that this was a full record” is patently false.
In short, the Applicant has made two false declarations.
The first false declaration was in response to Question 52 of his citizenship application form where he declared “that the information I have supplied in this form is complete, truthful and correct in every detail” – Exhibit 1 T4 p. 33. That answer was false, as the Applicant admitted at the Hearing. The Applicant testified that he “was actually quite disappointed when I got that police certificate” and he was disappointed because he knew that the information contained in the National Police Certificate only dealt with some of his criminal history.
The second false declaration was his Statutory Declaration of 21 July 2022. The Applicant falsely deposed that he believed the National Police Certificate was “a full and complete history” – Exhibit 2 para 2. Yet, at the Hearing, the Applicant admitted that he knew, when he submitted the citizenship application, that it was not a full and complete history.
When Mr Hawker put to the Applicant that he had deliberately withheld information to gain a benefit, namely, a more generous consideration of his citizenship application, the Applicant became evasive and did not answer the Questions posed in a convincing manner.
The Minister submitted, based on previous Tribunal determinations, that truthfulness in the completion of government documents, such as an application for citizenship, is an “absolute requirement” – Fang and Minister for Immigration and Border Protection [2018] AATA 3686 at [97]. Further, a failure to fulfil this responsibility will weigh heavily against a finding that an applicant for citizenship is presently of good character – Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082 at [82].
The Tribunal agrees that an applicant for citizenship who deliberately provides false, misleading, inaccurate or inadequate information would, subject to providing a reasonable and compelling excuse, be subject to adverse inferences. Whilst it would be an overstatement to say that such a person would not be of good character, as other considerations also come into play, it would be fair to say that such a person has seriously weakened their case.
In this matter, the Applicant has doubly weakened his case. The deliberate provision of inadequate and misleading information has been compounded by a false and misleading Statutory Declaration. This weighs heavily against the Applicant.
Not cause harm to others – negligent or drink driving, excessive speeding
The Applicant has an extensive history of breaching the traffic laws of Queensland. The Tribunal was provided with a Queensland Police Service Traffic Record – Exhibit 5 ST2 pp. 48 – 50. In the period 30 May 1998 until 18 March 2016, in both New South Wales and Queensland, the Applicant was fined on multiple occasions for various traffic breaches. This included three enforcement orders for exceeding the speed limit by more than 20 km/h, but not more than 30 km/h.
The Minister drew the Tribunal’s attention to the following observations in Patel and Minister for Immigration and Border Protection [2015] AATA 966 (Patel) at [61] – [62]:
“[61] In circumstances where there is a significant pattern of continuous speeding and traffic related offences by a young person in a relatively short period of time, there is no basis for asserting that the matter is minor or of little consequence and should be ignored for citizenship purposes. At this level, it demonstrates what can only be described as a flagrant and continuous disregard of the law and the safety and welfare of others. Such a pattern of offences cannot be treated in any way as trivial or minor.
[62] … the Tribunal is of the view that the correct or preferable decision is that the applicant is not currently a person of good character…”
The applicant, in Patel, had also been charged with three counts of exceeding the speed limit by more than 20 km/h, but not more than 30 km/h.
If the Applicant’s traffic history is not concerning enough, there is also a conviction for driving while a relevant drug was present in his saliva. The Applicant was charged and convicted of the following offence – Exhibit 5 ST3 p. 153:
“That on the 28th day of June 2015 at Nerang in the Magistrates Courts District of Gold Coast in the State of Queensland one Warren Alan GILLBANKS whilst a relevant drug namely Delta-9-tetrahydrocannabinol was present in his saliva did drive a motor vehicle namely a car on a road namely Spencer Road Nerang…”
The Queensland Police report of the incident is that, when questioned, the Applicant admitted to smoking approximately 3 or 4 cones of cannabis at about 10:00pm the previous evening. The Applicant is said to have told Police officers that he knew it was an offence to drive whilst under the influence of a drug and that there was no reason or emergency for driving. Finally, the Police notes indicate that the Applicant stated that he believed he was not under the influence of a drug at the time of his interception – Exhibit 5 ST3 p. 153.
