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

Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457 (23 July 2021)
Division:GENERAL DIVISION
File Number: 2020/2347
Re:Ayad Hameed Hasan
APPLICANT

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

DECISION
Tribunal: Member M East
Date:23 July 2021
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 22 April 2020 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
.............[Sgd].......................
Member M East
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – character test – failure to disclose criminal conviction – whether Tribunal is satisfied applicant was of good character – misleading conduct – wilfully providing false declaration – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 20, 21(1), 21(2), 21(2)(h), 24, 24(1), 24(3), 52(1)(b)
Criminal Code Act Compilation Act 1913 (WA) – ss 313(1)(b), 323
Criminal Investigation Act 2006 (WA) – ss 128(2), 137, 138
Sentencing Act 1995 (WA) – s 39(2)(c)
CASES
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Patel v Minister for Home Affairs [2018] AATA 3466
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1801
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AAT 206
SECONDARY MATERIALS
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019) – CPI 15
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – ch 11, 13
REASONS FOR DECISION
Member M East
23 July 2021

APPLICATION

The Applicant seeks review of a decision made by a delegate of the Respondent (the Delegate) on 22 April 2020 (the Reviewable Decision) to refuse his application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act).
The basis for the Reviewable Decision was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Act, because the Applicant was convicted of assault in January 2020 and further failed to declare on his citizenship application form and his “Form 80 Personal particulars for assessment including character declaration” (Form 80) that he had any proceedings pending against him for a criminal offence or was the subject of an offence currently awaiting legal action. The Applicant only advised the Department of Home Affairs (the Department) of the conviction after he was specifically invited to provide that information.[1]
[1] Exhibit R1, page 9–10.
The application for review is made in accordance with s 52(1)(b) of the Act, which allows the Administrative Appeals Tribunal (the Tribunal) to review decisions made under s 24 of the Act.
BACKGROUND
The Respondent has accurately summarised the relevant facts in his Statement of Facts, Issues and Contentions dated 31 August 2020 as follows:
Criminal offending
5.       The applicant is a citizen of the Republic of Iraq.
6. On 13 August 2015, he arrived in Australia by plane, as a holder of a Class FA Subclass 4600 Visitor (temporary) visa. He was granted a Class XA Subclass 866 Protection (permanent) visa on 7 March 2017.
7. On 28 January 2019 and 14 February 2019, the applicant unlawfully assaulted [the complainant], who was a patient at the [medical clinic], where he was employed as a “receptionist and doctor assistant”.
8. On 28 January 2019, [the complainant]’s regular general practitioner referred her to the applicant, who was described as a “doctor” and “dermatologist”, for the removal of some warts. The applicant conducted that wart removal procedure using some form of electrical cauterisation.
9. On 14 February 2019, the applicant performed a further wart removal procedure on [the complainant] and he also conducted a “sensitivity test” on the victim, by tapping her body with the cap of a syringe from the feet up. The sensitivity test made [the complainant] uncomfortable, and she went and informed her usual general practitioner about the assault earlier that day.
10. On 21 February 2019, [the complainant] made a complaint to the Australian Health Practitioner Regulation Agency (AHPRA) about the applicant’s conduct on 14 February 2019.
11. AHPRA referred the complaint to the Western Australia Police Force, as the applicant was not a medical practitioner. In all relevant periods, the applicant is not and never has been a medical practitioner (including with specialist registration in dermatology) in this country.
