Livingstone and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 3282

Livingstone and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3282 (13 September 2024)

Division:GENERAL DIVISION

File Number:2023/7215          

Re:Grant Alexander Livingstone  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Henderson

Date:13 September 2024

Place:Perth

The decision of a delegate of the Respondent dated 18 September 2023, to refuse the approval of the Applicant’s application for citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) is affirmed.

.......[Sgd].................................................................

Member Henderson

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – Australian Citizenship Act 2007 s 21(2)(h) – Applicant is a citizen of the United Kingdom – Applicant’s offences include drink driving, domestic violence, interlock offences – Infringements – History of domestic violence reports – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed

LEGISLATION

AUSTRALIAN CITIZENSHIP ACT 2007 (CTH), SS 21, 21(1), 21(2)(H), 24, 24(1A), 52(1)(B), 53

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH), S 37

MIGRATION ACT 1958

Crimes Act (Sentencing Procedure) 1999 (NSW), s 10

CASES

Ahori and Minister for Immigration and Border Protection [2017] AATA 601

Boy19 v Minister for Immigration and Border Protection [2019] FCA 574

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231
FCR 128

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Mendoza and Minister for Immigration and Border Protection [2018] AATA 686

Minister for Home Affairs v G and Another [2019] FCAFC 79

Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

SECONDARY MATERIALS

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act, 15(4)

Australian Citizenship Policy Statement, 27 November 2020

'Blood Alcohol Concentration (BAC) and the effects of alcohol’, Government of South Australia, SA Health < FOR DECISION

Member Henderson

13 September 2024

INTRODUCTION

1. The Applicant seeks review of a decision of a delegate of the Respondent (the delegate) dated 18 September 2023,[1] to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).

   [1] R1, T3.

2. The matter was heard in Perth on 22 May 2024. The Applicant was self-represented and appeared. The Respondent was represented by Ms Madelyn Balinski of Minter Ellison. Both parties appeared in person.

   BACKGROUND

3. The Applicant is a 42-year-old citizen of the United Kingdom, born in Scotland.[2] He first arrived in Australia on 1 September 2005 as the holder of a Working Holiday Maker (Subclass 417) visa.[3] On 3 July 2012 and 26 July 2014 the Applicant was granted Temporary Work Skilled Visas (Subclass 457).[4] On 24 August 2019 the Applicant was granted a Permanent Skilled (Subclass 190) visa.[5]

   [2] R1, T4, p 27.

   [3] R1, T3c, p 15.

   [4] R1, T3c, p 15.

   [5] R1, T3c, p 15.

4. On 22 October 2022 the Applicant lodged an Application for Australian Citizenship by Conferral – General Eligibility.[6] In the application, in response to the question as to whether he had been convicted of, or found guilty of, any offences overseas or in Australia, the Applicant disclosed drink driving (DUI) offences in 2017 and 2021.[7]

   [6] R1, T4, p 25.

   [7] R1, T4, p 38.

5. The Respondent obtained a Check Results Report for the Applicant from the Australian Criminal Intelligence Commission on 12 May 2023.[8] The Check Results Report recorded that, in addition to his two declared DUI offences in October 2017 and October 2021, the Applicant had been convicted on 19 May 2014 of three domestic violence offences, for which he was sentenced to a good behaviour bond.[9]

   [8] R1, T14.

   [9] R1, T14, p 83.

6. On 2 June 2023 the Minister’s Department wrote to the Applicant inviting him to comment on adverse information, being the offences listed in the National Police Checking Service report regarding the Applicant.[10] In response to the invitation to comment, the Applicant provided additional evidence including two character references and two personal statements.[11]

   [10] R1, T15a.

   [11] R1, T16a-d, pp 93-99.

7. On 18 September 2023, the delegate made a decision to refuse the Applicant’s application for Australian citizenship by conferral because the delegate was not satisfied that the Applicant was a person of good character in accordance with s 21(2)(h) of the Act.[12] The delegate noted the seriousness of any domestic violence related offence and driving related offence and considered that even if the offences were not all serious in nature, they form part of a pattern of behaviour and disregard for the law and gave this significant weight in their assessment.[13]

   [12] R1, T3c, p 15.

   [13] R1, T3c, p 18.

8. On 2 October 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.[14]

   [14] R1, T2.

   LEGISLATIVE FRAMEWORK

9. The 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 Appeals Tribunal

   
   

   (the Tribunal) for review of a decision under s 24 of the Act.[15]

   [15] R1, p 2.

10. Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’. Section 24(1A) of the Act prohibits the Minister (or delegate under s 53 of the Act) from approving an application unless so satisfied.

11. The expression ‘good character’ is not defined in the Act. There are no criteria contained in the Act by which the Minister is to consider what comprises good character, and it has been held that this is an indication that Parliament intended the term to be used in a broad way.[16] The words ‘good character’ are used in their ordinary sense.[17]

    [16] Grass v Minister for Immigration and Border Protection[2015] FCAFC 44; (2015) 231 FCR 128 at [60].

    [17] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431].

12. Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble, which recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and involves reciprocal rights and obligations.[18] It is, as the oft-quoted decision in Fenn puts eloquently, ‘a privilege not bestowed lightly’.[19]

    [18] Boy19 v Minister for Immigration and Border Protection [2019] FCA 574 at [53].

    [19] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].

    Citizenship Policy Statement and Revised Citizenship Procedural Instructions

13. Guidance is set out in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship Policy Statement, which came into force as of 27 November 2020 (the Policy). Policy is not binding on the Tribunal, but decision makers should generally apply it unless it is unlawful or there are cogent reasons why it should not be applied.[20]

    [20]Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57]-[62].

14. CPI 15(4) provides that an Applicant of good character would, among other things:

    ·     respect and abide by the law in Australia and other countries;

    ·     not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example intentionally providing false personal information or other material; and

    ·     not be the subject of any verifiable information causing character doubts.

15. In Irving, the Full Court of the Federal Court of Australia considered the expression ‘good character’ in the context of a provision of the Migration Act 1958 (Cth), empowering the Minister to refuse to grant a visa or entry permit in certain circumstances, including that the person is not of good character. Davies J opined that:

    [t]he term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5…criminal convictions or the absence of them and character references are likely to be an important source of primary information. … If persons speak well of the applicant, the decision-maker will take that into account.[21]

    [21] Irving pp 424–425.

16. That said, it is clear that the assessment of good character entails considering and weighing the person’s enduring moral qualities and not the good standing, fame or repute of the person in the community.[22]

    [22] Irving.

17. CPI 15 sets out how a holistic assessment of a person’s character may be made in the following terms:

    In addition to the general principles of good decision-making…officers assessing whether an applicant is of good character should as a general proposition:

    Characterise the nature of any offence or behaviour

    ois the offence serious or minor?

    odid the offence harm other people?

    owho were victims?

    ois there a pattern of behaviour?

    owas it a one off incident?

    owere there extenuating circumstances?

    Consider any associations with people or organisations of concern.