In short, the Applicant has a long history of persistently breaching the traffic laws of both New South Wales and Queensland. The breaches of the traffic laws started when the Applicant was a young man and have continued on a fairly regular pattern since then. The breaches of the traffic laws are serious, but are not, of themselves, in this matter, determinative of the question of good character. It may be in an extreme case, as was observed in Patel, persistent breaches of traffic laws can result in a decision-maker forming the view that an applicant shows a flagrant disregard for the traffic laws of Australia and also of the safety of fellow motorists and pedestrians. In short, a lengthy history of traffic infringements can, in certain circumstances, result in a decision-maker forming the view that an applicant has no regard for his fellow road users, and this demonstrates that he or she is not a person of good character.
In this matter, the lengthy nature of the Applicant’s traffic law breaches weighs against a finding that he is a person of good character.
Conclusion
When making an assessment of whether a person is of good character, a decision-maker assesses the moral qualities of an applicant as they are at the time of the decision. It may be that a person has engaged in criminal behaviour, or has otherwise lived a life that falls far below the expectations of right-thinking people. However, it may also be that, despite past acts and omissions that stain an applicant’s life, he or she has shown genuine contrition and has turned their life around. Where a person has rehabilitated themselves, shown insight and contrition, and has engaged, for a sustained period, of living a good and productive life, demonstrating that they contribute to Australian society, then a decision-maker may form the opinion that such an applicant has is now of good character. Good character is not set in stone. Just as a person once of good character can deviate into anti-social behaviour, so too a person can positively transform their life.
When making a decision as to good character in citizenship matters, a decision-maker must exercise some caution in not overly factoring in behaviour when an applicant is young and impressionable. This is particularly the case if an applicant has come from a different society and takes some time to integrate into the expectations and standards of Australian society.
Some latitude should also be given to a person who suffers from mental ailments, and their breaches of the law have their genesis in their weakened mental state.
In this matter, there is a history of youthful indiscretions and of ongoing mental health issues. The Tribunal has taken these into account, and, as noted above, has attempted to give the Applicant appropriate leeway and understanding.
In his Statutory Declaration of 31 March 2022, the Applicant made the following claims – Exhibit 3 paras 7 – 9:
“7.I take responsibility for my actions. I have continuous work as a tiler, I lodge my tax returns and pay my taxes. I do not socialise with people who will bring me down or have anti-social behaviour.
8.I am not the same person I was when in my 20s, 30s and early 40s. I am drug and alcohol free.
9. I converted to Islam a few years ago, and t receive spiritual guidance and social support from the members of my Mosque. The principles of lslam – respect for self and others, respect for the law of the land, to do no harm – has helped me to mend my ways, and has given me a sense of purpose and strength and I have a better understanding of myself and a positive outlook on life.”
Three matters arise from the above statement.
First, and to the Applicant’s credit, he states that he works continuously as a tiler. At the Hearing, the Applicant testified that he established his own business approximately 20 months ago and he now employs another person full-time. The Applicant testified that his business is very busy and is profitable – Tr. 18.10.2022 p. 17.
Second, the Applicant claims that he is not the same person that he was. The following exchange occurred at the Hearing – Tr. 18.10.2022 pp. 15 – 16:
“DEPUTY PRESIDENT: So how would you say you are as a person now, compared to what you were five years ago?
MR GILLBANKS: I see myself today as an actual asset to society.
DEPUTY PRESIDENT: Would you say you were a person of bad character five years ago and earlier?
MR GILLBANKS: Not bad character, probably more of a maturing character.
DEPUTY PRESIDENT: What I should say; you know for the purposes of citizenship law, you have to be a person of good character, and a person of good character has many attributes to it, but basically is a person who is an asset to society, is a law abiding person who contributes to society, who respects its laws and customs. Would you say you were such a person five years ago?
MR GILLBANKS: To a degree, yes, I would say so, 80 per cent of the time I would’ve been; 99 per cent of the time I’d say I would’ve been. When it comes to 1 per cent, a greater citizen, it comes down to define a greater citizen. Like, I could make a traffic error somewhere and get fined for it, things like that. I could walk across the road without using a pedestrian button. Some things can slip your mind. But when it comes to criminal activities, no interest.
DEPUTY PRESIDENT: So how different are you now than what you were five years ago?
MR GILLBANKS: A lot different. I can’t really bring words to – to explain that. It’s very hard, very difficult to answer a question like that.
DEPUTY PRESIDENT: But you say you are a different person.
MR GILLBANKS: A lot more mature.”
Third, the Applicant placed emphasis on his conversion to Islam and the claimed positive change it had made to his life. Again, the following exchange occurred at the Hearing – Tr. 18.10.2022 pp. 13 – 14:
“DEPUTY PRESIDENT: Are you a different person now?
MR GILLBANKS: Yes.
DEPUTY PRESIDENT: You might like to explain to me why you’re a different person now.
MR GILLBANKS: Well, when I was going through these booklets here, when you’re reading through the past 25 years of history, I don’t like that character in that book. I do not like him.
DEPUTY PRESIDENT: When did your life turn around?
MR GILLBANKS: I embraced Islam in 2012. It took a few years to really comprehend certain mysteries in life. I’ve just gone from the guidance of the Koran’s [Hadith], slowly applied each key to my life, and all I can say is I can only excel for the greater good.
DEPUTY PRESIDENT: So are you currently taking drugs?
MR GILLBANKS: No.
DEPUTY PRESIDENT: When did you stop taking drugs?
MR GILLBANKS: Last five years. Really I don’t – I don’t remember.
DEPUTY PRESIDENT: Approximately five years.
MR GILLBANKS: Yes, approximately that.
DEPUTY PRESIDENT: No, I’m not holding you to any particular
MR GILLBANKS: Yes, I can see that.
DEPUTY PRESIDENT: How about the consumption of alcohol?
MR GILLBANKS: I don’t drink. I don’t drink.”
During cross-examination, on a number of occasions, Mr Hawker pointed out to the Applicant that, despite having converted to Islam and having been positively influenced by his new religion, he continued to offend – Tr. 18.10.2022 p. 18:
“And as I understand what you’re explaining to the tribunal, that is in essence your case; you’ve changed, but the change you point to is in the context of your age, recent change, that is, change in your 40s, correct?---Yes.
Because, as I understand it, when you say, ‘I’m not the person I was in my early 40s’, you’re still in your 40s, right; you’re 44?---Yes.
When you spoke earlier about what changed, you’re pointing to a part of that change, you spoke about embracing Islam and you explained when you did that, and it was 2012, and you would accept that after embracing Islam you had continued to commit criminal offending, and that included drug related offending?---Yes.
And that included traffic related offending?---Yes.
And that included tax related offending?---Yes.”
The evidence before the Tribunal does not support the Applicant’s claim that his Islamic conversion resulted in him obeying the traffic, taxation and drug laws of Australia. On the contrary, it was after his adoption of Islam that he committed, arguably, his most serious crimes. The Tribunal accepts that the Applicant’s conversion to Islam has resulted in some positive elements, including the Applicant abstaining from the consumption of alcohol. Moreover, the Tribunal does not dispute the Applicant’s sincerity when professing his adoption of the Islamic faith. However, the objective evidence before the Tribunal does not support the Applicant’s claim that his new religion has resulted in him becoming a law-abiding person. If the adoption of his new religion had this positive impact, he would not have been seriously breaching the drug laws of Queensland.
The Tribunal, in fairness to the Applicant, recognises there are some very positive recent developments in his life. The fact that he has established a thriving and profitable business stands to his credit. Further, the Tribunal has no evidence of the Applicant committing any serious crimes in the last couple of years. It may well be that the Applicant is slowly turning his life around. Should that be the case, then time will be the best judge.
On the other hand, there remaining troubling signs that the Applicant may not have learned all the lessons from the past. In particular, the Applicant’s false declarations in his citizenship application and his Statutory Declaration of 21 July 2022 have undermined his case that he is now a person of good character. Likewise, the Applicant’s failure to reply to Departmental letters concerning his citizenship application also suggest that he may not understand the seriousness of applying for citizenship and honestly engaging with the Commonwealth Government.
For all of the reasons outlined above, the Tribunal is not satisfied that the Applicant is now a person of good character for the purposes of s 21(2)(h) of the Act. This is not to deny that the Applicant may satisfy a future decision-maker that he is a person of good character. If the Applicant continues to live a productive life, obey the laws of Australia and honestly engage with the Commonwealth, when making any future citizenship application, then a different result may eventuate. The conclusion reached by the Tribunal does not preclude the Applicant from making a fresh application in the future.
DECISION
The decision under review is affirmed.
I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
.......................[SGD]................................................
Associate
Dated: 21 November 2022
Date of hearing: 18 October 2022 Applicant: In-person Solicitor for the Respondent: Mr Matthew Hawker
Sparke Helmore Lawyers
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