Lual and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3527

Lual and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3527 (1 October 2021)

Division:GENERAL DIVISION

File Number:          2020/8638

Re:Nhial Gach Lual

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle
Dr Huntly, Member

Date:1 October 2021

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent to refuse the Applicant citizenship by conferral on 22 December 2020, is affirmed.

...[SGD].....................................................................

Deputy President Boyle

CATCHWORDS

CITIZENSHIP – refusal of a delegate of the Minister to grant the Applicant’s application for conferral of Australian citizenship – delegate found that the Applicant was not of good character – Applicant is a citizen of Sudan who arrived in Australia as a 29-year-old – Tribunal not satisfied of the Applicant’s good character – reviewable decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – preamble, ss 21, 21(2)(c), 21(2)(h), 24, 24(1), 24(1A), 52(1)(b)

CASES

Fang and Minister for Immigration and Border Protection [2018] AATA 3686

Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082

Yuen Jung v Barber, 184 F 2d 491 (9^th Cir, 1950) (US)

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)  ch 13

Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021) CPI 15 Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Deputy President Boyle
Dr Huntly, Member

1 October 2021

THE APPLICATION

1. The Applicant seeks review of a decision of a delegate of the Respondent dated

   
   

   22 December 2020 to refuse to approve the Applicant becoming an Australian citizen. The delegate refused the Applicant becoming an Australian citizen by conferral on the basis that the delegate was not satisfied that the Applicant was of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).

   BACKGROUND

2. The following facts are drawn from the Respondent’s Revised Statement of Facts, Issues and Contentions dated 13 July 2021 (Respondent’s Revised SFIC).

3. The Applicant was born in 1970 and is a national of Sudan.[1]  He first arrived in Australia on 15 November 1999 as the holder of a Refugee (subclass 200) visa.  He was subsequently granted a Resident Return (subclass 155) visa on 31 July 2017.[2] 

   [1]T8/31.

   [2]T16/65.

4. Between 2003 and 2016, the Applicant was convicted of approximately 24 offences. While most of these convictions were the result of traffic/driving-related offending, the Applicant was also convicted of three counts of “obtaining a financial advantage” in 2014 (the Financial Offences). The Applicant was sentenced to three separate terms of imprisonment as a result of his offending.[3]

   [3]See para [‎42] below for further details of the Applicant’s offending history.

5. On 24 April 2008, the Applicant lodged his first application for Australian citizenship by conferral.[4] That application was refused on 9 January 2008 by a delegate of the Respondent on the basis that the Applicant did not “meet the good character requirements” under s 21(2)(h) of the Citizenship Act.[5]

   [4]R2/159–164.

   [5]R2/165–167.

6. On 19 May 2011, the Applicant lodged a second application for Australian citizenship by conferral.[6] That application was refused on 15 June 2011 on the basis that a delegate of the Respondent was not satisfied that the Applicant was of good character under s 21(2)(h) of the Citizenship Act. The delegate was also not satisfied that the Applicant met the residential requirements for citizenship under s 21(2)(c) of the Citizenship Act.[7] In reaching his decision, the delegate also noted that the Applicant had failed to declare his previous criminal offences in the application dated 19 May 2011.[8]

   [6]R2/168–176.

   [7]R2/177–180.

   [8]R2/180.

7. On 17 October 2011, the Applicant lodged a third application for Australian citizenship by conferral.[9] That application was refused on 27 April 2012 on the basis that a delegate of the Respondent was not satisfied that the Applicant was of good character at the time of the decision under s 21(2)(h) of the Citizenship Act.[10]

   [9]R2/185–193.

   [10]R2/194–201.

8. On 15 October 2018, the Applicant lodged a fourth application for citizenship by conferral.[11]

   [11]T4.

9. On 16 November 2020, the Department of Home Affairs invited the Applicant to comment on adverse information before the Department, which may have led to a decision to refuse the Applicant’s application.[12]

   [12]T12/50–52.

10. On 20 November 2020, the Applicant provided the Department with a statutory declaration and a character reference in response to the invitation to comment.[13]

    [13]T13/56–58; T14/59–61.

11. On 22 December 2020, a delegate of the Respondent refused the Applicant’s application for citizenship by conferral under s 24(1), as they were not satisfied that the Applicant was a person of good character at the time of the decision, as required by s 21(2)(h) of the Citizenship Act (the Reviewable Decision).[14]

    [14]T16/65–72.

12. On 30 December 2020, the Applicant lodged an application for review of the Reviewable Decision with the Administrative Appeals Tribunal,[15] pursuant to s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Tribunal for review of a decision to refuse to approve Australian citizenship under s 24 of the Citizenship Act.

    [15]T2/4.

    THE ISSUE FOR DETERMINATION

13. The issue for the Tribunal to determine is whether the Tribunal is satisfied, at the time of its decision, that the Applicant is of good character for the purposes of s 21(2)(h) of the Citizenship Act.[16]

    LEGAL FRAMEWORK

    [16]Respondent’s Revised SFIC para [12].

    Legislation

14. The Preamble to the Citizenship Act states that:

    The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    (a)by pledging loyalty to Australia and its people; and

    (b)by sharing their democratic beliefs; and

    (c)by respecting their rights and liberties; and

    (d)by upholding and obeying the laws of Australia.

15. Section 21 of the Citizenship Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(2)(h) provides that a person is eligible to become a citizen if the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application”.

16. Section 24(1) of the Citizenship Act provides:

    Minister’s decision

    (1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

    (Original emphasis.)

17. Section 24(1A) of the Citizenship Act provides:

    (1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

18. By operation of s 24(1A), the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application”, being the requirement of s 21(2)(h) referred to above.

    Policy

19. The Respondent’s Revised SFIC states that, “[o]n 27 November 2020, the previous citizenship policy was revoked and replaced by the Australian Citizenship Policy Statement” (27 November 2020 Policy Statement).[17] For completeness, it is noted that, while the 27 November 2020 Policy Statement bears the qualities of a relevant consideration, it lacks the legal force and effect of either prescribed criteria or a mandatory direction.  Likewise, the relationship between the 27 November 2020 Policy Statement and the previous citizenship policy, is unclear.  Somewhat ambiguously, the 27 November 2020 Policy Statement self identifies as having been “[r]eissued”.  One turns for clarity on this question to the stated “[p]urpose” of the 27 November 2020 Policy Statement for clarification, only to find that it is “to provide background in relation to the history of citizenship in Australia, and a general overview of the Citizenship Act”.  Nevertheless, following Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[18] the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.

