Kayembe and Minister for Immigration and Citizenship (Citizenship)
[2025] ARTA 1984
•3 October 2025
Kayembe and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 1984 (3 October 2025)
Applicant:Papy Kayembe
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2023/8278
Tribunal:General Member K. Thornton
Place:Melbourne
Date:3 October 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the Applicant satisfies the good character requirements under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
..................[SGD]....................
General Member K Thornton
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – citizen of Democratic Republic of the Congo – whether Tribunal is satisfied of Applicant’s good character – Australian Citizenship Act 2007 (Cth) – minor criminal history – Tribunal satisfied Applicant is of good character – decision under review set aside
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Secondary Materials
Department of Home Affairs, Revised Citizenship Procedural Instructions - Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)
Statement of Reasons
INTRODUCTION
The Applicant seeks review of a decision of the delegate of the Respondent to refuse his application for Australian citizenship by conferral on the basis that he does not satisfy the good character requirements under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).
For the reasons that follow, the Tribunal has decided that the decision under review is set aside and remitted with the order that the Applicant satisfies the good character requirements under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
BACKGROUND
The Applicant is a 41-year-old citizen of the Democratic Republic of the Congo. He first arrived in Australia on a Remaining Relative (subclass BO-115) visa on 27 August 2008.[1] He still holds this visa.
[1] Exhibit R1, 7.
On 5 June 2023, the Applicant applied for Australian citizenship by conferral.[2]
[2] Ibid 14.
On 10 August 2023, the Applicant attended his citizenship test appointment.[3] During his interview, the Applicant disclosed that he went to court in 2022 for a traffic offence and was fined $245.[4] He also disclosed that he went to court in 2017 for a domestic violence dispute and that he had no criminal convictions.[5]
[3] Ibid 9.
[4] Ibid.
[5] Ibid.
On 8 September 2023, the Department conducted a Nationally Coordinated Criminal History Check which revealed the Applicant was fined $245, without conviction, for one charge of Exceed speed limit by 10-19km/hr at Murray Bridge Magistrates Court in South Australia on 2 August 2022.[6]
[6] Ibid, 71-2.
On 25 September 2023, the Department invited the Applicant to comment on adverse information declared at his citizenship test appointment, namely the domestic violence dispute that went to court in 2017.[7]
[7] Ibid 63.
On 10 and 12 October 2023, the Applicant provided the Department with the following material:[8]
(a)Letter of support dated 7 October 2023 from Mr Possible Diessa, President, Congolese Community of Australia;[9]
(b)Letter of support dated 4 October 2023 from the Applicant’s employer, Mr Robert Carletti, Managing Director, Genelyn Pty Ltd;[10]
(c)Statutory Declaration of the Applicant dated 10 October 2023;[11] and
(d)Affidavit from the Applicant’s former partner dated 31 March 2017.[12]
[8] Ibid 83.
[9] Ibid 73.
[10] Ibid 74.
[11] Ibid 75.
[12] Ibid 76.
On 20 October 2023, the Department requested further material namely a full copy of any current or expired Domestic Violence Protection Order.[13] In response, the Applicant provided a copy of an Order for Variation of Intervention Order dated 13 October 2017.[14]
[13] Ibid 80.
[14] Ibid 84.
On 7 November 2023, the delegate of the Respondent refused the Applicant’s application for Australian citizenship on the basis that the delegate was not satisfied that the Applicant met the good character requirements pursuant to s 21(2)(h) of the Act.[15] The Applicant was notified of this decision the same day.[16]
[15] Ibid 7.
[16] Ibid 88.
On 7 November 2023, the Applicant lodged an application for review of the decision with the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Tribunal hearing
On 11 September 2025, the Tribunal hearing was conducted by video. The Applicant was self-represented in these proceedings. The Respondent was represented by Mr Serge Fursa from the Australian Government Solicitor’s office.
The Tribunal received into evidence a Hearing Book comprising 360 pages of material.[17] The Applicant gave evidence to the Tribunal and was cross-examined. Prior to giving evidence, the Applicant was advised of his privilege against self-incrimination which he indicated he understood. The Applicant also called character evidence from his employer Mr Robert Carletti.
[17] Tendered as Exhibit R1.
ISSUE TO BE DETERMINED
The sole issue to be determined by the Tribunal is whether it is satisfied the Applicant is of good character at the time of its decision.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. To be eligible for citizenship, a person must meet each of the eight general eligibility requirements under s 21(2) of the Act.
Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
Section 24(1) provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 52(1)(b) of the Act provides that an application may be made to the Tribunal for review of a decision under s 24 to refuse to approve a person becoming an Australian citizen.
Citizenship Policy and Revised Citizenship Procedural Instructions
The Australian Citizenship Policy Statement (‘Policy’) (reissued 27 November 2020) and the Revised Citizenship Procedural Instructions (‘CPI’s’) (published 1 January 2019) provide policy guidance to decision-makers exercising powers and discharging functions under the Act. Although such policy is not binding on the Tribunal, decision-makers undertaking merits review should generally apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary’.[18] The Tribunal has not identified any reason why the Policy and CPIs should not be applied in this case and has therefore relied upon these documents in considering the matter before it.
[18] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
The relevant CPI in this case is CPI 15 – Assessing character under the Citizenship Act (reissued 26 February 2021).[19] The purpose of CPI 15 is to give guidance to decision-makers on the meaning of ‘good character’ in the context of making a decision under the Act.[20] The policy set out in this instruction is not to be applied rigidly or inflexibly.[21]
[19] Exhibit R1, 115-37.
[20] Ibid 118.
[21] Ibid.
Clause 3.3 provides the following guidance when assessing good character:[22]
[22] Ibid 118-9.
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
• 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 good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
Part 4 of CPI 15 identifies a number of characteristics that a person who is of good character would generally be expected to exhibit. It states, that as a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible;
·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 during visa and citizenship applications;
oconcealing criminal convictions; and
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct.
Part 12 of CPI 15 deals with consideration of offences committed by persons who are applying for Australian citizenship. Serious offences include crimes of violence (such as domestic violence).[23]
[23] Ibid 127.
Part 14 of CPI 15 provides guidance in weighing information when making an assessment of good character. Decision-makers should, as a general proposition:
·characterise the nature of any offence or behaviour
·is the offence serious or minor?
·did the offence harm other people?
·who were victims?
·is there a pattern of behaviour?
·was it a one off incident?
·were there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
·length of time since the offence was committed
·age at time of offence
·behaviour since completing prison sentence or obligations to court
·remorse regarding their offending behaviour
·community support (referee reports etc)
·changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
EVIDENCE
Documentary evidence
The Tribunal had before it a Hearing Book which contained the following documents:
(a)T-documents totalling 149 pages;
(b)Statutory Declaration of the Applicant (undated);
(c)A Certificate of Record from the Magistrates Court of South Australia confirming the revocation of an Intervention Order on 5 February 2013;
(d)A Record of Outcome document from the Magistrates Court of South Australia confirming the revocation of an Intervention Order on 22 October 2020;
(e)National Criminal History Check dated 18 October 2024;
(f)Respondent’s Tender Bundle comprising summonsed material obtained from South Australia Police; and
(g)Respondent’s Statement of Facts, Issues and Contentions dated 20 November 2024.
The Tribunal has had regard to the documents listed above in considering its decision.
Oral evidence
The Applicant
The Applicant told the Tribunal he first arrived in Australia in August 2008. He is a father of four children and is expecting a fifth child early next year. He is currently in a new relationship.
He has been working with Genelyn Pty Ltd on a full-time basis for the past 14 years. He also has completed volunteer work in his local community and has his own Ministry. He also used to play soccer, but now assists with coaching and assisting the Congolese community.
During cross-examination, he acknowledged that when he completed his citizenship application he answered ‘no’ to the question which asked whether he had any convictions or had been found guilty of any offence. He said he knew he had a single traffic offence, but because no conviction was recorded, he didn’t declare it. He did however disclose it during his citizenship interview with the Department. He has no other convictions or findings of guilt.
The Respondent questioned the Applicant about his understanding of what constitutes a respectful relationship and how he manages conflict in his current relationship. The Applicant said if there is any conflict in his current relationship, he walks away and tries to work out any conflict or difficulties later. He said he understands a healthy relationship does not involve the use of violence.
He acknowledges that he was directed by the Community Corrections Office to attend domestic violence counselling in May 2015 as a result of allegations of domestic violence made against him by his former partner. He said he participated in the counselling, but once his criminal case was discontinued, the counselling ceased. He recalls he participated in counselling on two occasions. He was questioned about other programs but recalled only participating in one program with Uniting Communities as the provider.
The Applicant was then questioned about the previous allegations of family violence alleged against him by his former partner. The Applicant firmly denied all allegations of family violence put to him by the Respondent. He agreed he accepted the imposition of an Intervention Order against him because he wanted to move on and cease the relationship with his former partner.
He acknowledged that as a consequence of one of the incidents, he was placed under arrest and remanded in prison for seven days, before being transferred to house arrest for six months, which allowed him to continue to work.
That incident of family violence which resulted in this brief period of remand was later discontinued in court upon the Applicant presenting evidence that he was not in the vicinity of his former partner’s residence at the time the family violence was said to have occurred. He accepted that he was subject to various Interim Intervention Orders during this period but gave evidence they were always revoked upon the charges being discontinued in court. He acknowledged that his two children whom he shares with his former partner were also named as protected persons on one of these Interim Orders. The Applicant confirmed that this Interim Intervention Order, which was issued on 31 August 2016, became a Final Order on 13 October 2017.[24] This Order was later varied on 22 October 2020, and fully revoked on 26 September 2024.[25]
[24] Ibid 84-5.
[25] Ibid 153-4.
Mr Robert Carletti
Mr Carletti gave evidence that he is the Applicant’s employer and has known him for over a decade. He said the Applicant approached Mr Carletti seeking work and has been working for him ever since.
Mr Carletti told the Tribunal that Genelyn Pty Ltd is his business that he has held for 25 years and has few employees, one of which is the Applicant.
He said that he considers the Applicant to be a well-respected member of the community. He said the Applicant is not a violent man. He said the Applicant used to play soccer and is a Pentecostal Lay Preacher. He is happy to have the Applicant work for him as long as he wants to.
During cross-examination, Mr Carletti said he was aware of the family violence allegations made against the Applicant. He told the Tribunal that in his opinion, these allegations go against the Applicant’s upstanding character. He said the Applicant had told him about the allegations, and that if he believed the allegations were true, he would no longer employ him.
CONTENTIONS
Applicant’s contentions
The Applicant didn’t file submissions, but it is plain from his Statutory Declaration and oral evidence to the Tribunal that he denies the family violence offending ever took place. He was firm and consistent in his denials regarding the allegations put to him during cross-examination.
During his closing submissions to the Tribunal, the Applicant reiterated that he has lived in Australia since 2008 and has never been involved in domestic violence. He acknowledged that he was in a relationship that was “toxic”, but that he was never violent in that relationship. He said he was a victim of that toxic relationship but was never violent. He said he is not in denial about what occurred, and plainly denied to the Tribunal that the domestic violence ever occurred. He said he had to spend time in prison for something he didn’t do. He said he has followed the laws of Australia and would never make a stupid decision to endanger other people in the community.
Respondent’s contentions
In its Statement of Facts, Issues and Contentions, the Respondent contends that the Tribunal should not be satisfied that the Applicant is of good character at the time of its decision.[26] Although the Respondent accepts that the Applicant did not receive convictions in respect of the allegations made by his former partner, it is submitted that the Tribunal can have regard to the conduct that led to those charges being brought, and can find, on the available evidence, that the conduct occurred despite the fact that no criminal convictions eventuated.[27]
[26] Ibid 358, [21-[22].
[27] Ibid 358 [24], citing at f/n 25 Ngaranoa v Minister for Immigration and Citizenship (2007) 244 ALR 119 at [11] (Bennett and Buchanan JJ); SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 at [92] (Katzmann J); Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at [33] (French CJ, Hayne, Kiefel, Bell and Keane JJ) and [63]-[64] (Gageler J); Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22 at [30]-[31] (Robertson J); Chiagozie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 139 at [43]-[44] (Collier J).
The Respondent relies on the material obtained under summons from South Australia Police which detail allegations of assault having occurred in July 2011, January 2013, April or May 2015, April 2016, August 2016 and March 2017.[28] The Respondent also notes that the Applicant has been subject to three Interim Intervention Orders in the past, all of which were revoked.[29] It is submitted that the volume of evidence relied upon provides an extensive evidentiary basis for the Tribunal to conclude that the Applicant engaged in family violence towards his former partner.[30]
[28] Exhibit R1, 358 [25].
[29] Ibid 358-9 [26].
[30] Ibid 359 [30].
The Respondent does accept that there are factors which weigh in the Applicant’s favour, namely his declaration at his citizenship test interview that he was previously involved in a domestic violence dispute, his character references, the fact that the Intervention Orders have been revoked, the lack of any convictions in respect of the alleged family violence conduct, and the passage of time.[31] Despite this, the Respondent contends that the Tribunal should harbour real concerns about the Applicant’s propensity to engage in domestic violence, and that the decision under review should be affirmed.[32]
[31] Ibid 360 [32].
[32] Ibid 360 [36]-[37].
CONSIDERATION
The Tribunal has considered the documentary evidence and oral evidence before it. It has carefully considered the material obtained by South Australia Police including witness statements and police reports.
The Tribunal notes that the Applicant disclosed to the Department during his citizenship interview the fact of his speeding fine which resulted in a fine without conviction. He was sentenced for this offence on 2 August 2022. The Tribunal has considered this matter and has determined that it does not weigh adversely against the Applicant’s character, because of the age of the incident, and the penalty imposed. There has been no convictions or findings of guilt either before this incident or subsequent.
The Tribunal has considered the evidence of the Applicant and his firm denials that no family violence offending took place. Despite the sworn statements of the victim and the reports of these matters to police, the events never led to a criminal conviction or finding of guilt. The Applicant acknowledges that he was subject to Intervention Orders at various times, but these Orders were all revoked. The Tribunal has had regard to the fact that each of the Orders was revoked and has noted that the Applicant was never convicted or found guilty of any offence resulting from the allegations. This is not a case where an applicant was, for example, found guilty of a family violence offence but had no conviction recorded. In the Applicant’s case there were no convictions or findings of guilt at all.
The Tribunal accepts that the Applicant was subject to a Domestic Violence Order from 2017, until its removal in September 2024. Again, during that period there was no breaches of that Order during the seven-year period it was in effect. The Applicant is not subject to any current Intervention orders against him.
The Tribunal has considered the Applicant’s character holistically. The Applicant has been employed by the one employer for the past 14 years. The Applicant’s employer gave evidence that he runs a small business and has always counted on the Applicant’s hard-working and upstanding character. Mr Carletti gave evidence that if he suspected the Applicant had committed family violence, he would not continue to employ the Applicant.
The Applicant has also provided character evidence from the President of the Congolese Society of South Australia who spoke of the Applicant’s good character. The Applicant has his own Ministry and gave evidence of his volunteer work in the community.
The Tribunal notes that when the Applicant completed his citizenship application, he indicated ‘no’ to the question that he had no convictions or findings of guilt. This was incorrect because at the time the Applicant had a finding of guilt for the driving offence. The Applicant was upfront and disclosed the fact of this finding of guilt during his citizenship interview. He also disclosed the fact that he had a current family violence order against him at the time. That disclosure is to his credit. It is to his credit because the Nationally Coordinated Criminal History Check obtained at the time disclosed no family violence offending at all, nor any breaches of any family violence orders. The Applicant provided a copy of the Intervention Order when requested to do so by the Department. That disclosure led the Respondent to seek further materials from South Australia Police which detailed allegations of family violence, but again none of these allegations ever resulted in a conviction or finding of guilt. The family violence allegations were put to the Applicant in some detail during cross-examination. The Applicant firmly denied each of these allegations. He admitted to the imposition of Intervention Orders at various times, but the Tribunal notes that every Order was subsequently revoked upon the matter being discontinued at court. The South Australian Magistrates Court most recently revoked the final family violence order in September 2024. That Order was in place for seven years without incident. The Applicant has no current Orders against him and has since ended the previous relationship.
CONCLUSION
The Tribunal must consider whether the Applicant is of good character at the time of its decision. Having regard to the totality of the material before it, the Tribunal is satisfied that the Applicant has demonstrated he is currently of good character.
DECISION
The decision under review is set aside and remitted with the order that the Applicant satisfies the good character requirements under s 21(2)(h) of the Act.
54. I certify that the preceding fifty-three (53) paragraphs are a true copy of the written reasons for the decision herein of General Member K. Thornton
...............................[SGD].................................Associate
Dated: 3 October 2025
Date of hearing: 11 September 2025 Applicant: In person Advocate for the Respondent: Mr Serge Fursa Solicitors for the Respondent: Australian Government Solicitor
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