KKHS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 204
•11 February 2021
KKHS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 204 (11 February 2021)
Division:GENERAL DIVISION
File Number(s): 2019/2513
Re:KKHS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:11 February 2021
Place:Sydney
The Tribunal sets aside the reviewable decision and remits the matter to the respondent for reconsideration with a finding that the applicant is a person of good character.
................................[sgd]..........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – good character requirement –– domestic violence – single instance 13 years prior – good behaviour bond – spent conviction – failure to disclose – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Australian Citizenship Act 2007 (Cth) ss 21, 24
Crimes Act 1900 (NSW) s 61
Crimes Act 1914 (Cth) ss 85ZL, 85ZM, 85ZV, 85ZZH
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Criminal Records Act 1991 (NSW) ss, 7, 12, 16
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Irving v Minister for Immigration, Local Government and Ethic Affairs (1996) 68 FCR 422
Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368
LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2419
LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3785
Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
SECONDARY MATERIALS
Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act 2007
Department of Immigration and Border Protection (Cth), Citizenship Policy
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
11 February 2021
INTRODUCTION
The applicant was born in Vietnam some 47 years ago. At approximately 18 years of age, according to his memory, he left that country as a refugee. He lived for a period in a refugee camp in Hong Kong, before going to the United States, where he was granted citizenship. He subsequently came to Australia for family reasons, arriving on 20 April 2000. He has lived continuously in Australia for more than 20 years.
On 7 July 2006, he appeared in the Fairfield Local Court on one charge of common assault under section 61 of the Crimes Act 1900 (NSW), an offence punishable by a maximum of two years imprisonment. The assault occurred in a domestic context. He was convicted and sentenced to a 12 month good behaviour bond pursuant to subsection 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).[1] This matter stands alone in the applicant’s record. He has not otherwise come to the attention of law enforcement authorities.[2]
[1] T6/213.
[2] T5/206.
On 28 October 2016, he was granted a Resident Return (subclass BB155) permanent visa.[3] On 11 August 2017, he lodged an application for Australian Citizenship under the Australian Citizenship Act 2007 (Cth) (the Act). On 23 April 2019, a delegate of the respondent (Minister’s delegate) decided to refuse the application on the basis that the applicant was not at the time of decision a person of good character (the reviewable decision).[4]
[3] T9/222.
[4] T2/12
On 7 May 2019, he applied to the Administrative Appeals Tribunal (the Tribunal) for review of the reviewable decision.[5]
[5] T1/4.
THE HEARING
The application was heard by the Tribunal on 12 January 2021.
The applicant was represented by a solicitor, Ms Ho, who is a registered migration agent. He was also assisted by a Vietnamese interpreter.
The applicant gave evidence and was examined by the solicitor representing the respondent.
The material before the Tribunal consists of materials tendered by the respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents).
The applicant provided character references from:
(a)Dr T, general practitioner[6]
(b)Mr B, applicant’s current work colleague[7]
(c)Mr L, applicant’s current work colleague[8]
(d)Mr T, the venerable Director of the Hung Long Buddhist Welfare Association[9]
(e)Mr C, applicant’s former work colleague and friend[10]
(f)Mr V, applicant’s former work colleague and friend[11]
[6] T6/208.
[7] T6/209.
[8] T6/210.
[9] See Members File, item E.
[10] See Members File, item F.
[11] See Members File, item G.
LEGISLATIVE AND POLICY FRAMEWORK
Under the general eligibility criteria for citizenship specified in paragraph 21(2)(h) of the Act, a person is eligible to become an Australian citizen if the Minister is satisfied that the person, inter alia, is of good character at the time of the Minister’s decision on the application.
By virtue of subsection 24(1A) of the Act, the Minister must not approve a person becoming an Australian citizen unless the person satisfied the eligibility criteria under subsection 21(2). It is for an applicant to establish eligibility in terms of the applicable standards at the time of application.
Based on the applicant’s criminal history, the Minister’s delegate was not satisfied that the applicant was of good character under paragraph 21(2)(h) of the Act, and was therefore required, by reason of subsection 24(1A), to refuse the application.
The Tribunal was referred to the Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act 2007 (CPI 15), which states, under the heading ‘Procedural Instruction’:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act. [emphasis added]
Paragraph 4.3 of CPI 15 provides:
4.3 What is good character
Definition
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.
Paragraph 4.4 of CPI 15 provides:
4.4 An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
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 (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character. [emphasis added]
Paragraph 4.7 of the CPI 15 sets out a non-exhaustive range of factors that a decision-maker may take into account in determining whether a person is of good character. It is stressed that the decision-maker must take into account all the relevant facts of the case.
One aspect concerns how the applicant has behaved with regard to government officials, and specifically whether the applicant has been honest in his or her dealings with Government. This is of special significance in the facts of this case. The provision of false or incorrect information to a government department may be particularly relevant in this regard.
Paragraph 4.7 also provides guidance with respect to the assessment of criminal offending. The decision maker must determine whether the offence is serious.
For example:
·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
·war crimes, crimes against humanity, genocide;
·crimes against children;
·drug trafficking (including importation and supply);
·people smuggling;
·fraud (including identity fraud);
·harassment or stalking
·terrorist activity
·extortion;
·illegal pornography, including child pornography
·breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
·offences incurring prison sentences of 12 months or more.
[emphasis added]
Paragraph 4.7 also refers to the assessment of the relative seriousness of the offending.
Assessing the relative seriousness of the offence
·Consider the length of the sentence. Longer sentences carry more weight on a person’s character.
·Are there any ongoing obligations such as a good behaviour bond? …
·Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information…
·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
·Were there victims of the offence? Were they children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant? [emphasis added]
It is apparent that the decision maker found against the applicant by reference to an assessment of the serious nature of the criminal offending, together with his failure to disclose the 2006 offence in his original application.
CONSIDERATION
The conviction
The 2006 assault conviction, which stands as a solitary instance in an otherwise unblemished record, was committed in a domestic relationship.
According to the Police Facts, the applicant and the victim were previously in a relationship, which ended about one month before the incident however they had still been seeing each other. The applicant entered her home at midnight in a state of some agitation. He was intoxicated. He physically assaulted her by pulling her hair and punching her in the face. He was restrained by the victim’s brother. She fled the residence for a few hours, and he was asleep on the couch when she returned. In the morning the conflict continued. He verbally abused her and threatened to kill her if she was unfaithful to him. She left the apartment. When she returned, in the early afternoon, the conflict continued. At one point he threw an object at the television set, whereupon she fled the apartment for a neighbour’s house. The police were called. The applicant was arrested and interviewed at the police station. The police notes state:
The accused states that he pushed the victim but denies punching her. The accused stated that the victim may have fallen when he pushed her and hit her head on a coffee table. The accused also admitted hitting the TV with the ceramic dog, however it was his TV. The accused denied making any threats towards the victim.
The applicant was cross examined at length about the police interview. It was suggested to him that he had tried to downplay his culpability by saying that he had only “pushed” the victim. His response was that it was not until he saw the victim again after the police interview that he fully appreciated that he had hit her.
He said that he accepted full responsibility for his actions. Specifically, he did not deny that he called the victim a slut, pulled her hair, or punched her in the face, causing a “slight bruise”[12] to her eye, or that he had threatened to kill her if she saw anyone else. When asked whether he could actually remember doing these things, he said that he did remember them, except for the threat to kill. He did not remember making any such threat. He said that he was very drunk at the time. He expressed remorse for his conduct. He also said that it happened a long time ago, a point repeatedly made by his legal representative.
[12] Applicant’s Materials, Item C, Court Attendance and Police Statement: Full Facts, p 2.
The applicant did appear to me to have an appreciation of the pernicious nature of domestic violence, and his actual conduct on the occasion in question.
Spent convictions
The applicant has completed a 13 year period of crime-free behaviour. After 10 years, under federal[13] and state law,[14] his conviction would be “spent”, and he could proceed for most purposes as if it had not occurred. He could deny that he had ever been convicted, and any third person who disclosed the offence without his consent would be acting unlawfully. Such provisions are intended to limit the effect of a person’s conviction, and to allow a person to recover free from the taint of conviction after a lengthy period of good behaviour. One important aspect of the federal scheme is that in exercising statutory powers, ordinarily a decision-maker “must not take account of the fact that the person was charged with, or convicted of, the offence”.[15] Importantly, for present purposes, citizenship applications are expressly excluded from the scope of the legislation.[16] Although for many purposes the applicant’s conviction is spent under federal law, he was obliged to disclose it in his application for citizenship, and the decision-maker is required to consider it in determining whether he is of good character.[17]
[13] Crimes Act 1914 (Cth), Part VIIC, Division 3.
[14] Criminal Records Act 1991 (NSW).
[15] Crimes Act 1914 (Cth), section 85ZW(b)(ii)
[16] The provisions do not apply to a person who makes a decision under the Australian Citizenship Act 2007; or to disclosure of information to the Tribunal; or to the taking into account of information by such a person or the Tribunal: see Crimes Act 1914 (Cth), section 85ZZH.
[17] Crimes Act 1914 (Cth), ss 85ZL; 85ZM(2)(b).
