Lynch and Minister for Home Affairs (Citizenship)

[2020] AATA 920

Lynch and Minister for Home Affairs (Citizenship) [2020] AATA 920 (22 April 2020)

Division:GENERAL DIVISION

File Number:          2019/2422

Re:Kenneth Lynch

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:22 April 2020

Place:Perth

The Reviewable Decision dated 11 April 2019 is affirmed.

....................[sgd].....................................

Senior Member Dr M Evans-Bonner

CATCHWORDS
CITIZENSHIP – good character – considerations to be taken into account when assessing character – cultivation, sale and supply of cannabis – Applicant declared a drug trafficker – Applicant over the age of 60 years – Applicant a Vietnam veteran – whether sufficient evidence of good character – character references that do not mention offending – reviewable decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1)

Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(4), 21(4)(f), 24(1), 24(1A), 21(2)(h), 24, 52(1)(b)

CASES

Assafiri and Minister for Immigration and Border Protection [2014] AATA 35

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Fenn vMinister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432

Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132

Lobo and Department of Immigration and Citizenship [2010] AATA 583

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

Shi v Migration Agents Registration Authority (2008) 248 ALR 390

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

22 April 2020

BACKGROUND

1. Mr Lynch is a citizen of the United Kingdom who wants to become an Australian citizen. He is now of pensioner age, having first arrived in Australia as a teenager in 1963
   (PT5, page 13).

2. On 23 February 2017, the Applicant lodged an application for citizenship by conferral
   (T5, page 11). In his application he disclosed that he had criminal convictions and that he had been in prison (PT5, page 21).

3. The Applicant has 33 convictions. He was convicted of 13 driving and traffic related offences between 1976 and 1991; and 11 general criminal convictions of a minor nature between 1967 and 1991 (Annexure A to Exhibit R3).

4. The Applicant was also convicted of nine drug (cannabis) related offences between 1997 and 2011. These were (Annexure A to Exhibit R3):

   (a)Three convictions on 24 April 1997. These were for: sell or supply cannabis; possession of a quantity of cannabis with intent to sell or supply; and cultivating cannabis with intent to sell or supply. The Applicant was sentenced to a total term of two years imprisonment for these offences.

   (b)Two convictions on 10 June 2002. These were for cultivate a prohibited plant with intent and possess a prohibited drug. He was sentenced to 12 months imprisonment suspended for 18 months, and four months imprisonment suspended for four months for these offences.

   (c)Convictions on 27 July 2011 for three counts of cultivating a prohibited plant with intent to sell or supply (for which he received concurrent terms of imprisonment of nine months for each count), and one count of possession of a prohibited drug (cannabis) for which the Applicant was sentenced to a one month concurrent term of imprisonment. The Applicant was also declared to be a drug trafficker.

5. On 8 February 2018 a Citizenship Case Officer wrote to the Applicant to invite him to comment on a report of his criminal history and the factors relevant to the good character requirement (PT6, page 38).

6. In response, the Applicant provided a statutory declaration which addressed his convictions (T10, pages 51-57). He also provided statutory declarations from his general practitioner, chiropractor and physiotherapist (medical practitioners). The Applicant stated at the hearing that his physiotherapist was also the convenor of a Vietnam Veteran’s Group he attends twice weekly (see transcript, page 16). These practitioners state in their references that they have regularly treated the Applicant over the past seven to 10 years (PT10, pages 58-62).

7. In a letter dated 11 April 2019 a delegate of the Respondent decided that the Applicant’s application for Australian citizenship by conferral should be refused on the basis that she was not satisfied that the Applicant was presently a person of good character
   (T11, pages 63-73). This is the Reviewable Decision currently before the Tribunal.

8. On 5 May 2019, the Applicant made an application to the General Division of the Administrative Appeals Tribunal (Tribunal) seeking a review of the Reviewable Decision (T2, pages 3-8).

   ISSUE

9. The issue that requires determination by the Tribunal is whether the Tribunal is satisfied that the Applicant is of “good character” under s 21(4)(f) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).

   JURISDICTION

10. The jurisdiction of the Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:

    (1)  An enactment may provide that applications may be made to the Tribunal:

    (a)   for review of decisions made in the exercise of powers conferred by that enactment;
    or

    (b)  for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

11. In summary, the Tribunal does not have an inherent jurisdiction to review certain types of decisions, but rather s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other enactments, which grant it jurisdiction to review certain decisions made under those enactments.