    Consider any mitigating circumstances:

    olength of time since the offence was committed

    oage at time of offence

    obehaviour since completing prison sentence or obligations to court

    oremorse regarding their offending behaviour

    ocommunity support (referee reports etc)

    ochanges in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.

    The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.

18. Notwithstanding the obligation to take a holistic approach, it is established that a single adverse incident of sufficient weight and seriousness can outweigh many good qualities in a person.[23]

    [23] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].

    BARRIERS TO SATISFACTION OF GOOD CHARACTER

19. The sole issue before the Tribunal is whether the Applicant is a person of good character for the purpose of s 21(2)(h).

20. The Respondent advances three broad reasons why the Tribunal should not be satisfied that the Applicant is a person of good character:

    (a)The Applicant has been convicted of serious offending, including domestic violence and drink driving offences;[24]

    (b)The Applicant has been reported to the police for conduct which is inconsistent with a person of good character;[25] and

    (c)The Applicant has not demonstrated sufficient rehabilitation or recovery for the Tribunal to be satisfied that he has changed since the dates of his earlier conduct.[26]

    [24] SOFIC, pp 5-7.

    [25] SOFIC, p 9.

    [26] SOFIC, pp 10-11.

21. The Respondent says that the Applicant’s conduct includes serious domestic violence offending that enlivens the presumption that the Applicant is not a person of good character,[27] and says further that the Applicant has not advanced sufficient evidence to negate that presumption.[28]

    [27] Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [54] per Senior Member Sosso.

    [28] SOFIC, p 12.

    EVIDENCE

22. The Respondent lodged a Statement of Facts, Issues and Contentions dated 1 March 2024 (SOFIC) and two bundles of documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth):

    (a)Section 37 T Documents labelled T1-T21, comprising pages 1-187 (R1);

    (b)Section 37 Supplementary T Documents, labelled S1-S60, comprising pages 1-214 (R2);

    Applicant’s oral evidence at hearing

23. The Tribunal heard oral evidence from the Applicant.

24. The Applicant told the Tribunal that he had found it hard to ask for character references, and he did not see the need for them. He said that he didn’t drink very often, and that he had put other people and his career first. 

25. The Applicant’s evidence was that he had spent ten years as a firefighter in Scotland. He had sustained life-threatening injuries and had lost his mother. He turned 30 and found it to be a milestone. A visit to Australia made him want to move here, which he did with his partner at that time. He said that he had not had any trouble with the law in the United Kingdom.

26. The Applicant said that he had been too young to become a fireman when he left school so he had trained as an electrician, and he reverted to that profession when he came to Australia because it facilitated his visa. He is presently working fly in, fly out (FIFO), which he started in January 2023 and is currently working on a BHP project. 

27. The Applicant met his former partner in Sydney and they had an unplanned child together. They separated when their son was one-year-old but remained friends. They don’t have Family Court Orders in place, but they do have a written agreement. The Applicant said that the agreement ‘went south’ when his former partner remarried and had a daughter with her new partner. He also said that the second DUI offence was a big change for their relationship.

28. The Applicant said that the first DUI offence caused him shame. The second DUI offence was ‘unfathomable’. The Applicant submitted that this second drink driving offence should be seen against the backdrop of COVID-19 and gave evidence that during this time he had started running for charity, using a GoFundMe website. He said that he was running ‘silly’ distances per day for about a month and a half before the second DUI offence. As to the circumstances of his alcohol consumption that night, he gave evidence that he had loaned his car to a friend who had brought him six of his favourite ciders to say thank you for the loan on the day that the offence took place. The Applicant said that he had drank all of them that afternoon but did not recall drinking them when he decided to drive with his son to the bottle shop. He said that there was ‘no walking away from that one’ and that he had contacted Odyssey House to arrange an alcohol assessment.

29. The Applicant was cross examined. The Tribunal explained to the Applicant the privilege against self-incrimination and emphasised that the Tribunal would not draw a negative inference if he declined to answer any questions on this basis. The Applicant confirmed that he understood the privilege against self-incrimination. 

    Further evidence after the hearing

30. At the conclusion of the hearing, the Tribunal was not satisfied that the Applicant had understood the nature of the decision before the Tribunal at the time that he had prepared for the hearing. In particular, the Tribunal noted that the Applicant had repeatedly provided witness statements in support of each of his DUI convictions and in response to adverse information put to him by the Department, but had not called witnesses or provided up to date witness statements in respect of the Tribunal proceedings. The effect was that the Applicant had not adduced any evidence of his present good character, other than his own testimony to that effect. The Tribunal gave the Applicant an opportunity to provide further witness statements after the hearing, limited to proof of his present good character. The Tribunal gave the Respondent the opportunity to make further submissions and/or request an additional hearing if the Applicant filed any witness statements after the hearing.

31. The Applicant filed the following statements after the hearing:

    (a)Statement of Rachael Jones (friend), unsigned, dated 16 June 2024;

    (b)Statement of Sarah Bradbury (friend), unsigned, dated 16 June 2024;

    (c)Statement of Dylan Miccalef (friend), undated;

    (d)Statement of Mark Rawsen (friend/work colleague), unsigned and undated;

    (e)Statement of Jannette Beattie (Godmother), unsigned and undated;

    (f)Statement of Tyron Suratman (supervisor), undated;

    (g)Email statement of Ben Calabrese (work colleague), undated; and

    (h)Statement of James Livingstone (Father), dated 11 June 2024.

32. The Respondent filed further submissions dated 5 July 2024 in response to the witness statements (Respondent’s Post-hearing Submissions). In those submissions, the Respondent sought a further hearing to cross-examine the authors of the witness statements. The Tribunal did not list the matter for a further hearing, for reasons set out in paragraphs 118-124 below.

    CONVICTIONS

    2014 breach of Apprehended Violence Order and intimidation offences

33. On 19 May 2014 the Applicant was convicted of two counts of ‘stalk/intimidate intend fear physical etc harm (domestic)’ and one count of ‘contravene prohibition/restriction in AVO (Domestic)’.[29]

    [29] R1, T14, p 83.

34. The Tribunal has been provided with a copy of the NSW Police Facts Sheet in relation to the charges[30] and has drawn the following background from that fact sheet and the Applicant’s evidence during the hearing. The background of the offence is significate because of strong similarities to later reported behaviour. The Tribunal makes no attempt to go behind the facts established by the conviction.

    [30] R2, S14, pp 58-61.

35. The Applicant sublet a room in the home of Ms Patterson on or around 20 November 2013.[31] They had not known each other prior to the Applicant moving in and did not have an intimate relationship.[32] There was no lease agreement.  Ms Patterson reported to the police that the Applicant was ‘regularly intoxicated’ and that it ‘caused changes in [the Applicant’s] behaviour and mannerisms’.[33]

    [31] Applicant’s evidence at hearing. The police report includes that Ms Patterson reported 30 November 2013 as the commencement of the Applicant’s tenancy.

    [32] R2, S9, p 46.

    [33] R2, S9, p 46.

