Linn and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 525
•30 April 2025
Linn and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 525 (30 April 2025)
Applicant:Nutsara Linn
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/6677
Tribunal:General Member Gallagher
Place:Perth
Date:30 April 2025
Date of Written Reasons: 6 May 2025
Decision:The Reviewable Decision, being the decision of a delegate of the Respondent dated 8 September 2023, to refuse the Applicant’s application for citizenship by conferral, is affirmed.
.....................[SGD]...................
General Member Gallagher
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –Australian Citizenship Act 2007 s 24(2)(h) – whether Tribunal satisfied Applicant was of good character – citizen of Thailand – Applicant criminal record– false information provided to the Department – false information provided to the Tribunal – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(1), 21(2), 21(2)(h), 24, 24(1), 24(1)(a), 52(1)(b)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979]
Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815 AATA 179
Fahiye and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 374
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
SECONDARY MATERIALS
Australian Citizenship Policy (1 June 2016) (
Revised Citizenship Procedural Instructions (1 January 2019)
An oral decision was issued at the conclusion of the hearing held in the Perth Registry on 30 April 2025 with a note that written reasons would be provided in a reasonable time. These are those written reasons.
Statement of Reasons
APPLICATION FOR REVIEW
By application dated 10 September 2023,[1] the Applicant seeks review of a decision of a delegate of the Respondent dated 8 September 2023, to refuse an application for Australian citizenship by conferral on the basis that the Applicant did not satisfy the good character requirement under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
[1] R2, T2.
The basis for the refusal was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Act.
The Applicant’s application for review of the Reviewable Decision is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Review Tribunal (the Tribunal) for review of a decision under s 24 of the Act.
The application for review, filed on 10 September 2023, sets out the following reasons for seeking review:[2]
I claim it was a unfair decision as I did not mean to have a car accident. I am very remorseful of what happened and I have not committed any other offences since I believe. I am of good character and I had reference but they are not look at my immi account as I uploaded reference.
[2] R2, T2, page 5.
ISSUE
As the delegate found that the Applicant did not satisfy the good character criterion at s 21(2)(h), the issue before the Tribunal is whether the Applicant 'is of good character at the time of the…decision on the application'.
This is the only eligibility criterion in issue in these proceedings.
BACKGROUND
As to the background to this matter, the Tribunal refers to paragraphs 3 to 9 of the Respondent’s Statement of Facts, Issued and Contentions, as follows:
The Applicant is a citizen of Thailand, who first arrived in Australia on 13 October 2016 and is currently a holder of Permanent Partner (subclass 100) visa, which was granted on 30 June 2020.[3]
[3] R2, T3b, page 17.
On 28 October 2022, the Applicant lodged an application for Australian citizenship by conferral.[4] Notably, the Applicant responded 'No' to the following question:[5]
Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any 'spent' convictions)?
[4] R2, T4, pages 25 – 66.
[5] R2, T4, page 41.
The National Criminal History Check in respect of the Applicant disclosed that the Applicant has the following convictions:[6]
[6] R2, T9a, page 94.
Court
Date
Offence
Result
Armadale Magistrates Court
14 December 2020
Careless driving causing death, GBH or bodily harm
[Counts 1] Mdl Disqualified: 3 months – Concurrent, FINE $1500
Armadale Magistrates Court
14 December 2020
Careless driving causing death, GBH or bodily harm
[Counts 1] Mdl Disqualified: 3 months – Concurrent, FINE $1500
By letter dated 29 May 2023, the Department invited the Applicant to comment on, or provide an explanation concerning, adverse information regarding her convictions.[7] In response the Applicant provided the following:
(a)letter from Registrar Fines Enforcement Registry, Department of Justice, dated 23 May 2023 which confirmed that the applicant completed the Time to Pay Order;[8]
(b)a hand-written character reference letter of Mrs Atchara Da Silva Jorge, dated 6 June 2023;[9] and
(c)a statutory declaration of the Applicant, dated 6 June 2023.[10]
[7] R2, T9a, pages 85 – 94.
[8] R2, T10, page 95.
[9] R2, T11, page 96.