12. Subsection 21(1) of the Citizenship Act provides that, “A person may make an application to the Minister to become an Australian citizen”.

13. The Minister must then make a decision under s 24 of the Citizenship Act, which provides:

    (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.

    (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).

14. Section 52(1)(b) of the Citizenship Act provides that:

    (1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

    …

    (b)  a decision under section 24 to refuse to approve a person becoming an Australian citizen;…

15. The Reviewable Decision was made under s 24 of the Citizenship Act and consequently, the Tribunal has jurisdiction to review it.

    MATERIAL BEFORE THE TRIBUNAL

16. The hearing of this application was on 11 March 2020. The Applicant was
    self-represented. The Respondent was represented by Mr Burgess. Both parties appeared by telephone.

17. The Applicant gave evidence at the hearing in person, and was cross-examined. He did not call any witnesses.

18. The Tribunal admitted the following material into evidence at the hearing:

    (a)Statement from the Applicant’s sister dated 23 September 2019 (Exhibit A1):

    (b)Section 37 documents (T-documents), numbered T1 to T12 comprising 86 pages (Exhibit R1);

    (c)Respondent’s Tender Bundle (volume 1 and 2) comprising 942 pages (Exhibit R2); and

    (d)Respondent’s Statement of Facts, Issues and Contentions dated 3 December 2019, with Annexure A - the Applicant’s Western Australian History for Court – Criminal and Traffic (Exhibit R3).

19. The Tribunal has considered all of the material and evidence before it and is satisfied that the parties had an adequate opportunity to present their case and to be heard by the Tribunal.

    RELEVANT LEGAL PRINCIPLES

    Citizenship Act provisions

20. Subsection 21(4)(f) of the Citizenship Act applies to a person aged over 60 at the time they made their citizenship application. This subsection sets out eligibility criteria, including that the Applicant must be of good character:

    (4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (f)is of good character at the time of the Minister's decision on the application.

21. Subsection 21(4)(f) of the Citizenship Act refers to the person having to be of good character at the time of the Minister’s decision. As the Tribunal is standing in the shoes of the Minister, the Tribunal must be satisfied that the Applicant is of good character at the time the Tribunal makes its decision (see VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [21] and [29]).

    Definition of “good character”

22. The Citizenship Act does not include a definition of “good character”. However the Department has a Citizenship Policy, Department of Immigration and Border Protection,
    1 June 2016 (Citizenship Policy) for the purpose of providing, “…guidance on the interpretation of, and the exercise of powers under, the Act…”.

23. Chapter 11 of the Citizenship Policy provides information on what constitutes good character, community standards, characteristics of good character, and guidance for decision makers as to how to weigh up whether an applicant for citizenship is of good character.

24. The Citizenship Policy refers to a number of decisions that define “good character”.
    These include the following definition from Irving v Minister for Immigration,
    Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 (Irving) (page 145):

    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 while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

25. After citing the above passage from Irving, the Citizenship Policy (page 145) explains:

    In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:

    ·     characteristics which have been demonstrated over a very long period of time

    ·     distinguishing right from wrong

    ·     behaving in an ethical manner, conforming to the rules and values of Australian society.

    The good character requirement looks at the essence of the applicant.
    Their behaviour is a manifestation of their essential characteristics.

26. Relevantly, in Irving, at 89, Davies J stated that: “The question whether a person is or is not of “good character” is primarily an issue of fact.” Davies J further stated, at 91:

    I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.

27. The following relevant passage from the judgment of Davies J in Irving, at 88-89 is relevant when assessing character in the context of criminal convictions:

    …criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

28. In Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132, after citing the definition of “good character” in Irving (at paragraph [24] above), Deputy President Wright stated, at [14]:

    When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.

29. The Citizenship Policy (page 146) also refers to the decision of Fenn vMinister for Immigration and Multicultural Affairs [2000] AATA 931 in which Deputy President Breen stated, at [8]:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. While Mr Fenn may have made a contribution to the community before these offences and since 1995, he significantly detracted from the community for over 4 years and deprived a number of Australians of their savings and other monies rightfully theirs.
    That Mr Fenn is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship.
    The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds,
    nor does it prevent him applying for citizenship again in a few year's [sic] time when he can demonstrate a longer period of positive contribution to the Australian community.

