HVHG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 87
•28 January 2022
HVHG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 87 (28 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/2892
Re:HVHG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:28 January 2022
Place:Sydney
The decision under review is affirmed.
...................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of a citizenship application – whether the applicant is of good character – make false document to obtain property – lengthy driving offences – whether enough time passed since offences – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24 and 26
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Chambers and Minister for Home Affairs (Citizenship) [2018] AATA 3376
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elias v Commissioner of Taxation [2002] FCA 845
ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366
Fenn and Minister for Immigration and Multicultural Affairs (2000) AATA 931
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Policy Statement
CPI 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Chris Puplick AM, Senior Member
28 January 2022
HVHG (the Applicant) is a citizen of the Islamic Republic of Iran who arrived in Australia in September 2010 and in February 2012 was granted a Permanent Protection (Subclass 866) visa.
On 28 January 2020 he lodged an application for citizenship by conferral which was rejected by a Delegate of the Minister (the Respondent) on 3 May 2021.
On 6 May 2021 the Applicant applied to this Tribunal for a review of that decision and the matter was heard by the Tribunal on 18 January 2022 using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. The Applicant was assisted, when required, by an interpreter in the Farsi language.
BASIS OF THE REFUSAL DECISION
The basis of the Respondent’s refusal of this application was that the Delegate found that the Applicant was not a person of “good character” as he was required to be under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Delegate reached this conclusion on the basis of the Applicant’s record of having committed a serious crime, namely “make false document to obtain property”.[1]
[1] Tribunal documents (T-documents) at 16-19.
In the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 17 November 2021 a further matter was raised in relation to the Applicant’s numerous traffic offences.[2]
[2] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [29].
Finally, at the hearing, and on the basis of information provided to the parties only the day before, the Respondent also sought to rely upon the fact that a Community Service Order imposed on the Applicant had been revoked as a result of his failure to adhere to its terms and conditions.[3]
[3] Corrective Services summons material at 3-6.
The Tribunal expressed a degree of concern at the lateness of this material and the fact that it was being put to the Tribunal and the Applicant with only one day’s notice. However, to the extent that it served to clarify a matter otherwise described in submissions as “reasons which are not apparent from the documents available”,[4] the Tribunal proceeded to allow its consideration.
[4] Respondent’s SFIC at [23].
LEGISLATIVE FRAMEWORK – THE CITIZENSHIP ACT
The Act provides that a person may make an application to the Minister for citizenship by conferral.[5] The Minister must either approve or refuse the application.[6]
[5] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[6] Act s 24(1).
An applicant must meet certain qualifications as specified in the Act[7] and, if they do, they must then undertake and pass the Citizenship Test[8] (unless they are exempted from so doing).[9] Once that is complete, a qualified applicant must make the Pledge of Commitment[10] (unless they are exempted from so doing) before their citizenship is finally granted.
[7] Act s 21(2).
[8] Act s 23A.
[9] Act ss 21(3)(d), (4)-(8).
[10] Act s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law,[11] none of which is relevant in this present application.
[11] Act ss 24(4)-(6).
In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h):
(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.
Each of the criteria must be met by an applicant, and the usual practice of the Department is to consider the criteria in the order in which they appear in the Act.
In this case, the Respondent found that criteria at paragraphs 21(2)(a), (b), (c) and (g) had been met but that the criterion at paragraph 21(2)(h) had not.[12]
[12] T-documents at 12-13.
THE CITIZENSHIP POLICY STATEMENT AND THE CPIS
In deciding whether or not an applicant satisfies the criteria in subsection 21(2), a decision-maker must have regard to the Act, the Australian Citizenship Policy Statement (Citizenship Policy Statement) and the Citizenship Procedural Instructions (CPIs).
The Citizenship Policy Statement came into effect as of 27 November 2020, replacing the previous Citizenship Policy document. Citizenship Procedural Instruction 15 (CPI 15) deals with the assessment of issues of good character which is the central issue in this matter.
The Tribunal notes that the Citizenship Policy Statement and CPIs have been published by the government as a guide to decision-makers in the interpretation of, and exercise of powers under, the Act. The role of such policy is as an indicative guide only and the Tribunal is not strictly bound to apply it. Although the Tribunal is not bound to apply it, it is government policy and the Tribunal should consider it if it is consistent with the Act and unless there are cogent reasons not to do so.[13]
[13] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634at 640.
In addition, the Tribunal, standing as it does in the shoes of the original decision-maker but making a de novo assessment of the evidence,[14] may take into account any other relevant factors, including where appropriate any relevant factors or evidence which have arisen since the original decision was made and may not have been available to the original decision-maker.
[14] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
Further, in 1985, the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[15]
[15] ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366 at 376.