[10] R2, T12, page 97.
On 8 September 2023, a delegate of the Respondent made the Reviewable Decision.[11]
[11] R2, T15a, pages 101 – 102; T3, pages 15 – 24.
On 11 September 2023, the Applicant lodged an application with the Tribunal seeking review of the Reviewable Decision.[12]
[12] R2, T2, pages 4 – 14.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 24(1) of the Act states that ‘[i]f a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Where a person is not eligible to become an Australian citizen under s 21(2), the Minister must not approve the person becoming an Australian citizen.[13]
[13] The Act s 24(1A).
The Applicant applied for Australian citizenship on the basis that she meets the general eligibility criteria at s 21(2) of the Act, which relevantly provides:
(2) 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 meaning of good character
The term ‘good character’ is not defined in the Act. The Tribunal is however assisted by the Australian Citizenship Policy (1 June 2016) (the Policy) and the Revised Citizenship Procedural Instructions (1 January 2019) (the CPIs).[14]
[14]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth). The CPIs were amended with effect from 26 February 2021.
As established in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[15]
[15]Drake, 645.
While the phrase 'good character' is not defined in the Act, consideration of whether a person is of good character will require an assessment of the person's 'enduring moral qualities.'[16] The phrase requires a 'discretionary value judgment' to be made by reference to undefined factual matters as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny them citizenship.[17]
[16] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 at 431–432 per Lee J.
[17] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51] per O'Bryan J.
Chapter 15 of the Citizenship Procedural Instructions (CPI 15) provides guidance on the meaning of 'enduring moral qualities', and should be applied by the Tribunal unless there are cogent reasons not to.[18]
[18] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179, per Brennan J.
The Tribunal notes the relevant extracts from CPI 15 as they appear at paragraphs 13 to 16 of the Respondent’s Statement of Facts, Issues and Contentions, including that the Tribunal have regard to the following questions:[19]
(a)Would a person of good character behave the way the Applicant did?
(b)What evidence is there to demonstrate that the Applicant has upheld and obeyed the law?
(c)Has the Applicant behaved in accordance with Australia's community standards, such as obeying the law?
(d)Does the Applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
(e)Has the Applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
(f)Are there any other factors that are relevant to an assessment of the Applicant’s character?
[19] Section 15, [18].
The Tribunal notes that the good character test does not require it to form an adverse view of the Applicant’s character. Rather, it must be positively persuaded or positively satisfied that the Applicant is of good character.[20]
[20] Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815 at [18] per Senior Member McCabe.
Therefore, if the Tribunal is not positively persuaded that the Applicant is of good character, the Tribunal should affirm (as it has done) the decision under review on the basis that the Applicant is not eligible to become an Australian citizen.
HEARING AND EVIDENCE
The hearing was held by video on 6 March 2025 and 30 April 2025 in the Tribunal’s Perth Registry.
The Applicant was represented by Mr Paul Spackman, a friend. The Respondent was represented by Ms Elle Tattersall of Minter Ellison. All parties appeared by video.
The Applicant was assisted by Mr Anuphong Klumjaturong, a Thai Interpreter throughout the proceedings on 6 March 2025 and Ms Phanthakan Sureeyathanaphat, a Thai Interpreter throughout the proceedings on 30 April 2025.
The Applicant gave oral evidence at the hearing and was cross examined.
The following materials were exhibited at the outset of the hearing:
(a)Cover Email of the Applicant dated 18 December 2023 (Exhibit A1);
(b)Support Letters of Thanyaphat Morris, Atchara Da Silva Jorge and Nutsara Linn (Exhibit A2);
(c)Cover email dated 10 January 2024 with duplicate documentation of support letters (Exhibit A3);
(d)Email from the Applicant dated 1 March 2024 (Exhibit A4);
(e)Character Reference of Atchara Pownall (Exhibit A5);
(f)Letter from Moe Chouelb dated 28 February 2024 (Exhibit A6);
(g)Email from Dave Berry dated 18 February 2024 (Exhibit A7);
(h)Email from Applicant’s Representative dated 26 August 2024 (Exhibit A8);
(i)Letter from Chartrudee Macintosh (Exhibit A9);
(j)Letter from Moe Chouelb dated 20 October 2024 (Exhibit A10);
(k)Letter from Thanyaphat Morris (Exhibit A11);
(l)Letter from the Applicant submitted 6 March 2024 (Exhibit A12);
(m)Email from Applicant’s Representative dated 12 February 2025 (Exhibit A13);
(n)Respondent’s Statement of Facts, Issues and Contentions (Exhibit R1);
(o)T-Documents T1 – T16, comprised of pages 1 – 112 (Exhibit R2);
(p)Supplementary T-Documents S1 – s12, comprised of pages 1 – 66 (Exhibit R3);
(q)Further Supplementary T-Documents S13 - S14, comprised of pages 1 – 57 (Exhibit R4);
(r)Further Supplementary T-Documents S15, comprised of pages 1 – 24 (Exhibit R5);
(s)Further Supplementary T-Documents FS1, comprised of page 1 (Exhibit R6).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant’s evidence
The Applicant told the Tribunal that the evidence was “100% clear” that she had made “poor mistakes” and that both her “mistakes” in providing false information to the Department and the car accident itself were, in her own mind, minor.
The Applicant said she had no understanding of the impact her mistakes would have on her citizenship application and that she had always intended to be truthful. The Applicant asked the Tribunal to take into account her country of origin and her limited understanding of her convictions in Australia.
During cross-examination, the Applicant was asked a number of questions regarding the circumstances surrounding her previous visa applications, her application for citizenship and her incoming passenger card, to which she answered:
(a)She first applied for a visitor visa to travel to Australia (lodged 10 June 2011) to spend time with her then-partner, whom she dated for a long time prior to applying.
(b)Her then-partner was to provide finance for her in Australia. He had provided for her financially in Thailand, but not for everything, as she was working at a coffee shop that she owned.
(c)However, she had indicated in her visa application form that she was working in her family’s pig farm (and not her café) because the pig farm business was a better business and would look better on her visa application. She also worked on her family’s pig farm.
(d)After her first visa application was refused, she applied for another visitor visa shortly after.[21] She could not particularly recall the application, however she accepts that she lodged it and acknowledged it was also refused.
[21] Still in June 2011, although the Applicant could not recall when.
(e)As to her next visitor visa application in 2016, she provided the necessary information to an agent, who completed the form on her behalf. She cannot recall the purpose of this trip to Australia or if she was in a relationship at this time, but could recall that she wished to come for Australia for a holiday. She said that perhaps she did not tell the agent whether or not she had previously applied for a visa. She can’t remember that visa being lodged.
(f)As to whether she was aware that she had provided incorrect information in that visa application in answering “no” to the question of whether she had applied for a visa before, she said she was confused, she did not know and cannot recall.
(g)As to whether she was aware that there was incorrect information on her visa application in 2016, namely that the purpose of the trip was for a holiday and tourism, she said that she could not recall, as the agent filled it in for her.
(h)She is not sure whether she remembers travelling to Australia in October 2016.
(i)She said that she travelled to Australia with the primary purpose of meeting her friend, who eventually became her partner. She said that she met him online a few years prior and that they decided to meet in person in Australia.
(j)She also said that she only decided to meet her friend in person once she had arrived in Australia.
(k)She said she then ended up with an Australian partner, although she cannot recall when they became partners. She said that they were together for one or two years before their daughter was born. She said that they were not in a relationship at the time they met in Australia.
(l)When it was put to her that saying her reason for coming to Australia to meet her friend in person was inconsistent with her agent having filled in the form and her evidence that she hadn’t decided to meet her friend in person until after her 2016 visa application form had been filled out, the Applicant disagreed with the proposition that she had failed to disclose the true purpose of her trip so she could improve her chances of obtaining the visa, and that she had told the agent the main purpose wasn’t to meet her friend but it would be good to do so. She said that at the time she applied, she did not know that they would meet each other in Australia and her having said previously that the primary reason was to meet her friend was borne of confusion by the questions that were put to her.
As to the following chronology that was put to her:
(a)She lodged two visitor visa applications in 2011 in order to see her partner in Australia and both were refused.
(b)She then applied for a further visitor visa in 2016 and made no reference at all in that application to visiting a partner in Australia.
(c)Despite her earlier evidence that she had been talking online to this person for some time, she did not consider herself in a relationship with this person at the time of the visa application.
(d)She arrived in Australia in October 2016.
(e)She started living with her partner during that holiday, in December 2016.
(f)On 5 November 2016, she and her partner committed to a relationship to the exclusion of all others.
(g)She married her partner on 10 May 2017.
(h)The Respondent proposed that this chronology suggested that she was in a relationship with her partner at the time she lodged her visa application in 2016 and the reason she did not declare she had a partner in her form was to secure a positive outcome on her visa application. The Applicant responded that she did not fill out the form herself, that the agent did not ask her who she would meet in Australia or what she would do there, she just gave a bit of information along with her passport. She said she did not intentionally fail to disclose that information, they were just talking as friends at the time she lodged her application in 2016 and they agreed to be partners after meeting in Australia.
(i)She accepts it was her responsibility to ensure the information contained in her visa application in 2016 was true and correct.
(j)She does not recall her partner visa application in 2017. Another agent completed the form for her on the basis on information she provided. She can’t recall making a declaration on that form that the information contained in it was true and correct.
(k)She accepts it was her obligation to ensure what the agent filled in was true and correct.
(l)She accepts that the 2017 visa application contained incorrect information, relating to whether or not she had been in a relationship with persons other than the sponsor (her having answered NO). She said she never had the opportunity to check the form completed by the agent prior to it being lodged.
(m)As to this entry in her form being inconsistent with her earlier evidence of being in a significant relationship prior to her relationship with her sponsor, she said that this earlier partner was not from Australia (the Respondent having noted that the questions clearly asked about any relationship, not just relationship with Australians) and that she was not happy being asked questions going that far back.
(n)She said that everyone asks agents to complete forms, especially when their English is not good.
(o)When the Respondent said that the evidence appeared to suggest that the Applicant did not declare her previous relationship to enhance her chances of her partner visa being approved, the Applicant said she did not know how that question came about and the agent did not know whether she had had a past boyfriend or not.
(p)As to her offending in 2020, she said that she accepted she failed to give way at an intersection, that she drove into an oncoming vehicle, causing a crash, that there was extensive damage to both cars and the air bag on the victims’ car was deployed. She accepts that the passengers suffered injuries, including bruising, stitches, pain and ongoing dizziness.
(q)She said she did not see much of the accident, she was frightened, no one died and the victim was not seriously harmed.
(r)When asked, she said she was aware that the matter was going to be determined before a Court and her late husband had filled out the Court form for her. She said she was aware she accepting that she had committed the offence.
(s)She accepted that she entered a guilty plea on the form, and on that form had asked for consideration of the fact that it had been a bad intersection and there was poor visibility.
(t)When it was put to the Applicant that police records indicate that on the day of the accident, the weather was fine, the road was dry and visibility was good, the Applicant said she thinks the police were correct, but she did not see the vehicle coming and she cannot say what caused the accident other than she was in a give way position and did not give way.
(u)She accepted that her Thai drivers licence had allowed her to drive in Australia.
(v)She accepted that in June 2020 she had lost demerit points for failing to stop.
(w)She accepted that when she sat the test for her WA drivers’ licence, she failed on the first occasion and passed on the second occasion.
(x)The Applicant said she did not drive for 6 to 8 months after her accident and recommenced driving once the suspension imposed following her offending had been lifted.
(y)When asked, the Applicant confirmed she had not completed any rehabilitation or driving courses since the accident, despite having indicated this was her intention.
(z)As to her citizenship application, a friend helped her complete the form by reading it out to her and she would give the answers.
(aa)She accepts she did not answer the question regarding offending correctly and that she should have disclosed her offending in her citizenship application form.
(bb)She accepted that from at least the time of the Reviewable Decision, she knew her offending was a matter that needed to be disclosed as a criminal conviction.