    [17]T17/73–82.

    [18] (1979) 2 ALD 634, 645.

20. Relevantly, the 27 November 2020 Policy Statement mirrors the requirements of s 21(2)(h) of the Citizenship Act in providing that a person will be eligible to become an Australian citizen if at the time the decision is made, the Minister (or the Tribunal on review, standing in the shoes of the original decision-maker) is satisfied that the applicant is of good character. The legal principles applicable to Tribunal’s task when considering the operation of 21(2)(h) of the Citizenship Act were explained clearly by Senior Member Dr Evans-Bonner in VFWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] at [39]–[54]. 

    [19][2020] AATA 4849.

21. The Policy Statement is expressly related to the Revised Citizenship Procedural Instructions (CPIs). “CPI 15 – Assessing Good Character under the Citizenship Act” (CPI 15), as at 26 February 2021, is relevant in assessing whether the Applicant is of good character.[20]

    [20]Noting that the Respondent filed copies of CPI 15, as at 17 April 2019, which is no longer the applicable version of CPI 15: T18.

22. CPI 15 adopts the meaning of “good character” referred to by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving):[21]

    Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion. … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

    (Emphasis added.)

    [21][1996] FCA 663; (1996) 68 FCR 422, 431–432.

23. His Honour Davies J further observed in Irving:[22]

    The question whether a person is or is not of ‘good character’ is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact.

    [22]Irving 424.

24. The premise of CPI 15 is that an applicant of good character would, inter alia, respect and abide by the law in Australia, be honest, not practise deception or fraud in dealings with the Australian Government, not be violent and not cause harm to others through their conduct.[23]

    [23]CPI 15 para [4].

25. CPI 15 also prescribes that a decision-maker should consider whether an applicant has committed an offence that is “serious” in assessing whether they are of good character. After being convicted of an offence, a significant amount of time may have to pass before a decision-maker can be satisfied that an applicant is of good character.  A decision-maker should also consider whether an applicant’s offence was a “one off” occurrence or whether it was part of a pattern of demonstrated criminal behaviour.[24]  A pattern of criminal behaviour over an extended period, even of repeated minor offences, shows a disregard for the law and may support a finding that the applicant is not of good character.  The CPI also prescribes that a decision-maker should have regard to relevant mitigating factors including:[25]

    (a)Is the applicant of good character despite particular adverse information;

    (b)Length of time between the offending and conviction;

    (c)Applicant remorse and acceptance of responsibility;

    (d)Applicant age at the time of offending;

    (e)Were there any extenuating circumstances relating to the offence; and,

    (f)Affirmative evidence of good character at the time of the decision.

    [24]CPI 15 para [14].

    [25]CPI 15 para [14.1].

26. CPI 15 also provides a framework by which decision-makers are able to “weigh up” an assessment of character for the purposes of s 21(2)(h) of the Citizenship Act. Decision-makers should consider:[26]

    (a)whether a person of good character would have behaved the way the applicant did;

    (b)what evidence is available to demonstrate that the applicant has upheld and obeyed the law;

    (c)whether the applicant has behaved in accordance with Australia’s community standards; and

    (d)whether the applicant shares Australia’s democratic beliefs and respects its rights and liberties.

    (e)Has the Applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?

    [26]CPI 15 para [14.2].

27. In weighing up the evidence to assess an applicant’s character, a decision-maker should look holistically at an applicant’s behaviour over a lasting (or enduring) period of time.

    ANTECEDENTS

28. As discussed above, the Applicant has applied for Australian citizenship by conferral on a number of occasions.  The first such application was lodged on 24 April 2008.[27]  This was refused by a delegate of the Respondent on 9 January 2009. In refusing the Applicant’s application, the delegate considered the nature of his offending to that point and the Applicant’s failure to respond to adverse information put to him in writing.[28]  The Applicant’s second application for Australian citizenship by conferral was lodged on 19 May 2011.[29]  That application was also refused by a delegate of the Respondent on 15 June 2011 because his period of imprisonment meant that he did not meet the residency requirements and because the nature of his offending to that point satisfied the delegate that he did not meet the good character requirement for citizenship by conferral.[30]  The Applicant’s third application for Australian citizenship by conferral was lodged on 17 October 2011.[31]  This application was refused by a delegate of the Respondent on 27 April 2012 because the nature of the Applicant’s offending to that point (together with the form and content of the supporting character evidence provided in support of the application), satisfied the delegate that the Applicant did not meet the good character requirement for citizenship by conferral.[32]

    [27]R2/159–164.

    [28]R2/165–167.

    [29]R2/168–176.

    [30]R2/177–184.

    [31]R2/185–193.

    [32]R2/194–201.

29. On 15 October 2018, the Applicant lodged a fourth application for Australian citizenship by conferral.[33] Question 31 of this application, at (a), asked: “[h]ave you 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)?”. In response to this question, the applicant marked “[y]es”.  At the end of question 31, the form stated:

    If you answered ‘Yes’ to any of the questions at Question 31 you must give ALL relevant details.  If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention.

    (Original emphasis.)

    [33]T4/11–20.

30. The Applicant provided no information in response to this question.[34]

    [34]T4/18.

31. On 16 November 2020, the Applicant was invited to respond to adverse information.[35]  The relevant adverse information was a “National Police History Check report” (including the information contained in the “Applicant’s record of criminal offending” table below). The Applicant was also referred to the “good character” requirement under the Citizenship Act.

    [35]T12/50–55.

32. The Applicant responded to the invitation to comment on this adverse information in the form of a statutory declaration dated 20 November 2020.[36]  Relevantly, the Applicant declared as follows:

    [36]T13/57–58.

    Why do you believe you are of good character?

    It is true that in the past I have had issues with the law due to my irresponsible behaviour.  Since then, I reconsidered my actions and deviated from such activity and restored my life and live responsibly.  I stop taking alcohol which often influences my thoughts to behave differently.  Since then, I have lived in Australia for more than ten (10) years without having a problem.  This I believe demonstrates the kind of person I am and will always be.

    What were the circumstances that led to the offences?

    I realised that alcohol consumption, cultural barriers, association with wrong people and lack of knowledge about Australian legal system disadvantaged me and led to my vulnerability.  I now have a reasonable understanding of Australian laws and cultures, and engage with responsible people.  I am now living as a responsible, respectful and dignified person.

    When did this occur?

    The offences happened in 2003, 2004, 2005, 2007 and 2012.

    Did you make any attempts to inform the Department of these offences?

    I did not inform the Department of these offences.  This was because my knowledge of the law and the obligation to notify the department about it was limited then.  I regret that dearly because this does represent my character.

    (Underlining added.)

33. On 22 December 2020, a delegate of the Minister refused the Applicant’s application for Australian citizenship by conferral.[37] In refusing the Applicant’s application, the delegate considered: the Applicant’s record of offending; the fact that the Applicant continued to offend despite having being refused Australian citizenship previously; and the Applicant’s inconsistent sworn statements about his record of criminal offending, as per underlined sections at para [32] above.[38]

    [37]T16/65–72.

    [38]T16/69.

    THE HEARING

34. The application was heard on 30 July 2021 by Microsoft Teams videoconferencing. The Applicant appeared on his own behalf and the Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.

35. Documents referred to during the hearing were made accessible to all the parties via MS Teams.

36. The Tribunal admitted the following documents into evidence:

    (a)Unsigned and undated statement of the Applicant, received by the Tribunal on 17 May 2021 (Exhibit A1);

    (b)Section 37 T-documents, labelled T1–T18, comprising pages 1–107, received by the Tribunal on 27 January 2021 (Exhibit R1); and

    (c)Supplementary T-documents, comprising pages 1–201, received by the Tribunal on 7 May 2021 (Exhibit R2).

    THE PARTIES’ CONTENTIONS

    The Applicant

37. In his application for review, dated 30 December 2020, the Applicant stated as follows:[39]

    I have seen one mistake in the statement i made on the paper i shared that in the past 10 years i have lived without having trouble with the law in Australia, rather than stating the past 5 years. I also noted from the decision record that I did not provide all offenses in detail as they appeared on the decision record document. I want to take this opportunity to correct these information but not to argue my criminal records but to continue present myself to the relevant person that i have changed as i realized my mistakes from the past, and that i ask for review of my application for Australian citizenship.

    (Without alteration.)

    [39]T2/8.

1. In his undated written statement, the Applicant stated as follows:[40]

   In the past I have had issues adjusting to the Australian Law. Due to being irresponsible with bad behaviors. since then, I have come to reconsidered my actions and disengaged from such activity and now, I have restored my life. And live as a responsible man.I have stopped consuming alcohol. And distance myself from all negative social activities, which often influenced my thoughts to behave differently. Since then. I have lived in Australia for more than nine years without having a problem. This I believe demonstrate the kind of person I am and will always be.

   I came to realize that Alcohol consumption, and culture barriers of associating with the wrong people and lack of knowledge about the Australian legal system.

   I sincerely regret my past action which led me to those offences. And ceased from engaging in such behaviour. however’ now my knowledge of the Australian culture, legal system and my obligation to uphold its values through performing my duty as a citizen to the Australian society, is well in place. I now have a fulltime job, Since 2018. And I have completely stopped engaging in any sort of antisocial related issue, and invested in my family future to live in a positive life in this great country of Australia.

   This shows that I have fully transformed my life .Therefore I’m determine to live a life that can only reflect and represent Australian values and its culture of abiding with its laws.

   If I were to be granted the Australian citizenship by the commonwealth. I promise to always uphold the Australian values and norms to exercise duty of care, to fellow Australians. Respect the culture and I will defend Australia.

   I can assure you that my life has changed since I stopped the consumption of Alcohol and smoking cigarettes. I’m a currently a student, enrolled to do my Bachelor of psychology, in Macquarie University.

   (Without alteration.)

   [40]A1.

2. From the foregoing, it appears that the Applicant contends that he meets the “good character” requirement under s 21(2)(h) of the Citizenship Act by virtue of:

   (a)the passage of a significant amount of time since his offending behaviour;

   (b)his having “reformed”, in the sense adopted by Lee J in Irving; and

   (c)his having taken steps to rehabilitate or change his lifestyle and become a person of good character.

   The Respondent

3. The Respondent’s detailed contentions are recited in detail in the Respondent’s Revised SFIC at paras [23]–[43].  At the hearing, the Respondent’s contentions were summarised as follows:[41]

   … the applicant is not of good character and that he has, in the past, broken the Australian law on numerous occasion, he has failed to be honest with the department in disclosing all of his criminal history, he has practised deception and fraud in dealing with the Australian government and been convicted of that in relation to claiming Centrelink payments that he knew he was not eligible for.  He has also been found to be violent and has committed crimes of domestic violence against previous partners. 

   [41]Transcript/3.

4. Also of relevance to the present review, the Respondent’s Revised SFIC contends at para [33]:

   … that when the applicant’s offences are viewed holistically they demonstrate that the applicant consistently fails to abide by the law in Australia, is dishonest and cannot be found to be of good character. The applicant’s driving offences are particularly significant as they demonstrates a ‘theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle’: Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561 at [45].

   THE EVIDENCE

   Applicant’s record of offending

5. The Applicant’s record of criminal offending is presented in summarised form in the Respondent’s Revised SFIC at para [24] as follows:

Item	Offence date(s)	Outcome date	Offence	Sentence
1	19/03/2016	21/09/2016	No authority to drive – cancelled	Fine: $1,200 Disqualified from driving: 9 months
2	08/08/2014	23/09/2014	Exceed 0.08g alcohol per 100ml of blood	Fine: $600 Disqualified from driving: 10 months
3	16/03/2012	18/06/2012	Exceed 0.08g alcohol per 100ml of blood	Fine: $1,500 Disqualified from driving: 17 months
4	17/03/2009 to 30/03/2010	08/12/2014	Obtaining a financial advantage (3 counts)	Community service: 75 hours Intensive supervision order Reparation: $12,027.60
5	28/04/2007	17/07/2007	Refused to supply or provide false name and address	Fine: $200 Licence cancelled and disqualified for 3 months
			No motor drivers’ licence – under suspension	Imprisonment: 6 months and 1 day Licence cancelled and disqualified for 12 months
6	15/09/2006	13/10/2006	No motor drivers’ licence – under suspension	Imprisonment: 7 months Licence cancelled and disqualified for 12 months
			Refused to supply or provide false name and address	Fine: $100 Licence cancelled and disqualified for 3 months
			Breach of suspended imprisonment order	Imprisonment: 6 months and 2 days
7	02/02/2006	03/03/2006	No drivers’ licence (disqualified from holding or obtaining	Suspended imprisonment order: 6 months and 2 days (suspended for one year) Disqualified from driving: 9 months
			Give false personal details to police	Fine: $200
8	25/09/2005	03/10/2005	Obstruct public officer	Fine: $500
			Breach of bail conditions	Fine: $500
9	19/05/2005	28/06/2005	Unlicensed vehicle	Fine: $80
10	08/04/2004	28/05/2004	No motor drivers’ licence – under suspension	Intensive supervision order: 12 months Licence cancelled and disqualified for 9 months
11	16/09/2003	01/12/2003	No motor drivers’ licence – under suspension	Fine: $1,200 Licence cancelled and disqualified for 12 months
			Excess 0.08%	Fine: $1,200 Licence cancelled and disqualified for 12 months
12	09/07/2003	29/07/2003	No motor drivers’ licence – under suspension	Fine: $500 Licence cancelled and disqualified for 9 months
13	19/06/2003	25/06/2003	No motor drivers’ licence – under suspension	Fine: $500 Licence cancelled and disqualified for 9 months
			Refuse to supply or provide false name and address	Fine: $500 Licence cancelled and disqualified for 9 months
14	08/06/2003	12/06/2003	Driving under the influence	Fine: $800 Licence cancelled and disqualified for 8 months
			No motor drivers’ license – under fines suspension	Fine: $200 Licence cancelled and disqualified for 3 months

1. The financial offences referred to at Item 4 (Financial Offences) of the foregoing table relate to false income reporting to Centrelink in connection with 11 income support applications between March 2009 and May 2010.[42] 

   [42]See item 4 of Applicant’s offending history table; R2/53, 57, 61.

2. The offending referred to at Item 2 of the same table (“driving with +0.08g/100ml alcohol/blood”), occurred on 8 August 2014 while the Applicant was at liberty while on bail in relation to the Financial Offences.[43]

   [43]R2/3; Respondent’s Revised SFIC para [26].

3. While the majority of the Applicant’s record of criminal offending relates to driving without a valid driver’s licence and/or driving under the influence of alcohol, there are specific aspects of his offending history that implicate other relevant considerations applicable to his citizenship application.  Firstly, the Applicant’s 11 driving-related offences span the period 2003 to 2016.  Second, the Applicant continued his offending in this respect while subject to disqualification and suspension orders of the court in 2003, 2006 and 2007.  Third, the Applicant has either provided false personal identifiers to police, or refused to give such information, on at least four occasions. Indeed, on 28 April 2007 the Applicant gave police false personal identifiers on being questioned about his driving without a license (while on parole from previous offending of a similar nature).[44]  On this occasion his teenaged daughter was in the vehicle and the Applicant prevailed on the child to corroborate his false personal identifiers provided to the police.[45]

   [44]See item 5 of Applicant’s offending history table.

   [45]R2/82.

4. The Respondent’s Revised SFIC at para [30] also refers to a police complaint on 17 March 2005 by the Applicant’s former domestic partner.[46]  As a result of this complaint, the Applicant was arrested and charged with “common assault” and “unlawful and indecent assault”.[47]  The Applicant denied these charges and was released on bail.  Nevertheless, on 15 August 2005 the Applicant’s bail was amended by recording the Applicant’s undertaking not to contact or approach the complainant prior to the trial.[48]  On 25 September 2005, police were called to the complainant’s home after the Applicant attended that address in breach of this bail undertaking and attempted to contact the complainant.  The Applicant subsequently refused to comply with police directions to leave the premises and became aggressive.  He was then restrained, arrested, and charged with “breach of bail conditions” and “obstruct[ing] public officer”.[49]  As per Item 8 of the foregoing table, convictions are recorded against the Applicant on both of these charges.[50]

   [46]R2/75–78.

   [47]R2/94–100.

   [48]R2/103.

   [49]R2/102–104.

   [50]See item 8 of Applicant’s offending history table; T12/54–55; R2/72.

5. The Respondent’s revised SFIC at para [29] refers to a further domestic violence incident, reported to police on 2 February 2006 by the Applicant’s former spouse.[51]  When the Applicant was subsequently located by police later that day, he was found to be driving while disqualified and provided police with false personal identifiers at the first instance.  The Applicant later admitted to giving the false personal identifiers but made no admissions relating to the charges of domestic violence alleged from earlier on that day.  The Applicant was charged with both driving offences (“driving while disqualified” and “giving false personal details”) and a domestic violence offence (“threaten to kill, endanger or harm any person”).  As per Item 7 of the foregoing table, the Applicant subsequently pled guilty to the driving and false personal details charges and was convicted on 3 March 2006.[52] The relevant prosecution notice states that the Applicant subsequently entered a guilty plea for the charge of “threaten to kill, endanger or harm any person” in the Joondalup Magistrates Court on 19 May 2006 and that the matter was committed to the District Court for disposition.[53]  The same prosecution notices indicate that bail conditions were set for the Applicant on 3 February 2006 in connection with all three charges, restraining the Applicant’s contact with his former spouse.

   [51]R2/75–78.

   [52]See item 7 of Applicant’s offending history table; R2/12–13, 16–17.

   [53]R2/14–15.

   Applicant’s dealings with the Department

6. The Respondent contends that the Applicant’s unsatisfactory communications with the Department are not consistent with the good character requirement under s 21(2)(h) of the Citizenship Act.[54]  Specifically, the Applicant’s repeated provision of incomplete or incorrect information with regard to his history of offending in his citizenship applications lacks candour and is not consistent with an assertion of good character.

   [54]Respondent’s Revised SFIC at paras [37]–[43].

7. In making this contention, the Respondent’s Revised SFIC at [38]–[41] relies on the Applicant’s responses over the course of his four citizenship applications to the following question: “[h]ave you 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)?” (History of Offending Question).

   (a)In his first citizenship application, lodged on 24 April 2008, the Applicant answered “Yes” to the History of Offending Question.  He also stated “(1) 2007 I was caught by driver without licence and then I went to court and the outcome was fine. (2) I was caught again without licence, then I went to prison for 3 months”.[55]  The Respondent contends that this was an incomplete and misleading response, given the Applicant’s considerable offending history by the time of the application.[56]

   (b)In his second citizenship application, lodged on 19 May 2011, the Applicant answered “No” to the history of offending question.[57]  The Respondent contends that this response was plainly false and would have been known, or should have been known, to be false by the Applicant at the time of this application.

   (c)In his third citizenship application, lodged on 17 October 2011, the Applicant answered “Yes” to the History of Offending Question.  He also stated “I have only tarffic [sic] criminal record that my record”.[58]  The Respondent contends that, once again, this was an incomplete and misleading response, given the Applicant’s considerable offending history by the time of the application.[59]

   (d)In his present (fourth) citizenship application, lodged on 15 October 2018, the Applicant answered “Yes” to the History of Offending Question, but did not provide any further detail.  The Respondent contends that this was merely the latest in a series of incomplete and misleading responses to the same question, given the Applicant’s prior offending history by the time of the application.[60]

   [55]R2/161, 163; see also Respondent’s Revised SFIC para [38].

   [56]See items 5–14 of Applicant’s offending history table; see also discussion at paras [46]–[47] above.

   [57]R2/174; see also Respondent’s Revised SFIC para [39].

   [58]R2/191; see also Respondent’s Revised SFIC para [40].

   [59]See items 5–14 of Applicant’s offending history table at para [42] above; see also discussion at paras [46]–[47] above.

   [60]See discussion at paras [43]–[47] above.

8. The Respondent’s Revised SFIC at para [43] contends that truthfulness in the completion of official documents (including citizenship applications) should be regarded as “an absolute requirement”.[61]  Specific reference is also made by the Respondent to the observation of Senior Member Puplick in Re Nguyen and Minister for Immigration and Border Protection[62] that “[c]itizenship cannot be awarded on the basis of false statements”.

   [61]Citing Fang and Minister for Immigration and Border Protection [2018] AATA 3686 at [97].

   [62][2018] AATA 1082 at [83].

   Interim findings on the evidence

9. By any assessment, the Applicant’s offending history is prolonged, varied and, taken holistically, significant.  The Applicant has: repeatedly committed significant driving offences, placing the well-being of others in jeopardy; obstructed public officers; committed significant acts of domestic violence; breached conditions of bail and restraining orders; induced his minor child to make a false statement to police; defrauded the Commonwealth; and made false and misleading statements to numerous public authorities.  It is not sufficient for the Applicant to claim that this record of offending is purely historical, given that a number of his false and misleading statements were made as recently as 2020 and 2021 in the context of the present review.

   CONSIDERATION

10. It is convenient, for present purposes, to consider the contentions of the parties by reference to the summary of the Applicant’s principle contentions as stated above, namely:

    (a)That a significant amount of time has passed since the Applicant’s offending behaviour;

    (b)That the applicant has “reformed”, in the sense adopted by Lee J in Irving; and,

    (c)The steps the Applicant has taken to rehabilitate or change his lifestyle and become a person of good character.

    Effluxion of time since the offending behaviour

11. This contention by the Applicant invites the Tribunal to consider both the nature of a given applicant’s offending and, in cases such as the present application where the offending behaviour extends beyond a single incident, the passage of time since the offending behaviour has ceased.  The mere passage of time, in and of itself, is an equivocal factor.  For example, in the case of a person who has been denied the opportunity to offend due to incarceration, incapacitation or absence from the jurisdiction, the length of time since the last offence may be a poor proxy for the restoration of their good character.  How an individual engages subjectively with their own history of offending and how they engage with those around them, viewed objectively, over time are both relevant to an assessment of a person’s character.

12. Subjectively, in his 15 October 2018 application for citizenship by conferral, the Applicant acknowledged by means of a checkbox response, that he had “been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court”.  However, the Applicant then failed to provide details of those offences as required in the same form.  When, on 16 November 2020 the Applicant was later invited by the delegate to explain how his record of offending was consistent with the requirement for citizenship applicants to demonstrate good character, as noted at para [32] above, the Applicant declared in a statutory declaration dated 20 November 2020[63] that he has “lived in Australia for more than ten (10) years without having a problem”.  The Applicant also stated that his offending occurred “in 2003, 2004, 2005, 2007 and 2012”.  The Applicant further declared in this statement that:

    I did not inform the Department of these offences.  This was because my knowledge of the law and the obligation to notify the department about it was limited then.  I regret that dearly because this does not represent my character.

    [63]T13/57.

13. Relevantly, in the same statement, the Applicant also declared that:

    I realised that alcohol consumption, cultural barriers, association with the wrong people and lack of knowledge about Australian legal system disadvantaged me and led to my vulnerability. …

    First I regret my past actions which led to these offences and ceased from engaging in such behaviour.

14. In his online application for review, lodged with the Tribunal on 30 December 2020, the Applicant stated as follows:[64]

    I have seen one mistake in the statement i made on the paper i shared that in the past 10 years i have lived without having trouble with the law in Australia, rather than stating the past 5 years. I also noted from the decision record that I did not provide all offenses in detail as they appeared on the decision record document. I want to take this opportunity to correct these information but not to argue my criminal records but to continue present myself to the relevant person that i have changed as i realized my mistakes from the past, and that i ask for review of my application for Australian citizenship.

    [64]T2/8.

15. Despite this clarification by the Applicant, he later submitted an unsigned statement on 17 May 2021.[65]  While that statement also included assertions capable of being interpreted as expressing remorse and contrition, it also stated that:

    I have lived in Australia for more than nine years without having a problem. This I believe demonstrate the kind of person I am and always will be.

    [65]A1.

16. The Applicant accepted that this statement was incorrect when it was put to him under examination at the hearing on 30 July 2021.[66]

    [66]Transcript/10.

17. Thus, subjectively, the Applicant appears to lack personal clarity, or insight, or both regarding the passage of time since his recorded offending behaviour. Such conduct on the part of the Applicant does not demonstrate good character as envisaged by the “good character” requirement under s 21(2)(h) of the Citizenship Act.

1. An objective assessment of the Applicant’s engagement with his history of offending and how he has engaged with others over time concerning that history of offending, requires consideration of external evidence towards the Applicant’s offending history, such as that provided by character references.  In an email to the Department dated 29 November 2018, the Applicant provided a “Letter of Recommendation” from one Kir Riek Majiok (President of the Eastern Jikany Nuer Council of Australia Inc).[67]  This letter of recommendation was dated 21 November 2016 and stated as follows:

   To Whom It May Concern:

   This is a letter of recommendation for Mr Nhial Gach Lual of 28 Pirianda Way, Aveley WA 6069. I have known Mr Nhial Lual since 1999 on his arrival with his family to Perth Western Australia where he becomes a member of Eastern Jikany Nuer Council of Australia.

   When Mr Nhial Lual obtained his Driver’s Licence from Western Australia Public Authority, he sometimes got caught drink driving thinking that having a Driver’s Licence was ok even if he drinks driving. Therefore, I think for Mr Nhial Lual’s case being in a new Country from refugee camp it contributed to his problems.

   Mr Nhial Lual has now corrected himself and holds a great responsibility by being a Eastern Jikany Nuer Council of Australia’s Youth advisor. He work well with strong understanding leadership with all youth team leaders and apply his past experience to advise Eastern Jikany Nuer youth for the right direction.

   Therefore, in this regard, I would not hesitate to recommend Mr Nhial Lual for his positive behaviour in our community at large.

   (Without alteration.)

   [67]T8/27–28.

2. Even at the time it was written, in late 2016, this letter of recommendation significantly misstates the Applicant’s record of offending as outlined above.  Further, this misstatement suggests that Kir Riek Majiok was not fully aware of the nature or extent of the Applicant’s actual history of offending.  In addition to reducing any weight that might be placed on such a character reference, it also raises the inference that the Applicant was not candid with its author about his record of offending.  This suggests, objectively, that the Applicant may have misled the author of the reference when obtaining that person’s recommendation for the purposes of his application for citizenship.  Such conduct on the part of the Applicant in his engagement with those around him, regarding his history of offending, does not demonstrate good character as envisaged by the “good character” requirement at s 21(2)(h) of the Citizenship Act.

3. Similarly, in response to the 16 November 2020 invitation by the delegate to explain how his record of offending was consistent with the requirement for citizenship applicants to demonstrate good character, the Applicant provided a “Character Reference Letter”, dated 18 November 2020, from one Peter Pal (Chairperson of Union of Great Upper Nile States Inc).[68]  This character reference stated as follows:

   I write to you as a referee to Nhial Gach Lual who applied for Australian Citizenship by conferral … that I have known him since 2016 through his active role in the community.  His work in the community amount to:

   ·Helping the newly arrived family to resettle in the community especially those with limited English on a range of issues.

   ·Supporting family and individuals to access relevant services.

   ·Organising interpreters to facilitate understanding between people with limited English and professional.

   This approach represents the principal objectives of our organization's to provide holistic social services and bridging the cultural and systematic barriers between South Sudanese Australian and service providers through advocacy/Education.  As a result, I had the opportunity to know him personally and his motivation to help others integrated into Australian community. it is true though that Nhial have had issues with alcohol related problems which affected how he engaged with people then. Obviously such behavior, perhaps was triggered by acculturation related issues which appeared no longer considered as impediments now, In fact, he has moved on and now has a job and provides for his family, and actively participates in the community activities.

   Such changes I witnessed, I am confident that he has considered the impact of the past mistakes and now focus on capitalizing on his life, Therefore, should he get Australian citizenship, I am sure he will represent Australia's image well through respecting and advancing its values, and participate fully in the building of this nation.

   [68]T14/60–61.

4. As with the recommendation letter mentioned at para [60] above, this character reference does not refer to the Applicant’s record of offending.  The author of the reference has no personal knowledge of the Applicant before 2016 and refers only to: “Nhial have had issues with alcohol related problems which affected how he engaged with people”. At the very least, this suggests that Peter Pal was not fully aware of the nature or extent of the Applicant’s actual history of offending when he was asked to provide the character reference.  In addition to reducing any weight that might be placed on such a character reference, it raises the same inference as mentioned above—that the Applicant was not candid with its author about his actual record of offending.  This suggests, objectively, that the Applicant may have misled the author of the reference when obtaining that person’s character reference for the purposes of his application for citizenship.  Such conduct on the part of the Applicant in his engagement with those around him, regarding his history of offending does not demonstrate good character as envisaged by the “good character” requirement under s 21(2)(h) of the Citizenship Act.

5. In terms of his engagement with the Department over time, the Respondent’s contentions (as per para [‎49] above), to the effect that the Applicant has repeatedly failed to engage in a straightforward or factually accurate manner regarding his history of offending, are well made. Further (as per paras [‎56] and [‎57] above), when attempting to correct a prior misstatement regarding the passage of time since his most recent criminal offending, the Applicant again misstated that period of time in his communications with the Tribunal.  Objectively, this is not the sort of straightforward and candid engagement with those around him regarding his history of offending envisaged by the “good character” requirement at s 21(2)(h) of the Citizenship Act. Significantly, the Applicant’s conduct in this respect was as recent as 17 May 2021.

6. Viewed both subjectively and objectively, therefore, the Applicant has not engaged with those around him regarding his history of offending in a manner that is consistent with the “good character” requirement under s 21(2)(h) of the Citizenship Act. Further, this character trait of the Applicant appears to have an “enduring quality” in the sense employed by Lee J in Irving.[69]

   Having a “reformed” character

   [69]Irving, 431.

7. Neither the Citizenship Act nor the CPIs express a legislative intention to punish an Applicant for past conduct. Rather, the clear intention is that any record of transgressions by an Applicant should be squarely addressed before being weighed rationally, for example, by giving due consideration of any relevant mitigating or aggravating circumstances, including the actual or potential development of good character, or put another way, rehabilitation or reform.[70]  Any such rational assessment must, necessarily, be slow to form the view that a given applicant is beyond redemption or change.  The legislative intent of the “good character” requirement under s 21(2)(h) of the Citizenship Act was not to enshrine a legislative version of “predestination or eternal damnation”.[71] CPI 15 directs decision-makers to assess an Applicant’s claim to meet the “good character” requirement at s 21(2)(h) of the Citizenship Act holistically.[72]  In doing so, as discussed at para ‎26] above, the decision-maker is further directed to address certain non-exhaustive questions in order to encourage a more uniform approach to the assessment of good character.[73]

   [70]As per para [‎255] above, in considering whether an applicant is of good character despite particular adverse information, CPI 15 directs the decision-maker to consider:

   (a)the length of time between offending and conviction;

   (b)the applicant’s remorse and acceptance of responsibility;

   (c)the applicant’s age at the time of offending;

   (d)any extenuating circumstances related to the offence; and

   (e)affirmative evidence of good character at the time of the decision.

   [71]An evocative but illustrative phrase, coined by Circuit Judge Pope in Yuen Jung v Barber, 184 F 2d 491 (9^th Cir, 1950).

   [72]CPI 15 at [14.2].

   [73]CPI 15 at [14.2].

8. As identified above, the Applicant’s contention is that he has “reformed” in the sense referred to in the CPIs.  Relevantly, when specifically addressing the question of character reformation and rehabilitation, CPI 15 directs a decision-maker to consider:[74]

   (a)whether the applicant has accepted responsibility and shown remorse for their conduct;

   (b)whether the applicant has behaved in accordance with Australia's community standards, such as by obeying the law; and

   (c)whether the applicant has taken steps to rehabilitate or change their lifestyle and become a person of good character.

   [74]At [14].

   Contrition and remorse

9. Any consideration of an applicant’s expression of contrition or remorse must, as a threshold question, consider whether the applicant has admitted or acknowledged their history of offending.  Without a frank and candid accounting of their history of offending by an applicant in the first instance, there can be no certainty regarding their submissions on contrition or remorse.

10. As discussed at para [54] above, the Applicant acknowledged (by means of a check box response) that he had “been convicted of, or found guilty of , ANY offences overseas or in Australia (include all traffic offences which went to court)” in his 15 October 2018 application for citizenship by conferral.  However, he failed to provide details of those offences as was required in the same form.  As discussed at para [‎49] above, this was the Applicant’s fourth such citizenship application and, as already noted, none of his responses to this question in any of his citizenship applications (including this most recent application) were satisfactory.

11. The Applicant has subsequently addressed his lack of candid disclosure about his record of criminal offending on a number of occasions.  These were as follows:

    (a)By statutory declaration made out on 20 November 2021, after being questioned directly about the failure to disclose, the Applicant stated:[75]

    [75]See para [32] above.

    I did not inform the Department of these offences.  This was because my knowledge of the law and the obligation to notify the department about it was limited then.  I regret that dearly because this does represent my character.

    (b)In his application for review, lodged with the Tribunal on 30 December 2020, the Applicant stated:[76]

    [76]See para [37] above.

    I also noted from the decision record that I did not provide all offenses in detail as they appeared on the decision record document. I want to take this opportunity to correct these information but not to argue my criminal records but to continue present myself to the relevant person that i have changed as i realized my mistakes from the past, and that i ask for review of my application for Australian citizenship.

    (c)In an undated written submission to the Tribunal lodged on 17 May 2021, the Applicant stated:[77]

    In the past I have had issues adjusting to the Australian Law. Due to being irresponsible with bad behaviors.  …

    I came to realize that Alcohol consumption, and culture barriers of associating with the wrong people and lack of knowledge about the Australian legal system.

    … now my knowledge of the Australian culture, legal system and my obligation to uphold its values through performing my duty as a citizen to the Australian society, is well in place.

    Nothing in these comments addresses the Applicant’s lack of candour about his record of offending in the application for citizenship.  However, the Applicant once again referred to his “lack of knowledge” and “cultural barriers”.

    [77]See para [38] above.

12. Accordingly, it is apparent that the Applicant failed to provide a candid account of his offending history when asked to do so in his fourth application for citizenship, which was lodged with the Department on 15 October 2015.  The Applicant contends that he failed to provide a candid account of his history criminal offending because his “knowledge of the law and the obligation to notify the department about it was limited then”.[78]

    [78]T13/57.

13. With regard to the Applicant’s previous responses to the History of Offending Question discussed at para ‎49] above, the Respondent’s Revised SFIC at [42] contends as follows:

    Given that the applicant largely plead guilty to his offences and the specific question posed, the applicant would, and should, have known that his negative answer in the second citizenship application was untrue. Furthermore, in light of the delegate’s reasons for refusing the previous citizenship applications, the applicant would also have been well aware of the requirement to provide all relevant details of his offences however has consistently failed to do so.

14. The Applicant’s history of engagement with the Department since prior to his arrival in Australia in 1999, together with his participation in four distinct citizenship applications since April 2008, suggests that he has, or ought reasonably be regarded to have, acquired an adequate working knowledge of the law and notification requirements relating to an application for Australian citizenship. The Applicant’s subsequent and repeated contention to the Department and before the Tribunal that he failed to meet these requirements in the fourth application because his “knowledge of the law and the obligation to notify the department about it was limited then”[79] lacks persuasive force.  In this important respect, it is the Respondent’s contention that should be preferred.

    [79]T13/57.

15. The objective question then becomes, “[w]ould a person of good character behave the way the [A]pplicant did?”.[80]  Clearly, such a person would answer the question, as asked, at the first reasonable opportunity, with frankness and candour and presumably with some signal amounting to contrition or regret.  In the present case, the evidence shows that the Applicant did not answer the question in a candid and detailed manner at the first reasonable opportunity.  Then, when responding to adverse information in the form of his “National Police History Check Report”,[81] the Applicant offered an explanation amounting to a partial justification together with the barest expression of regret.  To the extent that the Applicant explained his lack of candour by reference to a lack of knowledge of the law, this is clearly disingenuous, given his extensive personal experience of the citizenship application process. 

    [80]CPI 15 at [14.2].

    [81]T12/50–55.

16. Viewed objectively, therefore, the Applicant’s conduct fails what must be regarded as a threshold assessment relating to contrition and regret, namely that, at the first reasonable opportunity, an applicant of reformed character would give both an account of his history of offending in a frank and candid manner together with an unconditional expression of contrition and regret.  Such conduct is not consistent with the “good character” requirement under s 21(2)(h) of the Citizenship Act. Further, this conduct by the Applicant appears to be reflective of a character trait having an “enduring quality” in the sense employed by Lee J in Irving.[82]

    [82]Irving at 431.

    Rehabilitation and lifestyle changes illustrative of good character.

17. CPI 15 also directs decision-makers to assess an applicant’s claim to meet the “good character” requirement under s 21(2)(h) of the Citizenship Act by reference to any steps an applicant may have taken to rehabilitate or change their lifestyle and become a person of good character.[83]

    [83]CPI 15 at [14.2].

18. As indicated above, the “Character Reference Letter” dated 18 November 2020, authored by Peter Pal,[84] relevantly stated as follows:

    [84]T14/60–61.

    I write to you as a referee to Nhial Gach Lual who applied for Australian Citizenship by conferral … that I have known him since 2016 through his active role in the community.  His work in the community amount to:

    ·Helping the newly arrived family to resettle in the community especially those with limited English on a range of issues.

    ·Supporting family and individuals to access relevant services.

    ·Organising interpreters to facilitate understanding between people with limited English and professional.

    …

    In fact, he has moved on and now has a job and provides for his family, and actively participates in the community activities.

    Such changes I witnessed, I am confident that he has considered the impact of the past mistakes and now focus on capitalizing on his life, Therefore, should he get Australian citizenship, I am sure he will represent Australia's image well through respecting and advancing its values, and participate fully in the building of this nation.

19. This is some evidence in support of the Applicant’s claim to have embraced rehabilitation and lifestyle changes illustrative of good character since 2016.

20. As discussed above, in an invitation to comment on adverse information issued by the Department, the Applicant also relevantly declared in the form of a statutory declaration dated 20 November 2020 as follows:[85]

    Since then, I reconsidered my actions and deviated from such activity and restored my life and live responsibly.  I stop taking alcohol which often influences my thoughts to behave differently.  …

    I realised that alcohol consumption, cultural barriers, association with wrong people and lack of knowledge about Australian legal system disadvantaged me and led to my vulnerability.  I now have a reasonable understanding of Australian laws and cultures, and engage with responsible people.  I am now living as a responsible, respectful and dignified person.

    [85]T13/57–58.

21. The Applicant’s undated written statement, received by the Registry online portal on 17 May 2021, further stated as follows:[86]

    In the past I have had issues adjusting to the Australian Law. Due to being irresponsible with bad behaviors. since then, I have come to reconsidered my actions and disengaged from such activity and now, I have restored my life. And live as a responsible man. I have stopped consuming alcohol. And distance myself from all negative social activities, which often influenced my thoughts to behave differently. …

    I came to realize that Alcohol consumption, and culture barriers of associating with the wrong people and lack of knowledge about the Australian legal system.

    I sincerely regret my past action which led me to those offences. And ceased from engaging in such behaviour. however’ now my knowledge of the Australian culture, legal system and my obligation to uphold its values through performing my duty as a citizen to the Australian society, is well in place. I now have a fulltime job, Since 2018. And I have completely stopped engaging in any sort of antisocial related issue, and invested in my family future to live in a positive life in this great country of Australia.

    This shows that I have fully transformed my life . Therefore I'm determine to live a life that can only reflect and represent Australian values and its culture of abiding with its laws.  …

    I can assure you that my life has changed since I stopped the consumption of Alcohol and smoking cigarettes. I'm a currently a student, enrolled to do my Bachelor of psychology, in Macquarie University.

    [86]          A1.

1. At the hearing, the Applicant further stated:[87]

   I’m not like the man like before, things were changed completely.  I were just working like a full-time (indistinct) from 2018 until now.  I’m working and I’m back to school so life would be changing.

   And I stop all those alcohol consumptions which lead me to hold, get all those offence.  Because when I came in this country, I could not even drink alcohol.  So, I think the Minister of migration was absolutely right.  I do not have an objection about what he said to the court, they are all correct.  The only thing that I was going to asking for Australian law authority, thing would change from me.  My life was - I just now dealing with my life to be a better man as I do now.  I think myself I was not like before and I were not involved in our community activity and I did come now like a support worker and advise the young people who tries to do the bad thing.  And when I do that by then, I took example from me and I say, look, this is what I were going through.

   If you go in that direction, your life will not be good.  So, that thing I was doing it.  Now, my final questions.  If I were to be granted by the Australian citizenship by the Commonwealth, I (indistinct) to always uphold the Australian values and (indistinct) to exercise duty of care to my fellow Australian citizen.  So, my life been changed and I (indistinct) what I was did, done in the past it was wrong, it was not acceptable, but it was due to because of the knowledge, legal system in Australia, I didn’t even know but now I know.  Because now I’m just doing psychology in school. 

   [87]Transcript/7.

2. Weighed against this evidence are the submissions of the Respondent, referred to above, about what might be regarded as the egregious nature of the Applicant’s history of offending and the period of time over which that offending occurred.  There is also the fact of the Applicant’s acknowledged misstatements relating to his offending history referred to above, including in the course of this review.  In summary at the hearing, the Respondent’s representative made the following submission:[88]

   … there is nothing before the tribunal other than a lack of offending in the records since 2016 which shows the applicant to be a person of good character.  There is certainly no positive evidence that he has been doing any community work or charity work, for example, as you may see in some of these cases, or that he has undertaken any rehabilitation or counselling in order for him to understand the difference between right and wrong and the gravity of his previous offending to ensure that he doesn’t offend again

   [88]Transcript/40.

3. On balance, the submissions of the Respondent are more persuasive that those of the Applicant when weighing the Applicant’s efforts in embracing rehabilitation and changes to his lifestyle to become a person of good character.

   CONCLUSION

4. Consideration has been given to the nature and extent of the Applicant’s offending history at para [‎51] above.  Regard has also been given to the Applicant’s lack of personal insight into the nature and extent of his offending history identified at para ‎59] above together with his enduring failure to demonstrate adequate contrition and remorse for that record of offending identified at para [‎75].  It is also accepted that Applicant does not appear to have participated in any program of counselling relevant to his record of offending.  As the Respondent has noted, there is little detailed evidence supporting the Applicant’s claimed rehabilitation and lifestyle changes illustrative of good character.  Each of these considerations are factors deserving of careful consideration by any decision-maker charged with applying the “good character” requirement under s 21(2)(h) of the Citizenship Act. For these reasons, viewed holistically and objectively, the Tribunal is not satisfied that the enduring quality of the Applicant’s character currently satisfies the requirement of s 21(2)(h) of the Citizenship Act.

5. The Applicant appears genuine in his desire to live as a person of good character in the future.  He also appears to have found new purpose and a community of interest within which to make positive contributions and develop relationships of reciprocal advantage.  However, given the countervailing concerns identified above, the Tribunal is not satisfied that the Applicant meets the “good character” requirement at s 21(2)(h) of the Citizenship Act at this time.

   DECISION

6. The Reviewable Decision, being the decision of a delegate of the Respondent to refuse the Applicant citizenship by conferral on 22 December 2020, is affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................

Associate

Dated: 1 October 2021

Date of hearing:	30 July 2021
Applicant:	In person
Solicitors for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers