Kamara and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3560

Kamara and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3560 (8 October 2024)
Division:GENERAL DIVISION
File Number:2023/4279
Re:Tumany Kamara
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Henderson
Date:8 October 2024
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 30 May 2023 to refuse the Applicant’s application for citizenship is remitted with the direction that he satisfies s 21(2)(h) of the Citizenship Act.
....................[Sgd]....................................................
Member Henderson

CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – reviewable decision remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2), 21(2)(a), 21(2)(b), 21(2)(c), 21(2)(d), 21(2)(e), 21(2)(f), 21(2)(h), s21(2)(g), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 24
Weapons Act 1999 (WA)
Criminal Code Act 1995 (Cth) ss 74A(2)(a), 172(2), 338B(b)
Bail Act 1982 (WA)
Road Traffic Act 1974 (WA) ss 50, 58(2)
CASES
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Boy19 v Minister for Immigration and Border Protection [2019] FCA 574
Minister for Home Affairs v G and Another [2019] FCAFC 79
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
SECONDARY MATERIALS
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act, ss 15(4)
Australian Citizenship Policy Statement, 27 November 2020
REASONS FOR DECISION
Member Henderson
8 October 2024
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent dated 30 May 2023,[1] to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
[1] R1, T2.
BACKGROUND
The Applicant is a 35 year old Liberian national, born in Monrovia on 20 June 1989. He first arrived in Australia on 6 December 2005 as a holder of an offshore Refugee (Subclass 200) visa.[2]
[2] R1, T2, page 7.
The Applicant has lodged a total of three applications for citizenship by conferral:
(a)His first citizenship application was lodged on 8 March 2013.[3] This application was refused on 4 November 2013 as the Applicant was unable to satisfy the character requirements set out in section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
(b)His second citizenship application was lodged on 27 September 2017.[4] This application was refused on the basis of inadequate proof of identity, pursuant to s 23(3) of the Act.
(c)His third citizenship application on 2 August 2022,[5] which gives rise to the Reviewable Decision.
In relation to the third application, on 2 February 2023,[6] the Applicant was invited to comment on adverse information by the Department of Home Affairs (Department) regarding inconsistencies in his application about his family composition, international money transfers to individuals in Liberia who bore the same details as the Applicant’s deceased parents, and his failure to fully disclose his Australian criminal convictions in his application. On 14 April 2023, the Applicant’s former representatives responded to the invitation to comment.[7]
On 30 May 2023, the Application was refused on the basis that the Department could not be satisfied that the Applicant was of good character as required by section 21(2)(h) of the Act, based on his offending history.[8] The Department did not contend with the Applicant’s response to the other adverse information, specifically, the inconsistencies in his application about his family composition and the international money transfers to Liberia.
On 13 June 2023,[9] the Applicant sought merits review of the refusal decision.
ISSUE
[3] R1, T2, page 7.
[4] R1, T2, page 7.
[5] R1, T2, page 7.
[6] R1, T13.
[7].R1, T21.
[8] R1, T2.
[9] R1, T1, pages 1 – 6.
Citizenship by conferral is dealt with pursuant to Part 2, Division 2, Subdivision B of the Act. It provides for an application to be made to the Minister for a person to be approved to become an Australian citizen where the statutory requirements as to eligibility are satisfied.
Eligibility for Australian citizenship is set out in sections 21(2)-(8) (eligibility criteria). Section 21(2) contains cumulative criteria as to ‘general eligibility’, including a requirement in s 21(2)(h) that the Minister, or their delegate, be satisfied that the Applicant is of ‘good character’ at the time of the Minister’s, or the delegate’s, decision on the application (the good character criterion).
In respect of the decision under review, the delegate was satisfied that the Applicant met the criteria in ss 21(2)(a)-(f). The delegate did not consider s 21(2)(g). The delegate was not satisfied that the Applicant met the good character criterion in s 21(2)(h).
In this instance, there is no obvious basis to revisit the criteria of which the delegate was satisfied. The sole issue before the Tribunal is whether the Tribunal can be satisfied that the Applicant is of good character, pursuant to subsection 21(2)(h) of the Act. If the Tribunal is so satisfied then the parties agree that the appropriate order is for the matter to be remitted with a direction to that effect for consideration of the balance of criteria (s 21(2)(g)).
BARRIERS TO GOOD CHARACTER
The Respondent says that there are two barriers to a finding that the Applicant is a person of good character.[10]
[10] RSOFIC.
GOOD CHARACTER ASSESSMENT: PRINCIPLES
The expression ‘good character’ is not defined in the Act. There are no criteria contained in the Act by which the Minister is to consider what comprises good character, and it has been held that this is an indication that Parliament intended the term to be used in a broad way.[11] The words ‘good character’ are used in their ordinary sense.[12] Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble.[13]
[11] Grass v Minister for Immigration and Border Protection[2015] FCAFC 44; (2015) 231 FCR 128 at [60].
[12] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431].
[13] Boy19 v Minister for Immigration and Border Protection [2019] FCA 574 at [53].
Guidance is set out in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship Policy Statement, which came into force as of 27 November 2020 (the Policy), and which Tribunal is to apply unless there are cogent reasons not to do so.[14]
[14]Minister for Home Affairs v G and Another [2019] FCAFC 79 (‘G’) at [57]-[62].