Similarly, in Gbojueh the Federal Court noted:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[16]
[16] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].
In Elias, this principle was expressed as:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.[17]
[17] Elias v Commissioner of Taxation [2002] FCA 845 at [34].
In relation to the former citizenship policies, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[18] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[19]
[18] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement. The current set of Instructions are a different form of advice to decision-makers.
[19] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
More recently this matter was addressed by Besanko J as follows:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case. Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory. The important matter is compliance with the terms of the relevant statute.[20]
[20] MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17]. Footnotes and citations omitted.
GOOD CHARACTER
Paragraph 21(2)(h) of the Act requires that a person be “of good character at the time of the Minister’s decision on the application.” As mentioned, the Minister's delegate found that the Applicant was not of good character and this was the sole identified basis for the refusal of his citizenship application.
The term “good character” is, unhelpfully, not defined in the Act and so the Tribunal must rely on the law developed by the Courts and guidance in the Citizenship Policy Statement and the CPIs (particularly CPI 15).
As to the definition of good character, CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs, where the Court stated:
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.[21]
[21] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84 at 94 per Lee J.
The Tribunal has further found that evidence of what a person says, does or what they are heard to say or seen to do should be taken as indication of their acceptance of the values and norms to which they are expected to adhere and be loyal to. As stated by Deputy President Forgie:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another. The ways are not finite.[22]
[22] Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
An elegant encapsulation of what the authorities have identified as the hallmarks of “good character” was given by O’Bryan J in BOY19 as follows:
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.[23]
[23] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51]. Citations in original omitted.
In Irving the Court also stated:
The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review. ……..
It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. See Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.[24]
[24] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84 at [424-425] per Davies J.
This indicates clearly that the mere recording of a conviction against an applicant at some time in the past is not necessarily fatal to the assessment of their character. Much will depend upon how the applicant has conducted themselves after that event – what they have said or done.
CPI 15 itself goes on to outline what the characteristics of good character might amount to. These are set out, at some length, as expecting that applicants would (inter alia):
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
In relation to assessing the character of an applicant with a criminal record, CPI 15 provides further guidance, explaining that relevant considerations include:
·whether the offences were disclosed;
·whether the offending was serious, with “drug trafficking (including importation and supply)” listed as an example of a serious offence;
·whether the offending was a one-off or there is a pattern of criminal behaviour, with a pattern of behaviour (even a pattern of repeated minor offences over an extended period) showing a disregard for the law, which may support a finding that the applicant is not of good character; and
·whether the offending was pre-meditated, with pre-meditated offences to be given more weight in the assessment of character.
CPI 15 elaborates, by attaching to the phrase “enduring moral qualities”, further qualifications, namely:
·characteristics which have endured 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.
THE APPLICANT’S RECORD OF OFFENCES
Make false documents to obtain property
In April 2015 the Applicant was involved, with a number of his friends, in a scheme whereby a motor vehicle collision was faked or staged in order for the parties to make a claim against an insurance company for the value of the motor vehicles which were written off as a result of the alleged collision.
The role of the Applicant in this fraudulent scheme was to alter certain telephone and bank records so as to conceal evidence of the crime being perpetrated.[25]
[25] Corrective Services summons material at 21-30.
When brought before the Courts on 18 July 2017, the Applicant was sentenced to 150 hours of community service.
On 20 April 2018 the fraud offence was called up as a result of the cancellation of the Community Service Order resulting from the failure of the Applicant to adhere to its terms and conditions. As a result of this call-up the Applicant was resentenced to a term of imprisonment of 7 months (with 4 months non-parole). On 7 May 2018 this sentence was varied and a new sentence imposed: imprisonment for 9 months suspended on entering into a Good Behaviour bond (pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 (Cth)) which concluded on 6 February 2019.[26]
[26] T-documents at 86.
In relation to the offence itself, there is no evidence that the Applicant himself received any direct benefit. His unchallenged testimony was that he was not paid by his friends to assist in their criminal enterprise and there is no other evidence to suggest that he gained anything from the deception.
The Respondent also puts against the Applicant that, in his formal application for citizenship, while he answered YES to the question (at 39(b) of the form),
“Have you been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia?”
he failed to respond to the further requirement in the form which states:
“If you answered YES to any of the questions at Question 39, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentences and dates of any periods of imprisonment or other detention.”[27]
[27] Ibid at 38.
On 1 April 2021 the Respondent wrote to the Applicant inviting him to comment on adverse information related to his character which the Respondent had identified as being the Police report about his offence and sentence.[28]
[28] Ibid at 88.
The Applicant responded to this correspondence by way of a Statutory Declaration dated 29 April 2021 wherein, instead of providing details as requested, he wrote:
“I declare to the department of immigration this letter is to explain you about a misunderstanding which has unfortunately happened in my citizenship form. I went to Iranian community organisation, receive some help for filling the forms. Despite clarifying and asking her a few time, the lady who helped me, she didn’t tell me that I needed to provide more details for Q39 when I answered ‘yes’ to that question. Hence I left that part blank. I’m terribly sorry for that misunderstanding that has happened. Please note that this was not done intentionally at all and it was purely naive mistake. Once again I greatly apologise…”[29]
Cancellation of the Community Service Order[30]
[29] Ibid at 8 – text as written.
[30] Corrective Services summons material at 3-6.
On 18 July 2017 the Court imposed a Community Service Order (CSO) on the Applicant to undertake 150 hours of community service. He commenced to do so on 9 August 2017. However, shortly thereafter he began to default by failing to present as required to undertake the designated work. He was issued with a warning letter but continued to default. In November 2017 the Applicant sought to be excused from his CSO obligations on the grounds of his mental health issues and was directed to provide medical assessments by December 2017 to support these claims. He failed to do so.
The application for the revocation of the CSO, dated 3 April 2018 then outlines that:
·on 2 January 2018 the Applicant submitted a letter from a Psychologist (dated 17 December 2017) requesting that he be excused from attending CSO obligations for a period of three months to obtain treatment related to his mental health;
·on 3 January 2018 this was granted and the CSO obligations were suspended until 16 March 2018;
·on 15 March 2018 the Applicant was contacted and reminded that his CSO obligations recommenced the following day but the Applicant stated that he was “unable to attend CSO work as he sees his psychologist three times per week”;
·the Applicant was warned that should he not return to his CSO work by 19 March 2018 “breach action may be commenced” to which the Applicant advised that he was seeing his psychologist on 16 March 2018;
·on 21 March 2018 Corrective Services contacted the Applicant’s psychologist to confirm details of the Applicant’s sessions with him (claimed to be three times per week and specifically on 16 March 2018) and the psychologist advised that:
“he had not seen [the Applicant] since December 2017. The Psychologist advised that [the Applicant’s] treatment schedule was to resume after the 2017 Christmas period, however, [the Applicant] failed to establish contact with the Psychologist to arrange further treatment”.
·on 22 March 2018 Corrective Services contacted the Applicant whereupon he advised he had a further certificate from the same psychologist stating he would not be able to attend CSO work.
On the basis of this evidence and the fact that the Applicant had failed to attend his work obligation on 12 occasions and only completed 47:53 hours of his 150 allotted hours, Corrective Services made the revocation application on 3 April 2018 and it was granted by the Local Court on 20 April 2018,[31] whereupon the Applicant was resentenced.
[31] Ibid at 1.
Driving offences
Material summonsed from the NSW Roads and Maritime Authority show that between 6 August 2013 and 23 August 2021 the Applicant committed numerous traffic offences resulting in at least 16 fines (nine for speeding and three of those for speeding in excess of 20km per hour) and 2 license suspensions.[32]
[32] Roads and Maritime Services summons material (unpaginated) dated 30 November 2021.
The Applicant informed the Tribunal that many, if not perhaps, most of these offences occurred when he was operating as an Uber driver and that the vehicle he used was generally a rented one.
THE APPLICANT’S EVIDENCE
The Applicant told the Tribunal that he had had a particularly hard and difficult life in Iran and had fled thence, arriving as an unauthorised maritime arrival at Christmas Island in 2012. He remained in immigration detention for a period of some 2 years before being accorded his protection visa in 2012.
In 2013 or 2014 he commenced a relationship with a woman with whom he had a child (born in 2016) but that relationship had ended almost immediately after his release from custody in 2018. It appears that the relationship did not end amicably, and the Applicant has been in the process of taking legal steps to gain some access rights to his child.
The Applicant told the Tribunal that the people with whom he had comitted the criminal deception had been friends he met in Australia, and while he had known them for some time as they had frequent visited his home, he had failed to appreciate their true nature or character. He says that they took advantage of his state of depression which resulted from issues in his relationship, concerns about the health of his father in Iran and his long-time separation from his Iranian family.
He feels that these friends preyed upon his weaknesses and persuaded him to become involved in their activities. He further said that, in this state, he had allowed others to make use of his computer and phone as part of the criminal enterprise, although he accepted responsibility for allowing this to happen.
He finally advised that he has severed all contact with these people and has made sure to avoid any further involvement with people who he does not know and trust.
THE APPLICANT’S REFEREES
The Applicant provided character references from his friend FF who was with him in immigration detention some nine years ago and from a beautician SV who has known him for four years and for whom he has done photographic work. Both speak highly of him as a person but neither makes any reference to issues of his offending behaviour.
In addition, there is a letter of support from the Australian Iranian Community Organisation which is in similar terms.
The Applicant told the Tribunal that he had not sought further references from members of the Iranian community because this ran the risk of engendering some sort of future obligation to them for such provision.
Generally, references which fail to address the central issue of what is being held against an applicant and which fail to provide support within the context of understanding why the applicant is in need of their support, can be accorded little weight.
DISCUSSION
The Tribunal recognises that the Applicant has not, at any stage sought to deny his involvement in the criminal enterprise which brought him before the Court and in his evidence to the Tribunal he was forthright about all such matters related to it.
There is however a degree of concern about the extent to which the Applicant presents himself as a “victim” in such circumstances. He denies any awareness that he was being asked to falsify records for the purposes of defrauding the insurance company but offers no coherent explanation as to why he would falsify the records if this was the case. This tendency to blame others and lack of insight into the nature of his own offending was noted, particularly in a report by Parramatta Community Corrections in May 2018.[33]
[33] Corrective Service summons material at 16.
Participating in an attempt to defraud an insurance company is a serious matter as is any attempt to defraud.[34] Although the Applicant’s involvement was in some ways incidental or tangential to the whole scheme, and his initial sentence (150 hours community service) relatively light, he was nevertheless a willing participant and indeed used his skills to manipulate telephone and bank records. Obviously, this indicates a lack of good character.
[34] Chambers and Minister for Home Affairs (Citizenship) [2018] AATA 3376.
Were the issue confined to simply the failure of the Applicant to elucidate the details of his conviction on the citizenship application form, the Tribunal would have been prepared to treat his application sympathetically, even though the expiry of his bond was as recent as February 2019.
However, the deliberate attempt to deceive Corrective Services over his CSO obligations and responsibilities, and the false statements about his mental health state and treatment which led to the revocation of his CSO weighs heavily against him in terms of assessment of “good character”. This behaviour was calculated and deceitful.
Driving offences are serious, especially when repeated and persistent, and the somewhat cavalier approach of the Applicant in telling the Tribunal that just about everybody has multiple offences because of the ubiquity of speed cameras, does the Applicant no favours.
The Tribunal is particularly concerned with the fact that a number of these offences occurred when the Applicant was providing his services as an Uber driver and hence may well have had passengers in his vehicle whose safety he compromised with his reckless driving. In cases such as QKJY, Bowdler and Kohli,[35]to mention but a few, the Tribunal has been clear that it regards a record of numerous, serious driving offences as an indication that a person is not a person of good character.
[35] QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820; Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347; Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326.
All this is not to gainsay the Applicant’s other personal qualities. It appears that he has skills as a photographer, graphic designer and in videography. He wants to establish a (post-COVID) business dealing with wedding videography and the reference from SV indicates he has some experience in this general field. He appears genuinely committed to playing a constructive role in the life of his daughter and he clearly understands the benefits of citizenship. He wants the opportunity to demonstrate that he can make a good citizen of himself.
As in Chambers, the Applicant feels that he is being punished for the remainder of his life[36] because of his one (to use his words) “wrong judgement”. In Chambers the Tribunal made the point that:
Fraud against the Commonwealth is a very serious crime. That does not mean Ms Chambers should be punished for the remainder of her life but it does have to be taken into account in determining good character.[37]
[36] Chambers and Minister for Home Affairs (Citizenship) [2018] AATA 3376 at [21].
[37] Ibid at [54].
In his closing submission the Applicant asked what he had to do to demonstrate that he was a person of good character. There are a number of matters that he could address such as maintaining a clear driving record; establishing secure employment; involving himself in the life of both his daughter and his community; and taking greater care in filling in future applications for citizenship because he is fully entitled to make such applications in the future.[38]
[38] Fenn and Minister for Immigration and Multicultural Affairs (2000) AATA 931 at [8].
It may well be that the Applicant should consider the timing of any such future application because, although the offence central to this matter was committed back in 2015, his obligations to the court only expired in 2019, and his last driving offence was in August 2021. This Tribunal has tended to require a greater passage of time to elapse before it can be confident that an applicant has rehabilitated and committed themselves to a more positive path towards citizenship.[39]
[39] Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608 at [48]; Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601 at [83]; Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
Taken holistically, and considering all of the matters before it, the Tribunal cannot, at this stage, make a positive finding that the Applicant is a person of good character.
DECISION
The decision under review is affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
....................................[sgd]....................................
Associate
Dated: 28 January 2022
Date(s) of hearing: 18 January 2022 Applicant: In person Solicitors for the Respondent: Ms I Leonard, Australian Government Solicitor
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