36. On Friday 3 January 2014 Ms Patterson contacted the police ‘due to fears she had in relation to [the Applicant]’.[34] She reported two incidents, which the police recorded as ‘two intimidation offences’ in the facts sheet.[35] The first occurred on 24 December 2013, and is described in the following terms:

    About 7:00am on Tuesday, the 24 December 2013, the Victim was in the kitchen cooking breakfast. The Victim had a bandage on her finger as a result of injuring it the previous evening (23 December). The Accused walked downstairs and into the kitchen. The Accused said to the Victim, “If you touch this house, I will do more than cut your finger”. The Victim replied, “Pardon?” However, the Accused has already walked back upstairs. The Accused had been consuming alcohol the previous night.[36]

    [34] R2, S14, p 59.

    [35] R2, S14, p 59.

    [36] R2, S9, p 46.

37. The second incident is described in the following terms:

    About 9:30am on Friday, the 3 January 2014, the Victim noticed the mat belonging to the upstairs bathroom was in the garden outside. The Victim attended the bathroom and noticed human excrement on the floor and walls of the bathroom. This was similar to an incident that occurred on the 20 December 2013. The Victim had not confronted the Accused as she was afraid of how the Accused was going to react. On this occasion the Victim’s female friend was present and the Victim decided to confront the Accused on the flight of stairs between the first floor and ground floor. The Victim said, “I’m not prepared to put up with this behaviour. It’s not normal. It’s not right to behave like that in someone’s house.” The Accused replied “You two are in my house.” About 10:30am the Victim again approached the Accused and said, “I’m, sorry, you’re not welcome in this house any more. I would like you to move out.” A short time later, the Accused exited the residence. Prior to leaving, the Accused said to the Victim, “I’m going to hunt you down. You’re lucky you’re walking.” The Accused attended the…and consumed about six (6) cider type alcoholic drinks. The Accused returned to the residence and said again to the Victim, “I’m going to hunt you down. You’re lucky you’re walking”.[37]

    [37] R2, S9, p 46.

1. The Applicant was taken into custody, and it was recorded that:

   it was the opinion of police that he was moderately affected by intoxicating liquor as his eyes were bloodshot, his speech was slurred and the Accused breath melt [sic] of intoxicating liquor.[38]

   [38] R2, S9, p 46.

2. It is recorded that the Applicant made no admissions to the defecating, or to the verbal threats, but did ‘make admissions to having a strong dislike to the Victim and her female friend’.[39] The police applied for a provisional apprehended violence order (AVO) on Ms Patterson’s behalf, which was granted and served on the Applicant on the same evening, in custody, and the conditions were explained to him by the custody manager.[40] The Applicant was also charged with intimidation offences with bail conditions that included that he ‘does not approach or contact [Ms Patterson] within 12 hours of consuming intoxicating liquor or drugs not prescribed by a medical practitioner’.[41]

   [39] R2, S9, p 46.

   [40] R2, S14, p 59.

   [41] R2, S14, p 60

3. The enforceable conditions of the AVO expressly included that the Applicant ‘must not go within 100 metres of the premises at which the protected person(s) may from time to time reside or work, or other specified premises: [home address of Ms Patterson]’ (Condition 4), and that the Applicant ‘must not approach or contact the protected person(s) by any means whatsoever, except through [Ms Patterson’s] legal representative’ (Condition 7).[42] 

   [42] R2, S14, p 59.

4. At 11.22pm the same night the Applicant sent a text message to Ms Patterson which read ‘Sorry for earlier btw x’.[43] At 12.36am in the morning of Saturday 4 January (ie a little over an hour later) there was a missed called to Ms Patterson from the Applicant’s mobile telephone. There was another missed call at 1.14am.  Collectively the contact was asserted to be a breach of Condition 7.[44]

   [43] R2, S14, p 60.

   [44] R2, S14, p 60.

5. At 1.30am Ms Patterson found the Applicant in her home. She called the police who attended just before 2.00am and found the Applicant asleep in his car approximately 27 metres away from Ms Patterson’s home, in breach of Condition 4.[45]

   [45] R2, S14, pp 60-61.

6. Under cross examination the Applicant acknowledged the ‘stupidity’ of not complying with the AVO. He said that the whole restraining order incident was ‘utter madness’ and that he hadn’t paid enough respect to what he had been accused of.

   2017 DUI Offence

7. On 6 October 2017, the Applicant was convicted of the offence of ‘drive with high range PCA – first offence’.[46] He was fined $2,200 and disqualified from driving for a period, with an interlock requirement for a further period.[47]

   [46] R2, S50, p 193.

   [47] R2, S50, p 194.

8. The details of the offence are set out in the New South Wales Police Facts Sheet as follows:[48]

   About 10:27am on Friday the 18th of August 2017…the vehicle driven by the accused departed it's [sic] lane, crossing the double lines into the Eastern lane. Consequently the front offside of the vehicle collided with the front offside of a motor vehicle.

   …

   Police attended the location and spoke with the accused and witness. Whilst speaking with the accused it was noticed that his breath smelt of intoxicating liquor, he had blood shot eyes and was initially unsteady on his feet. When asked what happened the accused said "I've been at Gosford leagues Club, I had 2 schooners of cider and was driving home and crashed with the truck. I don't think I crossed the lanes".

   …

   The accused was submitted to a breath analysis which returned a positive reading of 0.166 grams of alcohol in 210 Litres of breath.

   [48] R2, S51, p 195.

9. The Applicant successfully completed the SAVE Traffic Driving Course on 24 September 2017.[49] He wrote a letter to the Court on 1 September 2024 which included the following statement:

   I cannot believe I’m finding myself in this horrible situation with the incident and a subsequent positive breath test occurring. Further to that the fact that it was in the high range I am in complete disbelief. I take full responsibility for the positive result as I shouldn’t have had ANY amount of alcohol before driving a vehicle, which has always been the case on the 15 years that I have been driving. I am not sure what made this occasion different in my judgment.[50]

   [49] R2, S54 p 207.

   [50] R2, S55, p 208.

10. The Applicant expressed his gratitude that nobody was hurt in the incident and expressed anger at himself for his lack of judgment. He then said:

    Through reflection and attending the SAVE Traffic Driving course it educated me fully as to the different strength of certain alcoholic drinks and how a small amount can cause I [sic] high blood alcohol level on an individual. I am not a big drinker and did not respect the affects [sic] this would have. I know naivety is not an excuse certainly in this instance.[51]

    [51] R2, S53 p 208.

11. The Applicant provided the Court with Letters of Support from Ms Kelly Duhring, Mr Michael Kershaw and Mr John Onley, each of which is before the Tribunal.[52] Ms Duhring’s eye-witness evidence was that the Applicant would ordinarily arrange a taxi or public transport if he intended to have ‘more than a couple of drinks’.[53] Mr Onley stated that ‘driving with a high range prescribed concentration of alcohol’ is totally out of [the Applicant’s] character and behaviour because of his work commitments and with his very young son’.[54] Mr Kershaw’s evidence was that, as far as he was aware, the Applicant had ‘never done anything like this in the past and from speaking to him on several occasions since this incident nothing like this would have the chance to happen again’.[55] Mr Kershaw said that he had ‘chatted at length over the phone’ with the Applicant and that he could ‘thoroughly confirm the level of remorse [the Applicant] feels that this incident has happened…’[56]

    [52] R2, S56-58, pp 209-212.