30. Further, the Citizenship Policy (page 146) cites the decision of Deputy President Forgie in
    Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120]. The preceding paragraph, [119], is also relevant and has been included here:

    119.It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.
    I gain some assistance in identifying what society considers good, right and proper from the Preamble to the Act. After recognising that Australian citizenship represents full and formal membership of the Australian community, the Preamble states that citizenship is a common bond, which involves reciprocal rights and obligations and unites all while respecting their diversity. The Preamble goes on to state that persons upon whom Australian citizenship is conferred:

    “... 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.”

    120. In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another.
    The ways are not finite.

31. The section of the Citizenship Policy titled, “Weighing up the character decision” (pages 149-150) states:

    Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of
    ‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    ·would a person of good character have behaved the way the applicant did

    ·what is there to demonstrate that the applicant has upheld and obeyed the law

    ·has the applicant behaved in accordance with Australia's community standards

    ·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.

    In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:

    ‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however,
    that, despite the many good qualities possessed by a person,
    those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’

    A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.

32. The Citizenship Policy also provides a non-exhaustive list of “[c]haracteristics of good character” (page 147) which includes the following characteristics:

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

    …

    ·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)

    …

    Passage of time since the offending

33. The following passage from Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 is relevant to the passage of time between the offending and the assessment of good character. In Assafiri, Senior Member Toohey stated, at [64]:

    There is no formula for determining how much is sufficient time in order to be satisfied that a person is of good character. The ACIs refer to the phrase “enduring moral qualities” as encompassing the concept of “characteristics which have been demonstrated over a very long period of time”: 10.3.1. At 10.5.2 they state that,
    in the case of a serious offence, “a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character”. A decision-maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any [...] application”: cl 10.5.4.

    SUBMISSIONS AND EVIDENCE AT THE HEARING

1. By way of summary, the Respondent contended that the evidence before the Tribunal did not support a finding that the Applicant is of good character for the following reasons:

   (a)The Applicant has a long criminal history over an approximate 44 year period,
   which suggests a pattern of criminal behaviour and a disregard for Australian laws.

   (b)The Applicant’s most recent offences in 2011 involved the Applicant being declared a drug trafficker and being sentenced to nine months imprisonment.
   The Respondent noted that this was the third time the Applicant had received a sentence of imprisonment for cultivating, possessing and supplying cannabis.

   (c)His first offence was in 1967 (see Annexure A to Exhibit R3) and as well as the cannabis offences, the Applicant has been convicted of other general offences (including making a false report to police and unlawful damage), as well as driving offences (including unlicensed driving, refusing a breath test and drink driving), being a total of 33 offences.

   (d)The Respondent submitted that although the Applicant contended that his drug offences were to support his own drug use, there is insufficient evidence to satisfy the Tribunal that he is now rehabilitated. For example, there is no evidence of any formal rehabilitative courses undertaken by the Applicant.

   (e)Although the Applicant submitted character references, they should be given limited weight. This is because the reference from the Applicant’s sister (Exhibit A1) did not acknowledge the extent of the Applicant’s offending and was mistaken as to the number of years that had passed since the Applicant’s last offences.
   The other three references from his medical practitioners did not acknowledge his offending.

2. The Applicant’s submissions can be summarised as follows:

   (a)He has resided in Australia since he was a teenager, and fought for Australia as a national serviceman in the Vietnam War. He applied for a defence service home loan when he returned from Vietnam. This house was confiscated following his drug trafficking convictions which he thought was “wrong” (transcript, page 9).

   (b)The Applicant’s elderly mother, who relies upon him for assistance, and his sister live in Australia. In his statutory declaration, the Applicant also mentioned he has two brothers in Australia (PT10, page 56, para [82]), but the nature of his relationship with them is unknown.

   (c)He has not committed any offences for approximately 10 years (transcript,
   page 10).

   (d)He will not commit any further offences because he is now older and wiser and is happy with his life now. He has interests to occupy his time, including friends, attending a Vietnam Veteran’s group meeting twice a week, weekly medical appointments which are of assistance to him, and he helps to care for his elderly mother (transcript, page 11). He is at an age where he does not want to offend again and stated that, “I’d hate to see myself back in gaol again, I don’t think I could do it” (transcript, pages 12-13).

