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

HYST and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4427 (6 November 2020)
Division:GENERAL DIVISION
File Number: 2019/5554
Re:HYST
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:6 November 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.......................................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
CITIZENSHIP – eligibility – application for Australian citizenship by conferral refused – whether applicant of good character – manslaughter conviction overseas – domestic violence offending in Australia – intentionally cause injury – unlawful assault – contravene family violence intervention order – Citizenship Policy – Australian Citizenship Procedural Instructions – applicant not of good character at time of deciding citizenship application – character references do not outweigh offending – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
BOY19 v Minister for Immigration [2019] FCA 574
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; FCR 560; 56 ALD 439
Mohamad and Minister for Immigration and Border Protection [2018] AATA 687
Petrovic and Minister for Immigration and Multicultural Affairs [2000] AATA 1135
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Shmarakova and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 976
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Australian Citizenship Policy (1 June 2016)
Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs, Citizenship Procedural Instructions, (17 April 2019)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
6 November 2020
INTRODUCTION

The Applicant seeks review of a decision by the Respondent to refuse his citizenship application, because he did not satisfy the good character requirement under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”).
The matter was heard at the Tribunal’s Melbourne Registry on 30 September 2020, with both parties appearing via video-link in accordance with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant was self-represented and gave oral evidence with the assistance of an interpreter in the Hebrew language. The respondent was represented by Mr Rogers of the Australian Government Solicitor.
Under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal may restrict the publication of the name of a party to proceedings before the Tribunal and allocate an anonym. Although neither party applied for a confidentiality order, the Tribunal considered it appropriate to do so because the interests of the Applicant’s minor children deserve protection. Neither party objected to this approach. The Applicant will therefore be referred to by the anonym ‘HYST.’ The names of witnesses and character referees will also not be disclosed, as these may tend to identify HYST.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 49-year old citizen of Israel.[1] Approximately 30 years ago an Israeli court convicted him of manslaughter, for which he received a sentence of five years imprisonment, followed by a three-year suspended sentence.[2]
[1] Exhibit R1, 63.
[2] Ibid, 27; 260.
The Applicant arrived in Australia in late 2002 on a Tourist Visa.[3] In response to the question on his Incoming Passenger Card (“IPC”) ‘Do you have any criminal conviction/s?’ the ‘No’ box was ticked. Apart from a two-month visit to Israel in 2009,[4] the Applicant has resided in Australia for the past 18 years.
[3] Ibid, 8.
[4] Ibid, 20.
While living in Australia the Applicant met and married an Australian woman. The couple had two children, in 2010[5] and 2011[6], but subsequently separated. On 1 August 2014 the Applicant was found guilty of several family violence offences against his wife, namely: ‘Intentionally cause injury’, ‘Unlawful assault’, and two counts of ‘Contravene family violence intervention order’, one of which involved an ‘intention to cause harm or fear’.[7] The Court dealt with the Applicant’s offending without conviction and by imposing a Community Corrections Order (“CCO”) for 12 months. The Court also issued an Intervention Order (“IVO”) for three years.[8]
[5] Ibid, 21.
[6] Ibid, 23.
[7] Ibid, 87-88.
[8] Ibid, 28-33.
On 31 March 2016 the Applicant was granted a Partner (Residence) (Class BS) Partner (subclass 801) visa, which had been sponsored by his ex-wife.[9] The couple subsequently divorced and pursuant to final orders of the Federal Circuit Court in 2020 (by consent of the parties), the Applicant received sole parental responsibility of their two children.[10]
[9] Ibid, 34-35
[10] Exhibit A1.
On 13 April 2017 the Applicant sought Australian citizenship by conferral.[11] He disclosed the manslaughter conviction in Israel and stated that since his release in 1994, he had ‘been an exemplary member of the community.’[12] In March 2019 immigration authorities wrote to the Applicant and his Migration Agent, advising them that information had come to the Department’s attention about crimes committed against Australian law, suggestive of character concerns.[13]
[11] Exhibit R1, 40-62.
[12] Ibid, 55-56.
[13] Ibid, 80-88.
On 7 August 2019 the Respondent refused the citizenship application on the basis that the Applicant was not a person of good character: s 21(2)(h) of the Act.[14] On 3 September 2019 the Applicant asked the Tribunal to review this decision.[15]
[14] Ibid, 7-17; 329-331.
[15] Ibid, 1-6.
LEGISLATIVE FRAMEWORK
Section 3 of the Act defines a ‘serious prison sentence’ as a sentence of imprisonment for a period of at least 12 months.
Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. To be eligible, a person must satisfy each of the eight general eligibility requirements at section 21(2) of the Act. Section 21(2)(h) requires that the Minister is satisfied the person applying to become an Australian citizen ‘is of good character at the time of the Minister's decision on the application.’