    [53] R2, S56, p 209.

    [54] R2, S57, p 210.

    [55] R2, S58, p 211.

    [56] R2, S58, p 211.

12. The Applicant’s evidence to the Tribunal during the hearing provided some context to this offence. He said that he had had a meeting for a new project and was offered a drink. He accepted. He did not now recall how many drinks there had been; he accepted that two might be right. He insisted that it had not been a lot and that he believed that it was not an amount that would put him over the legal limit for driving.

13. The Tribunal notes that a reading of 0.166 is a significant blood alcohol level, which is often characterised by motor impairment and loss of physical control and can result in loss of consciousness.[57] To put it in context, driving with a Blood Alcohol Content (BAC) reading above 0.05 is unlawful, and driving with a BAC reading above 0.08 is an automatic disqualification from driving. The Applicant’s BAC was more than double the amount that results in an automatic disqualification from driving.

    [57] 'Blood Alcohol Concentration (BAC) and the effects of alcohol’, Government of South Australia, SA Health < offence

14. On 21 April 2020 the Applicant was found to be driving without an interlock device when his licence was still subject to an interlock condition.[58] The details of the offence are set out in the NSW Police report as follows:[59]

    …the accused was observed to be using a hand held smart phone whilst driving…The accused attempted to use an international drivers license that he could not produce…Police conducted checks which revealed the accused holds an active Class C Unrestricted New South Wales drivers licence…[with a] current interlock condition.

    The accused told Police that his interlock conditions were removed but checks…revealed the condition still was active.

    [58] R2, S9, p 35.

    [59] R2, S9, p 35.

15. The charge was dismissed without the applicant facing punishment in accordance with section 10 of the Crimes Act (Sentencing Procedure) 1999 (NSW).[60]

    [60] R2, S5, p 21.

    2021 DUI Offence

16. On 20 October 2021, the Applicant was convicted of the offence of 'drive with high range PCA – prior offence’.[61] He was fined $1,200 and disqualified from driving for 9 months, with a mandatory interlock imposed for 48 months.[62] He was given an Intensive Correction Order for 10 months with 100 hours of community service work and an order to abstain from alcohol.[63]

    [61] R2, S38, p 162.

    [62] R2, S38, p 163.

    [63] R2, S39, pp 164-165.

17. The details of the offence are set out in the New South Wales Police Facts Sheet as follows:[64]

    [64] R2, S40, pp 167-168.

    About 9.55pm on Saturday the 14th August 2021…police approached…a grey Mazda CX-5 from behind that was estimated to be travelling under the speed limit.

    Police with lights, sirens activated along with the sounding of the horn police continued behind the vehicle and observed it to be weaving from side to side within its lane.

    …

    Police approached the vehicle and observed [the Applicant] to be seated in the drivers seat. Police observed a young male child to be restrained in a child's seat in the rear of the vehicle. The child was sleeping.

    …

    The accused was submitted to a breath test that returned a positive result. The accused was arrested and exited the vehicle. At this time the accused was observed to be unsteady on his feet and having slurred speech. Police also identified there to be a strong smell of intoxicating liquor coming from the accused.

    …

    At Woy Woy Police Station the accused was submitted to a breath analysis that returned a result of 0.212 grams of alcohol…

    In relation to his drinking of alcohol the accused stated that he had consumed a [sic] approximately four cans of full strength apple cider between 12:00pm and 9:30pm prior to being stopped by Police. He stated that he had not consumed any food.

    The accused stated that he had driven from his home to attend a local bottle shop.  Police observed in the vehicle two opened cans of alcoholic cider and an opened pack of alcoholic cider in the front passenger seat of his vehicle.

18. The Applicant pleaded guilty to the offence.[65]

    [65] R2, S38

19. The Tribunal has before it the material that was before the Court for sentencing purposes, including a Sentencing Assessment Report,[66] an undated letter from the Applicant to the Court (Applicant’s 2021 Letter),[67] SMART Recovery Attendance and Participation Sheet,[68] and a letter of support from Pauline Nardo, AOD Treatment Worker from Odyssey House NSW Community Programs.[69]

    [66] R2, S44.

    [67] R2, S45.

    [68] R2, S46.

    [69] R2, S47.

20. The Applicant’s 2021 Letter expressed his remorse and deepest regret.  The Applicant’s 2021 Letter included the following passages:[70]

    I simply know now that I need to completely remove alcohol from my life. I cannot allow this to happen again and the impact it has had on my life and that of my sons requires me to do whatever measure it takes to facilitate that.

    I have taken measures to ensure that I abstain entirely from alcohol now and into the future. I do not wish for my son to witness me in a like position or go through that experience again. This experience has been harrowing and has allowed me to engage in several deep conversations with a counsellor to both assess and address my alcoholism…

    I am so grateful for the support given by Odyssey House Counselling and my engagement with SMART Recovery online group meetings and I have every intention in making this a constant in my life going forward…

    [70] R2, S45.

21. As of 2021, the Applicant was indicating that he understood that he had the chronic disease referred to as alcoholism, and that he needed to permanently abstain from alcohol because he posed a risk to himself and others when he drank.

22. In his letter dated 4 June 2023, responding to the adverse information put to him by the Department in his National Police Check, the Applicant said:

    In addressing both DUI convictions, I am extremely remorseful in these happening. On the first occasion I was completely unaware of the time Alcohol takes to leave the system and this occurred the following morning. The 2^nd offence happened after a long break from consuming Alcohol as I was in the middle of carrying out a Charity Challenge of Running a Half Marathon a Day for Suicide Awareness Australia. It was a complete error of judgement in what was a very stressful time in my personal life in hindsight. I seeked [sic] counselling after this incident to ensure there was no issues with Alcohol. This was confirmed that there were no issues to address by Odyssey House in Sydney. The fact that this had happened I took the opportunity to remove Alcohol from my life completely and I have a full life that I love which involve my Family, being a proud Father, my career as a Leading Hand Electrician in the Mining Industry and in my Sporting endeavours. I engaged in 2 intense Driving Courses which I found greatly worthwhile and educational...[71] (Emphasis added.)

    [71] R1, T16b, p 95.

23. At the Tribunal hearing the Applicant described this second offence for driving under the influence as ‘unfathomable’. With regards to his drinking, his evidence was that he had engaged immediately and reached out, but that he was ‘deemed’ not to require treatment.  He said that he had identified that there was an ‘easy-fix’ to avoid any further drink driving incidents; giving up drinking, which he had done.

24. The Applicant appears to have resiled from his earlier indication that he suffers from alcoholism requiring sustained treatment. Nonetheless, the Applicant’s evidence was that he had completely abstained from alcohol from 14 August 2021 until the date of the hearing.

    INFRINGEMENTS

25. On 19 August 2016 the Applicant was issued a Criminal Infringement Notice for ‘behave in offensive manner in/near public place/school.’[72] The incident report states that the Applicant was ‘swearing towards police continually yelling “are you fucking kidding me, are you fucking serious, you fucking idiots?”’[73] The records indicate that the fine was paid on 11 January 2017.[74]

    [72] R2, S6, p 23.

    [73] R2, S9, p 40.

    [74] R2, S6, p 23.

26. At hearing, the Applicant had trouble recalling all his interactions with the police but indicated that it had been in the context of drinking alcohol.

27. On 18 August 2017, the Applicant was issued with a transport infringement notice for the offences of 'drink alcohol on bus/ferry/train or in public area' and 'use offensive language in or on public passenger vehicle/train or public area.'[75] The reporting officer noted the following details:

    DID DRINK ALCOHOL ON RAIL LAND. TO WIT, CIDER TYPE OF ALCOHOL CONTAINED IN A 375ML CAN WITH AN ALCOHOL CONTENT OF 8 PERCENTAGE. DID NOT HAVE REASONABLE EXCUSE AND DID HAVE KNOWLEDGE OF THE OFFENCE, SPOKEN TO AND STATED NOT AGAIN.[76]

    [75] R2, S9, p 38.

    [76] R2, S9, p 38.

28. The Applicant was reported as swearing, using words ‘FUCK’ and ‘I AM A FUCKING FIREFIGHTER…I AM FUCKING SCOTTISH MATE’.[77]

    [77] R2, S9, p 38.

29. The Applicant was asked about this offence during the Tribunal hearing and said that he genuinely did not know that it was an offence to drink on public transport. He said that his language was intended to be light-hearted, and demonstrated to the Tribunal a light-hearted ‘Ah, fuck off mate’.

30. The report made by the officer who recorded the infringement specifically notes that the Applicant had prior knowledge that it was an offence, which is a conclusion that appears to be based on the Applicant’s spontaneous utterance ‘not again’. The report further records that the Applicant was cautioned about his swearing before he was charged, and that he continued to swear notwithstanding the warning.[78]

    [78] R2, S9, p 38.

31. The Tribunal finds that the Applicant had prior knowledge of the offence and finds the Applicant’s evidence that he genuinely did not know that it was an offence to drink on public transport is false and is intended to mislead. The Tribunal accepts that the Applicant’s initial profanities might possibly have been a misguided attempt at camaraderie but that his continued swearing at a public officer after the caution against it speaks against his being a person of good character.

    2020 infringements

    Driving using a smart phone

32. A traffic infringement notice was issued to the Applicant on 21 April 2020 for using a mobile phone whilst driving a car.[79] This occurred on the same occasion as the offence referred to in paragraph 50 above. The Applicant was asked to produce his driver’s licence and reportedly tried to rely on an international licence but was unable to produce it.[80] The police reportedly ran checks which returned an active Class C Unrestricted New South Wales drivers licence for the Applicant, which he agreed was his. The New South Wales licence had a current interlock condition showing, and the Applicant was breath tested with a negative result.[81]

    [79] R2, S9, p 38.

    [80] R2, S9, p 38.

    [81] R2, S9, p 38.

    Child at risk/actual street offence

33. On 2 December 2020, the Applicant received an infringement notice for the incident described as 'child/young person at risk – actual street offence'.[82] The Police report sets out that the police were proceeding to an unrelated job when they observed a vehicle parked at an angle to the kerb with the lights on and the engine running. The report states:

    Police observed [the Applicant] leaning up against the drivers door, with him appearing to push the left side of his pants down as police drove past. Police looked into the vehicle, which had the internal lights on, and observed a young male child in the vehicle, with no shirt and unrestrained.[83]

    [82] R2, S9, p 33.

    [83] R2, S9, pp 33-34.

34. The police report states they conducted a U-turn and returned to the vehicle, where the Applicant was getting into the ‘front offside drivers seat.’[84]  The following is then reported:

    Police called out to [the Applicant] who turned and attempted to say something, though police couldn’t understand due to him slurring his words. Police got out of the vehicle and spoke to [the Applicant] who was still seated in the vehicle, and observed him to be well to seriously intoxicated by liquor and/or drugs. [The Applicant] put his seat belt on and stated that he was going to leave…[85]

    [84] R2, S9, p 34.

    [85] R2, S9, p 34.

35. The police intervened and the report indicates that the Applicant told them to ‘fuck off’ and called them ‘cunts’.[86] The police are reported to have cautioned the Applicant, but that he continued to ‘swear and be obnoxious’.[87] The report then states:[88]

    At this time the child’s step father located police and the child, as he went out looking for them when [the Applicant] did not return the child as planned and he was not at his home address…the child appeared happy and relieved when he saw him…

    [86] R2, S9, p 34.

    [87] R2, S9, p 34.

    [88] R2, S9, p 34.

36. The police report indicates that the officers sought CCTV footage or eye witness evidence that the Applicant had been driving the car, but determined there was not enough evidence to succeed with a DUI charge. 

37. On 3 December 2020, the Applicant was issued an infringement for the offence 'use offensive language in/near public place/school’.[89]

    [89] R2, S6, p 23.

38. On 4 October 2022, the Applicant was issued a transport infringement notice for the offence 'drink alcohol on bus/ferry/train or in public area'.[90] The reporting officer notes the following details:[91]

    DID DRINK ALCOHOL ON A TRAIN. TO WIT, MERCURY CIDER CONTAINED IN AN ALUMINIUM CAN WITH AN ALCOHOL CONTENT OF 6.9%. DID NOT HAVE A REASONABLE EXCUSE AND DID HAVE KNOWLEDGE OF THE OFFENCE. SPOKEN TO AND STATED THERE WAS NO BINS TO GET RID OF IT. POI TRIED HIDING THE CAN BEHIND HIS BAG AS POLICE CONDUCED AN OPAL INSPECTION. CAN APPROX. ¼ FILLED.

    [90] R2, S9, p 31.

    [91] R2, S9, pp 31-32.

39. This offence occurred during the period of time in which the Applicant has declared to the Tribunal that he has abstained from alcohol. The Applicant’s evidence during cross-examination was that he had not been drinking alcohol on that occasion; he says that he was travelling south on a train with a friend who had been drinking from the can, and that he had been left with it. The Tribunal does not accept that evidence. It is implausible that the Applicant’s friend would have left one-quarter of a can of cider in the Applicant’s possession when the Applicant was actively avoiding alcohol. There is no evidence that the Applicant told the police that the can was not his; at the time of the incident he advanced an alternative explanation for having the can in his possession: that there were no bins. The alcohol contained in the can was cider, which is the Applicant’s usual reported drink of choice.

1. The Tribunal finds that the Applicant was still drinking alcohol as of 4 October 2022, that he was still doing so on public transport notwithstanding his prior infringement, and that his evidence to the Tribunal that he ceased drinking alcohol in 2021 is false.

   REPORTED CONDUCT

2. There have been a number of reports made about the Applicant to various local police both before and after his arrival in Australia, which the Respondent says that the Tribunal should have regard to. 