12. Detective First Class Constable Stephanie McGrath (1/C McGrath) took carriage of the referral. 1/C McGrath made an appointment with the applicant to attend the Police Station on 28 March 2019. When the applicant arrived at the Police Station, he was placed under arrest under s 128(2) of the Criminal Investigation Act 2006 (WA), on suspicion that he had committed the offence of indecent assault contrary to s 323 of the Criminal Code (WA) on 14 February 2019. The applicant was cautioned and offered his ss 137 and 138 Criminal Investigation Act 2006 rights. The applicant participated in an electronic record of interview with police, but was released without charge pending further enquiries.
13. On 20 May 2019, the applicant was charged by prosecution notice lodged in the Armadale Magistrates Court with two counts of common assault contrary to s 313(1)(b) of the Criminal Code (WA).
14. On 9 August 2019, the applicant appeared in person in the Armadale Magistrates Court before his Honour Magistrate Malley. The charges were put to the applicant and he entered pleas of not guilty. Accordingly, the matter was listed for trial on 20 January 2020.
Application for conferral approval
15. On 10 September 2019, the applicant applied for conferral approval under s 21(1) of the Act. In his application form, the applicant made the following relevant character declarations:
Is the applicant aware of any proceedings pending against them overseas or in Australia for an offence, including proceedings by way of appeal or review? No
Has the applicant ever been charged with any offence overseas or in Australia that is currently awaiting legal action? No
16. The applicant also indicated that his ANZSCO occupation was “medical practitioner [not elsewhere classified]”.
17. On 4 October 2019, the applicant provided the Minister’s Department with a completed Form 80: Personal particulars for assessment including character assessment. In that form, he relevantly declared that he had not been charged with any offence that was currently awaiting legal action.
18. On 20 January 2020, the applicant appeared in person in the Armadale Magistrates Court before his Honour Magistrate Mahon. The applicant entered guilty pleas to the assault charges. He was sentenced to a financial penalty in the amount of $2,500 for each charge, with half (that is, $2,500) made payable to the victim. His Honour also made a spent conviction order under s 39(2)(c) of the Sentencing Act 1995 (WA).
19. On 20 February 2020, the Department sent the applicant a natural justice letter, inviting him to comment upon his criminal history in Western Australia.
20.      On 6 April 2020, the applicant provided the Department with the following:
20.1.    statutory declaration dated 26 February 2020;
20.2.Magistrates Court of Western Australia, Notice of Conviction, dated 20 January 2020;
20.3. Reference letters dated 26 February 2020, 25 February 2020, and 26 February 2020.
21. On 22 April 2020, the delegate refused to approve the application for citizenship by conferral.
Tribunal proceedings
22.      On 23 April 2020, the applicant sought review in this Tribunal.
23. On 8 May 2020, the applicant provided the Tribunal with further reference letters dated 7 and 8 May 2020 respectively.
24. On 25 July 2020, the applicant relevantly provided the Tribunal with a personal statement dated 24 July 2020, and references letters from [practice manager] dated 26 June 2020 and [general practitioner] dated 24 July 2020.
25.      On 13 March 2020, the applicant sought review in this Tribunal.
(Original emphasis; footnotes and names omitted.)
ISSUE
The issue for determination before the Tribunal is whether the Applicant is, at the date of the Reviewable Decision, of good character for the purposes of s 21(2)(h) of the Act.
MATERIAL BEFORE THE TRIBUNAL
The application for review was heard by the Tribunal on 6 May 2021. The Applicant was self-represented, and the Respondent was represented by Mr Papalia of the Australian Government Solicitor. The parties appeared at the hearing by telephone in accordance with the Tribunal’s COVID-19 protocol. The Tribunal appreciates the parties for their cooperation in appearing by telephone.
The Tribunal had the following material before it:
·the Applicant’s Personal Statement dated 24 July 2020 (Exhibit A1);
·the Applicant’s notification of refusal decision from the Department of Home Affairs, dated 22 April 2020 (Exhibit A2);
·the Applicant’s cover email dated 10 June 2020 (Exhibit A3);
·a statement from a doctor colleague dated 24 July 2020 (Exhibit A4);
·a statement from a doctor colleague dated 7 May 2020 (Exhibit A5);
·a statement from a teacher colleague dated 26 February 2020 (Exhibit A6);
·a statement from the Practice Manager of the clinic dated 26 June 2020 (Exhibit A7);
·a statement from Administration Manager of the clinic dated 8 May 2020 (Exhibit A8);
·section 37 T-Documents (T1–T20), consisting of pages 1–245 (Exhibit R1);
·supplementary s 37 T-Documents (ST1–ST2), consisting of pages 246–385 (Exhibit R2); and
·the Respondent’s Statement of Facts, Issues and Contentions, filed and dated 31 August 2020 (Exhibit R3).
The Applicant gave oral evidence at the hearing and was cross-examined by Mr Papalia.
LEGISLATIVE FRAMEWORK
The Act
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 20 of the Act outlines the requirements for becoming an Australian citizen:
(a)the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b)if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.
Section 24(1) of the Act states that “[i]f a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Where a person is not eligible to become an Australian citizen under s 21(2), the Minister must not approve the person becoming an Australian citizen.[2]
[2] Australian Citizenship Act 2007 (Cth), s 24(1A).
A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Act, as follows:
(2)   A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)    is aged 18 or over at the time the person made the application; and
(b)    is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)    satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)    understands the nature of an application under subsection (1); and
(e)    possesses a basic knowledge of the English language; and
(f)    has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)    is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)    is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
Section 24 of the Act provides:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(Notes omitted.)
Whether the Applicant is a person of good character at the time of the Minister’s decision on the application for citizenship is the only eligibility criterion in issue in these proceedings.
The meaning of good character
The term “good character”’ is not defined in the Act. The Tribunal is however assisted by the Australian Citizenship Policy (1 June 2016) (the Policy) and the Revised Citizenship Procedural Instructions (1 January 2019) (the CPIs).
As established in Re Drake and Minister for Immigration and Ethnic Affairs (No 2), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[3]
[3] (1979) 2 ALD 634, 645.
“Good character”’ is defined in ch 11 of the Policy:[4]
[4] The Policy, pages 145–6.
“Good character” refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship …
The term “good character” is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; 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… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
·     characteristics which have been demonstrated over a very long period of time
·     distinguishing right from wrong
·     behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
The Policy further provides that an applicant of good character would, among other things:[5]
[5] The Policy, pages 147.
·     respect and abide by the law in Australia and other countries
·     be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·     providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·     involvement in bogus marriage
·     concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·     involvement in Centrelink or Australian Tax Office fraud
·     giving false names and/or addresses to police
·     not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·     not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·     not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·     not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·     not be the subject of any extradition order or other international arrest warrant
·     not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·     not be the subject of any verifiable information causing character doubts.
(Emphasis added.)
Chapter 11 of the Policy provides the following guidance on a decision maker’s task of “weighing up the character decision”:[6]
[6] The Policy, pages 149–50.
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia's community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
“a decision about whether a person is of good character requires the 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.”
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be “lasting” or “enduring” depends on the merits of each case, but in most cases will go back prior to any visa application.

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) sets out a number of factors that may be taken into account when assessing whether an applicant is of good character, including the applicant’s behaviour in his or her interactions with government officials:[7]
The Australian community expects that persons in Australia will abide by Australian laws. This includes providing correct information when seeking a government benefit or service.
It is relevant to consider whether the applicant has been honest in dealings with the Department. Decision- makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications. “Client of Interest” notes on ICSE may contain relevant information (for example, records of applicants using abusive language or making threats to an officer, or offering a bribe, or being removed from a departmental office because of threatening behaviour). A record of threatening or offensive behaviour by the applicant may be relevant to the assessment of character.
If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern.
(Emphasis added.)
[7] CPI 15, Item 11.1.
In Nguyen and Minister for Immigration and Border Protection,[8] Senior Member Puplick emphasised the importance of honesty with applicants:
Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
(Emphasis added and footnotes omitted.)
[8] [2018] AATA 1082, [82]–[84].
With respect to referee reports (character references), the Policy at page 155 states:
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Emphasis added.)
The Federal Court has also summarised the following principles that apply in determining “good character”, as outlined by O’Bryan J in BOY19 v Minister for Immigration and Border Protection:[9]
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.
(Emphasis added, original citations omitted.)
CONSIDERATION
[9] (2019) 165 ALD 39, 51–52 [51].
Is the Tribunal satisfied that the Applicant is of good character?
The Applicant in his oral submission stated that he was working at a medical clinic as a “receptionist and doctor assistant” from late 2017 until March 2019.[10] The Applicant further stated that he is a qualified doctor in Iraq and had specialised as a dermatologist.[11]
[10] Transcript, page 11–16.
[11] Transcript, page 10.
The Applicant performed two medical procedures on a patient involving the removal of warts in January and February 2019. The patient subsequently complained to the Australian Health Practitioner Regulation Agency (AHPRA) regarding the Applicant’s inappropriate conduct during the medical procedure. The AHPRA then referred the matter to the Western Australian Police.[12]
[12] Transcript, page 13.
In March 2019 the Applicant was arrested by the police on the suspicion that he had committed the offence of Indecent Assault contrary to s 323 of the Criminal Code Act Compilation Act 1913 (WA) but subsequently released without charge pending further enquiries.[13]
[13] Exhibit R2, pages 320–321.
On 20 May 2019 the Applicant was charged with two counts of common assault contrary to s 313(1)(b) of the Criminal Code Act Compilation Act 1913 (WA) on a prosecution notice.[14] On 9 August 2019 the Applicant attended the Magistrates Court and pleaded not guilty and the matter was listed for trial on 20 January 2020.[15]
[14] Transcript, page 14.
[15] Transcript, page 15.
On 10 September 2019 after his appearance at the Magistrates Court, the Applicant made his application for citizenship by conferral.[16] As part of that application the Applicant was required to make character declarations. The Applicant provided the following responses:[17]
Q: Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any “spent” convictions)?
A: No
Q: Has the applicant ever been charged with any offence overseas or in Australia that is currently awaiting legal action?
A: No
[16] Exhibit R1, pages110–128.
[17] Exhibit R1, page 123.
Under cross examination the following exchange between Mr Papalia and the Applicant occurred:[18]
MR PAPALIA: In particular, a month prior to your application for citizenship you had appeared in court for two charges that had been laid against you. That’s correct, isn’t it?
MR HASAN: When I did this declaration the issue is not yet – the case is not, like, decided. I did the declaration before that, not after.
[18] Transcript, page 17.
Under cross-examination, the Application was asked to explain why he made a false declaration as to whether he had any pending charges that were currently awaiting legal action in his citizenship application. He responded:[19]
Before I got – but waiting – yes, this is my mistake, because I didn’t concentrate on the something waiting. I thought this is like you have before, like, accused (indistinct) but I didn’t concentrate about something waiting. That’s why I did the declaration that I don’t have, that’s why.
[19] Transcript, page 18.
On 2 October 2019 the Department wrote to the applicant requesting further information including a Form 80 Personal particulars for assessment including character assessment.[20]
[20] Exhibit R1, page 146.
The Applicant returned those forms to the Department and at Part K, question 36, declared “no” to the following questions:
Have you, or any other person included in this application, ever:
Been charged with any offence that is currently awaiting legal action
Been convicted of any offence that is any country (including any conviction which is now removed from official records)[21]
[21] Exhibit R1, page 160.
In response to the further questioning about his declaration, the Applicant appeared confused as to what his declarations were, and repeatedly referred to being told by somebody at the Magistrates Court that the spent convictions would not appear in his record.[22]
[22] Transcript, page 20.
On further questioning from Mr Papalia the Applicant responded:
When I was charged, when I-I told them. I declare this issue and I send my statement as well [23]
[23] Transcript, page 20.
The Tribunal does not accept the Applicant’s contention that he did declare that he was awaiting legal action at the Magistrates Court, to the Department. The contemporaneous documentary evidence quite clearly demonstrates that at the time the Applicant lodged his application for citizenship, on 10 September 2019, and at the time he provided the Form 80 to the Department, on 4 October 2019, he made false declarations as to whether he had any pending charges that were currently awaiting legal action. What causes further concern to the Tribunal is the very close timeframe within which these events occurred. That is, the Applicant appeared in the Magistrates Court on 9 August 2019, entered a plea of not guilty and had his matter set down for trial in January 2020. He then applied for citizenship on 10 September 2019, one month after his appearance in the Magistrates Court.
When questioned during cross-examination regarding the declaration, the Applicant stated that he did not understand what was meant by the word “pending”.[24] However, the questions in the citizenship application form and the Form 80 do not use the term “pending” and instead refer to being “charged with any offences that is currently awaiting legal action”. Therefore, the Tribunal does not accept the Applicant’s assertion that he did not understand what was meant by the term “pending” or “awaiting legal action” as an explanation for his declaration.
[24] Transcript, page 21.
The Applicant gave oral evidence that he considered his written and spoken English was “good”.[25] The Tribunal further notes the Applicant is highly qualified with an undergraduate and masters’ degree.
[25] Transcript, page 16.
The Tribunal finds, as a question of fact, that the Applicant knowingly made false declarations on both his application for citizenship as well as his Form 80. The Tribunal does not accept the reasons given by the Applicant for his false declaration and has specific concerns regarding the time-frame in which he made those declarations.
Even if the Tribunal were to accept that the Applicant did not intend to mislead the Department by his false declarations, rather he was genuinely confused in the way that he claimed in his oral evidence (noting that the Tribunal is not convinced and therefore does not accept the Applicant’s claims), the Tribunal nevertheless has further concerns about the Applicant’s failure to declare his spent conviction after his trial in January 2020.
The Tribunal notes that the Applicant’s citizenship application was lodged by the Applicant himself with his own username as a self-registered user,[26] and the citizenship application has its own unique reference number.
[26] Exhibit R1, page 110.
In the “Consent Declarations” section of the citizenship application, the Applicant has submitted “Agree” to the following declarations:[27]
Consent to Australian police agencies disclosing their personal information in relation to spent convictions of specific offences (10 years from the date of conviction for adults, or 5 years from the date of conviction for juvenile offenders) and pending charges to the department for the purposes outlined above.
[27] Exhibit R1, page 127.
Further, as part of the declaration in the citizenship application, the Applicant has also agreed that the information supplied is complete, truthful and correct in every detail.
In these circumstances the Applicant has consented to Australian law enforcement agencies providing the Department with information that is relevant for assessing his good character in the context of offences that have been committed and for which convictions have been obtained, including spent convictions.
The Applicant received his spent conviction in January 2020 after his trial in the Magistrates Court. However, the Applicant only informed the Department about his spent conviction at the stage in the citizenship application process when the Department, by letter dated 20 February 2020, precisely invited him to comment on his criminal history in Western Australia.
In circumstances such as these where the Applicant has consented to national police checks being requested by the Department specifically relating to convictions, including spent convictions, and the Applicant has an online account which is able to be updated continuously if any new information arises, the failure of the Applicant to make any attempt to notify the Department of his conviction after his trial can only be regarded as a deliberate attempt to mislead the Delegate in his citizenship application.
In Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1801 Member Gallager at [26] referred to Fang and Minister for Immigration and Border Protection [2018] AATA 3686, where at [97] Senior Member Puplick made the following comment about the need for an applicant to be truthful about their identity:
… those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike
(Emphasis added.)
Further, in Patel v Minister for Home Affairs [2018] AATA 3466, the applicant failed to declare his criminal record on his Visa application as well as on his citizenship application. He was found to be dishonest by the Tribunal and the Minister’s decision was affirmed. Member Edwards stated:
52. The Tribunal finds that the disclosure of information relating to the Applicant’s convictions represents a critical piece of information to both his visa and citizenship applications. The Tribunal finds that the Applicant’s non-disclosure of information is unlikely to be an accident and can only be described as a pattern of dishonesty, which, in the Tribunal’s opinion, is deliberate.
…
56. The Tribunal finds that the Applicant’s explanations were untruthful and are reflective of a pattern of dishonest behaviour.
57. The Tribunal is of the opinion that the Applicant’s pattern of behaviour goes to the core of the Applicant’s character assessment and therefore weighs against him for the purpose of this review.
As detailed above, the Tribunal has significant concerns regarding the Applicant’s failure to disclose the criminal charges he was facing at the time of his citizenship application that were awaiting trial. The Applicant further failed to advise the Department even after receiving his spent conviction.
In addition to this, the Tribunal has considered the significance of the spent conviction and the financial penalties for assault which the Applicant received.
The Tribunal was provided with a copy of the transcript of the proceedings in the Magistrates Court held on 20 January 2020. The charges were eventually resolved by a plea of guilty, however, His Honour outlined the seriousness of the offences.[28] The Applicant was sentenced to a financial penalty of $2,500 for each offence with half the amount made payable to the victim. His Honour also made a spent conviction order under s 39(2)(c) of the Sentencing Act 1995 (WA).[29]
[28] Exhibit R2, page 361, 376.
[29] Exhibit R2, page 247.
The Tribunal notes that these convictions were only recorded approximately 18 months ago and are for relatively serious offences.
The circumstances outlined above, notably;
(a)the Applicant’s failure to declare the charges which were awaiting trial at the time of his application for citizenship;
(b)his failure to update the Department after pleading guilty to the assault charges; and
(c)the offences themselves
all weigh against the Applicant’s claim of good character for the purpose of s 21(2)(h) of the Act. Furthermore, the Tribunal is not persuaded by the Applicant’s explanation as to why he repeatedly failed to provide information or details of his charges to the Department which lends weight to the argument that the deception was deliberate and designed to mislead the Department when making an assessment as to his character.
Character references
The Applicant has provided several character references to the Tribunal in support of his application. The character references are from:
-A doctor colleague dated 24 July 2020
-A doctor colleague dated 7 May 2020
-A teacher colleague dated 26 February 2020
-Practice Manager of the clinic dated 26 June 2020
-Administration Manager of the clinic dated 8 May 2020
The CPI 15 at paragraph 14.1 lists mitigating factors that decision makers should consider when assessing whether a person is of good character. These include, the length of time since the offence and conviction; whether the applicant has accepted responsibility and shown remorse for their conduct; and behaviour since release from prison or upon completion of any obligations to a Court such as a good behaviour bond.
Decision makers can also consider the person’s attempts to rehabilitate since their offending, the age of the applicant at the time of the offence and any other evidence that the person is of good character, such as references from employers and members of the community.
A doctor who worked with the Applicant referred to him as being “honest, dependable, peaceful and conscientious” in his statement dated 25 February 2020.[30] This doctor in his subsequent statements dated 7 May 2020 and 24 July 2020, explains the circumstances of the offences and described the offences as an “exaggerated allegation resulted in verdict of spent convection” [sic].[31]
[30] Exhibit R1, page 232.
[31] Exhibits A4 and A5.
With all due respect to the doctor, the Tribunal notes that the offending took place in his medical practice and was regarded as a serious offence by the victim and ultimately the Magistrate. Further, there was no suggestion that the allegations were exaggerated. Therefore, the attempt by this doctor to try and mitigate the severity of the offending by the Applicant causes the Tribunal to place very little weight upon his statements and character reference.
The statement by a Senior teacher at a College dated 26 February 2020 describes the Applicant as having been a member of his team for over three years. He states that the Applicant helps out with the community functions, is seen as an upstanding person and nobody has anything bad to say about the Applicant. He further states: “I have all the confidence in the world that Mr Hasan is a good, upstanding, moral person, and he would be a great choice to be an Australian”.[32]
[32] Exhibit A6.