Section 24(1A) of the Act provides that the Minister (or a person delegated by the Minister under section 53 of the Act), ‘…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).’
Section 52(1)(b) of the Act provides for applications to be made to the Administrative Appeals Tribunal to review decisions made under s 24 of the Act.
CITIZENSHIP POLICY
Good character is not defined in the Act and the Full Court of the Australian Federal Court has previously held the term is broadly construed:
‘…Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…’[16]
[16] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, [60].
The Citizenship Policy[17] (“Policy”) has been promulgated by the Minister to guide the interpretation of and exercise of powers under the Act:
‘Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.’[18]
[17] Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, (1 June 2016 )(‘Policy’).
[18] Policy, 1.
Chapter 11 of the Policy provides guidance for decision-makers ‘on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character.’[19] Although Ministerial policy is not binding on the Tribunal, as held in Drake,[20] decision-makers undertaking merits review should generally apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary.’ The Tribunal is satisfied there is no reason why the Policy and Australian Citizenship Procedural Instructions (“CPI”), which supplement the Policy, should not be applied in this matter. In applying the provisions of the Act, Policy and CPI, the Tribunal is mindful of the need to consider the exercise of delegated powers based on the specific circumstances of the Applicant’s case.
[19] Policy, 144
[20] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
In relation to what constitutes ‘good character,’ Chapter 11 of the Policy draws upon the Federal Court’s decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (“Irving”), which 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.
Davies J explained in Irving at [427]-[428] that:
‘The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character". Although, in general, "good character" can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.’
Chapter 11 of the Policy explains that:
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.[21]
[21] Policy, 145.
Relevantly, the Policy refers to the demonstration of ‘good enduring / lasting moral qualities’ in the period before an application is made and ‘throughout the migration and citizenship processes.’ The Policy provides a non-exhaustive list of characteristics[22] which a person of good character would have. Relevantly, an applicant of good character would:
Respect and abide by the law of Australia and other countries;
Be truthful…in their dealings with the Australian Government…for example: providing false personal information…or other material deception during visa and citizenship applications
Not be violent…and not cause harm to others through their conduct…; and
Not be the subject of any verifiable information causing character doubts.
[22] Ibid, 147
Under the heading of ‘Weighing up the character decision,’ the Policy states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences. In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia's community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[23]
[23] Policy, 149-150.
The Policy further advises that:
‘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…depends on the merits of each case, but in most cases will go back prior to any visa application.
If a person has committed a very significant offence (such as taking the life of another person,…) the lasting/enduring period would be much longer, potentially over a period of many years. In such an assessment, the nature of the significant offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. Thus, it may be extremely difficult for a decision maker to be satisfied that a person is of good character after having committed such offences, even after the passage of many years.’[24]
[24] Policy, 150.
AUSTRALIAN CITZENSHIP PROCEDURAL INSTRUCTIONS
CPI 15 – Assessing Good Character under the Citizenship Act was issued on 17 April 2019 to identify ‘the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Act. CPI 15 states that Australian community standards, as reflected in Government initiatives, indicate that ‘domestic violence...in any form is not acceptable in the Australian community’.[25] A ‘serious offence’ under the CPIs includes ‘crimes of violence (such as...domestic violence...)’.[26]
[25] CPI 15 – Assessing Good Character under the Citizenship Act, s 4.3.
[26] Ibid, s 4.7.
It is clear, from the Policy, CPIs, and authorities referred to, that respecting the law in Australia and other countries is a very important factor in assessing a person’s character.
EVIDENCE
Documents numbering 493 pages were lodged by the respondent and accepted into evidence.[27] The Applicant’s criminal history is contained in a Nationally Coordinated Criminal History Check dated 12 January 2019,[28] and a record from the Israel Police Investigation Branch dated 18 August 2010.[29] A VicRoads record dated 28 November 2019 summarises the Applicant’s history of traffic and driving offences in Australia.[30] During the hearing the Applicant tendered several documents, which were accepted into evidence:
(a)A Statutory Declaration dated 20 February 2020, prepared with the assistance of his legal representative, attached to which were several other statements and supporting materials collectively comprising 70 pages;[31]
(b)An email from the Applicant dated 23 October 2019, attaching several letters, statements and statutory declarations, collectively numbering 34 pages;[32] and
(c)A letter from the Applicant’s Rabbi dated 11 February 2020.[33]
[27] Exhibit R1.
[28] Ibid, 87-88.
[29] Ibid, 259-262.
[30] Ibid, 332.
[31] Exhibit A1.
[32] Exhibit A2.
[33] Exhibit A3.
References
The Policy states that:
‘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.’ [34]