   UK Police Certificate

3. In relation to the Applicant's UK Police Certificate, the Applicant notes the following in his statutory declaration dated 15 July 2018:

   As detailed on my UK Police Certificate as 'no live trace'. The only matters relate to on the 8/11/11 I received a 'simple caution' following a domestic argument with my then partner in our home…

   On the 25/3/12 offence relates to a verbal altercation at a licenced premise. I was questioned by Police and was released with 'no further action.[92]

   [92] R2, S4, p 17.

4. The Applicant was cross examined about these events during the hearing. He described the 2011 event as a ‘big night’ during which he and his partner, Kelly, had had a ‘huge row’.  He said that drink changes his character.

5. The Applicant was also cross-examined on the 2012 offence and acknowledged that there had been a verbal altercation.

   Domestic violence reports

6. On 15 February 2013, the Applicant was involved in an incident involving his ex-partner described as 'domestic violence episode'.[93] The incident related to an interaction between the Applicant and a person who is described as his ex- de facto spouse.[94] The name of the complainant has been removed from the copy of the documents provided to the Tribunal. The complainant reported being in a de facto relationship with the Applicant previously ‘for 3 years’[95] and stated that they do not have children. The reporting officer noted the following details: 'Poi a heavy drinker and coming home and yelling at vic for unknown reasons…Poi moved out last night and has lost his keys so should not be able to attend apartment in the future'.[96]

   [93] R2, S9, p 48.

   [94] R2, S9, p 48.

   [95] R2, S9, p 49.

   [96] R2, S9, p 49.

7. On 10 June 2013, the Applicant was issued a move on direction by police due to an incident described as 'domestic violence episode'.[97] The complainant’s relationship to the Applicant is described in the same terms as the previous incident, and there is nothing to suggest that it is not the same complainant. The complainant ‘informed police the Defendant does not reside at the unit and of his alcoholic and recreational drug history’.[98]

   [97] R2, S9, p 48.

   [98] R2, S9, p 48.

8. In November 2013 the Applicant moved into Ms Patterson’s home, and the offences against Ms Patterson occurred on 24 December 2013 and 3 January 2014 as described at paragraphs [36]-[37] above. Ms Patterson’s observations about the Applicant’s drinking and commensurate behavioural change form part of the Applicant’s pattern of behaviour apropos his treatment of women that he lived with, notwithstanding that they were not in an intimate relationship. 

9. On 11 January 2020, the Applicant was involved in an incident described as 'domestic violence episode – child/young person at risk'.[99] The incident related to an interaction between the Applicant (POI) and his ex-partner (VIC). The name of the VIC has been redacted in the copy of the documents before the Tribunal. The relationship is described as ‘duration of 2 years separated 3 years ago’,[100] meaning the relationship commenced in or about 2015, and the separation occurred in or about 2017. It is a different complainant from the 2013 domestic violence complaints.

   [99] R2, S9, p 35.

   [100] R2, S9, p 36.

10. The Police report notes the following details:

    The POI attended the VIC residence…in an intoxicated state. The VIC asked the POI to leave. The POI refused. Police were called by VIC room mate [sic]. The VIC stated the POI has a problem with alcohol and she doesn't want her son around him whilst he is drinking, and that the POI drives intoxicated with their son in the car. The VIC stated she is seeking family law assistance due to issues with the POI alcohol abuse.[101]

    [101] R2, S9, p 36.

11. The Applicant was given an opportunity to comment on these recorded incidents during cross-examination.     

12. In summary, then, either three or four different women have sought the assistance of the police to deal with the Applicant when he was intoxicated. The first was his then partner in the UK. The second was a former partner in Australia; the Tribunal concedes this may have been the same person as the partner in the UK. The next was his then landlady. The last was a different former partner in Australia, with whom the Applicant has a child. There is no evidence (nor any suggestion by the Applicant) that the women knew each other or had colluded in any way. The complaints are reasonably consistent in nature; the Applicant is intoxicated, aggressive and will not voluntarily leave premises that he is not welcome to remain in. Each of the women refers to his alcoholism or tendency to drink excessively. The Tribunal finds that the behaviour of the applicant reported to the police by the complainants did occur. The behaviour complained of by the third complainant is, of course, already established as fact by the Applicant’s convictions.

    ASSESSMENT OF CHARACTER

    Seriousness of the offending

13. The Respondent contends that the Applicant's offending is ‘serious and not indicative of the qualities associated with good character as it demonstrates a pattern of behaviour and a disregard for laws which are in operation to protect other citizens’.[102]

    [102] SOFIC, p 9, para 34.

14. The Applicant's DUI driving offences put members of the Australian community at immediate risk of serious harm. The potentially catastrophic effects of drink driving are the subject of constant campaigns by governments at all levels. The Applicant could not have failed to appreciate the seriousness of driving under the influence after the first offence, which resulted in a collision. He nevertheless repeated the offence some four years later with his infant son in his car. The Tribunal considers the DUI offending to be very serious.

15. The domestic violence offences should also be taken very seriously. As the Respondent observes, the Tribunal has repeatedly stated that the Australian community has 'zero tolerance for domestic violence in all its manifestations’.[103] There would need to be 'compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character'.[104]

    [103] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48] per Senior Member Puplick.

    [104] Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601 at [54] per Senior Member Sosso.

16. The only conviction for domestic violence offences in relation to the Applicant’s behaviour is in 2014. However, it is clear that the Applicant has engaged in an ongoing pattern of behaviour in respect of his former partners which, in the Tribunal’s view, establishes the presumption that the Applicant is not currently a person of good character, subject to evidence to the contrary which is considered below.

    Degree of rehabilitation

17. The Respondent says that the Tribunal should not be positively satisfied that the Applicant has sufficiently rehabilitated to demonstrate a pattern of enduring moral qualities associated with good character subsequent to his criminal offending, noting the following:[105]

    (a)although the Applicant claims that he has accepted responsibility for his drink driving offences and has shown remorse within his statement dated 4 June 2023,[106] the Applicant made similar claims within a statement dated 1 September 2017 following his initial drink driving offence and went on to reoffend in a more serious manner in 2021;[107]

    (b)the Applicant continues to deny responsibility or wrongdoing in relation to the 2014 offence;

    (c)the Applicant was 31 years of age at the time of the 2014 offence and 39 years of age at the time of the 2021 offence and would therefore be expected to have gained a greater respect for upholding the law than if he had committed the offences at a younger age;

    (d)although the Applicant has provided two character references in support of the application neither of those references are in the form of a statutory declaration nor do they demonstrate knowledge of the applicant's full criminal history;

    (e)the Applicant's recent statements in relation to the facts of his offending, as well as his indications that he ceased drinking following the 2021 drink driving offence, are inconsistent with additional evidence;

    (f)a reasonable amount of time has not passed since the Applicant has been free of obligation to the court and establish a pattern of good behaviour as the applicant's obligation to the court, in the form of an Intensive Correction Order of 10 months ceased on 19 August 2022; and

    (g)there is limited evidence before the Tribunal of the steps the Applicant has taken to rehabilitate or address his alcohol related issues.