CPI 15(4) provides that an Applicant of good character would, among other things:
(a)respect and abide by the law in Australia and other countries;
(b)not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example intentionally providing false personal information or other material; and
(c)not be the subject of any verifiable information causing character doubts.
The relevant authorities and the Policy make it clear that:
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences; and
(b)dishonesty in migration and citizenship applications is indicative that a person is not of good character.[15]
[15] For example, Beyan and Minister for Immigration and Border Protection [2015] AATA 256.
EVIDENCE
The matter was heard in Perth on 12 June 2024. The matter was adjourned for the summonsed evidence of Jesse Jones and resumed on 24 June 2024. The Applicant was represented by Counsel, Mr Bryn Overend of Victorian Bar instructed by Ms Simrat Roopra of Australian Migration Lawyers. The Applicant appeared in person, and his representatives attended by MS Teams. The Respondent was represented by Ms Centaine Mumford of Australian Government Solicitors who appeared in person.
The Tribunal received the following in evidence:
(a)Applicant's Bundle of Supporting Evidence (Pages 1 to 40) (A1);
(b)Applicant's Bundle of Supplementary Supporting Evidence (Pages 1 to 18) (A2);
(c)T-Documents T1 to T25 (Pages 1 to 290) (R1);
(d)Summons Bundle (Pages 1 to 89) (R2);
The Tribunal heard oral evidence from the Applicant.
The Tribunal also heard oral evidence from;
(a)Mabongor Dulleh, the Applicant’s partner;
(b)Mr Samuka Konneh, the Applicant’s friend;
(c)Ms Bouah Kardio, a person the Applicant regards in a maternal role;
(d)Mr Boikai Java, the Applicant’s tenant.
The Tribunal has reviewed all of the material before it.
Applicant’s evidence
The Applicant gave oral evidence at the hearing on 12 June 2024. The Tribunal explained to the Applicant his right against self-incrimination and indicated that the Tribunal would adjourn proceedings for him to take advice from his representatives if at any time the Applicant thought that the answer to a question might incriminate him.[16]
[16] Transcript, pages 30, 37-38.
The Applicant described his early life and his travel to Australia as a refugee. He said that after the (violent) death of both of his parents he lived with his aunty in Guinea – he was unsure how they were related but he called her ‘aunty’.[17] He lived in a refugee camp with his brother and sister which he described as ‘horrible’.[18] He had some schooling in the refugee camp where he picked up a small amount of English and some fundamental literacy skills.[19]
[17] Transcript, pages 11 – 12.
[18] Transcript, page 12.
[19] Transcript, page 12.
He set out what he could recall of his living accommodations through to the end of his high school career. He said that he had dropped out of high school in year 11 because he had to support himself financially and that he had started an apprenticeship as a boiler maker.[20] The apprenticeship was through Roadwest Transport in Bassendean and lasted for three and a half years.[21] He thought he might have been around 22 years old when he completed the apprenticeship.[22]
[20] Transcript, page 14.
[21] Transcript, page 14.
[22] Transcript, pages 13-14.
The Applicant said that he used to go to school with a boy called Jesse and after they became friends he would spend a lot of time at Jesse’s house.[23] He got to know Jesse’s mother, Bouah, who became a parent figure to him. There came a time when the Applicant and his brother and sister had to split up because they couldn’t find accommodation all together, and at that time the Applicant moved in with Bouah and her family.[24]
[23] Transcript, page 13.
[24] Transcript, page 13.
The Applicant’s evidence is that around the age of 18 he fell in with a group of people who were a bad influence on him.[25] He stopped hanging out with them when he realised that he was not on a good path in life. He said that the trigger was ‘going to court and loss of income and all that.”[26] He said:
I start to realise, I don’t think this is the right way. There could be a better way to be a good person, so that’s when I decided that I think it’s time for me to leave this path and stop hanging out with the friends that I used to hang out with and start doing good for myself.
…
I stopped hanging out with the guys in the first place. And then – it wasn’t that easy, it was slow, it was a slow process.
…
I stopped going out and just stayed home most of the time…I was doing my apprenticeship at the time, so just focus on my, yes, work and that was it.[27]
[25] Transcript, pages 14-15.
[26] Transcript, page 15.
[27] Transcript, page 15.
In about 2013 the Applicant was introduced to the Liberian community by Bouah, and he became involved in the youth leadership program.[28] His evidence about this is:
I just wanted to – especially the troubled kids who were, you know, following the same path that I had been through. So if any little help that I help it would be a big change, so yes, that’s why I got involved…even if is a single person, if I can make them not follow the same thing that I did, I would be proud of that to be honest, yes.[29]
[28] Transcript, page 19.
[29] Transcript, page 19.
The Applicant gave evidence about meeting a woman named Anne-Marie in around 2014 around a time that he was unemployed. Their daughter Ruth was born 23 November 2015, whilst the Applicant and Anne-Marie were in a relationship that he described as ‘off and on and off again’.[30]
[30] Transcript, page 17.
The Applicant said his daughter was unplanned but a blessing, and although he had been unsure whether she was definitely his daughter there was an obvious resemblance between them.[31] He said that the relationship with Anne-Marie complicated his relationship with Ruth, but that until November 2023 he had seen Ruth every time he had been back in Perth and she would stay overnight with him. However, he had not seen his daughter since November 2023 and understands that the only way he is likely to see his daughter in the immediate future will be to take the matter to the Family Court of WA for orders that he be allowed to see her. He intends to take that approach but is hesitant about starting it.[32]
[31] Transcript, pages 16 – 17.
[32] Transcript, page 17.
The Applicant’s evidence about specific matters raised by the Respondent is dealt with below. Otherwise the Applicant’s evidence was that he has spoken to everyone who borrows cars registered in his name and told them that he will not be loaning them cars in the future.[33] He says that he has ensured that all infringements have always been paid, that he pays all his taxes, and that he “would never hurt anyone” and is not violent in any way.[34] He says that he loves his partner, Mabongor, that he is Muslim and that his religion ‘means everything’ to him.[35]
[33] Transcript, page 26.
[34] Transcript, page 26.
[35] Transcript, page 27.
Ms Mabongor Dulleh’s evidence
Ms Dulleh said that she had known the Applicant for around eight years.[36] They are now in a committed relationship and own their home together.[37] She is also helping him to pay off his investment property in Byford, not because he needs financial assistance but so that they are joint contributors to the asset pool of their relationship.[38]
[36] Transcript page 62.
[37] Transcript, page 63.
[38] Transcript, page 63 – 64.
Ms Dulleh was asked to describe from her observations of the Applicant what he is like with his friends, and she said:
Tumany as a friend to this – Tumany is very loyal – has been a loyal friend to his friends in the past, leading up to today. Tumany always – Tumany has a character of wanting to help people, wanting to be of service to other. So he tend to be the one in the group where, when others are struggling, they come to him. Like, we have opened our home to some of our friends who were probably – they were struggling with their jobs in terms of income for a period of time as well. And that has been friends of Tumany and myself. And even when I had my friend over for a couple of weeks due to some issue she was having – she had a young child – Tumany accepted that. So Tumany has a character of wanting to help, wanting to be there for other.[39]
[39] Transcript, page 66.
Her evidence was that she had been a passenger in a car that the Applicant was driving many times and he does not regularly drive above the speed limit.[40] She says that he is a man who takes responsibility for his mistakes.[41]
[40] Transcript, page 69.
[41] Transcript, page 67.
Samuka Konneh’s evidence
Mr Konneh was a character witness for the Applicant.
Mr Konneh had also had the opportunity to see the Applicant’s driving, and described him as a good driver.[42] He said of the Applicant:
I can vouch for him. I know who he is, and I have seen him grow. I have seen his, you know – I have seen him grow from when he was quite young. He came here very young. His sister who was also very (indistinct) very young. And the pressure of that, you know, like, he has to be at work to provide for them and at times, like, the isolation, being alone, you know, that would drive him to follow friends that might have led him to most of the stuff that he did in the past. But – yes. He is really not that person anymore. Like, just – I can just say that I can vouch for him, 100 per cent.[43]
[42] Transcript, page 76.
[43] Transcript, page 76.
Ms Bouah Kardio
Ms Kardio gave evidence to the Tribunal that she is the director of her business which is in disability and mental health. She has worked in that sector for around 17 years. She is from Liberia but came to Australia after living in Ghana. She is Jesse’s mother, and the person the Applicant refers to as his only parent figure.
Ms Kardio’s evidence was that the Applicant was like her son. She was aware of the trouble he had been in in the past, but that she had always found him a very pleasant person to live with; quiet, respectful and truthful. She said that his peers had led him astray, and that he had promised many times not to get into more trouble, but always had. Then in 2012 a lot of things changed; he focused on his work, then he had a daughter, he found his present beautiful partner.
Ms Kardio said that she knew the Applicant’s daughter Ruth very well – like a granddaughter. She said that the Applicant was a loving father, and a great community contributor who uses his time and experience to speak to young boys about staying out of trouble. She said that he was an honest person who would tell the truth even against his own interests, and that he showed great respect for his elders.
Ms Kardio confirmed that the Applicant and Jesse were like brothers, and that she had counselled the Applicant against continuing to lend his car to Jesse; she said that she would help him say no if he was asked. She said that she had driven with the Applicant many times and felt that he is a very safe driver.
Mr Java
Mr Java appeared for the purpose of cross-examination. He confirmed that he was driving the car on 24 October 2023 and 16 December 2023. He said that on 24 October 2023 he was new to Perth and was using the GPS in the car to go to the gym he was using at the time. He couldn’t recall if on this particular day he was going to the Cannington gym or the Malaga gym; he was doing trials and both was still deciding which one he liked.
Mr Java was asked if he had been to Lancelin and he said yes, sometime in the last year he had.
Jesse Jones
Attempts were made to obtain Jesse’s evidence in person. Given the importance of his evidence to the credibility of the Applicant, the Tribunal summonsed him, but he did not appear.
In the circumstances, the Tribunal cannot reasonably give weight to Jesse’s witness statement.
CONSIDERATION
Applicant’s Offending history
Between 11 September 2007 and 6 September 2012, when the Applicant was between the ages of 18 to 23 years old, he committed a total of 27 offences against the Weapons Act 1999 (WA), the Criminal Code Act 1995 (Cth) (the Criminal Code), the Bail Act 1982 (WA) and the Road Traffic Act 1974 (WA) (the Road Traffic Act), for which he received fines and driving disqualifications.[44]
[44] R1, T13, page 123.