The Tribunal has no evidence suggesting that this colleague is aware of the Applicant’s convictions and therefore the Tribunal finds that his character reference is of limited weight.
The statement by the Practice Manager of the Medical Clinic dated 26 June 2020 outlines the circumstances leading to the offence and states that she does not believe that the Applicant intended to do anything wrong. She also described him as a “kind and upstanding person”.[33]
[33] Exhibit A7.
Again, this statement attempts to minimise the circumstances surrounding the Applicant’s offending and the nature of the offences themselves. The Tribunal, therefore, does not find that it adds anything in favour of the Applicant’s character other than he appears to be of a pleasant disposition.
Finally, the Administration Manager of the Medical Clinic provided a statement dated 8 May 2020.[34] His statement is similar in nature to those of the Applicant’s other colleagues. That is, he is a hard-working, kind man who tries to help everyone he can. It does not indicate that he knew the full nature of the Applicant’s offences and conviction. The Tribunal, again, places very little weight on this statement other than to demonstrate that the Applicant is a pleasant and hard-working individual.
[34] Exhibit A8.
The Tribunal accepts the statements of the Applicant’s colleagues that he appears to be kind and hard working. Unfortunately, in the circumstances, and when considered against the nature of the Applicant’s offending and conviction, limited weight can be placed on these character references.
Furthermore, the statements are not statutory declarations and none of the referees were called to give evidence on behalf of the Applicant. Whilst they all give generalised statements about the Applicant’s personality, they either do not acknowledge the offences and conviction or attempt to minimise them. In these circumstances, having considered each of the character reference provided, the Tribunal places very little weight on the statements other than as a general comment on the Applicant’s personality and disposition.
Ultimately, drawing this material together, the Tribunal finds that none of the statements and/or explanations provided by the Applicant have a mitigating effect on its findings about the Applicant’s character.
Conclusion
The Tribunal finds the Applicant does not satisfy the requirement of being of good character as required by s 21(2)(h) of the Act.
The Tribunal makes this finding as a result of the Applicant’s false declarations on his citizenship application, his false declaration response in his Form 80 and his conviction for assault which the Tribunal regards as serious.
The timing surrounding the Applicant’s plea of not guilty in the Magistrates Court and subsequent application for citizenship strongly suggests that it was done deliberately by the Applicant with an intent to deceive or in the hope that a decision would be made prior to his trial and/or conviction.
The Applicant is a well-educated man who has trained as a medical doctor and is a specialist dermatologist overseas. His qualifications are not yet recognised in Australia. The Tribunal finds that the supporting statements by his colleagues, whilst complimentary to his personality, are of limited value in determining his character.
The Tribunal notes that the convictions were received in January 2020, which is just under 18 months ago. Therefore, the Tribunal does not consider sufficient time has elapsed or that there is a real appreciation by the Applicant of his wrongdoing.
As stated by Member Warner in Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AAT 206 at [39]:
The spirit of the Act provides an enduring right for the Applicant to apply again for citizenship. A person who has failed to satisfy the requirement to be of good character, may, with the passage of time, demonstrate behaviour, attitudes and other positive attributes which might support a future finding that the person is of good character for the purposes of the Act.
DECISION
The Reviewable Decision, being the decision made by a delegate of the Respondent on 22 April 2020 to refuse the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Act, is affirmed.

I certify that the preceding 72 (seventy two) paragraphs are a true copy of the reasons for the decision herein of Member M East

.................[Sgd]...........................................
Associate
Dated: 23 July 2021

Date of hearing: 6 May 2021

Applicant: Self-represented

Solicitors for the Respondent: Mr J Papalia, Australian Government Solicitor

[2021] AATA 2457

23 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Date of hearing:	6 May 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Mr J Papalia, Australian Government Solicitor