    [105] SOFIC, p 10.

    [106] R1, T16b, pp 95-96.

    [107] R1, S55, p 208.

18. In these circumstances, the Respondent contends that the Tribunal should not be satisfied that the applicant poses no risk of reoffending.[108]

    [108] SOFIC, p 11.

19. The Applicant argues that his complained of behaviour was always associated with drinking, that he gave up drinking in 2021 when the second DUI offence occurred, and that his present character should be assessed on the basis that he has not consumed alcohol since 2021. The Applicant says he accepts that he has behaved badly when under the influence of excess alcohol. He says that he accepts that he should have addressed it sooner. He says that he has hit ‘rock bottom’ and that he is very proud to be alcohol free. He mentioned attending Alcoholics Anonymous meetings. He says that he is still supported by a psychologist. He says that he has a support network and that he watches for triggers.

20. The Applicant’s evidence is that he is presently in employment which routinely checks him for alcohol and drug use. He says that his circle of friends knows that he does not drink, and that his employer is aware of his DUI offences. He says that since the 2021 DUI Offence he has no alcohol in the house.

21. There is no evidence before the Tribunal to support the Applicant’s submissions, save for that of the Applicant. He has not adduced any evidence of ongoing attendance with a psychologist, nor any evidence of any support for his alcoholism from any medical professional. His claim that his circle of friends knows that he does not drink was not corroborated by any witness. The Tribunal accepts that FIFO workers for major mining companies are usually subject to drug and alcohol screening, but notes that the Applicant has not provided evidence of his FIFO schedule as it reflects periods of time in which he must have abstained from drinking.

22. The Applicant has not adduced any supporting evidence that he has attended Alcoholics Anonymous, and his own evidence was that he does not presently identify as an alcoholic. He says that his problem is binge drinking, not an ongoing systemic inability to resist alcohol, that his alcohol consumption was not the catalyst for his partner leaving him, and that the instances of his poor behaviour whilst under the influence are isolated in the overall scheme of his life. The Applicant shows no indication that he is engaged in assessing and addressing his alcoholism.

23. The Tribunal is not satisfied that the Applicant has or is engaged in meaningful rehabilitation of his alcoholism and consequential disregard for the law and the safety of others.

    Misleading authorities

24. The Applicant did not disclose his complete criminal history on his application for Australian citizenship by conferral under the heading 'Character declarations', which reads:

    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)? [109]

    [109] R1, T4, p 38.

25. In response to that question, the Applicant stated 'Yes'. In response to the part of the question requesting that the applicant 'give details' he stated 'Drink Driving Oct 2017' and 'Drink Driving Aug 2021'. The Applicant's answer did not include details of his spent conviction in the UK or his offences from December 2013 and January 2014, for which he was convicted on 9 May 2014.[110] The application form warned the Applicant that it was an offence to provide false or misleading information. The Applicant also declared that the information 'supplied in this form is complete, truthful and correct in every detail'.[111]

    [110] SOFIC, p 11.

    [111] R1, T4, p 43.

26. The Applicant had also failed to disclose those same offences on his application for a Long-Stay Temporary Business Visa dated 15 July 2014. The application form included the following question under the heading 'Character declarations':

    'Has [the Applicant] ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?'[112]

    [112] R2, S1, p 5.

27. In response to that question, the applicant stated 'No'.[113] This occurred a mere two months after the offences of which he was convicted on 9 May 2014.

    [113] R2, S1, p 5.

28. The failure to disclose the full extent of his criminal history in his citizenship application and the false claim in his Long-Stay Temporary Business Visa application that he had never been convicted of a crime or offence in any country raise real doubts about the Applicant’s character and the failures to disclose cast doubt on the credibility of his evidence to the Tribunal.

29. On 21 April 2020 (the date of the interlock offence) the Applicant attempted to rely on his international licence when he was stopped by the police, and after they identified his NSW licence, he told them that the interlock condition had been removed which was not correct.[114] That is also an attempt to mislead authorities which negatively impacts the Tribunal’s assessment of the Applicant’s credibility and character.

    [114] R2, S9, p 35.

    Length of time elapsed

30. The Applicant’s last DUI offence occurred in October 2021 and it appears from the records that his obligations to the court arising from that offence will not cease until 20 October 2025.[115] The Respondent’s submission is that his obligations ceased on 19 August 2022. Even if the Respondent’s submission is correct it is a recent cessation. It has been less than three years since the offence. In that time the Applicant has had the benefit of an employer who routinely monitors him for alcohol consumption and has prohibited it entirely in the workplace.

    [115] R2, S5, p 22.

31. If the Applicant had persuaded the Tribunal that he had ceased drinking entirely in October 2021 and was regularly attending a support group for his alcoholism, then the Tribunal would consider nearly three years sober to be a considerable achievement which reflected well on the Applicant’s character, although the Tribunal would still be mindful that the interlock offence and associated misleading of the authorities occurred at a time when the Applicant was breath tested and found to be sober.

32. However, the Tribunal has found that the Applicant was still drinking at least as of the 2022 drinking on public transport infringement, and that the Applicant has not sought adequate treatment nor put adequate protection measures in place to address his alcoholism. 

33. That being the case, the elapse of time is not sufficient to persuade the Tribunal that the Applicant is reformed and/or poses no future danger to the community. His serious offending in Australia has spanned a total period of 11 years. There was a three year gap between the Applicant’s previous two DUI offences; the same length of time that has elapsed since the later of them. 

34. The Tribunal gives little weight to a period of two years since the Applicant’s last drinking related infringement in the circumstances.

    Character references

    Work colleagues

35. The character reference provided by Mr Dylan Micallef indicates that he has only known the Applicant for six months, that they work together, and that they have developed a friendship outside work. It attests that the Applicant is careful and diligent at work, and that the Applicant is a caring father who tells stories about his son and works hard to provide for his family. It is silent as to the Applicant’s alcohol consumption or convictions.

36. The character reference from Mr Tyron Suratman states that Mr Suratman has known the Applicant for two years, and that they met at a FIFO project where Mr Suratman was the Applicant’s direct Electrical Supervisor. It says that the Applicant and Mr Suratman have worked together ‘on consecutive projects’. Mr Suratman’s view of the Applicant is overwhelmingly positive. He states that the Applicant has ‘always presented as an upstanding individual with the utmost reliability, integrity and honesty’, and that he supports others ‘as a mentor and leader for upcoming and inexperienced colleagues’.  Mr Suratman says that the Applicant is reliable, trustworthy and honest. It says further, and importantly, that the Applicant has been eager to learn how to appreciate Aboriginal traditions and celebrate historic events to treat the Aboriginal culture with respect when working in remote areas. He shows support and concern for his colleagues at work, and that he stands by his word. The reference is silent on the Applicant’s drinking or convictions.

