Gupta and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 775

Gupta and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 775 (17 April 2023)

Division:GENERAL DIVISION

File Number(s):      2022/0709

Re:Santosh Gupta

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:17 April 2023

Place:Adelaide

The decision under review is affirmed.

....................[Sgnd]............................................

Senior Member B J Illingworth

Catchwords

CITIZENSHIP – ‘Good character’ for the purposes of s 21(2)(h) – Affirmative Belief – Enduring Moral Qualities – Australian Citizenship Act 2007 (Cth) – Criminal Offences – Reasonable amount of time passed since offending – Pattern of good behaviour – Characteristics demonstrated over a long period of time – Decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Secondary Materials

Australian Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member B J Illingworth

17 April 2022

INTRODUCTION

1. On 17 January 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) (formerly the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) refused to grant Mr Santosh Kumar Gupta (“the Applicant”) Australian citizenship by conferral (“Australian citizenship”), under s 24 of the Australian Citizenship Act 2007 (Cth) (“the Act”) on the basis the Applicant failed to meet the “good character” requirement.[1] On 28 January 2022, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the Respondent’s decision under s 52(1) of the Act.[2]

   [1] Exhibit A, T14 p 74–85.

   [2] Exhibit A, T2.

2. The Respondent was not satisfied, at the time of the decision, that the Applicant was of “good character” for the purposes of s 21(2)(h) of the Act because the Applicant had committed a number of serious offences, including offences involving violence and threats of harm; and a reasonable amount of time had not yet passed since the offending to establish a pattern of good behaviour.[3]

   [3] Exhibit A, T14 p 82.

3. At the hearing before the Tribunal, the Applicant appeared in person and was self-represented. Mr Alex Chan of Sparke Helmore appeared for the Respondent.

4. The Tribunal received into evidence the documents listed in the exhibit list, held on the Tribunal file.

   BACKGROUND

5. The Applicant was born in India on 30 October 1972 and is 50 years of age. He is married with a wife and has two children, aged 21 and 14 years. His second child was born after he arrived in Australia. They all live together. His wife and children are Australian citizens.

6. On 12 July 2005, the Applicant arrived in Australia with his wife and eldest child as a holder of a SIR (Offshore) (Full fee) (UX 495) temporary visa.[4]

   [4] Exhibit A, T14 p 78.

7. On 18 September 2007, the Applicant was granted a Skilled–S/T-Nominated Former SIR (BN 137) permanent visa, and on 2 December 2017 he was granted a Resident Return: Five Year (Web) (BB 155) permanent visa.[5]

   [5] Exhibit A, T14 p 78.

8. Between 2011 and 2019, the Applicant appeared in several South Australian Courts for the following offences:[6]

   [6] Respondent’s Statement of Facts, Issues and Contentions (“SoFICs”), p 2 [3] (Dated 18 July 2022); Exhibit A, T12 p 61–62.

Date of Offence	Date of sentence	Offence	Outcome
03/12/2010	14/11/2011	Drive at night/in hazardous weather without effective lights	Fine of $70
25/05/2011	06/12/2011	Exceed speed limit by 15-29km per hour	Fine of $112
12/11/2014	21/12/2015	Threaten to kill or endanger life (two counts)	14 months imprisonment with a non-parole period of 9 months, with the sentence suspended on condition that the applicant enter into a bond for 3 years
23/04/2018	25/07/2018	Damage property	Dismissed without conviction or penalty
01/06/2017	14/08/2019	Common assault (basic offence)	$500 good behaviour bond for 12 months
23/12/2019	Breach of bond	Found proven

1. The Applicant has not committed an offence since 1 June 2017, for which he appeared in Court for “Common assault” on 14 August 2018. On the date of the offence, the Applicant was serving a suspended sentence for “threatened to kill or endanger life” (two counts).[7] A condition of the suspended sentence was that the Applicant enter into a bond to be on good behaviour for three years, which bond he entered into when sentenced on 21 December 2015 (“good behaviour bond”).[8]

   [7] Exhibit D, RTB1 p 1–3; Exhibit D, RTB3 p 29.

   [8] Exhibit D, RTB1 p 3.

2. Hence, within approximately 18 months of entering into his good behaviour bond, the Applicant re-offended, which breach was the subject of the “Breach of bond” proceedings for which he appeared on 23 December 2019, as referred to in the above table. This was the Applicant’s last appearance before a Court which I will detail later along with his other offending.

3. On 17 July 2020, the Applicant lodged his application for Australian citizenship.[9] The Respondent received an independent psychiatric report of Dr Jules Begg, dated 13 March 2015.[10] Dr Begg opined the Applicant suffered Major Depressive Disorder and his depression intensified personality traits which contributed to his frequent expression of suicidal ideations and ideas of harming others.[11] The Respondent also received two brief undated letters of support.[12]

   [9] Exhibit A, T4 p 11–30.

   [10] Exhibit A, T13 p 65–71.

   [11] Exhibit A, T13 p 69.

   [12] Exhibit A, T13 p 72–73.

4. The Respondent said, in the reviewable decision:
   
   

   “The Citizenship policy states that a reasonable amount of time will need to have passed to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character. You were convicted of the offence threaten to kill or endanger life - aggravated offence (2) on 21 December 2015. You were sentenced to 14 months imprisonment with a non-parole period of 9 months/suspended sentence under a 3-year good behaviour bond. The 3-year good behaviour bond would have expired on 21 December 2018. Less than 12 months after your obligation to the court concluded, you were convicted on 14 August 2019 of commit assault – basic offence, in which you acquired a further 12-month good behaviour bond. I am not satisfied that a reasonable amount of time has passed to establish a pattern of good behaviour.

   In light of the above assessment, I am not satisfied that you are of good character.”[13]

   [13] Exhibit A, T14 p 82.

5. The Applicant maintains he has not offended since 2017, which demonstrates he is a person of “good character”.

   ISSUES TO BE DETERMINED BY THE TRIBUNAL

6. The issue for determination in this matter is whether the Applicant is of “good character” and meets the eligibility requirements in s 21(2)(h) of the Act at the time of the Tribunal’s decision.

   LEGISLATION AND POLICY

7. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that where the Minister receives such application, the Minister must approve or refuse to approve the person becoming an Australian citizen.

8. Section 24(1A) provides that the Minister must not approve an application for a person to become an Australian citizen unless that person is eligible under ss 21(2)–(8) of the Act. Relevantly in this matter, s 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied the person “is of good character at the time of the Minister’s decision on the application”.[14]

   [14] Emphasis added.

9. In BOY19 v Minister for Immigration and Border Protection (“BOY19”), O’Bryan J considered the requirement that a decision maker be satisfied of an applicant’s “good character”. His Honour stated at [54]–[55]:

   “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.[15] 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.

   …

   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.”

   [15] McDonald v Director General of Security (1984) 1 FCR 354 at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Sun v Minister for Immigration (2016) 243 FCR 220 at [6] per Logan J and at [76]-[79] and [95] per Flick and Rangiah JJ.

10. Accordingly, I agree with the Respondent’s submission, in the context of s21(2)(h) of the Act, satisfaction of “good character” requires the Tribunal to reach an affirmative belief the Applicant is a person of “good character”.[16]

    [16] Respondent’s SoFICs, p 4–5 [11].

11. The term “good character” is not defined in the Act. However, there is guidance on the application of the “good character” requirement in the Australian Citizenship Procedural Instructions (CPI) (“the Policy”). The Tribunal is not bound to apply the Policy, however, it should give regard to and apply the Policy unless there are cogent reasons not to do so.[17] The Tribunal is not aware of any cogent reason that exist in the circumstances of this matter for the Policy to be disregarded in making this decision.

    [17] Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.

12. Chapter 15 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian citizenship where “good character” is involved. It states:

    “‘Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.”[18]

    [18] Exhibit A, T15 p 107.

13. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (“Irving”), Lee J said, at [431]–[432]:

    “Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character.[19] Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”[20]

    [19] see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. 

    [20] Emphasis added.

14. Chapter 15 of the Policy also sets out the phrase, ‘enduring moral qualities’ as encompassing the following concepts:

    ·“characteristics which have been demonstrated over a long period of time;

    ·distinguishing right from wrong; and

    ·behaving in an ethical manner, conforming to the rules and values of Australian society.”[21]

    [21] Exhibit A, T17 p 107–108 [3.3]; Exhibit A, T14 p 81.

15. The Policy additionally outlines the characteristics of “good character”, including an applicant who would:

    ·“respect and abide by the law in Australia and other countries;

    ·be honest and financially responsible…;

    ·not practice deception or fraud in dealing with the Australian Government or other organisations, for example:

    ointentionally providing false personal information (such as fraudulent work experiences or qualification documents);

    oother material deception during visa and citizenship applications;

    oconcealing criminal convictions;

    ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated incidents of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a license);

    …”[22]

    [22] Exhibit A, T17 p 109.

16. The Policy states the CPI’s should not be applied rigidly or inflexibly but should provide guidance about the types of behaviour which may give rise to an adverse finding. It is for the Tribunal to exercise its statutory obligation having regard to the facts of a matter.[23] The Policy also informs the need to consider other information provided by the Applicant including for example, raising children, being in a stable home environment, being employed and paying taxes, and the community work undertaken. Expression of genuine remorse for past wrongdoing and the time that has elapsed since the wrongdoing may also be relevant in the Tribunal reaching a conclusion about the Applicant’s character.[24]

    [23] Exhibit A, T9 [4.4].

    [24] Exhibit A, T17 p 109 [4].

    THE EVIDENCE

17. The Applicant was qualified in India as an engineer. Following his arrival in Australia, he continued work as an engineer for seven years. In 2012, he stopped work after a diagnosis of narcolepsy, which he described as very debilitating. He suffered from extensive tiredness and memory loss. He referred to the report of Mr Richard J. Balfour, psychologist, dated 29 August 2019.[25]

    [25] Exhibit B, A8–A32.

18. The Applicant explained that the report of Mr Balfour was obtained because Dr JP, his treating respiratory physician (specialist), who was the victim in the Applicant’s offences of “threatened to kill or endanger life” (two counts) had said, amongst other things, the Applicant did not suffer from memory loss, and this remained disputed. The Applicant referred to the table in Mr Balfour’s report which indicated his memory loss had a percentile score of 16, which meant he was in the ‘lowest 16 percent of the community’.[26]

    [26] Exhibit B, A30.

19. The Applicant said Dr JP alleged he was exaggerating his symptoms which resulted in the Applicant not receiving a Disability Support Pension (“DSP”), and this therefore had a significant impact on the Applicant’s mental health, and he tried to commit suicide several times. Since 2014, he has been in hospital for psychiatric treatment. He said, what Dr JP did to him made him feel like he could not survive, and he had to commit suicide, which he said will have a significant impact on his family. Prior to committing the offence of “threaten to kill or endanger the life” (two counts), he had been in hospital for two and a half months. He had several Electro Convulsive Therapy (ECT) treatments, after which he said he felt psychotic and had memory issues, including loss of memory. The Applicant agreed that shortly after his release from that psychiatric care, he committed the offence against Dr JP.

20. The Applicant blamed Dr JP for what happened to him. The Applicant said when he was being sentenced for his offending, Her Honour Judge Davey did not consider, and he did not have the opportunity to present his evidence, and he now has to commit suicide which will occur in a few months’ time. He has issued proceedings again Dr JP in the Supreme Court in regard to Dr JP’s conduct, and after this has concluded he will commit suicide. The Applicant said Dr JP had committed a criminal offence and caused him psychological harm. He described Dr JP as dishonest.

21. The Applicant referred to the notes of his General Practitioner which demonstrated that since 2007 the Applicant had complained of feeling dizzy, sleepy, suffering headaches and memory loss.[27] He also referred to the report of Dr McLeod, who reported similar symptoms.[28] He then said, after he commits suicide the current Tribunal proceeding will be of no use, but he has brought the proceeding in hope that he will receive a finding that he is of “good character”.

    [27] Exhibit E, A34.

    [28] Exhibit E, A35.

22. The Applicant said he eventually received the DSP, but it was stopped three years ago for reasons he does not know, and he is not receiving any Centrelink benefits at this time.

23. The Tribunal received statutory declarations, being character evidence in respect of the Applicant.[29] The Applicant referred to that evidence, and in particular that of Mr NK who was his tenant.[30] The Applicant explained that insofar as Mr NK referred to the Applicant agreeing to reduce his rent, the Applicant did so even though at the time he himself was not earning an income and was struggling financially. He said the character evidence supports his “good character”. His offending occurred at a point when he reached his breaking point. He would not have otherwise offended.

    [29] Exhibit A, T13 p 72–73.

    [30] Exhibit B, A2.

24. The Applicant said that sufficient time has passed since his last offence. The Applicant submits, taking into account his mental health condition, together with the character evidence, he has established that he is a person of “good character”. The Applicant said he continues to suffer from serious mental health issues, but he is not currently undertaking any anger management programs.

    The Applicant’s offending

25. In cross-examination, the Applicant was referred to the “Reasons for Application” contained within his application for review to the Tribunal, which reads: “My application for citizenship was refused on my criminal records. However, all criminal records are unfair and unjust. Moreover there are case laws where applicant’s applications were approved even after criminal records.” He was asked to explain what he meant. His summary of each offence follows.

    The First Offence

26. The Applicant said, in relation to his first offence, “driving at night without effective lights”, that his ‘side was not heard’. He said he had a ‘16 percentile score’ on the memory loss scale (as contained in Mr Balfour’s Report, dated 29 August 2019, which post-dated the hearing for the first offence),[31] and hence in respect of, “driving without effective lights”, he simply forgot to turn them on (the headlights). He was 200 meters from his house and South Australian Police (“SAPOL”) stopped and fined him. It was his first offence. He said it was an act of discrimination. It was not unlawful to drive without headlights. He was being discriminated against because of his disability. Further, if he paid the fine in accordance with the expiation notice rather than challenging the matter in Court, there would have been no criminal conviction recorded. Therefore, the Applicant said he was dealt with unfairly and was punished for his disability.

    [31] Exhibit B, A30.

    The Second Offence

27. The Applicant’s second offence, “exceed speed limit”, occurred when he was driving to Adelaide from Victoria. He was alleged to be travelling at 138 kph, namely 28 kph over the 110 kph speed limit. The Applicant said he never drove at that speed. He did not dispute that he was speeding, he disputed the alleged speed at which he was travelling.

28. The Applicant, in reply to the ‘Invitation to Comment on adverse information–Application for Australian citizenship by conferral’,[32] said the Court hearing was 100 kilometres from his home. He accused the prosecution of playing a tactic of calling him to Court, would not come to Court, and the Judge would provide a new date for hearing. After this occurred on three to four occasions, the Applicant got fed up and accepted responsibility for the offence. The Applicant said this was unfair for everyone. He was critical of SAPOL and that he was required to burn fossil fuel travelling 200 kilometres on each occasion.

    [32] Exhibit A, T13 p 63.

    The Third Offence

1. The offences of aggravated “threaten to kill or endanger life” (two counts) related to threats made against Dr JP. The Applicant said was upset because Dr JP alleged he was exaggerating his condition, and as a consequence his application for DSP failed. The Applicant said, “he made my application fail, he made my lawyer refuse to help me, he made my insurance company not to pay me insurance”.

2. The SAPOL Apprehension Report detailed the offending.[33] On 12 November 2014, SAPOL attended ‘Cramond Clinic’. They were advised the Applicant was looking for Dr JP, who was not there. When spoken to by SAPOL, the Applicant produced three knives and a pair of scissors. The Applicant was taken into custody. The SAPOL Apprehension Report reads:

   “He stated that he will kill the victim. If police locked him in prison for 20 years, at 21 years he will kill the victim. He stated if police released him from custody today he will go tomorrow and kill the victim. He stated would get possession of a firearm from a criminal and shoot the victim or die trying.

   The accused stated the only way to keep the victim safe was to lock him away.”[34]

   [33] Exhibit D, RTB3 p 28–32.

   [34] Exhibit D, RTB3 p 30.

   Sentencing remarks

3. Two psychiatrists agreed the Applicant was mentally competent, at the time of the offending, and fit to stand trial. The Applicant then pleaded guilty to the charges of aggravated “threaten to kill or endanger life” (two counts). The Applicant was sentenced in the District Court by Her Honour Judge Davey on 21 December 2015.[35] Her Honour said the Applicant had been detained in the ‘Cramond Clinic’, a psychiatric clinic attached to the Queen Elizabeth Hospital, under a mental health order, until 10 November 2014. The victim was Dr JP, who was involved in the Applicant’s treatment, and made an assessment of the Applicant’s capacity to work for the purposes of DSP. The Applicant disagreed with this assessment.

   [35] Exhibit D, RTB1 p 1–3.

4. On 12 November 2014, following the Applicant’s release, the Applicant returned to ‘Cramond Clinic’ looking for Dr JP. The Applicant made threats about Dr JP to staff, and threatened Dr JP’s life. At the time of the threats, the Applicant possessed three serrated edge knives and a pair of scissors. SAPOL attended the scene, and the Applicant was taken to a SAPOL station and interviewed, where he made further threats to kill Dr JP. During the interview with SAPOL, the Applicant claimed he had forgotten the knives and scissors were in his possession.

5. In cross-examination before the Tribunal, when asked why he had the knives and scissors in his possession the Applicant did not seek to challenge the reasons of Her Honour Judge Davey and declined to answer the question. When directed by the Tribunal to answer he said, he had been cleaning vegetables, had a psychotic episode and forgot he had the items in his pocket.

6. However, it is not the role of the Tribunal to go behind the findings of Her Honour Judge Davey and for the purpose of this application the Tribunal has had regard to Her Honour’s sentencing remarks, namely that he had the knives and scissors in his possession, which the Tribunal infers gave rise to the offences being described as aggravated.

7. Her Honour Judge Davey said there was no doubt the offending arose in the context of the Applicant’s mental illness and Her Honour had regard to the Applicant’s diminished responsibility arising from that mental illness.

8. Her Honour noted the Applicant had spent a total of eight months in custody and most of that period at ‘James Nash House’.[36] Her Honour said:

   “An important feature of your offending apart from your mental illness is it you have  narcissistic personality traits with a stronger sense of entitlement involving challenge of authority.”[37]

   Her Honour also referred to unrelated threats made to Queen Elizabeth Hospital staff in 2014, at a time when the Applicant was being treated, and for which he was not charged. She additionally said:

   “I also note that in June 2015 you made a threat to harm yourself and that you “could take your children with you”. As a result you were detained at Glenside Hospital and James Nash House until your condition improved. … the orders that I make should include a requirement that your place of residence be subject to the approval of community corrections in order to provide protection, if required, for your wife and children.”[38]

   [36] Note: This is a mental health service in Oakden, South Australia which houses forensic mental health patients, including those awaiting court hearings, where they undergo rigorous mental health assessments, which are often referred to at their next court appearance.

   [37] Exhibit D, RTB1 p 2.

   [38] Exhibit D, RTB1 p 2.

9. The Tribunal does not take this incident in June 2015 into account when assessing the Applicant’s character, but the incident is indicative of the Applicant’s on-going mental health issues. 

10. Taking into account time spent in custody, and his pleas of guilty, the Applicant was sentenced to 14 months imprisonment with a non-parole period of nine months suspended upon entering into a three-year good behaviour bond.[39]

    [39] Exhibit D, RTB1 p 3.

11. In cross-examination, the Applicant was referred to his SoFICs.[40] He confirmed his opinion that Dr JP was not properly regarded as an expert in narcolepsy and was not fit to practice as a medical practitioner. The Applicant stood by his submission that Dr JP lied so the Applicant would not qualify for DSP and maintained that in doing so he committed a criminal offence.[41]

    [40] Applicant’s SoFICs, in particular p 4 [28].

    [41] Applicant’s SoFICs, p 5 [33].

12. The Applicant was referred to the remarks of Her Honour Judge Davey. He did not agree with Her Honour’s comment that he had “a strong sense of entitlement involving challenge of authority”.[42] He said he has a sense of what is fair. If not fair, he would not accept it. The Applicant also said Her Honour Judge Davey did not take into account Dr JP’s offending, that Dr JP’s conduct has impacted upon his mental health, and he now has to commit suicide.

    [42] Exhibit D, RTB1 p 2.

13. The Applicant did not accept the proposition that Dr JP gave his honest opinion, albeit it was different to the view held by the Applicant.

    The Fourth Offence

14. This offence of “damage property” related to a dispute the Applicant had with his neighbour. On 23 April 2018, at 3:30PM SAPOL attended the Applicant’s neighbours’ property.[43] The Applicant’s neighbour had erected plastic sheets on her side of the fence to increase the fence height. She had attached them to her pergola. The Applicant was hitting the sheets using a metal bar causing them to come loose. SAPOL spoke to the Applicant and told him to stop.

    [43] Exhibit D, RTB3 p 71–72.

15. At 5:20PM, SAPOL were called back to the property. The Applicant was cutting one of the plastic sheets with scissors and it had almost been cut in half. He was taken into custody and charged with property damage.

16. In cross-examination, the Applicant agreed the incident occurred in the context of a neighbour dispute. He maintained he did not commit an offence. He referred to a screw attaching the plastic sheeting which protruded though his side of the fence, and therefore it was the neighbour who damaged his property first. However, he said the plastic extension was not legal and no council approval had been obtained. He spoke with the neighbour, but she refused to take down the sheets, so he removed them himself.

17. The Applicant said he was arrested and given bail. When he came back before the Court he said he did not want to plead guilty, and the Judge revoked his bail. The Applicant said he was arrested, and after one hour he was called back into Court and the Judge said, “you have now experienced life in jail”. The Applicant said he was under duress because of the Judges actions, and he had to plead guilty.[44]

    [44] Applicant’s SoFICs, p 7 [49].

18. In response to the Tribunal, the Applicant agreed SAPOL attended the scene, told him not to damage the plastic sheeting and when they left, he damaged it anyway. As a result, SAPOL returned to the property. He said he continued to damage the plastic sheeting. He said SAPOL were not listening to him.

19. The Tribunal notes this offence was committed at a time when the Applicant was subject to the three-year good behaviour bond, imposed by Her Honour Judge Davey, but the Office of the Director of Public Prosecution took no action to estreat the bond.

    The Fifth Offence

20. The circumstances of the “common assault” offence are contained in the SAPOL Apprehension Report.[45] On 1 June 2017, a Traffic Controller, employed by Prime Traffic Solution, was setting up signage in respect of work to be done on a main road. A white van, driven by the Applicant, pulled up and parked in an illegal spot to make a delivery to a hotel and blocked a sign from the view of traffic. The Traffic Controller approached the Applicant and asked him to move the van. The Applicant refused. The Traffic Controller, and a co-worker, moved the sign to a better visual position and then took a photograph of the van using his mobile telephone. The Applicant came out of the hotel and smacked the telephone out of the hand of the Traffic Controller. The Applicant stepped back, tripped on his trolley and fell to the ground. He stood up and hit the Traffic Controller on the left side of the head.

    [45] Exhibit D, RTB3 p 63–66.

21. The Applicant denied the allegations at trial, but the Magistrate accepted the evidence of the Traffic Controller. On 14 August 2019, the Applicant was convicted of the offence. The Applicant was placed on a 12-month good behaviour bond and if he breached the bond, he was to return to Court to be resentenced.

22. In cross-examination, the Applicant denied his vehicle was parked illegally, save that part of his van was approximately 30cm beyond the yellow line. He said the other people stared threatening him and taking photographs. He did not consent to the photographs being taken so he hit the camera, which fell down, then the Traffic Controller pushed the Applicant and the Applicant slapped him. He said his action was an immediate response to being pushed. The Magistrate did not accept the Applicant was reacting to being pushed by the Traffic Controller.

    Breach of Bond

23. The Applicant, in committing the offence of “common assault”, breached his three-year good behaviour bond entered into on 21 December 2015. On 29 December 2019, the Applicant came before Her Honour Judge Davison on an application to estreat the bond.

24. Her Honour had before her a progress report from Community Corrections which said that the Applicant had been reporting since 14 August 2019. It was clear the Applicant did not want to be in the session and his engagement was superficial. Her Honour noted the Applicant did not agree with the good behaviour bond (for the offence of common assault), and said it was self-defence, albeit he was now accepting of the bond.

25. The Community Corrections Officer said it was very important the Applicant attend a course for anger management and that he had an appointment to do that on 13 January 2020. If accepted on the course, he would be expected to complete it by April 2020. Her Honour Judge Davison referred to the importance of the Applicant undertaking that course which would not be available to him in custody.

26. The Tribunal referred the Applicant to the sentencing remarks of Her Honour Judge Davison, she said:

    ‘The Community Corrections Officer goes on to say that it is very important that you attend a course for anger management and you have an appointment in relation to doing that on 13 January 2020. If accepted on this course, then you will be expected to complete the course in April 2020.

    She remarks that given your history of anger and lack of insight into your offending, it will be important that you undertake anger management and this would not be an option if you are in custody.

    She says that you have a depressive disorder, a narcissistic personality and narcolepsy, this small movement from refusal of needing counselling to accepting the requirements should be seen as a very positive step in your rehabilitation.”[46]

    [46] Exhibit D, RTB2 p 5.

27. The Applicant could not satisfactorily explain, in evidence before the Tribunal, whether he was accepted into the anger management course, or  if he attended it to its completion. He said he saw a person on three occasions who appeared to indicate that because the Applicant and the Traffic Controller, who was the victim of “common assault”, had differing versions of events, they could not assist the Applicant. His answer was confusing, unhelpful and I am not satisfied he completed the anger management course to which Her Honour Judge Davison referred, or any anger management program at all.

28. The Applicant also has a Human Rights Commission Complaint against the Department of Home Affairs (as it then was).[47] The complaint was made when the Department rejected the Application for Australian citizenship, which the Applicant maintained involved discrimination because he was dealt with by the Court for conduct which arose from memory loss and referred to the first offence. He did not know the status of that complaint.

    [47] Exhibit C.

    Medical Evidence

29. The Applicant has been under the care of a General Practitioner for the last three to four years. He sees a specialist for his narcolepsy, but is not seeing any other medical specialist.

30. Dr Jules Begg, psychiatrist, provided a report to Legal Service Commission, dated 13 March 2015.[48] This was the first of two reports provided in respect of the Applicant and his fitness to stand trial in respect of his third offence. The second report was not before the Tribunal.

    [48] Exhibit A, T13 p 65–71.

31. Dr Begg, and Dr Nambier, agreed the Applicant was mentally competent at the time of the offending and thereafter the Applicant pleaded guilty to aggravated “threatened to kill or endanger life” (two counts).

32. In his report, Dr Begg said:

    “I came to the conclusion, on the balance of probabilities that the predominant problem is that of a Major Depressive Disorder, the depression intensifying personality traits contributing to his frequent expression of suicidal ideas and ideas of harming others.

    …

    Major depressive disorder is a mental illness and satisfies the criteria of mental impairment.

    He also suffers from Narcolepsy, which itself affects cognitive functions. It will have exacerbated the depression. I do not believe that he has a personality disorder but there were exacerbation of personality traits due to depression.”[49]

    [49] Exhibit A, T13 p 69.

33. Dr Begg also opined that depression, narcolepsy and ECT treatment all contributed to intensification of personality traits and affect the Applicant’s cognitive functioning.

34. Mr Balfour’s report, dated 29 August 2019, was directed to the registered medical officer at Glenside Eastern Acute Inpatient Unit.[50] A forensic neuropsychological assessment of the Applicant had been requested to provide additional information to assist in general management, diagnostic clarification and to plan the Applicant’s care. This is contrary to the Applicant’s explanation for the report being obtained as mentioned above, namely to address the lies told by Dr JP and to establish that he did suffer from memory loss.

    [50] Exhibit B, A8–A32.

35. Mr Balfour opined there was no evidence to suggest the Applicant suffered from thought disorder, was experiencing hallucinatory phenomenon or had delusional beliefs. He was feeling moderately depressed and highly anxious.[51]

    [51] Exhibit B, A10.

36. Mr Balfour noted the Applicant had developed complex mental health problems since being diagnosed with narcolepsy in 2008, and had become severely depressed in 2014 when his application for DSP was unsuccessful. He has attempted suicide twice. He was hospitalised in 2014 when he stopped drinking water for 11 days and was also hospitalised for six weeks when his wife intervened and stopped him from hanging himself. He was under the supervision of psychiatrist Dr Lavender, which he found beneficial.

37. The Applicant suffers from depression and anxiety. There was no clinical evidence the Applicant suffered a psychotic illness, intellectual disability or neurodevelopmental disorder.[52] His mental health had significantly deteriorated since he was diagnosed with narcolepsy in 2008. There was a strong suggestion he had narcissistic personality traits that led to a sense of entitlement; and narcissistic injury, when challenged about his illness-related behaviours, lead to aggressive behaviour. He will require psychological and psychiatric assistance.

    [52] Exhibit B, A23.

38. Mr Balfour said he believed the Applicant would require psychological and psychiatric assistance to establish a new identity.[53] He currently viewed himself as invalid and had poor insight into his mental health problems. He has a vulnerable and rigid personality, and it would be appropriate he be referred to a group Dialectical Behaviour Therapy programme. He clearly required ongoing pharmacotherapy, managed by Dr Lavander, and recommended a neuropsychological review in two to three years. He also recommended treatment by a forensic psychologist experienced in treating severe personality disorders, and a history of aggression.

    [53] Exhibit B, A25–A26.

    CONSIDERATION

39. For the purpose of s 21(2)(h) of the Act, the Tribunal must reach an affirmative belief the Applicant is a person of “good character”. As the Respondent correctly submitted,[54] it is not sufficient for the Tribunal to believe there is a chance the Applicant is a person of “good character”; equally it is not necessary for the Tribunal to have a high degree of confidence the Applicant is a person of “good character”.[55]

    [54] Respondent’s SoFICs, p 5 [11b].

    [55] see Boy19 at [55].

40. The decision by the Tribunal, in regard to the Applicant’s character, is to be made at the point in time of the Tribunal’s decision. The Applicant raised the time that has passed in which he has not committed an offence, together with mental health and the character evidence provided, and submits he satisfies the requirements of s 21(2)(h) of the Act. I will refer to that character evidence in a moment.

41. It is important for the Applicant to understand that a finding that he does not satisfy the Tribunal of the “good character” requirements of s 21(2)(h) does not mean the Tribunal has determined the converse applies, namely the Applicant is a person of bad character.

42. As I have said above in reference to Chapter 15 of the Policy:

    “Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.”[56]

    Hence, “good character” refers to the ‘enduring moral qualities’ of a person and is not a question of the Applicant’s good standing, fame or repute in the community. As was discussed in Irving a person convicted of a serious crime who was then held in contempt in the community, may nonetheless show he or she has reformed and is of “good character”.

    [56] Exhibit A, T15 p 107.

43. Importantly, Chapter 15 informs the Tribunal that the phrase ‘enduring moral qualities’ requires a demonstration by the Applicant of the required characteristics over a long period of time; demonstrates the ability to distinguish right from wrong; and to behave in an ethical manner conforming to the rules and values of Australian society.[57]

    [57] Emphasis added.

44. The Applicant has provided two statutory declarations for character evidence. Mr VS in his declaration, dated 1 April 2022,[58] says he has known the Applicant for four years and is his tenant. He has been advised of the Applicant’s convictions, which he finds surprising, as he is very law abiding and of a caring nature, always helpful to others. Mr NK in his declaration, dated 5 April 2022,[59] declared he has known the Applicant for seven years and was his tenant until 2016. They have remained in contact. He was aware of his offending but found the Applicant to have a very helping nature. He referred to the Applicant reducing his rent when he was in financial difficulty. He described him as law abiding.

    [58] Exhibit B, A1.

    [59] Exhibit B, A2.

1. Both character evidence declarations are of limited assistance to the Tribunal in determining whether the Applicant demonstrates ‘enduring moral qualities’. They lack substance to specify how the Applicant has exhibited the ‘enduring moral quality’ characteristics over a long period of time, they fail to identify if the Applicant can distinguish right from wrong or behave in an ethical manner. They speak only of the regard each has for the Applicant, which I accept is their respective opinion.

2. The Applicant has not committed an offence since the “common assault” on 1 June 2017, for which he was sentenced on 14 August 2019 after a trial in the Magistrates Court. The Applicant was placed on a 12-month good behaviour bond, and he has not breached that bond.

3. However, the offence of “common assault” breached the three-year good behaviour bond that he entered into on 21 December 2015, when sentenced for aggravated “threaten to kill or endanger the life” (two counts) of Dr JP.

4. The breach of that three-year good behaviour bond could not be dealt with until his conviction for the offence of “common assault” had been determined. Hence, the breach came before the District Court and was determined on 23 December 2019.

5. The breach was excused, but there are some important matters referred to by Her Honour Judge Davison when excusing the breach. The report of the Community Corrections Officer said the Applicant’s engagement in the process was superficial. He did not agree with the good behaviour bond and said he acted in self-defence. I note the Applicant still maintains he acted in self-defence which demonstrates a lack of insight into his conduct, and arguably reflects an absence of contrition and remorse for his offence. The Community Corrections Officer went on to say the Applicant was now accepting of his bond and it was very important the Applicant attend an anger management course which had been arranged, but was not available if he was imprisoned.

6. Further, Her Honour Judge Davison noted the three-year good behaviour bond expired one year earlier and the Applicant was then on a one year good behaviour bond for the offence of “common assault”, which was in force until August 2020. Taking into account his long history of mental health issues, noting he was under the care of a psychiatrist, albeit the Applicant had ceased medication, which was important he continue, the breach was excused.

7. However, the Applicant did not satisfy the Tribunal that he undertook, and completed, the anger management course. He is not currently consulting a psychiatrist, and the only medication he receives is related to his narcolepsy, and his 12-month good behaviour bond only expired in the recent past

8. The Report of Mr Balfour makes it very clear the Applicant required ongoing psychological and psychiatric assistance and recommended Dialectical Behaviour Therapy. It would appear that treatment is not ongoing.

9. It is evident the Applicant either maintains his innocence for his offending, or has an explanation for his conduct that mitigates his behaviour. His evidence that the charge of “driving without effective lights” was an act of discrimination lacks substance. The fact he genuinely believes that to be so demonstrates a continued lack of insight into his conduct.

10. He accused SAPOL of inappropriate tactics, which gave rise to his guilty plea for speeding.  He accused Dr JP of deceptive misconduct, which led to very serious offences of aggravated “threaten to kill or endanger life” (two counts).

11. He blamed his neighbour of misconduct which gave rise to the offence of “damage property”. This offence occurred after SAPOL came to his home, warned him not to continue damaging the plastic sheeting, and yet he continued to offend saying SAPOL did not listen to him. Again, it shows a lack of insight into his conduct.

12. I am satisfied the Applicant’s offending was underpinned by significant mental health issues which impacted upon his narcissistic personality and narcolepsy. These conditions also explain his threats to commit suicide and that on one occasion, his wife stopped him from hanging himself. However, throughout the hearing, the Applicant repeated his intention to commit suicide which suggests the Applicant’s complex mental health issues have not been addressed and he remains a risk of re-offending in the future should an event occur which he may regard as unfair, or contrary to his beliefs and expectations.

13. Further, given his lack of insight into his past behaviour, I am not satisfied the Applicant, by virtue of his complex mental health and personality issues, will respect and abide by the laws of Australia where events do not meet his beliefs and expectations.  

14. This is relevant when considering his ‘enduring moral qualities’, and distinguishing right from wrong, and behaving in an ethical manner conforming to the rules and values of Australian society.

15. Although the Applicant’s last offence of “common assault” was committed in 2017 for which he was sentenced in 2019 following a trial, and noting he did not breach the good behaviour bond sentence imposed, it still could not be said the characteristics of ‘enduring moral qualities’ have been demonstrated over a long period of time. The Applicant’s offending and engagement with the criminal justice system, including the breach of bond excused in 2019, are properly regarded as having occurred in relatively recent history.

16. Further, his reported disinterest by the Community Corrections Officer, his inability to satisfy the Tribunal he engaged in the anger management course, his apparent cessation of treatment by a psychiatrist and relevant prescribed medication, his continued threat of suicide, and demonstrated lack of insight into his offending, are all relevant in considering his character, and leave the Tribunal with no confidence the Applicant has addressed, to any level of satisfaction, those complex mental health and personality issues that underpinned his offending.

    CONCLUSION

17. The Tribunal has had regard to the Applicant’s family. His wife was at the hearing to support the Applicant. Together they have raised two children both of whom are high achievers. There is no evidence before the Tribunal which details his family life or that he undertook any community work. He had, until his health issues intervened, been employed, and I infer has paid his taxes.

18. However, I am not satisfied the Applicant has demonstrated genuine remorse. He has maintained his innocence for much of his offending. He accused SAPOL of discrimination and playing tactics. He maintained his criticism of Dr JP and criticised the Court for not taking into account Dr JP’s “offending”. He has issued proceedings in the Supreme Court against Dr JP because of perceived wrongdoing. He ignored SAPOL’s warning and continued to damage property. In relation to a subsequent bail application following an indication of his intention to plead not guilty, he criticised the Court for revoking his bail and said he was the victim of duress which required him to plead guilty.

19. The Tribunal is not satisfied that the criticisms made of SAPOL, the Courts and victims of his offending are properly founded in fact. They are generally unbelievable. The Applicant’s evidence is consistent with a manifestation of this personality and continuing mental health issues which is further supported, in part, by his repeated intention to commit suicide. It is a concern that he has not maintained treatment with a mental health practitioner. 

20. Insufficient time has passed since the Applicant’s offending such that the Tribunal can be satisfied he demonstrates the ‘enduring moral qualities’ over a long period of time, as discussed in Chapter 15 of the Policy. Further, his continued criticism of SAPOL, Courts and victims, in addition to the absence of evidence that satisfies the Tribunal the Applicant has undertaken any anger management program which was a very important consideration in waiving his breach, leaves the Tribunal with no confidence the Applicant will uphold, and obey the laws of Australia and the Pledge of commitment.

21. A sufficient period of time must pass to enable the Applicant to demonstrate the characteristics of “good character” and the eligibility requirements in s 21(2)(h) of the Act. To reiterate, the Tribunal’s finding the Applicant does not demonstrate characteristics of “good character” does not mean the converse is established. The decision simply means the Applicant has not satisfied the Tribunal that he has demonstrated the required characteristics over a long period of time, such that I can make a finding in his favour.

22. Accordingly, having considered all of the evidence, I am not satisfied the Applicant is a person of “good character” as required by s 21(2)(h) of the Act.

    DECISION

23. The decision under review is affirmed.

    I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

    ...............[Sgnd]...........................

    Associate

Date of Decision:	17 April 2023
Date of Hearing:	24 October 2022
Advocate for the Applicant:	Self-Represented
Counsel for the Respondent:	Alex Chan (Sparke Helmore)