(cc)As to why she then failed to disclose her offending on her incoming passenger card in 2024, she said that she did not know that she needed to but she accepts that she provided incorrect information on that card.
(dd)During re-examination, she said that she did not declare her convictions because she did not realise the charges were serious.
CONSIDERATION
The issue for review by the Tribunal is whether the Applicant was, as at 12 February 2020,
of good character for the purposes of s 21(2)(h) of the Act.
Whether the Tribunal is satisfied that the Applicant is of good character
Applicant’s Contentions
Broadly, the Applicant contends her limited understanding of the English language led to her “making a mistake” (on her application for citizenship) and in turn led to her being classified as not being of the required character for Australian citizenship.
At hearing, the Applicant submitted further that:
(a)There is no question that it is a privilege to be an Australian citizen.
(b)She is a hardworking community member and a single mother.
(c)Her mitigating circumstance are her inability to understand English at the time and the importance of “certain things” we value in Australia.
(d)In Thailand you pay and everything is sorted out.
(e)In Australia, we have rules and regulations.
(f)Her English is improving.
(g)There is no question mistakes were made on some of the documents going back to 2011.
(h)14 years ago, she relied on others to fill in documents, as per the culture in Thailand.
(i)She had an obligation to provide true and correct information and failed to do so, not because she was trying to avoid disadvantage but because of the agent who was entering the information.
(j)In Australia, she had endured a lot and at no stage has she been shown to be of poor character.
(k)At the time of the accident, she was under extreme pressure, fearing for her life and her daughter’s life.
(l)Being an Australian citizen is a matter dear to her heart, she would like to stand tall as an Australian citizen and be called and treated as such.
(m)She implored the Tribunal to look past her minor mistakes on her documents, that were made due to her not having the necessary skills or getting the right advice or having the right people around her, which she has now.
(n)Her minor mistakes should not cloud the situation. Fourteen years later she has shown exceptional learning skills with regard to the English language.
Respondent’s Contentions
The Respondent contends that, having regard to the available evidence and applicable policy, the Tribunal should find that the Applicant does not meet the criterion in s 21(2)(h) of the Act due to the seriousness of the Applicant's offending, the lack of evidence confirming that the Applicant has undertaken sufficient rehabilitation to address the underlying reasons for her offending conduct and the Applicant's repeated behaviour in providing incorrect information to the Department.
The Tribunal notes with consideration and agreement the Respondent’s related submissions at paragraphs 20 to 37 of its Statement of Facts, Issues and Contentions and its extensive oral submissions in closing.
The Tribunal’s consideration of the issue for review falls into two main categories:
(a)the Applicant’s conduct; and
(b)the information that the Applicant provided in her application for citizenship.
The Applicant’s conduct
On 14 December 2020, the Applicant was convicted for careless driving causing death, GBH or bodily harm (careless driving) when she failed to give way before driving her vehicle into the path of a victim's car causing the vehicles to collide. The crash resulted in extensive damage to both cars. One victim received bruising across her chest and neck and required four stitches to her left knee[22] whilst the other victim received bruising to her waist, pain to her lower back and ongoing headaches and dizziness which persisted since the crash.[23]
[22] R3, S7, page 12.
[23] R3, S7, page 13.
The Applicant was fined and was disqualified from holding a driver's licence for three months as a result.[24]
[24] R3, S3, page 4.
In the statement of material facts, the Applicant is reported as having stated that she was going fast and in her written plea to the Magistrates Court and following guilty plea, requested the court to take into consideration that it was a very bad intersection notorious for accidents.[25]
[25] R3, S1, page 1.
The Applicant’s offending involved real harm to victims:
(a)The Tribunal is not satisfied that the Applicant has sufficiently acknowledged the impact of her offending conduct on these victims.
(b)The fines imposed and the disqualification of the Applicant’s licence indicates the seriousness of the offending.
The Applicant, even now, seeks to minimise her culpability for her offending:
(a)Initially, the Applicant stated that the intersection where the accident occurred was a notorious bad intersection.
(b)The Applicant has since explained that she was tired on the day of the accident and feared for her life from her late husband's "drug infused rage."[26] These details were not provided to police and the Applicant did not seek to explain this further.
[26] Statement of the Applicant filed on 13 November 2024.
The Applicant has, albeit four years after the offending, indicated that she intends to attend an advanced driving course, however has provided no evidence of registration or completion.
The Respondent submitted that having regard to the Applicant's limited evidence regarding efforts at rehabilitation and the circumstances surrounding the offending, the Tribunal should not be satisfied that sufficient time has elapsed since the Applicant's offending to establish a pattern of good behaviour. At hearing, the Respondent elaborated with the following additional oral submissions:
(a)The Applicant views her fines as indicative of her offending being minor, however her offending is serious, resulting in injuries and a deployed airbag.
(b)While the Applicant accepted she had entered a guilty plea and committed an offence, the only matter raised in her plea form with regards to her offending was that the intersection had been bad.
(c)The written pleas refers to the charged laid therefore the Applicant would have been aware of the nature of the charges at the time she entered her plea.
(d)The Applicant accepts she was at fault, that she was at a give way and did not see the oncoming vehicle.
(e)The Applicant did not suggest any wrongdoing on the part of the victims during the lead up to the offence.
(f)The Applicant said she did not know what happened and gave no further explanation for her offending other than she did not see the vehicle coming. This is inconsistent with the written material, including character references stating that at the time of the accident, the Applicant was under stress related to her husband, was suffering from lack of sleep, however no references were made to these complications during her oral evidence. There is also internal inconsistency in the references attesting to the Applicant having been overwhelmed by her husband’s passing as opposed to her claimed marital issues.
(g)While the Applicant may have indeed been fearful following the accident, this does not diminish the serious nature of the accident itself.
(h)There is no evidence of driver rehabilitation or courses, or counselling for stress or any other mental health related issues.
(i)The Applicant had some difficulties obtaining her Australian drivers licence, having to sit it twice and then offending within a few months of having obtained it.
The Tribunal agrees and finds that the Applicant's careless driving is serious and weighs heavily against finding that she is of good character.
Information provided to the Department
The Applicant did not disclose her criminal history on her application for Australian citizenship by conferral, answering 'no' to the question as to whether she had been convicted of, or found guilty of, any offences overseas or in Australia.[27]
[27] R2, T4, page 41.
The Applicant gave the reason that she "was unsure of the laws in Australia as Thailand the[ir] laws are different,"[28] that she considered the failure to disclose was a "honest mistake,"[29] borne from her limited English, and that she "did not at any stage try to lie or deceive the Minister.”
[28] R2, T12, page 97.
[29] A1, Statement of the Applicant filed on 18 December 2023.
The Tribunal notes that the question in the application form specifically identifies "traffic offences which went to court"[30] and considers the Applicant must have been aware the offending was before a Court where she filed a written plea of guilty.[31]
[30] R2, T4, page 41.
[31] R3, S1, page 1.
The Applicant maintains that English is her second language, however she did not seek out or otherwise suggest that she required any assistance in completing the citizenship test.[32]
[32] R2, T4, page 37.
Additionally, the Applicant provided the following further incorrect information, claiming it to be a genuine mistake, that she did not intend to mislead the Department and that she did not consider that the information was that important.[33]
(a)On 3 June 2011, the Applicant applied for a tourist visa in order to see her then boyfriend.[34] That application was refused on 8 June 2011.[35] She then lodged a further tourist visa application on 16 June 2011, again for the purpose of visiting her boyfriend.[36] The application stated that they had been living together since January 2010 and he was financially supporting her.[37] The application was refused on 20 June 2011.[38]
(b)On 14 September 2016, the Applicant then applied for a further tourist visa.[39] Within that application she provided incorrect information in answering "no" to the question of whether she had previously applied for a visa to travel to Australia.[40]
(c)On 1 December 2017, the Applicant then applied for a Permanent Partner (subclass 100) visa.[41] In that application, the Applicant answered "no" to whether she had been in any previous relationships with persons other than the sponsor.[42]
[33] A12, Statement of the Applicant filed on 13 November 2024.
[34] R3, S13, pages 1 – 24.
[35] R3, S13, pages 25 – 27.
[36] R3, S14, pages 28 – 54.
[37] R3, S14, pages 46 – 48.
[38] R3, S14, pages 55 – 57.
[39] R3, S11, page 32 – 41.
[40] R3, S11, page 34.
[41] R3, S12, pages 42 – 66.
[42] R3, S12, page 60.
The Tribunal considers the Applicant’s provision of incorrect information to the Department on numerous occasions to be serious and her explanations of ‘mistake’ and the information being ‘irrelevant’ and ‘insufficient’ to be insufficient and also internally inconsistent, especially when the application form specifically identified disclosure of "traffic offences which went to court.”
The Respondent contended that the Applicant's conduct in failing to disclose being found guilty of careless driving,[43] her previous visa applications[44] and her previous relationship[45] is 'entirely inconsistent with good character.'[46]
[43] R2, T4, page 41.
[44] R3, S11, page 34.
[45] R3, S12, page 60.
[46] Fahiye and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 374 at [36] per Deputy President Kendall.
Again, at hearing, the Respondent elaborated with the following additional oral submissions:
(a)The Applicant appears to suggest that her having given incorrect information to the Department is not a significant matter. This should not be accepted as the authorities indicate the importance of doing so.
(b)The Applicant gave incorrect information for an extended period of time.
(c)The Applicant failed to disclose her offending in her citizenship application, which she told the Tribunal was because she had forgotten about it (having provided other, differing explanations in writing), and on her incoming passenger card, at a time she accepts she knew it was a matter to be disclosed, however she typically did not do so. This explanation is unreasonable.
(d)The Applicant provided additional incorrect information on her two visitor visas in 2011. While the Applicant gave oral evidence she worked in her café along with in her family’s pig farm, this does not overcome her evidence that she elected to indicate on her form that she worked in on a farm as doing so would improve her prospects.
(e)In 2016 she failed to disclose her previous visitor visa applications, despite the agent completing the form for her and it being her responsibility to ensure the information recorded was true and correct.
(f)She also failed to disclose that the purpose of her visit was to see her partner, having given evidence that she cannot remember the purpose of this visit, or when she started the relationship with the friend that eventually became her late husband and later saying that the primary reason was to meet the friend she had been talking to online.
(g)The Applicant was also unsure if she had met her friend when she had lodged her application and altered her view only when she was taken to her failure to indicate the purpose of her visit was to visit her partner. The Applicant then obtained a visa in September 2016, travelled to Australia in October 2016, commenced living with her partner in December 2016 and married in May 2017.
(h)The Applicant also failed to disclose her previous relationship in her 2017 partner visa application, giving the reasons that the agent did not ask her about this. Again, this is in circumstances where the Applicant accepted it was her responsibility to ensure this information was true and correct, she has a history of providing false information and the question itself was clear and specific.
(i)Having also failed to disclose her offending on her citizenship application in 2022 and her incoming passenger card in 2024, the available inference is that the Applicant fails to disclose information where she seeks to secure a particular visa outcome. And, information regarding offences and relationships are key matters.
The Tribunal agrees, having held previously that 'a failure to be truthful in dealings with migration officials can constitute evidence that a person is not of good character.'[47]. As such, this factor also weighs against the Applicant for the purpose of assessment of her character.
[47] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [63] per Senior Member Walsh.
Character references
For completeness, the Tribunal considers the character references provided by the Applicant are of limited value for the reasons set out in paragraph 29(c) of the Respondent’s Statement of Facts, Issues and Contentions and notes further that:
(a)None of them make any specific reference at all to the circumstances which resulted in the finding that the Applicant was not of good character; and
(b)none of the referees were made available for cross-examination at hearing, such that all the evidence contained in these references more generally remains untested.
CONCLUSION
For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 8 September 2023, to refuse the Applicant’s application for citizenship by conferral, is affirmed.
.......[SGD]..............
Associate
Dated: 6 May 2025
Date of hearing: 6 March 2025 & 30 April 2025 Applicant: Mr Paul Spackman, Friend Respondent:
Ms Elle Tattersall of Minter Ellison
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