[34] Policy, 155.
In addition to the affidavits, statutory declarations and statements in the bundle of documents lodged by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents and supplementary T-documents),[35] the Tribunal has considered other materials lodged by the Applicant’s legal representative on 25 February 2020 as follows:
[35] Exhibit R1, 121-133; 166-175; 232-235; 264-276; 298; 302-308; 312-321; 463-493.
(a)School awards presented to the Applicant’s children between 2017-2019;
(b)Materials attesting to the Applicant’s charitable donations and community involvement between 2010 and 2013;
(c)Newspaper article dated 18 May 2010 reviewing a business the Applicant operated;
(d)Letter dated 19 August 2019 and addressed to ‘whom it may concern’ from the Principal of the school attended by the Applicant’s children;
(e)Letter dated 22 August 2019 and addressed to ‘whom it may concern’ from the Wellbeing Coordinator at the school attended by the Applicant’s children;
(f)Letter to ‘whom it may concern’ by the Applicant’s friend dated 26 July 2015;
(g)Statutory Declaration dated 31 August 2019 from a person who has a child in the same class as one of the Applicant’s children;
(h)Statutory Declaration dated 15 August 2019 from a person whose children attend the same school as the Applicant’s children;
(i)Statutory Declaration dated 15 August 2019 from a person whose children commenced school together with the Applicant’s children in 2017;
(j)Statutory Declaration dated 29 August 2019 from a person whose eldest son has attended the same class as one of the Applicant’s children for the past four years;
(k)Statutory Declaration dated 28 August 2019 from a person who has known the Applicant since 2016 and whose son is friends with one of the Applicant’s children;
(l)An undated, handwritten letter from one of the Applicant’s children;
(m)Statutory Declaration dated 20 August 2019 from the Applicant’s accountant;
(n)Statutory Declaration dated 26 August 2019 from a Pastoral Care Leader who has known the Applicant for five years;
(o)Statutory Declaration dated 27 August 2019 from the Applicant’s friend;
(p)A police statement made by the Applicant dated 19 April 2019, about the aid he provided to assist a woman following a car accident near his home; and
(q)Applicant’s Pensioner Concession Card expiring on 31 October 2020.
The references are collectively to the effect that the Applicant is a good father, friend, works hard, engages in the life of his ethnic community, and contributes generously to charitable causes. Some statements refer to the claims of the Applicant’s ex-wife about his violence towards her as inconsistent with the witness’s knowledge of the Applicant’s character.[36] Others express a view about past incidents or interactions that the author was not privy to. In considering references from family members or friends, the Tribunal is mindful that they often provide the best possible perspective in relation to character and conduct which other members of Australian society might consider unacceptable. Only the Applicant and his Rabbi gave oral evidence at the hearing, meaning that the perspectives of most reference authors could not be tested under cross-examination.
[36] Ibid, 467; 471; 483; 484; 486; 490.
Applicant’s evidence
The Applicant adopted his Statutory Declaration dated 20 February 2020 as true and correct.[37] His evidence can be summarised as follows:
(a)In his written evidence, the Applicant claimed to be innocent of the crime he was convicted of in Israel.[38] He conceded in his oral evidence, however, that he ‘was involved in a fight – a group fight.’ He said that after being imprisoned, he turned his life around by completing a high school certificate and being a positive influence on other prisoners. He said that he was ‘released early,’ and was ‘never involved in any criminal activities or crimes after that incarceration period;’
(b)In relation to the family violence he was accused of against his former wife in 2014, the Applicant said he was ‘not casting doubt on what the Court ordered,’ but denied ever being violent against his ex-wife, or doing anything to justify an IVO. He claimed instead that his ex-wife was violent against him. He agreed an incident with his ex-wife had occurred but disputed her account and the Court’s acceptance of it. He submitted that the IVO and his breach of it resulted from his ex-wife’s ‘false accusations’ and ‘constant lies.’[39] He expressed the view that in Australia ‘whenever a woman comes to court and claims violence against her, the court automatically issues an intervention order.’ The Applicant also claimed he did not understand the IVO conditions. He said that if he was not of good character, the Court would not have given him custody of his children;
(c)In relation to his failure to disclose the Israeli conviction on his IPC upon arrival in Australia, the Applicant said it was ‘early in the morning,’ he was ‘tired,’ and his English was ‘not that good.’ He nevertheless accepted ‘full responsibility’ for this omission and apologised for it;
(d)In relation to his drink-driving offence in 2016, the Applicant claimed he had no more than two standard drinks while attending a community function and any breach of the law was an ‘honest mistake.’ He claimed to have only recorded a blood alcohol reading of .055, but accepted it was dangerous to drive while over the limit;
(e)The Applicant referred to the character references as showing who he was as a person. He also referred to the achievements of his children, stating that ‘someone of bad character couldn’t raise such good children.’ The Applicant also emphasised his charitable work and other volunteering activities.
[37] Exhibit A1.
[38] Exhibit A1, 2; Exhibit R1, 27; 92;
[39] Exhibit A1, 5-6; Exhibit R1, 90-91; 110 [17]; 111 [ 24]; 111 [26]; 115 [59]-[60]; 116 [64]; 117 [72]-[73]; 205-206.
Respondent’s Contentions

The respondent contends by way of summary:
‘The applicant was convicted of the very serious offence of manslaughter in Israel in 1989. Whilst the offence occurred more than 30 years ago, in 2014 the applicant was found guilty of further offences in Australia, including violent offences against his former wife and breaches of an intervention order taken out to protect her. He also committed a drink driving offence in 2016.
These offences reveal several episodes of violent behaviour, and a disregard for Australian law. The applicant's violent conduct establishes that he is not of good character, and that he is not eligible for a grant of Australian citizenship.’[40]
[40] Statement of Facts and Contentions of the Respondent, 1 [3]-[4].
ISSUE FOR DETERMINATION
The sole issue for determination is whether the Tribunal is satisfied at the present time that the Applicant meets the requirements of good character in s 21(2)(h) of the Act.
TRIBUNAL CONSIDERATION
A decision-maker’s state of satisfaction regarding a person’s character in the context of a citizenship application was elaborated upon by O’Bryan J:
‘Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite…Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment…’[41]
[41] BOY19 v Minister for Immigration [2019] FCA 574 (“BOY19”) at [54].
His Honour further stated at [55]:
‘…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.’
Applicant’s Israeli conviction
The Applicant agrees he was convicted of manslaughter while living in Israel, for which he received a sentence of five-years imprisonment in 1989. He claimed to have been falsely convicted, however, because Israeli authorities stigmatised people of ‘Moroccan descent…as hot-tempered and primitive,’[42] and sought to make ‘an example of the Moroccan community.’[43] A similar claim is made by the Applicant’s stepbrother in his statement dated June 2015, although the extent to which those claims are based on personal knowledge remains unclear.[44] The Applicant’s stepbrother was not called as a witness and his statement is over five years old. In those circumstances, the Tribunal places little weight on this statement.
[42] Exhibit A1, 2.
[43] Exhibit R1, 272.
[44] Ibid, 269.
The Applicant contends that his profile, fairly considered, is not that of a criminal, but ‘of someone who has just been very unlucky.[45]’ His claimed that the Israeli police told him ‘we know it’s not you’[46]; that he was pressured to blame an innocent person which his conscience precluded; and that none of the ‘200 odd people’ who gave evidence to the police witnessed his involvement in any violence,[47] These claims were uncorroborated.
[45] Exhibit A1, 3.
[46] Ibid, 1.
[47] Ibid, 2.
The respondent submitted that ‘considerable weight’ should be placed on the manslaughter conviction, despite the Applicant’s denial of any involvement in the victim’s death. He was found guilty of the offence and there is no evidence he sought to appeal the verdict.
In considering the Applicant’s denial of involvement in the Israeli manslaughter conviction, the Tribunal notes the decision of Deputy President Block in Shmarakova.[48] Consistent with the reasoning in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197, Deputy President Block held that the Tribunal was not entitled to ‘question the validity of an order by a competent court of a friendly jurisdiction’.[49] In Petrovic and Minister for Immigration and Multicultural Affairs [2000] AATA 1135, then Deputy President Breen considered evidence from a foreign conviction over 20 years earlier, reasoning at [10]:
‘What the Tribunal is left with is a description of an event which occurred 24 years ago and was considered serious enough under Yugoslavian law to warrant a conviction and a lengthy criminal conviction. That the same event may not have been treated so harshly in Australia is something the Tribunal may have regard to…but the fact of the conviction remains and cannot be disregarded in any way. To take this approach is not to go behind the conviction but, rather, to assess how seriously the Australian community would regard this particular instance of criminal activity in all of the circumstances. The mere fact that a conviction issues out of a foreign court does not of itself give cause for this Tribunal to question it. There would have to be clear evidence of a substantial miscarriage of justice, which is political in nature, before that issue would arise.’
[48] Shmarakova and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 976.
[49] Ibid, [20]; [179].
Australian convictions
In relation to his Australian convictions in 2014, the Applicant said his ex-wife was ‘lying.’[50] He also claimed to have had ‘a bad lawyer who did not show the evidence to the court,’ and also attributed his convictions to ‘bad luck.’[51]
[50] Exhibit A1, 5-6.
[51] Ibid, 8.
The respondent submitted that:
(a)‘further weight’ should be placed on the Applicant’s Australian offending, despite the Court electing not to record convictions. That follows from the Court’s findings of guilt, imposition of a CCO, and IVO; and the Applicant’s breach of the latter;
(b)the Applicant’s violent offences against a woman, and breaching an IVO to protect her, reflected adversely on his character;
(c)the Applicant’s protestations of innocence and attempt to explain his Australian court outcomes as ‘owing to the incompetence of his legal representative should be rejected’ as these are ‘inconsistent with the Court finding of guilt and highlight the applicant's inability to take responsibility for his past wrongdoing. These are not the attributes of a person of good character;’
In considering the Applicant’s attempts to impugn his Australian convictions, the Tribunal respectfully adopts the reasoning of Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803. His Honour drew upon the Victorian Court of Appeal decision in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (“LFF”) (at [42]) regarding the treatment of previous convictions (citations omitted):
‘The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.’
His Honour further held at [78]:
‘Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is…based.’
Disclosure of criminal offending to immigration authorities
In relation to his failure to disclose the Israeli conviction on his IPC upon arrival in Australia, the Applicant variously attributed this to tiredness and inadequate English. He nevertheless accepted ‘full responsibility’ for the omission and apologised for it;
In his 2017 citizenship application the Applicant disclosed his Israeli offending, but made no reference to his 2014 convictions in Australia.[52] In March 2019 immigration authorities wrote to the Applicant and his Migration Agent to the effect that information had come to the Department’s attention about the Applicant’s convictions in Australia.[53] The Applicant attributed this omission to his migration agent.
[52] Exhibit R1, 55-56.
[53] Ibid, 80-88.
The respondent submitted that the Applicant is personally responsible to ensure the accuracy of information provided to immigration authorities.
In relation to the importance of truthfulness in a person’s dealings with immigration officials, Deputy President McMahon stated in Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148 at [35]:
‘The observance of truth in dealing with officials in migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications... Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.’
Senior Member Morris of this Tribunal opined in Mohamad and Minister for Immigration and Border Protection [2018] AATA 687 at [39], that this principle ‘also adheres when an eligible non-citizen is applying for Australian Citizenship.’
Traffic / driving offences
A VicRoads record dated 28 November 2019 summarises the Applicant’s traffic history between 2013 and 2018.[54] It refers to a ‘Disobey traffic sign offence,’ three speeding offences – most recently in October 2018, where the Applicant was recorded as exceeding the speed limit by more than 15 KM/H but less than 25 KM/H; and a drink driving offence in October 2016. At the hearing the Applicant claimed he had no more than two standard drinks while attending a community function and any breach of the law was inadvertent;
[54] Ibid, 332.
The respondent submits that while some of the Applicant’s traffic offences are minor, ‘they include a drink driving offence in 2016,’ the type of offence which can have serious consequences.
TRIBUNAL FINDINGS
Consistent with the character references in evidence, the Applicant clearly has many good qualities. These include his involvement in work, commitment to his children, contribution to charitable causes, and valued community spirit. It is to his credit that those who have written supportive statements appreciate his contribution. The Tribunal places weight on references that reflect the author’s awareness of the Applicant’s offending. Very little weight is placed on references that do not refer to the Applicant offending or seek to impugn his convictions.
The Tribunal finds that:
(a)the Applicant was convicted of manslaughter in Israel, for which there is a comparator offence under Australia law. It is a significant criminal offence for which the Applicant served a ‘serious prison sentence’ within the meaning of the Act. Although occurring some 30 years ago, considerable weight is placed on this conviction, which relates to the death of another person. The Tribunal has considered the Applicant’s claims about substandard representation, lack of funds, and abuse of process, but in the absence of any corroborating evidence gives these claims no weight;
(b)the Applicant’s criminal record in Australia[55] accurately reflects his convictions. He committed domestic violence offences and intentionally caused injury to his ex-wife. No conviction was recorded, and the Tribunal acknowledges the CCO arising from his offending ceased in July 2015. There is no evidence of any further offending since. On that basis, the prohibition at s 24(6)(g) of the Act does not apply. Moreover, the Tribunal infers from the imposition of a CCO that the Applicant’s offending was considered by the Court to be at the lower range of seriousness. It is noteworthy, however, that the Applicant subsequently breached an IVO to protect the victim. Such offending is intrinsically serious and constitutes disrespect for Australia’s legal framework. The Tribunal does not accept the Applicant’s contention that he was falsely convicted of domestic violence offending because his victim lied, or because of inadequate legal representation, or because of ‘bad luck’. The convictions speak for themselves and the Applicant’s continuing attempts to impugn them are indicative of a lack of insight, which exacerbates character concerns; and
(c)The Tribunal finds the Applicant’s explanations about failing to disclose his Israeli conviction in an incoming passenger card or Australian offending in his 2017 citizenship application to be unpersuasive. While noting the evidence of his migration agent about the circumstances in which the Australian offending was not included in the citizenship application, this does not diminish the Applicant’s personal responsibility for documents lodged in his name.
[55] Ibid, 87-88.
CONCLUSION
The Australian community reasonably expects non-citizens to be law-abiding and truthful in their dealings with government agencies. The Applicant has convictions for violent criminal offences in Israel and Australia; which he continues to impugn without corroboration. The Tribunal finds his explanations persistently sought to derogate from the seriousness of his conduct, which is inconsistent with the ‘enduring moral qualities’ of a person of good character. He also failed to declare his criminal history to immigration authorities in 2009 and failed to include his Australian offending in his 2017 citizenship application. He has also committed several driving offences since June 2013, most notably a drink driving offence in October 2016.
It is clear from the character references that the Applicant has made a valued community contribution in several areas and is well regarded by those who support him. However, the Tribunal’s task is not to determine his community standing or repute, but whether he meets the requirements of good character within the meaning of the Act. Having weighed the evidence positive to his application against the character concerns arising from the evidence, the Tribunal is not satisfied the Applicant is of good character as required by s 21(2)(h) of the Act.
DECISION
The Tribunal affirms the decision under review.

55.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

………………………………….
Associate
Dated: 6 November 2020

Date of hearing: 6 November 2020

Applicant: In person

Advocate for the Respondent: Mr Ned Rogers

Solicitors for the Respondent: Australian Government Solicitor

[2020] AATA 4427

6 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	6 November 2020
Applicant:	In person
Advocate for the Respondent:	Mr Ned Rogers
Solicitors for the Respondent:	Australian Government Solicitor