37. The Applicant has also provided an unsigned reference from Ms Rachel Jones, who says that she has known him for five years and describes him as ‘an invaluable colleague’. She describes him as ‘one of the hardest working individuals’ that she has ‘ever met’. She says that his ‘work ethic is exemplary’ and ‘his commitment to excellence is evident in everything he does’. She says that the Applicant is a loving and devoted father, but it appears that this knowledge is based on the Applicant’s ‘stories about their adventures and quality time together’. Ms Jones says that as a friend the Applicant is ‘dependable, kind, and always willing to lend a helping hand’ and that his ‘genuine concern for the well-being of others is a testament to his character’. She is silent as to his drinking or convictions.

38. There is also a reference before the Tribunal, again unsigned, from Ms Sara-Jade Bradbury, who says that she came to know the Applicant during her employment with Qantas when he was working FIFO. She says that she has known him for 18 months, and that they had regular communication and catch ups ‘despite [their] work schedules’. She does not describe the nature of their relationship. Ms Bradbury describes the Applicant as a respectful, kind and caring friend, a ‘hard worker and good taxpayer’ and ‘active in his community’. She describes him as a ‘proud father’ who gives blood and looks for ways to be helpful to his friends and the greater community. She is silent as to his drinking or convictions.

    Family

39. The Applicant has provided a reference from his father, Mr Livingstone. It sets out the Applicant’s history of community service and ‘Charitable endeavours’, including his commitment to regular blood donation. His father says this about the Applicant’s drinking:

    I am fully aware of [the Applicant’s] DUI instances and i was a disappointed and shocked as [the Applicant] was himself as in no way is it something that goes with his Character. It made me proud when he sought professional assistance after this to identify if there had become a problem with Alcohol. He knew he had to do this for Himself but more importantly for his Son. He has been very open and honest about this and although no diagnosis of Alcohol dependency or underlying issues were identified he made the decision to continue the Psychology appointments and remove alcohol from his life completely. I am proud that he has taken every measure and step to fix this part in his life and how it shadowed all the great things about himself.

1. Mr Livingstone’s assertion that the DUI offences were out of character for his son suggests that he is not aware of the full extent of his son’s problem with alcohol or its effect on his behaviour. The Tribunal notes that Mr Livingstone’s address is a location in Scotland, where the Tribunal understands him to have lived consistently since his son moved to Australia.  He is therefore not a direct witness of the Applicant’s daily life and is reliant on reports from the Applicant and any common acquaintances for his view of the Applicant’s present character.

2. The Applicant has also provided a reference (unsigned) from his Godmother, Janette Beattie. She says that she has ‘found him to be caring, trustworthy and considerate and someone you could turn to in times of need’. She refers to his charitable works and says that he became a firefighter to help people. She says that he has always been hard working and diligent and always in employment. She is silent as to his drinking or convictions.

   Consideration of witness statements

3. The Respondent submits in its Post Hearing Submissions that in completing the evaluative exercise required in respect of paragraph 21(2)(h) of the Act, the Tribunal should place limited weight on the applicant's additional character references for the following reasons:

   (a)the statements lack specificity and detail regarding the applicant's enduring moral qualities;

   (b)the statements are either unsworn and/or undated;

   (c)the statements do not disclose the extent to which each referee is aware of the applicant's prior conduct or criminal offending; and

   (d)the statements provide insufficient evidence to outweigh the large volume of material before the Tribunal which demonstrates a pattern of unsatisfactory behaviour and a disregard for Australia's laws.

4. The Tribunal accepts those submissions; they are substantially correct.

5. The Respondent sought a further hearing to cross examine the Applicant’s witnesses. The Tribunal has considered whether, taken at their highest, the collective effect of the witness statements is sufficient to establish that the Applicant is a person of good character. If the Tribunal assumes for the sake of argument that each witness is telling the truth and would not change their view if the Applicant’s police records were put to them, is their collective evidence enough to positively persuade the Tribunal that the Applicant is a person of good character?

6. The answer is no. The evidence before the Tribunal is that the Applicant is badly affected by the excess consumption of alcohol, and that he changes character and behaviour under its influence. There is no evidence that any of the witnesses have ever seen the Applicant drunk, or that they are aware of the impact that drinking has upon him. The evidence of his work colleagues is largely in the context of a workplace which requires sobriety and imposes daily alcohol tests. The witness statements do not persuade the Tribunal that the Applicant is currently a non-drinker; his father’s evidence is not eye-witness evidence and depends on the Applicant’s self-reporting.

7. The evidence of the witnesses is that the Applicant has many fine qualities. The Tribunal accepts that he does. None of them outweigh his convictions for domestic violence, stalking and breaching court orders, his demonstrated disregard for the law over a period of eight years in Australia, or his repeated DUI offences.

8. The Applicant has previously tendered witness statements attesting to him being a genuine and honest person,[116] who is a trustworthy co-worker,[117] and a great father to his son.[118] Those witness statements were tendered in 2017 after the Applicant’s first DUI offence.  Four years later he committed a second DUI offence. On the second occasion he had more alcohol in his blood stream and he had his infant son in the back seat. The fine qualities attested to by the witnesses were all present in the Applicant at that time but did not prevent his egregious conduct.

   [116] R2, S58, p 211.

   [117] R2, S57, p 210.

   [118] R2, S56, p 209.

9. There is no merit in a further hearing to allow the Respondent to cross-examine the witnesses. Even if the Tribunal accepts all of the witness evidence at its highest it is not sufficient to positively persuade the Tribunal that the Applicant is a person of good character, given all of the circumstances.

   CONCLUSION

10. The Tribunal is not persuaded that the Applicant has ceased all consumption of alcohol or that he fully appreciates the impact that alcohol has on him. Furthermore, the Applicant’s offending has not been exclusively when he was drunk; he was breath tested on 21 April 2020 at the time of the interlock offence and he returned a clear result. The qualities in the Applicant that are attested to by his witnesses and the two years that have passed since his last drinking related offence are not enough to outweigh the eight years of serious disregard for the law in Australia and the further years in the United Kingdom. His failure to disclose offences to the Minister and his failure to be honest and forthright in his evidence to the Tribunal are also persuasive barriers to a finding of good character which his behaviour in the workplace cannot overcome.

11. In respect of the current application for citizenship and on the evidence, the Tribunal is not satisfied that the Applicant is a person of good character within the meaning of and as required by the legislation.

12. This does not mean that the Applicant is in any way precluded from making a fresh application for citizenship in the future. It does not deprive the Applicant of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he may be able to demonstrate a long period of commitment to the community unblighted by drink driving offences or a demonstrated disregard for the law and disregard of the need to be honest in his dealings with the Commonwealth.

13. For the reasons outlined above, the Tribunal cannot presently be affirmatively satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.

    DECISION

14. The Reviewable Decision, being the decision of a delegate of the Respondent dated

    
    

    18 September 2023 to refuse the Applicant’s application for citizenship by conferral, is affirmed.

I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for the decision herein of Member J Henderson

........[Sgd]................................................................

Associate:

Dated: 13 September 2024

Date(s) of hearing:	22 May 2024
Advocate for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms Madelyn Balinski, Minter Ellison