   (e)He “tried to be truthful and frank” in disclosing his past offences in his citizenship application “by owning and acknowledging my mistakes” (PT2, page 7).

   (f)His referees “are people who have seen my life change” and “are people who have had regular and ongoing contact with me over many years and can attest to my lifestyle and my attitude, and my good character” (PT2, page 7).

3. At the hearing, the following matters were clarified:

   (a)The Applicant conceded that two of his referees did not know about his offending. He stated that one of them (his general practitioner) knew that he had been in prison. The Applicant stated that he had not told his other referees about his offending as he did not want them to think less of him, and was concerned they may not want to continue to see him if they knew (transcript, pages 17-18).

   (b)The Applicant mentioned seeing a psychiatrist once or twice a year who knew about his offending, however he had not obtained a reference from the psychiatrist (transcript, page 18).

   (c)The Applicant stated that he had the support of his sister (who wrote a letter of reference – see Exhibit A1). The Applicant’s sister referred to how the Applicant
   “is ten years older now than when he last broke the law” (Exhibit A1, page 1) which indicates that she was aware of his last offences, however it is unclear if she is aware of any of the Applicant’s previous offences. Although the Respondent submitted (Exhibit R3, paragraph [29]) that the Applicant’s sister was mistaken as to the number of years that had passed since the Applicant’s last offences,
   this does not appear correct to the Tribunal. Her reference to the Applicant being
   “ten years older now than when he last broke the law” is a correct approximation given that the search warrant on the Applicant’s premises was executed in September 2010 (Exhibit R2, volume 2, page 927) and her letter of reference was dated 23 September 2019 (Exhibit A1), being approximately nine years.

   (d)The Applicant accepted that he had drink-driving offences, but he stated he had not had a drink for approximately 20 years (transcript, page 21).

   (e)To the Applicant’s credit, he accepted his offending when it was put to him (transcript, page 21). However, the Applicant seemingly attempted to downplay the significance of some of his offending during cross examination. For example, with respect to his 1997 cannabis offences to which the Applicant pled guilty, the Summary of Facts (Exhibit R2, volume 1, page 4) stated the Applicant had
   “91 mature cannabis plants”, but the Applicant stated “they weren’t very big…” (transcript, page 25). With respect to a plastic bin containing 895 grams of cannabis the police located at the premises, the Applicant stated, “[t]here was a lot of rubbish weighed in that” (transcript, page 25).

   (f)When sentencing the Applicant for the 2011 offences, the Sentencing Judge accepted that the Applicant had “quite elaborate systems” (Exhibit R2, volume 2,
   page 928) for cultivating cannabis in place, but the Applicant stated that the plants were just “little babies” and that “…they called an elaborate set up something with a light on it” (transcript, page 24). The Sentencing Judge in 2011 was also satisfied that these “were systems clearly designed to produce cannabis for commercial purposes” (Exhibit R2, volume 2, page 928), however the Applicant stated he did not consider the operation to be commercial because “it wasn’t big enough” (transcript, page 26).

   (g)There were some other inconsistencies in the Applicant’s written statement put to him during cross examination. In his written statement, the Applicant stated that he committed the 2011 cultivation offences because he was dealing with increasing pain from a back injury (PT10, page 56, para [77]). However, in his evidence at the hearing when asked why he committed these offences in 2011 the Applicant stated (transcript, page 13): “Well, I don’t know, I just was interested in doing it again and it is an interesting hobby as well. I wish I maybe had a hobby growing roses.”
   The Tribunal has not drawn any adverse conclusions as a result of these inconsistencies as they could be attributable to several reasons including nervousness at the hearing, or memory issues due to the passage of time.
   The Tribunal also notes that some inconsistencies could be attributed to the Applicant obtaining help from his friend’s daughter to prepare his statutory declaration, and he admitted he should have checked it more carefully (transcript, pages 15 and 31). Overall, the Tribunal was not of the impression that the Applicant was being deliberately evasive. He accepted his offending, but at times tried to downplay its seriousness.

   CONCLUSION

4. In the Tribunal’s view, there are some factors that weigh in the Applicant’s favour.
   These are:

   (a)The Applicant has resided in Australia for a long period of time, that is, since he was a teenager, and he is now a pensioner.