Chapter 11 of the Citizenship Policy provides:
Spent convictions
A spent conviction is a conviction for which a person …was not sentenced to more than 30 months imprisonment, it is 10 years (5 years for juvenile offenders) since the date of conviction and the person has not re-offended during the 10 years (5 years for juvenile offenders) waiting period. Applicants are required to disclose all spent convictions in their citizenship applications because such applicants are excluded from the operation of the spent conviction regime.[18]
[18] T3/58.
The NSW state law governing spent convictions is in some respects narrower in scope than the federal law, not applying, for example, where the sentence imposed was not more than six months.[19] By contrast, subsection 85ZM(2) of the Crimes Act 1914 (Cth) provides that a person's conviction of an offence is spent if inter alia the person was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.[20]
[19] Criminal Records Act 1991 (NSW), section 7(1)(a).
[20] The term “offence” simpliciter is not defined for relevant purposes - the definition in section 3C is limited to Part IAA of the Act, dealing with Commonwealth investigative powers - although section 85ZL defines "Commonwealth offence" and “State offence” (as an offence against a Commonwealth or State law respectively); and in relation to a conviction, "spent", has the meaning given it in section 85ZM.
Under the NSW provisions, a reference to a person's character or fitness in statutory provisions is not to be interpreted as permitting or requiring account to be taken of spent convictions;[21] but this does not apply to proceedings before a court or tribunal;[22] although even in such proceedings, reasonable steps should be taken “to prevent or minimise publication of that evidence”.[23]
[21] Criminal Records Act 1991 (NSW), section 12(c)(ii).
[22] Criminal Records Act 1991 (NSW), section 16(1). See Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368; but section 16(1) does not extend to a tribunal exercising merits review of an administrative decision-maker who is bound by the Criminal Records Act. A majority (Basten JA, Leeming JA) said it would “be anomalous if material that the original decision-maker cannot have regard to was available to a tribunal exercising merits review”; considered in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16. This sort of issue does not arise in the present case where under the federal standard the original decision-maker was permitted to consider the spent conviction.
[23] Criminal Records Act 1991 (NSW), section 16(2).
The applicant’s conviction is governed by federal law, and as noted above, disclosable. I am however mindful of the provision under the NSW Act requiring reasonable steps to be taken to prevent or minimise publication of the evidence of spent convictions. Given the underlying policy of the spent convictions scheme, I have decided to issue a confidentiality order to protect the applicant’s identity, in light of the considerable period of time that has lapsed since the commission of this solitary offence.[24]
[24] See LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2419, where a confidentiality order was made to protect the children of the applicant; see LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3785.
Failure to disclose
The applicant did not disclose the 2006 offence in his citizenship application.
I note the statement in paragraph 4.4 of CPI 15 which states:
As a general proposition, a person who is of good character … would not practise deception or fraud in dealings with the Australian Government, or other organisations, for example … [by] concealing criminal convictions.
The applicant was asked at the hearing to explain why he failed to disclose the 2006 offence. He provided conflicting reasons that were not entirely consistent. At one point he said that he had forgotten about the incident. He also said that he did not think that it amounted to a reportable conviction, and that his wife had helped him fill out the forms. It was not suggested by him or on his behalf that his failure to disclose the matter was as a result of a mistaken belief that the spent convictions legislation allowed the offence to be concealed or denied, and I put this issue to one side.
In an unsigned letter dated 31 January 2019, the applicant stated:
I sincerely apologise for mistakenly not disclosing information on the dispute with my ex-girlfriend. It happened a long time ago, in 2006, and I was not aware that court decision considered that a conviction. The issue was that we having an argument and she has escalated the situation by contacting the police. After the court hearing, I was put on a probation period of 12 months. I did not serve in jail, so it make me think I have not committed a criminal act, since it was just a warning, since then, we have separated because she began a relationship with someone else.
The Minister’s delegate placed some significance on this letter, noting:
Your personal submission dated 31/01/2019 seeks to mitigate your personal culpability and downplays the matter. I note that you have not provided any further explanation of remorse for the victim of your offence or of any rehabilitation. In the absence of any court transcripts or police statement of facts I am guided by the nature of the offence, the court’s finding of your guilt, and the sentence imposed upon you. This weighs against you being of good character.[25]
[25] T2/19.
The applicant was examined at length about his statement that the victim “escalated the situation by calling the police”. This was, at the least, an unfortunate description. He admitted to the Tribunal that he had assaulted his ex-girlfriend the previous evening. He admitted at the hearing that the conflict continued the next day, and that he had thrown an object at the television. He did not deny doing these things. The assertion that his girlfriend had escalated the situation by calling the police is at the least disingenuous. However, under cross-examination, the applicant said unequivocally that he was in the wrong and that it was right for her to call the police. He did not think that she was partly to blame for the incident.
After careful consideration, I do not think that the evidence before the Tribunal warrants a finding that the applicant engaged in deliberate concealment of his conviction. I am prepared to give him the benefit of the doubt on this issue and find that, due to the distance of time, the relatively benign sentence, and his unblemished record prior to the incident in question, he did in fact see it as a “warning” rather than as a conviction. Under these specific circumstances, his failure to record the matter as a conviction should not be regarded as fatal to a finding of good character. Of course, in a sense, the conviction was a “warning” but no less a conviction for that.
I hasten to add that the process of applying for citizenship is never to be taken lightly, and great care should always be taken in completing an application. A person who fails to disclose an important matter going directly to eligibility will carry a heavy burden in satisfying the Tribunal that he or she is of good character. It is vital that applicants for Australian citizenship are absolutely truthful about their antecedents and accept full responsibility for the contents of the application, even where it is completed by a third party.
The domestic violence question
The federal and all state governments are firmly committed to reducing the incidence of such violence, by adopting a raft of policies aimed to protect victims of domestic violence, mostly women and children. I also note that paragraph 4.7 of CPI 15states:
It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
Various initiatives have been implemented after the applicant’s offending took place, for example, the legislation in NSW in 2007 dealing specifically with domestic violence: see Crimes (Domestic and Personal Violence) Act 2007 (NSW). The applicant’s behaviour is to be judged according to the standards of behaviour expected of applicants at the present time.
I also note that the potential lethality of assaultive conduct has led to a legislative response in some jurisdictions. In 2014, NSW added a new offence to the Crimes Act 1900 (NSW), assault causing death. A person who hits another so as to cause the death of the person is liable to a maximum term of imprisonment of 20 years. If the person is voluntarily intoxicated, he or she is liable to a maximum sentence of 25 years imprisonment. The amendment also introduced a mandatory minimum of eight years for this offence. An offender is required to serve not less than eight years in prison. I wish to underline the point that, as far as the legal system is concerned, a punch to the head, whether or not within a domestic element, will always be regarded as a serious matter. Such behaviour is always extremely dangerous because it is potentially lethal. I note that the offence would apply even if the victim had died as a result of hitting her head on the coffee table.
I note under the heading ‘Procedural Instruction’ in CPI 15:
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
Rehabilitation
In Irving v Minister for Immigration, Local Government and Ethic Affairs (1996) 68 FCR 422, the Full Federal Court considered a challenge to the Minister’s decision to refuse to issue a visa on character grounds. The following passage from Lee J’s judgment has been widely quoted:
Unless the terms of the Act and regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. 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.[26]
[26] (1996) 68 FCR 422 at 431-432.
The Tribunal is required to weigh the various factors for and against a finding of good character. The task for the Tribunal is to determine whether the applicant is of good character at the time of the Minister’s decision on the application, which for present purposes is the time of the Tribunal’s decision: see BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [3] per O'Bryan J; VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [32] per Banks-Smith J.
Despite the difficulties of his early life as a refugee from Vietnam, the applicant appears to have adjusted well to life in Australia, a country in which he has now lived for 20 years. He has been gainfully employed since his arrival and has not called on Centrelink for support. He provides support for his elderly mother and is a member of the local Buddhist community, and has done volunteering work at the Temple. He has provided a reference from the venerable Director of the Hung Long Buddhist Welfare association, as well as references from friends and work colleagues.[27]
[27] See Members File, items F, G and H.
The applicant has no criminal record apart from the one conviction for assault. The single offence of which the applicant stands convicted, and for which he received a good behaviour bond, even though not legally spent, is at least stale. He has not re-offended during the 10 year waiting period that would be sufficient to see his conviction ‘spent’ for most purposes. He is entitled to significant credit for his employment record. He has applied himself and understands his failings on the occasion in question.
Despite the appalling nature of his drunken behaviour on the occasion in question, I am satisfied that, at this point in time, his single conviction should not be a bar to a finding of good character. He is deeply remorseful about his conduct. For present purposes, his offending is ‘cleansed’ by 13 years of honest labour and his insight into his offending on the day in question.[28] As noted above, the CPI 15 emphasises that there is a path to redemption for those who have offended. My assessment after hearing all the evidence is that he is a person of good character.
[28] For a case where insufficient time had passed, see Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639.
CONCLUSION
The Tribunal sets aside the reviewable decision and remits the matter to the respondent for reconsideration with a finding that the applicant is a person is of good character.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
..............................[sgd]..........................................
Associate
Dated: 11 February 2021
Date of hearing: 12 January 2021 Solicitors for the Applicant: Ms H Ho, IST Education and Migration Services Pty Ltd Solicitors for the Respondent: Mr O Morris, Clayton Utz
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