The earliest offence was committed on 28 July 2007 and was driving contrary to a Learner’s Permit; a breach of s 50 of the Road Traffic Act. The Applicant was fined $50.[45] In August 2007 the Applicant committed the offence ‘Duty to Identify Offending Driver or Person in Charge of Vehicle and Not Give False Information’ pursuant to s 58(2) of the Road Traffic Act. On 24 September 2007 the Applicant committed the offence ‘Unlicensed Vehicle (Owner/Driver)’.[46] He repeated that offence on 18 October 2007 and again on 27 October 2007.[47] On the latter occasion he also committed the offence ‘Disorderly behaviour in public place’ pursuant to s 74A(2)(a) of the Criminal Code.[48]
[45] R2, page 41.
[46] R2, page 41.
[47] R2, page 40.
[48] R2, page 40.

On 14 December 2007 the Applicant committed the offence ‘Threats to injure, endanger or harm any person’ in breach of s 338B(b) of the Criminal Code.[49] On the same occasion he committed the offence ‘No Driver’s Licence (Fines Suspension) pursuant to the Road Traffic Act.[50] The Applicant showed a similar disregard for the law in the successive three years, with multiple offences for unlicenced driving, and multiple offences for disorderly behaviour in public.[51]
[49] R2, page 40.
[50] R2, page 40.
[51] R2, pages 38 – 41.
The Applicant’s history shows a marked deterioration in 2010, in which year he committed the offences ‘Obstructing public officers’ pursuant to s 172(2) of the Criminal Code, “Unlicenced Vehicle (Owner/Driver)’ and ‘No Authority to Drive – Suspended’ (on multiple occasions), ‘False Name (Driver)’, ‘Allow Driver’s Licence to be Used by Another Person’, ‘Disorderly Behaviour in Public’, ‘Obstructing Public Officer’ and ‘Breach of Bail’.[52] On 21 January 2011 the Applicant committed the offence ‘No Authority to Drive – Suspended’.[53] On 25 March 2012 the Applicant committed two offences: ‘Disorderly behaviour in public’ and ‘Carried (possessed) an article with intent to cause fear’.[54] On 21 July 2012 the Applicant committed the offence ‘Disorderly behaviour in Public’.[55]
[52] R2, pages 38 – 39.
[53] R2, page 38.
[54] R2, page 38.
[55] R2, page 38.
The Applicant was asked during cross-examination about giving a false name and allowing his driver’s licence to be used by another person, and he said that he could not recall the details at this stage.[56]
[56] Transcript, page 34.
The Applicant asked about carrying an article with intent to cause fear and he said it was a ‘bunch of… Africans doing back and forth, back and forth thing’ which he was a part of.[57]
[57] Transcript, page 35.
There is no question that in that period of time the Tribunal could not have been satisfied of the Applicant’s good character. It is more than 10 years ago, however, and the Applicant concedes unequivocally that his behaviour to 2012 was unacceptable and that a very significant change had to be made in his life at that time.
22 July 2012 – 27 February 2016
The Applicant has not been convicted of any offence occurring in the period 21 July 2012 to 28 February 2016; a period of nearly four years. There is no credible evidence before the Tribunal suggesting that he committed any offence in this period.
Driving under the influence - 2016
On 31 March 2016, the Applicant was convicted of the offence “Exceed 0.08g alcohol per 100ml of blood”. He was fined $550, and his licence was disqualified for seven months.[58]
[58] R2, page 38.
The Statement of Material Facts in relation to this offence described the following facts:
At 2:26 am on Sunday the 28th of February 2016, the accused drove a Mitsubishi Lancer sedan, registered number 1CFX710, in a westerly direction on Craig Street near Great Eastern Highway, Burswood.
The accused was stopped and it was ascertained that he had consumed alcohol.
As a result the accused was conveyed to the Cannington Police Station where he underwent a breath analysis test which gave a reading of 0.103 grams of alcohol per 210 litres of breath, calculated to 0.091 grams of alcohol per 100ml of blood at the time of the occurrence.
Disqualification Notice issued.[59]
[59] R2, page 12.
The offence was different from the Applicant’s previous record, and it occurred after a gap of almost four years with no recorded offences.
The Tribunal agrees with the Applicant’s submission that it should be regarded as a stand-alone offence, and not taken to extend the Applicant’s period of offending from 2007 – 2016; it is clearly not an unbroken period of disregard for the law.
As a stand-alone offence it is very serious, as the Applicant concedes. There is no evidence that he drove during the period that his licence was disqualified. He has not repeated the offence again. He shows genuine remorse, and a period of eight years has elapsed. Even so, the Tribunal does give it some weight in an assessment of the Applicant’s character.
2016 – present
There is no conviction or any credible evidence that the Applicant has committed any offence since 2016.
Detected Incident Reports
There are four Detected Incidents Reports since 2016 in which he is named as the person of interest.[60]
[60] R2, pages 13 - 37.
Two of them are reports made by his ex-partner. The Applicant was cross-examined about them and said that his ex-partner still wants to be with him and it has been tortuous.[61] The ex-partner’s own self-reported conduct of slapping the Applicant and recording him without his knowledge[62] strongly support the Applicant’s contention that he was the victim rather than the perpetrator of domestic violence in their ‘on and off’ again relationship.
[61] Transcript page 44.
[62] R2, pages 32 – 36.
The other two reports are on their face infected by racism, and the Applicant is clearly the person of interest by virtue of his African descent and his presence at the scene. The Applicant was cross-examined with respect to them and denied any involvement.[63]
[63] Transcript, pages 37 – 44.
The Tribunal gives them no weight in its considerations.
Driving infringements
Infringements recorded against the Applicant
Throughout the history of this matter ‘traffic offences’ and ‘traffic infringements’ have been dealt with by both parties as different concepts. Both the Respondent and the Applicant understand that ‘traffic infringements’ are still offences under the Road Traffic Act. The distinction drawn between ‘offences’ and ‘infringements’ in the course of the hearings has been due to the different manner in which an offence and an infringement is penalised pursuant to the legislation. Put broadly, the term ‘offence’ has been used to describe an offence which was taken to a Court and had a conviction recorded, and the term ‘infringement’ has been used to describe an offence for which an Infringement Notice issued and was not disputed.
There are two broad reasons for this distinction:
(e)An ‘offence’ must be declared as a conviction. An ‘infringement’ does not give rise to a conviction and does not need to be declared in answer to questions about convictions.
(f)An ‘offence’ attracts a more significant range of penalties than an ‘infringement’. Unquestionably an ‘infringement’ is treated by law enforcement as a much less serious breach of legislation than an ‘offense’ as used in this sense.
The Applicant has a history of traffic infringements. Upon request of the Respondent, the Applicant obtained a traffic infringement record providing all traffic infringements committed in the 10 years prior to the date of issue.[64] There were 19 recorded traffic infringements in the Applicant’s name at that time.
[64] A1, pages 36 – 37.
The Tribunal has been provided with copies of 21 traffic infringement notices issued to the Applicant, produced under summons, including 3 issued in 2024.[65]
[65] R2, – 87.
Seriousness of the traffic infringements
The majority of the Applicant’s recorded driving infringements are speeding offences.
The Traffic Infringement Record[66] yielded the following statistics:
(g)On 11 occasions the Applicant has been recorded driving ‘not more than 9km/h over the speed limit’. It is worth pausing to note that this is the first category of speeding offence, which may reflect driving as little as 1 km/h over the speed limit. It attracts a fine only – no demerit points are taken from a licence for this infringement even if it is a repeat offence. The Applicant did not lose any demerit points as a result of these offences.
(h)The Applicant is also recorded as exceeding the speed limit by 10km/h but not more than 19km/h on 9 occasions, the most recent on 22 January 2024.
(i)The remaining infringement on the Applicant’s history is ‘turning right from continuing road, fail to give way to oncoming vehicle or pedestrian on terminating road or near intersection’ on 10 April 2015.
[66] R2, 44 – 87.
There is a definite theme to the speeding offences recorded against the Applicant. The Tribunal has looked at the offences since the Applicant’s 2016 driving under the influence offences and sets the summary of facts drawn from the Traffic Infringement Notices as follows (most recent first):
(a)On 22 January 2024 the Applicant’s car was photographed travelling 80km per hour in a 70km/h zone at 7:36pm. The location was Thomas Rd Casuarina. Licence plate is 1HGZ 921.[67]
[67] R2, page 86.
(b)On 16 December 2023 the Applicant’s car was photographed travelling at 115km per hour in a 100km/h zone at 10:05am. The location was Indian Ocean Road, Karakin. Licence plate in 1HHD 986.[68]
[68] R2, page 84.
(c)On 24 October 2023 the Applicant’s car was photographed travelling at 107 kn/h in a 100km/h zone at 5:55pm. The location was Tonkin Hwy, Gosnells. Licence plate is 1HGZ 921.[69]
(d)On 25 February 2023 the Applicant’s car was photographed travelling at 123 km/h on Bussell Hwy, Dalyellup at 7:23pm. The number plate is 1HOA 913.[70]
(e)On 4 February 2023 the Applicant’s car was photographed travelling at 86 km per hour in an 80 zone at 8:35pm on Rockingham Rd, Kwinana Beach. Licence plate is 1HGZ 921.[71]
(f)On 3 February 2023 the Applicant’s car was photographed travelling at 68 km/hour in 60km/h zone at 6:27pm on South Western Hwy, Byford. Licence plate is 1HGZ 921.[72]
(g)Also on 3 February 2023 the Applicant’s car was photographed travelling at 86 km/h in an 80 zone at 10:44am on Rockingham Road, Kwinana Beach. The photograph showed the driver. Licence plate is 1HGZ 921.[73]
(h)On 12 May 2022 the Applicant’s car was photographed travelling at 60 km/h in a 50km/h zone at 9:53am on Princess Rd, Balga. The number plate is 1HIH 091.[74]
(i)On 11 June 2021: the infringement notice is not photographic and the basis for it issuing is not clear. It contends that the Applicant’s car was travelling at 74 km/h in a 60 zone 2:11pm Hale Rd Forrestfield - Licence plate is 1HGZ 921.[75]
(j)On 10 April 2020 the Applicant’s car was photographed travelling 116 in a 100 zone at 7:37pm on Mitchell Freeway, Clarkson. 1GPI 160 – the photo shows the driver.[76]
(k)On 20 July 2019 the Applicant’s car was photographed travelling 98 km/h in an 80 zone at 6:11am on Tonkin Hwy, Champion Lakes: 1GPI 160 – the photo shows the driver.[77]
(l)30 June and 1 July 2016 the Applicant’s car was photographed traveling 111 and 107 in a 100 zone at the same spot on Roe Hwy, Willetton at 11:08am and 11:58am respectively.[78]
[69] R2, page 82.
[70] R2, page 79.
[71] R2, page 77.
[72] R2. [age 75.
[73] R2, page 73.
[74] R2, page 71.
[75] R2, page 69.
[76] R2, page 67.
[77] R2, page 65.,
[78] R2, page 63.
The Applicant’s licence was still suspended from his 2016 conviction for drink driving when the 2016 infringements occurred. The Applicant’s written evidence to the effect that he takes full accountability for the traffic offences that he has committed in the period between 2013 to 2018 suggests that he accepts that he was driving without a licence in 2016.[79]
[79] A1, page 4.
Evidence that the Applicant was not always the driver
Each of the speeding offences listed above was issued to the Applicant as the registered owner of a vehicle which was photographed speeding. The Applicant says that he was not always the driver of the vehicle at the relevant time. He says further that he was not always made aware that the offences had occurred – on some occasions the driver of the vehicle paid the fine and didn’t tell the Applicant because there were no demerit points associated with the offence and so the driver saw no need to mention it once the fine was paid. On other occasions the Applicant was away working and didn’t collect his mail until he had missed the deadline for notifying that he was not the driver at the relevant time.
The Applicant has provided evidence that on 12 May 2022 and 24 October 2023 he was at work on a mine site when the offences occurred.[80] The offence that occurred on 12 May 2022 was one of the higher speed limit offences. The photograph of the vehicle does not show the driver.[81] The offence that occurred on 24 October 2023 occurred while the Applicant was demonstrably a passenger on an aircraft[82]; it was one of the lower speed limit offences.[83] The photograph of the vehicle does not show the driver.
[80] Transcript, page 23 – 24.
[81] R2, page 71.
[82] A1, page 10.
[83] R2, page 82.
The Applicant’s written evidence is that Jesse was the driver of the vehicle photographed in each of the 7 driving infringements committed between 20 July 2019 and 4 February 2023.[84]
[84] A2, pages 4 - 5.
The Applicant’s written evidence is that he is the registered owner of two cars, but that his FIFO work means that his cars are often unused and he has allowed Jesse and Mabongor to use them freely. Jesse is the main user of his VW Golf, registration 1HGZ 921.
The Applicant’s evidence at the hearing was that he frequently lent one of his two cars to his friend Jesse. He described the arrangement as ‘mainly off and on. Because he will come and borrow it and he will take it away sometimes for a week and sometimes two weeks, and then he will return it back, and just things like that.’[85] He was asked about fines that Jesse had incurred and the following exchange with his counsel took place:
You’ve referred to infringements that appear on your record on 20 July 2019 to 4 February 2023?‑‑‑Yes.
As being attributable to Jesse?‑‑‑Yes.
And you said that he’s paid those fines?‑‑‑Yes.
Do you know how it was arranged for him to pay those fines?‑‑‑Yes. So this is what happens. Like, if the fine comes, he lets me know. And then most times, because sometimes the fine will come right after, maybe I’m not sure aware of it. And he will let me by phone, ‘there’s a fine that just came over’. But I don’t really pay a lot of notice to that. But he’s phoning, like, he will just be like, ‘it’s only like 13 kilometres over’. So it’s only like a $100 fine. So I’ll be, okay, ‘yes, all good. Just pay for it then’. She should be right. Then yes, so I think most of them, that’s what he does, especially the February, 3 February and 4 February, I think it was like, he went over seven kilometres. So I just said to him, ‘yes, just pay the fine and it should be all right. But just be careful how you drive my car. Just don’t try to get me into trouble’.[86]
[85] Transcript, page 22.
[86] Transcript, pages 22 -23.
The Applicant initially attributed the infringement on 25 February 2023 to Mabongor, although he conceded that he did not recall who was driving at that time and that they had both taken turns.[87] The Applicant was shown the photograph on the relevant infringement notice during the hearing and conceded that it looked more like him than Mabongor. He was prepared to admit that he had been mistaken and he had been the driver.[88] Mabongor was not prepared to make that concession in her evidence.[89] The Tribunal’s view is that it is not possible to be certain from the photograph which of them was driving.
[87] Transcript, page 24.
[88] Transcript, page 49.
[89] Transcript, pages 64 – 65.
The Applicant’s immediate response to being shown the Infringement Notice was surprise. He was prepared to accept that he had made a mistake. The Tribunal accepts that the Applicant was mistaken rather than lying when he indicated that he thought Mabongor had been driving; it is apparent from the whole of his evidence that his chief reason for thinking that it was her driving was because he believed he had not been speeding so he concluded that the speeding ticket must have been incurred whilst she was at the wheel.
However, the Tribunal finds that the Applicant was the driver of the car when it exceeded the speed limit in February 2023, and the Tribunal finds further that the Applicant is not always aware that he is exceeding the speed limit. It follows that, at least as of February 2023, the Applicant was not paying sufficient attention to his own driving to ensure obedience with Road Traffic laws.
Purpose and justification in the driver of a vehicle taking responsibility for offences or notifying within a fixed period
The Applicant’s failure to properly notify that he was not the driver of his vehicle has had the effect of protecting other drivers from bearing the consequence of their actions. That is not acceptable. The Applicant’s reasons for not naming the other drivers are not acceptable. On one or two occasions he might have been surprised to get a notice too late to take steps to address it. After that, he should have stopped lending his car to others if it was going to result in offences that they did not take the responsibility for.
From his oral evidence, it appears that the Applicant does now appreciate the importance of reporting the drivers of his vehicles if they commit offences. He made the following admission about the history of lending his car to Jesse:
But at the time maybe, from what I can recall, it’s like, so instead of Jesse, if he’s about to lose his licence, he say, ‘bro, I’m just on this. But could you please take it for me’, but I didn’t know the seriousness of it. So I would say, ‘okay, that’s why I’ve still got 12 points. So it’s okay. You can put it under my name and all that’. So there’s been an incident like that. We’ve had things like that. So yes. But I didn’t understand the seriousness of how it would impact on me as well. So yes.[90]
[90] Transcript, page 48.
The Tribunal specifically enquired of the Applicant what he regarded as appropriate behaviour with regards to helping his friends and the law, and the following exchange occurred:
MEMBER: Sorry. Can I just clarify, because you keep saying things along the lines of ‘you didn’t realise how serious it was’. Is it obeying the law that you’re talking about, when you talk about not realising it’s serious. Maybe you could just talk to me a little bit more about that. Because I’m not sure I’m entirely understanding of what you mean?‑‑‑So, I don’t know how to put this. Because, like looking at it as a traffic offence, it’s wrong to think of it that way to be honest. But it’s like a traffic offence, and then trying to help someone, it’s not like trying to break the rules or anything like that basically. But what I know now if I knew that before, I would definitely, from now on if anyone were to drive my car it’s going definitely under your name. So that’s what I’m trying to say. Not understanding of what ‑ ‑ ‑
But what I’m trying to get at is, are there circumstances where you would still disregard something that is a law, but it’s not that serious to follow?‑‑‑No.[91]
[91] Transcript, page 51.
The Applicant was asked in cross-examination whether he had exceeded the speed limit since 2016, irrespective of whether or not he had been caught, and he conceded that he had but that he had thought the last occasion was in 2019. He conceded that it was actually in 2023 according to the evidence.
The Applicant was asked whether he would speed again in the future, and he said he was trying to follow the law from now on and did not intend to speed again. The Applicant was asked why the Tribunal should accept his word that he would not speed again, and the Applicant said:
Why should they believe me (indistinct), because from what I’ve taken from the road, something that I did, the course that I did, and looking at it, because from looking at all those fines, putting it together, it’s a lot of money. And breaking the rules is not the right thing to do. So definitely I will take that on board. I will definitely not be speeding again in the future. And these days I actually spend more time at home. Even when I’m off, I spend more time at home and I enjoy spending time at home as well. So I just, yes, and maybe if I have to go somewhere I just catch Uber most of the time as well.[92]
[92] Transcript, pages 52 - 53.

The Applicant demonstrates real insight in that last sentence, which was evident from his bearing as he delivered it. The Applicant demonstrated real frustration with himself in his bearing and tone of voice. The Tribunal is satisfied that the Applicant has realised that he may need to catch Ubers if that is what is necessary to avoid exceeding the speed limit without even being aware of it.
On re-examination the Applicant had the following exchange with his counsel with respect to taking fines for Jesse:
At what point did you make that realisation that you should not do that?‑‑‑At the point that, because it’s becoming a bit too much. If you look at it even now, just actually yesterday I was going through it. I was looking at it, sort of, this is getting a bit too much. I think anyone that drives my car. Another thing I’m going to do is stopping anyone from driving my car. There’s Uber services now there. So if you can take an Uber or whatever, that would be the best option.
Do you understand the seriousness of taking points for another person when they were driving?‑‑‑Yes. [93]
[93] Transcript, page 54.
On balance, the Tribunal believes that the Applicant understands that it is important for the owner of a vehicle to correctly identify who was driving in a timely manner when an offence is committed.
Misleading the Department
The Respondent says that there is also an issue because the Applicant did not disclose his offences to the Department in his application for citizenship.
The application form for Australian citizenship poses the question:
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent convictions)?
The Applicant answered ‘yes’.
The application form instruction following that answer was “Give details”. The Applicant put “Driving without a license”. It is not in dispute that he had been convicted of all of the offences detailed in paragraphs [44] – [57] above at that date.
The Applicant’s submission is put in the following terms:
the Applicant assumed that he was not required to
provide a new criminal record because the Department already had a copy from
his first application in 2013, and that he would only need to update the
Department with respect to the single offence in 2016 in the intervening period
between 2013 and 2022[94]
[94] ASOFIC [71]
The Respondent’s submission is that the offence of driving without a licence was not his most recent offence. On an assessment of the evidence, however, it does appear that the Applicant committed the offence of driving without a licence in 2016, after his driving under the influence offence.[95] The Applicant’s licence was still suspended from his 2016 conviction for drink driving when the 2016 speeding infringements occurred.
[95] R2, pages 44 – 87.
A 2016 driving without a licence offence was not on the record of his convictions for a reason unknown to the Tribunal. There is no statement of material facts in relation to this offence. The Applicant disclosed the only offence that the Respondent was unable to obtain for itself: that speaks in favour of his character.
The Applicant’s first previous citizenship application in 2013 was refused on the basis of his offending. That application has not been made available to the Tribunal; the Applicant’s evidence is that he made full disclosure of his offending history. The Applicant further states at paragraph [32] in his statutory declaration of 28 March 2023[96] and paragraph [19] of his statutory declaration of 4 October 2023[97] that at an interview relating to one of his citizenship applications a case officer made clear to the Applicant that the Department is able to access the extent of his offending history. It is not unreasonable against that backdrop for the Applicant to have assumed that repeat citizenship applicants did not have to re-disclose material that had previously been disclosed. The Tribunal notes that the question does not expressly state that repeat citizenship applicants must disclose all offences including those previously disclosed in their previous citizenship application.
[96] R1, T21, page 225.
[97] A1, page 3.
The Tribunal accepts that the Applicant did not intend to mislead the Department with the intention of benefiting from that deception, and notes that he did not (and could not) succeed in misleading the Department with regards to his offending history because, as the Applicant correctly identified, the Department had direct access to it. Given his history of failed citizenship applications, it was most unlikely that the Department would not have regard to the Applicant’s full offending history.
The Tribunal considers that the Applicant’s disclosure of an offence in 2016 which does not appear on his record and which he knew would not appear on his earlier citizenship applications speaks in favour of his being of good character.
Evidence of the Applicant’s good character.
The Applicant has turned his life around in a most extraordinary and inspirational fashion. The Tribunal gives the Applicant’s past and continuing self-improvement very significant weight in its assessment of his character.
The Applicant’s present relationship is a long-term commitment with a woman who speaks in glowing and positive terms. He is insightful about his relationship with his former partner and the problems inherent in pursuing a relationship with his daughter in the Family Court of WA. He has a very positive role in his community, and a good reputation as an employee. He adheres to his religious beliefs and is clearly generous to his friends, perhaps to a fault.
Balancing exercise
The Applicant’s cumulative traffic infringements are numerous, but not otherwise extraordinary. No one of the infringements would reflect on his character. It is the conflagration of them, set against the backdrop of his past, that have excited the Respondent’s attention.
The Tribunal asked the parties to reflect on and address the Tribunal on the impact on a character assessment of the normative acceptance of minor speeding offences in the Australian community at large. The character test is ultimately a moral test, and morality can only be tested within the confines of moral norms in society. One has only to drive on an Australian road to be satisfied that the vast majority of road users in Australia drive right on or slightly over the speed limit. What was intended to be a maximum speed is used by the average Australian driver as a minimum speed; to the extent that people travelling 5km/h under the speed limit may attract honking horns. That is not to say that speeding is right, legal, or morally appropriate. However, that is the general community attitude in which the tendency to drive over the speed limit must be assessed from a character perspective.
The seriousness of the breaches, and the potential consequences of them, are significant considerations. In the Applicant’s case, none of the infringements yield a factual matrix that was likely to put anyone in danger. The percentage of total speed over the proscribed limit was very small in most instances; too small to attract a demerit point on most of the occasions when the Applicant was driving. The locations of the infringements were long, straight stretches of road that had high speed limits. The photographs show that the Applicant’s car was clear of other traffic and the visibility was good. The times of the infringements were not high traffic times of day. The Applicant is otherwise said to be an excellent driver; he has been obedient to the Road Traffic Act in almost every other respect since 2016.
All people of good character must strive to obey the law. It is hard, very hard, to obey the law when it is being disregarded by everyone around you as is often the case with travelling a few km/h over the speed limit. To fail to obey the law on such an occasion warrants punishment but the infringement itself does not redound as strongly against character as it otherwise might. It is an important consideration that the Applicant continues to strive to obey the law, and that he has taken and continues to take steps towards self-improvement.
The insight that the Applicant shows into his past offending, and the steps he has taken to rehabilitate, are exemplary. The effect of them in the past is incontrovertible; his offence record demonstrates the remarkable change in his path. On that basis, the Tribunal believes the Applicant when he says that he will consider taking Ubers rather than driving in the future. The Applicant is, in the Tribunal’s view, the sort of person who might actually commit to giving up using his licence when shown proof that he is travelling over the speed limit when he is unaware of doing so. As an alternative, he might consider obtaining a car with cruise control and using it any time he is travelling at high speeds.
The Tribunal is affirmatively persuaded that the Applicant is a person of good character who has made mistakes, and will make more, but who has paid for them, grown from them, and will take future steps to avoid them whenever possible.
CONCLUSION
For the reasons outlined above, the Tribunal can be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 30 May 2023 to refuse the Applicant’s application for citizenship is remitted with the direction that he satisfies s 21(2)(h) of the Citizenship Act.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for the decision herein of Member J Henderson

.................[Sgd].......................................................
Associate:
Dated: 8 October 2024

Date(s) of hearing:
12 June 2024

24 June 2024

Representative for the Applicant:
Mr Bryn Overend, Victorian Bar

Ms Simrat Roopra, Australian Migration Lawyers

Solicitors for the Respondent: Ms Centaine Mumford, Australian Government Solicitors