   (b)The Applicant was a national serviceman, conscripted to fight in Vietnam, and he should be commended for his military service.

   (c)He has not committed any further offences since his last term of imprisonment in 2011, and when considered with his elderly age and engagement in pro-social activities such as attending his twice weekly Vietnam Veteran’s group,
   this suggests he is unlikely to re-offend.

   (d)The Applicant has the support of his sister, who is aware of his 2011 offending,
   and who is still willing to support his citizenship application. As noted above,
   he has other character references from medical practitioners who have known him for between seven to 10 years, although they do not mention his offending, and according to the Applicant, only one of these referees (his general practitioner) knew he had served time in prison.

   (e)He was honest in disclosing his convictions when completing his citizenship application.

5. However, there were also some factors that were contrary to the Applicant’s application. These factors make it difficult for the Tribunal to be satisfied, at the time of the Tribunal’s decision, that the Applicant is now of good character under s 21(4)(f) of the Citizenship Act (see generally transcript, pages 38-39). The Tribunal will now discuss these.

6. The Applicant has a lengthy criminal history. This is problematic because, according to the Citizenship Policy, the enduring moral qualities that are indicative of good character should be demonstrated over a very long period of time.

7. Further, the Applicant’s criminal history includes three terms of imprisonment for cannabis offences in 1997, 2002 and 2011. The Citizenship Policy states that an applicant of good character would not be involved in drugs. Additionally, the Applicant’s attempt at the hearing to minimise his drug offending is of concern because distinguishing right from wrong is also referred to in the Citizenship Policy as an integral concept to a person having enduring moral qualities. So too is conforming to the rules of Australian society.

8. Further, although the Applicant’s age suggests he is now less likely to reoffend,
   the Applicant was in his 40s, 50s and 60s when these cannabis offences were committed, with the Sentencing Judge in 2011 noting that: “You are not a first offender, and you do have these prior convictions, and age is against you” (Exhibit R2, volume 2, page 931).
   It is commendable that the Applicant has not committed any further offences for nine years, but there have been significant gaps in offending throughout his history
   (for example, between approximately 1991 and 1997, 1997 and 2002, and 2002 and 2011) and yet he has re-offended. Given the Applicant’s age, and regular pro-social activities he undertakes weekly, a lengthier period of remaining free from offending may count in his favour in a future application.

9. There is minimal objective evidence before the Tribunal in support of good character.
   With the exception of his sister’s reference (Exhibit A1), the Applicant’s other three character references did not refer to his offending, and it is not clear whether his sister knew about the totality of his offences. As noted above, the Applicant confirmed that only one of his medical practitioner referees knew that he had been in prison. Character references carry more weight when they are given with the full knowledge that a person has committed offences. They are much more persuasive if the referee knows about a person’s offending, and is still willing to vouch for their character. Consequently,
   the Tribunal can only give minimal weight to the character references from the three medical practitioners, but does give some weight to the reference from the Applicant’s sister.

10. At the hearing the Applicant mentioned that he sees a psychiatrist twice a year and that his psychiatrist “would’ve known” of his offending (transcript, page 18). However,
    the Applicant stated that as he only sees his psychiatrist twice a year he did not ask for a reference. A psychiatrist who has been seeing a patient over a period of time may be in a good position to assess whether a person is rehabilitated, and whether there’s any risk of reoffending. This is likely to be helpful to a decision-maker in assessing character.

11. In summary, there is currently insufficient evidence before the Tribunal to persuade the Tribunal that the Applicant is rehabilitated and is, at the time of this decision,
    of good character.

12. The Tribunal realises that the outcome will be disappointing for the Applicant. However,
    he is able to make another application for citizenship in the future. Following a longer period of time free from offending in the community, and further evidence of good character (for example character references from persons aware of the Applicant’s offending, other evidence of rehabilitation such as a report from his psychiatrist,
    and/or evidence of the completion of rehabilitative courses or counselling), a future application may have some chance of success.

    DECISION

13. For the reasons outlined above, the Reviewable Decision dated 11 April 2019 is affirmed.

I certify that the preceding 46 (forty–six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

......................[sgd]..................................................

Associate

Dated: 22 April 2020

Date of hearing:	11 March 2020
Counsel for the Applicant:	Self-represented
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers