Kerris and Minister for Immigration and Border Protection (Citizenship) - [2017] AATA 1148

Kerris and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1148 (19 July 2017)
Division:GENERAL DIVISION
File Number: 2016/6863
Re:Olivia Kerris
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:19 July 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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Senior Member J Sosso
CATCHWORDS
CITIZENSHIP – person must be of good character – respect and abide by the law – on probation – no conviction – decision affirmed.
LEGISLATION
Australian Citizenship Act 2007
CASES
Bilouni and Minister for Immigration and Multicultural Affairs [2001] AATA 233
Booth and Minister for Immigration and Citizenship [2009] AATA 185
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Ethnic Affairs [2000] AATA 931
Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Lachmaiya (1994) 19 AAR 148
Okeke and Minister for Immigration and Citizenship [2012] AATA 882
Sadiq and Minister for Immigration and Border Protection [2016] AATA 463
Sui and Minister for Immigration and Citizenship [2008] AATA 1062

SECONDARY MATERIALS
Citizenship Policy
REASONS FOR DECISION
Senior Member J Sosso
19 July 2017
INTRODUCTION

Ms Olivia Kate Kerris (the Applicant) is a 26-year-old citizen of New Zealand. On 25 May 2015, she applied for Australian citizenship by descent (Form 118). This application was rejected due to the non-payment of the application fee – Exhibit 1 PT5 p.23. The non-payment resulted from the Applicant’s nominated credit card being declined due to insufficient funds. The Applicant resubmitted the same form, without alteration, and this was received by the Department of Immigration and Border Protection on 3 June 2015 – Exhibit 1 T4 p.7.
Question 24 is divided into ten sub-questions. Sub-question (g) is whether the applicant has ever been charged with any offences either overseas or in Australia that is/are currently awaiting legal action.
The Applicant ticked the “No” box when she first completed the form, and did not alter the response when she resubmitted it – Exhibit 1 PT 4 p.11.
On 21 May 2015 the Applicant was arrested with two other persons for a drug related offence.
On 6 July 2015 the Applicant was sent an email from the Department notifying her that a police check had indicated that she was the subject of a mention hearing on 13 August 2015. She was further informed that her application for citizenship could not be finalised until after the charge, the subject of the mention hearing, was finally determined – Exhibit 1 T7 p.43.
On 15 March 2016 the Applicant was convicted of one count of producing a dangerous drug pursuant to s 8(1)(d) of the Drugs Misuse Act 1986 (Qld). No conviction was recorded against her, but the Applicant was sentenced to probation for a period of three years.
The circumstances of the charge and the Applicant’s degree of criminality are set out in sentencing remarks of his Honour Judge Burnett of the Queensland District Court. His Honour sentenced three persons, including the Applicant and said – Exhibit 1 PT 14 pp.74, 76 – 78):
“Each of the these three Defendants has pleaded guilty to one count of producing a dangerous drug with a circumstance of aggravation. Broadly, the charge arises out of events on the 21^st of May 2015, when police executed a warrant on a property owned by the First Defendant, James Hutton. The Second Defendant, William Pratt, leased a residence on that property, and the Third Defendant, Olivia Kerris was on the property as a visitor and caught in the midst of these events…
Police… upon arriving at the residence, saw on the main verandah a number of tarps spread out, which revealed an enterprise involving the stripping of marijuana leafy material from the stems, which were located in a large green bucket…
approximately 42 pounds, or 18.9 kilograms, of cannabis was located on the property. That cannabis located in eight containers, each being colloquially known as ‘four-gallon’ containers, containing four one-pound packages each of processed material…
it is quite apparent, having regard to the scale involved, that a significant quantity of cannabis, had been delivered to this property for processing in the manner which is revealed by the photographs…
So far as the specific Defendants are each concerned, it is accepted for the purpose of sentencing today that the involvement of each of these three individuals differed. Mr Hutton accepts and is sentenced on the basis that the is the principal offender…
…Mr Pratt is accepted by all to be a peripheral offender. His involvement generally involved the assisting in the processing on the day. It is apparent again from the photographs that are before me, together with evidence of there being three sets of secateurs, that both he, Mr Hutton and the third defendant were all involved in the enterprise of processing by stripping leaves from the raw material and placing it into buckets.
So far as the third defendant Ms Kerris is concerned, Ms Kerris does not reside on the property. No real explanation is given for why she was there on the day in question. It was suggested to police by Mr Hutton that she was on the premises as a cleaner. I do not think that statement can be borne out by the facts. Again, I refer to the photographs which clearly demonstrate three sets of secateurs on the veranda in the vicinity of where this processing work was being undertaken which clearly only indicates the presence of three persons. Furthermore, there was her discovery by police under the house after the raid, bearing in mind that the house is a low set house, possibly no more than two – 300 to 400 millimetres above ground level. She plainly slipped in under there and one can only, I think, correctly infer that she did so because she knew she was in trouble by reason of what was going on on the veranda.
In any event, that aside, she is a young person. She is in her early 20s. Although she has had a somewhat dysfunctional childhood, she has received a good education. She has been in employment really since leaving school towards the end of 2010 and, in more recent times, has suffered significantly because of the onset of cancer. She has undergone cancer treatment and now appears to be in remission. Perhaps to her advantage, again, as with each of the defendants, she has pleaded guilty at an early time which, as in respect of all defendants, illustrates at least some element of contrition and, to her advantage, it’s submitted for her that by reason of her experience with cancer and the significant impact of the treatment that she has received, that it has changed her attitude to quite a number of things, involving drug use and her involvement in drugs generally….
I’m conscious that so far as she is concerned, she’s a young offender. She has no previous convictions…it’s important that she be given a reasonable opportunity to show that this is, in fact, an error of judgment on one occasion and that she does, indeed, have the capacity to go forward as a useful member of our community without the stain of a conviction which would, no doubt, have a significant economic and social impact upon her, particularly given that she is a New Zealander here in Australia. And no doubt, a conviction will have significant ramifications for her current residency, possibly seeing her deported. But, in any event, if not, certainly acting as an impediment upon her capacity to travel freely between those two countries.”
Judge Burnett then said that if the Applicant consented her would sentence her to three years’ probation and would not order a conviction. Upon the Applicant consenting, his Honour said (pp.78-79):
“This is intended to help you. You plainly have a problem. You say you think you have corrected your ways but drugs are somewhat more pernicious than you expect, oftentimes because of the company you keep and the lifestyle you maintain. And so the purpose of the order is to assist you in breaking whatever habits you might have and whatever social environments you might be exposed to which renders you vulnerable to drug exposure…”
The Applicant corresponded with the Department shortly after the sentencing. In her letter, which was received on 18 March 2016, she basically denied any active involvement in the criminal enterprise the subject of her conviction. She said – Exhibit 1 T8 p.44:
“Prior to my arrest, I was sitting at a table with my friend/s when we heard visitors arrive. When the owner of the property went to see who was there, I heard multiple male voices shouting aggressively. I took fright and hid under the house (Queenslander) while the other friend went to leave for his premises, a separate dwelling house on the same property. It became apparent when I was found by the police, that it was police who were on the property.
Once police had located me, they detained me for purpose of questioning. I was unable to assist them with any information in regards to firearms, for which the search warrant had been issued to find. Throughout their search, police found a large quantity of Cannabis. During questioning, I was asked if I knew anything about the cannabis my ex-friend had on his property. I stated that I had seen it on this day only and had ‘turned a blind eye’ to it as I did not want to become involved with what my ex-friend was doing.
By extended definition of the law, this statement is an admission of knowing the Cannabis was present, which by extended definition means possession. This, along with being on the property let alone being found to be hiding, was not in my favour. Because of these two things and the quantity of cannabis found, I was arrested alongside by two ex-friends and charge with producing a dangerous drug.
The evidence against me was circumstantial at best, a case of ‘wrong place, wrong time’ but my action of hiding in fright from, at that point, unknown persons and my statement of ‘turning a blind eye’ incriminated me.”
On 5 December 2016 the delegate of the Minister refused the Applicant’s citizenship application on the basis that he was not satisfied that the Applicant met the good character requirements under s 16(2)(c) of the Act. The Delegate concluded by stating – Exhibit 1 Pt 16 pp.93-94:
“Therefore, while no conviction has been recorded, the judge was sufficiently concerned by the circumstances of your arrest as to issue a serious drug offence certificate and also to put you on probation for a period of three (3) years. I note you still are on probation and will be until March 2019. You are still attending counselling on a regular basis and must continue to do so under the conditions of the probation order.”
On 14 December 2016 the Applicant applied to the Tribunal for a review of the delegate’s decision – Exhibit 1 PT2 p.4.
At hearing convened on 11 July 2017 the Applicant was self-presented and appeared in person. The Minister for Immigration and Border Protection (the Respondent) was represented by Ms E Tattersall.
Neither party sought to produce witnesses and the Applicant declined the opportunity to give evidence under oath or affirmation.
THE LAW
Subsection 21(1) of the Australian Citizenship Act 2007 (the Act) provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 21(2) deals with the general eligibility criteria for an applicant who is 18 years or older and who is a permanent resident. Of relevance to this matter is paragraph 21(2)(h) which provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
“(h) is of good character at the time of the Minister’s decision on the application.”
The term “good character” is not defined by the Act. Fortunately policy guidance is now provided by the Citizenship Policy which in turn replaced the Australian Citizenship Instructions from 1 June 2016.
The stated role of the Citizenship Policy is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007.
The Tribunal will generally apply the provisions of the Citizenship Policy unless there is a cogent reason not to do so – Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
Chapter 11 of the Citizenship Policy deals with good character. Importantly, it is expressly stated at the outset that it is not Departmental policy for decision-makers to be bound by a check list. Rather, decision-makers are to look at the merits of each case and turn their minds to the issues of character until they are satisfied, on a reasoned basis, whether the applicant is, or is not, of good character.
Reference is made to the definition of “good character” given by Lee J in Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431-432):
“the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst 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 Policy also refers to Fenn v Minister for Immigration and Ethnic Affairs [2000] AATA 931, where Deputy President Breen discussed the role of the character requirement in a citizenship application (at para 8):
“The grant of Australian citizenship is a privilege not to be 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 the 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.”
To assist decision-makers the Policy contains a non-exhaustive list of the characteristics of good behaviour, which is set out below:
“an applicant of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments, for example
oproviding false personal information (such as fraudulent work experience qualification documents) or other material deception during visa and citizenship applications
oinvolvement in a bogus marriage
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
oinvolvement in Centrelink or Australian Tax Office fraud
ogiving false names and/or addresses to police
·not to be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not to be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not to have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not to have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not to be the subject of any extradition order or other international arrest warrant
·not to be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not to be the subject of any verifiable information causing character doubts.”
The Policy also provide guidance on weighing up the character decision. It points out that the assessment of whether an applicant is of “good character” requires the consideration of an aggregate of qualities. More weight is to be given to serious offences.
The Policy states:
“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”.
CONSIDERATION
Introduction
The sole issue to be determined by the Tribunal is whether the Applicant is a person of good character for the purposes of the Act.
As was stated by his Honour, the Applicant, apart from the above conviction, does not have a criminal history. There is no material before the Tribunal that the Applicant, despite a troubled childhood, has any history of anti-social or criminal behaviour, whether in New Zealand or Australia.
Also, the Applicant has a history of employment. She has not been a drain on the public purse. In Sadiq and Minister for Immigration and Border Protection [2016] AATA 463, Deputy President Mc Dermott made the following observations (at [26]):
“I am able to consider the applicant’s contribution to society through his employment in determining whether he is of good character. In Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534 this Tribunal remarked at [53] that ’stable, gainful employment’ would reflect favourably on an applicant’s character.”
Amongst the references submitted by the Applicant was one from Ms Janet Schmierer, Quality Food Coordinator Food Safety of Arnott’s dated 29 March 2017 – Exhibit 4. Ms Schmierer stated that the Applicant has been employed as a Hygiene Cleaner and Laundry Assistant at Arnott’s Biscuits at Virginia since November 2016. The following observations were made of her work history:
“I have found Olivia to be a reliable and flexible employee. Olivia learned the required tasks of her role very quickly. These tasks include amenities cleaning, scrubber operating and working in the laundry. She has fitted in well with the site sanitation team and has been willing to train any new team members which she does to a very high standard.
Olivia interacts with people at all levels of our business and I have found her to be discreet and able to organise her schedule around the needs of others. I have received regular feedback on the high level of Olivia’s work since her commencement with us.”
A further reference was submitted from a work colleague, Ms Kylie Prior (Exhibit 6) which though undated was received by the Tribunal on 19 April 2017. Ms Prior also speaks highly of the Applicant referring to her as “honest and respectful member of our team” and as being “approachable, helpful and understanding with her caring nature”. The Applicant is said to be “very easy to get along with and has a can do attitude.”

Although these references are from people who have only known the Applicant for a very short time, their views about her character and mode of interacting with others is consistent with references from other people who have known her for much longer periods of time.
One such reference which was produced for the District Court hearing was from Ms Louise Blakemore who at that time had known the Applicant for 10 years firstly as her school teacher and Dean (Pastoral Care) at Darfield High School in New Zealand and in more recent times as “mentor, confidante and friend”- Exhibit 1 PT11 p. 58. Ms Blakemore provided this assessment of the Applicant:
“Olivia is a well spoken and intelligent young lady who aspires to do great things. She is able to communicate clearly and is driven to make the most of every opportunity. In all my dealings with Olivia, both during her time at School and more recently since she left school I have always found her to be honest and trustworthy.”
The Applicant is in a stable domestic relationship and her partner provided a statement to the Tribunal and appeared at the hearing.
In a letter dated 10 May 2016 by Ms Butterfield and Mr Yule of the Rockhampton Probation and Parole Office sent to the Department (Exhibit 1 PT 11 p.61) it was noted that “Ms Kerris has been polite and co-operative throughout her interviews.” It was also noted that the Applicant had been engaging with a counselling service – Wahroonga Counselling Centre, Rockhampton. Contact with that Counselling Centre confirmed that the Applicant was at that time actively engaging with their services and was attending individual counselling on a regular basis.
Mr Dube, on behalf of the Respondent outlined four grounds, which cumulatively, it was submitted support a finding that the Applicant is, at this point in time, not a person of good character for the purposes of s 21(2)(h) of the Act – Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at paras 23 28.
Each will be dealt with below.
False Statements
The Respondent’s first submission is that the Applicant failed to disclose the history of her offending behaviour in her resubmitted citizenship application. Further, while the Applicant alleges that she contacted the Department after being charged, she has provided no evidence to support that contention – RSFIC at para 24.
There is a considerable body of authority on the implications that arise when it is shown that an applicant for a visa or citizenship has consciously made false and misleading statements to the relevant Australian authorities.
Reference can be made to the observations of Deputy President McMahon in Re Lachmaiya (1994) 19 AAR 148 (at 155-156):
“The observance of truth in dealing with officials in migration matters (particularly where 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 when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
Although Lachmaiya was a visa decision, President McMahon’s comments are of relevance to the question of good character in citizenship matters.
One distinguishing point, however, is that in Lachmaiya there was an extensive history of deception and lying. As Deputy President McMahon noted (at 150):
“Mr Lachmaiya admitted in evidence that he had told many lies to various authorities.”
The making of a false statement per se is not necessarily fatal to an application for citizenship – Bilouni and Minister for Immigration and Multicultural Affairs [2001] AATA 233.
In that matter Mrs Bilouni migrated to Australia in June 1997 as a migrant under a spouse visa. Her husband, also a Syrian by birth, was already an Australian citizen. On 31 July 1998 Mrs Bilouni was caught, and subsequently convicted, of shoplifting. She was charged with stealing $17.69 worth of goods from a Woolworths supermarket. On 20 July 2000 she applied for Australian citizenship but replied in the negative to the question whether she had ever been convicted of an offence.
Senior Member Sassella found that Mrs Bilouni was of good character and made these observations (at [50]):
“The shoplifting offence was relatively minor. The Applicant pleaded guilty and she appears not to have re-offended in the two and half years since. Likewise, the misleading conduct engaged in by the Applicant and her husband appears on the evidence an isolated incident relating to a relatively minor recorded offence, disclosure of which was thought by the Applicant and her husband to be likely to bring about a catastrophic consequence for them. There was also no understanding by the Applicant that a failure to disclose certain information was illegal. She and her husband merely thought that they would be able to lodge another application.”
The Applicant informed the Tribunal at the hearing that she didn’t intend to mislead the Department when she resubmitted her application without correcting her answer to Question 24(g). Rather she said it was a case of her laziness and cutting corners. She also stated that she telephoned the Immigration Hotline after she was charged but before the application was re-lodged and allegedly informed the Department of her pending charges.
Having considered the sequence of events and observed the Applicant at the hearing, the preferable conclusion on the balance is that the Applicant did not intentionally intend to mislead the Department. Clearly her actions in resending the application without taking the trouble of revising the information contained therein were negligent, but not deceptive. Accordingly, the Tribunal is not satisfied that the Applicant intentionally submitted incorrect information about her pending criminal trial to the Department.
Conviction of serious offence
The Respondent’s second submission is that the offence she was convicted of carries a maximum penalty of 20 years imprisonment. Accordingly, while the Applicant was found to have had a lower level of involvement, she was nevertheless convicted of a very serious offence. Such conduct, it is submitted, could not be said to be in accordance with Australia’s community standards and weighs heavily against the Applicant – RSFIC para 25.
There is no doubt that a person convicted of a serious drug offences, particularly if such offences have resulted in lengthy prison terms, has usually been found not to be of good character in respect of citizenship – e.g. Booth and Minister for Immigration and Citizenship [2009] AATA 185, Sui and Minister for Immigration and Citizenship [2008] AATA 1062 and Okeke and Minister for Immigration and Citizenship [2012] AATA 882.
In each of these matters the relevant applicant had a long history of criminal convictions and each had served lengthy prison sentences.
In this matter the Applicant does not have a lengthy criminal history, was not given a custodial sentence, and did not have a conviction recorded against her.
Although the Respondent is correct in drawing the Tribunal’s attention to the fact that the maximum sentence that could have been awarded was a substantial jail term, the reality was that the sentencing Judge formed the view on the evidence presented that the Applicant’s culpability was at the bottom end of the scale of seriousness.
Accordingly, the fact that the Applicant has been convicted of a drug offence is of relevance and weighs against her, but is not, of itself, determinative of the question of good character.
Lack of remorse
The Respondent submits that while the Applicant has expressed some remorse for her actions, she continues to maintain her innocence by claiming that she ‘was in the wrong place at the wrong time’ – RSFIC para 26.
The Respondent’s submission has weight as Branson J pointed out in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, a decision-maker should treat a conviction and sentence as strong prima facie evidence of the facts upon which they are based and throw a heavy onus a person seeking to challenge such facts and encourage the Tribunal to look behind the convictions.
However, at the hearing the Applicant resiled from any suggestion that she was innocent and pleaded guilty for convenience. She accepted her guilt and expressed contrition.
Had it not been for the Applicant’s express and unqualified acceptance of her culpability, her lack of remorse would have weighed against her.
Character references
The Respondent points out that whilst the Applicant has submitted character references a number of the persons have known her for less than a year – RSFIC para 27.
Character references can be critical when assessing character, but as the Respondent submits, the bulk of the persons providing references have only known the Applicant for a short period, usually in the workplace. Further, most of the more recent references were not signed. The Applicant was alerted during the hearing that when the Tribunal receives an unsigned character reference, unless the person giving that reference provides oral evidence, little if no weight will be given to the reference.
Whilst the Respondent’s submission is sound, the Tribunal notes that all of the persons providing character references gave consistent accounts of the Applicant’s character. Having observed the Applicant, the Tribunal formed a very positive view of her, and in the normal course would have formed the view that she is a person of good character.
Probation order
However, there is one matter which weighs very heavily against the Applicant. Indeed its existence in almost all cases is fatal to the Tribunal making a finding of good character for the purposes of citizenship.
Although the Applicant was not given a custodial sentence, or had a conviction recorded against her, she consented to Judge Burnett making a probation order under the Penalties and Sentences Act 1992 (Qld).
The order, made pursuant to s 93 of the Penalties and Sentences Act 1992, is of three years duration and requires that the Applicant must (Exhibit 1 T9 p.46):
(a)not commit another offence during the period of the order;
(b)report within 24 hours to an authorised corrective services officer at the relevant Probation and Parole Office;
(c)report to, and receive visits from, an authorised corrective services officer as directed by the officer;
(d)take part in counselling and satisfactorily attend, when directed, other programs;
(e)notify an authorised corrective services officer of change in residence and employment within two business days of the change;
(f)not leave or stay out of Queensland without the permission of an authorised corrective services officer; and
(g)comply with every reasonable direction of an authorised corrective services officer.
The order having been made on 17 March 2016 is operational for more than another 18 months.
Section 120 of the Penalties and Sentences Act 1992 provides that a probation order can be amended or revoked if, inter alia, the offender is no longer willing to comply with the order. In those circumstances an offender can be resentenced for the offence as if the offender had just been convicted of the offence – s. 121.
The Applicant voluntarily submitted to the making of a probation order. Indeed s 96 of the Penalties and Sentences Act 1992 explicitly requires such consent before an order can be made. The maximum time period for a probation order is three years (s 92), and this was the period mandated by Judge Burnett.
Despite probationary orders being characterised by some as beneficial and remedial, they nonetheless place a recipient in a situation where their movements and activities are subject to notification and possible restriction, and where breaches of the order can result in resentencing.
It is inconceivable that a Tribunal could make a positive good character finding when an applicant has not completed the term of a probation order. Up and until an applicant has complied with the terms of the order, it is axiomatic that a question mark hangs over the head of such a person. This is not just because the breach of an order can have serious ramifications, but from the very fact that such orders are made to ensure that a person can be monitored for their own good. In short the making of an order is almost always inconsistent with a finding that a person can satisfy the good character test prescribed by the Act
Usually a period of time has to elapse from the conclusion of any sentence delivered before it could be said that an applicant is of good character. Lee J in Irving referred to a person who has been convicted showing that they have been “reformed”. The process of reformation takes time; in some extreme cases many years.
Here, not only has the Applicant’s probationary order not expired, but the length of time between her sentencing and the Tribunal hearing was only a little over 12 months.
While both Judge Burnett and this Tribunal have formed a very positive view of the Applicant, the length of time between her sentencing and the bestowal of citizenship is far too short. The Applicant was very lucky not have a conviction recorded against her. She had been associating with people of ill-repute and could easily have gone down a different path; one where much more serious criminal activities could have been engaged in.
CONCLUSION
Assessing good character is by its very nature a subjective and ambiguous exercise.
While the Applicant’s criminal history is very short and her degree of culpability is at the lower end of the scale of drug offences, nonetheless she is still undergoing supervision as part of her probation order.
If the Applicant can complete her probation period without committing any further offences and having complied with all legal and reasonable directions she will be in a stronger position to make a further citizenship application.
Further, if the Applicant can demonstrate that she has maintained employment, has a stable domestic relationship (as she currently has) and can produce signed character references from people who have known her for a minimum of twelve months, then many of the doubts entertained by the Respondent may be addressed.
Whilst it is a matter entirely for the Applicant, it would be preferable for her to not make a further application for a period of 12 months after the conclusion of her probationary period. She would then not only be able to contend that she has obeyed the terms of her probation order but has independent of any correctional supervision, been able to lead the life of a person of good character.
As previously noted, that Applicant presents as a hard working, decent person who has very good prospects of becoming a valued citizen of Australia. However, she needs to demonstrate that the faith placed in her by Judge Burnett was well based. Time and consistent good conduct is the only way to ensure that this question can be answered positively, and that the bestowal of citizenship should flow as a matter of course.
The Tribunal has, in all the circumstances, decided that the preferable decision is that the Applicant is not, at this particular period of time, of good character pursuant to s 21(2)(h) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

.........................[Sgd]...............................................
Associate
Dated: 19 July 2017

Date of hearing:
Applicant:

11 July 2017

In Person

Solicitors for the Respondent: Sparke Helmore Lawyers